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EXHIBIT 10.31
PREFERRED WARRANT AGREEMENT
PREFERRED WARRANT AGREEMENT dated as of October 12, 1999, between
Xxxxxxxx Manufacturing Company, Inc., a Texas corporation (the "COMPANY"), and
the investors listed on Schedule A attached hereto (individually, an "INITIAL
HOLDER" and collectively, the "INITIAL HOLDERS").
WITNESSETH:
WHEREAS, the Company proposes to issue to the Initial Holders warrants
("WARRANTS") to purchase up to 1,013,974 shares (the "SHARES") of common stock
of the Company, no par value (the "COMMON STOCK"), in connection with that
certain Series D Preferred Stock and Warrant Purchase Agreement dated as of
October 12, 1999 between the Company and the Initial Holders (as amended,
supplemented or otherwise modified from time to time, the "PURCHASE AGREEMENT")
pursuant to which the Initial Holders will receive 50,000 shares of Series D
Preferred Stock (the "SERIES D PREFERRED STOCK") and the Warrants in exchange
for five million dollars ($5,000,000) in cash;
WHEREAS, the Warrants and the Shares will be subject to certain
provisions in the Amended and Restated Securityholders Agreement dated as of
September 19, 1999 among the Company, the Initial Holders and the other persons
party thereto, as amended by the First Amendment to Amended and Restated
Securityholders Agreement dated as of September 28, 1999 (the "Securityholders
Agreement").
NOW, THEREFORE, in consideration of the agreements herein set forth
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Grant.
The Initial Holders or their designated affiliates are hereby granted
the right to purchase, at any time from and after the date hereof, until 5:00
P.M., Pacific Standard Time, on September 30, 2007 (subject to Section 16
hereof, the "Warrant Exercise Term"), up to 1,013,974 Shares at an initial
exercise price (subject to adjustment as provided in Article 7 hereof) of $.01
per Share. Concurrently with the delivery of this Warrant and the Series D
Preferred Stock, the Initial Holders have paid $5,000,000 to the Company and the
Company hereby acknowledges receipt of such payment.
2. Warrant Certificates.
The warrant certificates (the "Warrant Certificates") delivered and to
be delivered pursuant to this Agreement shall be in the form set forth as
Exhibit A, attached hereto and made a part hereof, with such appropriate
insertions, omissions, substitutions and other variations as required or
permitted by this Agreement.
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3. Exercise of Warrants.
The Warrants initially are exercisable at a price of $.01, subject to
adjustment as provided in Article 7 hereof, per Share. Upon surrender of a
Warrant Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price for the Shares purchased, at the
Company's principal offices (located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx
76017) the registered holder of a Warrant Certificate ("Holder" or "Holders")
shall be entitled to receive a certificate or certificates for the Shares so
purchased. Payment of the Exercise Price may be made, at the option of the
Holder: (a) by cash, money order, certified or bank cashier's check or wire
transfer, (b) the surrender to the Company of securities of the Company having a
value equal to the aggregate Exercise Price, as determined in good faith by the
Company's board of directors, or (c) the delivery of a notice to the Company
that the Holder is exercising this Warrant by authorizing the Company to reduce
the number of shares of Common Stock subject to this Warrant by the number of
shares having an aggregate value equal to the aggregate Exercise Price, as
determined in good faith by the Company's board of directors. The purchase
rights represented by each Warrant Certificate are exercisable at the option of
the Holder thereof, in whole or in part (but not as to fractional shares of the
Common Stock). In the case of the purchase of less than all the Shares
purchasable under any Warrant Certificate, the Company shall cancel said Warrant
Certificate upon the surrender thereof and shall execute and deliver a new
Warrant Certificate of like tenor for the balance of the Shares purchasable
thereunder.
4. Issuance of Certificates.
Upon the exercise of the Warrants, the issuance of certificates for
the Shares shall be made forthwith (and in any event within ten business days
thereafter) without charge to the Holder thereof including, without limitation,
any tax which may be payable in respect of the issuance thereof, and such
certificates shall (subject to the provisions of Article 5 hereof) be issued in
the name of, or in such names as may be directed by, the Holder thereof;
provided, however, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and delivery
of any such certificates in a name other than that of the Holder and the Company
shall not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Shares
shall be executed on behalf of the Company by the manual or facsimile signature
of duly authorized officers of the Company. Warrant Certificates shall be dated
the date of execution by the Company upon initial issuance, division, exchange,
substitution or transfer.
The Warrant Certificates and, upon exercise of the Warrants, in part
or in whole, certificates representing the Shares shall bear a legend
substantially similar to the following:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT
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BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION OR NO-ACTION LETTER
ISSUED BY THE SECURITIES AND EXCHANGE COMMISSION THAT SUCH REGISTRATION IS
NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT. THIS SECURITY
IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
SECURITYHOLDERS AGREEMENT, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST
FROM XXXXXXXX MANUFACTURING COMPANY, INC. AND ANY SUCCESSOR THERETO."
If any Warrant Certificates or the certificates representing the
Shares cease to be subject to any and all restrictions on transfer set forth in
the Securityholders Agreement, the Company shall, upon the written request of
the holder thereof, issue to such holder without charging therefor a new
certificate evidencing such Warrant Certificates or the certificates
representing the Shares of the Company without the second sentence of the legend
required by the above legend endorsed thereon.
5. Restriction on Transfer of Warrants.
The Holder of a Warrant Certificate, by its acceptance thereof,
covenants and agrees that the Warrants are being acquired as an investment and
not with a view to the distribution thereof, and that neither the Warrants nor
the shares of Common Stock issuable upon exercise hereof may be sold,
transferred, assigned, hypothecated or otherwise disposed of, in whole or in
part, unless and until:
(a) There is then in effect a registration statement under the
Securities Act of 1933, as amended (the "Act"), covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or
(b) (i) The Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and (ii) the Holder shall
have furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration of such
shares under the Act. The Company agrees that it will not require opinions of
counsel for transactions made pursuant to Rule 144.
(c) Notwithstanding the provisions of subsections (a) and (b) above,
no such registration statement or opinion of counsel shall be necessary for a
transfer by a Holder that is a partnership to a partner of such partnership or a
retired partner of such partnership who retires after the date hereof, or to the
estate of any such partner or retired partner or the transfer by gift, will or
intestate succession of any partner to his or her spouse or to the siblings,
lineal descendants or ancestors of such partner or his or her spouse, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he or she were the original Holder of the transferred Warrant
Certificate. The foregoing provisions of this subsection (c) shall apply to
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Holders which are limited liability companies and their members, as if the term
"partner" was replaced by the term "member" and the term "partnership" was
replaced with the term "limited liability company" in each instance.
(d) Notwithstanding anything herein to the contrary, the Warrants and
any Shares issued upon exercise of the Warrants shall constitute Equity
Securities under the Securityholders Agreement and the Holder thereof shall be
subject to the terms of the Securityholders Agreement, including the
restrictions on the transfer thereof set forth in the Securityholders Agreement.
6. Price.
6.1 Initial and Adjusted Exercise Price. The initial exercise price of
each Warrant shall be $.01 per Share. The adjusted exercise price shall be the
price which shall result from time to time from any and all adjustments of the
initial exercise price in accordance with the provisions of Article 7 hereof.
6.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
7.1 Registration under the Securities Act of 1933. The Warrants and
the Shares have not been registered for purposes of public distribution under
the Act.
7.2 Registrable Stock. As used herein the term "Registrable Stock"
shall have the meaning set forth in the Securityholders Agreement.
7.3 Registration Rights. Each Holder of Shares received in connection
with the exercise of the Warrants hereunder shall have the registration rights
set forth in Article VI of the Securityholders Agreement, which by this
reference is incorporated by reference herein.
8. Adjustment of Exercise Price and Number of Shares.
The number and kind of securities issuable upon exercise of this Warrant
and the Exercise Price therefor shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
8.1 Stock Splits and Combinations. If the Company at any time or from
time to time after the date hereof effects a subdivision of the outstanding
Common Stock pursuant to a stock split or similar event, the Exercise Price of
this Warrant shall be proportionately decreased, and conversely, if the Company
at any time or from time to time after the date hereof combines the outstanding
shares of Common Stock into a smaller number of shares in a reverse stock split
or similar event, the Exercise Price of this Warrant shall be proportionately
increased. Upon the adjustment of the Exercise Price pursuant to the foregoing
provisions, the number of shares of Common Stock subject to the exercise of this
Warrant shall be adjusted to the nearest full share by multiplying the number of
shares subject to this Warrant by a fraction, the numerator of which
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is the Exercise Price immediately prior to such adjustment and the denominator
of which is the Exercise Price immediately after such adjustment. Any adjustment
under this Section 8.1 shall be effective at the close of business on the date
the subdivision or combination becomes effective.
8.2 Adjustment for Reorganization, Consolidation, Merger. In any
reorganization of the Company (or any other corporation stock or other
securities of which are at the time receivable upon exercise of this Warrant)
after the date hereof, or in case, after such date, the Company (or any such
other corporation) shall merge into or with or consolidate with another
corporation or sell or convey all or substantially all of its assets to another
corporation, then and in each such case, Holder, upon exercise of this Warrant
at any time after the consummation of such reorganization, consolidation,
merger, sale or conveyance, shall be entitled to receive, in lieu of the stock
or other securities and property to which such Holder would be entitled had it
exercised this Warrant immediately prior thereto, such stock, securities or
other property which such Holder would have received had it exercised this
Warrant immediately prior to such reorganization, merger, consolidation or sale
of assets, all subject to further adjustment as provided in this Article 8.
9. Exchange and Replacement of Warrant Certificates.
Each Warrant Certificate is exchangeable without expense, upon the
surrender thereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Shares in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
and its counsel of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in case of loss, theft or destruction, of reasonable indemnity
(which in the case of an institutional Holder shall be an unsecured indemnity
agreement) and, in case of mutilation, upon surrender and cancellation of the
Warrant Certificate, the Company will execute and deliver, in lieu thereof, a
new Warrant Certificate of like tenor representing the same rights as the lost,
stolen, destroyed or mutilated Warrant Certificate.
10. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of shares of Common Stock and shall not be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction to
the nearest whole number of shares of Common Stock.
11. Reservation and Listing of Securities.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrants, such number of shares of Common Stock as shall be
issuable upon the exercise thereof. The
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Company covenants and agrees that, upon exercise of the Warrants and payment of
the Exercise Price therefor, all shares of Common Stock issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any shareholder. As long as the Warrants
shall be outstanding, from and after the date on which the Company's Common
Stock is listed on or quoted by NASDAQ or listed on a national securities
exchange the Company shall use its best efforts to cause all shares of Common
Stock issuable upon the exercise of the Warrants to be listed on or quoted by
NASDAQ or listed on such national securities exchanges as the Company's Common
Stock is then listed.
12. Notices to Warrant Holders.
Nothing contained in this Agreement shall be construed as conferring
upon the Holder or Holders the right to vote or to consent or to receive notice
as a shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the expiration of
the Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed; or
(d) reclassification or change of the outstanding shares of Common
Stock (other than a change in par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), consolidation of the
Company with, or merger of the Company into, another corporation (other than a
consolidation or merger in which the Company is the surviving corporation and
which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or a sale or
conveyance to another corporation of the property of the Company as an entirety
is proposed; or
(e) The Company or an affiliate of the Company shall propose to issue
any rights to subscribe for shares of Common Stock or any other securities of
the Company or of such affiliate to all the shareholders of the Company;
then, in any one or more of said events, the Company shall give written notice
of such event at least ten (10) days prior to the date fixed as a record date or
the date of closing the transfer books
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for the determination of the shareholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription rights,
options or warrants, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend or
distribution, or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when delivered,
or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Warrants, to the address of such
Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 of this
Agreement or to such other address as the Company may designate by notice to the
Holders.
14. Waiver; Amendments.
Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought.
15. Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Company and the Holders inure to the benefit of their respective
successors and assigns hereunder.
16. Notice of Expiration.
The Company will give the holders of the Warrants no less than ninety
(90) days notice of the expiration of the right to exercise the Warrant. The
right to exercise the Warrant shall expire at the termination of the Warrant
Exercise Term unless the Company shall fail to give such notice as aforesaid, in
which event the right to exercise the Warrants shall not expire until 5:00 p.m.,
Texas Time, on a date thirty (30) days after the date on which the Company shall
give the holder notice of the expiration of the right to exercise these
Warrants.
17. Governing Law.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Texas and for all
purposes shall be construed in accordance with the laws of said State.
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18. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and the registered holder or holders of the
Warrant Certificates, Warrants or the Shares any legal or equitable right,
remedy or claim under this Agreement; and this Agreement shall be for the sole
and exclusive benefit of the Company and the holders of the Warrant
Certificates, Warrants or the Shares.
19. Counterparts.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
"THE COMPANY"
XXXXXXXX MANUFACTURING
COMPANY, INC.,
a Texas corporation
By:
--------------------
Name:
--------------------
Its:
--------------------
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WESTAR CAPITAL II, LLC
By: Westar Capital Associates II, LLC
By:
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Its: Member
---------------------------------
X-0
00
XXX FINANCIAL INC.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Its: Chairman of the Board and President
-----------------------------------
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TWELVE D LIMITED, A TEXAS LIMITED
PARTNERSHIP
By: Cyclone Tours, Inc.
Its: General Partner
By:
-------------------------
Name: Xxxxxxxx X. Xxxxxxxx, Xx.
-------------------------
Its: President
-------------------------
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Schedule A
Name Address
---- -------
Westar Capital II, LLC 000 Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
HBI Financial Inc. x/x Xxxxxx & Xxxxxxx XXX
X.X. Xxxx Xxxxxx, Xxxxx 000
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.:
Twelve D Limited 0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Schedule A-1
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EXHIBIT A
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER SAID
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION OR NO-ACTION LETTER
ISSUED BY THE SECURITIES AND EXCHANGE COMMISSION THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT. THIS SECURITY IS ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
SECURITYHOLDERS AGREEMENT, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
XXXXXXXX MANUFACTURING COMPANY, INC. AND ANY SUCCESSOR THERETO.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., PACIFIC STANDARD TIME, SEPTEMBER 30, 2007
No. ______ [________] Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ___________________ or registered
assigns, is the registered holder of [___________] Warrants to purchase, at any
time from and after October 12, 1999 until 5:00 P.M. Pacific Standard Time on
September 30, 2007 ("Expiration Date"), up to [___________] shares ("Shares") of
fully-paid and non-assessable common stock, no par value ("Common Stock"), of
Xxxxxxxx Manufacturing Company, Inc., a Texas corporation (the "Company"), at
the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $.01 per Share upon surrender of this Warrant Certificate
and payment of the Exercise Price at an office or agency of the Company, but
subject to the conditions set forth herein and in the Warrant Agreement dated as
of October 13, 1999 between the Company and the initial holders party thereto
(the "Warrant Agreement"). This Warrant shall be exercisable for a number of
shares of Common Stock and at the Exercise Price set forth in the Warrant
Agreement. Payment of the Exercise Price may be made in cash, or by certified or
official bank check payable to the order of the Company, or any combination of
cash or check, or in any of the other means set forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 P.M., Pacific Standard Time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
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The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to in a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and/or number of the Company's securities issuable thereupon
may, subject to certain conditions, be adjusted. In such event, the Company
will, at the request of the holder, issue a new Warrant Certificate evidencing
the adjustment in the Exercise Price and the number and/or type of securities
issuable upon the exercise of the Warrants; provided, however, that the failure
of the Company to issue such new Warrant Certificates shall not in any way
change, alter, or otherwise impair, the rights of the holder as set forth in the
Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax, or other governmental charge
imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the Warrant
Agreement shall have the meaning assigned to them in the Warrant Agreement. All
rights evidenced by this Warrant Certificate are subject to the terms and
conditions of the Warrant Agreement. In the event of any conflict between the
terms and conditions of the Warrant Agreement and the terms and conditions of
this Warrant Certificate, the terms and conditions of the Warrant Agreement
shall govern and control.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: October 12, 1999 XXXXXXXX MANUFACTURING COMPANY, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Attest:
----------------------------
Secretary
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[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ________ Shares and
herewith tenders in payment for such Shares cash or a certified or official bank
check payable to the order of Xxxxxxxx Manufacturing Company, Inc. in the amount
of $______________, all in accordance with the terms hereof. [Alternative
instructions may be provided in the event of a cashless exercise in accordance
with Article 3 of the Warrant Agreement.] The undersigned requests that a
certificate for such Shares be registered in the name of
_________________________, whose address is _________________
______________________, and that such Certificate be delivered to
______________________,whose address is ______________________________________.
Dated: Signature:
------------- ----------------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
----------------------------------
----------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
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[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ____________________________________ hereby sells,
assigns and transfers unto ________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________________,
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of Substitution.
Dated: Signature:
------------- ------------------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate)
--------------------------------
--------------------------------
(Insert Social Security or Other
Identifying Number of Assignee)
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