EXECUTION COPY
_____________________________________________________
WEEKS CORPORATION
AND
XXXXX XXXXXXX, XXXX XXXXXX, XXXX XXXXX,
XXXX XXXXX, XXXXXX XXXXX AND XXXXXXX XXXXX
_____________________________________________________
AMENDED AND RESTATED WARRANT AGREEMENT
Effective as of February 24, 1998
_____________________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS 1
Section 1.1 Certain Definitions 1
ARTICLE II ISSUANCE AND EXECUTIONOF WARRANT CERTIFICATES 3
Section 2.1 ISSUANCE OF WARRANT CERTIFICATES 3
Section 2.2 FORM OF WARRANT CERTIFICATE 3
Section 2.3 EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES 3
Section 2.4 TEMPORARY WARRANT CERTIFICATES 4
Section 2.5 PAYMENT OF TAXES 4
Section 2.6 DEFINITION OF HOLDER 4
ARTICLE III WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS 5
Section 3.1 WARRANT PRICE 5
Section 3.2 DURATION OF WARRANTS 5
Section 3.3 EXERCISE OF WARRANTS 5
Section 3.4 RESERVATION OF SHARES 6
ARTICLE IV OTHER TERMS OF WARRANTS 6
Section 4.1 6
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE OR NUMBER OF WARRANTS 6
ARTICLE V REGISTRATION, EXCHANGE, TRANSFER ANDSUBSTITUTION OF WARRANT 10
CERTIFICATES
Section 5.1 REGISTRATION, EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES 10
Section 5.2 MUTILATED, DESTROYED, LOST OR STOLEN
WARRANT CERTIFICATES 10
Section 5.3 PERSONS DEEMED OWNERS 11
Section 5.4 CANCELLATION OF WARRANT CERTIFICATES 11
ARTICLE VI OTHER PROVISIONS RELATING TO RIGHTSOF HOLDERS OF WARRANT 11
CERTIFICATES
Section 6.1 NO RIGHTS AS SHAREHOLDER CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES 11
Section 6.2 HOLDER OF WARRANT CERTIFICATE MAY
ENFORCE RIGHTS 11
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ARTICLE VII CONCERNING THE COMPANY AS WARRANT AGENT 12
Section 7.1 WARRANT AGENT 12
Section 7.2 12
ARTICLE VIII MISCELLANEOUS 12
Section 8.1 CONSOLIDATIONS AND MERGERS OF THE
COMPANY AND SALES, LEASES AND CONVEYANCES
PERMITTED SUBJECT TO CERTAIN CONDITIONS 12
Section 8.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION 12
Section 8.3 AMENDMENT 12
Section 8.4 NOTICES TO WARRANTHOLDERS 13
Section 8.5 ADDRESSES 13
Section 8.6 GOVERNING LAW 13
Section 8.7 DELIVERY OF PROSPECTUS 13
Section 8.8 OBTAINING OF GOVERNMENTAL APPROVALS 13
Section 8.9 PERSONS HAVING RIGHTS UNDER WARRANT
AGREEMENT 14
Section 8.10 HEADINGS 14
Section 8.11 COUNTERPARTS 14
Section 8.12 INSPECTION OF AGREEMENT 14
Section 8.13 TRANSFERS IN COMPLIANCE WITH APPLICABLE
LAW 14
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Testimonium
Signatures
Exhibit A - Form of Warrant Certificate
iii
AMENDED AND RESTATED WARRANT AGREEMENT
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THIS AMENDED AND RESTATED WARRANT AGREEMENT, dated effective as of February
24, 1998 (the "Agreement"), between Weeks Corporation, a Georgia corporation
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(the "Company"), and XXXXX XXXXXXX, an individual resident of the State of
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Florida, XXXX XXXXXX, an individual resident of the State of Florida, XXXX
XXXXX, an individual resident of the State of Florida, XXXX XXXXX, an individual
resident of the State of Florida, XXXXXX XXXXX, an individual resident of the
State of Florida, and XXXXXXX XXXXX, an individual resident of the State of
Florida (collectively, the "Codina Executives").
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WHEREAS, the Company and the Codina Executives entered into that certain
Warrant Agreement dated as of February 24, 1998 (the "Prior Agreement"),
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pursuant to which the Company issued and sold to the Codina Executives warrant
certificates (such warrant certificates and other warrant certificates issued
pursuant to the Prior Agreement collectively referred to herein as the "Warrant
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Certificates" and individually as a "Warrant Certificate") evidencing 180,000
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warrants (collectively, the "Warrants" or, individually, a "Warrant")
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representing the right to purchase an aggregate of 180,000 shares of the
Company's Common Stock;
WHEREAS, the Company is the warrant agent in connection with the issuance,
exchange, exercise and replacement of the Warrant Certificates; and
WHEREAS, the Prior Agreement set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions upon which
they may be issued, exchanged, exercised and replaced, and the Company and the
Codina Executives desire to amend and restate the Prior Agreement in its
entirety pursuant to this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. For the purposes of this Agreement,
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the following terms have the meanings set forth below:
"Affiliate" has the same meaning as in Rule 12b-2 promulgated under
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the Exchange Act.
"Agreement" is defined in the Recitals.
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"Business Day" means any day which is neither a Saturday or Sunday nor
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a legal holiday on which banks are authorized or required to be closed in
Atlanta, Georgia.
"Codina Executives" is defined in the Recitals.
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"Common Stock" means shares now or hereafter authorized of any class
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of common stock of the Company and any other capital stock of the Company,
however designated, that has the right (subject to any prior rights of the
Company's 8.00% Series A Cumulative Redeemable Preferred Stock and any other
class or series of preferred stock issued by the Company) to participate in any
distribution of the assets upon voluntary or involuntary liquidation,
dissolution or winding up of the Company or in the earnings of the Company
without limit as to per share amount, and shall include, without limitation, the
presently authorized 100,000,000 shares of the Company's common stock, par
value $.01 per share.
"Company" is defined in the Recitals.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exercise Price" means $32.75 per share of Common Stock issuable upon
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exercise of the Warrants, as adjusted from time to time in accordance with this
Agreement.
"Expiration Date" is defined in Section 3.2.
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"Governmental Authority" means any nation or government, any state or
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other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holder" is defined in Section 2.6.
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"Market Price" is defined in Section 4.1(e).
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"NYSE" is defined in Section 4.1(e).
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"Person" means any natural person, corporation, partnership, limited
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liability company, firm, association, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other capacity.
"Securities Act" means the Securities Act of 1933, as amended.
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"State" means any State of the United States or the District of
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Columbia.
"Transfer Agent" is defined in Section 3.4.
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"Valuation Date" is defined in Section 4.1(h).
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"Warrant" or "Warrants" is defined in the Recitals.
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"Warrant Certificate" or "Warrant Certificates" is defined in the
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Recitals.
"Warrant Register" is defined in Section 5.1.
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ARTICLE II
ISSUANCE AND EXECUTION
OF WARRANT CERTIFICATES
Section II.1 ISSUANCE OF WARRANT CERTIFICATES. Upon issuance, each
Warrant Certificate shall evidence one or more Warrants. Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase one (1) share of Common Stock.
Section II.2 FORM OF WARRANT CERTIFICATE. The Warrant Certificates
(including the Form(s) of Exercise and Assignment to be set forth on the reverse
thereof) shall be in substantially the form set forth in Exhibit A hereto, shall
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be printed, lithographed or engraved on steel engraved borders (or in any other
manner determined by the officers executing such Warrant Certificates, with the
execution thereof by such officers conclusively evidencing such determination)
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be listed or as
may, consistently herewith, be determined by the officers executing such Warrant
Certificates, with the execution thereof by such officers conclusively
evidencing such determination.
Section II.3 EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. The Warrant
Certificates shall be executed on behalf of the Company by its Chairman and
Chief Executive Officer, its President or its Chief Financial Officer, under its
corporate seal reproduced thereon attested to by its Treasurer or Secretary. The
signature of any of these officers on the Warrant Certificates may be manual or
facsimile.
Warrant Certificates evidencing the right to purchase a number of shares of
Common Stock having an aggregate par value not exceeding $1,800.00 (except as
provided in Sections 2.4, 3.3(b), 5.1 and 5.2) may be executed and delivered by
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the Company upon the execution of this Warrant Agreement or from time to time
thereafter. Subsequent to such original issuance of the Warrant Certificates,
the Company shall execute and deliver a Warrant Certificate only if the Warrant
Certificate is issued in exchange or in substitution for one or more previously
executed and delivered Warrant Certificates or in connection with their
transfer, as hereinafter provided.
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Each Warrant Certificate shall be dated the date of its execution by the
Company.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been duly
executed by the Company. Such signature by the Company shall be conclusive
evidence, and the only evidence, that the Warrant Certificate so executed has
been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at the time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the delivery of such Warrant Certificates.
Section II.4 TEMPORARY WARRANT CERTIFICATES. Pending the preparation of
definitive Warrant Certificates, the Company may execute and deliver temporary
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, with the execution thereof by
such officers conclusively evidencing such determination.
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 Company, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Warrant Certificates, the Company shall execute and deliver in exchange therefor
definitive Warrant Certificates representing the same aggregate number of
Warrants. 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 II.5 PAYMENT OF TAXES. The Company will pay all stamp taxes and
other duties, if any, arising out of or related to the execution and delivery of
this Agreement or the original issuance of the Warrant Certificates, under the
laws of the United States of America or any State or political subdivision
thereof.
Section II.6 DEFINITION OF HOLDER. The term "Holder" as used herein
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shall mean the Person in whose name at the time of determination such Warrant
Certificate shall be registered upon the Warrant Register to be maintained by
the Company for that purpose pursuant to Section 5.1.
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ARTICLE III
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section III.1 WARRANT PRICE. During the period set forth in Section 3.2,
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each Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company one share of Common Stock, subject to
adjustment as provided in Article IV, at the Exercise Price.
Section III.2 DURATION OF WARRANTS. Any Warrant evidenced by a Warrant
Certificate may be exercised by the Holder thereof at any time and from time to
time during the period beginning on August 24, 1999, and at or before 5:00 p.m.
(Atlanta time) on February 24, 2008 (the "Expiration Date"), only upon the terms
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and subject to the conditions set forth herein and in the applicable Warrant
Certificate. Each Warrant not exercised at or before 5:00 p.m. (Atlanta time)
on the Expiration Date shall become void, and all rights of the Holder of the
Warrant Certificate evidencing such Warrant under this Agreement or otherwise
shall cease.
Section III.3 EXERCISE OF WARRANTS. (a) During the period specified in
Section 3.2, any whole number of Warrants may be exercised by surrendering the
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Warrant Certificate evidencing such Warrants at the place or at the places set
forth in the Warrant Certificate, with the purchase form set forth in the
Warrant Certificate duly executed, accompanied by payment in full, in lawful
money of the United States of America, in cash or by certified check or official
bank check or by wire transfer in immediately available funds, of the Exercise
Price for each Warrant exercised. The date on which payment in full of the
Exercise Price for a Warrant and the duly executed and completed Warrant
Certificate are received by the Company shall be deemed to be the date on which
such Warrant is exercised.
(b) As soon as practicable after the exercise of any Warrants, the Company
shall issue to or upon the order of the Holder of the Warrant Certificate
evidencing such Warrants, a certificate or certificates representing the number
of shares of Common Stock to which such Holder is entitled in such name or names
as may be directed by such Holder. If fewer than all of the Warrants evidenced
by such Warrant Certificate are exercised, the Company shall execute and deliver
a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
(c) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Common Stock. In the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
shares of Common Stock until such tax or other charge shall have been paid or it
has been established to the Company's satisfaction that no such tax or other
charge is due.
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Section III.4 RESERVATION OF SHARES. For the purpose of enabling it to
satisfy any obligation to issue shares of Common Stock upon exercise of
Warrants, the Company will, at all times through the close of business on the
Expiration Date, reserve and keep available, free from preemptive rights, out of
the aggregate of its authorized but unissued capital stock or its authorized and
issued capital stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Common Stock upon exercise of Warrants, the
maximum number of shares of Common Stock which may then be deliverable upon the
exercise of all outstanding Warrants. The transfer agent for shares of Common
Stock of the Company (the "Transfer Agent") and every subsequent transfer agent
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for any shares of the Company's capital stock issuable upon the exercise of the
Warrants 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 Company will furnish such Transfer Agent a copy of all notices of
adjustments, and certificates related thereto, transmitted to each Holder
pursuant to Section 8.4. Before taking any action which would cause an
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adjustment pursuant to Section 4.1 to the maximum number of shares of Common
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Stock deliverable upon the exercise of all outstanding Warrants pursuant to
Section 3.3, the Company shall cause to be authorized additional shares of
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Common Stock such that the sum of such maximum number of shares of Common Stock
deliverable upon exercise of all outstanding Warrants and the number of shares
of Common Stock outstanding as of such date does not exceed the number of shares
of Common Stock authorized pursuant to the Company's Restated Articles of
Incorporation, as amended.
The Company covenants that all shares of Common Stock issued upon exercise
of the Warrants will, upon issuance in accordance with the terms of this
Agreement, be fully paid and nonassessable and free from all taxes, liens,
charges and security interests created by or imposed upon the Company with
respect to the issuance and holding thereof.
ARTICLE IV
OTHER TERMS OF WARRANTS
Section IV.1 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE OR NUMBER OF WARRANTS. The Exercise Price, the number of shares of
Common Stock purchasable upon the exercise of each Warrant and the number of
Warrants outstanding are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 4.1.
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(a) If the Company shall (i) pay a dividend in or make a distribution of
shares of its capital stock, whether shares of Common Stock or shares of its
capital stock of any other class, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue any shares of its
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capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the number of shares of Common Stock
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the Holder of each Warrant shall be entitled to receive the
kind and number of shares of Common Stock or other securities of the Company
which such Holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event, retroactive to
immediately after the record date, if any, for such event.
(b) If the Company shall issue rights, options or warrants to all Holders
of its outstanding Common Stock, without any charge to such Holders, entitling
them to subscribe for or purchase shares of Common Stock at a price per share
that is lower than the Market Price per share of Common Stock (as defined in
paragraph (e) below) at the record date mentioned below, the number of shares of
Common Stock thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of shares of Common Stock theretofore
purchasable upon exercise of each Warrant by a fraction, of which the numerator
shall be (i) the number of shares of Common Stock outstanding on the date of
issuance of such rights, options or warrants plus the number of additional
shares of Common Stock offered for subscription or purchase, and of which the
denominator shall be (ii) the number of shares of Common Stock outstanding on
the date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of shares of
Common Stock so offered would purchase at the Market Price per share of Common
Stock at such record date. Such adjustment shall be made whenever such rights,
options or warrants are issued, and shall become effective retroactive to
immediately after the record date for the determination of shareholders entitled
to receive such rights, options or warrants.
(c) If the Company shall distribute to all Holders of its shares of Common
Stock evidence of its indebtedness or assets (excluding cash dividends or
distributions payable out of capital surplus and dividends or distributions
referred to in paragraph (a) above) or rights, options or warrants or
convertible or exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock (excluding those referred to in paragraph (b)
above), then in each case the number of shares of Common Stock thereafter
purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of shares of Common Stock theretofore purchasable upon the exercise
of each Warrant, by a fraction, of which the numerator shall be (i) the then
current Market Price per share of Common Stock (as defined in paragraph (e)
below) on the date of such distribution, and of which the denominator shall be
(ii) the then current Market Price per share of Common Stock less the then fair
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or evidence of
indebtedness so distributed or of such subscription rights, options or warrants
or convertible or exchangeable securities applicable to one (1) share of Common
Stock. Such adjustment shall be made whenever any such distribution is made,
and
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shall become effective on the date of distribution retroactive to immediately
after the record date for the determination of shareholders entitled to receive
such distribution.
(d) In the event of any capital reorganization or any reclassification of
the Common Stock (except as provided in paragraphs (a) through (c) above), any
Holder of Warrants upon exercise thereof shall be entitled to receive, in lieu
of the Common Stock to which he or she would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the shares (of any
class or classes) or other securities or property of the Company that he or she
would have been entitled to receive at the same aggregate Exercise Price upon
such reorganization or reclassification if his or her Warrants had been
exercised immediately prior thereto.
(e) For the purpose of any computation under paragraphs (b) and (c) of this
Section 4.1, the current or closing Market Price per share of Common Stock at
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any date shall be deemed to be the average of the daily closing prices for the
twenty (20) consecutive trading days before the date of such computation. The
closing price for each day shall be the last sale price for such day, in either
case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange (the "NYSE") or if the Common Stock is not listed on the NYSE, then on
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the principal United States national securities exchange on which the Common
Stock is listed or quoted. If the Common Stock is not listed or quoted on any
United States national securities exchange, then the current or closing market
price per share of Common Stock shall be determined by the Board of Directors of
the Company in good faith.
(f) Whenever the number of shares of Common Stock purchasable upon the
exercise of each Warrant is adjusted as herein provided, the Exercise Price
payable upon the exercise of each Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of shares so purchasable immediately thereafter.
(g) The Company may elect, on or after the date of any adjustment required
by paragraphs (a) through (d) of this Section 4.1, to adjust the number of
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Warrants in substitution for an adjustment in the number of shares of Common
Stock purchasable upon the exercise of a Warrant. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be exercisable
for the same number of shares of Common Stock as immediately prior to such
adjustment. Each Warrant held of record prior to such adjustment of the number
of Warrants shall become that number of Warrants (calculated to the nearest
hundredth) obtained by dividing the Exercise Price in effect prior to adjustment
of the Exercise Price by the Exercise Price in effect after adjustment of the
Exercise Price. The Company shall notify the Holders of Warrants, in the same
manner as provided in the first paragraph of Section 8.4, of its election to
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adjust the number of Warrants, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This record
date may be the date on which
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the Exercise Price is adjusted or any day thereafter. Upon each adjustment of
the number of Warrants pursuant to this paragraph (g) the Company shall, as
promptly as practicable, cause to be distributed to Holders of record of
Warrants on such record date Warrant Certificates evidencing, subject to
paragraph (h), the additional Warrants to which such Holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such Holders of record in substitution and replacement for the
Warrant Certificates held by such Holders prior to the date of adjustment, and
upon surrender thereof, new Warrant Certificates evidencing all the Warrants to
be executed, issued and registered in the manner specified in Section 5.1 (and
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which may bear, at the option of the Company, the adjusted Exercise
Price) and shall be registered in the names of the Holders of record of Warrant
Certificates on the record date specified in the notice.
(h) The Company shall not be required to issue fractions of Warrants on any
distribution of Warrants to Holders of Warrant Certificates pursuant to
paragraph (g) or to distribute Warrant Certificates that evidence fractional
Warrants. In lieu of such fractional Warrants, there shall be paid to the
registered Holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant on the trading day
immediately prior to the date on which such fractional Warrant could have been
otherwise issuable (the "Valuation Date"). For purposes of this paragraph (h),
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the current market value of a Warrant shall be the aggregate closing Market
Price on the Valuation Date (determined as set forth in paragraph (e)) of all
shares of Common Stock issuable upon exercise of one Warrant plus the fair value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive) of any other assets or securities purchasable upon exercise
of one Warrant less the Exercise Price of one Warrant.
(i) Notwithstanding any adjustment pursuant to Section 4.1 in the number of
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shares of Common Stock purchasable upon the exercise of a Warrant, the Company
shall not be required to issue fractions of shares of Common Stock upon exercise
of the Warrants or to distribute certificates which evidence fractional shares.
In lieu of fractional shares, there shall be paid to the registered Holders of
Warrant Certificates at the time such Warrant Certificates are exercised as
herein provided an amount in cash equal to the same fraction of the current
market value of one (1) share of Common Stock. For purposes of this paragraph
(i), the current market value of one (1) share of Common Stock shall be the
closing Market Price (determined as set forth in paragraph (e)) of one (1) share
of Common Stock for the trading day immediately prior to the date of such
exercise.
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ARTICLE V
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section V.1 REGISTRATION, EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
The Company shall keep, at its principal executive offices, books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and transfers of outstanding Warrants (the "Warrant
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Register").
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Upon surrender at the principal executive offices of the Company of Warrant
Certificates properly endorsed or accompanied by appropriate instruments of
transfer and accompanied by written instructions for transfer or exchange, all
in form satisfactory to the Company, such Warrant Certificates may be exchanged
for other Warrant Certificates or may be transferred in whole or in part;
provided, however, that Warrant Certificates issued in exchange for or upon
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transfer of surrendered Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. No service charge
shall be made for any exchange or transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or governmental charge that may be imposed in connection with any such exchange
or transfer. Whenever any Warrant Certificates are so surrendered for exchange
or transfer, the Company shall execute and deliver to the Person or Persons
entitled thereto a Warrant Certificate or Warrant Certificates as so requested.
The Company shall not be required to effect any exchange or transfer which would
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or transfer of Warrant Certificates shall
evidence the same obligations, and be entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such exchange or
transfer.
Section V.2 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES.
If any mutilated Warrant Certificate is surrendered to the Company, the Company
shall execute and deliver in exchange therefor a new Warrant Certificate of like
tenor and bearing a number not contemporaneously outstanding. If there shall be
delivered to the Company (i) evidence to its satisfaction of the destruction,
loss or theft of any Warrant Certificate and of the ownership thereof and (ii)
such security or indemnity as may be required by it to save the Company and any
agent thereof harmless, then, in the absence of notice to the Company that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute and deliver, in lieu of any such destroyed, lost or stolen Warrant
Certificate, a new Warrant Certificate of like tenor and bearing a number not
contemporaneously outstanding. Upon the issuance of any new Warrant Certificate
under this Section 5.2, the Company may require the payment of a sum sufficient
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to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith. Every new Warrant
Certificate issued pursuant to this Section 5.2 in lieu of any destroyed, lost
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or stolen Warrant Certificate shall evidence an original additional contractual
obligation of the
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Company, whether or not the destroyed, lost or stolen Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder. The provisions of this Section 5.2 are
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exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Warrant Certificates.
Section V.3 PERSONS DEEMED OWNERS. Prior to due presentment of a
Warrant Certificate for registration of transfer, the Company and all other
Persons may treat the Holder as the owner thereof for any purpose and as the
Person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
Section V.4 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered to the Company for exchange, transfer or exercise of the
Warrants evidenced thereby shall be promptly canceled by it and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. The
Company shall promptly cancel any Warrant Certificates previously issued
hereunder which the Company may have acquired in any manner whatsoever.
ARTICLE VI
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section VI.1 NO RIGHTS AS SHAREHOLDER CONFERRED BY WARRANTS OR WARRANT
CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby shall entitle
the Holder thereof to any of the rights of a shareholder, including, without
limitation, the right to receive dividends.
Section VI.2 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of any shareholder or the Holder of any
other Warrant Certificate, may, on its own behalf and for its own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce or otherwise in respect of its right to exercise
the Warrant or Warrants evidenced by his or her Warrant Certificate in the
manner provided in the Warrant Certificates and in this Agreement.
ARTICLE VII
CONCERNING THE COMPANY AS WARRANT AGENT
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Section VII.1 WARRANT AGENT. The Company shall serve as warrant agent in
respect of the Warrants and the Warrant Certificates upon the terms and subject
to the conditions herein set forth. The Company shall have the power and
authority granted to and conferred upon it in the Warrant Certificates. All of
the terms and provisions with respect to such power and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section VII.2 DOCUMENTS. The Company shall be protected and shall incur
no liability for or in respect of any action taken or omitted by it in reliance
upon any notice, direction, consent, certificate, affidavit, statement or other
paper or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
ARTICLE VIII
MISCELLANEOUS
Section VIII.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may
consolidate with, or sell or convey all or substantially all of its assets to,
or merge with or into any other corporation, provided that in any such case,
either the Company shall be the continuing corporation, or the corporation (if
other than the Company) formed by such consolidation or into which the Company
is merged or the corporation which acquired by purchase or conveyance all or
substantially all of the assets of the Company shall expressly assume the
obligations of the Company hereunder.
Section VIII.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein, and the predecessor corporation, except in the event of a
lease, shall be relieved of any further obligation under this Agreement and the
Warrants. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
shares of Common Stock issuable pursuant to the terms hereof.
Section VIII.3 AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the Holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making such provisions in regard to
matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided, however, that such action shall not adversely
-------- -------
affect the interests of the Holders of the Warrant Certificates in any material
respect. Any amendment or supplement to this Agreement or the Warrants that has
a material adverse effect on the interests of Holders of any series of Warrants
shall require the written consent of
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the Holders of a majority of the then outstanding Warrants of such series. The
consent of each Holder of a Warrant affected shall be required for any amendment
pursuant to which the Exercise Price would be increased or the number of shares
of Common Stock purchasable upon exercise of Warrants would be decreased.
Section VIII.4 NOTICES TO WARRANTHOLDERS. Upon any adjustment of the
number of shares purchasable upon exercise of each Warrant, the Exercise Price
or the number of Warrants outstanding pursuant to Section 4.1, the Company
-----------
within ten (10) Business Days thereafter shall cause to be given to each of the
Holders of the Warrant Certificates written notice of such adjustments, together
with a copy of a certificate of the Chief Financial Officer of the Company
setting forth the Exercise Price and either the number of shares of Common Stock
and other securities or assets purchasable upon exercise of each Warrant or the
additional number of Warrants to be issued for each previously outstanding
Warrant, as the case may be, after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
adjustments are made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, at such Holder's address appearing
on the Warrant Register written notice of such adjustments by first-class mail,
postage prepaid.
Section VIII.5 ADDRESSES. Any communications to the Company with respect
to this Agreement shall be addressed to Weeks Corporation, 0000 Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer. Any communications
to any Holder shall be addressed to such Holder at its address appearing on the
Warrant Register.
Section VIII.6 GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of Georgia.
Section VIII.7 DELIVERY OF PROSPECTUS. Upon the exercise of any Warrant
Certificate, the Company will deliver to the person designated to receive a
certificate representing shares of Common Stock, prior to or concurrently with
the delivery of such securities, a Prospectus.
Section VIII.8 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of Governmental Authorities and
securities acts filings under United States Federal and state laws (including,
without limitation, to the extent required, the maintenance of the effectiveness
of a registration statement in respect of the Common Stock under the Securities
Act), which may be or become required in connection with exercise of the Warrant
Certificates.
Section VIII.9 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Agreement expressed or implied and nothing that may be inferred from any of
the provisions herein is intended, or shall be construed, to confer upon, or
give to, any Person other than the Company and the Holders of the Warrant
Certificates any right, remedy or claim
-13-
under or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof. All covenants, conditions, stipulations, promises
and agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company and its successors and of the Holders of the Warrant
Certificates.
Section VIII.10 HEADINGS. The Article and Section headings herein and the
Table of Contents are for convenience of reference only and shall not affect the
construction hereof.
Section VIII.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
Section VIII.12 INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available at all reasonable times at the principal executive offices of the
Company for inspection by the Holder of any Warrant Certificate. The Company may
require such Holder to submit its Warrant Certificate for inspection by it.
Section VIII.13 TRANSFERS IN COMPLIANCE WITH APPLICABLE LAW.
Notwithstanding anything in this Agreement to the contrary, no Warrant evidenced
by a Warrant Certificate may be sold, assigned, pledged or otherwise transferred
by the Holder thereof if such sale, assignment, pledge or other transfer is in
violation of applicable law, including, without limitation, any federal or state
securities laws.
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective as of the day and year first above written.
WEEKS CORPORATION
By:______________________________
Name:
Title:
____________________________
XXXXX XXXXXXX
____________________________
XXXX XXXXXX
____________________________
XXXX XXXXX
____________________________
XXXX XXXXX
____________________________
XXXXXX XXXXX
____________________________
XXXXXXX XXXXX
-15-
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
EXERCISABLE ONLY IF EXECUTED AND DELIVERED
BY THE COMPANY AS PROVIDED HEREIN
VOID AFTER 5:00 P.M. (ATLANTA TIME) ON FEBRUARY 24, 2008
WEEKS CORPORATION
Warrant Certificate representing
Warrants to purchase
Common Stock
as described herein.
____________________________
No. __________________ _________ Warrants
This certifies that ____________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
registered owner to purchase one (1) share of common stock, par value $.01 per
share ("Common Stock") of Weeks Corporation (the "Company"), subject to
adjustment as provided in Article IV of the Warrant Agreement referred to
herein, during the period set forth herein on the following basis. The Warrants
shall remain exercisable at any time and from time to time during the period
beginning on August 24, 1999 at or before 5:00 p.m. (Atlanta time) February 24,
2008. During such period, each Warrant shall entitle the Holder thereof,
subject to the provisions of the Warrant Agreement (as defined below), to
purchase from the Company one share of Common Stock at the exercise price of
$32.75, subject to adjustment as provided in Article IV of the Warrant Agreement
referred to herein (the "Exercise Price"). The Holder of this Warrant
Certificate may exercise the Warrants evidenced hereby, in whole or in part, by
surrendering this Warrant Certificate, with the purchase form set forth hereon
duly completed, accompanied by payment in full, in lawful money of the United
States of America, in cash or by certified check or official bank check or by
bank wire transfer in immediately available funds, the Exercise Price for each
Warrant exercised, to the Company, at the principal executive offices of the
Company, or its successor, as warrant agent (the "Warrant Agent"), the addresses
specified on the reverse hereof and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement.
The term "Holder" as used herein shall mean the person in whose name at the
time of determination such Warrant Certificate shall be registered upon the
books to be maintained by the Company for that purpose pursuant to Section 5.1
of the Warrant Agreement.
A-1
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase shares of Common Stock. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be issued
to the registered owner hereof a new Warrant Certificate evidencing the number
of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Amended
and Restated Warrant Agreement dated effective as of February 24, 1998 (the
"Warrant Agreement"), between the Company and the Codina Executives 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. Copies of the Warrant Agreement are on file at the above-
mentioned offices of the Company.
This Warrant Certificate and all rights hereunder, may be transferred when
surrendered at the principal executive offices of the Company by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.
After execution and delivery by the Company and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
principal executive offices of the Company for Warrant Certificates representing
the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof to
any of the rights of a shareholder of the Company, including, without
limitation, the right to receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any purpose
until executed and delivered by the Company.
A-2
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: ___________, 1998 WEEKS CORPORATION
Attest:
By:_____________________________
Name:
Title:
____________________________
Secretary
A-3
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay in cash or by certified check or official bank check or by
wire transfer in immediately available funds, the Exercise Price in full for
each of the Warrants exercised, to Weeks Corporation, 0000 Xxxx Xxxxx, Xxxxxxxx,
Xxxxxxx 00000; Attn: Chief Financial Officer, which payment should specify the
name of the Holder of this Warrant Certificate and the number of Warrants
exercised by such Holder. In addition, the Holder of this Warrant Certificate
should complete the information required below and present in person or mail by
registered mail this Warrant Certificate to the Company at the address set forth
below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants, represented
by this Warrant Certificate, to purchase _________ shares of Common Stock, par
value $.01 per share ("Common Stock"), of Weeks Corporation and represents that
he or she has tendered payment for such shares of Common Stock in cash or by
certified check or official bank check or by bank wire transfer in immediately
available funds to the order of Weeks Corporation, c/o Chief Financial Officer,
in the amount of $________ in accordance with the terms hereof. The undersigned
requests that said shares of Common Stock be registered in such names and
delivered, all as specified in accordance with the instructions set forth below.
If said number of shares of Common Stock is less than all of the shares of
Common Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of the Warrants evidenced hereby
be issued and delivered to the undersigned unless otherwise specified in the
instructions below.
A-4
Dated:______________________ Name:_________________________
(Please Print)
___________________________ Address:
Insert Social Security or Other _______________________________
Identifying Number of Holder) _______________________________
_______________________________
___________________________
Signature
(Signature must conform in all
respects to name of Holder as specified on
the face of this Warrant Certificate and must
bear a signature guarantee by a bank, trust
company or member broker of the New York,
Chicago or Pacific Stock Exchange.)
This Warrant may be exercised by hand or by mail
at the following address:
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
(Instructions as to form and delivery of
certificates representing shares of Common Stock
and/or Warrant Certificates):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-5
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED, _______________________________ hereby sells, assigns
and transfers unto
___________________________
___________________________
___________________________
Please print name and address
(including zip code)
Please insert social security or
other identifying number
___________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ________________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:__________________ _____________________________
Signature
(Signature must conform in all
respects to name of Xxxxxx as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York,
Chicago or Pacific Stock Exchange.)
Signature Guaranteed:
__________________________
A-6
