Exhibit 4.4
WARRANT AGREEMENT dated as January 14, 1999 between XXXXX-MIDLAND
CORPORATION, a Delaware corporation (the "Company"), and XXXXX XXXXXXXXXX,
XXXXXXX XXXXXX, XXXXXXX X. XXXX AND XXXXXXX X. XXXX,XX. (the "Initial Holders").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to the Initial Holders,
warrants ("Warrants") to purchase up to an aggregate of 200,000 shares (the
"Shares") of common stock, $.01 par value per share, of the Company (the "Common
Stock"); and
WHEREAS, the Initial Holders are designees of The Damon Group, a
division of Network 1 Financial Securities, Inc. (such division hereinafter
"Network"), which firm has agreed, pursuant to the financial advisory agreement
(the "Advisory Agreement"), dated January 14, 1999, by and between Network and
the Company to act as a financial advisor; and
WHEREAS, the Warrants issued pursuant to this Agreement will be issued
on the date hereof by the Company to the Initial Holders, as designees of
Network, in consideration for Network acting as a financial advisor to the
Company;
NOW, THEREFORE, in consideration of the premises, the payment by the
Holders to the Company of ten dollars ($10.00), the agreements herein set forth
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. GRANT. The Holders are hereby granted the right to purchase, at any
time from January 14, 1999, until 5:00 p.m., New York time, on January 14, 2002,
(the "Warrant Exercise Term") up to an aggregate of 200,000 fully paid and
non-assessable Shares at an initial exercise price (subject to adjustment as
provided in Article 8 hereof) of $1.00 per Share.
2. WARRANT CERTIFICATES. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall
be in the form set forth as Exhibit A, attached hereto and
made a part hereof, with such appropriate insertions, omissions,
substitutions, and other variations as required or permitted by this
Agreement.
3. EXERCISE OF WARRANT.
3.1 Cash Exercise. The Warrants are exercisable (not less than 100 as
to each exercise) during the term set forth in Section 1 hereof at the Exercise
Price hereof payable by certified check or cashier's check or money order
payable in lawful money of the United States, subject to adjustment as provided
in Article 8 hereof. 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 Shares purchased, at the
Company's principal executive offices at Xxxxx 00, X.X. Xxx 000, Xxxxxxx,
Xxxxxxxx 00000 the registered holder of a Warrant Certificate ("Holder" or
"Holders") shall be entitled to receive a certificate or certificates for the
Shares so purchased. The purchase rights represented by each Warrant Certificate
are exercisable at the option of the Holders thereof, in whole or in part (but
not as to fractional shares of the Common Stock). In the case of the purchase of
less than all the Shares purchasable under any Warrant Certificate, the Company
shall cancel said Warrant Certificate upon surrender thereof and shall execute
and deliver a new Warrant Certificate of like tenor for the balance of the
Shares purchasable thereunder.
3.2 Cashless Exercise. At any time during the Warrant Exercise Term,
the Holder may, at the Holder's option, exchange, in whole or in part, the
Warrants represented by such Holder's Warrant Certificate (a "Warrant
Exchange"), into the number of Shares determined in accordance with this Section
3.2, by surrendering such Warrant Certificate at the principal office of the
Company or at the office of its transfer agent, accompanied by a notice stating
such Holder's intent to effect such exchange, the number of Warrants (not less
than 100) to be so exchanged and the date on which the Holder requests that such
Warrant Exchange occur (the "Notice of Exchange"). The Warrant Exchange shall
take place on the date specified in the Notice of Exchange or, if later, the
date the Notice of Exchange is received by the Company (the "Exchange Date").
Certificates for the Shares issuable upon such Warrant Exchange and, if
applicable, a new Warrant Certificate of like tenor representing the Warrants
which were subject to the surrendered Warrant Certificate and not included in
the Warrant Exchange, shall be issued as of the Exchange Date and delivered to
the Holder within five (5) days following the Exchange Date. In connection with
any Warrant Exchange, the Holder shall be entitled to subscribe for and acquire
(i) the number of Shares (rounded to the next highest integer) which would, but
for the Warrant Exchange, then be issuable pursuant to the provisions of Section
3.1 above upon the
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exercise of the Warrants specified by the Holder in its Notice of Exchange
(the "Total Number") less (ii) the number of Shares equal to the quotient
obtained by dividing (a) the product of the Total Number and the
existing Exercise Price (as hereinafter defined) by (b) the Market Price (as
hereinafter defined) of a Public Share on the day preceding the Warrant
Exchange. "Market Price" at any date shall be deemed to be the last reported
sale price, or, in case no such reported sales takes place on such day, the
average of the last reported sale prices for the last three (3) trading days, in
either case as officially reported by the principal securities exchange on which
the Common Stock is listed or admitted to trading or as reported in the NASDAQ
National Market System, or, if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on the NASDAQ National
Market System, the closing bid price as furnished by (i) the National
Association of Securities Dealers, Inc. through NASDAQ or the Electronic
Bulletin Board or (ii) a similar organization if NASDAQ is no longer reporting
such information.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants,
the issuance of certificates for the Shares purchased 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 certificates shall (subject to the
provisions of Article 5 hereof) be issued in the name of, or in such names as
may be directed by, the Holder thereof; provided however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Shares
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future Chairman or Vice Chairman of the Board of
Directors, or Chief Executive Officer, or President or Vice President of the
Company under its corporate seal reproduced thereon, attested to by the
manual or facsimile signature of the present or any future Secretary or
Assistant Secretary of the Company.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Shares shall bear a legend substantially similar to the
following:
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"The securities represented by this certificate and the other securities
issuable upon exercise thereof have not been registered for purposes of
public distribution under the Securities Act of 1933, as amended (the
"Act"), and may not be offered or sold except (i) pursuant to an effective
Registration Statement under the Act, (ii) to the extent applicable,
pursuant to Rule 144 under the Act (or any similar rule under such Act
relating to the disposition of securities), or (iii) upon the delivery by
the Holder to the Company of an opinion of counsel, reasonably satisfactory
to counsel to the Company, stating that an exemption from registration
under such Act is available."
5. RESTRICTION ON TRANSFER OF WARRANTS. The Holder of a Warrant
Certificate, by the Holder's acceptance thereof, covenants and agrees that the
Warrants are being acquired as an investment and not with a view to the
distribution thereof, and that the Warrants may be sold, transferred, assigned,
hypothecated or otherwise disposed of, in whole or in part, to any person (a
"Permitted Transferee"), provided such transfer, assignment, hypothecation or
other disposition is made in accordance with the provisions of the Act.
6. PRICE.
6.1 Initial and Adjusted Exercise Price. The initial exercise price of
each Warrant shall be $1.00 per Share. The adjusted exercise price per Share
shall be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the provisions of
Article 8 hereof.
6.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. REGISTRATION RIGHTS.
7.1 Registration Under the Securities Act of 1933. The Warrants and
Shares and any other securities issuable upon exercise of the Warrants, have not
been registered under the Act.
7.2 Registrable Securities. As used herein the term "Registrable
Security" means each of the Warrants, the Shares and any shares of Common Stock
issued upon any stock split or stock dividend in respect of such Shares;
provided, however, that with respect to any particular Registrable Security,
such security shall cease to be a Registrable Security when, as of the date of
determination, (i) it has been effectively registered under the Act and disposed
of pursuant thereto, (ii) registration under the Act is no longer required for
the subsequent public distribution of such security or (iii) it has ceased to be
outstanding. The term "Registrable Securities" means any and/or all of the
securities falling within the foregoing definition of a "Registrable Security."
In the event of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, such adjustment
shall
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be made in the definition of "Registrable Security" as is appropriate in
order to prevent any dilution or enlargement of the rights granted pursuant to
this Article 7.
7.3 Piggyback Registration. If, at any time commencing January 14,
1999 and ending five (5) years after, the Company proposes to register any of
its securities under the Act (for purposes of this Article 7, the "Registration
Statement") (other than pursuant to Form X-0, Xxxx X-0 or a comparable
Registration Statement) it will give written notice of its intention to do so by
registered mail ("Notice"), at least thirty (30) business days prior to the
filing of each such Registration Statement, to all Holders of the Registrable
Securities. Upon the written request of such a Holder (a "Requesting Holder"),
made within twenty (20) business days after receipt of the Notice that the
Company include any of the Requesting Holder's Registrable Securities in the
proposed Registration Statement, the Company shall as to each such Requesting
Holder, use its best efforts to effect the registration under the Act of the
Registrable Securities which it has been so requested to register ("Piggyback
Registration"), at the Company's sole cost and expense and at no cost or expense
to the Requesting Holder (except for underwriting fees or commissions, brokers'
commissions, or the like).
Notwithstanding the provisions of this Section 7.3, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 7.3 (irrespective of whether a written request for inclusion of
Registrable Securities shall have already been made) to elect not to file any
such proposed Registration Statement, or to withdraw the same after the filing
but prior to the effective date thereof.
7.4 Covenants of the Company With Respect to Registration. The
Company covenants and agrees as follows:
(a) The Company shall pay all costs, fees and expenses (other than
underwriting fees, discounts and non-accountable expense allowances applicable
to the Registrable Securities and the fees and expenses of counsel retained by
the Holders of the Registrable Securities) in connection with all Registration
Statements filed pursuant to Sections 7.3 hereof including, without limitation,
the Company's legal and accounting fees, printing expenses, blue sky fees and
expenses.
(b) The Company will take all necessary action which may be required
in qualifying or registering the Registrable Securities included in the
Registration Statement for offering and sale under the securities or blue sky
laws of such states as are reasonably requested by the Holders of such
securities.
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(c) The Company shall indemnify any Holder of the Registrable
Securities to be sold pursuant to any Registration Statement and any underwriter
or person deemed to be an underwriter under the Act and each person, if any, who
controls such Holder or underwriter or person deemed to be an underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage,
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Act, the Exchange Act or otherwise, arising
from such Registration Statement, to the same extent and with the same effect as
the provisions pursuant to which the Company has agreed to indemnify each of the
Underwriters as set forth in Section 8 of the Underwriting Agreement between the
Company and Network 1 Financial Securities, Inc., dated December 13, 1995,
("Underwriting Agreement") and to provide for just and equitable contribution as
set forth in Section 8 of the Underwriting Agreement..
(d) Any Holder of the Registrable Securities to be sold pursuant to a
Registration Statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holder, or such Holder's successors or
assigns, for specific inclusion in such Registration Statement to the same
extent and with the same effect as the provisions pursuant to which the
Underwriters have agreed to indemnify the Company as set forth in Section 8 of
the Underwriting Agreement and to provide for just and equitable contribution as
set forth in Section 8 of the Underwriting Agreement.
(e) Nothing contained in this Agreement shall be construed as
requiring any Holder to exercise the Warrants held by such Holder prior to the
initial filing of any Registration Statement or the effectiveness thereof.
(f) The Company shall promptly deliver copies of all correspondence
between the Securities and Exchange Commission and the Company, its counsel or
auditors with respect to the Registration Statement to each Holder of
Registrable Securities included for registration in such Registration Statement
pursuant to Section 7.3 hereof that requests such correspondence and to the
managing underwriter, if any, of the offering in connection with which
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such Holder's Registrable Securities are being registered and shall permit
each such Holder and managing underwriter to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted
from the Registration Statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. Such investigation shall include access to books, records and
properties and opportunities to discuss the business of the Company with its
officers and independent auditors, all to such reasonable extent and at such
reasonable times and as often as any such Holder or managing underwriter shall
reasonably request.
8. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SHARES.
8.1 Computation of Adjusted Price. In case the Company shall at any
time after the date hereof pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock, then upon such dividend or distribution,
the Exercise Price in effect immediately prior to such dividend or distribution
shall forthwith be reduced to a price determined by dividing: (a) an amount
equal to the total number of shares of Common Stock outstanding immediately
prior to such dividend or distribution multiplied by the Exercise Price in
effect immediately prior to such dividend or distribution, by (b) the total
number of shares of Common Stock outstanding immediately after such issuance or
sale. For the purposes of any computation to be made in accordance with the
provisions of this Section 8.1, the Common Stock issuable by way of dividend or
other distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business on the date following the date
fixed for the determination of shareholders entitled to receive such dividend or
other distribution.
8.2. Subdivision and Combination. In case the Company shall
at any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
8.3. Adjustment in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Article 8, the number of
Shares issuable upon the exercise of each Warrant shall be adjusted to the
nearest full number by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Shares issuable
upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
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8.4. Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the surviving corporation
and which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or in the
case of a sale or conveyance to another corporation of the property of the
Company as an entirety, the Holders shall thereafter have the right to purchase
the kind and number of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance as if the Holders were the owners of the shares of Common Stock
underlying the Warrants immediately prior to any such events at a price equal to
the product of (x) the number of shares of Common Stock issuable upon exercise
of the Holder's Warrants and (y) the Exercise Price in effect immediately prior
to the record date for such reclassification, change, consolidation, merger,
sale or conveyance as if such Holders had exercised the Warrants.
8.5. Determination of Outstanding Shares of Common Stock. The
number of shares of Common Stock at any one time outstanding shall include the
aggregate number of shares of Common Stock issued and the aggregate number of
shares of Common Stock issuable upon the exercise of options, rights, warrants
and upon the conversion or exchange of convertible or exchangeable securities.
8.6. Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
exercise of all Warrants make any distribution of its assets to holders of its
Common Stock as a liquidating or a partial liquidating dividend, then the
holder of Warrants who exercises its Warrants after the record date for the
determination of those holders of Common Stock entitled to such distribution
of assets as a liquidating or partial liquidating dividend shall be entitled
to receive for the Exercise Price per Warrant, in addition to each share of
Common Stock, the amount of such distribution (or, at the option of the
Company, a sum equal to the value of any such assets at the time of such
distribution as determined by the Board of Directors of the Company in good
faith) which would have been payable to such holder had he been the holder
of record of the Common Stock receivable upon exercise of his Warrant on
the record date for the determination of those entitled to such distribution.
At the time
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of any such dividend or distribution, the Company shall make appropriate
reserves to ensure the timely performance of the provisions of this Subsection
8.6.
8.7. Subscription Rights for Shares of Common Stock or Other
Securities. In the case the Company or an affiliate of the Company shall at any
time after the date hereof and prior to the exercise of all the Warrants issue
any rights, warrants or options to subscribe for shares of Common Stock
or any other securities of the Company or of such affiliate to all the
shareholders of the Company, the Holders of unexercised Warrants on the
record date set by the Company or such affiliate in connection with such
issuance of rights, warrants or options shall be entitled, in addition to the
shares of Common Stock or other securities receivable upon the exercise of the
Warrants, to receive such rights, warrants or options that such Holders would
have been entitled to receive had they been, on such record date, the holders
of record of the number of whole shares of Common Stock then issuable upon
exercise of their outstanding Warrants (assuming for purposes of this Section
8.7, that the exercise of the Warrants is permissible immediately upon
issuance).
9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Shares in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction, or mutilation of any 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 Warrant
Certificates, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
10. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of Shares, nor shall it be
required to issue script or pay cash in lieu of fractional interests, it being
the intent of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of Shares.
11. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the
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exercise of the Warrants, such number of shares of Common Stock or
other securities, properties or rights 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 Shares and 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 shareholder. As
long as the Warrants shall be outstanding, the Company shall use its reasonable
efforts to cause all shares of Common Stock issuable upon the exercise of the
Warrants to be listed on or quoted by NASDAQ (or the Electronic Bulletin Board)
or listed on such national securities exchange in the event the Common Stock is
listed on a national securities exchange.
12. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement
shall be construed as conferring upon the Holder or Holders the right to vote
or to consent or to receive notice as a shareholder in respect of any meetings
of shareholders for the election of directors or any other matter, or as having
any rights whatsoever as a shareholder of the Company. If, however, at any
time prior to the expiration of the Warrants and their exercise, any of the
following events shall occur:
(a) the Company shall take a record of the Holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings or
capital surplus (in accordance with applicable law), as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the Holders of its Common Stock
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall
be proposed; or
(d) reclassification or change of the outstanding shares of Common
Stock (other than a change in par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), consolidation of the
Company with, or merger of the Company into, another corporation (other than a
consolidation or merger in which the Company is the surviving corporation and
which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares
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or a change in par value, as aforesaid), or a sale or conveyance to another
corporation of the property of the Company as an entirety is proposed; or
(e) The Company or an affiliate of the Company shall propose to issue
any rights to subscribe for shares of Common Stock or any other securities of
the Company or of such affiliate to all the shareholders of the Company;
then, in any one or more of said events, the Company shall give
written notice to the Holder or Holders of such event at least ten (10) days
prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the shareholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription rights,
options or warrants, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date
or the date of closing the transfer books, as the case may be. Failure to
give such notice or any defect therein shall not affect the validity of any
action taken in connection with the declaration or payment of any such dividend,
or distribution, or the issuance of any convertible or exchangeable securities,
or subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to 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 3 of this Agreement or to such other address as
the Company may designate by notice to the Holders.
14. SUPPLEMENTS AND AMENDMENTS. The Company and the Holders may from
time to time supplement or amend this Agreement without the approval of any
Holders of Warrant Certificates 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 the Holders may
deem necessary or desirable and which the Company and the Holders deem not to
adversely affect the interests of the Holders of Warrant Certificates.
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15. SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders
and their respective successors and assigns hereunder.
16. TERMINATION. This Agreement shall terminate at the close of
business on January 14, 2002. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when all Warrants have been exercised and
all the Shares have been resold to the public; provided, however, that the
provisions of Section 7.4 hereof shall survive any termination pursuant to
this Section 16 until the close of business on January 14, 2002.
17. GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
laws of said State without giving effect to the rules of said state
governing the conflicts of laws.
18. ENTIRE AGREEMENT; MODIFICATION. This Agreement (including the
Advisory Agreement, to the extent portions thereof are referred to herein)
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.
19. 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.
20. 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.
21. BENEFITS OF THIS AGREEMENTS. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company and
the Holders and any other registered Holder or Holders of the Warrant
Certificates, Warrants or the Shares, any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company and the Holders and any other Holder or
Holders of the Warrant Certificates, Warrants or the Shares.
22. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
XXXXX-MIDLAND CORPORATION
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------- ------------------------------
Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxx
President
/s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx, Xx.
----------------------------
Xxxxxxx X. Xxxx, Xx.
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EXHIBIT A
XXXXX-MIDLAND, CORPORATION
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE HOLDER TO
THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL FOR THE
COMPANY, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, January 14, 2002
No. W-4 _________ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that _____________, or registered assigns, is
the registered holder of Warrants to purchase, at any time from January 14, 1999
until 5:00 p.m. New York time on January 14, 2002 (the "Expiration Date"), up to
__________ fully-paid and non-assessable shares (the "Shares") of common stock,
$.01 par value per share (the "Common Stock"), of Xxxxx-Midland Corporation, at
the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $1.00 per Share upon surrender of this Warrant Certificate
and payment of the Exercise Price at an office or agency of the Company, but
subject to the conditions set forth herein and in the Warrant Agreement dated as
of January 14, 1999 between the Company and Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxx, Xx. (the "Warrant Agreement"). Payment of
the Exercise Price may be made in cash, or by certified or cashier's check or
money order or official bank check in New York Clearing House funds payable to
the order of the Company, or any combination thereof.
No Warrant may be exercised after 5:00 P.M., New York City 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 in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events, the Exercise Price and 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
Certificates shall not in any way change, alter, or otherwise impair, the rights
of the holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate
or Warrant Certificates of like tenor and evidencing in the aggregate a
like number of Warrants shall be issued to the transferee(s) in exchange for
this Warrant Certificate, subject to the limitations provided herein and in
the Warrant Agreement, without any charge except for any tax or other
governmental charge imposed in connection 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 under its corporate seal.
Dated: January 14, 1999
[SEAL]
XXXXX-MIDLAND CORPORATION
By: _________________________________
Name:
President:
Attest:
-----------------------------
Name:
Secretary:
2
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase:
_________________ Shares of Common Stock;
and herewith tenders in payment for such Shares, cash or a certified or official
bank check payable in New York Clearing House Funds to the order of
Xxxxx-Midland, Corporation in the amount of $_______________, all in accordance
with the terms hereof. The undersigned requests that a certificate for such
Shares be registered in the name of ______________ whose address is
________________________________________________________________ and that such
Certificate be delivered to ________________________ whose address is
-----------------------------------------------------------.
Dated: _________________ Signature: ______________________________________
(Signature must conform in all respects to the
name of holder as specified on the face of
the Warrant Certificate.)
--------------------------
(Insert Social Security or Other
Identifying Number of Holder)
3
[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
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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
Xxxxx-Midland, Corporation, with full power of substitution.
Dated: _________________ Signature: ______________________________________
(Signature must conform in all respects to the
name of holder as specified on the face of
the Warrant Certificate.)
--------------------------
(Insert Social Security or Other
Identifying Number of Holder)
4
