NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, APPLICABLE
STATE SECURITIES LAWS AND THE TERMS AND CONDITIONS HEREOF. THE HOLDER OF THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE SUBJECT TO THE
RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK TIME, ON THE EXPIRATION DATE.
FORM OF WARRANT TO PURCHASE
25,263 SHARES
WARRANT TO PURCHASE
COMMON STOCK
OF XXXXXX & XXXXXX GROUP, INC.
This certifies that, for good and valuable consideration received, (the
"Warrantholder"), is entitled to purchase from Xxxxxx & Xxxxxx Group, Inc., a
corporation incorporated under the laws of New York (the "Company"), subject
to the terms and conditions hereof, at any time before 5:00 P.M., New York
time, on January 26, 2001 (or, if such day is not a Business Day, as defined
herein, at or before 5:00 P.M., New York time, on the next following Business
Day), the number of fully paid and nonassessable shares of Common Stock (par
value $.01) of the Company (the "Common Stock") stated above at the Exercise
Price (as defined herein). The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment as provided in Article III
hereof.
ARTICLE I
Section 1.01: Definition of Terms. As used in this Warrant, the
following capitalized terms shall have the following respective meanings.
(a) Business Day: A day other than a Saturday, Sunday or other
day on which banks in the State of New York are authorized by law to
remain closed.
(b) Common Stock Equivalents: Securities that are convertible
into or exercisable for shares of Common Stock.
(c) Closing Market Price: The closing price shall be the last
sale price regular way or, in case no such reported sales takes place on
such day, the average of the last reported bid and asked prices regular
way, in either case as reported by Nasdaq, or other similar organization
if Nasdaq is no longer reporting such information, or if not so
available, the fair market price as determined in good faith by the
Board of Directors.
(d) Exercise Price: $11.8750 per share, subject to adjustment
from time to time pursuant to the provisions of Article III hereof.
(e) Expiration Date: 5:00 p.m., New York time, on January 26,
2001 (or, if such day is not a Business Day, at or before 5:00 p.m., New
York time, on the next following Business Day).
(f) Person: An individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any
department or agency thereof.
(g) SEC: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the
Exchange Act.
(h) Securities Act: The Securities Act of 1933, as amended.
(i) Warrants: This Warrant and all other warrants that may be
issued in its place (together evidencing the right to purchase an
aggregate 25,263 shares of Common Stock, subject to adjustment from time
to time in accordance with Article III).
(j) Warrant Shares: Common Stock purchasable upon exercise of
the Warrants.
ARTICLE II
Duration and Exercise of Warrant
Section 2.01: Duration of Warrant. Subject to the terms contained
herein, this Warrant may be exercised at any time prior to 5:00 P.M. New York
time, on the Expiration Date. If this Warrant is not exercised at or before
5:00 P.M., New York time, on the Expiration Date, it shall become void, and
all rights hereunder shall thereupon cease.
Section 2.02: Exercise of Warrant.
(a) The Warrantholder may exercise this Warrant, in whole or in
part, upon surrender of this Warrant with the Subscription Form hereon
duly executed, to the Company at its principal office in New York, New
York, together with the full Exercise Price for each share of Common
Stock to be purchased in lawful money of the United States, or by
certified check, bank draft or postal or express money order payable in
the United States Dollars to the order of the Company and upon
compliance with and subject to the conditions set forth herein.
(b) Upon receipt of this Warrant with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for
the shares of Common Stock for which this Warrant is then being
exercised, the Company will cause to be issued certificates for the
total number of whole shares of Common Stock for which this Warrant is
being exercised in such denominations as are required for delivery to
the Warrantholder, and the Company shall thereupon deliver such
certificates to the Warrantholder.
(c) The Warrantholder, by acceptance hereof, acknowledges that
this Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired for investment, and that the Warrantholder
will not offer, sell or otherwise dispose of this Warrant or any shares
of Common Stock to be issued upon exercise or conversion hereof except
under circumstances that will not result in a violation of the
Securities Act or any state securities laws.
(d) All shares of Common Stock issued upon exercise hereof shall
be stamped or imprinted with a legend in substantially the following
form (in addition to any legend required by state securities laws).
"The securities registered by this stock
certificate have not been registered under
the Securities Act of 1933 (the "Act") or
applicable state securities laws (the
"State Acts") and shall not be sold,
pledged, hypothecated, donated or
otherwise transferred by the Warrantholder
except upon the issuance to the Company of
a favorable opinion of its counsel and/or
submission to the Company of such other
evidence as may be satisfactory to counsel
for the Company, to the effect that any
such transfer shall not be in violation of
the Act and the State Acts."
(e) In case the Warrantholder shall exercise this Warrant with
respect to less than all of the shares of Common Stock that may be
purchased under the Warrant, the Company will execute a new warrant
certificate in the form of this Warrant for the balance of the shares of
Common Stock that may be purchased upon exercise of this Warrant and
deliver such new warrant certificate to the Warrantholder.
(f) The Company covenants and agrees that it will pay when due
and payable any and all taxes which may be payable in respect of the
issue of this Warrant or in respect of the issue of any Warrant Shares.
The Company shall not, however, be required to pay any tax imposed on
income or gross receipts or any tax which may be payable in respect of
any transfer involved in the issuance or delivery of this Warrant or of
Warrant Shares in a name other than that of the Warrantholder at the
time of surrender and, until the payment of such tax, shall not be
required to issue such Warrant Shares.
Section 2.03: Transfer of Warrant.
(a) This Warrant may not be transferred or assigned in whole or
in part without consent of the Company and compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters
and legal opinions reasonably satisfactory to the Company, if such are
requested by the Company). Subject to the provisions of this Warrant
with respect to compliance with the Securities Act, title to this
Warrant may be transferred by endorsement and delivery in the same
manner as a negotiable instrument transferrable by endorsement and
delivery.
(b) On surrender of this Warrant for exchange, properly endorsed
and subject to the provisions of this Warrant with respect to compliance
with the Securities Act and with the limitations on assignments and
transfers contained in this Article II, the Company at its own expense
shall issue to or on the order of the Warrantholder a new warrant or
warrants of the like tenor, in the name of the Warrantholder (on payment
by the Warrantholder of any applicable transfer taxes) as he may direct,
for the number of shares issuable upon exercise hereof.
ARTICLE III
Adjustment of Shares of Common Stock
Purchasable and of Exercise Price
The Exercise Price and the number and kind of Warrant Shares shall be
subject to adjustment from time to time upon the happening of certain events
as provided in this Article III.
Section 3.01: Mechanical Adjustments.
(a) If at any time prior to the full exercise of this Warrant,
the Company shall (i) pay a dividend or make a distribution on its
shares of Common Stock in shares of Common Stock; (ii) subdivide its
outstanding Common Stock into a greater number of shares; or (iii)
combine its outstanding Common Stock into a smaller number of shares,
the total number of shares of Common Stock purchasable upon the exercise
of this Warrant shall be adjusted so that, upon the subsequent exercise
of this Warrant in full, the Warrantholder shall be entitled to receive
at the same aggregate Exercise Price the number of shares of Common
Stock which he would have owned or have been entitled to receive
immediately following the happening of any of the events described above
had this Warrant been exercised in full immediately prior to the
happening of such event. Any adjustment made pursuant to this Section
3.01 shall, in the case of a stock dividend or distribution, become
effective as of the record date therefor and, in the case of a
subdivision or combination, shall be made effective as of the effective
date thereof. Such adjustment shall be made successively whenever any
event listed in this paragraph 3.01(a) shall occur.
(b) In the event of any adjustment of the total number of shares
of Common Stock purchasable upon the exercise of this Warrant pursuant
to Section 3.01(a), the Exercise Price per share applicable to this
Warrant should be adjusted to the amount resulting from dividing the
number of shares covered by this Warrant immediately after such
adjustment into the total amount payable upon exercise of this Warrant
in full immediately prior to such adjustment.
(c) In case the Company shall hereafter fix a record date for
making a distribution to the holders of the Common Stock of assets or
evidences of its indebtedness (excluding cash dividends or distributions
out of earnings and dividends or distributions referred to in paragraph
(a) of this Section 3.01) or Common Stock subscription rights, options
or warrants for Common Stock or Common Stock Equivalents, then in each
such case, the Exercise Price in effect after such record date shall be
adjusted to the price determined by multiplying the Exercise Price in
effect immediately prior thereto by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding at such
time multiplied by the Current Market Price, less the fair market value
(as determined by the Company's Board of Directors) of said assets or
evidences of indebtedness so distributed or of such Common Stock
subscription rights, option and warrants or of such Common Stock
Equivalents, and the denominator of which shall be the total number of
shares of Common Stock outstanding at such time multiplied by such
Current Market Price. Such adjustment shall be made successively
whenever the record date for such a distribution is fixed and shall
become effective immediately after such record date.
(d) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to paragraph (c) of this Section 3.01, the
Warrant Shares shall simultaneously be adjusted by multiplying the
number of Warrant Shares then issuable upon exercise of each Warrant by
the Exercise Price in effect on the date thereof and dividing the
product so obtained by the Exercise Price as adjusted.
(e) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least five
cents ($.05) in such price; provided, however, that any adjustments
which by reason of this paragraph (d) are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 3.01 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
Notwithstanding anything in this Section 3.01 to the contrary, the
Exercise Price shall not be reduced to less than the then existing par
value of the Common Stock as a result of any adjustment made hereunder.
Section 3.02: Notice of Adjustment. Whenever the number of Warrant
Shares or the Exercise Price is adjusted as herein provided, the Company shall
prepare and deliver to the Warrantholder a certificate signed by the
President, any Vice President, Treasurer or Secretary, setting forth the
adjusted number of shares purchasable upon the exercise of this Warrant and
the Exercise Price of such shares after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made.
Section 3.03: No Adjustment for Dividends. No adjustment in respect
of any cash dividends shall be made during the term of this Warrant or upon
the exercise of this Warrant.
Section 3.04: Preservation of Purchase Rights in Certain
Transactions. In case of any consolidation of the Company with or merger of
the Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company agrees that a condition of such
transaction will be that the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrantholder an
agreement granting the Warrantholder the right thereafter, upon payment of the
Exercise Price in effect immediately prior to such action, to receive upon
exercise of this Warrant the kind and amount of shares and other securities
and property which he would have owned or have been entitled to receive after
the happening of such consolidation, merger, sale or conveyance had this
Warrant been exercised immediately prior to such action. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article III. The
provisions of this Section 3.04 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
Section 3.05: Form of Warrant after Adjustments. The form of this
Warrant need not be changed because of any adjustments in the Exercise Price
or the number or kind of the Warrant Shares, and Warrants theretofore or
thereafter issued may continue to express the same price and number and kind
of shares as are stated in this Warrant as initially issued.
ARTICLE IV
Other Provisions Relating to Rights of Warrantholder
Section 4.01: No Rights as Shareholders: Notices to Warrantholders.
Nothing contained in this Warrant shall be construed as conferring upon the
Warrantholder or his transferees the right to vote or to receive dividends or
to consent or to receive notice as shareholders in respect of any meeting of
shareholders for the election of directors of the Company or any other matter,
or any rights whatsoever as shareholders of the Company. If, however, at any
time prior to the expiration or exercise in full of the Warrants, any of the
following events shall occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution
(other than a cash dividend) to the holders of its shares of Common
Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock any additional shares of Common Stock or Common Stock
Equivalents or any right to subscribe thereto; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, or sale of all
or substantially all of its property, assets, and business as an
entirety) shall be proposed;
then, in any one or more of said events, the Company shall give notice
of such event to the Warrantholder. Such giving of notice shall be initiated
(i) at least 25 days prior to the date fixed as a record date or the date of
closing the Company's Stock transfer books for the determination of the
shareholders entitled to such dividend, distribution or subscription rights,
or for the determination of the shareholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the stock transfer books, as the case may be.
Failure to provide such notice shall not affect the validity of any action
taken in connection with such dividend, distribution or subscription rights,
or proposed dissolution, liquidation or winding up.
Section 4.02: Lost, Stolen, Mutilated or Destroyed Warrants. If
this warrant certificate is lost, stolen, mutilated or destroyed, the Company
may, on such terms as to indemnify or otherwise as it may in its discretion
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new warrant certificate of like denomination and tenor as,
and in substitution for this Warrant.
Section 4.03: Reservation of Shares.
(a) The Company covenants and agrees that at all times it shall
reserve and keep available for the exercise of this Warrant such number
of authorized shares of Common Stock as are sufficient to permit the
exercise in full of this Warrant.
(b) The Company covenants that all shares of Common Stock issued
on exercise of this Warrant will be validly issued, fully paid,
nonassessable and free of pre-exemptive rights.
Section 4.04: No Fractional Shares. Anything contained herein to
the contrary notwithstanding, the Company shall not be required to issue any
fraction of a share in connection with the exercise of this Warrant, and in
any case where the Warrantholder would, except for the provisions of this
Section 4.04 be entitled under the terms of this Warrant to receive a fraction
of a share upon the exercise of this Warrant, the Company shall, upon the
exercise of this Warrant and receipt of the Exercise Price, issue the number
of whole shares purchasable upon exercise of this Warrant. The Company shall
not be required to make any cash or other adjustment in respect of such
fraction of a share to which the Warrantholder would otherwise be entitled.
ARTICLE V
Treatment of Warrantholder
Section 5.01. Prior to due presentment for registration of transfer of
this Warrant, the Company may deem and treat the Warrantholder as the absolute
owner of this Warrant (notwithstanding any notation of ownership or other
writing hereon) for the purpose of any exercise hereof and for all other
purposes and the Company shall not be affected by any notice to the contrary.
ARTICLE VI
Other Matters
Section 6.01: Expenses of Transfer. The Company will from time to
time promptly pay, subject to the provisions of paragraph (f) of Section 2.02,
all taxes and charges that may be imposed upon the Company in respect to the
issuance or delivery of Warrant Shares upon the exercise of this Warrant by
the Warrantholder.
Section 6.02: Amendments and Waivers. The provision of this
Warrant, including the provisions of this sentence, may not be amended,
modified or supplemented, and waiver or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of the Warrantholder.
Section 6.03: Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York without regard
to any laws that might otherwise govern under applicable principles of
conflicts of laws.
Section 6.04: Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provisions in every other respect and
of the remaining provisions contained herein shall not be affected or impaired
thereby.
Section 6.05 Integration/Entire Agreement. This Warrant is
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties, or undertakings
other than those set forth or referred to herein. This Warrant supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
Section 6.06: Notices. Notices or demands pursuant to this Warrant
to be given or made by the Warrantholder to or on the Company shall be
sufficiently given or made if sent (i) by recognized international courier
such as Federal Express or DHL, or (ii) by first class mail, postage prepaid,
addressed, until another address is designated in writing by the Company, as
follows:
Xxxxxx & Xxxxxx Group, Inc.
One Rockefeller Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
ATTN: Xxxxxx X. Xxxxx
Any action or demand authorized by this Warrant to be given or made by
the Company to or on the Warrantholder shall be sufficiently given or made if
sent (i) by recognized international courier such as Federal Express or DHL,
or (ii) by first class mail, postage prepaid addressed, until another address
is designated in writing, as follows:
Warrantholder
Xxx Xxxx, Xxx Xxxx 00000
Section 6.07: Headings. The Article headings herein are for
convenience only and are not part of this Warrant and shall not affect the
interpretation thereof.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
as of the 26th day of January, 2000.
XXXXXX & XXXXXX GROUP, INC.
By: /s/ Xxx X. Xxxxxxxxxx
______________________________
Xxx X. Xxxxxxxxxx
President
SUBSCRIPTION FORM
(To be Executed by the Warrantholder if He Desires
to Exercise the Warrant in Whole or in Part)
TO:
The Undersigned ______________________________________
(Name of Warrantholder)
(____________________________)
(Please insert SS# or other identifying
number of subscriber)
hereby irrevocably elects to exercise the right of purchase represented by the
within Warrant for, and to purchase thereunder, _____ shares of Common Stock
provided for therein and tenders payment herewith to the order of Xxxxxx &
Xxxxxx Group, Inc. in the amount of $___________. The undersigned requests
that certificates for such shares of Common Stock be issued as follows:
Name: _________________________________________________
Address: _________________________________________________
Deliver to: _________________________________________________
Address: _________________________________________________
and, if said number of shares of Common Stock shall not be all the shares of
Common Stock purchasable hereunder, that a new Warrant for the balance
remaining of the shares of Common Stock purchasable under the within Warrant
be registered in the name of, and delivered to, the undersigned at the address
stated below:
Address: _________________________________________________
Date: ___________ __, 200_
Signature: __________________________
Note: The signature of this Subscription must correspond with the
name as written upon the face of this Warrant in every particular
without alteration or enlargement or any change whatsoever.
