EXHIBIT 4
WARRANT AGREEMENT
This Warrant Agreement (the "Agreement"), dated as of July 16, 1998,
is by and between Xxxxxxx-Xxxxxx, Inc., a corporation duly organized and
validly existing under the laws of Delaware (the "Company"), and Colony
Investors III, L.P. (the "Holder").
WITNESSETH:
WHEREAS, the Company wishes to issue and sell to the Holder (i)
certain shares of the Company's common stock, $.01 par value per share (the
"Stock"), pursuant to the Stock Purchase Agreement dated as of the date
hereof, between the Company and the Holder, and (ii) warrants to acquire
additional shares of Stock for an aggregate purchase price of $5,232,610,
and may issue certain additional warrants in connection therewith;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
DEFINITIONS, ACCOUNTING TERMS AND DETERMINATIONS
As used herein:
"Additional Warrants" has the meaning set forth in Section 3.3 of the
Investor's Agreement.
"Board" means the Board of Directors of the Company.
"Bylaws" means the Amended and Restated Bylaws of the Company as
adopted on April 2, 1992.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company as filed with the Secretary of State of the State of
Delaware on March 27, 1992, as amended through and including April 30,
1998.
"Commission" means the Securities and Exchange Commission or any other
similar or successor agency of the Federal government administering the
Securities Act and/or the Securities Exchange Act of 1934, as amended from
time to time (the "Exchange Act").
"Date of Issuance" shall mean July 16, 1998.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled (whether through ownership of securities or other ownership
interests, by contract or otherwise) by any of the foregoing.
"Holder" shall have the meaning set forth at the head of this
Agreement and each other Person who acquires the original Warrant
Certificate or any Warrant Certificate issued upon transfer, division,
combination, partial exercise of Warrants or in replacement or substitution
therefor or who acquires Warrant Shares pursuant to the provisions of this
Agreement.
"Include" and "Including" shall be construed as if followed by the
phrase "without being limited to."
"Investor's Agreement" means that certain Investor's Agreement between
the Company and the initial Holder dated of even date herewith.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or a Governmental Authority.
"Registration Rights Agreement" means the Registration Rights
Agreement of even date herewith between the Company and the Holder relating
to the registration of the Registrable Securities (as defined therein)
under and pursuant to the Securities Act, as said Registration Rights
Agreement shall be modified and supplemented in accordance with its terms
and in effect from time to time.
"Restricted Securities" means the Warrants, any Additional Warrants
and any Warrant Shares or other securities which have been issued or are
issuable upon the exercise of such Warrants until such time as any such
Restricted Securities (a) have been sold pursuant to an effective
registration statement under the Securities Act or (b) are distributed
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act and, if it has so requested, the Company has received an
opinion of counsel (either its own counsel or, if the Company so requests,
counsel to the holders of such Restricted Securities) reasonably acceptable
to the Company that such Restricted Securities may be so transferred
without registration or pursuant to an exemption under the Securities Act,
and in each such instance the Company has delivered new Warrant
Certificates not bearing the legend prescribed by Section 2.03 hereof.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act (as such rule may be amended from time to time or any
successor or similar rule then in force).
"Securities Act" means at any time the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Stockholder" means any Person (excluding any Holder) who owns any
shares of common or preferred stock of the Company (or any successor
thereto).
"Transfer" means, unless the context otherwise requires, any
disposition of any Restricted Securities, or of any interest in any
thereof, which would constitute an offer or sale thereof within the meaning
of the Securities Act.
"Warrants" shall have the meaning assigned to such term in
Section 2.01.
"Warrant Certificate" shall have the meaning assigned to such term in
Section 2.01.
"Warrant Shares" means (a) the shares of Stock purchased or
purchasable by the Holder upon the exercise of the originally issued
Warrant or any Additional Warrants, including any Stock into which such
Stock may thereafter be changed or converted, and (b) if required
hereunder, any additional shares of Stock issued or distributed by way of a
dividend, stock split or other distribution in respect of the Stock
referred to in clause (a) above, or acquired by way of any rights offering
or similar offering made in respect of the Stock referred to in clause (a)
above.
Except as otherwise may be expressly provided herein, all accounting
terms used herein shall be interpreted in accordance with generally
accepted accounting principles consistently applied. All calculations made
for the purposes of determining compliance with the terms of this Agreement
and the Warrants shall be made by application of United States generally
accepted accounting principles consistently applied (except as otherwise
may be expressly provided herein).
ARTICLE II
ISSUANCE AND EXECUTION OF WARRANTS
Section 2.01. AUTHORIZATION AND ISSUANCE OF SHARES AND WARRANTS. The
Company has authorized: (a) the issuance of warrant certificates
substantially in the form of Annex 1 to this Agreement (each, a "Warrant
Certificate"), each evidencing warrants to purchase shares of Stock (such
Warrant Certificate issued on the Date of Issuance, other Warrant
Certificates issued in connection with Additional Warrants or upon
transfer, partial exercise, division or combination of, or in substitution
or replacement for any Warrant Certificate or the rights to purchase Stock
evidenced by each of the foregoing, is, as the context requires, sometimes
referred to herein as a "Warrant" or "Warrants"); and (b) the issuance of
such number of shares of Stock as shall permit the compliance by the
Company with its obligations to issue Stock pursuant to the Warrants. In
addition, each Warrant Certificate may have such letters, numbers or other
marks of identification or designation and such legends, summaries, or
endorsements stamped, printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as, in any particular case, may be
required to comply with any law or with any rule or regulation of any
regulatory authority or agency, or to conform to customary usage; provided,
however, that no such change shall be made which affects the duties or
obligations of the Company without the consent of the Company.
Section 2.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATE. Each
Warrant Certificate shall be executed on behalf of the Company by the
Chairman of the Board or the Company's President or any Vice President and
attested to by its Secretary or Assistant Secretary, either manually or by
facsimile signature printed thereon. In case any authorized officer of the
Company who shall have signed any Warrant Certificate shall cease to be
such officer of the Company either before or after delivery thereof by the
Company to the Holder, the signature of such person on such Warrant
Certificate shall be valid nevertheless and such Warrant Certificate may be
issued and delivered to the person entitled to receive the Warrants
represented thereby with the same force and effect as though the person who
signed such Warrant Certificate had not ceased to be such officer of the
Company. The Warrant Certificate originally issued to the Holder shall be
delivered on the Date of Issuance. The Company shall maintain books (the
"Warrant Register") for the registration of Warrants and the registration
of transfers and exchanges of Warrants.
Section 2.03. TRANSFER AND EXCHANGE OF WARRANTS.
(a) Warrant Certificates evidencing Restricted Securities (and
only such Warrant Certificates) will bear a legend in substantially
the following form:
NEITHER THE EXERCISE OF THE WARRANTS EVIDENCED BY THIS CERTIFICATE NOR
THE ISSUANCE OF SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE,
AND SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH
TRANSFER IS PURSUANT TO (i) A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO SUCH SECURITIES UNDER THE SECURITIES ACT AND THE RULES AND
REGULATIONS THEREUNDER OR (ii) AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS AND, IF IT HAS SO REQUESTED, THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL (EITHER ITS OWN COUNSEL OR, IF THE COMPANY SO REQUESTS,
COUNSEL TO THE HOLDERS OF SUCH SECURITIES) REASONABLY ACCEPTABLE TO
THE COMPANY THAT SUCH SECURITIES MAY BE SO TRANSFERRED. FURTHERMORE,
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE
SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN THE COMPANY'S
CERTIFICATE OF INCORPORATION AND IN A REGISTRATION RIGHTS AGREEMENT
AND AN INVESTOR'S AGREEMENT, BOTH DATED JULY 16, 1998.
(b) In connection with the transfer or exchange of a Restricted
Security or Securities (other than pursuant to an effective
registration statement under the Securities Act) the transferor of
such Restricted Security or Securities, upon request of the Company,
shall deliver to the Company an opinion of counsel, in substance
reasonably satisfactory to the Company, to the effect that such
Restricted Security to be issued upon such transfer or exchange may be
so issued without the foregoing legend; provided that such Restricted
Security nonetheless shall contain a legend referencing the
restrictions contained in the Investor's Agreement of even date
herewith.
(c) Subject to paragraphs (a) and (b) above, the Company shall
register the transfer of all or any whole number of Warrants covered
by any outstanding Warrant Certificate in the Warrant Register upon
surrender to the Company of Warrant Certificates accompanied by a
written instrument or instruments of transfer, in form reasonably
satisfactory to the Company, duly executed by the registered Holder or
his attorney duly authorized in writing. Upon any such registration
of transfer a new Warrant Certificate shall be issued to the
transferee and the surrendered Warrant Certificate promptly shall be
canceled by the Company. Warrant Certificates may be exchanged at the
option of the Holder thereof, upon surrender, properly endorsed by the
registered Holders, at the Company, with written instructions, for
other Warrant Certificates evidencing in the aggregate a like number
of Warrants. The Company may require the payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any such exchange or transfer.
Section 2.04. TRANSFER AND EXCHANGE OF WARRANTS. All the
restrictions imposed by this Article II upon the transferability of the
Restricted Securities shall cease and terminate as to any particular
Restricted Security when such Restricted Security shall have been
effectively registered under the Securities Act and applicable state
securities laws and sold by the Holder thereof in accordance with such
registration or sold under and pursuant to Rule 144. Whenever the
restrictions imposed by this Article II shall terminate as to any
Restricted Security as herein above provided, the Holder thereof shall be
entitled to receive from the Company, without expense (other than payment
by the Holder of any tax or governmental charge that may be imposed), a new
certificate evidencing such Restricted Security not bearing the restrictive
legend otherwise required to be borne by a certificate evidencing such
Restricted Security.
ARTICLE III
COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Holder as follows:
Section 3.01. EXISTENCE; QUALIFICATION. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
Section 3.02. CORPORATE ACTION. The Company has all necessary
corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Warrants and the Registration Rights
Agreement; the execution, delivery and performance by the Company of this
Agreement, the Warrants and the Registration Rights Agreement have been
duly authorized by all necessary corporate action on the part of the
Company; this Agreement has been duly executed and delivered by the Company
and constitutes, and the Registration Rights Agreement when executed and
delivered by the Company will constitute, the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms, except to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, or (b) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); the Warrants and any Additional Warrants, when executed,
issued and delivered pursuant to this Agreement, will constitute the legal,
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, or (ii) general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law); the Warrant Shares initially covered
by the Warrants and any Additional Warrants will be duly and validly
authorized and reserved for issuance and when paid for, issued and
delivered in accordance with the Warrants, shall be duly and validly
issued, fully paid and nonassessable and free and clear of any Liens; and
none of the Warrant Shares issued pursuant to the terms hereof or the
Warrants or Additional Warrants shall be in violation of any preemptive
rights of any Stockholder.
Section 3.03. APPROVALS. Except as contemplated by the Registration
Rights Agreement, no authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any other
Person which shall not have been obtained on or prior to the Date of
Issuance are necessary for the execution, delivery or performance by the
Company of this Agreement, the Warrants or the Registration Rights
Agreement or for the validity or enforceability thereof.
Section 3.04. CAPITALIZATION. As of the Date of Issuance of the
original Warrant to Holder, the capitalization of the Company consists
solely of Stock and options and warrants to acquire Stock.
ARTICLE IV
HOLDER'S REPRESENTATIONS AND WARRANTIES
The Holder represents and warrants to the Company as follows:
Section 4.01. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Warrant is
being acquired and, if such Warrant is exercised, the Stock issuable upon
such exercise will be acquired, for investment for the Holder's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the federal or state
securities laws.
Section 4.02. INVESTMENT EXPERIENCE. The Holder represents that it
can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Warrant and the
Stock issuable upon exercise thereof. The Holder also represents it has
not been organized solely for the purpose of acquiring the Warrant or the
Stock issuable upon exercise thereof.
Section 4.03. RESTRICTED SECURITIES. The Holder understands that the
Warrant and the Stock issuable upon exercise of such Warrant are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and have not been registered under the
Securities Act nor qualified under applicable state securities laws and
that under such laws and applicable regulations such securities may not be
resold without registration under the Securities Act, except in certain
limited circumstances. In this connection, the Holder represents that it
is familiar with Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities Act.
Section 4.04. ACCREDITED INVESTOR. The Holder is an "accredited
investor" within the meaning of Rule 501 of Regulation D promulgated under
the Securities Act.
ARTICLE V
HOLDERS; RIGHTS
Section 5.01. DELIVERY EXPENSES. If any Holder surrenders any
Warrant Certificate or Warrant Shares to the Company or a transfer agent of
the Company for exchange for instruments of other denominations or
registered in another name or names, the Company shall cause such new
instruments to be issued and shall deliver, in each case at the cost of the
Holder, from the office of such Holder or from or to the Company or its
transfer agent, the surrendered instrument and any new instruments issued
in substitution or replacement for the surrendered instrument.
Section 5.02. TAXES. The Company shall pay all transfer taxes which
may be payable in connection with the execution and delivery of this
Agreement or the Registration Rights Agreement or the issuance of the
Warrants and Warrant Shares hereunder or in connection with any
modification of this Agreement, the Registration Rights Agreement or the
Warrants and shall hold each Holder harmless without limitation as to time
against any and all liabilities with respect to all such taxes. The
Company shall not, however, be required to pay: (i) federal, state or local
income tax; (ii) any intangible personal property, franchise or similar
tax; or (iii) any transfer tax which may be payable in respect of any
transfer of a Warrant or any transfer involved in the issue and delivery of
shares of Stock in a name other than that in which a Warrant is registered,
and no such issue or delivery shall be made unless and until the Person
requesting such issue has established, to the satisfaction of the Company,
that such tax has been paid. The obligations of the Company under this
Section 5.02 shall survive any termination of this Agreement or the
Registration Rights Agreement, and any cancellation or termination of the
Warrants.
Section 5.03. REPLACEMENT OF INSTRUMENTS. Upon receipt by the
Company of evidence reasonably satisfactory to it of the ownership of and
the loss, theft, destruction or mutilation of any certificate or instrument
evidencing any Warrants or Warrant Shares, and (a) in the case of loss,
theft or destruction, of indemnity reasonably satisfactory to it, or (b) in
the case of mutilation, upon surrender or cancellation, thereof, the
Company, at the Holder's expense, shall execute, register and deliver, in
lieu thereof, a new certificate or instrument for (or evidencing the right
to purchase) an equal number of Warrants or Warrant Shares.
Section 5.04. CERTAIN RESTRICTIONS. The Company shall not at any
time enter into an agreement or other instrument, and has not entered into
an agreement currently in effect, making performance hereunder or the
issuance of shares of Stock upon the exercise of any Warrant a default
under any such agreement or instrument.
Section 5.05. INDEMNIFICATION. Each party hereto hereby irrevocably
indemnifies the other and saves it harmless against any and all reasonable
out of pocket losses, expenses or liabilities, including judgments, costs
and reasonable counsel fees and expenses arising out of or in connection
with a breach of this Agreement, except as a direct result of the gross
negligence, bad faith or willful misconduct of such other party.
ARTICLE VI
MISCELLANEOUS
Section 6.01. WAIVER. No failure on the part of any Holder to
exercise and no delay in exercising, and no course of dealing with respect
to, any right, power or privilege under this Agreement, the Warrants or the
Registration Rights Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege under this
Agreement, the Warrants or the Registration Rights Agreement preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
Section 6.02. NOTICES.
(a) All notices, requests and other communications provided for
herein and in the Warrants (including any waivers or consents under,
this Agreement and the Warrants) shall be given or made in writing:
if to the Company: Xxxxxxx-Xxxxxx, Inc.
000 Xxxxxxxx Xxxx, #000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxx
Fax No.: (000) 000-0000
with copies to: Xxxxx, Xxxxxxxxx & Xxxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
and
White & Case LLP
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Fax No.: (000) 000-0000
if to the initial Holder: Colony Investors III, L.P.
c/o Colony Capital, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
if to any other person who is the registered Holder of any
Warrants or Warrant Shares, to the address for such Holder as it
appears in the stock or warrant ledger of the Company; or, in the case
of any Holder, at such other address as shall be designated by such
party in a notice to the Company; or, in the case of the Company, at
such other address as the Company may designate in a notice to the
Holders.
(b) All such notices, requests and other communications shall
be: (i) personally delivered, sent by courier guaranteeing overnight
delivery or sent by registered or certified mail, return receipt
requested, postage prepaid, in each case given or addressed as
aforesaid; and (ii) effective upon receipt.
Section 6.03. AMENDMENTS, ETC. Any provision of this Agreement may
be amended or modified only by an instrument in writing signed by (a) the
Company and (b) the Holders of at least a majority of the Warrant Shares
issued or issuable upon exercise of the Warrants; provided, however, that
no such amendment or waiver, without the written consent of all Holders of
such shares and Warrants at the time outstanding, shall amend this
Section 6.03.
Section 6.04. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 6.05. SURVIVAL.
(a) All representations and warranties made by the Company
herein or in any certificate or other instrument delivered by it or on
its behalf under this Agreement or the Registration Rights Agreement
shall be considered to have been relied upon by each Holder and shall
survive the issuance of the Warrants or the Warrant Shares regardless
of any investigation made by or on behalf of any Holder. All
statements in any such certificate or other instrument so delivered
shall constitute representations and warranties by the Company
hereunder.
(b) All representations and warranties made by the Holders
herein shall be considered to have been relied upon by the Company and
shall survive the issuance to the Holders of the Warrants or the
Warrant Shares regardless of any investigation made by the Company or
on its behalf.
Section 6.06. CAPTIONS. The captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
Section 6.07. COUNTERPARTS. This Agreement may be executed on
counterpart signature pages or in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such counterpart
signature page or counterpart.
Section 6.08. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be fully performed in such
State.
Section 6.09. SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
Section 6.10. DEFECTS IN NOTICE. Failure to file any certificate or
notice or to mail any notice, or any defect in any certificate or notice
pursuant to this Agreement shall not affect in any way the rights of any
registered Holder of a Warrant Certificate or the legality or validity of
any adjustment made pursuant to the provisions of the Warrant, or any
transaction giving rise to any such adjustment, or the legality or validity
of any action taken or to be taken by the Company.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
XXXXXXX-XXXXXX, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
____________________________
Name: Xxxxxxx X. XxXxxxxx
Title: CEO
COLONY INVESTORS III, L.P.
By: Colony Capital III, L.P.
By: ColonyGP III, Inc.
By: /s/ Xxxx X. Xxxxxxxx
____________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
[FORM OF WARRANT CERTIFICATE]
DATE OF ISSUANCE: ____ __, 199_ WARRANT CERTIFICATE NO. W-_
NEITHER THE EXERCISE OF THE WARRANTS EVIDENCED BY THIS CERTIFICATE NOR THE
ISSUANCE OF SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
PURSUANT TO THE SECURITIES LAWS OF ANY STATE, AND SUCH SECURITIES MAY NOT
BE SOLD OR TRANSFERRED UNLESS SUCH TRANSFER IS PURSUANT TO (i) A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER THE
SECURITIES ACT AND THE RULES AND REGULATIONS THEREUNDER OR (ii) AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND, IF IT HAS SO REQUESTED, THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL (EITHER ITS OWN COUNSEL OR, IF THE
COMPANY SO REQUESTS, COUNSEL TO THE HOLDERS OF SUCH SECURITIES) REASONABLY
ACCEPTABLE TO THE COMPANY THAT SUCH SECURITIES MAY BE SO TRANSFERRED.
FURTHERMORE, THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN THE COMPANY'S
CERTIFICATE OF INCORPORATION AND IN A REGISTRATION RIGHTS AGREEMENT AND AN
INVESTOR'S AGREEMENT, BOTH DATED JULY 16, 1998.
WARRANT
TO PURCHASE COMMON STOCK OF
XXXXXXX-XXXXXX, INC.
THIS IS TO CERTIFY THAT, subject to the terms and conditions set forth
below, __________, its successors and permitted assigns (generally, the
"Holder"), is entitled from time to time to subscribe for and purchase from
Xxxxxxx-Xxxxxx, Inc., a Delaware corporation (the "Company"), ____________
(______) shares of the Company's common stock, $.01 par value (the "Common
Stock"). The number, character and exercise price of such shares of Common
Stock are subject to adjustment as provided below. The shares of Common
Stock subject to this Warrant may be referred to herein as the "Warrant
Shares."
This Warrant is subject to the following provisions, terms and
conditions:
ARTICLE I
CERTAIN DEFINITIONS
Each capitalized term used herein without definition shall have the
meaning assigned thereto (or incorporated by reference) in the Warrant
Agreement (as hereinafter defined). As used in this Warrant, unless the
context otherwise requires:
"Affiliate" means, with respect to any Person, (a) any Person or
entity directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person, (b) any spouse or non-adult
child (including by adoption) of any natural person described in clause (a)
above, (c) any relative other than a spouse or non-adult child (including
by adoption) who has the same principal residence of any natural person
described in clause (a) above, (d) any trust in which any such Persons
described in clause (a), (b) or (c) above has a beneficial interest and (e)
any corporation, partnership, limited liability company or other
organization of which any such Persons described in clause (a), (b) or (c)
above collectively own more than fifty percent (50%) of the equity of such
entity. For purposes of this definition, beneficial ownership of more than
ten percent (10%) of the voting common equity of a Person shall be deemed
to be control of such Person.
"Business Day" means any day on which commercial banks are not
authorized or required to close in New York City.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company as filed with the Secretary of State of the State of
Delaware on March 27, 1992, as amended through and including April 30,
1998.
"Include" and "including" shall be construed as if followed by the
phrase "without being limited to,".
"Investor's Agreement" means the Investor's Agreement dated July16,
1998, between the Company and Colony Investors III, L.P., as such agreement
shall be modified and supplemented in accordance with its terms and in
effect from time to time.
"Market Value" of a share of Common Stock shall be the market price
determined as follows: (i) if the shares of Common Stock are listed or
admitted to trading on any securities exchange or the NASDAQ-National
Market System, the average closing price, regular way, for the ten trading
day period ending on such day, or if no such sale takes place on any such
day, the average of the closing bid and asked prices on such day, (ii) if
the shares of Common Stock are not listed or admitted to trading on any
securities exchange or the NASDAQ-National Market System, the average last
reported sale price for the ten trading day period ending on such day or,
if no sale takes place on any such day, the average of the closing bid and
asked prices on such day, as reported by a reliable quotation source
designated by the Company, or (iii) if the shares of Common Stock are not
listed or admitted to trading on any securities exchange or the NASDAQ-
National Market System and no such last reported sale price or closing bid
and asked prices are available, the average of the reported high bid and
low asked prices for the ten trading day period ending on such day, as
reported by a reliable quotation source designated by the Company, or if
there shall be no bid and asked prices on any such day, the average of the
high bid and low asked prices, as so reported, on the most recent day (not
more than ten (10) days prior to the date in question) for which prices
have been so reported; provided that if there are no bid and asked prices
reported during the ten trading days prior to the date in question, the
Market Value of the shares of Common Stock shall be determined by the
Company acting in good faith on the basis of such quotations and other
information as it considers, in its reasonable judgment, appropriate.
"Transfer" means, unless the context otherwise requires, any
disposition of this Warrant or the Warrant Shares, or of any interest in
any thereof, which would constitute an offer or sale thereof within the
meaning of the Securities Act.
"Warrant Agreement" shall mean the Warrant Agreement dated as of July
16, 1998, between the Company and Colony Investors III, L.P., as such
Warrant Agreement shall be modified and supplemented and in effect from
time to time.
"Warrants" shall mean: (a) this Warrant originally issued by the
Company pursuant to the Warrant Agreement on the Date of Issuance,
evidencing rights to purchase all or a portion of the Warrant Shares; and
(b) all Warrants issued upon transfer, division or combination of, or in
substitution or replacement for, any Warrants described in clause (a).
ARTICLE II
EXERCISE AND ISSUANCE
Section 2.01. TERM OF WARRANT. This Warrant shall be immediately
exercisable as to all of the Warrant Shares. The Holder shall have until
5:00 p.m., Los Angeles time, on July 16, 2005, in which to exercise the
rights represented by this Warrant, at which time all of the Holder's
rights hereunder shall terminate.
Section 2.02. EXERCISE PRICE AND ADJUSTMENTS. The exercise price at
which this Warrant may be exercised is Fifteen Dollars ($15.00) per share
of Common Stock, subject to adjustment as set forth below (as adjusted, the
"Exercise Price").
Section 2.03. EXERCISE OF WARRANTS.
(a) The rights represented by this Warrant may be exercised by
the Holder, in whole or in part, by the Holder delivering to the
Company, at its office maintained for such purpose pursuant to Section
11.01, (i) a written notice of the Holder's election to exercise this
Warrant (or any portion thereof), which notice shall specify the
number of Warrant Shares to be purchased pursuant to such exercise,
(ii) a certified or bank check or checks payable to the Company in an
aggregate amount equal to the aggregate Exercise Price for the number
of Warrant Shares specified in clause (i) above, and (iii) this
Warrant Certificate.
(b) Notwithstanding Section 2.03(a), at the election of the
Holder, which election shall be set forth in a written notice to the
Company together with this Warrant Certificate, this Warrant may be
exercised (in whole or in part) by means of a cashless exercise
procedure whereby the number of Warrant Shares issued to the Holder
upon such cashless exercise shall be equal to the quotient obtained by
dividing (A) the product of (x) the Market Value per share of Common
Stock as of the trading day immediately preceding the date such notice
is given to the Company (the "Exercise Date") less the Exercise Price
on such Exercise Date, multiplied by (y) the number of Warrant Shares
as to which the Holder elects to be issued pursuant to this Section
2.03(b) (which election shall reduce the number of Warrant Shares
available for any subsequent exercise), divided by (B) the Market
Value per share of Common Stock as of the trading day immediately
preceding such Exercise Date. The number of Warrant Shares issued
pursuant to this Section 2.03(b) shall be excluded from the
calculation of the amount paid pursuant to Section 2.03(a)(ii) above.
(c) Each notice of exercise shall be in substantially the form
of exercise attached to this Warrant Certificate. Upon receipt
thereof, the Company shall, as promptly as practicable and in any
event within 10 Business Days thereafter, cause to be executed and
delivered to such Holder a stock certificate or certificates
representing the aggregate number of duly and validly issued, fully
paid and nonassessable Warrant Shares issuable upon such exercise,
free and clear of any Liens.
Section 2.04. ISSUANCE. The stock certificate or certificates for
Warrant Shares so delivered shall be in such denominations as may be
specified in such notice and shall be registered in the name of the Holder
or such other name or names as shall be designated in such notice. Such
stock certificate or certificates shall be deemed to have been issued and
the Holder or any other Person so designated to be named therein shall be
deemed to have become a holder of record of such shares, including to the
extent permitted by law the right to vote such shares or to consent or to
receive notice as a stockholder, as of the time such notice and payment is
received by the Company as aforesaid. Unless this Warrant has expired, if
this Warrant shall have been exercised only in part, at the time of
delivery of said stock certificate or certificates, the Company shall
execute and deliver to the Holder a new Warrant Certificate, dated the Date
of Issuance, representing the number of Warrant Shares with respect to
which this Warrant shall not then have been exercised, which new Warrant
Certificate shall in all other respects be identical with this Warrant
Certificate, or, at the request of the Holder, appropriate notation may be
made on this Warrant Certificate and the same returned to the Holder.
Each certificate evidencing Warrant Shares shall be marked on its
reverse as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND SUCH LAWS OR PURSUANT TO
WRITTEN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFER
SET FORTH IN THE COMPANY'S CERTIFICATE OF INCORPORATION AND IN A
REGISTRATION RIGHTS AGREEMENT AND AN INVESTOR'S AGREEMENT, BOTH
BETWEEN THE COMPANY AND COLONY INVESTORS III, L.P. DATED JULY 16,
1998.
All shares of Common Stock issuable upon the exercise of this Warrant,
upon payment therefor in accordance herewith, shall be duly and validly
issued, fully paid and nonassessable and free and clear of any Liens.
The Company shall not be obligated to issue fractional shares of
Common Stock upon any exercise of this Warrant.
Notwithstanding anything herein to the contrary, the Company shall not
be obligated to issue any shares of Common Stock to the extent such
issuance is otherwise prohibited by law, including federal or state
securities law, but the Company shall use all best efforts to effect such
issuance.
ARTICLE III
ADJUSTMENTS
Section 3.01. ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the
Company should, at any time or from time to time after the Date of
Issuance, fix a record date for a split, subdivision, or combination of the
outstanding shares of Common Stock, then as of such record date (or the
date of such stock split, subdivision, or combination if no record date is
fixed) the number of shares of Common Stock that this Warrant is
exercisable to purchase as of such time shall be adjusted to be the same
number of shares of Common Stock that the Holder would have if this Warrant
had been exercised immediately prior to such split, subdivision, or
combination. The Exercise Price shall be adjusted to be the then Exercise
Price multiplied by a fraction, the numerator of which is the number of
shares of Common Stock purchasable under this Warrant immediately prior to
such stock split, subdivision, or combination, and the denominator of which
is the number of shares of Common Stock purchasable by this Warrant
immediately after such event.
Section 3.02. ADJUSTMENT FOR DIVIDENDS IN STOCK OR OTHER SECURITIES
OR PROPERTY. If the Company should, at any time or from time to time after
the Date of Issuance, fix a record date for the determination of eligible
stockholders to receive, without payment therefor, other or additional
stock or other securities or property, including any right to receive any
securities or property (including any beneficial interest in an entity
established by the Company or any distribution by an entity whose
beneficial interests are owned by the Company or the Company's shareholders
in substantially the same proportion as their ownership of Common Stock)
not otherwise covered by this Article III (but other than cash in an
amount not in excess of 125% of the regular cash dividend paid with respect
to the preceding calendar quarter) of the Company by way of dividend, then
and in each case, the Holder shall be entitled to receive, in addition to
the number of shares of the Common Stock receivable upon exercise of this
Warrant, and on such record date, and without payment of any additional
consideration therefor upon such exercise, additional consideration (which
may include such other or additional stock or other securities or property)
so that the Holder will continue to have, in the aggregate, the same
economic value as was represented by this Warrant prior to such dividend as
if such Warrant had been exercised immediately prior to such dividend or
distribution.
Section 3.03. ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE OR
SUBSTITUTION. If the Common Stock issuable upon the exercise of this
Warrant shall be changed into the same or different number of shares of any
class or classes of stock, whether by reclassification, exchange,
substitution, or otherwise (other than a stock split, combination or
dividend provided for in Sections 3.01 or 3.02 hereof, or a reorganization,
merger, consolidation, or sale of assets provided for in Section 3.04
hereof), then and in such event the Holder shall have the right thereafter
to receive upon exercise of this Warrant, the kind and amount of shares of
stock and other securities and property receivable upon such
reclassification, exchange, substitution, or other change as a holder of
the number of shares of Common Stock for which this Warrant would have been
exercisable immediately prior to such reclassification, exchange,
substitution, or other change would have had.
Section 3.04. REORGANIZATION, MERGER, CONSOLIDATION OR SALE OF
ASSETS. If at any time or from time to time, there shall be a capital
reorganization of the Common Stock (other than a subdivision, combination,
reclassification or exchange of shares provided for elsewhere in this
Article III) or a merger or consolidation of the Company with or into
another entity where the Company is not the surviving entity, or the
transfer or sale of all or substantially all of the Company's assets to any
other person, then as a part of such reorganization, merger, consolidation,
transfer or sale, effective provision shall be made so that the Holder
thereafter shall be entitled to receive upon exercise of this Warrant the
number of shares of stock or other securities, instruments or property of
the Company or of the successor entity resulting from such merger,
consolidation, or sale to which a holder of the Common Stock issuable upon
exercise of this Warrant would have been entitled upon such capital
reorganization, merger, consolidation, or sale as if such Warrants had been
exercised immediately prior to such event. In any such case, appropriate
adjustment shall be made in the application of the provisions of this
Section 3.04 with respect to the rights of the Holder after such
reorganization, merger, consolidation, or sale to the end that the
provisions of this Article III (including adjustment of the exercise price
then in effect) shall be applicable after that event as nearly equivalent
as may be practicable. The provisions of this Section 3.04 shall similarly
apply to successive reorganizations, mergers, consolidations or sale of
assets, and to the stock, securities or instruments of any other entity
which are at the time receivable upon the exercise of this Warrant.
Section 3.05. ADJUSTMENT FOR COMMON STOCK ISSUE. If the Company
issues to all holders of Common Stock or to any Affiliate (other than a
wholly owned subsidiary) any shares of Common Stock for a consideration per
share less than the Market Value per share in effect on the date the
Company fixes the offering price of such additional shares, the Exercise
Price shall be adjusted to the price calculated in accordance with the
following formula:
E' equals the product of (a) E and(b) the quotient of (i) the quantity O
plus the quantity P divided by M, divided by (ii) A.
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such additional shares.
P = the aggregate consideration received for the issuance of
such additional shares.
M = the Market Value per share of Common Stock on the date of
issuance of such additional shares.
A = the number of shares of Common Stock outstanding immediately
after the issuance of such additional shares.
The adjustment under this Section 3.05 shall be made successively
whenever any such issuance is made and shall become effective immediately
after such issuance.
This Section 3.05 does not apply to:
(a) any of the transactions described in any other Section of
this Article III, and
(b) the (i) exercise of the Warrants and Additional Warrants,
(ii) exercise of rights, options or warrants for which an adjustment
has been made hereunder pursuant to any other Section of this
Article III, (iii) conversion or exchange of other securities
convertible or exchangeable for Common Stock for which an adjustment
has been made hereunder pursuant to any other Section of this
Article III and (iv) exercise of rights, options or warrants in
connection with pension plans or employment compensation programs
equating to less than 10% in the aggregate of the Company's
outstanding Common Stock on the date hereof.
Section 3.06. LIMITS ON ADJUSTMENTS. No adjustment in the Exercise
Price shall be required unless such adjustment would require an increase or
decrease of at least five cents ($0.05) in such price; provided, however,
that any adjustments which by reason of this sentence are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All such calculations shall be made to the nearest cent.
Notwithstanding anything in this Section 3.06 to the contrary, the Exercise
Price shall not be reduced to less than the then existing par value of the
Common Stock as a result of any adjustment made hereunder.
Section 3.07. NOTICE OF ADJUSTMENT. Whenever an adjustment is to
be made pursuant to this Article III, the Company shall issue and promptly
provide to the Holder a certificate signed by the Company's Secretary
setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated and the Exercise Price and number of shares or amount of
property purchasable hereunder, after giving effect to the adjustment.
ARTICLE IV
TRANSFER, DIVISION AND COMBINATION
This Warrant and all rights hereunder are Transferable, in whole or in
part, on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant Certificate at the office of the Company
maintained for such purpose pursuant to Section 11.01, together with a
written assignment of this Warrant Certificate (in substantially the form
annexed hereto) duly executed by the Holder or its agent or attorney. Upon
such surrender and payment the Company shall execute and deliver one or
more new Warrant Certificates in the name of the assignee or assignees and
in the denominations specified in such instrument of assignment, and this
Warrant Certificate promptly shall be canceled. This Warrant Certificate,
if properly assigned in compliance with this Article IV, may be exercised
by an assignee for the purchase of shares of Common Stock without having a
new Warrant Certificate issued. Each assignee, by accepting a new Warrant
Certificate issued to such assignee or this Warrant Certificate assigned in
blank, agrees to be bound by the restrictions on the transferability of
this Warrant set forth in the Company's Certificate of Incorporation, in
this Warrant Certificate, in the Warrant Agreement, the Investor's
Agreement and the Registration Rights Agreement.
This Warrant may be divided or combined with other Warrants upon
presentation of this Warrant Certificate at the aforesaid office of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the Holder
or its authorized agent or attorney. Subject to compliance with the next
preceding paragraph, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new
Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
The Company shall maintain at its aforesaid office books for the
registration and transfer of the Warrants.
ARTICLE V
CONSOLIDATION, MERGER, ETC.
In case a consolidation or merger of the Company shall be effected
with another Person on or after the Date of Issuance, or the sale, lease or
transfer of all or substantially all its assets to another Person shall be
effected on or after the Date of Issuance, then, as condition of such
consolidation, merger, sale, lease or transfer, lawful and adequate
provision shall be made whereby the registered Holder of this Warrant
Certificate thereafter shall have the right to purchase and receive upon
the basis and upon the terms and conditions specified herein, such shares
of stock, securities, cash or other property to which the Holder would have
been entitled if immediately prior to such consolidation, merger, sale,
lease or transfer the Holder had exercised this Warrant for Common Stock.
In any such case, appropriate and equitable provision also shall be made
with respect to the rights and interests of the registered Holder of this
Warrant Certificate to the end that the provisions hereof, of the Warrant
Agreement and of the Registration Rights Agreement thereafter shall be
applicable, as nearly as may be, in relation of any shares of stock,
securities, cash or other property thereafter deliverable upon the exercise
of this Warrant. The Company shall not effect any such consolidation,
merger, sale, lease or transfer unless prior to or simultaneously with the
consummation thereof the successor Person (if other than the Company)
resulting from such consolidation or merger or the Person purchasing,
leasing or otherwise acquiring such assets shall assume the obligation to
deliver to the Holder such shares of stock, securities, cash or other
property as, in accordance with the foregoing provisions, the Holder may be
entitled to purchase. The above provisions of this Article similarly shall
apply to successive consolidations, mergers, sales, leases or transfers.
ARTICLE VI
NOTICE TO WARRANT HOLDERS
In case the Company proposes to (a) pay any dividend to the holders of
its Common Stock or to make any other distribution to the holders of its
Common Stock, (b) offer to the holders of its Common Stock rights to
subscribe for or to purchase any additional shares of Common Stock or
shares of any other class of stock or any other securities, rights or
options, (c) effect any reclassification of its Common Stock (other than a
reclassification involving only the subdivision, or combination, of
outstanding shares of Common Stock), (d) effect any capital reorganization,
(e) effect any consolidation, merger or sale, lease, transfer or other
disposition of all or substantially all of its property, assets or
business, or (f) effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to the Holder
notice of such proposed action, which shall specify the date on which a
record is to be taken for the purposes of such stock dividend, distribution
or rights, or the date on which such reclassification, reorganization,
consolidation, merger, sale, lease, transfer, disposition, liquidation,
dissolution or winding up is to take place, if any such date is to be
fixed, and shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action on the Common
Stock and the number and kind of any other shares of stock which the Holder
is entitled in accordance herewith, and the purchase price or prices
thereof, after giving effect to any adjustment which will be required as a
result of such action. Such notice shall be so given in the case of any
action covered by clause (a) or (b) above at least 10 Business Days prior
to the record date for determining holders of the Common Stock for purposes
of such action, and in the case of any other such action, at least 10
Business Days prior to the date of the taking of such proposed action or
the date of participation therein by the holders of Common Stock, whichever
shall be the earlier.
ARTICLE VII
RESERVATION AND AUTHORIZATION OF STOCK; REGISTRATION
WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY
The Company shall at all times reserve and keep available for issue
upon the exercise or conversion of Warrants such number of its authorized
but unissued shares of Common Stock as shall be sufficient to permit the
exercise or conversion in full of all outstanding Warrants. All shares of
Common Stock which shall be so issuable, when issued upon exercise of any
Warrant and payment of the Exercise Price therefor, or upon such
conversion, as the case may be, shall be duly and validly issued, fully
paid and nonassessable and free and clear of any Liens.
Before taking any action which would result in an adjustment in the
number of Warrant Shares issuable upon exercise of this Warrant, the
Company shall obtain all such authorizations or exemptions thereof, or
consents thereto, as may be necessary from any public regulatory body or
bodies having jurisdiction thereof. If any shares of Common Stock required
to be reserved for issue upon exercise or conversion of this Warrant
require registration with any Governmental Authority under any federal or
state law (otherwise than in connection with a registration under the
Securities Act or applicable state securities laws) before such shares may
be so issued, the Company shall in good faith and as expeditiously as
possible and at its expense endeavor to cause such shares to be duly
registered.
ARTICLE VIII
WARRANT TRANSFER BOOKS
The Company shall not at any time, except upon complete dissolution,
liquidation or winding up, close its stock transfer books or Warrant
transfer books so as to result in preventing or delaying the exercise,
conversion or transfer of this Warrant, unless otherwise required by any
applicable federal, state or local law.
ARTICLE IX
EXPENSES, TRANSFER TAXES AND OTHER CHARGES
The Company shall pay any and all expenses, transfer taxes (other than
income taxes) and other charges in accordance with and to the extent
provided in the Warrant Agreement.
ARTICLE X
NO SHAREHOLDER RIGHTS
Except as expressly provided herein or in the Warrant Agreement, this
Warrant does not entitle the Holder to any voting, dividend or other rights
as a stockholder of the Company.
ARTICLE XI
MISCELLANEOUS
Section 11.01. OFFICE OF THE COMPANY. So long as any this Warrant
remains outstanding, the Company shall maintain an office in the
continental United States of America where this Warrant may be presented
for exercise, transfer, division or combination hereof as herein provided.
Such office shall be at the Company's principal executive office, unless
and until the Company shall designate and maintain some other office for
such purposes and give notice thereof to the Holder.
Section 11.02. NOTICES GENERALLY. Any notices and other
communications pursuant to the provisions hereof shall be sent in
accordance with Section 6.02 of the Warrant Agreement.
Section 11.03. AMENDMENTS. The terms of this Warrant may be amended,
and the observance of any term therein may be waived, but only with the
written consent of the holders of Warrants evidencing a majority of the
total number of Warrant Shares at the time purchasable upon the exercise of
all then outstanding Warrants. For the purposes of determining whether the
holders of outstanding Warrants entitled to purchase a requisite number of
Warrant Shares at any time have taken any action authorized by this
Warrant, any Warrants owned by the Company or any Affiliate of the Company
shall be deemed not to be outstanding.
Section 11.04. GOVERNING LAW. This Warrant shall be governed by, and
construed in accordance with, the law of the State of Delaware applicable
to contracts executed in and to be fully performed in such State.
Section 11.05. LIMITATION OF LIABILITY. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Common
Stock, and no mere enumeration herein of the rights or privileges of the
Holder, shall give rise to any liability of such Holder for the Exercise
Price or as a stockholder of the Company, whether such liability is
asserted by the Company, any creditor of the Company or any other Person.
Section 11.06. INFORMATION. So long as this Warrant remains
outstanding, the Company will furnish to the registered Holder (at the same
time as made available generally to Stockholders) annual and quarterly
financial reports.
IN WITNESS WHEREOF, The Company has duly executed this Warrant.
Dated: July 16, 1998 XXXXXXX-XXXXXX, INC.
By___________________________
Name:
Title:
By___________________________
Name:
Title:
FORM OF ASSIGNMENT
(To be executed by the registered Holder hereof)
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
to the assignee set forth below all of the rights of the undersigned under
the attached Warrant (Certificate No. W-__) with respect to the number of
Warrant Shares set forth below:
Name of Assignee Address Number of Warrant Shares
Dated:
Name:
Title:
FORM OF EXERCISE
(To be executed by the registered Holder hereof)
The undersigned hereby exercises this Warrant to subscribe for and
purchase ____________ Warrant Shares at the Exercise Price and herewith
makes payment therefor in full. Kindly issue certificates and/or other
instruments covering the Warrant Shares in accordance with the instructions
given below. A new Warrant Certificate for the unexercised balance of the
Warrant Shares covered by the attached Warrant (Certificate No. W-__), if
any, will be registered in the name of the undersigned.
In exercising its rights to purchase such Common Stock, the
undersigned hereby confirms that it will not sell or transfer such stock
unless such transfer is pursuant to (a) a registration statement in effect
with respect to such securities under the Securities Act of 1933, as
amended (the "Securities Act") and the rules and regulations thereunder or
(b) an exemption from the registration requirements of the Securities Act
and any applicable state securities laws.
Dated:
Name:
Title:
Instructions for registration of Warrant
Name (please print)
Social Security or Other Identifying Number: ___________________
Address:
