Exhibit 4.6
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of ______________, 1999, between TVI
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and the persons
whose names and addresses are set forth on Schedule I annexed hereto (the
"Holders").
W I T N E S S E T H:
1. Issue. The Company shall issue to each Holder a certificate (the
"Warrant Certificate") dated as of the date hereof providing each such Holder
with the right to purchase, at any time, from _____________, 1999, until 5:30
p.m., New York time, on _______________, the number of Common Shares listed next
to the name of each such Holder on Exhibit I (the "Warrant Shares") (subject to
adjustment as provided in Section 9 hereof), at an exercise price (subject to
adjustment as provided in Section 9 hereof) of $0.8073 per Common Share.
2. Warrant Certificate. The Warrant Certificate to be delivered
pursuant to this Agreement shall be in the form set forth in Exhibit X, attached
hereto and made a part hereof, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement.
3. Exercisability of Warrants. The Warrants shall be exercisable at any
time from ____________, 1999, until 5:30 p.m., New York time, on ______________,
2004.
4. Procedure for Exercise of Warrants.
4.1 Cash Exercise. The Warrants are exercisable at an
aggregate initial exercise price per Common Share set forth in Section
7 hereof payable by certified check or official bank check in New York
Clearing House funds. Upon surrender of a Warrant Certificate with the
annexed Form of Election to Purchase duly executed, together with
payment of the Exercise Price (as hereinafter defined) for the Warrant
Shares purchased, at the Company's principal offices in Albuquerque,
New Mexico (presently located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx) the registered holder of a Warrant Certificate
(individually a "Holder" and sometimes collectively the "Holders")
shall be entitled to receive a certificate for the Warrant Shares so
purchased. The purchase rights represented by the Warrant Certificate
are exercisable at the option of the Holder thereof, in whole or in
part (but not as to fractional Common Shares underlying the Warrants).
In the case of the purchase of less than all the Warrant Shares
purchasable under the 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 Warrant Shares purchasable thereunder.
4.2 Cashless Exercise. In addition to the exercise of all or a
portion of the Warrants by the payment of the Exercise Price in cash or
check as set forth in Section 4.1 above, and in lieu of any such
payment, the Holder has the right to exercise the Warrants, in full or
in part, by surrendering the Warrant Certificate with the annexed Form
of
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Election to Purchase duly executed, in exchange for the number of
Common Shares equal to the product of (x) the number of Common Shares
as to which the Warrants are being exercised multiplied by (y) a
fraction, the numerator of which is the Current Market Price of the
Common Shares (as defined below) less the Exercise Price then in effect
and the denominator of which is the Current Market Price.
4.3 Current Market Price. The term "Current Market Price"
shall mean (i) if the Shares are traded in the over-the-counter market
or on the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ"), the average per Share closing bid prices
on the 20 consecutive trading days immediately preceding the date of
exercise, as reported by NASDAQ or an equivalent generally accepted
reporting service, or (ii) if the Shares are traded on a national
securities exchange, the average for the 20 consecutive trading days
immediately preceding the exercise date of the daily per Share closing
prices on the principal stock exchange on which the Shares are listed,
as the case may be. The closing price referred to in clause (ii) above
shall be the last reported sales price or, if no such reported sale
takes place on such day, the average of the reported closing bid and
asked prices, in either case on the national securities exchange on
which the Shares are then listed.
5. Issuance of Certificate. Upon the exercise of the Warrants, the
issuance of a certificate for Warrant Shares (or Other Securities)
shall be made forthwith (and in any event within five (5) 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 certificate shall (subject to the provisions of
Sections 6 and 8 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 certificate in a name other than that of the Holder and the
Company shall not be required to issue or deliver such certificate
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 Certificate and the certificate representing the
Warrant Shares (or Other Securities) shall be executed on behalf of the
Company by the manual or facsimile signature of the then present
Chairman or Vice Chairman of the Board of Directors or President or any
Vice President of the Company under its corporate seal reproduced
thereon, attested to by the manual or facsimile signature of the then
present Secretary or any Assistant Secretary of the Company. The
Warrant Certificate shall be dated the date of execution by the Company
upon initial issuance, division, exchange, substitution or transfer.
6. Transfer of Warrants. The Holder of the 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. The Warrants may be sold, transferred, assigned, hypothecated
or otherwise disposed of, in whole or in part, without restriction,
subject to compliance with applicable securities laws.
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7. Exercise Price.
7.1 Initial and Adjusted Exercise Price. Except as otherwise
provided in Section 9 hereof, the initial exercise price of each
Warrant shall be the price set forth in Section 1 hereof per Warrant
Shares issued thereunder. 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
Section 9 hereof.
7.2 Exercise Price. The term "Exercise Price" herein shall
mean the initial exercise price or the adjusted exercise price,
depending upon the context.
8. Registration Under the Securities Act of 1933. Subject to the
Registration Rights Agreement between the Company and the Holders dated
as of the date hereof, the Warrants, the Warrant Shares and any of the
Other Securities issuable upon exercise of the Warrants have not been
registered under the Securities Act of 1933, as amended (the "Act").
Upon exercise, in whole or in part, of the Warrants, a certificate
representing the Warrant Shares underlying the Warrants, and any of the
Other Securities issuable upon exercise of the Warrants (collectively,
the "Warrant Securities") shall bear the following legend unless such
Warrant Shares previously have been registered under the Act in
accordance with the terms hereof: THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED ("ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
(i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER
THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION
OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL
TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
9. Adjustments to Exercise Price and Number of Securities. The Exercise
Price and, in some cases, the number of Warrant Shares purchasable upon
the exercise of the Warrants, shall be subject to adjustment from time
to time upon the occurrence of certain events described in this Section
9.
9.1 Subdivision or Combination of Common Shares and Common
Share Dividend. In case the Company shall at any time subdivide its
outstanding Common Shares into a greater number of Common Shares or
declare a dividend upon its Common Shares payable solely in Common
Shares, the Exercise Price in effect immediately prior to such
subdivision or declaration shall be proportionately reduced, and the
number of Warrant Shares issuable upon exercise of the Warrants shall
be proportionately increased. Conversely, in case the outstanding
Common Shares of the Company shall be combined into a smaller number of
Common Shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased, and the number of
Warrant Shares issuable upon exercise of the Warrants shall be
proportionately reduced.
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9.2 Dilutive Issuances. In the event that the Company shall
sell or issue at any time after the date of this Warrant and prior to
its termination, Shares (other than Excluded Shares, as defined in
Section 9.2.5) at a consideration per Share less than $0.8073, then the
Exercise Price shall be adjusted to a new Exercise Price (calculated to
the nearest cent) determined by dividing (a) an amount equal to (i) the
total number of Shares Outstanding (as defined below and subject to
adjustment in the manner set forth in Section 9.1) on the date of
issuance of this Warrant multiplied by the Exercise Price in effect on
the date of issuance of this Warrant (subject, however, to adjustment
in the manner set forth in Section 9.1), plus (ii) the aggregate of the
amount of all consideration, if any, received by the Company for the
issuance or sale of Shares since the date of issuance of this Warrant,
by (b) the total number of Shares Outstanding immediately after such
issuance or sale. In no event shall any such adjustment be made
pursuant to this Section 9.2 if it would increase the Exercise Price in
effect immediately prior to such adjustment, except as provided in
Sections 9.2.3 and 9.2.4. Upon each adjustment of the Exercise Price
pursuant to this Section 9.2, the holder of this Warrant shall
thereafter be entitled to purchase, at the Exercise Price resulting
from such adjustment, the number of Warrant Shares obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof
by the Exercise Price resulting from such adjustment.
9.2.1 Definitions. For purposes of this Section 9.2, the
following definitions shall apply: (a) "Convertible Securities" shall
mean any indebtedness or securities convertible into or exchangeable
for Shares. (b) "Options" shall mean any rights, warrants or options to
subscribe for or purchase Shares or Convertible Securities other than
rights, warrants or options to purchase Excluded Securities (as defined
in Section 9.2.5). (c) "Shares Outstanding" shall mean the aggregate of
all Shares outstanding and all Shares issuable upon exercise of all
outstanding Options and conversion of all outstanding Convertible
Securities.
9.2.2 For the purposes of this Section 9.2, the following
provisions shall also be applicable:
9.2.2.1 Cash Consideration. In case of the issuance
or sale of additional Shares for cash, the
consideration received by the Company therefor shall
be deemed to be the amount of cash received by the
Company for such Shares (or, if such Shares are
offered by the Company for subscription, the
subscription price, or, if such Shares are sold to
underwriters or dealers for public offering without a
subscription offering, the public offering price),
without deducting therefrom any compensation or
discount paid or allowed to underwriters or dealers
or others performing similar services or for any
expenses incurred in connection therewith.
9.2.2.2 Non-Cash Consideration. In case of the
issuance (otherwise than upon conversion or exchange
of Convertible Securities) or sale of additional
Shares, Options or Convertible Securities for a
consideration
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other than cash or a consideration a part of which
shall be other than cash, the fair value of such
consideration as determined by the Board of Directors
(if any, otherwise by the Managers) of the Company in
the good faith exercise of its business judgment,
irrespective of the accounting treatment thereof,
shall be deemed to be the value, for purposes of this
Section 9, of the consideration other than cash
received by the Company for such securities.
9.2.2.3 Options and Convertible Securities. In case
the Company shall in any manner issue or grant any
Options or any Convertible Securities, the total
maximum number of Shares of issuable upon the
exercise of such Options or upon conversion or
exchange of the total maximum amount of such
Convertible Securities at the time such Convertible
Securities first become convertible or exchangeable
shall (as of the date of issue or grant of such
Options or, in the case of the issue or sale of
Convertible Securities other than where the same are
issuable upon the exercise of Options, as of the date
of such issue or sale) be deemed to be issued and to
be outstanding for the purpose of this Section 9.2
and to have been issued for the sum of the amount (if
any) paid for such Options or Convertible Securities
and the amount (if any) payable upon the exercise of
such Options or upon conversion or exchange of such
Convertible Securities at the time such Convertible
Securities first become convertible or exchangeable;
provided that, subject to the provisions of Section
9.2.3, no further adjustment of the Exercise Price
shall be made upon the actual issuance of any such
Shares or Convertible Securities or upon the
conversion or exchange of any such Convertible
Securities. 9.2.3 Change in Option Price or
Conversion Rate. In the event that the purchase price
provided for in any Option referred to in subsection
9.2.2.3, or the rate at which any Convertible
Securities referred to in subsection 9.2.2.3 are
convertible into or exchangeable for Shares shall
change at any time (other than under or by reason of
provisions designed to protect against dilution),
then, for purposes of any adjustment required by
Section 9.2, the Exercise Price in effect at the time
of such event shall forthwith be readjusted to the
Exercise Price that would have been in effect at such
time had such Options or Convertible Securities still
outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the
case may be, at the time initially granted, issued or
sold, provided that if such readjustment is an
increase in the Exercise Price, such readjustment
shall not exceed the amount (as adjusted by Sections
9.1 and 9.2) by which the Exercise Price was
decreased pursuant to Section 9.2 upon the issuance
of the Option or Convertible Security. In the event
that the purchase price provided for in any such
Option referred to in subsection 9.2.2.3, or the
additional consideration (if any) payable upon the
conversion or exchange of any Convertible Securities
referred to in subsection 9.2.2.3, or the rate at
which any Convertible Securities referred to in
subsection 9.2.2.3 are convertible into or
exchangeable for Shares,
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shall be reduced at any time under or by reason of
provisions with respect thereto designed to protect
against dilution, then in case of the delivery of
Shares upon the exercise of any such Option or upon
conversion or exchange of any such Convertible
Security; the Exercise Price then in effect hereunder
shall, upon issuance of such Shares, be adjusted to
such amount as would have obtained had such Option or
Convertible Security never been issued and had
adjustments been made only upon the issuance of the
Shares delivered as aforesaid and for the
consideration actually received for such Option or
Convertible Security and the Shares, provided that if
such readjustment is an increase in the Exercise
Price, such readjustment shall not exceed the amount
(as adjusted by Sections 9.1 and 9.2) by which the
Exercise Price was decreased pursuant to Section 9.2
upon the issuance of the Option or Convertible
Security.
9.2.3 Termination Of Option or Conversion Rights. In the
event of the termination or expiration of any right
to purchase Shares under any Option granted after the
date of this Warrant or of any right to convert or
exchange Convertible Securities issued after the date
of this Warrant, the Exercise Price shall, upon such
termination, be readjusted to the Exercise Price that
would have been in effect at the time of such
expiration or termination had such Option or
Convertible Security, to the extent outstanding
immediately prior to such expiration or termination,
never been issued, and the Shares issuable thereunder
shall no longer be deemed to be Shares Outstanding,
provided that if such readjustment is an increase in
the Exercise Price, such readjustment shall not
exceed the amount (as adjusted by Sections 9.1 and
9.2) by which the Exercise Price was decreased
pursuant to Section 9.2 upon the issuance of the
Option or Convertible Security. The termination or
expiration of any right to purchase Shares under any
Option granted prior to the date of this Warrant or
of any right to convert or exchange Convertible
Securities issued prior to the date of this Warrant
shall not trigger any adjustment to the Exercise
Price, but the Shares issuable under such Options or
Convertible Securities shall no longer be counted in
determining the number of Shares Outstanding on the
date of issuance of this Warrant for purposes of
subsequent calculations under this Section 9.2.
9.2.4 Excluded Shares. Notwithstanding anything herein to
the contrary, the Exercise Price shall not be
adjusted pursuant to this Section 9.2 by virtue of
the issuance and/or sale of Excluded Shares, which
shall mean the following: (a) Shares issuable upon
the exercise of the Warrants; (b) Shares, Options or
Convertible Securities to be issued and/or sold to
employees, advisors (including, without limitation,
financial, technical and legal advisers), directors,
or officers of, or consultants to, the Company or any
of its subsidiaries pursuant to a share grant, share
option plan, share purchase plan, pension or profit
sharing plan or other share agreement or arrangement
existing as of the date hereof or approved by the
Company's
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Board of Directors (if any, otherwise by the
Managers); (c) the issuance of Shares, Options and/or
Convertible Securities pursuant to Options and
Convertible Securities outstanding as of the date of
this Warrant; (d) the issuance of Shares, Options or
Convertible Securities as a share dividend or upon
any subdivision or combination of Shares or
Convertible Securities; (e) the issuance of Shares,
Options or Convertible Securities in connection with
strategic partnerships or other business and/or
product consolidations or joint ventures and (f) the
issuance of Shares, Options or Convertible Securities
by the Company in connection with a contemplated
equity financing currently in progress as of the date
hereof. For all purposes of this Section 9.2, all
Shares of Excluded Shares shall be deemed to have
been issued for an amount of consideration per Share
equal to the initial Exercise Price (subject to
adjustment in the manner set forth in Section 9.1).
In addition, if the amount of any adjustment pursuant
to this Section 9 shall be less than two cents (24)
per Warrant Share no adjustment to the Exercise Price
or to the number of Warrant Shares issuable upon the
exercise of the Warrants shall be made; provided,
however, that in such case any adjustment that would
otherwise be required then to be made shall be
carried forward and shall be made at the time of and
together with the next subsequent adjustment which,
together with any adjustment so carried forward,
shall amount to at least two cents (24) per Warrant
Share.
9.3 Notice of Adjustment. Promptly after adjustment of the Exercise
Price or any increase or decrease in the number of Warrant Shares purchasable
upon the exercise of this Warrant, the Company shall give written notice
thereof, by first class mail, postage prepaid, addressed to the registered
holder of this Warrant at the address of such holder as shown on the books of
the Company. The notice shall be signed by the Company's chief financial officer
and shall state (i) the effective date of the adjustment and the Exercise Price
resulting from such adjustment and (ii) the increase or decrease, if any, in the
number of Common Shares purchasable at such price upon the exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
9.4 Other Notices. If at any time: (a) the Company shall declare any
cash dividend upon its Common Shares; (b) the Company shall declare any dividend
upon its Common Shares payable in securities (other than a dividend payable
solely in Common Shares) or make any special dividend or other distribution to
the holders of its Common Shares; (c) there shall be any consolidation or merger
of the Company with another corporation, or a sale of all or substantially all
of the Company's assets to another corporation; or (d) 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, by certified or
registered mail, postage prepaid, addressed to the registered holder of this
Warrant at the address of such holder as shown on the books of the Company, (i)
at least 15 days' prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
dissolution, liquidation or winding-up; (ii) at least 10 days' prior written
notice of the date on which the books of the Company shall
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close or a record shall be taken for determining rights to vote in respect of
any such reorganization, reclassification, consolidation, merger or sale, and
(iii) in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, at least 15 days' written
notice of the date when the same shall take place. Any notice given in
accordance with clause (i) above shall also specify, in the case of any such
dividend, distribution or option rights, the date on which the holders of Common
Shares shall be entitled thereto. Any notice given in accordance with clause
(iii) above shall also specify the date on which the holders of Common Shares
shall be entitled to exchange their Common Shares for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, as the case may be. If the
Holder of the Warrant does not exercise this Warrant prior to the occurrence of
an event described above, except as provided in Sections 9.1 and 9.5, the Holder
shall not be entitled to receive the benefits accruing to existing holders of
the Common Shares in such event.
9.5 Changes in Common Shares. In case at any time the Company shall be
a party to any transaction (including, without limitation, a merger,
consolidation, sale of all or substantially all of the Company's assets or
recapitalization of the Common Shares) in which the previously outstanding
Common Shares shall be changed into or exchanged for different securities of the
Company or common stock or other securities of another corporation or interests
in a non-corporate entity or other property (including cash) or any combination
of any of the foregoing (each such transaction being herein called the
"Transaction" and the date of consummation of the Transaction being herein
called the "Consummation Date"), then, as a condition of the consummation of the
Transaction, lawful and adequate provisions shall be made so that each Holder,
upon the exercise hereof at any time on or after the Consummation Date, shall be
entitled to receive, and this Warrant shall thereafter represent the right to
receive, in lieu of the Common Shares issuable upon such exercise prior to the
Consummation Date, the highest amount of securities or other property to which
such Holder would actually have been entitled as a holder of an Common Shares
upon the consummation of the Transaction if such Holder had exercised such
Warrant immediately prior thereto. The provisions of this Section 9.5 shall
similarly apply to successive Transactions.
10. Exchange and Replacement of Warrant Certificate. The 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 Warrant 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 of the loss, theft,
destruction or mutilation of the Warrant Certificate, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of the Warrants, if mutilated, the Company
will make and deliver a new Warrant Certificate of like tenor, in lieu thereof.
11. Elimination of Fractional Interests. The Company shall not be required to
issue certificates representing fractions of Common Shares upon the exercise of
the Warrants, nor shall it be required to issue scrip or pay cash in lieu of
fractional interests, it being the intent of the
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parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of Common Shares or Other Securities.
12. Reservation of Securities. The Company shall at all times reserve and keep
available out of its authorized Common Shares, solely for the purpose of
issuance upon the exercise of the Warrants, such number of Common Shares or
Other Securities as shall be issuable upon the exercise thereof. The Company
covenants and agrees that, upon exercise of the Warrants and payment of the
Exercise Price therefor, all Common Shares or Other Securities issuable upon
such exercise shall be duly and validly issued, fully paid, non-assessable and
not subject to the preemptive rights of any holder of Common Shares.
13. Notices to Warrant Holder. Except as otherwise provided in Section 9.4,
nothing contained in this Agreement shall be construed as conferring upon the
Holder by virtue of his holding the Warrant the right to vote or to consent or
to receive notice as a holder of Common Shares in respect of any meetings of
such holders for the election of directors or any other matter, or as having any
rights whatsoever as such a holder of the Company.
14. Notices. All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made and sent when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the 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 4 hereof or to such other address as the Company may
designate by notice to the Holder.
15. Supplements and Amendments. The Company and Holder may from time to time
supplement or amend this Agreement in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or inconsistent
with any provisions herein, or to make any other provisions in regard to matters
or questions arising hereunder which the Company and Holder may deem necessary
or desirable.
16. Successors. All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Holder and their
respective successors and assigns hereunder.
17. Termination. This Agreement shall terminate at the close of business on the
tenth anniversary of the issuance of the Warrants.
18. Governing Law. This Agreement and the Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of New York
and for all purposes shall be construed in accordance with the laws of the State
of New York without giving effect to the rules of the State of New York
governing the conflicts of laws.
19. Entire Agreement; Modification. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and may not be modified or amended except by a writing duly signed by the
party against whom enforcement of the modification or amendment is sought.
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20. Severability. If any provision of this Agreement shall be held to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Agreement.
21. Captions. The caption headings of the Sections of this Agreement are for
convenience of reference only and are not intended, nor should they be construed
as, a part of this Agreement and shall be given no substantive effect.
22. Benefits of this Agreement. Nothing in this Agreement shall be construed to
give to any person or corporation other than the Company and Holder 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 Holder.
23. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed, as of the day and year first above written.
Very truly yours,
TRUEVISION INTERNATIONAL, INC.
By:
-------------------------------
Authorized Officer
ACCEPTED AND AGREED TO: INVESTOR:
--------------------------------------------
Name: Address: Social Security/Tax I.D. No.:
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TRUEVISION INTERNATIONAL, INC.
SCHEDULE I
Investor (Name) No. of Warrant Shares
--------------- ---------------------
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[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i)
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE. EXERCISABLE FROM ________________, 1999 UNTIL 5:30 P.M., NEW YORK
TIME, _____________, 2003
WARRANT CERTIFICATE
This Warrant Certificate certifies that or his/her registered
assigns ("Holder"), is the registered holder of [ ] Warrants to purchase
initially at any time from _____________, 1999, until 5:30 p.m. New York time
on _____________________, 2004 ("Expiration Date"), up to [ ] fully-paid
and non-assessable shares of common stock, par value $.0001 per share
("Common Shares") of TRUEVISION INTERNATIONAL, INC., a Delaware corporation
(the "Company"), at an initial exercise price, subject to adjustment in
certain events (the "Exercise Price"), equal to $8.40 per Common Share, upon
surrender of this Warrant Certificate and payment of the initial 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 the date hereof
between the Company and Holder (the "Warrant Agreement"). Payment of the
Exercise Price shall be made by certified check or official bank check in New
York Clearing House funds payable to the order of the Company, unless
exercise is made pursuant to Section 4.2 of the Warrant Agreement. No Warrant
may be exercised after 5:30 p.m., New York time, on the Expiration Date, at
which time all Warrants evidenced hereby, unless exercised prior thereto,
shall thereafter be void. 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 for
a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the Holder (the word "Holder"
meaning the registered holder) of the Warrants. The Warrant Agreement
provides that upon the occurrence of certain events the Exercise Price and
the type 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 Certificate 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,
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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
with such transfer. 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 meanings assigned to them in the Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated as of , 1999
----------------
TRUEVISION INTERNATIONAL, INC.
----------------------------------
By: /s/ Xxxx X. Xxxxx
Authorized Officer
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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 _______ Common Shares and
herewith tenders in payment for such securities a certified check or official
bank check payable in New York Clearing House Funds to the order of TRUEVISION
INTERNATIONAL, INC. in the amount of $_____, all in accordance with the terms of
Section 4 of the Warrant Agreement dated as of __________________, 1999, between
TRUEVISION INTERNATIONAL, INC. and the undersigned (or its assignor). The
undersigned requests that a certificate for such securities 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)
[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:________________________ SSN:__________________________
(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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