Exhibit No. 4(j)
WARRANT AGREEMENT dated as of December 23, 1996, between ICF XXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and The Bank of New
York, a New York banking corporation, as warrant agent (with any successor
Warrant Agent, the "Warrant Agent").
WHEREAS, the Company proposes to issue and deliver its warrant certificates
(the "Warrant Certificates") evidencing warrants (the "Warrants") to acquire,
under certain circumstances, up to an aggregate of 105,000 shares, subject to
adjustment, of its Common Stock (as defined below), in connection with an
offering by the Company of 15,000 Units comprising the Warrants and $15,000,000
aggregate principal amount of its 12% Senior Notes due 2003, Series A (the
"Notes"). The Notes are to be issued under an indenture to be dated as of
December 23, 1996 between the Company and The Bank of New York, a New York
banking corporation, as trustee (the "Indenture"). Each Warrant shall represent
the right to purchase from the Company one share of Common Stock, at an initial
price of $2.30 per share, subject to adjustment under certain circumstances; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of the Warrant Certificates and other matters as provided herein;
NOW, THEREFORE, in consideration of the foregoing and for the purpose of
defining the terms and provisions of the Warrants and the respective rights and
obligations thereunder of the Company, the Warrant Agent and the record holders
from time to time of the Warrants, the Company and the Warrant Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Definitions
As used in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" of any person means any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
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.
"Common Equity Securities" means Common Stock and securities
convertible into, or exercisable or exchangeable for, Common Stock or rights or
options to acquire Common Stock or such other securities, excluding the
Warrants.
"Common Stock" means the common stock, $0.01 par value per share, of
the Company, and any other capital stock of the Company into which such common
stock may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
"Company" means ICF Xxxxxx International, Inc., a Delaware
corporation, and its successors and assigns.
"Depositary" means, with respect to the Warrants issued in the form of
one or more Global Warrants, The Depository Trust Company or another Person
designated as Depositary by the Company, which must be a clearing agency
registered under the Exchange Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" means December 31, 1999, subject to the provisions
of Section 3.05.
"Global Warrant" means a security evidencing all or a portion of the
Warrants issued to the Depositary or its nominee in accordance with Section 2.01
and bearing the legend set forth in Exhibit B.
"Holders" means, from time to time, the holders of the Warrants; in
the case of Section 8.04, "Holders" also means, from time to time, the holders
of Restricted Shares.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"NASD" means the National Association of Securities Dealers, Inc.
"Nasdaq Stock Market" means The Nasdaq Stock Market, Inc.
"Non-Surviving Combination" means any merger, consolidation or other
business combination by the Company with one or more persons (other than a
wholly-owned subsidiary of the Company) in which the Company is not the
survivor, or a sale of all or substantially all of the assets of the Company to
one or more such other persons, if, in connection with any of the foregoing,
consideration (other than consideration which includes Common Equity Securities)
is distributed to holders of Common Stock in exchange for all or substantially
all of their equity interest in the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Private Placement Legend" means the legend set forth on the Warrants
in the form set forth on Exhibit A.
"Purchase Price" means the purchase price per share of Common Stock to
be paid upon the exercise of each Warrant in accordance with the terms hereof,
which price shall initially be $2.30 per share, subject to adjustment from time
to time pursuant to Article IV hereof.
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as such term is defined in Rule 144A.
"Restricted Shares" means (i) any shares of Common Stock issued or
issuable as a result of the exercise of Warrants and (ii) any other shares of
Common Stock issuable with respect to any of such shares of Common Stock (x) by
way of stock dividend or stock split, (y) in connection with a Transaction or
(z) otherwise.
"Regulation S" means Regulation S under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Surviving Combination" means any merger, consolidation or other
business combination by the Company with one or more persons in which the
Company is the survivor, or a purchase of assets by the Company from one or more
other persons.
"Transaction" means any transaction (including, without limitation, a
merger, consolidation, sale of all or substantially all of the Company's assets,
liquidation or recapitalization of the Common Stock or any combination thereof),
in which the previously outstanding Common Stock shall be changed into or
exchanged for different
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securities of the Company or common stock or other securities of another
corporation or interests in a noncorporate entity or other property (including
cash) or any combination of any of the foregoing.
"Underlying Common Stock" means the shares of Common Stock issuable
upon the exercise of the Warrants.
"Warrant Agent" means The Bank of New York, a New York banking
corporation, or the successor or successors of such Warrant Agent appointed in
accordance with the terms hereof.
Section 1.02 Certain Other Defined Terms
Term Defined in Section
"Change of Shares"................... 4.01(a)
"Common Stock Distribution".......... 4.01(b)
"Convertible Securities"............. 4.01(c)
"Indemnified Holder"................. 8.04(b)
"Indenture".......................... Preamble
"Note"............................... Preamble
"Offshore Physical Warrants"......... 2.01
"Options"............................ 4.01(c)
"Physical Warrants".................. 2.01
"Rights"............................. 4.01(c)
"Survivor"........................... 3.05(b)
"Transfer Agent"..................... 8.01
"U.S. Physical Warrants"............. 2.01
"Warrant Certificates"............... Preamble
"Warrants"........................... Preamble
ARTICLE II
ORIGINAL ISSUE OF WARRANTS
Section 2.01 Form of Warrant Certificates
The Warrant Certificates (a) shall be issued in registered form only
and substantially in the form attached hereto as Exhibit A, (b) shall be dated
the date of issuance thereof (whether upon initial issuance, registration of
transfer, exchange or replacement), (c) shall show the date of countersignature
and (d) shall have such legends and endorsements, each as provided by the
Company, typed, stamped, printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrant may be listed, or to conform to customary usage,
including, without limitation, the Private Placement Legend set forth on the
form of face of Warrant Certificate attached hereto as Exhibit A. The Warrant
Certificates shall be in a format and in a form reasonably satisfactory to the
Warrant Agent.
Warrants offered and sold in reliance on Rule 144A and to
Institutional Accredited Investors shall be issued initially in the form of one
or more permanent Global Warrants in registered form, substantially in the form
set forth in Exhibit A, deposited with the Warrant Agent, as custodian for the
Depositary, and shall bear the legend set forth on Exhibit B. The aggregate
number of Warrants represented by any Global Warrant may from time to time be
increased or decreased by adjustments made on the records of the Warrant Agent,
as custodian for the Depositary, as hereinafter provided.
Warrants offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of certificated Warrants in registered
form, substantially in the form set forth in Exhibit A (the "Offshore Physical
Warrants"). Notes offered and sold in reliance on any other exemption from
registration under the Securities Act
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other than as described in the preceding paragraph shall be issued, and Warrants
offered and sold in reliance on Rule 144A may be issued, in the form of
certificated Warrants in registered form in substantially the form set forth in
Exhibit A (the "U.S. Physical Warrants"). The Offshore Physical Warrants and the
U.S. Physical Warrants are sometimes collectively herein referred to as the
"Physical Warrants."
Pending the preparation of definitive Warrant Certificates, temporary
Warrant Certificates may be issued, which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, and which will be substantially
of the tenor of the definitive Warrant Certificates in lieu of which they are
issued.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates to the Warrant Agent, without
charge to the Holder. Until so exchanged the temporary Warrant Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Warrant Certificates.
Section 2.02 Execution and Delivery of Warrant Certificates
Warrant Certificates evidencing Warrants to purchase initially an
aggregate of up to 105,000 shares of Common Stock shall be executed, on or after
the date of this Agreement, by the Company and delivered to the Warrant Agent
for countersignature, and the Warrant Agent shall thereupon countersign and
deliver such Warrant Certificates upon the order and at the direction of the
Company to the purchasers thereof on the date of issuance. The Warrant Agent is
hereby authorized to countersign and deliver Warrant Certificates as required by
this Section 2.02 or by Section 3.04, Article V or Section 9.04. The Warrant
Certificates shall be executed on behalf of the Company by its Chairman, Chief
Executive Officer or President or by any of its Vice Presidents, either manually
or by facsimile signature printed thereon. The Warrant Certificates shall be
authenticated by manual signature of an authorized signatory of the Warrant
Agent and shall not be valid for any purpose unless so countersigned, and shall
be dated the date of authentication by the Warrant Agent. In case any officer
of the Company whose signature shall have been placed upon any of the Warrant
Certificates shall cease to be the Chairman, Chief Executive Officer, President
or a Vice President of the Company before countersignature by the Warrant Agent
and issue and delivery thereof, such Warrant Certificates may, nevertheless, be
countersigned by the Warrant Agent and issued and delivered with the same force
and effect as though such person had not ceased to be such officer of the
Company.
ARTICLE III
EXERCISE PRICE; EXERCISE OF WARRANTS
GENERALLY; NON-SURVIVING COMBINATION
Section 3.01 Exercise Price
Each Warrant Certificate shall, when countersigned by the Warrant
Agent, entitle the Holder thereof, subject to the provisions thereof and of this
Agreement, to receive one share of Common Stock for each Warrant represented
thereby, subject to adjustment as herein provided upon payment of the Purchase
Price for each of such shares. The Purchase Price shall be payable by certified
or official bank check or wire transfer, payable in United States currency to
the order of the Company.
Section 3.02 Exercise of Warrants
Subject to the terms and conditions set forth herein, the Warrants
shall be exercisable at any time on or prior to the Expiration Date.
Section 3.03 Expiration of Warrants
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The Warrants shall terminate and become void as of the close of
business on the Expiration Date; provided, however, that the Warrants will
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terminate and become void prior to the Expiration Date in the event of a Non-
Surviving Combination, pursuant to Section 3.05.
The Company shall give notice not less than 90, and not more than 120,
days prior to the Expiration Date to the Holders of all then outstanding
Warrants to the effect that the Warrants will terminate and become void as of
the close of business on the Expiration Date; provided, however, that the
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failure by the Company to give such notice as provided in this Section shall not
affect such termination and becoming void of the Warrants as of the close of
business on the Expiration Date.
Section 3.04 Method of Exercise
In order to exercise a Warrant, the Holder thereof must surrender the
Warrant Certificates evidencing such Warrant to the Warrant Agent, with one of
the forms on the reverse of or attached to the Warrant Certificate duly
executed, and tender the Purchase Price therefor in accordance with this Article
III.
In order for a Person having a beneficial interest in a Global Warrant
to exercise a Warrant, such Person must first exchange such beneficial interest
for a Physical Warrant in the manner provided in Section 5.02(d).
If fewer than all of the Warrants represented by a Warrant Certificate
are surrendered, such Warrant Certificate shall be surrendered and, subject to
the provisions of Article V, a new Warrant Certificate of the same tenor and for
the number of Warrants that were not surrendered shall be executed by the
Company. The Warrant Agent shall countersign the new Warrant Certificate,
register it in such name or names as may be directed in writing by the Holder
and deliver the new Warrant Certificate to the person or persons entitled to
receive the same.
Upon surrender of a Warrant Certificate and payment of the Purchase
Price in conformity with the foregoing provisions, the Warrant Agent shall
thereupon promptly notify the Company, and the Warrant Agent will deliver or
cause to be delivered to or upon written order of any Holder appropriate
evidence of ownership of any shares of Underlying Common Stock or other
securities or property (including any money) to which the Holder is entitled,
subject to the provisions of Section 9.02.
Section 3.05 Non-Surviving Combination
(a) If the Company proposes, prior to the Expiration Date, to enter
into a transaction that would constitute a Non-Surviving Combination if
consummated, the Company shall give written notice thereof to the Warrant Agent
and to the Holders of Warrants, promptly after an agreement is reached with
respect to the Non-Surviving Combination but in no event less than 30 days prior
to the consummation thereof. Such notice shall describe the transaction in
reasonable detail and specify the consideration to be received by the Holders.
The Company shall also furnish to each Holder of Warrants all notices and
materials furnished to its stockholders in connection with such transactions.
(b) The Company agrees that it will not enter into an agreement
providing for a Non-Surviving Combination, unless the party to such transaction
that is the surviving entity (the "Survivor") shall be obligated to distribute
or pay to each Holder of Warrants, upon payment of the Purchase Price prior to
the Expiration Date, the number of shares of stock or other securities or other
property (including any cash) of the Survivor that would have been distributable
or payable on account of the Underlying Common Stock if such Holder's Warrants
had been exercised immediately prior to such Non-Surviving Combination (or, if
applicable, the record date therefor). Following the consummation of a Non-
Surviving Combination, the Warrants shall represent only the right to receive
such shares of stock or other property from the Survivor upon payment of the
Purchase Price prior to the Expiration Date.
ARTICLE IV
ADJUSTMENTS
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Section 4.01 Adjustments of Exercise Price and Number of Shares of Common Stock
The number and kind of shares purchasable upon the exercise of
Warrants and the Purchase Price shall be subject to adjustment from time to time
as follows:
(a) Changes in Common Stock. In the event the Company shall, at any
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time or from time to time after the date hereof, (i) issue any shares of Common
Stock as a stock dividend to the holders of Common Stock, (ii) subdivide or
combine the outstanding shares of Common Stock into a greater or lesser number
of shares or (iii) issue any shares of its capital stock in a reclassification
or reorganization of the Common Stock (any such issuance, subdivision,
combination, reclassification or reorganization being herein called a "Change of
Shares"), then (A) in the case of (i) or (ii) above, the number of shares of
Common Stock that may be purchased upon the exercise of each Warrant shall be
adjusted to the number of shares of Common Stock that the Holder of such Warrant
would have owned or have been entitled to receive after the happening of such
event had such Warrant been exercised immediately prior to the record date (or,
if there is no record date, the effective date) for such event, and the Purchase
Price shall be adjusted to the price (calculated to the nearest 1,000th of one
cent) determined by multiplying the Purchase Price immediately prior to such
event by a fraction, the numerator of which shall be the number of shares of
Common Stock purchasable with one Warrant immediately prior to such event and
the denominator of which shall be the number of shares of Common Stock
purchasable with one Warrant after the adjustment referred to above and (B) in
the case of (iii) above, paragraph (l) below shall apply. An adjustment made
pursuant to clause (A) of this paragraph (a) shall become effective
retroactively immediately after the record date in the case of such dividend and
shall become effective immediately after the effective date in other cases, but
any shares of Common Stock issuable solely as a result of such adjustment shall
not be issued prior to the effective date of such event.
(b) Common Stock Distribution. In the event the Company shall, at any
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time or from time to time after the date hereof, issue, sell or otherwise
distribute (including by way of deemed distributions pursuant to paragraphs (c)
and (d) below) any shares of Common Stock (other than pursuant to a Change of
Shares or the exercise of any Option, Convertible Security (each as defined in
paragraph (c) below) or Warrant) (any such event, including any deemed
distributions described in paragraphs (c) and (d), being herein called a "Common
Stock Distribution"), for a consideration per share less than the current market
price per share of Common Stock (as defined in paragraph (f) below), on the date
of such Common Stock Distribution, then, effective upon such Common Stock
Distribution, the Purchase Price shall be reduced to the price (calculated to
the nearest 1,000th of one cent) determined by multiplying the Purchase Price in
effect immediately prior to such Common Stock Distribution by a fraction, the
numerator of which shall be the sum of (i) the number of shares of Common Stock
outstanding (exclusive of any treasury shares) immediately prior to such Common
Stock Distribution multiplied by the current market price per share of Common
Stock on the date of such Common Stock Distribution, plus (ii) the
consideration, if any, received by the Company upon such Common Stock
Distribution, and the denominator of which shall be the product of (A) the total
number of shares of Common Stock outstanding (exclusive of any treasury shares)
immediately after such Common Stock Distribution multiplied by (B) the current
market price per share of Common Stock on the date of such Common Stock
Distribution.
If any Common Stock Distribution shall require an adjustment to the
Purchase Price pursuant to the foregoing provisions of this paragraph (b),
including by operation of paragraph (c) or (d) below, then, effective at the
time such adjustment is made, the number of shares of Common Stock purchasable
upon the exercise of each Warrant shall be increased to a number determined by
multiplying the number of such shares so purchasable immediately prior to such
Common Stock Distribution by a fraction, the numerator of which shall be the
Purchase Price in effect immediately prior to such adjustment and the
denominator of which shall be the Purchase Price in effect immediately after
such adjustment. In computing adjustments under this paragraph, fractional
interests in Common Stock shall be taken into account to the nearest 1,000th of
a share.
The provisions of this paragraph (b), including by operation of
paragraph (c) or (d) below, shall not operate to increase the Purchase Price or
reduce the number of shares of Common Stock purchasable upon the exercise of any
Warrant, except by operation of paragraph (j) or (k) below.
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(c) Issuance of Options. In the event the Company shall, at any time
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or from time to time after the date hereof, issue, sell, distribute or otherwise
grant in any manner (including by assumption) any rights to subscribe for or to
purchase, or any warrants or options for the purchase of, Common Stock or any
stock or securities convertible into or exchangeable for Common Stock (any such
rights, warrants or options being herein called "Options" (the term "Options"
shall also include without limitation any rights ("Rights") to purchase Common
Stock and each other security for which such rights are at any time exercisable
issued pursuant to the Rights Agreement between the Company and the Rights Agent
designated therein approved by the Board of Directors of the Company on January
13, 1992, as amended from time to time) and any such convertible or exchangeable
stock or securities being herein called "Convertible Securities"), whether or
not such Options or the rights to convert or exchange such Convertible
Securities are immediately exercisable, and the price per share at which Common
Stock is issuable upon the exercise of such Options or upon the conversion or
exchange of such Convertible Securities (determined by dividing (i) the
aggregate amount, if any, received or receivable by the Company as consideration
for the issuance, sale, distribution or granting of such Options, plus the
minimum aggregate amount of additional consideration, if any, payable to the
Company upon the exercise of all such Options, plus, in the case of Options to
acquire Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the conversion or exchange of all such
Convertible Securities, by (ii) the total maximum number of shares of Common
Stock issuable upon the exercise of all such Options or upon the conversion or
exchange of all Convertible Securities issuable upon the exercise of all such
Options) shall be less than the current market price per share of Common Stock
on the date of the issuance, sale, distribution or granting of such Options
then, for purposes of paragraph (b) above, the total maximum number of shares of
Common Stock issuable upon the exercise of all such Options or upon the
conversion or exchange of the total maximum amount of the Convertible Securities
issuable upon the exercise of all such Options shall be deemed to have been
issued as of the date of the issuance, sale, distribution or granting of such
Options and thereafter shall be deemed to be outstanding and the Company shall
be deemed to have received as consideration such price per share, determined as
provided above, therefor. Except as otherwise provided in paragraphs (j) and
(k) below, no additional adjustment of the Purchase Price shall be made upon the
actual exercise of such Options or upon conversion or exchange of the
Convertible Securities issuable upon the exercise of such Options. If the
minimum and maximum numbers or amounts referred to in this paragraph (c) or in
paragraph (d) below cannot be calculated with certainty as of the date of the
required adjustment, such numbers and amounts shall be determined in good faith
by the Board of Directors of the Company.
(d) Issuance of Convertible Securities. In the event the Company
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shall, at any time or from time to time after the date hereof, issue, sell or
otherwise distribute (including by assumption) any Convertible Securities (other
than upon the exercise of any Option), whether or not the rights to convert or
exchange such Convertible Securities are immediately exercisable, and the price
per share at which Common Stock is issuable upon the conversion or exchange of
such Convertible Securities (determined by dividing (i) the aggregate amount, if
any, received or receivable by the Company as consideration for the issuance,
sale or distribution of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company upon the
conversion or exchange of all such Convertible Securities, by (ii) the total
maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the current
market price per share of Common Stock on the date of such issuance, sale or
distribution, then, for the purposes of paragraph (b) above, the total number of
shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities shall be deemed to have been issued as of the date of the
issuance, sale or distribution of such Convertible Securities and thereafter
shall be deemed to be outstanding and the Company shall be deemed to have
received as consideration such price per share, determined as provided above,
therefor. Except as otherwise provided in paragraphs (j) and (k) below, no
additional adjustment of the Purchase Price shall be made upon the actual
conversion or exchange of such Convertible Securities.
(e) Dividends and Distributions. In the event the Company shall, at
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any time or from time to time after the date hereof, distribute to the holders
of Common Stock any dividend or other distribution of cash, evidences of its
indebtedness, other securities or other properties or assets (in each case other
than (i) dividends payable in Common Stock, Options or Convertible Securities
and (ii) any cash dividend that, when added to all other cash dividends paid in
the one year prior to the declaration date of such dividend (excluding any such
other dividend included in a previous adjustment of the Purchase Price pursuant
to this paragraph (e)), does not exceed 10% of the current market price per
share of Common Stock on such declaration date), or any options, warrants or
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other rights to subscribe for or purchase any of the foregoing, then (A) the
Purchase Price shall be decreased to a price determined by multiplying the
Purchase Price then in effect by a fraction, the numerator of which shall be the
current market price per share of Common Stock on the record date for such
distribution less the sum of (X) the cash portion, if any, of such distribution
per share of Common Stock outstanding (exclusive of any treasury shares) on the
record date for such distribution plus (Y) the then fair market value (as
determined in good faith by the Board of Directors of the Company) per share of
Common Stock outstanding (exclusive of any treasury shares) on the record date
for such distribution of that portion, if any, of such distribution consisting
of evidences of indebtedness, other securities, properties, assets, options,
warrants or subscription or purchase rights, and the denominator of which shall
be such current market price per share of Common Stock and (B) the number of
shares of Common Stock purchasable upon the exercise of each Warrant shall be
increased to a number determined by multiplying the number of shares of Common
Stock so purchasable immediately prior to the record date for such distribution
by a fraction, the numerator of which shall be the Purchase Price in effect
immediately prior to the adjustment required by clause (A) of this sentence and
the denominator of which shall be the Purchase Price in effect immediately after
such adjustment. The adjustments required by this paragraph (e) shall be made
whenever any such distribution is made and shall be retroactive to the record
date for the determination of stockholders entitled to receive such
distribution.
(f) Current Market Price. For the purpose of any computation under
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paragraphs (b), (c), (d) and (e) of this Section, the current market price per
share of Common Stock at any date shall be the average of the daily closing
prices for the shorter of (i) the 20 consecutive trading days ending on the last
full trading day on the exchange or market specified in the second succeeding
sentence prior to the Time of Determination and (ii) the period commencing on
the date next succeeding the first public announcement of the issuance, sale,
distribution or granting in question through such last full trading day prior to
the Time of Determination. The term "Time of Determination" as used herein
shall be the time and date of the earlier to occur of (A) the date as of which
the current market price is to be computed and (B) the last full trading day on
such exchange or market before the commencement of "ex-dividend" trading in the
Common Stock relating to the event giving rise to the adjustment required by
paragraph (b), (c), (d) or (e). The closing price for any day shall be the last
reported sale 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 (1) on the principal national securities exchange on which the
shares of Common Stock are listed or to which such shares are admitted to
trading or (2) if the Common Stock is not listed or admitted to trading on a
national securities exchange, in the over-the counter market as reported by the
Nasdaq Stock Market or any comparable system or (3) if the Common Stock is not
listed on the Nasdaq Stock Market or a comparable system, as furnished by two
members of the NASD selected from time to time in good faith by the Board of
Directors of the Company for that purpose. In the absence of all of the
foregoing, or if for any other reason the current market price per share cannot
be determined pursuant to the foregoing provisions of this paragraph (f), the
current market price per share shall be the fair market value thereof as
determined in good faith by the Board of Directors of the Company.
(g) Certain Distributions. If the Company shall pay a dividend or
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make any other distribution payable in Options or Convertible Securities, then,
for purposes of paragraph (b) above (by operation of paragraph (c) or (d) above,
as the case may be), such Options or Convertible Securities shall be deemed to
have been issued or sold without consideration except for such amounts of
consideration as shall have been deemed to have been received by the Company
pursuant to paragraphs (c) or (d) above, as appropriate.
(h) Consideration Received. If any shares of Common Stock shall be
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issued and sold in an underwritten public offering, the consideration received
by the Company for such shares of Common Stock shall be deemed to include the
underwriting discounts and commissions realized by the underwriters of such
public offering. If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for a consideration other than
cash, the amount of the consideration other than cash received by the Company in
respect thereof shall be deemed to be the then fair market value of such
consideration (as determined in good faith by the Board of Directors of the
Company). If any Options shall be issued in connection with the issuance and
sale of other securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to such Options by
the parties thereto, such Options shall be deemed to have been issued, sold or
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distributed for such amount of consideration as shall be allocated to such
Options in good faith by the Board of Directors of the Company.
(i) Deferral of Certain Adjustments. No adjustment to the Purchase
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Price (including the related adjustment to the number of shares of Common Stock
purchasable upon the exercise of each Warrant) shall be required hereunder (i)
unless such adjustment, together with other adjustments carried forward as
provided below, would result in an increase or decrease of at least one percent
of the Purchase Price, provided, however, that any adjustment which by reason of
this clause (i) of this paragraph (i) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment and (ii)
solely with respect to Options that are Rights, until the time such Options
become exercisable.
(j) Changes in Options and Convertible Securities. If the exercise
---------------------------------------------
price provided for in any Options referred to in paragraph (c) above, the
additional consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in paragraph (c) or (d) above, or the rate at
which any Convertible Securities referred to in paragraph (c) or (d) above are
convertible into or exchangeable for Common Stock shall change at any time
(other than under or by reason of provisions designed to protect against
dilution upon an event which results in a related adjustment pursuant to this
Article IV), the Purchase Price then in effect and the number of shares of
Common Stock purchasable upon the exercise of each Warrant shall forthwith be
readjusted (effective only with respect to any exercise of any Warrant after
such readjustment) to the Purchase Price and number of shares of Common Stock so
purchasable that would then be in effect had the adjustment made upon the
issuance, sale, distribution or granting of such Options or Convertible
Securities been made based upon such changed purchase price, additional
consideration or conversion rate, as the case may be, but only with respect to
such Options and Convertible Securities as then remain outstanding.
(k) Expiration of Options and Convertible Securities. If, at any time
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after any adjustment to the number of shares of Common Stock purchasable upon
the exercise of each Warrant shall have been made pursuant to paragraph (c), (d)
or (j) above or this paragraph (k), any Options or Convertible Securities shall
have expired unexercised or, solely with respect to Options that are Rights, are
redeemed, the number of such shares so purchasable shall, upon such expiration
or such redemption, be readjusted and shall thereafter be such as they would
have been had they been originally adjusted (or had the original adjustment not
been required, as the case may be) as if (i) the only shares of Common Stock
deemed to have been issued in connection with such Options or Convertible
Securities were the shares of Common Stock, if any, actually issued or sold upon
the exercise of such Options or Convertible Securities and (ii) 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, sale, distribution or
granting of all such Options or Convertible Securities, whether or not
exercised; provided, however, that (x) no such readjustment shall have the
effect of decreasing the number of such shares so purchasable by an amount
(calculated by adjusting such decrease to account for all other adjustments made
pursuant to this Article IV following the date of the original adjustment
referred to above) in excess of the amount of the adjustment initially made in
respect of the issuance, sale, distribution or granting of such Options or
Convertible Securities and (y) in the case of the redemption of any Rights,
there shall be deemed (for the purposes of paragraph (c) above) to have been
issued as of the date of such redemption for no consideration a number of shares
of Common Stock equal to the aggregate consideration paid to effect such
redemption divided by the current market price of the Common Stock on the date
of such redemption.
(l) Other Adjustments. In the event that at any time, as a result of
-----------------
an adjustment made pursuant to this Article IV, the Holders shall become
entitled to receive any securities of the Company other than shares of Common
Stock, thereafter the number of such other securities so receivable upon
exercise of the Warrants and the Purchase Price applicable to such exercise
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the shares of
Common Stock contained in this Article IV.
(m) Excluded Transactions. Notwithstanding any provision in this
---------------------
Article IV to the contrary, no adjustment shall be made pursuant to this Article
IV in respect of (i) any change in the par value of the Common Stock, (ii) the
granting of any Options or the issuance of any shares of Common Stock, in either
case, which would
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otherwise trigger an adjustment under paragraph (b) above, that may be
registered on Form S-8 or any successor form under the Securities Act, to any
officers, directors or employees of, or any consultants or advisors to, the
Company, or (iii) the issuance of Common Stock pursuant to any dividend
reinvestment plan which provides that the price of the Common Stock purchased
for plan participants from the Company will be no less than 95% of the average
of the high and low sales prices of the Common Stock on the investment date or,
if no trading in the Common Stock occurs on such date, the next preceding date
on which trading occurred (1) on the principal national securities exchange on
which the shares of Common Stock are listed or to which such shares are admitted
to trading or (2) if the Common Stock is not listed or admitted to trading on a
national securities exchange, in the over-the-counter market as reported by the
Nasdaq Stock Market or any comparable system or (3) if the Common Stock is not
listed on the Nasdaq Stock Market or a comparable system, as furnished by two
members of the NASD selected from time to time in good faith by the Board of
Directors of the Company for that purpose. In the absence of all of the
foregoing, or if for any other reason the current market price per share cannot
be determined pursuant to the foregoing provisions of this paragraph, the
current market price per share shall be the fair market value thereof as
determined in good faith by the Board of Directors of the Company; provided,
however, that clause (ii) of this paragraph (m) shall not apply to any such
grant or issuance if, after giving effect thereto, the aggregate amount of
Common Stock issued in all transactions covered by clause (ii) of this paragraph
(m) (assuming the exercise of all then outstanding Options granted in such
transactions) would exceed 5% of the number of shares of Common Stock then
outstanding (after giving effect to the exercise of the Options so granted and
all then outstanding Options or Convertible Securities).
Section 4.02 Notice of Adjustment
Whenever the number of shares of Common Stock or other stock or
property issuable upon the exercise of each Warrant is adjusted, as herein
provided, the Company shall promptly give a written certificate of the Company
to the Warrant Agent of such adjustment or adjustments and shall cause the
Warrant Agent promptly to mail by first class mail, postage prepaid, to each
Holder and the Warrant Agent notice of such adjustment or adjustments. In
addition, the Company at its sole expense shall within 120 calendar days
following the end of each fiscal year of the Company during which any Warrants
remain outstanding, and promptly upon the request of any Holder of a Warrant in
connection with the exercise of any of such Holder's Warrants, cause to be
delivered to the Warrant Agent a certificate of a firm of independent public
accountants selected by the Board of Directors of the Company (who may be the
regular accountants employed by the Company) setting forth the number of shares
of Common Stock or other stock or property issuable upon the exercise of each
Warrant after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which such
adjustment was made. The Warrant Agent shall be entitled to rely on such
certificates 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
desiring 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 that may require any adjustment of the number
of shares of Common Stock or other stock or property issuable on exercise of the
Warrants, or with respect to the nature or extent or any such adjustment when
made, or with respect to the method employed in making such adjustment or the
validity or value (or the kind or amount) of any shares of Common Stock or other
stock or property which may be issuable on exercise of the Warrants. The
Warrant Agent shall not be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of Common Stock or
stock certificates or other common stock or property upon the exercise of any
Warrant.
Section 4.03 Statement of Warrants
Irrespective of any adjustment in the number or kind of shares
issuable upon the exercise of the Warrants, Warrants theretofore or thereafter
issued may continue to express the same number and kind of shares as are stated
in the Warrants initially issuable pursuant to this Agreement.
Section 4.04 Fractional Interest
The Company shall not be required to issue fractional shares of Common
Stock on the exercise of Warrants. If more than one Warrant shall be presented
for exercise in full at the same time by the same Holder, the
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number of full shares of Common Stock which shall be issuable upon such exercise
shall be computed on the basis of the aggregate number of shares of Common Stock
acquirable on exercise of the Warrants so presented. If any fraction of a share
of Common Stock would, except for the provisions of this Section, be issuable on
the exercise of any Warrant (or specified portion thereof), the Company shall
pay an amount in cash calculated by it to be equal to the then current market
price per share multiplied by such fraction computed to the nearest whole cent.
The Holders, by their acceptance of the Warrant Certificates, expressly waive
any and all rights to receive any fraction of a share of Common Stock or a stock
certificate representing a fraction of a share of Common Stock.
ARTICLE V
WARRANT TRANSFERS
Section 5.01 Warrant Transfer Books
The Warrant Certificates shall be issued in registered form only. The
Company shall cause to be kept at the office of the Warrant Agent a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Warrant Certificates and of transfers or
exchanges of Warrant Certificates by the Warrant Agent as herein provided.
At the option of the Holder thereof, Warrant Certificates may be
exchanged at such office, upon payment of the charges hereinafter provided.
Whenever any Warrant Certificates are so surrendered for exchange, the Company
shall execute, and the Warrant Agent shall countersign and deliver, the Warrant
Certificates that the Holder making the exchange is entitled to receive.
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.
Section 5.02 Registration of Transfer and Exchange
(a) Transfer and Exchange of Physical Warrants. When Physical
------------------------------------------
Warrants are presented to the Warrant Agent with a request:
(i) to register the transfer of the Physical Warrants; or
(ii) to exchange such Physical Warrants for an equal number of
Physical Warrants of other denominations,
the Warrant Agent shall register the transfer or make the exchange as requested
if the requirements under this Warrant Agreement as set forth in this Section
5.02 for such transactions are met; provided, however, that the Physical
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Warrants presented or surrendered for registration of transfer or exchange:
(A) shall be duly endorsed or accompanied by a written instrument of transfer
in form satisfactory to the Warrant Agent, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(B) in the case of Physical Warrants the offer and sale of which have not been
registered under the Securities Act, such Physical Warrants shall be
accompanied, in the sole discretion of the Company, by the following additional
information and documents, as applicable:
(I) if such Physical Warrant is being delivered to the Warrant Agent by a
Holder for registration in the name of such Holder, without transfer, a
certification from such Holder to that effect (substantially in the form of
Exhibit C hereto); or
(II) if such Physical Warrant is being transferred to a Qualified Institutional
Buyer in accordance with Rule 144A, a certification to that effect
(substantially in the form of Exhibit C hereto); or
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(III) if such Physical Warrant is being transferred to an Institutional
Accredited Investor, delivery of a certification to that effect (substantially
in the form of Exhibit C hereto) and a Transferee Certificate for Institutional
Accredited Investors substantially in the form of Exhibit D hereto; or
(IV) if such Physical Warrant is being transferred in reliance on Regulation S,
delivery of a certification to that effect (substantially in the form of Exhibit
C hereto), a Transferee Certificate for Regulation S Transfers substantially in
the form of Exhibit E hereto and an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance with the
Securities Act; or
(V) if such Physical Warrant is being transferred in reliance on Rule 144 under
the Securities Act, delivery of a certification to that effect (substantially in
the form of Exhibit C hereto) and an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance with the
Securities Act; or
(VI) if such Physical Warrant is being transferred in reliance on another
exemption from the registration requirements of the Securities Act, a
certification to that effect (substantially in the form of Exhibit C hereto) and
an Opinion of Counsel reasonably acceptable to the Company to the effect that
such transfer is in compliance with the Securities Act.
(b) Restrictions on Exchange of a Physical Warrant for a Beneficial
---------------------------------------------------------------
Interest in a Global Warrant. A Physical Warrant may not be exchanged for a
----------------------------
beneficial interest in a Global Warrant except upon satisfaction of the
requirements set forth below. Upon receipt by the Warrant Agent of a Physical
Warrant, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Warrant Agent, together with:
(i) certification, substantially in the form of Exhibit C hereto, that such
Physical Warrant is being transferred (A) to a Qualified Institutional Buyer,
(B) to an Accredited Investor or (C) in an offshore transaction in reliance on
Regulation S; and
(ii) written instructions from the Company directing the Warrant Agent to make,
or to direct the Depositary to make, an endorsement on the Global Warrant to
reflect an increase in the aggregate number of Warrants represented by the
Global Warrant,
then the Warrant Agent shall cancel such Physical Warrant and cause, or direct
the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the aggregate
number of Warrants represented by the Global Warrant to be increased
accordingly. If no Global Warrant is then outstanding, the Company shall issue
and the Warrant Agent shall authenticate such a Global Warrant for the
appropriate number of Warrants.
(c) Transfer and Exchange of Global Warrants. The transfer and exchange of
----------------------------------------
Global Warrants or beneficial interests therein shall be effected through the
Depositary in accordance with this Warrant Agreement (including the restrictions
on transfer set forth herein) and the procedures of the Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global Warrant for a Physical
--------------------------------------------------------------------
Warrant.
-------
(i) Any Person having a beneficial interest in a Global Warrant may upon
request exchange such beneficial interest for a Physical Warrant. Upon receipt
by the Warrant Agent of instructions from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Global Warrant and upon
receipt by the Warrant Agent of a written order or such other form of
instructions as is customary for the Depositary or the Person designated by the
Depositary as having such a beneficial interest containing registration
instructions and, in the case of any such transfer or exchange of a beneficial
interest in Warrants the offer and sale of which have not been registered under
the Securities Act, the following additional information and documents:
(A) if such beneficial interest is being transferred to the Person designated
by the Depositary as being the beneficial owner, a certification from such
Person to that effect (substantially in the form of Exhibit C hereto); or
-12-
(B) if such beneficial interest is being transferred to a Qualified
Institutional Buyer in accordance with Rule 144A, a certification to that effect
(substantially in the form of Exhibit C hereto); or
(C) if such beneficial interest is being transferred to an Institutional
Accredited Investor, delivery of a certification to that effect (substantially
in the form of Exhibit C hereto) and a Certificate for Institutional Accredited
Investors substantially in the form of Exhibit D hereto; or
(D) if such beneficial interest is being transferred in reliance on Regulation
S, delivery of a certification to that effect (substantially in the form of
Exhibit C hereto) and a Transferee Certificate for Regulation S Transfers
substantially in the form of Exhibit E hereto and an Opinion of Counsel
reasonably satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in reliance on Rule 144
under the Securities Act, delivery of a certification to that effect
(substantially in the form of Exhibit C hereto) and an Opinion of Counsel
reasonably satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act; or
(F) if such beneficial interest is being transferred in reliance on another
exemption from the registration requirements of the Securities Act, a
certification to that effect (substantially in the form of Exhibit C hereto) and
an Opinion of Counsel reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act,
then the Warrant Agent will cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Warrant Agent, the
aggregate number of Warrants represented by the Global Warrant to be reduced
and, following such reduction, the Company will execute and the Warrant Agent
will authenticate and deliver to the transferee a Physical Warrant.
(ii) Warrants issued in exchange for a beneficial interest in a Global
Warrant pursuant to this Section 5.02(d) shall be registered in such names and
in such denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Warrant Agent
in writing. The Warrant Agent shall deliver such Physical Warrants to the
Persons in whose names such Physical Warrants are so registered.
(e) Restrictions on Transfer and Exchange of Global Warrants.
--------------------------------------------------------
Notwithstanding any other provisions of this Warrant Agreement, a Global Warrant
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Private Placement Legend. Upon the transfer, exchange or replacement
------------------------
of Warrants, the Warrant Agent shall deliver only Warrants that bear the Private
Placement Legend unless, and the Warrant Agent is hereby authorized to deliver
Warrants without the Private Placement Legend if, (i) there is delivered to the
Warrant Agent an Opinion of Counsel reasonably satisfactory to the Company and
the Warrant Agent to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (ii) such Warrant has been sold pursuant to
an effective registration statement under the Securities Act.
(g) General. By its acceptance of any Warrant bearing the Private
-------
Placement Legend, each Holder of such a Warrant acknowledges the restrictions on
transfer of such Warrant set forth in this Warrant Agreement and in the Private
Placement Legend and agrees that it will transfer such Warrant only as provided
in this Warrant Agreement.
The Warrant Agent shall retain copies of all letters, notices and other
written communications received pursuant to this Section 5.02. The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Warrant Agent.
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No service charge shall be payable by Holders for any registration of
transfer or exchange of Warrant Certificates. 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.
ARTICLE VI
WARRANT HOLDERS
Section 6.01 No Voting Rights
Prior to the exercise of the Warrants, no Holder of a Warrant
Certificate, as such, shall be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to receive dividends or
subscription rights, the right to vote, to consent, to exercise any preemptive
right, to receive any notice of meetings of stockholders for the election of
directors of the Company or any other matter or to receive any notice of any
proceedings of the Company, except as may be specifically provided for herein.
Section 6.02 Right of Action
All rights of action in respect of this Agreement are vested in the
Holders of the Warrants, and any Holder of any Warrant, without the consent of
the Warrant Agent or any Holder of any other Warrant, 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 rights hereunder, including the right
to exercise, exchange or surrender for purchase such Holder's Warrants in the
manner provided in this Agreement.
ARTICLE VII
WARRANT AGENT
Section 7.01 Nature of Duties and Responsibilities Assumed
The Company hereby appoints the Warrant Agent to act as agent of the
Company as set forth in this Agreement. The Warrant Agent hereby accepts the
appointment as agent of the Company and agrees to perform that agency upon the
terms and conditions herein set forth, by all of which the Company and the
Holders of Warrants, by their acceptance thereof, shall be bound. The Warrant
Agent shall not by countersigning Warrant Certificates or by any other act
hereunder be deemed to make any representation as to validity or authorization
of the Warrants or the Warrant Certificates (except as to its countersignature
thereon) or of any securities or other property delivered upon exercise of any
Warrant, or as to the number or kind or amount of stock or other securities or
other property deliverable upon exercise of any Warrant or the correctness of
the representations of the Company made in such certificates that the Warrant
Agent receives. The Warrant Agent shall not have any duty to calculate or
determine any adjustments with respect to the kind and amount of shares or other
securities or any property receivable by Holders upon the exercise of Warrants
required from time to time, and the Warrant Agent shall have no duty or
responsibility in determining the accuracy or correctness of any such
calculation, other than to apply any adjustment, notice of which is given by the
Company to the Warrant Agent to be mailed to the Holders in accordance with
Section 4.02. The Warrant Agent shall not (a) be liable for any recital or
statement of fact contained herein or in the Warrant Certificates or for any
action taken, suffered or omitted by it in good faith in the belief that any
Warrant Certificate or any other document or any signature is genuine or
properly authorized, (b) be responsible for any failure on the part of the
Company to comply with any of its covenants and obligations contained in this
Agreement or in the Warrant Certificates or (c) be liable for any act or
omission in connection with this Agreement except for its own gross negligence
or willful misconduct. The Warrant Agent is hereby authorized to accept
instructions with respect to the performance of its duties hereunder from the
Chief Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Secretary or the Assistant Secretary of the Company
and to apply to any such officer for instructions (which instructions will be
promptly given in writing when requested), and the Warrant Agent shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with the instructions of any such officer, except for its own gross
negligence or willful
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misconduct, but in its discretion the Warrant Agent may in lieu thereof accept
other evidence of such or may require such further or additional evidence as it
may deem reasonable. Any application by the Warrant Agent for written
instructions from the Company may, at the option of the Warrant Agent, set forth
in writing any action proposed to be taken or omitted by the Warrant Agent under
this Agreement and the date on and/or after which such action shall be taken or
such omission shall be effective. The Warrant Agent shall not be liable for any
action taken by, or omission of, the Warrant Agent in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than three business days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Warrant Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
The Warrant Agent may execute and exercise any of the rights and
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, provided reasonable care has been
exercised in the selection of any such attorney, agent or employee. The Warrant
Agent shall not be under any obligation or duty to institute, appear in or
defend any action, suit or legal proceeding in respect hereof, unless first
indemnified to its satisfaction, 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 such indemnity. The Warrant Agent shall
promptly notify the Company in writing of any claim made or action, suit or
proceeding instituted against or arising out of or in connection with this
Agreement. No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
The Company will perform, execute, acknowledge and deliver or cause to
be performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent in
order to enable it to carry out or perform its duties under this Agreement.
The Warrant Agent shall act solely as agent of the Company hereunder.
The Warrant Agent shall not be liable except for the failure to perform such
duties as are specifically set forth herein, and no implied covenants or
obligations shall be read into this Agreement against the Warrant Agent, whose
duties and obligations shall be determined solely by the express provisions
hereof.
Section 7.02 Right to Consult Counsel
The Warrant Agent may at any time consult with legal counsel of its
selection satisfactory to it (who may be legal counsel for the Company), and the
Warrant Agent shall incur no liability or responsibility to the Company or to
any Holder for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel.
Section 7.03 Compensation and Reimbursement
The Company agrees to pay to the Warrant Agent from time to time
compensation for all services rendered by it hereunder as the Company and the
Warrant Agent may agree from time to time in writing, and to reimburse the
Warrant Agent for reasonable expenses and disbursements incurred in connection
with the execution and administration of this Agreement (including the
reasonable compensation and the expenses of its counsel), and further agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any and all
loss, liability, damage, claim or expense incurred without gross negligence, bad
faith or willful misconduct on its part, arising out of or in connection with
the acceptance and administration of this Agreement, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
provisions of this Section 7.03 shall survive the termination of this Agreement.
Section 7.04 Warrant Agent May Hold Company Securities
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Except as may be limited by applicable law, the Warrant Agent and any
stockholder, director, officer or employee of the Warrant Agent may buy, sell or
deal in any of the Warrants or other securities of the Company or its Affiliates
or become pecuniarily interested in transactions in which the Company or its
Affiliates may be interested, or contract with or lend money to the Company or
its Affiliates or otherwise act as fully and freely as though it were not the
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other person.
Section 7.05 Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Warrant Agent and no
appointment of a successor warrant agent shall become effective until the
acceptance of appointment by the successor warrant agent as provided herein. The
Warrant Agent may resign its duties and be discharged from all further duties
and liability hereunder (except liability arising as a result of the Warrant
Agent's own gross negligence, bad faith or willful misconduct) after giving
written notice to the Company. The Company may remove the Warrant Agent upon
written notice, and the Warrant Agent shall thereupon in like manner be
discharged from all further duties and liabilities hereunder, except as
aforesaid. The Warrant Agent shall, at the Company's expense, cause to be mailed
(by first class mail, postage prepaid) to each Holder of a Warrant at his last
address as shown on the register of the Company maintained by the Warrant Agent
a copy of said notice of resignation or notice of removal, as the case may be.
Upon such resignation or removal, the Company shall appoint in writing a new
warrant agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation by
the resigning Warrant Agent or after such removal, then the Company shall become
Warrant Agent until a successor Warrant Agent has been appointed, and the Holder
of any Warrant may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a corporation doing business under the
laws of the United States, any state thereof or the District of Columbia, in
good standing and having a combined capital and surplus of not less than
$50,000,000. The combined capital and surplus of any such new warrant agent
shall be deemed to be the combined capital and surplus as set forth in the most
recent annual report of its condition published by such warrant agent prior to
its appointment, provided that such reports are published at least annually
pursuant to law or to the requirements of a federal or state supervising or
examining authority. After acceptance in writing of such appointment by the new
warrant agent, it shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant Agent,
without any further assurance, conveyance, act or deed; but if for any reason it
shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning or
removed Warrant Agent. Not later than the effective date of any such
appointment, the Company shall give notice thereof to the resigning or removed
Warrant Agent. Failure to give any notice provided for in this Section, 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 a new warrant
agent, as the case may be.
(b) Any corporation into which the Warrant Agent or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Warrant Agent or any new warrant agent shall be a party or any person to
whom the Warrant Agent transfers substantially all of its corporate trust
business shall be a successor Warrant Agent under this Agreement without any
further act, provided that such corporation (i) would be eligible for
appointment as successor to the Warrant Agent under the provisions of Section
7.05(a) or (ii) is a wholly-owned subsidiary of the Warrant Agent. Any such
successor Warrant Agent shall promptly cause notice of its succession as Warrant
Agent to be mailed (by first class mail, postage prepaid) to each Holder at such
Holder's last address as shown on the register maintained by the Warrant Agent
pursuant to Section 5.01.
ARTICLE VIII
COVENANTS OF THE COMPANY
Section 8.01 Reservation of Common Stock for Issuance on Exercise of
Warrants; Listing
The Company will at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, solely for
the purpose of issuance upon exercise of Warrants as herein provided, such
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number of shares of Common Stock as shall then be issuable upon the exercise of
all outstanding Warrants. The Company covenants that all shares of Common Stock
which shall be so issuable shall, upon such issuance, be duly and validly issued
and fully paid and nonassessable, and that upon issuance such shares shall be
listed on each national securities exchange or quotation system (including the
Nasdaq Stock Market), if any, on which any other shares of outstanding Common
Stock of the Company are then listed.
The Company or the transfer agent for the Common Stock (the "Transfer
Agent") and every subsequent transfer agent for any shares of the Company's
capital stock issuable upon the exercise of any of the Warrants as herein
provided will be 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 the Transfer Agent and
with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition
from time to time from such Transfer Agent the stock certificates required to
honor outstanding Warrants upon exercise thereof in accordance with the terms of
this Agreement. The Company will supply such Transfer Agent with duly executed
certificates for such purposes and will provide or otherwise make available any
cash that may be payable as provided in Section 4.04. The Company will furnish
such Transfer Agent a copy of all notices of adjustment and certificates related
thereto transmitted to each holder pursuant to Section 4.02 hereof.
Section 8.02 Reports to Holders
To the extent such documents are required to be sent by the Company to
the holders of its outstanding Common Stock, the Company shall file with the
Warrant Agent and provide Holders of Warrants, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall
continue to file with the SEC and, to the extent it is required to send such
documents to the holders of its outstanding Common Stock, provide the Warrant
Agent and the Holders of the Warrants with reports containing substantially the
same information as would have been required to be filed with the SEC and sent
to holders of its outstanding Common Stock had the Company continued to have
been subject to such reporting requirements; provided, however, that the Company
shall not be so obligated to file with the SEC if the SEC does not permit such
filings. In such event, such reports shall be provided to the Warrant Agent and
Holders of Warrants at the times the Company would have been required to provide
such reports had it been subject to such reporting retirements. Delivery of
such reports, information and documents to the Warrant Agent is for
informational purposes only and the Warrant Agent's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder.
Section 8.03 Agreements Respecting Warrants
The Company agrees that it will not enter into any agreement or
instrument which would preclude the exercise of the Warrants for shares of
Underlying Common Stock.
Section 8.04 Registration under the Securities Laws
(a) Mandatory Registration. Not later than December 31, 1997, the
----------------------
Company shall file with the SEC, at the Company's expense, a registration
statement registering under the Securities Act for resale by the Holders all of
the Restricted Shares. The Company shall use all reasonable efforts to cause
such registration statement to become effective as soon as possible thereafter
and to maintain such effectiveness continually until the first to occur of
(i) December 31, 2001, (ii) the date all Restricted Shares covered by such
registration statement have been disposed of in accordance with such
registration statement, (iii) the date the Company has received a written
opinion of independent counsel, a copy of which will be provided to each Holder,
that all of the Restricted Shares are freely tradable without registration
pursuant to Rule 144 (or any successor thereto) under the Securities Act and
applicable state securities laws, or (iv) if no Warrants have been exercised on
or prior to the Expiration Date or such other date on which the Warrants
terminate and become void prior to the Expiration Date, the close of business on
the
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Expiration Date or such other date on which the Warrants terminate and
become void prior to the Expiration Date. Such registration statement will
include a plan of distribution permitting any reasonable method of resale by the
Holders of the Restricted Shares including resale in the public market, in
broker's transactions, or in privately negotiated transactions. The Company
also will prepare and file promptly with the SEC, at the Company's expense, such
amendments and supplements to such registration statement and the prospectus
included in such registration statement as may be necessary to comply with the
provisions of the Securities Act. The Holders shall provide the Company in
writing with such information about the Holders and the proposed plan of
distribution as the Company shall reasonably request for inclusion in the
registration statement. The Company will provide to each Holder such number of
copies of such registration statement and of each amendment and supplement
thereto, such number of copies of the prospectus included in such registration
statement and each amendment and supplement thereto, and such other documents as
such Holder may reasonably request in order to facilitate the disposition of the
Restricted Shares owned by such Holder. The Company shall, as expeditiously as
possible following the filing of such registration statement, use all reasonable
efforts to register or qualify the Restricted Shares covered by the registration
statement under the securities or Blue Sky laws of such states as the Holders
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the Holders to consummate the public or other
disposition in each such jurisdiction of the Restricted Shares; provided,
--------
however, that the Company shall not be required in connection with this Section
-------
8.04 to qualify as a foreign corporation, subject itself to taxation or execute
a general consent to service of process in any jurisdiction.
(b) Indemnification.
---------------
(i) Indemnification by the Company. The Company will, and hereby
------------------------------
does, indemnify and hold harmless each Holder, its directors and officers, each
other person who participates as an underwriter, broker or dealer in the
offering or sale of Restricted Shares by such Holder and each other person, if
any, who controls such Holder or any such participating person within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (each such person being sometimes referred to as an "Indemnified Holder"),
against any losses, claims, damages or liabilities, joint or several, to which
such Holder or any such director or officer or participating or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (x) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Shares were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, (y) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading or (z) any violation or alleged violation by
the Company of the Securities Act; and the Company will reimburse such Holder
and each such director, officer, participating person and controlling person for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information relating to such
Indemnified Holder furnished to the Company through an instrument duly executed
by such Indemnified Holder expressly for use therein. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Holder or any such director, officer, participating person or
controlling person and shall survive the transfer of such securities by such
Holder.
(ii) Indemnification by the Holders of Restricted Shares. Each
---------------------------------------------------
Holder participating in the registration provided for in paragraph (a) above
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in clause (i)) the Company, each director of the Company, each officer
of the Company who shall sign such registration statement and each other person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, with respect to any statement
in or omission from such registration statement, any preliminary prospectus,
final prospectus, or summary prospectus contained therein, or any amendment or
supplement thereto, if such statement or omission was made in reliance upon and
in conformity with written information relating to such Holders furnished to the
Company through an instrument duly
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executed by such Holder expressly for use in the preparation of such
registration statement, preliminary prospectus, final prospectus or summary
prospectus contained therein, amendment or supplement. In no event, however,
shall the liability of any such Holder for indemnification under this paragraph
exceed the net proceeds received by the such Holder from the sale of such
Restricted Shares. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer or such
securities by such Holder.
(iii) Notice of Claims, etc. Promptly after receipt by an
---------------------
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in clause (i) or (ii) of this paragraph (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
-------- -------
give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding clauses of this paragraph (b),
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any action is brought against an indemnified
party, the indemnifying party will be entitled to participate in and to assume
the defense of such action, jointly with any other indemnifying party to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
the indemnified party or parties. No indemnifying party will consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation.
(iv) Contribution. If for any reason the indemnification provided
------------
for in this paragraph (b) is unavailable to an indemnified party as contemplated
by this paragraph (b), then the indemnifying party in lieu of indemnification
shall contribute to the amount paid or payable by the indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations, provided that no Holder shall be required to
--------
contribute in an amount greater than the excess of the net proceeds received by
the Holder from the sale of such Restricted Shares over all amounts already
contributed by such Holder with respect to such claims, including amounts paid
for any legal or other fees or expenses incurred by such Holder.
The relative fault of the Company on the one hand and of the
Indemnified Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in this paragraph (b),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending an action or claim.
The Company and each Holder shall agree that it would not be just and
equitable if contribution pursuant to this paragraph (b) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this paragraph (b), an Indemnified
Holder shall not be required to contribute any amount in excess of the amount by
which the total price at which the Restricted Shares sold by such Indemnified
Holder or its affiliated Indemnified Holders and distributed to the public were
offered to the public exceeds the amount of any damages that such Indemnified
Holder, or its affiliated Indemnified Holder, has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent
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misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(v) Other Indemnification. Indemnification and contribution
---------------------
similar to that specified in the preceding clauses of this paragraph (b) (with
appropriate modifications) shall be given by the Company and each seller of
Restricted Shares with respect to any required registration or other
qualification of such Restricted Shares under any Federal or state law or
regulations of governmental authority other than the Securities Act. The
indemnification and contribution rights under this paragraph (b) shall be in
addition to any rights that any indemnified person may have at common law or
otherwise.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Money and Other Property Deposited with the Warrant Agent
Any money, securities or other property which at any time shall be
deposited by the Company or on its behalf with the Warrant Agent pursuant to
this Agreement shall be and are hereby assigned, transferred and set over to the
Warrant Agent in trust for the purpose for which such moneys, securities or
other property shall have been deposited; but such moneys, securities or other
property need not be segregated from other funds, securities or other property
of the Warrant Agent except to the extent required by law. The Warrant Agent
shall distribute any money deposited with it for payment and distribution to any
Holder by mailing by first-class mail a check in such amount as is appropriate,
to such Holder at the address shown on the Warrant register maintained pursuant
to Section 5.01, or as it may be otherwise directed in writing by such Holder,
upon surrender of such Holder's Warrants. Any money or other property deposited
with the Warrant Agent for payment and distribution to any Holder that remains
unclaimed for two years, less one day, after the date the money was deposited
with the Warrant Agent shall be paid to the Company upon its request therefor.
Section 9.02 Payment of Taxes
The Company will pay all taxes and other governmental charges that
may be imposed on the Company or on the holders of the Warrants or on the
holders of any securities deliverable upon exercise of Warrants with respect
thereto. The Company will not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for shares of Common Stock or other securities underlying the
Warrants or payment of cash or other property to any person other than the
Holder of a Warrant Certificate surrendered upon the exercise thereof, and in
case of such transfer or payment, the Warrant Agent and the Company shall not be
required to issue any stock certificate or security or pay any cash or
distribute any property until such tax or charge has been paid or it has been
established to the Warrant Agent's and the Company's satisfaction that no such
tax or other charge is due.
Section 9.03 Surrender of Certificates
Any Warrant Certificate surrendered for exercise or purchased or
otherwise acquired by the Company shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall promptly be canceled by such Warrant Agent
and shall not be reissued by the Company. The Warrant Agent shall return such
canceled Warrant Certificates to the Company.
Section 9.04 Mutilated, Destroyed, Lost and Stolen Warrant Certificates
If (a) any mutilated Warrant Certificate is surrendered to the Warrant
Agent or (b) the Company and the Warrant Agent receive evidence to their
satisfaction of the destruction, loss or theft of any Warrant Certificate, and
there is delivered to the Company and the Warrant Agent such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of notice to the Company or any officer in the corporate
trust department of the Warrant Agent that such Warrant Certificate has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Warrant Agent shall countersign and deliver, in exchange
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for any such mutilated Warrant Certificate or in lieu of any such destroyed,
lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor and
for a like aggregate number of warrants.
Upon the issuance of any new Warrant Certificate under this Section
9.04, the Company may require the payment by the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and other expenses (including the reasonable fees and expenses of the
Warrant Agent) in connection therewith.
Every new Warrant Certificate executed and delivered pursuant to this
Section 9.04 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder.
The provisions of this Section 9.04 are exclusive and shall preclude
(to the extent lawful) all other rights or remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Warrant Certificates.
Section 9.05 Miscellaneous Rights
The rights of Holders upon the occurrence of the events set forth in
this Agreement are cumulative. If more than one such event shall occur and the
periods following the occurrence of such events and prior to the closing of the
transactions that are the subject of such events overlap, each Holder may
exercise such rights arising therefrom as such Holder may elect without any
condition imposed upon such exercise not contained in this Agreement.
Neither the Company nor any of its Affiliates involved in any proposed
transaction that is the subject of such an event shall have any obligation to
the Holders to consummate any such proposed transaction once an agreement or
agreement in principle or decision to proceed with respect thereto is reached,
whether on the terms first proposed or as revised, or to include any Holder in,
or apprise any Holder of, any negotiations or discussions concerning any such
proposed transaction among the prospective parties thereto.
Section 9.06 Notices
Any notice or communication by the Company or the Warrant Agent to the
other is duly given if in writing and delivered in person, mailed by first-class
mail (registered or certified, return receipt requested), or sent by telecopier
or overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
ICF Xxxxxx International, Inc.
0000 Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Executive Vice President and Chief Financial
Officer
cc: Senior Vice President and General Counsel
If to the Warrant Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
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The Company or the Warrant Agent by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next business day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail to the Holder's address shown on the register of the Company
maintained by the Warrant Agent. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Warrant Agent at the same time.
Section 9.07 Persons Benefiting
This Agreement shall be binding upon and inure to the benefit of the
Company and the Warrant Agent, and their respective successors and assigns, and
the Holders from time to time of the Warrants. Nothing in this Agreement is
intended or shall be construed to confer upon any person, other than the
Company, the Warrant Agent and the Holders of the Warrants, any right, remedy or
claim under or by reason of this Agreement or any part hereof.
Section 9.08 Counterpart Originals
The parties may sign any number of copies of this Agreement. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 9.09 Amendments
The Company may, without the consent of the Holders of the Warrants,
by supplemental agreement or otherwise, make any changes or corrections in this
Agreement (a) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
(b) to add to the covenants and agreements of the Company for the benefit of the
Holders, or surrender any rights or power reserved to or conferred upon the
Company in this Agreement, or (c) that do not adversely affect the interests of
the Holders in any material respect. The Warrant Agent shall join with the
Company in the execution and delivery of any such supplemental agreements unless
it affects the Warrant Agent's own rights, duties or immunities hereunder, in
which case such party may, but shall not be required to, join in such execution
and delivery. Prior to executing any such supplemental agreement, the Warrant
Agent shall be entitled to receive and shall be protected in relying upon a
certificate of the Company which states that the proposed supplemental agreement
is in compliance with the terms of this Section 9.09.
Section 9.10 Termination
This Agreement (other than the Company's obligations with respect to
Warrants previously exercised under Article III, and with respect to
compensation, reimbursement and indemnification under Section 7.03) shall
terminate and be of no further force and effect, provided the Company has
complied with Section 3.05 hereof in the case of a Non-Surviving Combination, on
the earlier of (a) the Expiration Date and (b) the consummation of a Non-
Surviving Combination.
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Section 9.11 Governing Law
THIS AGREEMENT AND EACH WARRANT ISSUED HEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 9.12 Headings
The headings of the Articles and Sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
ICF XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
THE BANK OF NEW YORK,
as Warrant Agent
By: /s/ X. Xxxxxx
Name: X. Xxxxxx
Title: Assistant Treasurer
-23-
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QUALIFIED INSTITUTIONAL
BUYER") OR (B) IT IS AN "INSTITUTIONAL ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE WARRANT AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE WARRANT AGENT), (D) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE WARRANT AGENT AND THE COMPANY SUCH LETTERS, CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
No. 1996W- Certificate for _______ Warrants
CUSIP No. 449244____
WARRANTS TO ACQUIRE COMMON STOCK OF
ICF XXXXXX INTERNATIONAL, INC.
This certifies that _________________________________, or registered
assigns, is the registered holder of the number of Warrants set forth above (the
"Warrants"). Each Warrant entitles the holder thereof (the "Holder"), subject
to the provisions contained herein and in the Warrant Agreement referred to
below, to acquire from ICF Xxxxxx International, Inc., a Delaware corporation
(the "Company"), one share of Common Stock, $0.01 par value per share, of the
Company (the "Common Stock") for consideration equal to the Purchase Price (as
defined in the Warrant Agreement) per share of Common Stock. The Warrants
evidenced by this Warrant Certificate shall not be exercisable after and shall
terminate and become void as of the close of business on December 31, 1999 (the
"Expiration Date") or as of the closing of any Non-Surviving Combination, if
earlier.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of December 23, 1996 (the "Warrant Agreement"),
between the Company and The Bank of New York, as warrant agent (the "Warrant
Agent", which term includes any successor Warrant Agent under the Warrant
Agreement), and
is subject to the terms and provisions contained in the Warrant Agreement, to
all of which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Warrant Agreement is hereby incorporated
herein by reference and made a part hereof. Reference is hereby made to the
Warrant Agreement for a full statement of the respective rights, limitations of
rights, duties and obligations of the Company, the Warrant Agent and the Holders
of the Warrants. Capitalized terms not defined herein have the meanings ascribed
thereto in the Warrant Agreement. A copy of the Warrant Agreement may be
obtained for inspection by the Holder hereof upon written request to the Company
at 0000 Xxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention of Senior Vice
President, General Counsel and Secretary.
As provided in the Warrant Agreement and subject to the terms and
conditions therein set forth, the Warrants are immediately exercisable.
If the Company proposes, prior to the Expiration Date, to enter into a
merger, consolidation, sale of assets or other business combination with one or
more persons (other than a wholly-owned subsidiary of the Company) in which
consideration (other than Common Equity Securities) is distributed to the
holders of Common Stock in exchange for all or substantially all of their equity
interest in the Company (a "Non-Surviving Combination"), the Company shall give
written notice thereof to the Holders promptly after an agreement is reached but
in no event less than 30 days prior to the closing thereof. In the event the
Company enters into a Non-Surviving Combination, upon payment of the Purchase
Price prior to the Expiration Date, the Holder hereof will be entitled to
receive the shares of stock or other securities or other property (including any
money) of the surviving entity in such Non-Surviving Combination as the Holder
would have received had the Holder exercised its Warrants immediately prior to
such Non-Surviving Combination (or, if applicable, the record date therefor).
In order to exercise a Warrant, the registered Holder hereof must
surrender this Warrant Certificate at the office of the Warrant Agent, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified and tender the Purchase
Price therefor.
ICF XXXXXX INTERNATIONAL, INC.
By:
------------------------------
Name:
Title:
[SEAL]
Attest:
------------------------
Secretary
DATED:
Countersigned:
The Bank of New York,
as Warrant Agent
By:
---------------------------
Authorized Signatory
Date of Countersignature:
[FORM OF REVERSE OF WARRANT CERTIFICATE]
ICF XXXXXX INTERNATIONAL, INC.
------------------------------
This Warrant Certificate and all rights hereunder are transferable by
the registered Holder hereof, in whole or in part, on the register maintained by
the Warrant Agent, upon surrender of this Warrant Certificate for registration
of transfer at the office of the Warrant Agent maintained for such purpose, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Warrant Agent duly executed by, the
registered Holder hereof or his attorney duly authorized in writing, with
signature guaranteed as specified in the attached Form of Assignment. Upon any
partial transfer, the Company will issue and deliver to such Holder a new
Warrant Certificate or Certificates with respect to any portion not so
transferred. No service charge shall be made for any registration of transfer
or exchange of Warrant Certificates, but the Company may require payment by the
Holder of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith.
All shares of Common Stock issuable by the Company upon the exercise
of the Warrants shall, upon such issue, be duly and validly issued and fully
paid and nonassessable, and upon issuance such shares shall be listed on each
national securities exchange or quotation system (including the Nasdaq Stock
Market), if any, on which any other shares of outstanding Common Stock are then
listed.
Each taker and holder of this Warrant Certificate, by taking or
holding the same, consents and agrees that the holder of this Warrant
Certificate when duly endorsed in blank may be treated by the Company, the
Warrant Agent and all other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, or to the transfer hereof on the register of the
Company maintained by the Warrant Agent, any notice to the contrary
notwithstanding, but until such transfer on such register, the Company and the
Warrant Agent may treat the registered Holder hereof as the owner for all
purposes.
The number of shares of Common Stock issuable upon exercise of the
Warrants is subject to adjustment in certain events, including (i) stock
dividends, stock splits and reclassification affecting the Common Stock,
(ii) the issuance of certain rights, warrants or options, or convertible or
exchangeable securities, to the holders of Common Stock entitling them to
acquire Common Stock at a price per share lower than its then market value and
(iii) sales by the Company of Common Stock at a price per share lower than its
then market value.
The Warrants do not entitle any Holder to any of the rights of a
stockholder of the Company.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by an authorized signatory of the
Warrant Agent.
This Warrant Certificate and all rights hereunder shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of laws.
EXERCISE SUBSCRIPTION FORM
(to be executed only upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise
____________________ of the Warrants represented by this Warrant Certificate,
for the acquisition of one share each of Common Stock, $0.01 par value per
share, of ICF Xxxxxx International, Inc., on the terms and conditions specified
in this Warrant Certificate and the Warrant Agreement herein referred to,
surrenders this Warrant Certificate and all right, title and interest therein to
ICF Xxxxxx International, Inc. and directs that the shares of Common Stock
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.
Date: _____________, ____
/1/
--------------------------
(Signature of Owner)
--------------------------
(Street Address)
--------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
--------------------------
FORM OF TRANSFER
FOR VALUE RECEIVED the undersigned registered Holder of this Warrant
Certificate hereby sells, assigns and transfers unto the Assignee(s) named below
(including the undersigned with respect to any Warrants constituting a part of
the Warrants evidenced by this Warrant Certificate not being assigned hereby)
all of the right of the undersigned under this Warrant Certificate, with respect
to the number of Warrants set forth below:
================================================================================
Social Security or
Name of Assignee(s) Address other identifying Number of Warrants
number of assignee(s)
--------------------------------------------------------------------------------
================================================================================
and does hereby irrevocably constitute and appoint the Warrant Agent as the
undersigned's attorney to make such transfer on the register maintained by the
Warrant Agent for that purpose, with full power of substitution in the premises.
Date: _________, ____
/2/
-------------------------
(Signature of Owner)
-------------------------
(Street Address)
-------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
-------------------------
------------------------
/1/ The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatsoever, and must be guaranteed.
/2/ The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatsoever, and must be guaranteed.
EXHIBIT B
FORM OF LEGEND FOR GLOBAL WARRANTS
Any Global Warrant authenticated and delivered hereunder shall bear a
legend in substantially the following form:
THIS WARRANT IS A GLOBAL WARRANT WITHIN THE MEANING OF THE
WARRANT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. THIS WARRANT IS NOT EXCHANGEABLE FOR
WARRANTS REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE WARRANT AGREEMENT, AND NO TRANSFER OF THIS
WARRANT (OTHER THAN A TRANSFER OF THIS WARRANT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE WARRANT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER OR EXCHANGE, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to Acquire Common Stock (the "Warrants") of ICF Xxxxxx
-------------
International, Inc.
------------------------------
This Certificate relates to _____ Warrants held in the form of* ___ a
beneficial interest in a Global Warrant or* ______ Physical Warrants by _____
(the "Transferor").
The Transferor:*
[ ] has requested by written order that the Warrant Agent deliver in
exchange for its beneficial interest in the Global Warrant held by the
Depositary a Physical Warrant or Physical Warrants in definitive, registered
form representing the number of Warrants equal to its beneficial interest in
such Global Warrant (or the portion thereof indicated above); or
[ ] has requested the Warrant Agent by written order to exchange or
register the transfer of a Physical Warrant or Physical Warrants.
In connection with such request and in respect of each such Warrant, the
Transferor does hereby certify that the Transferor is familiar with the Warrant
Agreement relating to the above captioned Warrants and the restrictions on
transfers thereof as provided in Section 5.02 of such Warrant Agreement, and
that the transfer of this Warrant does not require registration under the
Securities Act of 1933, as amended (the "Act") because*
[ ] Such Warrant is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 5.02(a)(B)(I) or Section
5.02(d)(i)(A) of the Warrant Agreement.
[ ] Such Warrant is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
[ ] Such Warrant is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act).
[ ] Such Warrant is being transferred in reliance on Regulation S under
the Act.
[ ] Such Warrant is being transferred in reliance on Rule 144 under the
Act.
[ ] Such Warrant is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 or Regulation S under the Act to a person other than an
institutional "accredited investor."
---------------------------
[INSERT NAME OF TRANSFEROR]
By:
------------------------
[Authorized Signatory]
Date:
------------------------
*Check applicable box
EXHIBIT D
Form of Certificate to Be Delivered in Connection with Transfers to
Institutional Accredited Investors
________________, ____
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: ICF Xxxxxx International, Inc. (the "Company") Warrant Agreement, dated
as of December __, 1996, (the "Warrant Agreement"), relating to Warrants
to Acquire Common Stock of the Company, (the Warrants")
Ladies and Gentlemen:
In connection with our proposed purchase of Warrants, we confirm that:
1. We have received such information as we deem necessary in order to make
our investment decision.
2. We understand that any subsequent transfer of the Warrants is subject to
certain restrictions and conditions set forth in the Warrant Agreement and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Warrants except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Warrants have not been
registered under the Securities Act, and that the Warrants may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Warrants, we will do so only (A) to the
Company or any subsidiary thereof, (B) inside the United States in accordance
with Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Warrant Agent a signed
letter substantially in the form hereof, (D) outside the United States in
accordance with Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available) or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing
Warrants from us a notice advising such purchaser that resales of the Warrants
are restricted as stated herein.
4. We understand that, on any proposed resale of Warrants, we will be
required to furnish to the Warrant Agent and the Company, such certification,
legal opinions and other information as the Warrant Agent and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Warrants purchased by us will bear
a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Warrants, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or their investment, as the case may be.
6. We are acquiring the Warrants purchased by us for our account or for one
or more accounts (each of which is an institutional "accredited investor") as to
each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
[Authorized Signatory]
EXHIBIT E
Form of Certificate to Be Delivered in Connection with Regulation S Transfers
________________, ____
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Re: ICF Xxxxxx International, Inc. (the "Company")
Warrant Agreement, dated as of December __, 1996
(the "Warrant Agreement"), relating to Warrants to
Acquire Common Stock of the Company (the "Warrants")
----------------------------------------------------
Dear Sirs:
In connection with our proposed sale of _________________ Warrants,
we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, we represent that:
(1) the offer of the Warrants was not made to a person in the United States;
(2) either (a) at the time the buy offer was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States, or (b) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions applicable to
the Warrants.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
[Authorized Signature]
