Exhibit 21
This Warrant was originally issued on January 3, 2003,
and such issuance was not registered under the
Securities Act of 1933, as amended. The transfer of
this Warrant and the securities obtainable upon
exercise hereof is subject to the limitations and
conditions on transfer specified in the Preferred Stock
and Warrant Purchase Agreement, dated as of September
21, 2002 (as it may be amended from time to time, the
"PURCHASE AGREEMENT"), between the Company and the
Registered Holder (each as defined herein), and the
Company reserves the right to refuse the transfer of
any such securities until such limitations have lapsed
and conditions have been fulfilled, with respect to
such transfer. Upon written request, a copy of the
Purchase Agreement shall be furnished by the Company to
the holder hereof without charge.
X.X. XXXXXXXXX CORPORATION
STOCK PURCHASE WARRANT
----------------------
Date of Issuance: January 3, 2003 Certificate No. W-2-1
FOR VALUE RECEIVED, X.X. Xxxxxxxxx Corporation, a Delaware
corporation (the "COMPANY"), hereby grants to ___________________ or its
registered assigns (the "REGISTERED HOLDER") the right to purchase from the
Company _______ shares of the Company's Common Stock at the Exercise Price.
This Warrant is one of several warrants (collectively, the "SERIES 2
WARRANTS") issued by the Company to certain investors (the "INVESTORS")
pursuant to the Preferred Stock and Warrant Purchase Agreement, dated as of
September 21, 2002 (as amended, the "PURCHASE AGREEMENT"). Certain
capitalized terms used herein are defined in Section 4 and capitalized
terms used in this Warrant but not defined herein shall have the meanings
ascribed thereto in the Purchase Agreement. The amount and kind of
securities obtainable pursuant to the purchase rights granted hereunder and
the purchase price for such securities are subject to adjustment pursuant
to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant. (a) Exercise Period. The
Registered Holder may exercise, in whole or in part (but not as to a
fractional share of Common Stock), the purchase rights represented by this
Warrant at any time and from time to time after the Date of Issuance to and
including the fifth anniversary thereof (the "EXERCISE PERIOD").
(b) Exercise Procedure. (i) This Warrant shall be deemed to have
been exercised when the Company has received all of the following items
(the "EXERCISE TIME"):
(A) a completed Exercise Agreement, as defined in Section 1(c),
executed by the Person exercising all or part of the purchase rights
represented by this Warrant (the "PURCHASER");
(B) this Warrant;
(C) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments in the form set forth in
Exhibit I evidencing the assignment of this Warrant to the Purchaser,
in which case the Registered Holder shall have complied with the
provisions set forth in Section 6; and
(D) either (1) a check payable to the Company in an amount equal
to the product of the Exercise Price multiplied by the number of
shares of Common Stock being purchased upon such exercise (the
"AGGREGATE EXERCISE PRICE"), or (2) a written notice to the Company
that the Purchaser is exercising the Warrant (or a portion thereof) by
authorizing the Company to withhold from issuance a number of shares
of Common Stock issuable upon such exercise of the Warrant that when
multiplied by the Current Market Price of the Common Stock is equal to
the Aggregate Exercise Price (which withheld shares shall no longer be
issuable under this Warrant).
(ii) Certificates for shares of Common Stock purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within five Business Days after the date on which the Exercise Time occurs.
Unless this Warrant has expired or all of the purchase rights represented
hereby have been exercised, the Company shall prepare a new Warrant,
substantially identical hereto, representing the purchase rights formerly
represented by this Warrant that have not expired or been exercised and
shall within such five-Business Day period deliver such new Warrant to the
Person designated for delivery in the Exercise Agreement.
(iii) The Common Stock issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Purchaser at the Exercise Time,
and the Purchaser shall be deemed for all purposes to have become the
record holder of such Common Stock as of the Exercise Time.
(iv) The issuance of certificates for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax in respect thereof if issued
to the Registered Holder or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Common
Stock. Each share of Common Stock issuable upon exercise of this Warrant
shall upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all liens and charges with respect to the
issuance thereof.
(v) The Company shall not close its books against the transfer of
this Warrant or of any share of Common Stock issued or issuable upon the
exercise of this Warrant in any manner that interferes with the timely and
proper exercise of this Warrant.
(vi) Notwithstanding any other provision hereof, if an exercise
of any portion of this Warrant is to be made in connection with a
registered public offering or the sale of the Company, the exercise of any
portion of this Warrant may, at the election of the holder hereof, be
conditioned upon the consummation of the public offering or sale of the
Company in which case such exercise shall not be deemed to be effective
until the consummation of such transaction.
(vii) The Company shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock, solely for the
purpose of issuance upon the exercise of the Series 2 Warrants, such number
of shares of Common Stock issuable upon the exercise of all outstanding
Series 2 Warrants. The Company shall take all such actions as may be
necessary to assure that all such shares of Common Stock may be so issued
without violation of any law or governmental regulation applicable to the
Company or any requirements of any domestic securities exchange upon which
shares of Common Stock may be listed (except for official notice of
issuance that shall be immediately delivered by the Company upon each such
issuance). The Company shall not take any action that would cause the
number of authorized but unissued shares of Common Stock to be less than
the number of such shares required to be reserved hereunder for issuance
upon exercise of the Series 2 Warrants.
(c) Exercise Agreement. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in Exhibit
II (the "EXERCISE AGREEMENT"), except that if the shares of Common Stock
are not to be issued in the name of the Person in whose name this Warrant
is registered, the Exercise Agreement shall also state the name of the
Person to whom the certificates for the shares of Common Stock are to be
issued, and if the number of shares of Common Stock to be issued does not
include all the shares of Common Stock purchasable hereunder, it shall also
state the name of the Person to whom a new Warrant for the unexercised
portion of the purchase rights hereunder is to be delivered. Such Exercise
Agreement shall be dated the actual date of execution thereof.
(d) Fractional Shares. If a fractional share of Common Stock
would be issuable upon exercise of the purchase rights represented by this
Warrant, the Company shall, unless prohibited by any agreement to which the
Company is a party, within five Business Days after the date on which the
Exercise Time occurs, deliver to the Purchaser a check payable to the
Purchaser in lieu of such fractional share in an amount equal to the
difference between Current Market Price of such fractional share as of the
date on which the Exercise Time occurs and the Exercise Price of such
fractional share.
Section 2. Adjustment of Exercise Price and Number of Shares. In
order to prevent dilution of the purchase rights granted under this
Warrant, the Exercise Price shall be subject to adjustment from time to
time as provided in this Section 2, and the number of shares of Common
Stock obtainable upon exercise of this Warrant shall be subject to
adjustment from time to time as provided in this Section 2.
(a) The Exercise Price shall be subject to adjustment as follows:
(i) In case the Company shall at any time or from time to time
after the Date of Issuance (A) pay a dividend or make a distribution in
shares of Common Stock or Convertible Securities into Common Stock, (B)
subdivide or reclassify the outstanding shares of Common Stock into a
greater number of shares of Common Stock, (C) combine or reclassify the
outstanding shares of Common Stock into a smaller number of shares, or (D)
otherwise issue by reclassification of the shares of Common Stock any
shares of capital stock of the Company, then, and in each such case, the
Exercise Price in effect immediately prior to such action and the number of
shares of Common Stock obtainable upon exercise of this Warrant shall be
proportionately adjusted so that the holder of this Warrant shall be
entitled to receive the number of shares of Common Stock or other
securities of the Company upon exercise of this Warrant 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 the record date
therefor, whichever is earlier. An adjustment made pursuant to this Section
2(a)(i) shall become applicable (x) in the case of any such dividend or
distribution, immediately after the close of business on the record date
for the determination of holders of shares of Common Stock entitled to
receive such dividend or distribution and (y) in the case of any such
subdivision, reclassification or combination, at the close of business on
the day upon which such corporate action becomes effective. Such adjustment
shall be made successively.
(ii) In case the Company shall at any time or from time to time
after the Date of Issuance declare, order, pay or make a dividend or other
distribution (including without limitation any distribution of stock or
other securities, evidences of indebtedness, property or assets or rights
or warrants to subscribe for securities of the Company or any of its
Subsidiaries) on its Common Stock (other than (A) regular quarterly
dividends payable in cash or (B) dividends or distributions of shares of
Common Stock referred to in Section 2(a)(i)) (any one of the foregoing
other than the items specified in clause (A) or (B) referred to as
"SECURITIES OR ASSETS"), then and in each such case, unless the Company
elects to reserve shares or other units of such Securities or Assets for
distribution to the holders of the Series 2 Warrants upon the exercise of
such Series 2 Warrants so that any such holder exercising its Series 2
Warrants will receive upon such exercise, in addition to the shares of the
Common Stock to which such holder is entitled, the amount and kind of such
Securities or Assets which such holder would have received if such holder
had, immediately prior to the record date for the distribution of the
Securities or Assets, exercised its Warrant for Common Stock, the Exercise
Price shall be adjusted so that such Exercise Price shall equal the price
determined by multiplying the Exercise Price in effect immediately prior to
the date of such distribution by a fraction of which the numerator shall be
the Current Market Price of the Common Stock on such record date less the
then fair market value (as determined by the Board in good faith) of the
portion of the capital stock or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one share of Common
Stock, and of which the denominator shall be the Current Market Price of
the Common Stock on such record date; provided, however, that if the then
fair market value (as so determined) of the portion of the Securities or
Assets so distributed applicable to one share of Common Stock is equal to
or greater than the Current Market Price of the Common Stock on the record
date mentioned above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of the Series 2 Warrants shall
have the right to receive the amount and kind of Securities or Assets which
such holder would have received had such holder exercised its Warrant
immediately prior to the record date for the distribution of the Securities
or Assets. Such adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
distribution.
(iii) In case the Company shall issue or sell any Common Stock
(or rights, Options, warrants or other Convertible Securities)
(collectively, "ADDITIONAL SHARES") at any time after the date hereof until
January 3, 2006 without consideration or for a consideration per share (or
having a exercise, exchange or exercise price per share) (such per share
amount, the "SALE PRICE") less than the greater of (A) the Current Market
Price per share of Common Stock on the date preceding the earlier of the
issuance or public announcement of the issuance of such Additional Shares
of Common Stock and (B) the Exercise Price as of the date of such issuance
of shares (or, in the case of Convertible Securities, less than the greater
of the Current Market Price or the Exercise Price, as the case may be, as
of the date of issuance of the rights, Options, warrants or other
securities in respect of which shares of Common Stock were issued) then,
and in each such case, the Exercise Price shall be reduced to an amount
determined by multiplying (A) the Exercise Price in effect on the day
immediately prior to such date by (B) a fraction, the numerator of which
shall be the sum of (1) the number of shares of Common Stock outstanding
immediately prior to such sale or issuance multiplied by the greater of (a)
the then applicable Exercise Price per share and (b) the Current Market
Price per share of Common Stock on the date preceding the earlier of the
issuance or public announcement of the issuance of such Additional Shares
of Common Stock (the greater of (a) and (b) above hereinafter referred to
as the "ADJUSTMENT PRICE") and (2) the aggregate consideration receivable
by the Company for the total number of shares of Common Stock so issued (or
into or for which the rights, Options, warrants or other securities are
convertible, exercisable or exchangeable), and the denominator of which
shall be equal to the product of (I) the sum of (x) the total number of shares
of Common Stock outstanding immediately prior to such sale or issue and (y)
the number of additional shares of Common Stock issued (or into or for
which the rights, Options, warrants or other securities may be converted,
exercised or exchanged), multiplied by (II) the Adjustment Price. In case
any portion of the consideration to be received by the Company shall be in
a form other than cash, the fair market value of such noncash consideration
shall be utilized in the foregoing computation. Such fair market value
shall be determined in good faith by the Board of Directors. Upon each such
adjustment of the Exercise Price hereunder, the number of Shares of Common
Stock acquirable upon exercise of this Warrant shall be adjusted to the
number of shares determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common
Stock acquirable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment. An adjustment made pursuant to this subsection (iii)
shall be made on the next Business Day following the date on which any such
issuance is made and shall be effective retroactively to the close of
business on the date of such issuance. For purposes of this subsection
(iii), the aggregate consideration receivable by the Company in connection
with the issuance of shares of Common Stock or of rights, warrants or other
Convertible Securities shall be deemed to be equal to the sum of the
aggregate offering price (before deduction of underwriting discounts or
commissions and expenses payable to third parties) of all such Common
Stock, rights, warrants and Convertible Securities plus the aggregate
amount (as determined on the date of issuance), if any, payable upon
exercise or exercise of any such rights, warrants and Convertible
Securities into shares of Common Stock. If, subsequent to the date of
issuance of such right, warrants or other Convertible Securities, the
conversion or exercise price thereof is reduced, such aggregate amount
shall be recalculated and the Exercise Price and the number of shares of
Common Stock obtainable upon exercise of this Warrant shall be adjusted
retroactively to give effect to such reduction. On the expiration of any
option or the termination of any right to convert or exchange any
securities into Additional Shares, the Exercise Price then in effect
hereunder shall forthwith be increased to the Exercise Price which would
have been in effect at the time of such expiration or termination (but
taking into account other adjustments or potential made following the time
of issuance of such Options or securities) had such option or security, to
the extent outstanding immediately prior to such expiration or termination,
never been issued and the number of shares of Common Stock obtainable upon
exercise of this Warrant shall be correspondingly adjusted. If Common Stock
is sold as a unit with other securities, the aggregate consideration
received for such Common Stock shall be deemed to be net of the fair market
value (as determined by the Board of Directors in good faith) of such other
securities. The issuance or reissuance of (A) any shares of Common Stock or
rights, warrants or other Convertible Securities (whether treasury shares
or newly issued shares) (1) pursuant to a dividend or distribution on, or
subdivision, combination or reclassification of, the outstanding shares of
Common Stock requiring an adjustment in the Exercise Price pursuant to
subsection (i) of this Section 2(a); (2) pursuant to any restricted stock
or stock option plan or program of the Company involving the grant of
Options or rights to acquire shares of Common Stock after the date hereof
to directors, officers and employees of the Company and its Subsidiaries;
(3) pursuant to any option, warrant, right, or Convertible Security
outstanding as of the Date of Issuance; (4) pursuant to any securities
issued to a bank or other similar financial institution solely in
connection with the Senior Credit Facility and the Senior Subordinated
Credit Facility; or (5) pursuant to an underwritten offering registered
with the SEC if the offering price is greater than the Exercise Price then
in effect; (B) the Preferred Stock and any shares of Common Stock issuable
upon conversion or exercise thereof, or (C) the Series 2 Warrants and any
shares of Common Stock issuable upon exercise thereof, shall not be deemed
to constitute an issuance of Common Stock or Convertible Securities by the
Company to which this subsection (iii) applies. No adjustment shall be made
pursuant to this subsection (iii) in connection with any transaction to
which Section 2(b) applies.
(iv) For purposes of this Section 2(a), the number of shares of
Common Stock at any time outstanding shall not include any shares of Common
Stock then owned or held by or for the account of the Company.
(v) All calculations of the Exercise Price pursuant to this
Section 2(a) shall be made to the nearest one one-hundredth of a cent.
Anything in this Section 2(a) to the contrary notwithstanding, (A) the
Company shall not be required to give effect to any adjustment in the
Exercise Price unless and until the net effect of one or more adjustments
(each of which shall be carried forward), determined as above provided,
shall have resulted in a reduction of the Exercise Price of at least 1%,
and when the cumulative net effect of more than one adjustment so
determined shall be to reduce the Exercise Price by at least 1%, such
reduction in Exercise Price shall thereupon be given effect and (B) in no
event shall the then current Exercise Price be increased as a result of any
calculation made at any time pursuant to this Section 2(a).
(b) (i) In case of any capital reorganization or reclassification
of outstanding shares of Common Stock (other than a reclassification to
which Section 2(a)(i) shall apply), or in case of any merger or
consolidation of the Company with or into another Person (as defined
below), or in case of any sale or conveyance to another Person of all or
substantially all of the assets of the Company or any compulsory share
exchange pursuant to which share exchange the shares of Common Stock are
converted into other securities, cash or other property (each of the
foregoing being referred to as a "TRANSACTION"), this Warrant shall
thereafter be exercisable for, in lieu of the shares of Common Stock
issuable upon such exercise prior to consummation of such Transaction, the
kind and amount of shares of stock and other securities and property
receivable (including cash) upon the consummation of such Transaction by a
holder of that number of shares of Common Stock into which the Warrant was
exercisable for immediately prior to such Transaction (including, on a pro
rata basis, the cash, securities or property received by holders of Common
Stock in any tender or exchange offer that is a step in such Transaction).
(ii) Notwithstanding anything contained herein to the contrary,
the Company will not effect any Transaction unless, prior to the
consummation thereof, (A) the Surviving Person shall agree that the Series
2 Warrants shall be treated as provided in paragraph (i) of this Section
2(b) and the agreements governing such Transaction shall so provide and (B)
the Surviving Person thereof shall assume, by written instrument mailed, by
first-class mail, postage prepaid, to each holder of the Series 2 Warrants
at such holder's address as it appears in the records of the Company, the
obligation to deliver to such holder such cash or other securities to
which, in accordance with the foregoing provisions, such holder is entitled
and such Surviving Person shall have mailed, by first-class mail, postage
prepaid, to each holder of the Series 2 Warrants at such holder's address
as it appears in the records of the Company, and an opinion of independent
counsel for such Person stating that such assumption agreement is a valid,
binding and enforceable agreement of the Surviving Person.
(c) In any case, if necessary, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be made in the
application of the provisions set forth in this Section 2 with respect to
rights and interests thereafter of the holders of the Series 2 Warrants to
the end that the provisions set forth herein for the protection of the
purchase rights of the Series 2 Warrants shall thereafter be applicable, as
nearly as reasonably may be, to any such other shares of stock and other
securities (other than the Common Stock) and property deliverable upon
exercise of the Series 2 Warrants remaining outstanding with such
adjustments in the Exercise Price and the number of shares of Common Stock
obtainable upon exercise of this Warrant and such other adjustments in the
provisions hereof as the Board of Directors shall in good faith determine
to be appropriate. In case securities or property other than Common Stock
shall be issuable or deliverable upon exercise as aforesaid, then all
references in this Section 2 shall be deemed to apply, so far as
appropriate and as nearly as may be, to such other securities or property.
(d) If the Company shall pay any dividend or make any other
distribution to the holders of its Common Stock (other than regularly
quarterly dividends payable in cash) or shall offer for subscription pro
rata to the holders of its Common Stock any additional shares of stock of
any class or any other right, or there shall be any Transaction, or there
shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Company, then, in any one or more of said cases the Company shall
give at least 15 days prior written notice to the holders of the Series 2
Warrants by first-class mail, postage prepaid, at their respective
addresses as they shall appear in the records of the Company of the earlier
of the dates on which (i) the books of the Company shall close or a record
shall be taken for such stock dividend, distribution or subscription rights
or (ii) such Transaction, dissolution, liquidation or winding up shall take
place. Such notice shall also specify that date as of which the holders of
the Common Stock of record shall participate in said dividend, distribution
of subscription rights or shall be entitled to exchange their Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale or conveyance or participate
in such dissolution, liquidation or winding up, as the case may be. Failure
to give such notice shall not invalidate any action so taken.
Section 3. Reports as to Adjustments. Upon the occurrence of any
event specified in Section 2(a) that would result in any adjustment of the
Exercise Price, then, and in each such case, the Company shall promptly
deliver by first-class mail, postage prepaid, at their respective addresses
as they shall appear in the records of the Company, a certificate signed by
the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company setting
forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated and specifying the Exercise
Price then in effect and the number of shares of Common Stock obtainable
upon exercise of the Series 2 Warrants following such adjustment. Where
appropriate, such notice to the holders of the Series 2 Warrants may be
given in advance and included as part of the notice required pursuant to
Section 2(d).
Section 4. Definitions. The following terms have meanings set
forth below:
"BUSINESS DAY" means any day other than a Saturday, Sunday, or
any day on which banks in New York City are authorized or obligated by
applicable law to close.
"COMMON STOCK" means, collectively, the Company's Common Stock,
par value $1 per share (including any associated Right, as defined in and
issued pursuant to the Rights Agreement, dated as of October 27, 1998, as
amended, by and between the Company and The Bank of New York (successor to
First Chicago Trust Company of New York), as Rights Agent.
"CONVERTIBLE SECURITIES" means any stock or securities (directly
or indirectly, after the passage of time or otherwise) convertible into or
exercisable or exchangeable for Common Stock.
"CURRENT MARKET PRICE," when used with reference to shares of
Common Stock or other securities on any date, shall mean the closing price
per share of Common Stock or such other securities on such date and, when
used with reference to shares of Common Stock or other securities for any
period, shall mean the average of the daily closing prices per share of
Common Stock or such other securities for such period. The closing price
for each day shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and asked
prices, regular way, 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 or, if the Common
Stock or such other securities are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading or, if the Common Stock
or such other securities are not listed or admitted to trading on any
national securities exchange, the last quoted sale price or, if not so
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System or such other system
then in use, or, if on any such date the Common Stock or such other
securities are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock or such other securities selected by
the Board of Directors of the Company. If the Common Stock or such other
securities are not publicly held or so listed or publicly traded, "CURRENT
MARKET PRICE" shall mean the fair market value per share of Common Stock or
of such other securities as determined by an independent investment banking
firm with an established national reputation as a valuer of equity
securities selected by the Company and reasonably acceptable to the holders
of a majority of the shares of Preferred Stock outstanding at the time.
"EXERCISE PRICE" shall mean $28.62.
"OPTIONS" means any rights, warrants or options to subscribe for
or purchase Common Stock or Convertible Securities.
"PERSON" or "PERSON" means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state
or political subdivision thereof, trust, municipality or other entity.
"SURVIVING PERSON" shall mean the continuing or surviving Person
of a merger, consolidation or other corporate combination, the Person
receiving a transfer of all or a substantial part of the properties and
assets of the Company, or the Person consolidating with or merging into the
Company in a merger, consolidation or other corporate combination in which
the Company is the continuing or surviving Person, but in connection with
which the Preferred Stock, Series 2 Warrants or Common Stock of the Company
is exchanged or converted into the securities of any other Person or the
right to receive cash or any other property.
"TRADING DAY" shall mean a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to
trading is open for the transaction of business or, if the Common Stock is
not listed or admitted to trading on any national exchange, a Business Day.
Section 5. No Voting Rights; Limitations of Liability. This
Warrant shall not entitle the holder hereof to any voting rights or other
rights as a stockholder of the Company. No provision hereof, in the absence
of affirmative action by the Registered Holder to purchase Common Stock,
and no enumeration herein of the rights or privileges of the Registered
Holder shall give rise to any liability of such holder for the Exercise
Price of Common Stock acquirable by exercise hereof or as a stockholder of
the Company.
Section 6. Warrant Transferable. Subject to the transfer
conditions referred to in the legend endorsed hereon, including the
provisions of the Purchase Agreement, this Warrant and all rights hereunder
are transferable, in whole or in part, without charge to the Registered
Holder, upon surrender of this Warrant with a properly executed Assignment
(in the form of Exhibit I) at the principal office of the Company.
Section 7. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder
at the principal office of the Company, for new Series 2 Warrants of like
tenor representing in the aggregate the purchase rights hereunder, and each
of such new Series 2 Warrants shall represent such portion of such purchase
rights as is designated by the Registered Holder at the time of such
surrender. The date the Company initially issues this Warrant shall be
deemed to be the "DATE OF ISSUANCE" hereof regardless of the number of
times new certificates representing the unexpired and unexercised purchase
rights formerly represented by this Warrant shall be issued. All Series 2
Warrants representing portions of the purchase rights hereunder are
referred to herein as the "SERIES 2 WARRANTS."
Section 8. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or
mutilation of any certificate evidencing the Series 2 Warrants, and in the
case of any such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Company (provided that if the holder is a
financial institution or other institutional investor its own agreement
shall be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Company shall (at its expense) execute
and deliver in lieu of such certificate a new certificate of like kind
representing the number of Series 2 Warrants of such class represented by
such lost, stolen, destroyed or mutilated certificate and dated the date of
such lost, stolen, destroyed or mutilated certificate.
Section 9. Notices. Except as otherwise expressly provided
hereunder, all notices referred to herein shall be in writing and shall be
delivered by registered or certified mail, return receipt requested and
postage prepaid, or by reputable overnight courier service, charges
prepaid, and shall be deemed to have been given when so mailed or sent (i)
to the Company, at its principal executive offices, Attention: General
Counsel and (ii) to any Registered Holder, at such holder's address as it
appears in the stock records of the Company (unless otherwise indicated by
any such holder).
Section 10. Amendment and Waiver. Any provision of this Warrant
may be amended or modified in whole or in part at any time by an agreement
in writing among the Company and the holder of this Warrant. No failure on
the part of either the Company or the holder of this Warrant to exercise,
and no delay in exercising, any right shall operate as a waiver thereof nor
shall any single or partial exercise by either the Company or the holder of
this Warrant of any right preclude any other or future exercise thereof or
the exercise of any other right.
Section 11. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant.
References in this Warrant to Sections and Exhibits are references to
Sections of, and Exhibits to, this Warrant unless otherwise noted. The
corporation laws of the State of Delaware shall govern all issues
concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by the internal law of the
State of Delaware, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of Delaware or any other
jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Delaware.
Section 12. Severability. Should any part of this Warrant for any
reason be declared invalid, such decision shall not affect the validity of
the remaining portion, which remaining portion shall remain in full force
and effect as if this Warrant had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the Company
hereto that it would have executed the remaining portion of this Warrant
without including therein any such parts or parts which may, for any
reason, be hereafter declared invalid.
Section 13. Entire Agreement. This Warrant and the Purchase
Agreement and the documents described herein and therein or attached or
delivered pursuant hereto or thereto set forth the entire agreement between
the Company and the Registered Holder with respect to the transactions
contemplated by this Warrant.
* * * * * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate
seal and to be dated the Date of Issuance hereof.
X.X. XXXXXXXXX CORPORATION
By:
------------------------------------
Name:
Title:
Attest:
------------------------------------
Name:
Title:
EXHIBIT I
ASSIGNMENT
----------
FOR VALUE RECEIVED, ______________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the
attached Warrant (Certificate No. ____) with respect to the number of
shares of the Common Stock, par value $1 per share, of X.X. Xxxxxxxxx
Corporation, a Delaware corporation, covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
----------------- ------- -------------
Signature:
------------------------------------
Address:
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Witness:
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EXHIBIT II
EXERCISE AGREEMENT
------------------
To: X.X. Xxxxxxxxx Corporation Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. ______), hereby agrees to subscribe for the
purchase of ______ shares of the Common Stock, par value $1 per share (the
"COMMON STOCK"), of X.X. Xxxxxxxxx Corporation, a Delaware corporation (the
"COMPANY"), covered by such Warrant and makes payment herewith in full
therefor at the price per share provided by such Warrant.
The undersigned(1) represents to the Company as follows:
(i) such Person (as defined in the Warrant) is an "accredited
investor" within the meaning of Rule 501 of Regulation D promulgated
under the Securities Act of 1933 (the "SECURITIES ACT") and was not
organized for the specific purpose of acquiring the Common Stock
issuable upon exercise thereof;
(ii) such person has sufficient knowledge, sophistication and
experience in financial and business matters as are necessary to
evaluate the risks and merits of an investment in the Company;
(iii) such Person has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's
management;
(iv) the Common Stock being acquired by such Person is being
acquired for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution
thereof; and
(v) such Person understands that (A) none of the shares of Common
Stock issuable upon the exercise of the Warrant have been registered
under the Securities Act and are being issued in reliance upon federal
and state exemptions for transactions not involving any public
offering, (B) the shares of Common Stock issuable upon the exercise of
the Warrant must be held indefinitely unless a subsequent disposition
thereof is registered under the Securities Act or is exempt from such
registration, (C) the shares of Common Stock issuable upon the
exercise of the Warrant will bear a legend to such effect, as
applicable, and (D) the Company will make a notation on its transfer
books to such effect.
[NAME OF PERSON]
By:
------------------------------------
Name:
Title:
Address:
-------------------
(1) In the event that the shares of Common Stock are not issued in the
name of the Person (as defined in the Warrant) in whose name the
Warrant is registered or if the number of shares of Common Stock to be
issued does not include all of the shares purchasable under the
Warrant, then this Exercise Agreement shall be modified to include
applicable language with respect to the provisions of this Exercise
Agreement
