Exhibit 4.9
WC-5
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), AND NEITHER THIS WARRANT NOR
SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF
AN EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. New York City time, on January 19, 2000.
Subject to early termination as provided in Section 8(d) herein.
SERIES C WARRANT TO PURCHASE COMMON STOCK
OF
UNSI CORPORATION
This is to certify that, FOR VALUE RECEIVED, Xxxxx Xxxx or
assigns ("Holder") , is entitled to purchase, subject to the
provisions of this Warrant, from UNSI Corporation, a Delaware
corporation (the "Company"), at an exercise price per share of
ten cents ($.10), 202,150 shares (subject to adjustment as set
forth in the next sentence and as otherwise set forth herein) of
common stock, par value $.01 per share, of the Company (the
"Common Stock") at any time during the period (the "Exercise
Period") commencing after January 4, 1997 and prior to 5:00 p.m.
New York City time, on January 19, 2000; provided, however, that
if such date is a day on which banking institutions in the State
of New York are authorized by law to close, then on the next
succeeding day which shall not be such a day. In the event that
one or more of the Company's Series B Warrants and/or 7% PIK
Debentures due 1999 (the "PIK Debentures") are not retired,
redeemed, cancelled, satisfied or otherwise terminated prior to
the exercise of this Warrant, the number of shares issuable upon
exercise of this Warrant shall be adjusted so that this Warrant
shall be exercisable to acquire 3.00% of the UNSI Common Stock
outstanding as of the date hereof on a fully diluted basis. The
term "fully diluted basis" means after giving effect to the
exercise or conversion of all UNSI securities outstanding as of
the date hereof (other than the Series B Warrants and/or PIK
Debentures that are retired, redeemed, satisfied, cancelled or
otherwise terminated prior to the exercise of this Warrant and
the Series C Warrant denominated WC-4 and the Series D Redeemable
Warrant to Purchase Common Stock of UNSI Corporation) convertible
or exercisable into UNSI Common Stock. Notwithstanding anything
to the contrary herein, this Warrant may be exercised after
December 18, 1995, in the event that the Company shall have
received prior
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to the date of exercise an opinion of its counsel to the
effect that such exercise will not adversely effect the
Company's ability to use its net operating losses. The number
of shares of Common Stock to be received upon the exercise
of this Warrant and the price to be paid for a share of
Common Stock may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to
time, are hereinafter sometimes referred to as "Warrant
Shares," and the exercise price for the purchase of a share of
Common Stock pursuant to this Warrant in effect at any time
and as adjusted from time to time is hereby referred to as
the "Exercise Price".
1. EXERCISE OF WARRANT. This Warrant may be
exercised in whole at any time or in part from time to time
during the Exercise Period by presentation and surrender hereof
to the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form annexed
hereto as Exhibit A duly executed and accompanied by payment of
the Exercise Price for the number of shares specified in such
form. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the
Holder hereof to purchase the balance of the shares purchasable
hereunder. Upon receipt by the Company of this Warrant at its
office, or by the stock transfer agent of the Company at its
office, in proper form for exercise, the Holder shall be deemed
to be the holder of record of the shares of Common Stock issuable
upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be
actually delivered to the Holder.
2. RESERVATION OF SHARES. The Company hereby agrees
that at all times there shall be reserved for issuance and/or
delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery
upon exercise of this Warrant.
3. FRACTIONAL SHARES. No fractional shares or script
representing fractional shares shall be issued upon the exercise
of this Warrant.
4. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT.
This Warrant is exchangeable, without expense, at the option of
the Holder, upon presentation and surrender hereof to the Company
or at the office of its stock transfer agent, if any, for other
warrants of different denominations entitling the holder thereof
to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Subject to the provisions of
Section 9 of this Warrant, upon surrender of this Warrant to the
Company or at the office of its stock transfer agent, if any,
with the Assignment Form annexed hereto as Exhibit A duly
executed and funds sufficient to pay any transfer tax, the
Company shall, without charge, execute
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and deliver a new Warrant in the name of the assignee
named in such instrument of assignment and this Warrant
shall promptly be cancelled. This Warrant may be divided
or combined with other Warrants which carry the same rights
upon presentation hereof at the office of the Company or at
the office of its stock transfer agent, if any, together with
a written notice specifying the names and denominations
in which new Warrants are to be issued and signed by the
Holder hereof. The term "Warrant" as used herein includes any
Warrants into which this Warrant may be divided or exchanged.
Upon receipt by the Company of evidence satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant,
and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender
and cancellation of this Warrant, if mutilated, the
Company will execute and deliver a new Warrant of like tenor
and date.
5. RIGHTS OF THE HOLDER. The Holder shall not, by
virtue of this Warrant, be entitled to any rights of a
stockholder in the Company, either at law or equity, and the
rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Company except to the
extent set forth herein.
6. ADJUSTMENT OF EXERCISE PRICE. In case the Company
shall, (a) pay a dividend or make a distribution on its shares of
Common Stock in shares of Common Stock (b) subdivide or
reclassify its outstanding Common Stock into a greater number of
shares, or (c) combine or reclassify its outstanding Common Stock
into a smaller number of shares, the Exercise Price in effect at
the time of the record date for such dividend or distribution or
of the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the
Holder of this Warrant exercised after such date shall be
entitled to receive the aggregate number and kind of shares
which, if this Warrant had been exercised immediately prior to
such time, he would have owned upon such exercise and been
entitled to receive upon such dividend, subdivision, combination
or reclassification. Such adjustment shall be made successively
whenever any event listed in this Section 6 shall occur. All
calculations under this Section 6 shall be made to the nearest
cent or to the nearest share, as the case may be.
7. RECLASSIFICATION, REORGANIZATION OR MERGER. If
any capital reorganization or reclassification of the capital
stock of the Company or any consolidation or merger of the
Company with another corporation, or the sale of all or
substantially all of its assets to another corporation shall be
effected in such a way (including, without limitation, by way of
consolidation or merger) that holders of Common Stock shall be
entitled to receive stock, securities or assets with respect to
or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale,
adequate provision
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shall be made whereby the Holder of this Warrant shall
thereafter have the right to receive, upon the basis and
upon the terms and conditions specified herein and in lieu
of the shares of Common Stock of the Company then receivable
upon the exercise of this Warrant, such shares of
stock, securities or assets as may be issued or payable with
respect to or in exchange for a number of outstanding shares
of such Common Stock equal to the number of shares of such
stock then receivable had such reorganization,
reclassification, consolidation, merger or sale not taken
place, and in any such case appropriate provision shall
be made with respect to the rights and interests of such
holder to the end that the provisions hereof shall
thereafter be applicable, as nearly practicable, in relation
to any shares of stock, securities or assets thereafter
deliverable upon the exercise of this Warrant. In the event
of a merger or consolidation of the Company as a result of
which a greater or lesser number of shares of common
stock of the surviving corporation is issuable to holders
of Common Stock of the Company outstanding immediately prior
to such merger or consolidation, the Exercise Price in
effect immediately prior to such merger or consolidation
shall be adjusted in the same manner as though there were
a subdivision or combination of the outstanding shares of
Common Stock of the Company.
8. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(a) For the four year period commencing after
January 19, 1996 (subject to Section 8(f)), the Company shall
advise the Holder of Warrants or the Warrant Shares or any then
holder of the Warrants or Warrant Shares (such persons being
collectively referred to herein as "holders") by written notice
at least thirty (30) days prior to the filing of any registration
statement under the Act (other than a registration statement on
Form X-0, Xxxx X-0 or subsequent similar forms) covering
securities of the Company and will upon the request of any such
holder, include in any such registration statement such
information as may be required to permit a public offering of the
Warrant Shares; provided, however, that if the registration
statement relates to a public offering by the Company of its
securities and the managing underwriters advise the holder that
the inclusion in the offering of securities being sold by the
holder would adversely affect the ability of the Company to
complete the public offering (and other selling stockholders, if
any, are similarly advised), then the holder will agree to reduce
the number of Warrant Shares to be registered to a number of
shares which shall be not less than ten percent (10%) of the
number of shares being offered by the Company and the holder will
further agree not to make any sales of the securities so included
for a period of one hundred eighty (180) days from the effective
date of such registration statement. The Company shall keep such
registration statement current for a period of up to nine (9)
months from the conclusion of such one hundred eighty (180) day
period; provided, however, that the Company shall not be required
to keep the registration statement effective beyond
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the date after which the registration statement must be
amended to include updated audited financial statements. The
Company shall supply prospectuses, qualify the Warrants and
the Warrant Shares for sale in such states as any such
holder reasonably designates and furnish indemnification in
the manner as set forth in Section 8(b)(ii). Such
holders shall furnish information and provide
indemnification as set forth in Section 8(b)(ii).
(b) The following provisions shall also be
applicable:
(i) The Company shall bear the entire cost
and expense of any registration of securities initiated by it
under Section 8 of this Warrant. Any holder whose Warrant Shares
are included in any such registration statement pursuant to this
Section 8 shall, however, bear the fees of his own counsel and
accountants and any transfer taxes or underwriting discounts or
commissions applicable to the Warrant Shares sold by him pursuant
thereto.
(ii) The Company shall indemnify and hold
harmless each such holder and each underwriter, within the
meaning of the Act, who may purchase from or sell for any such
holder any Warrants and/or Warrant Shares from and against any
and any losses, claims, damages and liabilities caused by any
untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereto or any
registration statement under the Act or any prospectus included
therein required to be filed or furnished by reason of this
Section 8 or any application or other filing under any state
securities law caused by any omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading to which such holder or any
such underwriter or any of them may become subject under the Act,
the Securities Exchange Act of 1934, as amended, or other Federal
or state statutory law or regulation, except insofar as such
losses, claims, damages or liabilities are caused by any such
untrue statement or omission based upon information furnished or
required to be furnished to the Company by any such holder or
underwriter expressly for use therein, which indemnification
shall include each person, if any, who controls any such
underwriter within the meaning of such Act; provided, however,
that any such holder or underwriter shall at the same time
indemnify the Company, its directors, each officer signing the
related registration statement, each person, if any, who controls
the Company within the meaning of such Act and each other Holder,
from and against any and all losses, claims, damages and
liabilities caused by any untrue statement of a material
fact contained in any registration statement or any
prospectus required to be filed or furnished by reason of
this Section 8 or caused by any omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, insofar as
such losses, claims, damages or liabilities are caused
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by any untrue statement or omission is based upon
information furnished to the Company by any such holder or
underwriter expressly for use therein.
(c) The Company's agreements with respect to
Warrants or Warrant Shares in this Section 8 shall continue in
effect regardless of the exercise and surrender of this Warrant.
(d) Notwithstanding any contrary provisions of
this Section 8 the holder of this Warrant may, at its election,
include this Warrant as well as the Warrant Shares issuable upon
exercise of this Warrant in any registration statement filed
pursuant to this Section 8; provided, however, that in the event
that both (i) this Warrant shall be included in any such
registration statement and (ii) this Warrant shall be transferred
at a time subsequent to the effective date of such registration
statement at which time the registration statement is current,
then this Warrant shall cease to be exercisable after 5:00 P. M.,
New York City time on the thirtieth (30th) day after the date of
such transfer or, if such thirtieth (30th) day shall be a day on
which banking institutions in the State of New York are
authorized by law to close, then on the next succeeding day which
shall not be such a day. In the event that any registration
statement referred to in the preceding sentence shall cease to be
current during the thirty (30) day period referred to above,
then, notwithstanding the preceding sentence, the exerciseability
of this Warrant shall not be affected by the transfer of this
Warrant. Nothing in this Warrant shall be construed in any
manner to require the Company to take steps to create or provide
for a public market for the Warrants.
9. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF
1933. This Warrant or the Warrant Shares or any other security
issued or issuable upon exercise of this Warrant may not be sold
or otherwise disposed of except as follows:
(a) To a person who, in the opinion of counsel
for the Company, is a person to whom this Warrant or Warrant
Shares may legally be transferred without registration and
without the delivery of a current prospectus under the Act with
respect thereto against receipt of an agreement of such person to
comply with the provisions of this Section 9 with respect to any
resale or other disposition of such securities which agreement
shall be reasonably satisfactory in form and substance to the
Company and its counsel; or
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(b) to any person upon delivery of a prospectus
then meeting the requirements of the Act relating to such
securities and the offering thereof for such sale or disposition.
Dated: June 28, 1995
UNSI CORPORATION
By:________________________________
Xxxxx X. Xxxx
Chairman of the Board
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Exhibit A
PURCHASE FORM
Dated , 19
The undersigned hereby irrevocably elects to exercise the
within Warrant to the extent of purchasing
shares of Common Stock and hereby makes payment of
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
(Please typewrite or print in block letters)
Signature
ASSIGNMENT FORM
FOR VALUE RECEIVED,
hereby sells, assigns and transfer unto
Name
(Please typewrite or print in block letters)
Address
Social Security or Employer Identification No.
the right to purchase Common Stock represented by this Warrant to
the extent of shares as to which such right is
exercisable and does hereby irrevocably constitute and appoint
Attorney, to transfer the same on the
books of the Company with full power of substitution in the
premises.
Dated: , 19
Signature
Signature Guaranteed
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