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EXHIBIT C
FORM OF WARRANT AGREEMENT
THE WARRANT REPRESENTED HEREBY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933 OR APPLICABLE STATE SECURITIES LAWS, UNLESS THE COMPANY HAS RECEIVED THE
WRITTEN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH COUNSEL IS OF
THE OPINION THAT SUCH SALE, ASSIGNMENT OR TRANSFER DOES NOT INVOLVE A
TRANSACTION REQUIRING THE REGISTRATION OF SUCH SECURITY UNDER THE SECURITIES ACT
OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
RIGHT TO PURCHASE _____ SHARES OF COMMON STOCK
OF ACRODYNE COMMUNICATIONS, INC.
ACRODYNE COMMUNICATIONS, INC.
COMMON STOCK PURCHASE WARRANT
ACRODYNE COMMUNICATIONS, INC., a Delaware corporation (the "Company"),
having its principal executive offices at 000 Xxxxxxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxxxx 00000, hereby certifies that, for value received, [_______] or
assigns (the "Holder" or "Holders"), having its address at
[________________________ ], is entitled, subject to the terms set forth below,
to purchase from the Company at any time or from time to time before 5:00 P.M.,
New York time, on August __, 2005, _________________(__) fully paid and
nonassessable shares of Common Stock of the Company at an exercise price,
subject to adjustment, of Three Dollars ($3.00) per share (the "Purchase
Price").
1. EXERCISE OF WARRANT.
(a) Exercise. Commencing on the date of this Warrant, or from time
to time thereafter prior to the expiration hereof, this Warrant may be exercised
in whole or in part by the holder hereof by surrender of this Warrant, with the
form of subscription attached as Exhibit A hereto duly executed by such holder,
to the Company at its principal office, accompanied by payment, in cash or by
certified or official bank check payable to the order of the Company, in the
amount obtained by multiplying the number of shares of Common Stock for which
this Warrant is then exercisable by the Purchase Price then in effect.
(b) Trustee for Warrant Holders. In the event that a bank or trust
company has been appointed as trustee for the holder of this Warrant pursuant to
Section
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3.2, such bank or trust company will have all the powers and duties of a warrant
agent appointed pursuant to Section 11 and will accept, in its own name for the
account of the Company or such successor person as may be entitled thereto, all
amounts otherwise payable to the Company or such successor, as the case may be,
on exercise of this Warrant pursuant to this Section 1.
2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within (ten) 10 days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof, or as such holder (upon payment by the
Company of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock to which such holder is entitled upon such exercise.
3. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION OR MERGER.
(a) Reorganization, Consolidation or Merger. In case, at any time or
from time to time, the Company (a) effects a reorganization, (b) consolidates
with or merges into any other person or (c) transfers all or substantially all
of its properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, the
holder of this Warrant, on the exercise hereof as provided in Section 1 at any
time after the consummation of such reorganization, consolidation or merger or
the effective date of such dissolution, as the case may be, will receive, in
lieu of the Common Stock issuable on such exercise prior to such consummation or
such effective date, the stock and other securities and property (including
cash) to which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in Section 4.
(b) Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, will at its expense deliver or cause to
be delivered the stock and other securities and property (including cash, where
applicable) receivable by the holder of this Warrant after the effective date of
such dissolution pursuant to this Section 3 to a bank or trust company, as
trustee for the holder of this Warrant, and will promptly notify each holder of
the Warrants of the occurrence of any events specified in this Section 3.
(c) Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 3, this Warrant will continue in full force and effect and the
terms hereof will be applicable to all securities and other property receivable
on the exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any such
transfer, as the case may be, and will be binding upon the issuer of any such
stock or other securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of the
Company, whether or not such person has expressly assumed the terms of this
Warrant.
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4. ADJUSTMENTS FOR STOCK DIVIDENDS AND STOCK SPLIT. In the event
that the Company (a) issues additional shares of Common Stock as a dividend or
other distribution on outstanding Common Stock, (b) subdivides its outstanding
shares of Common Stock or (c) combines its outstanding shares of Common Stock
into a smaller number of shares of Common Stock, then, in each such event, the
Purchase Price will, simultaneously with the happening of such event, be
adjusted by multiplying the then prevailing Purchase Price by a fraction, the
numerator of which will be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which will be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained will hereafter be the Purchase Price then in effect. The
Purchase Price, as so adjusted, will be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 4.
The holder of this Warrant will thereafter, on the exercise hereof as provided
in Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 4) be issuable on such
exercise, by a fraction of which (i) the numerator is the Purchase Price which
would otherwise (but for the provisions of this Section 4) be in effect, and
(ii) the denominator is the Purchase Price in effect on the date of such
exercise.
5. NOTICES OF RECORD DATE, ETC.
In the event of:
(a) the Company's taking a record of the holders of its Common Stock
(or other securities at the time receivable upon the exercise of the Warrant)
for the purpose of entitling such holders to receive any dividend (other than a
cash dividend payable out of earned surplus) or other distribution, or any right
to subscribe for, purchase or otherwise acquire any shares of stock of any class
or any other securities, or to receive any other right; or
(b) any capital reorganization of the Company (other than a stock
split or reverse stock split), any reclassification of the capital stock of the
Company, any consolidation or merger of the Company with or into another
corporation (other than a merger for purposes of change of domicile) or any
conveyance of all or substantially all of the assets of the Company to another
corporation; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders at the time outstanding a notice specifying, as the case may
be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right and the amount and character of such dividend,
distribution or right or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, is to be fixed, as to which
the holders of record of Common Stock (or such other securities at the time
receivable
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upon the exercise of the Warrant) will be entitled to exchange their shares of
Common Stock (or such other securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up. Such notice will be mailed
at least twenty (20) days prior to the date therein specified and this Warrant
may be exercised prior to said date during the term of the Warrant but no later
than five days prior to said date.
6. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
not increase the par value of any shares of stock receivable on the exercise of
the Warrant above the amount payable therefor on such exercise and (b) will take
all such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of stock on the
exercise of this Warrant from time to time outstanding.
7. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT. The Company
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of the Warrant, all shares of Common Stock from time to time
issuable on the exercise of the Warrant.
8. EXCHANGE OF WARRANT. On surrender for exchange of this Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (on payment by such
holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock for which the
Warrant or Warrants may still be exercised.
9. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
10. WARRANT AGENT. The Company may, by written notice to each holder
of a Warrant, appoint an agent for the purpose of issuing the Common Stock on
the exercise of the Warrant pursuant to Section 1, exchanging this Warrant
pursuant to Section 8 and replacing this Warrant pursuant to Section 9, or any
of the foregoing, and thereafter any such issuance, exchange or replacement, as
the case may be, will be made at such office by such agent.
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11. NEGOTIABILITY; RESTRICTIONS ON TRANSFER; WARRANT HOLDER NOT
DEEMED STOCKHOLDER. This Warrant is issued upon the following terms, to all of
which each holder or owner hereof by the taking hereof consents and agrees:
(a) No holder of this Warrant will, as such, be entitled to vote or
to receive dividends or to be deemed the holder of any class of security that
may at any time be issuable upon exercise of the Warrant for any purpose
whatsoever, nor will anything contained herein be construed to confer upon such
holder, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issue or reclassification
of stock, change of par value or change of stock to no par value, consolidation,
merger or conveyance or otherwise), or to receive notice of meetings or to
receive dividends or subscription rights, until such holder has exercised the
Warrant and been issued shares of Common Stock in accordance with the provisions
hereof; and
(b) Neither this Warrant nor any shares of Common Stock purchased
pursuant to this Warrant have been registered under the Securities Act of 1933.
Therefore, the Company may require, as a condition of allowing the transfer or
exchange of this Warrant or such shares, that the holder or transferee of this
Warrant or such shares, as the case may be, furnish to the Company an opinion of
counsel reasonably acceptable to the Company to the effect that such transfer or
exchange may be made without registration under the Securities Act of 1933. The
certificates evidencing the Common Stock issued on the exercise of the Warrant
will bear a legend to the effect that the certificates have not been registered
under the Securities Act of 1933.
12. FURTHER ASSURANCES. The Company undertakes generally to execute
all such agreements and other instruments and to do all such other acts as are
necessary or appropriate (including, but not limited to, authorizing and issuing
additional shares of stock of the Company) to give full effect to the terms,
conditions and provisions of this Warrant and make it binding on the Company.
13. NOTICES. All notices and other communications between the
Company and the holder of this Warrant shall be mailed by first class mail,
postage prepaid, at such addresses listed above, or as may have been
subsequently furnished to the other party in writing.
14. DEFINITIONS. As used herein, the following terms, unless the
context otherwise requires, have the following respective meanings:
(a) The term "Company" includes Acrodyne Communications, Inc. and
any corporation which succeeds or assumes the obligations of the Company
hereunder.
(b) The term "Common Stock" includes (a) the Company's Common Stock,
$.01 par value per share, as authorized on the date hereof, (b) any other
capital stock of any class or classes (however designated) of the Company,
authorized on or after
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such date, the holders of which shall have the right, without limitation as to
amount, either to all or to a share of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on any
shares entitled to preference and (c) any other securities into which or for
which any of the securities described in (a) or (b) may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
15. MISCELLANEOUS. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant will be construed and enforced in accordance with and
governed by the laws of the State of New York. The headings in this Warrant are
for purposes of reference only, and will not limit or otherwise affect any of
the terms hereof. This Warrant is being executed as an instrument under seal.
The invalidity or unenforceability of any provision thereof will in no way
affect the validity or enforceability of any other provision.
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16. EXPIRATION. The right to exercise this Warrant will expire at
5:00 P.M., New York time, [seven years from the closing date].
Dated: August ____ 1998
ACRODYNE COMMUNICATIONS, INC.
By:____________________________________
Name: A. Xxxxxx Xxxxxxx
Title: Chairman and President
(Corporate Seal)
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EXHIBIT A TO FORM OF WARRANT AGREEMENT
FORM OF SUBSCRIPTION
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
ACRODYNE COMMUNICATIONS, INC.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, ______ shares
of Common Stock of ACRODYNE COMMUNICATIONS, INC. and herewith makes payment of
$________ therefor, and requests that the certificates for such shares be issued
in the name of, and delivered to ________________, whose address is
____________.
Dated:
(Signature must conform to name of
holder as specified on the face of
the Warrant)
(Address)
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