Exhibit 10.38
COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED PURSUANT TO
THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS (A) THE COMPANY RECEIVES AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT,
(B) IT IS ESTABLISHED TO THE SATISFACTION OF THE COMPANY THAT SUCH SALE OR
TRANSFER IS IN A TRANSACTION WHICH IS EXEMPT UNDER, OR OTHERWISE IN COMPLIANCE
WITH, SUCH LAWS OR (C) THE COMPANY RECEIVES A "NO ACTION" LETTER OR SIMILAR
DECLARATION FROM THE SECURITIES AND EXCHANGE COMMISSION TO THE EFFECT THAT SUCH
SALE OR TRANSFER WITHOUT REGISTRATION WILL NOT RESULT IN A RECOMMENDATION BY
SAID COMMISSION THAT ACTION BE TAKEN WITH RESPECT THERETO. COPIES OF THE
AGREEMENTS COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR
TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.
NO. W-05 VOID AFTER DECEMBER 10, 2005
FORM OF
WARRANT
TO PURCHASE 2,960 SHARES OF COMMON STOCK OF
CVC, INC.
Dated as of December 10, 1998
THIS CERTIFIES THAT, for value received, Advent Partners Limited
Partnership or its permitted transferees or assigns (the "Holder") is entitled
to purchase from CVC, Inc., a Delaware corporation (the "Company"), 2,960 fully
paid and nonassessable shares (the "Shares") (as adjusted pursuant to Section 3
below) of common stock, $.01 par value ("Common Stock"), of the Company, at the
price of $10.00 per
share (the "Exercise Price") (as adjusted pursuant to Section 3 below), subject
to the provisions and upon the terms and conditions set forth below.
Capitalized terms used and not otherwise defined in this warrant shall
have the meanings assigned in the Stock Purchase Agreement, dated as of December
10, 1998 between the Company and the Purchasers named therein (the "Stock
Purchase Agreement").
1. EXERCISE AND PAYMENT.
1.1 EXERCISE. On or after December 10, 2001, the purchase
rights represented by this Warrant may be exercised by the Holder, in whole or
in part, by the surrender of this Warrant (together with a duly executed
exercise notice (the "Notice of Exercise") in the form attached hereto as
EXHIBIT A) at the principal office of the Company, and by the payment to the
Company, by wire transfer, of an amount equal to the aggregate Exercise Price of
the Shares being purchased.
1.2 STOCK CERTIFICATES. In the event of the exercise of all or
any portion of this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to the Holder by the Company at its own expense
(including the payment by it of any applicable issue taxes) within a reasonable
time, which shall in no event be later than ten (10) days thereafter and, unless
this Warrant has been fully exercised or has expired, a new Warrant representing
the Shares with respect to which this Warrant shall not have been exercised
shall also be issued to the Holder within such time.
If this Warrant shall be surrendered for exercise within any
period during which the transfer books for shares of the Common Stock or other
securities purchasable upon the exercise of this Warrant are closed for any
purpose, the Company shall not be required to make delivery of certificates for
the securities purchasable upon such exercise until the date of the reopening of
said transfer books.
2. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Shares issuable
upon the exercise of this Warrant will, upon issuance and receipt of the
Exercise Price therefor, be fully paid and nonassessable, and free from all
taxes, liens, encumbrances and charges with respect to the issue thereof. During
the period within which this Warrant may be exercised, the Company shall at all
times have authorized and reserved for issuance sufficient shares of its Common
Stock to provide for the exercise of this Warrant.
3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and
kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price therefor shall be subject to adjustment from time to time upon
the occurrence of certain events, as follows:
3.1 RECLASSIFICATION. In case of any reclassification of the
Common Stock (other than a change in par value, or as a result of a subdivision
or combination), the Company, shall execute a new warrant, providing that the
Holder shall have the right to exercise such new warrant, and procure upon such
exercise and payment of the same
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aggregate Exercise Price, in lieu of the shares of Common Stock theretofore
issuable upon exercise of this Warrant, the kind and amount of shares of stock,
other securities, money and property receivable upon such reclassification by a
holder of an equivalent number of shares of Common Stock had the holder
exercised the Warrant immediately prior thereto. Such new warrant shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 3.
3.2 DIVIDENDS, STOCK SPLITS AND COMBINATIONS. If the number of
shares of Common Stock outstanding at any time is increased by a stock dividend
payable in shares of Common Stock or by a subdivision or split up of stock, then
the Exercise Price shall, concurrently with the effectiveness of such dividend,
subdivision or split up, be proportionately decreased so that the number of
shares of Common Stock issuable on exercise of this Warrant shall be increased
in proportion to such increase of outstanding shares of Common Stock. If the
number of shares of Common Stock outstanding at any time is decreased by a
combination of the outstanding shares of Common Stock, then the Exercise Price
shall, concurrently with the effectiveness of such combination, be
proportionately increased so that the number of shares of Common Stock issuable
on exercise of this Warrant shall be decreased in proportion to such decrease of
outstanding shares of Common Stock.
3.3 ADJUSTMENT FOR LIQUIDATION, REDEMPTION OR CONVERSION OF
SERIES C PREFERRED STOCK. Upon a liquidation, redemption or conversion on or
after December 10, 2001 and prior to December 10, 2003 of all of the then
outstanding shares of the Company's Series C Senior Convertible Redeemable
Preferred Stock, $.01 par value (the "Series C Preferred Stock") and Series D
Redeemable Preferred Stock, $.01 par value (the "Series D Preferred Stock") in
accordance with Article IV, Section 2, Section 3 or Section 4 of the Company's
Restated Certificate of Incorporation, as amended, if a Holder has not
previously exercised in accordance with Section 1 hereto, the Exercise Price
shall be adjusted to $12.00 per share and if a Holder has previously exercised
in accordance with Section 1 hereto, such Holder shall pay to the Company an
amount equal to the product of $2.00 per share multiplied by the number of
Shares of Common Stock purchased by such Holder upon such exercise (including
Shares applied to pay the Exercise Price in accordance with Section 4 hereof).
3.4 ANTIDILUTION ADJUSTMENT. The Exercise Price shall be
subject to adjustment from time to time as follows:
(a) SPECIAL DEFINITIONS. For purposes of this Section 3.4, the
following definitions shall apply:
(1) "ADDITIONAL SHARES OF COMMON STOCK" shall mean
all shares of Common Stock issued (or, pursuant to Section 3.4(c) below, deemed
to be issued) by the Company after the Original Issue Date other than shares of
Common Stock issued or issuable:
(A) upon conversion of shares of the
Preferred Stock or the exercise or conversion of any Options outstanding on the
Original Issue Date;
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(B) to officers, directors, employees and
consultants of the Company or any subsidiary thereof, pursuant to a stock option
plan, stock purchase plan or other employee stock incentive plan approved by the
Board of Directors of the Company or other stock arrangements which have been
approved by the Board of Directors of the Company;
(C) pursuant to any event for which
adjustment has already been made pursuant to this Section 3.4;
(D) as a dividend or distribution on the
Preferred Stock;
(E) as a dividend or distribution on the
Common Stock;
(F) upon any subdivision or split up of
Common Stock;
or
(G) upon any capital reorganization of the
Company.
(2) "CONVERTIBLE SECURITIES" shall mean any evidences
of indebtedness, shares (other than Common Stock and Preferred Stock) or other
securities convertible into or exchangeable for Common Stock.
(3) "OPTIONS" shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(4) "ORIGINAL ISSUE DATE" shall mean the date on
which this Warrant was issued.
(5) "PREFERRED STOCK" shall mean collectively, the
Company's 8% Non-Cumulative Convertible Preferred Stock, $.01 par value, Series
B Non-Cumulative Convertible Preferred Stock, $.01 par value, Series C Preferred
Stock and Series D Preferred Stock.
(b) NO ADJUSTMENT OF EXERCISE PRICE. No adjustment in the
Exercise Price shall be made in respect of the issuance of Additional Shares of
Common Stock unless the consideration per share for an Additional Share of
Common Stock issued or deemed to be issued by the Company is less than the
Exercise Price in effect on the date or and immediately prior to such issue.
(c) DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON STOCK. Except
as provided in Section 3.4(a)(1) above, if the Company at any time or from time
to time after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of holders of any
class of securities entitled to receive any such Options or Convertible
Securities, then the maximum number of shares (as set forth in the instrument
relating thereto without regard to any provisions contained therein
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for a subsequent adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible Securities, shall be
deemed to be Additional Shares of Common Stock issued as of the time of such
issue or, in case such a record date shall have been fixed, as of the close of
business on such record date, provided that Additional Shares of Common Stock
shall not be deemed to have been issued unless the consideration per share
(determined pursuant to Section 3.4(e) below) of such Additional Shares of
Common Stock would be less than the Exercise Price in effect on the date of and
immediately prior to such issue, or such record date, as the case may be, and
provided further that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
(1) no further adjustment in the Exercise Price shall
be made upon the subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(2) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any increase or
decrease in the consideration payable to the Company, or increase or decrease in
the number of shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Exercise Price computed upon the initial Exercise Price
thereof set forth in the first paragraph of this Warrant (or upon the occurrence
of a record date with respect thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease becoming effective , be
recomputed to reflect such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under such Convertible
Securities;
(3) on the expiration or cancellation of any Options
or the termination of the right to convert or exchange any Convertible
Securities which shall have not been exercised, if the Exercise Price shall have
been adjusted upon the original issuance thereof or shall have been subsequently
adjusted pursuant to clause (2) above, the Exercise Price shall be recomputed as
if the only Additional Shares of Common Stock issued were shares of Common
Stock, if any, actually issued upon the exercise of such Options or the
conversion or exchange of such Convertible Securities and the consideration
received therefore was the consideration actually received by the Company for
the issue of all such Options, whether or not exercised, plus the consideration
actually received by the Company upon such exercise, or for the issue of all
such Convertible Securities which were actually converted or exchanged plus the
consideration actually received by the Company upon such conversion or exchange,
if any; and
(4) no readjustment pursuant to clause (2) or clause
(3) above shall have the effect of increasing the Exercise Price to an amount
which exceeds the lower of (i) the initial Exercise Price on the original
adjustment date (unless the Exercise Price is increased above the initial
Exercise Price pursuant to Section 3.1 or 3.2, or (ii) the Exercise Price that
would have resulted from any issuances of Additional Shares of
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Common Stock (other than those the subject of such adjustments) between the
original adjustment date and such readjustment date; and
(d) ADJUSTMENT OF EXERCISE PRICE UPON ISSUANCE OF ADDITIONAL
SHARES OF COMMON STOCK. In the event the Company shall issue Additional Shares
of Common Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to Section 3.4(c), but excluding stock dividends, subdivisions or
split-ups that are the subject of adjustment pursuant to Section 3.1 or 3.2
without consideration or for a consideration per share less than the Exercise
Price applicable on and immediately prior to such issue, then and in such event,
the Exercise Price shall be reduced concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying the Exercise Price in
effect on the date of and immediately prior to such issue by a fraction, the
numerator of which shall be the sum of (i) the number of shares of Common Stock
outstanding immediately prior to such issue (on a fully diluted as converted
basis), including without limitation the number of shares of Common Stock
issuable upon conversion of the Preferred Stock outstanding immediately prior to
such issue and (ii) the number of shares of Common Stock which the aggregate
consideration received by the Company for the total number of Additional Shares
of Common Stock so issued would purchase at the Exercise Price in effect on the
date of and immediately prior to such issue; and the denominator of which shall
be the sum of (i) the number of shares of Common Stock outstanding immediately
prior to such issue (on a fully diluted as converted basis), including without
limitation the number of shares of Common Stock issuable upon conversion of the
Preferred Stock outstanding immediately prior to such issue and (ii) the number
of such Additional Shares of Common Stock so issued.
(e) DETERMINATION OF CONSIDERATION. For purposes of this
Section 3.4(d), the consideration received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(1) CASH AND PROPERTY. Such consideration shall:
(A) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Company;
(B) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors of the Company; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
Company for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board of Directors of the Company.
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(2) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares of Common
Stock deemed to have been issued pursuant to Section 3.4(b) and 3.4(c), relating
to Options and Convertible Securities, shall be determined by dividing
(A) the total amount, if any, received or
receivable by the Company as consideration for the issue of such Options or
Convertible Securities, plus the (ii) aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Company upon the exercise of such Options or the
conversion or exchange of such Convertible Securities, or in the case of Options
for Convertible Securities, the exercise of such options for Convertible
Securities and the conversion or exchange of such Convertible Securities by
(B) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
4. NET ISSUE ELECTION. The holder hereof may elect to receive, without
the payment by such holder of any additional consideration, shares equal to the
value of this Warrant or any portion hereof by the surrender of this Warrant or
such portion to the Company, at the office of the Company. Thereupon, the
Company shall issue to such holder such number of fully paid and nonassessable
shares of Common Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to such holder pursuant to this
Section 4.
Y = the number of shares covered by this Warrant in respect of which
the net issue election is made pursuant to this Section 4.
A = the fair market value of one share of Common Stock, as determined
in accordance with the following provisions, as at the time the net issue
election is made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 4.
For purposes of this Section 4, "fair market value" of one share of
Common Stock shall be determined as follows:
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(1) Where there exists a public market for the Company's
Common Stock at the time of such exercise, the fair market value per
share shall be the average of the closing bid and asked prices of the
Common Stock quoted in the Over-The-Counter Market Summary or the last
reported sale price of the Common Stock or the closing price quoted on
the NASDAQ System or on any exchange on which the Common Stock is
listed, whichever is applicable, as published in THE WALL STREET
JOURNAL for the five (5) trading days prior to the date to the date of
determination of fair market value. Notwithstanding the foregoing, in
the event the Warrants are exercised in connection with the Company's
initial public offering of Common Stock, the fair market value per
share shall be the per share offering price to the public of the
Company's initial public offering.
(2) If no public market for the Common Stock exists at the
time of such exercise, the Company and the holder hereof shall
negotiate in good faith in an effort to reach agreement upon the fair
market value of one share of Common Stock for a period of ten (10) days
after delivery of the executed subscription.
(3) If the Company and the holder hereof are unable to reach
agreement under the foregoing subparagraph (2), the fair market value
of one share of Common Stock shall be determined by appraisal. The
Company and the holder hereof shall each select an appraiser (the
"Selected Appraisers") within thirty (30) days after the expiration of
the ten-day period in subparagraph (2) above. Each Selected Appraiser
shall render its appraisal within thirty (30) days of its appointment
hereunder. In the event that either Selected Appraiser fails to render
an appraisal within such thirty-day period, the first appraisal
rendered shall be conclusive. In the event that the values determined
by the Selected Appraisers differ by less than ten percent (10%) of the
lower value, the fair market value shall be the average of the
appraisals made by each of the Selected Appraisers. In the event that
the values differ by ten percent (10%) or more of the lower value, the
Selected Appraisers shall within ten (10) days select a third appraiser
(the "Neutral Appraiser") to conduct an appraisal. The Neutral
Appraiser shall render its appraisal within thirty (30) days of its
appointment hereunder. The fair market value of one share of Common
Stock shall be equal to the appraisal made by the Neutral Appraiser if
such appraisal is between the two appraisals made by the Selected
Appraisers or, if such appraisal by the Neutral Appraiser is not
between the two appraisals made by the Selected Appraisers, then the
fair market value of one share of Common Stock shall be that one of the
two appraisals made by the Selected Appraisers that is closer to the
appraisal made by the Neutral Appraiser. All appraisals delivered
pursuant to this subparagraph (3) shall be in writing and signed by the
appraiser. The fees, costs and expenses of each of the Selected
Appraisers will be borne by the party who selected such appraiser, and
the fees, costs and expenses of the Neutral Appraiser will be borne
equally by the Company and the holder hereof.
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(4) In appraising the fair market value of one share of Common
Stock, there shall be no discount for minority interests.
(5) The fair market value as determined in accordance with
this Section 4 shall be conclusive, final and binding upon the Company
and the holder hereof, and shall be enforceable in any court having
jurisdiction over a proceeding to enforce the terms of this Warrant.
5. NOTICE. In the event of the occurrence of any one or more of the
following (each, a "Liquidity Event"): (i) a liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary; (ii) a sale, merger,
recapitalization, reorganization or consolidation involving the Company, as the
result of which those persons who hold at least 50% of the voting stock of the
Company immediately prior to such transaction do not hold more than 50% of the
voting stock of the Company (or the surviving or resulting entity) after giving
effect to such transaction; or (iii) the sale of all or substantially all of the
assets of the Company; then in connection with each such Liquidity Event, the
Company shall send to the Holder:
(a) At least ten (10) 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, subscription rights (specifying the date on which the
Holder shall be entitled thereto) or for determining rights to vote in respect
of such Liquidity Event; and
(b) In the case of any such Liquidity Event, at least ten (10)
days prior written notice of the date when the same shall take place (and
specifying the date on which the Holder shall be entitled to exchange its Common
Stock for securities or other property deliverable upon such Liquidity Event).
6. FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of such fractional
shares the Company shall make a cash payment therefor based upon the Exercise
Price then in effect.
7. RESTRICTIONS ON TRANSFER.
7.1 RESTRICTIVE LEGEND. Each certificate representing (i) the
Shares and (ii) any other securities issued in respect of the Shares upon any
stock split, stock dividend or recapitalization (collectively, the "Restricted
Securities"), shall be endorsed as follows:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("the Act"), and have been
acquired for investment and not with a view to, or in connection with,
the sale or distribution thereof. Such shares may not be sold, offered
for sale, pledged or hypothecated in the absence of such registration
unless (a) the Company receives an opinion of counsel reasonably
satisfactory to it stating that such sale or transfer is exempt from
the registration and prospectus delivery requirements of the act, (b)
it is
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established to the satisfaction of the Company that such sale or
transfer is in a transaction which is exempt under, or otherwise in
compliance with, such laws or (c) the Company receives a "no action"
letter or similar declaration from the securities and exchange
commission to the effect that such sale or transfer without
registration will not result in a recommendation by said commission
that action be taken with respect thereto. Copies of the agreements
covering the purchase of these shares and restricting the sale,
assignment, transfer, or other disposition of, or the voting of, the
shares represented by this certificate may be obtained at no cost by
written request made by the holder of record of this certificate to the
Secretary of the Company at the principal executive offices of the
Company.
The Company is authorized to issue more than one class of stock.
Shareholders may obtain, upon written request and without charge, a
statement of the rights, preferences, privileges, and restrictions
granted to or imposed upon each class or series of shares authorized to
be issued and upon the holders thereof from the principal office of the
Company.
7.2 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any person
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Section 7.
7.3 TRANSFER OF THE WARRANT. Subject to the provisions of the Amended
and Restated Stockholders' Agreement dated as of December 10, 1998, among the
Company and the stockholders party thereto, this Warrant may be transferred in
whole or in part to one or more parties at the option of the Holder; PROVIDED,
HOWEVER, that prior to any transfer of this Warrant, the Holder shall give
written notice to the Company of the Holder's intention to effect such transfer.
Each such notice shall describe the manner and circumstances of the proposed
transfer in sufficient detail, contain a representation in writing from the
proposed transferee that the Warrant is being acquired for investment not with a
view to any sale or distribution thereof and shall be accompanied by the
Assignment form attached hereto as EXHIBIT B duly executed by the Holder. Upon
transfer of the Warrant pursuant to this Section 7, the Company shall at the
request of Xxxxxx and upon surrender of the Warrant to the Company, promptly
issue new Warrants in the names and amounts requested by the Holder to replace
the surrendered Warrant.
8. NO RIGHTS OF STOCKHOLDERS. This Warrant does not
entitle the Holder to any voting rights as a stockholder of the Company prior to
the exercise of the Warrant; further, the Holder has no liability as to the
Exercise Price.
9. 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 to be observed or performed hereunder by the Company, but it will at
all times in good faith assist in the carrying out
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of all of the provisions of this Warrant 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 against impairment.
10. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will make
and deliver a new Warrant or like tenor and dated as of such cancellation, in
lieu of this Warrant.
11. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding day
not a Saturday or a Sunday or a legal holiday.
12. EXPIRATION OF WARRANT. Notwithstanding any other provision of this
Warrant, this Warrant shall expire and shall no longer be exercisable upon the
earlier of (i) payment by the Company prior to December 10, 2001 with respect to
all of the then outstanding Series C Preferred Stock and Series D Preferred
Stock held by the Holder in accordance with Article IV, Section 2, Section 3 or
Section 4 of the Company's Amended and Restated Certificate of Incorporation or
(ii) at 12:00 a.m., New York time, on December 10, 2005.
13. MISCELLANEOUS.
13.1 GOVERNING LAW. This Warrant shall be governed by and
construed in all respects in accordance with the laws of the State of Delaware
without giving effect to the conflicts of laws provisions thereof.
13.2 ENTIRE AGREEMENT; AMENDMENT. This Warrant constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof, except as may be provided in (i) the Amended and Restated
Stockholders' Agreement dated as of December 10, 2005, by and among the Company
and certain stockholders of the Company, (ii) the Stock Purchase Agreement and
(iii) the Amended and Restated Registration Rights Agreement dated as of
December 10, 2005, by and among the Company and certain stockholders of the
Company. Neither this Warrant nor any term hereof may be amended, waived,
discharged, or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought.
13.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the permitted successors and assigns, heirs, executors, and administrators
of the Company and the Holder.
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13.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, by overnight courier, or otherwise delivered by
hand or by messenger or sent by facsimile and confirmed by mail, addressed (a)
if to the Company, 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, telephone (716)
000-0000, facsimile (000) 000-0000, and addressed to the attention of the
President, with a copy to Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (Attention: Xxxxxxxxx X. Xxxxxx, Esq.), telephone: (212)
000-0000, facsimile: (000) 000-0000, and (b) to Holder at the address set forth
on EXHIBIT C attached hereto, with a copy to Xxxxxxxx, Xxxxxxx & Xxxxxxx, A
Professional Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(Attention: Xxxxxxx X. Xxxxxxxx, Xx., P.C.), telephone: (000) 000-0000,
facsimile: (000) 000-0000. Each of such notice or other communication shall for
all purposes of this Agreement be treated as effective or having been given when
delivered if delivered personally, or, if sent by mail or by Federal Express or
other reputable overnight carrier, upon receipt.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
Issued this ____ day of December, 1998.
CVC, INC.
By:
------------------------------------
Title:
---------------------------------
Address: 000 Xxx Xxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000-0000
WARRANT HOLDER:
---------------------------
By:
---------------------------------
Title:
------------------------------
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Issued this th day of December, 1998.
CVC, INC.
By:
------------------------------------
Title:
---------------------------------
Address: 000 Xxx Xxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000-0000
WARRANT HOLDER:
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By:
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Title:
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Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
EXHIBIT A
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NOTICE OF EXERCISE
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TO: CVC, INC.
000 Xxx Xxxx
Post Office Box 1886
Rochester, New York 14603-1886
Attention: President
1. The undersigned hereby elects to purchase _________ shares of Common
Stock of CVC, INC. pursuant to the terms of this Warrant, and tenders herewith
payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
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(Name)
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(Address)
3. The undersigned hereby represents and warrants that the aforesaid shares of
Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale, in connection with the
distribution thereof, and that the undersigned has no present intention of
distributing or reselling such shares.
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(Signature)
Title:
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(Date)
EXHIBIT B
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ASSIGNMENT FORM
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________, whose address is _____________________, the
right represented by the attached Warrant to purchase _________ shares of Common
Stock of CVC, INC., to which the attached Warrant relates.
Dated:____________________
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(Signature must conform in all respects to
name of Xxxxxx as specified on the face of
the Warrant)
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(Address)
Signed in the presence of:
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