Exhibit 4.1
EXHIBIT A
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THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE
WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.
ST. XXXXXXXX SEAWAY CORPORATION
(a Delaware corporation)
Warrant for the Purchase of 250,000 Shares
of Common Stock
par value $0.01 per share
Void after 5:00 p.m. Eastern Time, on [_______], 2017
FOR VALUE RECEIVED, St. Xxxxxxxx Seaway Corporation ("Corporation"), a
Delaware corporation, hereby certifies that XXXXXXX XXXXXXXXX & CO., INC., or
assigns ("Holder"), is entitled, subject to the provisions of this Warrant, to
purchase from the Corporation at any time, or from time to time during the
period commencing on the date hereof and expiring at 5:00 p.m. Eastern Time, on
[_______], 2017 ("Expiration Date"), up to Two Hundred Fifty Thousand (250,000)
fully paid and non-assessable shares of Common Stock at the Exercise Price (as
defined herein).
The term "Common Stock" means the common stock, par value $0.01 per
share, of the Corporation as constituted on the date hereof ("Issuance Date"),
together with any other equity securities that may be issued by the Corporation
in respect thereof or in substitution therefor. The number of shares of Common
Stock to be received upon the exercise of this Warrant may be adjusted from time
to time as hereinafter set forth. The Common Stock deliverable or delivered upon
such exercise, as adjusted from time to time, is hereinafter referred to as
"Warrant Stock."
Upon receipt by the Corporation of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant certificate,
and (in the case of loss, theft or destruction) of satisfactory indemnification,
and upon surrender and cancellation of this Warrant certificate, if mutilated,
the Corporation shall execute and deliver a new Warrant certificate of like
tenor and date.
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Section 1. Vesting of Warrants.
1.1 Vesting. This Warrant shall vest and become immediately
exercisable as of the date hereof (the "Vesting Date").
Notwithstanding the provisions of this Section 1.1, the aggregate number of
shares of Common Stock issuable upon exercise of this Warrant shall not exceed
the aggregate number of Shares set forth in the introductory paragraph hereof.
1.2 Effectiveness of Vesting. This Warrant shall be vested on the
Vesting Date.
Section 2. Exercise of Warrant.
2.1 Exercise Price. The exercise price of the warrant shall be equal
to one dollar ($1.00) per share (the "Exercise Price"). The number of shares of
Common Stock and Exercise Price set forth above shall be adjusted to the extent
and in the same manner as the aggregate number of Shares and Exercise Price is
adjusted under the provisions of Section 7 hereof.
2.2 Exercise Procedure. The Warrant may be exercised, subject to the
requirements set forth below, in whole, or in part, at any time during the
period commencing on the date hereof and expiring at 5:00 p.m. Eastern Time on
the Expiration Date set forth above, or, if such day is a day on which banking
institutions are authorized by law to close, then on the next succeeding day
that shall not be such a day, by presentation and surrender of the Warrant
certificate to the Corporation at its principal office, or at the office of its
stock transfer agent, if any, with the Warrant Exercise Form attached thereto
duly executed and accompanied by payment (either in cash or by certified or
official bank check, payable to the order of the Corporation) of the aggregate
Exercise Price for the number of shares specified in such form and instruments
of transfer, if appropriate, duly executed by the Holder. If the Warrant should
be exercised in part only, the Corporation shall, upon surrender of the Warrant
certificate for cancellation, execute and deliver a new Warrant certificate
evidencing the Holder's rights thereof to purchase the balance of the shares
purchasable hereunder. Upon receipt by the Corporation of the Warrant
certificate, together with the Exercise Price, at its office, or by the
Corporation's stock transfer agent, if any, at its office in proper form for
exercise as described above, together with an agreement to comply with the
restrictions on transfer and related covenants contained herein and a
representation as to investment intent and any other matter required by counsel
to the Corporation, signed by the Holder (and if other than the original Holder
accompanied by proof, satisfactory to counsel for the Corporation, of the right
of such person or persons to exercise the Warrant), the Holder shall be deemed
to be the holder of record of the Common Stock issuable upon such exercise, even
if the Corporation's stock transfer books shall then be closed or certificates
representing such Common Stock shall not have been delivered to the Holder. The
Holder shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of Common Stock on exercise of
this Warrant. The Corporation shall promptly thereafter issue certificate(s)
evidencing the Common Stock so purchased.
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Section 3. Reservation of Shares. The Corporation shall at all
times reserve for issuance and delivery upon exercise of this Warrant all shares
of Common Stock or other shares of the Corporation's capital stock (and other
securities) from time to time receivable upon exercise of the Warrant. All such
shares (and other securities) shall be duly authorized and, when issued upon
exercise, shall be validly issued, fully paid and non-assessable.
Section 4. No Fractional Shares. No fractional shares shall be
issued upon the exercise of the Warrant, but the Corporation shall pay the
Holder an amount equal to the Pro Rated Value of such fractional share of Common
Stock in lieu of each fraction of a share otherwise called for upon any exercise
of the Warrant. For purposes of the Warrant, the "Pro Rated Value" of a share of
Common Stock shall equal the applicable fraction of the Warrant exercised
multiplied by the Exercise Price, which shall be determined in good faith by the
Corporation's Board of Directors.
Section 5. Transfer.
5.1 Securities Laws. Neither this Warrant nor the Warrant Stock have
been registered under the Securities Act of 1933, as amended ("Securities Act"),
or any state securities laws. The Corporation will not transfer either this
Warrant or the Warrant Stock unless: (i) there is an effective registration
covering such Warrant or such Warrant Stock, as the case may be, under the
Securities Act and applicable states securities laws; (ii) it first receives a
letter from an attorney, acceptable to the Corporation's Board of Directors or
its agents, stating that in the opinion of such attorney the proposed transfer
is exempt from registration under the Securities Act and under all applicable
state securities laws; or (iii) the transfer is made pursuant to Rule 144 under
the Securities Act.
5.2 Conditions to Transfer. Prior to any such proposed transfer, and
as a condition thereto, if such transfer is not made pursuant to an effective
registration statement under the Securities Act, the Holder will, if requested
by the Corporation, deliver to the Corporation: (i) an investment covenant
signed by the proposed transferee; (ii) an agreement by such transferee that the
restrictive investment legend set forth above be placed on the certificate or
certificates representing the securities acquired by such transferee; (iii) an
agreement by such transferee that the Corporation may place a "stop transfer
order" with its transfer agent or registrar; and (iv) an agreement by the
transferee to indemnify the Corporation to the same extent as set forth in the
next succeeding Subsection.
5.3 Indemnity. The Holder acknowledges that the Holder understands
the meaning and legal consequences of this Subsection, and the Holder hereby
agrees to indemnify and hold harmless the Corporation, its representatives and
each officer and director thereof from and against any and all loss, damage or
liability (including all attorneys' fees and costs incurred in enforcing this
indemnity provision) due to or arising out of: (i) the inaccuracy of any
representation or the breach of any warranty of the Holder contained in, or any
other breach of, this Warrant; (ii) any transfer of any of this Warrant or the
Warrant Stock in violation of the Securities Act, the Securities Exchange Act of
1934, as amended ("Exchange Act"), or the rules and regulations promulgated
under either of such Acts; (iii) any transfer of this Warrant or any of the
Warrant Stock in a manner inconsistent with this Warrant; or (iv) any untrue
statement or omission to state any material fact in connection with the
investment representations or with respect to the facts and representations
supplied by the Holder to counsel to the Corporation upon which its opinion as
to a proposed transfer shall have been based.
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5.4 Transfer. Except as specifically restricted hereby, this Warrant
and the Warrant Stock issued may be transferred by the Holder in whole or in
part at any time or from time to time. Upon surrender of this Warrant
certificate to the Corporation accompanied by a request for transfer of this
Warrant to a transferee, and accompanied by funds sufficient to pay any
documentary stamp or similar issue or transfer tax, and upon compliance with the
provisions of this Section 5, the Corporation shall, without charge, execute and
deliver a new Warrant certificate in the name of such transferee, and this
Warrant certificate shall promptly be canceled. Any assignment, transfer,
pledge, hypothecation or other disposition of this Warrant attempted contrary to
the provisions of this Warrant, or any levy of execution, attachment or other
process attempted upon this Warrant, shall be null and void and without effect.
Section 6. Holder's Rights. The Holder shall not, by virtue hereof,
be entitled to any rights of a shareholder in the Corporation, either at law or
equity, unless and until this Warrant is exercised. The Holder's rights are
limited to those expressed in this Warrant and are not enforceable against the
Corporation except to the extent set forth herein.
Section 7. Anti-Dilution Provisions.
7.1 Stock Splits, Dividends, Etc.
7.1.1 If the Corporation shall at any time, while this Warrant
is outstanding, subdivide its outstanding Common Stock (or other securities at
the time receivable upon the exercise of the Warrant) by stock split or split-up
thereof, or if the Corporation shall declare a stock dividend or distribute
Common Stock to its stockholders, the number of shares of Common Stock subject
to this Warrant immediately prior to such subdivision shall be proportionately
increased, and if the Corporation shall at any time combine the outstanding
Common Stock by reverse split or combination thereof, the number of shares of
Common Stock subject to this Warrant immediately prior to such combination shall
be proportionately decreased. Any such adjustment and adjustment to the Exercise
Price pursuant to this Section shall be effective at the close of business on
the effective date of such subdivision or combination or if any adjustment is
the result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
7.1.2 Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrant is adjusted, as provided in this
Section, the Exercise Price shall be adjusted to the nearest cent by multiplying
such Exercise Price immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise immediately prior to such adjustment, and (y) the denominator
of which shall be the number of shares of Common Stock so purchasable
immediately thereafter.
7.1.3 In the event the Corporation shall declare a dividend,
or make a distribution to the holders of its Common Stock generally, in cash
(excluding regularly payable cash dividends declared from time to time by the
Corporation's Board of Directors), the Exercise Price of this Warrant shall be
decreased, as at the date the Corporation shall take a record of the holders of
the Corporation's Common Stock for the purpose of receiving such dividend or
distribution (or if no such record is taken, as at the date of such dividend or
distribution), to a price equal to the greater of (i) the par value of the
Corporation's Common Stock and (ii) the Exercise Price in effect immediately
prior to such record date (or if no such record is taken, then immediately prior
to such payment or other distribution) less the cash amount of such dividend or
distribution.
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7.2 Reorganization, Reclassification, Consolidation or Merger.
7.2.1 If the Corporation effects any Adjustment Event (as
defined below), then proper provision shall be made so that the holder of this
Warrant shall be entitled upon exercise of this Warrant to receive, in lieu of
the Common Stock otherwise issuable upon exercise of this Warrant, the
securities, cash and property to which such holder would have been entitled upon
the consummation of such Adjustment Event if such holder had exercised this
Warrant immediately prior to the Adjustment Event.
7.2.2 For purposes of this Warrant, an "Adjustment Event"
shall mean (i) any consolidation or merger of the Corporation when the
Corporation is not the continuing or surviving corporation of such consolidation
or merger, (ii) any consolidation or merger when the Corporation shall be the
continuing or surviving corporation but, in connection with such consolidation
or merger, the Common Stock shall be changed into or exchanged for other
securities, or cash or any other property, or (iii) any capital reorganization
or reclassification of the Common Stock.
7.2.3 The Corporation will not effect any Adjustment Event
unless, prior to the consummation thereof, each person (other than the
Corporation) which may be required to deliver any securities, cash or property
upon the exercise of this Warrant as provided in this Section 7.2 shall assume,
by written instrument delivered to, and reasonably satisfactory to the holder of
this Warrant, the obligations of the Corporation under this Warrant and the
obligation to deliver to such holder such securities, cash or property as, in
accordance with the foregoing provisions of this Section 7.2, such holder shall
be entitled to receive.
7.3 Certificate as to Adjustments. In each case of an adjustment in
the number of shares of Common Stock receivable on the exercise of the Warrant
or the Exercise Price, the Corporation at its expense shall promptly compute
such adjustment in accordance with the terms of the Warrant and prepare a
certificate executed by an officer of the Corporation setting forth such
adjustment and showing the facts upon which such adjustment is based. The
Corporation shall forthwith mail a copy of each such certificate to each Holder.
7.4 Notices of Record Date, Etc. In case:
(a) the Corporation shall take a record of the holders of its
Common Stock (or other securities at the time receivable upon the exercise of
the Warrant) for the purpose of entitling them to receive any dividend (other
than a stock dividend or a regular cash dividend) or other distribution, or any
other right to subscribe for, purchase or otherwise acquire any shares of stock
of any class or any other securities, or to receive any other right, or
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(b) of any voluntary or involuntary dissolution, liquidation
or winding-up of the Corporation,
then, and in each such case, the Corporation shall mail or cause to be mailed to
each Holder a notice specifying, as the case may be: (i) the date on which a
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right; or
(ii) the date on which such dissolution, liquidation or winding-up is to take
place, and the time, if any, to be fixed, as to which the holders of record of
Common Stock (or such other securities at the time receivable upon the exercise
of this Warrant) shall be entitled to exchange their Common Stock (or such other
securities) for securities or other property deliverable upon such dissolution,
liquidation or winding-up. Such notice shall be mailed at least twenty (20) days
prior to the date therein specified, and this Warrant may be exercised prior to
said date during the term of the Warrant.
7.5 Threshold for Adjustments. Anything in this Section to the
contrary notwithstanding, the Corporation shall not be required to give effect
to any adjustment set forth in Section 7.1 until the cumulative resulting
adjustment in the Exercise Price shall have required a change of the Exercise
Price by at least one percent (1%), but when the cumulative net effect of more
than one adjustment so determined shall be to change the Exercise Price by at
least one percent (1%), such full change in the Exercise Price shall thereupon
be given effect. No adjustment shall be made by reason of the issuance of shares
upon conversion rights, stock issuance rights or similar rights currently
outstanding or any change in the number of treasury shares held by the
Corporation.
Section 8. Legend and Stop Transfer Orders. Unless the shares of
Warrant Stock have been registered under the Securities Act, upon exercise of
any of this Warrant and the issuance of any of the Warrant Stock, the
Corporation shall instruct its transfer agent, if any, to enter stop transfer
orders with respect to such shares, and all certificates representing shares of
Warrant Stock shall bear on the face thereof substantially the following legend,
insofar as is consistent with the laws of the state of the Corporation's
organization:
"TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE WARRANT
PURSUANT TO WHICH THESE SHARES WERE PURCHASED FROM THE
CORPORATION. COPIES OF THOSE RESTRICTIONS ARE ON FILE AT THE
PRINCIPAL OFFICES OF THE CORPORATION, AND NO TRANSFER OF
SUCH SHARES OR OF THIS CERTIFICATE, OR OF ANY SHARES OR
OTHER SECURITIES (OR CERTIFICATES THEREFOR) ISSUED IN
EXCHANGE FOR OR IN RESPECT OF SUCH SHARES, SHALL BE
EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS THEREIN
SET FORTH SHALL HAVE BEEN COMPLIED WITH."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT."
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Section 9. Officer's Certificate. Whenever the number or kind of
securities purchasable upon exercise of this Warrant or the Exercise Price shall
be adjusted as required by the provisions hereof, the Corporation shall
forthwith file with its Secretary at its principal office and with its stock
transfer agent, if any, an officer's certificate showing the adjusted number of
kind of securities purchasable upon exercise of this Warrant and the adjusted
Exercise Price determined as herein provided and setting forth in reasonable
detail such facts as shall be necessary to show the reason for and the manner of
computing such adjustments. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Holder and the
Corporation shall, forthwith after each such adjustment, mail by certified mail
a copy of such certificate to the Holder.
Section 10. Notices. Any notice required or contemplated by this
Warrant shall be deemed to have been duly given if transmitted by registered or
certified mail, return receipt requested, or nationally recognized overnight
delivery service, to the Corporation at St. Xxxxxxxx Seaway Corporation,
[______________], Attention: Chief Executive Officer, or to the Holder at the
name and address set forth in the Warrant Register maintained by the
Corporation.
Section 11. Choice of Law. THIS WARRANT IS ISSUED UNDER AND SHALL
FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.
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IN WITNESS WHEREOF, the Corporation has duly caused this Warrant to be
signed on its behalf, in its corporate name and by its duly authorized officers,
as of this [___] day of [_______], 2007.
ST. XXXXXXXX SEAWAY CORPORATION
By:_________________________________
Name:
Title:
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WARRANT EXERCISE FORM
To: St. Xxxxxxxx Seaway Corporation
[____________]
[____________]
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ______________________ shares of Common
Stock of St. Xxxxxxxx Seaway Corporation and hereby tenders payment for such
shares in the following manner (please check type or types of payment and
indicate the portion of the Exercise Price to be paid):
[_] [____________] Exercise for Cash
Please deliver the certificate and a new Warrant Agreement for the
unexercised portion of this Warrant, if any, to:
____________________________________
____________________________________
____________________________________
Warrantholder:
____________________________________
____________________________________
(signature)
By:_________________________________
Title:______________________________
[Name of Warrantholder must be identical to name shown in the registry books of
the Corporation]
Dated:_________________________
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