UTEK CORPORATION
AND
[Underwriter]
UNDERWRITER'S
WARRANT AGREEMENT
UNDERWRITER'S WARRANT AGREEMENT dated as of __________, 2000
by and between UTEK CORPORATION, a Delaware corporation (the "Company"), and
[Underwriter] (hereinafter referred to variously as the "Holder" or the
"Underwriter").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to the Under writer
warrants ("Warrants") to purchase up to 50,000 shares of common stock, $.0001
par value, of the Company (the "Shares"); and
WHEREAS, the Underwriter has agreed pursuant to the
underwriting agreement (the "Underwriting Agreement") dated _____________, 2000
by and between the Underwriter and the Company to act as the underwriter in
connection with the Company's public offering of up to 1,000,000 shares; and
WHEREAS, the Warrants to be issued pursuant to this Agreement
will be issued on the Closing Date (said term used herein as defined in the
Underwriting Agreement) by the Company to the Underwriter in consideration for,
and as part of the Under writer's compensation in connection with, the
Underwriter's acting as the underwriter pursuant to the Underwriting Agreement;
1
NOW, THEREFORE, in consideration of the premises, the payment
by the Underwriter 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 Holder is hereby granted the right to purchase,
at any time from the first anniversary of the the effective date of the Public
Offering (the "Effective Date"), until 5:00 p.m., New York time, on the fifth
anniversary of the Effective Date, up to ten percent (10%) of the Shares sold by
the Underwriter in the Public Offering at an initial exercise price (subject to
adjustment as provided in Article 8 hereof) of $9.90 per Share (165% of the
Public Offering price per Share, subject to the terms and conditions of this
Agreement.
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 in 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 Warrants. The Warrants are exercisable during
the term set forth in Section 1 hereof at the Exercise Price per share set forth
in Section 6 hereof payable by certified or cashier's check or money order
2
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 (and such other amounts,
if any, arising pursuant to Section 4 hereof) at the Company's principal offices
located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx 00000, the registered
holder of a Warrant Certificate ("Holder" or "Holders") shall be entitled to
receive a certificate or certificates for the securities comprising the Shares
so purchased. The purchase rights represented by each Warrant Certificate are
exercisable at the option of the Holder thereof, in whole or in part (but not as
to fractional Shares). The Warrants may be exercised to purchase all or part of
the Shares represented thereby. In the case of the purchase of less than all the
Shares purchasable on the exercise of Warrants represented by a Warrant
Certificate, the Company shall cancel the Warrant Certificate represented
thereby upon the surrender thereof and shall execute and deliver a new Warrant
Certificate of like tenor for the balance of the Shares purchasable thereunder.
4. Issuance of Certificates. Upon the exercise of the Warrants
and payment of the Exercise Price therefor, the issuance of certificates for the
shares shall be made forthwith (and in any event within three (3) business days
thereafter) without further charge to the Holder thereof, and such certificates
shall (subject to the provisions of Sections 5 and 7 hereof) be issued in the
3
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 then present Chairman or Vice Chairman of the
Board of Directors or President or Vice President of the Company under its
corporate seal reproduced thereon, attested to by the manual or facsimile
signature of the then present Secretary or Assistant Secretary or Treasurer or
Assistant Treasurer of the Company. Warrant Certificates shall be dated the date
of execution by the Company upon initial issuance, division, exchange,
substitution or transfer.
5. Restriction On Transfer of Warrants. The Holder of a
Warrant Certificate (and its Permitted Transferee, as defined below), by its
acceptance thereof, covenants and agrees that the Warrants are being acquired as
an investment and not with a view to the distribution thereof; 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
4
transfer, assignment, hypothecation or other deposition is made in accordance
with the provisions of the Securities Act of 1933, as amended (the "Act"); and
provided, further, that until ______________, 2001 only officers and directors
of the Underwriter, and any co-underwriter, selling group member and their
respective officers and directors shall be Permitted Transferees.
6. Exercise Price.
a. Initial and Adjusted Exercise Price. Except as
otherwise provided in Section 8 hereof, the initial exercise price of each
Warrant shall be $9.90 per Share. The adjusted exercise price shall be the price
which shall result from time to time from any and all adjustments of the initial
exercise price in accordance with the provisions of Section 8 hereof.
b. 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.
a. Registration Under the Securities Act of 1933.
The Warrants have not been registered under the Act. The Warrant certificates
shall bear the following legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered for sale or sold except
pursuant to (i) an effective registration statement under the
Act, or (ii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer, that an
exemption from registration under such Act is available.
b. Demand Registration. (1) At any time commencing
one (1) year and expiring five (5) years after the effective date of the
Company's Registration Statement relating to the Public Offering (the
5
"Effective Date"), the Underwriter, or the then Holder(s) of at least a majority
of the Warrants, shall have the right, exercisable by written notice to the
Company, to have the Company prepare and file with the Securities and Exchange
Commission (the "Commission"), on one (1) occasion, a registration or offering
statement on Form S-1 and such other documents, including a prospectus, as may
be necessary in the opinion of both counsel for the Company and counsel for the
Underwriter and the Holders, in order to comply with the provisions of the Act,
so as to permit a public offering and sale, for a period of nine (9) months, of
the shares underlying the Warrants ("Warrant Securities") by such Holders and
any other Holders of the Warrants and/or Warrant Securities who notify the
Company within fifteen (15) business days after receipt of the notice described
above. The Underwriter may demand registration on behalf of the Holders without
exercising the Underwriter's Warrants, and are never required to exercise same.
(2) The Company covenants and agrees to give written
notice of any registration request under this Section 7(b) by the Underwriter to
all other registered Holders of the Warrants and the Warrant Securities within
ten (10) days from the date of the receipt of any such registration request.
c. Piggyback Registration. If, at any time within the
four (4) year period commencing one (1) year and expiring five (5) years after
the Effective Date, the Company should file a registration statement with the
Commission under the
6
Act (other than in connection with a merger or pursuant to Forms S-4 or S-8) it
will give written notice by registered mail, at least thirty (30) days prior to
the filing of each such registration statement, to the Underwriter and to all
other Holders of the Warrants and/or the Warrant Securities of its intention to
do so. If the Underwriter or other Holders of the Warrants and/or the Warrant
Securities notify the Company within twenty (20) days after receipt of any such
notice of its or their desire to include any such securities in such proposed
registration statement, the Company shall afford the Underwriter and such
Holders of the Warrants and/or the Warrant Securities the opportunity to have
any such Warrant Securities registered under such registration statement.
Notwithstanding the provisions of this Section 7(c), the Company shall have the
right at any time after it shall have given written notice pursuant to this
Section 7(c) (irrespective of whether a written request for inclusion of any
such securities have shall have 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. If a subsequent underwriter objects to the
above piggy-back rights, such objection would preclude such inclusion. However,
in such event, the Company will, within six (6) months of completion of such
subsequent underwriting, file at its sole expense a registration statement
relating to such excluded securities, which shall be in addition to any
registration statement required to be filed pursuant to Section 7(b).
7
d. Covenants of the Company With Respect to
Registration. In connection with any registration under Sections 7(b) and 7(c)
hereof, the Company covenants and agrees as follows:
(1) The Company shall use its best efforts
to file a registration statement within thirty (30) days of receipt of any
demand therefor, shall use its best efforts to have any registration statements
declared effective at the earliest possible time, and shall furnish each Holder
desiring to sell the Warrant Securities such number of prospectuses as shall
reasonably be requested.
(2) The Company shall pay all costs
(excluding fees and expenses of Holder(s)' counsel and any underwriting
discounts or selling fees, expenses or commissions), fees and expenses in
connection with the first registration statement filed pursuant to Section 7(b)
and any registration statement filed pursuant to Section 7(c) hereof including,
without limitation, the Company's legal and accounting fees, printing expenses,
blue sky fees and expenses. If the Company shall fail to comply with the
provisions of Section 7(d)(1), the Company shall, in addition to any other
equitable or other relief available to the Holder(s), be liable for any or all
incidental, special and consequential damages and damages due to loss of profit
sustained by the Holder(s) requesting registration of their Warrant Securities.
(3) The Company will take all necessary
action which may be required to qualify or register the Warrant Securities
8
included in a registration statement for offering and sale under the securities
or blue sky laws of such states as reasonably are requested by the Holder(s),
provided that the Company shall not be obligated to execute or file any general
consent to service of process or to qualify as a foreign corporation to do
business under the laws of any such jurisdiction.
(4) The Company shall indemnify the
Holder(s) of the Warrant Securities to be sold pursuant to any registration
statement and each person, if any, who controls such Holders within the meaning
of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of
1934, as amended ("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 but only to the same extent and with the same effect as
the provisions pursuant to which the Company has agreed to indemnify the
Underwriter contained in Section 8 of the Underwriting Agreement, and the
Holder(s) shall indemnify the Company to the same extent and with the same
effect as the provisions pursuant to which the Underwriter has agreed to
indemnify the Company contained in Section 8 of the Underwriting Agreement.
(5) The Holder(s) of the Warrant Securities
to be sold pursuant to a registration statement, and their successors and
9
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 or 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 Holders,
or their successors or assigns, for specific inclusion in such registration
statement to the same extent and with the same effect as the provisions
contained in Section 8 of the Underwriting Agreement pursuant to which the
Underwriter has agreed to indemnify the Company.
(6) Nothing contained in this Agreement
shall be construed as requiring the Holder(s) to exercise their Warrants prior
to the initial filing of any registration statement or the effectiveness
thereof.
(7) The Company shall not be entitled to
include any securities other than the Warrant Securities in any registration
statement filed pursuant to Section 7(b) hereof without the prior written
consent of the Underwriter and the Holders of the Warrant and the Warrant
Securities representing a Majority of such securities (assuming exercise of all
of the Warrants).
10
(8) The Company shall furnish to each Holder
participating in the offering and to each underwriter, if any, a signed
counterpart, addressed to such Holder or underwriter of (i) an opinion of
counsel to the Company, dated the effective date of such registration statement
(and if such registration includes an underwritten public offering, an opinion
dated the date of the closing under the underwriting agreement), and (ii) a
"cold comfort" letter dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, a letter
dated the date of the closing under the underwriting agreement) signed by the
independent public accounts who have issued a report on the Company's financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
letter, with respects to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public offerings
of securities.
(9) The Company shall as soon as practicable
after the effective date of the registration statement, and in any event within
15 months thereafter, make "generally available to its security holders" (within
the meaning of Rule 158 under the Act) an earnings statement (which need not be
audited) complying with Section 11(a) of the Act and covering a period of at
least 12 consecutive months beginning after the effective date of the
registration statement.
11
(10) The Company shall deliver promptly to
each Holder participating in the offering requesting the correspondence
described below and any managing underwriter copies of all correspondence
between the Commission and the Company, its counsel or auditors with respect to
the registration statement and permit each Holder and 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. ("NASD"). 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
shall reasonably request.
(11) The Company shall enter into an
underwriting agreement with the managing underwriter selected for such
underwriting by Holders holding a Majority of the Warrant Securities requested
to be included in such underwriting, except that in connection with an offering
for which the Holders have piggyback rights, the Company shall have the sole
right to select the managing underwriter. Such underwriting agreement shall be
satisfactory in form and substance to the Company, a Majority of
12
such Holders and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such other terms as
are customarily contained in agreements of that type used by the managing
underwriter. The Holders shall be parties to any underwriting agreement relating
to an underwritten sale of their Warrant Securities and may, at their option,
require that any or all the representations, warranties and covenants of the
Company to or for the benefit of such underwriters shall also be made to and for
the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution.
(12) For purposes of this Agreement, the
term "Majority" in reference to the Holders of the Warrants or Warrant
Securities, shall mean in excess of fifty percent (50%) of the then outstanding
Warrants or Warrant Securities that (i) are not held by the Company, an
affiliate, officer, creditor, employee or agent thereof or any of their
respective affiliates, members of their family, persons acting as nominees or in
conjunction therewith, or (ii) have not been resold to the public pursuant to a
registration statement filed with the Commission under the Act.
e. Repurchase of Warrants. In the event the Company
shall fail to file the registration statement required by Section 7(b), or such
registration statement shall not be declared effective within 150 days of the
written request, then the Underwriter may require the Company to purchase, on
the 151st day, the Underwriter's Warrants at a price equal to the difference
13
between the Exercise Price and the market price per share of Common Stock as
averaged over the mean between the "bid and "asked" price as of the close of
each business day during the two-week period immediately preceding the 151st
day; provided, however, that at the time of such purchase the average market
price shall be more than $9.90 further provided that the Company's net worth, at
such time, is at least three (3) times the amount of the aggregate purchase
price for such Underwriter's Warrants to be purchased.
f. Further Registrations. The Company will cooperate
with the Holder(s) of the Warrants in preparing and signing any registration
statement, in addition to the registration statements discussed above, required
in order to sell or transfer the Warrants and will supply all information
required therefor, but such additional registration statement expenses or
offering statement expenses will be prorated between the Company and the Holders
of the Warrants according to the aggregate sales price of the securities being
issued. The provision of Section 7(d) other than subsection (2) shall apply to
any such registration statement.
8. Adjustments to Exercise Price and Number of Securities.
a. 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.
14
b. Adjustment in Number of Securities. Upon each
adjustment of the Exercise Price pursuant to the provisions of this Section 8,
the number of Securities issuable upon the exercise of each Warrant shall be
adjusted to the nearest full amount by multiplying a number equal to the
Exercise Price in effect immediately prior to such adjustment by the number of
Securities issuable upon exercise of the Warrants immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
c. Definition of Common Stock. For the purpose of
this Agreement, the term "Common Stock" shall mean (i) the class of stock
designated as Common Stock in the Certificate of Incorporation of the Company as
it may be amended as of the date hereof, or (ii) any other class of stock
resulting from successive changes or reclassification of such Common Stock
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value. In the event that the Company shall after the
date hereof issue securities with greater or superior voting rights than those
of the shares of Common Stock outstanding as of the date hereof, the Holder, at
its option, may receive upon exercise of any Warrant either shares of Common
Stock or a like number of such securities with greater or superior voting
rights.
d. Reclassification, Merger or Consolidation. The
Company will not merge, reorganize or take any other action which would
15
terminate the Underwriter's Warrants without first making adequate provision for
the Underwriter's Warrants. 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 case of any consolidation of the Company with, or merger of
the Company with, or merger of the Company into, another corporation (other than
a merger with a subsidiary in which merger the Company is the continuing
corporation and other than a consolidation or merger which does not result in
any reclassification or change of the outstanding Common Stock except a change
as a result of a subdivision or combination of such shares or a change in par
value, as aforesaid), the Holder of each Warrant then outstanding or to be
outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation or merger, by a holder of the number of shares of
Common Stock of the Company for which such Warrant might have been exercised
immediately prior to such reclassification, consolidation, merger, sale or
transfer, and in the event of a consolidation, merger or sale of property, the
corporation formed by such consolidation or merger or acquired such property
shall execute and deliver to the Holder a supplemental warrant agreement to such
effect. Such supplemental warrant agreement shall provide for adjustments which
shall be identical to the adjustment to those provided in Section 8. The
provisions of this Section 8(d) shall similarly apply to successive
consolidations or mergers.
16
e. No Adjustment of Exercise Price in Certain Cases.
No adjustment of the Exercise Price shall be made:
(1) Upon the issuance or sale of the
Warrants or the shares of Common Stock issuable upon the exercise of (i) the
Warrants, or (ii) the options, warrants, stock purchase agreements and
convertible or exchangeable securities outstanding or in effect on the date
hereof as described in the prospectus relating to the Public Offering; or
(2) If the amount of said adjustment shall
be less than five (5) cents per Share, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least five (5) cents per Share.
f. Dividends and Other Distributions. In the event
that the Company shall at any time prior to the exercise of all the Warrants
declare a dividend (other than a cash dividend or otherwise distribute to its
stockholders any assets, property, rights, evidences of indebtedness, securities
(other than shares of Common Stock), whether issued by the Company or by
another, or any other thing of value, the Holders of the unexercised Warrants
17
shall thereafter be entitled, in addition to the shares of Common Stock, to
receive, upon the exercise of such Warrants, the same property, assets, rights,
evidences of indebtedness, securities or any other thing of value that they
would have been entitled to receive at the time of such dividend or distribution
as if the Warrants had been exercised immediately prior to such dividend or
distribution. At the time of any such dividend or distribution, the Company
shall make appropriate reserves to ensure the timely performance of the
provisions of this Section 8(f).
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 Warrants, 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 of Common
Stock or public warrants upon the exercise of the Warrant, nor shall it be
required to issue script or pay cash in lieu of fractional interests, it being
18
the intent of the parties that all fractional interests; provided, however, that
if a Holder exercises all Warrants held of record by such Holder the fractional
interests shall be eliminated by rounding any fraction up to the nearest whole
number of shares of Common Stock.
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 exercise of the Warrants,
such number of shares of Common Stock, 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 of Common
Stock, issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. As
long as the Warrants shall be outstanding, the Company shall use its best
efforts to cause the Common Stock to be listed (subject to official notice of
issuance) on all securities exchanges on which the Common Stock issued to the
public in connection herewith may then be listed or quoted.
12. Notices to Warrant Holders. Nothing contained in this
Agreement shall be construed as conferring upon the Holders the right to vote or
to consent or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder 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:
19
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, 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; then, in any one or more of said
events, the Company shall give written notice of such event at least
fifteen (15) days prior to the date fixed as a record date or the date
of closing the transfer books for the determination of the
20
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, 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 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 hereof or to such other address as the Company may designate
by notice to the Holders.
14. Supplements and Amendments. The Company and the
Underwriter may from time to time supplement or amend this Agreement without the
approval of any Holders of Warrant Certificates (other than the Underwriter) 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 Underwriter may deem necessary or desirable and which
the Company and the Underwriter deem shall not adversely affect the interests of
the Holders of Warrant Certificates.
21
15. Successors. All the covenants and provisions of this
Agreement shall be binding upon and inure to the benefit of the Company, the
Underwriter, the Holders and their respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate at the close
of business on the fifth anniversary of the Effective Date. Notwithstanding the
foregoing, the indemnification provisions of Section 7 shall survive such
termination until the close of business on the date of the expiration of any
applicable statue of limitations.
17. Governing Law; Submission to Jurisdiction. 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. The Company, the
22
Underwriter and the Holders hereby agree that any action, proceeding or claim
against it arising out of, or relating in any way to, this Agreement shall be
brought and enforced in the courts of the State of New York or of the United
States of America for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company, the
Underwriter and the Holders hereby irrevocably waive any objection to such
exclusive jurisdiction or inconvenient forum. Any such process or summons to be
served upon any of the Company, the Underwriter and the Holders (at the option
of the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof, by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
13 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the party so served in any action, proceeding or claim.
18. Entire Agreement; Modification. This Agreement (including
the Underwriting 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. Subject to Section 14, this Agreement 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.
23
21. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company
and the Underwriter and any other registered Holder(s) of the Warrant
Certificates or Warrant Securities 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 Underwriter and any other Holder(s) of the
Warrant Certificates or Warrant Securities.
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.
23. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company, the Underwriter and their respective
successors and assigns and the Holders from time to time of the Warrant
Certificate or any of them.
24
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
UTEK CORPORATION
By:__________________________
[Underwriter]
By:__________________________
25
EXHIBIT A
---------
WARRANT CERTIFICATE
THE SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not
be offered for sale or sold except pursuant to (i) an effective
registration statement under the Act, or (ii) an opinion of counsel, if
such opinion shall be reasonably satisfactory to counsel to the issuer,
that an exemption from registration under such Act is available.
THE TRANSFER OR EXCHANGE OF THE WARRANT REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE COMMENCING _______________, 2001 THROUGH
5:00 P.M., NEW YORK __________, 2005
No. W-1 ______ Warrants
This Warrant Certificate certifies that [Underwriter] (the
"Underwriter") or registered assigns, is the registered holder of ______
Warrants to purchase initially, at any time from _______, 2001, until 5:00 p.m.,
New York time on _________, 2005 ("Expiration Date"), up to ______ shares of the
Common Stock $.0001 par value (the "Shares") of the Utek Corporation, a
____________ corporation (the "Company") at the exercise price of $9.90 per
Share (the "Exercise Price"), and upon the 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 ____________, 2000 by and between the Company and the Underwriter (the
"Warrant Agreement"). Payment of the Exercise Price shall be made by certified
or cashier's check or money order payable to the order of the Company.
No Warrant may be exercised after 5:00 p.m., New York time, on
the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part
Underwriter's of a duly authorized issue of Warrants issued pursuant to the
Warrant Agreement between the Company and the Underwriter (the "Warrant
Agreement"), which Warrant Agreement is hereby incorporated by reference in and
made a part of this instrument and is hereby referred to for a description of
the rights, limitation of rights, obligations, duties and immunities thereunder
of the Company and the 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 as provided herein, 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 numbered 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 undersigned has executed this
certificate this __ day of ____________, 2000.
UTEK CORPORATION
By:__________________________
ATTEST:
By:_________________
Secretary
[FORM OF ELECTION OF ASSIGNMENT]
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED___________________________
hereby sells, assigns and transfers unto _____________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _____________________
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated:
Signature_____________________
(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)
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase:
________ Shares
and herewith tenders in payment for such securities a certified or cashier's
check or money order payable to the order of Utek Corporation in the amount of
$______, all in accordance with the terms hereof. The undersigned requests that
a certificate for such securities be registered in the name of
___________________________ whose address is _____________________ and that such
Certificate be delivered to _____________________________________ whose address
is
--------------------------------------------------------------------------------
Dated:
Signature_______________________
(Signature must conform in
all respects to the name of
holder as specified on the
face of the Warrant
Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
