WARRANT AGREEMENT
AGREEMENT, dated as of this day of , 1997, by and between Trans Global
Services, Inc., a Delaware corporation (the "Company") and American Stock
Transfer & Trust Company, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, in connection with a public offering of 1,000,000 units (the
"Units"), each Unit consisting of one share of common stock, par value $.01 per
share ("Common Stock"), and one Series E Redeemable Common Stock Purchase
Warrants (the AWarrants"), pursuant to an underwriting agreement (the
AUnderwriting Agreement") dated as of [ ], 1997, between the Company and
Xxxxxxxxx Xxxxxx, Inc. (the AUnderwriter"), the Company may issue up to one
million one hundred fifty thousand (1,150,000) Warrants; and
WHEREAS, in connection with the issuance, pursuant to the Underwriting
Agreement, to the Underwriter or its designees of an option (the"Underwriter's
Option"), the Company may issue up to one hundred thousand (100,000) Warrants;
and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange and redemption of the Warrants, as
hereinafter defined, the issuance of certificates representing the Warrants, the
exercise of the Warrants, and the rights of the holders thereof;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and for the purpose of defining the terms and provisions
of the Warrants and the certificates representing the Warrants and the
respective rights and obligations thereunder of the Company, the holders of
certificates representing the Warrants and the Warrant Agent, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Corporate Office" shall mean the office of the Warrant Agent (or its
successor) at which at any particular time its principal business shall be
administered, which office is located at the date of this Agreement at 00 Xxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) "Effective Date" shall mean the date that the Registration Statement is
declared effective by the Securities and Exchange Commission (the "Commission").
(c) "Exercise Date" shall mean, as to any Warrant, the date on which the
Warrant Agent shall have received both (a) the Warrant Certificate representing
such Warrant, with the exercise form thereon duly executed by the Registered
Holder thereof or his attorney duly authorized in writing, and (b) payment in
cash, or by official bank or certified check made payable to the Company, of an
amount in lawful money of the United States of America equal to the Purchase
Price; provided, however, that, subject to Paragraph 4(a) of this Agreement, if
payment shall be made by personal or corporate check, the exercise of the
Warrant shall not be effective until the Warrant Agent shall be satisfied that
the check shall have cleared; provided, further, that if such payment is made
prior to the Warrant Expiration Date or the expiration of a period during which
a reduced Purchase Price is in effect pursuant to Paragraph 9(f) of this
Agreement and the check shall not have cleared until after the Warrant
Expiration Date or such other date, then the Warrant shall be deemed to have
been exercised immediately prior to 5:00 P.M. New York City time on the Warrant
Expiration Date.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(d) "Purchase Price" shall mean the purchase price per share to be paid
upon exercise of each Warrant in accordance with the terms hereof, which price
shall be six dollars ($6.00) per share, subject to adjustment from time to time
pursuant to the provisions of Paragraph 9 of this Agreement.
(e) "Redemption Price" shall mean the price at which the Company may, at
its option, redeem the Warrants, in accordance with the terms of this Agreement,
which price shall be one cent ($.01) per Warrant. The Redemption Price shall not
be subject to adjustment pursuant to this Agreement.
(f) "Registration Statement" shall mean the Company's registration
statement on Form S-1, File No. 333-14289, which was declared effective by the
Commission on [ ], 1997.
(g) "Registered Holder" shall mean, as to any Warrant and as of any
particular date, the person in whose name the certificate representing the
Warrant shall be registered on that date on the books maintained by the Warrant
Agent pursuant to Paragraph 6 of this Agreement.
(h) "Transfer Agent" shall mean American Stock Transfer & Trust Company, as
the Company's transfer agent, or its authorized successor, as such.
(i) "Warrant Certificate" shall mean the certificates (attached hereto as
Exhibit A);
(j) "Warrant Expiration Date" shall mean 5:00 P.M. New York City time on
the first to occur of (i) [ ], 2000, or (ii) the business day immediately
preceding the Redemption Date, as defined in Paragraph 8(c) of this Agreement;
provided, that if such date shall in the State of New York be a holiday or a day
on which banks are authorized or required to close, the Warrant Expiration Date
shall be the next day which is not such a date. Upon notice to all warrant
holders the Company shall have the right to extend the Warrant Expiration Date.
(k) "Warrant Shares" shall mean the shares of Common Stock issuable upon
exercise of the Warrants.
(l) "Warrants" shall mean the Warrants.
2. Warrants and Issuance of Warrants Certificates.
(a) Each Warrant initially shall entitle the Registered Holder of the
Warrant Certificate representing such Warrant to purchase one (1) share of
Common Stock upon the exercise thereof, in accordance with the terms of this
Agreement, subject to modification and adjustment as provided in Paragraph 9 of
this Agreement.
(b) Upon execution of this Agreement, Warrant Certificates representing the
number of Warrants initially issuable pursuant to the Underwriting Agreement
shall be executed by the Company and delivered to the Warrant Agent. Upon
written order of the Company signed by its President or Chairman or a Vice
President and by its Secretary or an Assistant Secretary or its Treasurer or an
Assistant Treasurer, the Warrant Certificates shall be countersigned, issued and
delivered by the Warrant Agent.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(c) From time to time, up to the Warrant Expiration Date, the Transfer
Agent shall countersign and deliver stock certificates in required whole number
denominations representing the shares of Common Stock issuable upon the exercise
of Warrants in accordance with this Agreement.
(d) From time to time, up to the Warrant Expiration Date, the Warrant Agent
shall countersign and deliver Warrant Certificates in required whole number
denominations to the persons entitled thereto in connection with any transfer or
exchange permitted under this Agreement; provided that no Warrant Certificates
shall be issued except (i) those initially issued hereunder or otherwise
issuable pursuant to the Underwriting Agreement, including those issuable in
exchange for certain outstanding warrants, (ii) those issued on or after the
date of this Agreement, upon the exercise of fewer than all Warrants represented
by any Warrant Certificate, to evidence any unexercised Warrants held by the
exercising Registered Holder, (iii) those issued upon any transfer or exchange
pursuant to Paragraph 6 of this Agreement; (iv) those issued in replacement of
lost, stolen, destroyed or mutilated Warrant Certificates pursuant to Paragraph
7 of this Agreement; (v) those issued pursuant to the Underwriter's Option, and
(vi) at the option of the Company, in such form as may be approved by the Board
of Directors, to reflect any adjustment or change in the Purchase Price or the
number of shares of Common Stock purchasable upon exercise of the Warrants made
pursuant to Paragraph 9 of this Agreement. In addition, at the discretion of the
Company, the Company may authorize the issuance of additional Warrants, which
shall be subject to the provisions of this Agreement.
3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates for the Warrants shall be substantially in the
form annexed as Exhibit A to this Agreement, (the provisions of which are hereby
incorporated herein) and may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage or to the requirements of
Paragraph 2(b) of this Agreement. The Warrant Certificates shall be dated the
date of issuance thereof (whether upon initial issuance, transfer or exchange in
lieu of mutilated, lost, stolen, or destroyed Warrant Certificates) and issued
in registered form. Warrant Certificates shall be numbered serially with the
letter WA or other letters acceptable to the Company and the Warrant Agent.
(b) Warrant Certificates shall be executed on behalf of the Company by its
Chairman of the Board, President or any Vice President and by its Secretary or
an Assistant Secretary, by manual signatures or by facsimile signatures printed
thereon, and shall have imprinted thereon a facsimile of the Company's seal.
Warrant Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. In case any officer
of the Company who shall have signed any of the Warrant Certificates shall cease
to be an officer of the Company or to hold the particular office referenced in
the Warrant Certificate before the date of issuance of the Warrant Certificates
or before countersignature by the Warrant Agent and issue and delivery thereof,
such Warrant Certificates may nevertheless be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person
who signed the Warrant Certificates had not ceased to be an officer of the
Company or to hold such office. After countersignature by the Warrant Agent,
Warrant Certificates shall be delivered by the Warrant Agent to the Registered
Holder without further action by the Company, except as otherwise provided by
Paragraph 4(a) of this Agreement.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
4. Exercise.
(a) Each Warrant may be exercised by the Registered Holder thereof at any
time during the two year period commencing one year from the Effective Date, or
earlier with the consent of the Underwriter, but not after the Warrant
Expiration Date, upon the terms and subject to the conditions set forth herein
and in the Warrant Certificate. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the Exercise Date and the person
entitled to receive the securities deliverable upon such exercise shall be
treated for all purposes as the holder of those securities upon the exercise of
the Warrant as of the close of business on the Exercise Date. As soon as
practicable on or after the Exercise Date, the Warrant Agent shall deposit the
proceeds received from the exercise of a Warrant and shall notify the Company in
writing of the exercise of the Warrant. Promptly following, and in any event
within five (5) days after the date of such notice from the Warrant Agent, the
Warrant Agent, on behalf of the Company, shall cause to be issued and delivered
by the Transfer Agent, to the person or persons entitled to receive the same, a
certificate or certificates for the securities deliverable upon such exercise,
(plus a certificate for any remaining unexercised Warrants of the Registered
Holder) unless prior to the date of issuance of such certificates the Company
shall instruct the Warrant Agent to refrain from causing such issuance of
certificates pending clearance of checks received in payment of the Purchase
Price pursuant to such Warrants. Notwithstanding the foregoing, in the case of
payment made in the form of a check drawn on an account of the Representative or
such other investment banks and brokerage houses as the Company shall approve in
writing to the Warrant Agent, by the Representative or such other investment
bank or brokerage house, certificates shall immediately be issued without prior
notice to the Company or any delay. Upon the exercise of any Warrant and
clearance of the funds received, the Warrant Agent shall promptly remit the
payment received for the Warrant (the "Warrant Proceeds") to the Company or as
the Company may direct in writing, subject to the provisions of Paragraphs 4(b)
and 4(c) of this Agreement.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(b) If, at the Exercise Date in respect of the exercise of any Warrant
after one year from the Effective Date, (i) the market price of the Company's
Common Stock is greater than the Purchase Price then in effect, (ii) the
exercise of the Warrant was solicited by a member of the National Association of
Securities Dealers, Inc. (ANASD"), (iii) the Warrant was not held in a
discretionary account, (iv) disclosure of compensation arrangements was made
both at the time of the original offering and at the time of exercise of the
Warrant was not in violation of Rule 10b-6 (as such rule or any successor rule
may be in effect as of such time of exercise) promulgated under the Securities
Exchange Act of 1934, then the Warrant Agent, simultaneously with the
distribution of the Warrant Proceeds to the Company shall, on behalf of the
Company, pay from the Warrant Proceeds, a fee of six percent (6%) (the
"Underwriter's Fee") of the Purchase Price to the Underwriter (a portion of
which may be reallowed by the Underwriter to the dealer who solicited the
exercise, which may also be the Underwriter). In the event the Underwriter's Fee
is not paid within ten (10) days of the date on which the Company receives
Warrant Proceeds, then the Underwriter's Fee shall begin accruing interest at an
annual rate of prime plus three (3)%, payable by the Company to the Underwriter
at the time the Company pays the Underwriter"s Fee. Within five (5) business
days after exercise, the Warrant Agent shall send to the Underwriter a copy of
the reverse side of each Warrant exercised. The Underwriter shall reimburse the
Warrant Agent, upon request, for its reasonable expenses relating to compliance
with this Paragraph 4(b). In addition, the Underwriter and the Company may, at
any time during business hours, examine the records of the Warrant Agent,
including its ledger of original Warrant Certificates returned to the Warrant
Agent upon exercise of Warrants. The provisions of this Paragraph 4(b) may not
be modified, amended or deleted without the prior written consent of the
Representative.
(c) In order to enforce the provisions of Paragraph 4(b) of this Agreement,
the Warrant Agent is hereby expressly authorized to withhold payment to the
Company of the Warrant Proceeds unless and until the Company establishes an
escrow account for the purpose of depositing the entire amount of the
Underwriter's Fee, which amount will be deducted from the net Warrant Proceeds
to be paid to the Company. The funds placed in the escrow account may not be
released to the Company without a written agreement from the Underwriter that
the required the Underwriter's Fee has been received by the Underwriter.
5. Reservation of Shares; Listing; Payment of Taxes.
(a) The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue
upon exercise of Warrants, such number of shares of Common Stock as shall then
be issuable upon the exercise of all outstanding Warrants. The Company covenants
that all Warrant Shares shall, at the time of delivery in accordance with this
Agreement, be duly and validly issued, fully paid, nonassessable and free from
all taxes, liens and charges with respect to the issue thereof (other than those
which the Company shall promptly pay or discharge), and that upon issuance such
shares shall be listed on each national securities exchange or eligible for
inclusion in each automated quotation system, if any, on which the other shares
of outstanding Common Stock of the Company are then listed or eligible for
inclusion.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(b) The Company covenants that if any securities to be reserved for the
purpose of exercise of Warrants hereunder require registration with, or approval
of, any governmental authority under any Federal securities law before such
securities may be validly issued or delivered upon such exercise, then the
Company will in good faith and as expeditiously as reasonably possible, endeavor
to secure such registration or approval. The Company will use reasonable efforts
to obtain appropriate approvals or registrations under state blue sky"
securities laws. With respect to any such securities, however, Warrants may not
be exercised by, or shares of Common Stock issued to, any Registered Holder in
any state in which such exercise would be unlawful.
(c) The Company shall pay all documentary, stamp or similar taxes and other
governmental charges that may be imposed with respect to the issuance of
Warrants, or the issuance, or delivery of any shares upon exercise of the
Warrants; provided, however, that if the shares of Common Stock are to be
delivered in a name other than the name of the Registered Holder of the Warrant
Certificate representing any Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Warrant
Agent the amount of transfer taxes or charges incident thereto, if any. (d) The
Warrant Agent is hereby irrevocably authorized to requisition the Company's
Transfer Agent from time to time for certificates representing shares of Common
Stock issuable upon exercise of the Warrants, and the Company will authorize the
Transfer Agent to comply with all such proper requisitions. The Company will
file with the Warrant Agent a statement setting forth the name and address of
the Transfer Agent of the Company for shares of Common Stock issuable upon
exercise of the Warrants.
6. Exchange and Registration of Transfer.
(a) Warrant Certificates may be exchanged for other Warrant Certificates
representing an equal aggregate number of Warrants of the same class or may be
transferred in whole or in part. Warrant Certificates to be exchanged shall be
surrendered to the Warrant Agent at its Corporate Office, and upon satisfaction
of the terms and provisions of this Agreement, the Company shall execute and the
Warrant Agent shall countersign, issue and deliver in exchange therefor the
Warrant Certificate or Certificates which the Registered Holder making the
exchange shall be entitled to receive. (b) The Warrant Agent shall keep at its
office books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and the transfer thereof in
accordance with its regular practice. Upon due presentment for registration of
transfer of any Warrant Certificate at such office, the Company shall execute
and the Warrant Agent shall issue and deliver to the transferee or transferees a
new Warrant Certificate or Certificates representing an equal aggregate number
of Warrants.
(c) With respect to all Warrant Certificates presented for registration or
transfer, or for exchange or exercise, the subscription form on the reverse
thereof shall be duly endorsed, or be accompanied by a written instrument or
instruments of transfer and subscription, in form satisfactory to the Company
and the Warrant Agent, duly executed by the Registered Holder or his
attorney-in-fact duly authorized in writing.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(d) A reasonable service charge may be imposed by the Warrant Agent for any
exchange or registration of transfer of Warrant Certificates. In addition, the
Company may require payment by such holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchanges, registration or transfer of Warrant Certificates.
(e) All Warrant Certificates surrendered for exercise or for exchange in
case of mutilated Warrant Certificates shall be promptly canceled by the Warrant
Agent and thereafter retained by the Warrant Agent until termination of this
Agreement or resignation as Warrant Agent, or, with the prior written consent of
the Underwriter, disposed of or destroyed, at the direction of the Company.
(f) Prior to due presentment for registration of transfer thereof, the
Company and the Warrant Agent may deem and treat the Registered Holder of any
Warrant Certificate as the absolute owner thereof and of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made by anyone other than a duly authorized officer of the Company or
the Warrant Agent) for all purposes and shall not be affected by any notice to
the contrary.
(g) Notwithstanding any other provisions of this Agreement, no Warrants
issued upon exercise of the Underwriter's Option and no shares of Common Stock
issuable upon exercise of such Warrants may be sold, transferred, assigned or
hypothecated for a period of one year from the Effective Date except to the
officers of the Underwriters or to selling group members or officers or partners
thereof, all of whom shall be bound by such restrictions. Until the expiration
of such one-year period, Warrant certificates and stock certificates shall be
marked with a legend referring to such restriction.
7. Loss or Mutilation. Upon receipt by the Company and the Warrant Agent of
evidence satisfactory to them of the ownership of and loss, theft, destruction
or mutilation of any Warrant Certificate and (in case of loss, theft or
destruction) of indemnity satisfactory to them, and (in the case of mutilation)
upon surrender and cancellation thereof, the Company shall execute and the
Warrant Agent shall (in the absence of notice to the Company and/or Warrant
Agent that the Warrant Certificate has been acquired by a bona fide purchaser)
countersign and deliver to the Registered Holder in lieu thereof a new Warrant
Certificate of like tenor representing an equal aggregate number of Warrants.
Applicants for a substitute Warrant Certificate shall comply with such other
reasonable regulations and pay such other reasonable charges as the Warrant
Agent may prescribe.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
8. Redemption.
(a) Commencing eighteen (18) months from the Effective Date or earlier with
the consent of the Underwriter, the Company shall have the right, on not less
than thirty (30) nor more than sixty (60) days notice given prior to the
Redemption Date, as hereinafter defined, at any time to redeem the then
outstanding Warrants at the Redemption Price, provided that the Market Price of
the Common Stock shall equal or exceed the ATarget Price." The ATarget Price"
shall mean one hundred sixty six and 2/3 percent (166-2/3%) of the Purchase
Price. Market Price for the purpose of this Paragraph 8 shall mean, if the
Common Stock is listed on the Nasdaq Stock Market or the New York or American
Stock Exchange, the average last reported sales price (or, if no sale is
reported on any such trading day, the average of the closing bid and asked
prices) on the principal market for the Common Stock or, if the Common Stock is
not so listed or traded, the average of the last reported high bid and low asked
prices of the Common Stock, during the ten (10) days ending within five (5) days
of the date the Warrants are called for redemption. Notice of redemption shall
be mailed by first class mail, postage prepaid, not later than five (5) business
days (or such longer period to which the Underwriter may consent) after the date
the Warrants are called for redemption. All Warrants must be redeemed if any
Warrants are redeemed. (b) If the conditions set forth in Paragraph 8(a) of this
Agreement are met, and the Company desires to exercise its right to redeem the
Warrants, it shall request the Underwriter or the Warrant Agent to mail the
notice of redemption referred to in said Paragraph 8(a) to each of the
Registered Holders of the Warrants to be redeemed, first class, postage prepaid,
not earlier than the sixtieth (60th) day nor later than the thirtieth (30th) day
before the date fixed for redemption, at their last addresses as shall appear on
the records maintained pursuant to Paragraph 6(b) of this Agreement. Any notice
mailed in the manner provided herein shall be conclusively presumed to have been
duly given whether or not the Registered Holder receives such notice. The
Warrant Agent agrees to mail such notice if requested by the Company or the
Underwriter.
(c) The notice of redemption shall specify (i) the Redemption Price, (ii)
the date fixed for redemption, (iii) the place where the Warrant Certificates
shall be delivered and the redemption price to be paid, and (iv) that the right
to exercise the Warrants shall terminate at 5:00 p.m. (New York City time) on
the business day immediately preceding the date fixed for redemption. The date
fixed for the redemption of the Warrants shall be the Redemption Date. No
failure to mail such notice nor any defect therein or in the mailing thereof
shall affect the validity of the proceedings for such redemption except as to a
Registered Holder (A) to whom notice was not mailed or (B) whose notice was
defective. An affidavit of the Warrant Agent or of the Secretary or an Assistant
Secretary of the Representative or the Company that notice of redemption has
been mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(d) Any right to exercise a Warrant, and any right of the holders of the
Underwriter's Option to receive Warrants upon exercise of the Underwriter's
Option, shall terminate at 5:00 p.m. (New York City time) on the business day
immediately preceding the Redemption Date. After such time, Holders of the
Warrants shall have no further rights except to receive, upon surrender of the
Warrant, the Redemption Price without interest, subject to the provisions of
applicable laws relating to the treatment of abandoned property. In the event
that the Warrants or the Warrant Shares shall not be subject to a current and
effective registration statement under the Securities Act of 1933, as amended,
at any time subsequent to the date the Warrants are called for redemption, the
notice of redemption shall not be effective and shall be deemed for all purposes
not to have been given. Nothing in the preceding sentence shall be construed to
prohibit or restrict the Compan from thereafter calling the Warrants for
redemption in the manner provided for, and subject to the provisions of, this
Paragraph 8.
(e) From and after the Redemption Date with respect to the Warrants, the
Company shall, at the place specified in the notice of redemption, upon
presentation and surrender to the Company by or on behalf of the Registered
Holder thereof of one or more Warrant Certificates evidencing Warrants to be
redeemed, deliver or cause to be delivered to or upon the written order of such
Holder a sum in cash equal to the Redemption Price of each such Warrant. From
and after the Redemption Date and upon the deposit or setting aside by the
Company of a sum sufficient to redeem all the Warrants called for redemption,
such Warrants shall expire and become void and all rights hereunder and under
the Warrant Certificates, except the right to receive payment of the Redemption
Price, shall cease.
(f) Notwithstanding any other provision of this Agreement, the Company
shall not call the Warrants for redemption unless there is, at the time the
Warrants are called for redemption, a current and effective registration
statement or a post-effective amendment to the registration statement covering
the issuance of the shares of Common Stock issuable upon exercise of the
Warrants.
(g) In the event that the Underwriter's Option is exercised at a time
subsequent to the redemption of the Warrants but prior to the Warrant Expiration
Date, as defined in Paragraph 1(i)(i) of this Agreement, then, notwithstanding
any other provisions of this Agreement, the Warrants issued upon such exercise
may be redeemed by the Company at any time after issuance. 9. Adjustment of
Exercise Price and Number of Securities Issuable upon Exercise of Warrants.
(a) In case the Company shall, at any time or from time to time after the
date of this Agreement, pay a dividend or make a distribution on its shares of
Common Stock in shares of Common Stock, subdivide or reclassify its outstanding
Common Stock into a greater number of shares, or combine or reclassify its
outstanding Common Stock into a smaller number of shares or otherwise effect a
reverse split, the Purchase Price in effect at the time of the record date for
such dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
holder of any Warrant exercised after such date shall be entitled to receive the
aggregate number and kind of shares which, if such Warrant had been exercised
immediately prior to such time, he would have owned upon such exercise and been
entitled to receive upon such dividend, subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any event
listed in this Paragraph 9(a) shall occur.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(b) In case the Company shall, at any time or from time to time after the
date of this Agreement, issue rights or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase shares of Common Stock (or
securities convertible into Common Stock) at a price (or having a conversion
price per share) less than the current market price of the Common Stock (as
defined in Paragraph 9(e) of this Agreement) on the record date mentioned below,
the Purchase Price shall be adjusted so that the same shall equal the price
determined by multiplying the Purchase Price in effect immediately prior to the
date of such issuance by a fraction, of which the numerator shall be the number
of shares of Common Stock outstanding on the record date mentioned below plus
the number of additional shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so offered (or the aggregate
conversion price of the convertible securities so offered) would purchase at
such current market price per share of the Common Stock, and of which the
denominator shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock offered for
subscription or purchase (or into which the convertible securities so offered
are convertible). Such adjustment shall be made successively whenever such
rights or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
rights or warrants; and to the extent that shares of Common Stock are not
delivered (or securities convertible into Common Stock are not delivered) after
the expiration of such rights or warrants, the Purchase Price shall be
readjusted to the Purchase Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made upon the
basis of delivery of only the number of shares of Common Stock (or securities
convertible into Common Stock) actually delivered.
(c) In case the Company shall, at any time or from time to time after the
date hereof, distribute to all holders of Common Stock evidences of its
indebtedness or assets (excluding cash dividends or distributions paid out of
current earnings and dividends or distributions referred to in Paragraph 9(a) of
this Agreement) or subscription rights or warrants (excluding those referred to
in Paragraph 9(b) of this Agreement), then in each such case the Purchase Price
in effect thereafter shall be determined by multiplying the Purchase Price in
effect immediately prior thereto by a fraction, of which the numerator shall be
the total number of shares of Common Stock outstanding multiplied by the current
market price per share of Common Stock (as defined in Paragraph 9(e) of this
Agreement), less the fair market value (as determined by the Compan's Board of
Directors) of said assets or evidences of indebtedness so distributed or of such
rights or warrants, and of which the denominator shall be the total number of
shares or Common Stock outstanding multiplied by such current market price per
share of Common Stock. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such
distribution.
(d) Whenever the Purchase Price payable upon exercise of each Warrant is
adjusted pursuant to Paragraphs 9(a), (b) or (c) of this Agreement, the number
of shares of Common Stock purchasable upon exercise of each Warrant shall
simultaneously be adjusted by multiplying the number of shares issuable upon
exercise of each Warrant in effect on the date thereof by the Purchase Price in
effect on the date thereof and dividing the product so obtained by the Purchase
Price, as adjusted.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(e) For the purpose of any computation pursuant to Paragraphs 9(b) and (c)
of this Agreement, the current market price per share of Common Stock at any
date shall be deemed to be the average of the daily closing prices for thirty
(30) consecutive business days commencing forty-five (45) business days before
such date. The closing price for each day shall be the reported last sale price
regular way or, in case no such reported sale takes place on such day, the
average of the last reported high bid and low asked prices regular way, in
either case on the principal national securities exchange on which the Common
Stock is admitted to trading or listed, if the Common Stock is admitted to
trading or listing on the New York or American Stock Exchange or on The Nasdaq
Stock Market if included in such system or if not listed or admitted to trading
on such exchange or system, the average of the highest bid and lowest asked
prices as reported by Nasdaq, or the National Quotation Bureau, Inc. or another
similar organization if Nasdaq is no longer reporting such information, or if
not so available, the fair market price as determined by the Board of Directors
of the Company.
(f) No adjustment in the Purchase 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
Paragraph 9(f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Paragraph
9 shall be made to the nearest cent or to the nearest one-tenth of a share, as
the case may be. Anything in this Paragraph 9 to the contrary notwithstanding,
the Company may, upon notice to the record holders of the Warrants, in its sole
discretion, reduce the Purchase Price of the Warrants, and, if such reduction is
not otherwise required by this Paragraph 9, such reduction (i) will not, unless
the Board of Directors otherwise determines, result in any change in the number
or class of shares of Common Stock issuable upon exercise of such Warrants, and
(ii) may be of limited duration, in which event the reduction in Purchase Price
shall not apply to any Warrants exercised after the expiration of the time
during which the reduced Purchase Price is in effect.
(g) The Company may retain a firm of independent public accountants (who
may be the regular accountants employed by the Company) of recognized standing
selected by the Board of Directors of the Company to make any computation
required by this Paragraph 9, and a certificate signed by such firm shall be
conclusive evidence of the correctness of such adjustment.
(h) In the event that at any time, as a result of an adjustment made
pursuant to Paragraph 9(a) of this Agreement, the holder of any Warrant
thereafter shall become entitled to receive any shares of the Company, other
than Common Stock, thereafter the number of such other shares so receivable upon
exercise of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in Paragraphs 9(a) to (f), inclusive, of
this Agreement.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(i) The Company may elect, upon any adjustment of the Purchase Price
hereunder, to adjust the number of Warrants outstanding, in lieu of the
adjustment in the number of shares of Common Stock purchasable upon the exercise
of each Warrant as hereinabove provided, so that each Warrant outstanding after
such adjustment shall represent the right to purchase one share of Common Stock.
Each Warrant held of record and each Warrant issuable upon exercise of the
Underwriter's Option prior to such adjustment of the number of Warrants shall
become that number of Warrants or an Underwriter's Option to purchase that
number of Warrants (calculated to the nearest tenth) determined by multiplying
the number one by a fraction, the numerator of which shall be the Purchase Price
in effect immediately prior to such adjustment and the denominator of which
shall be the Purchase Price in effect immediately after such adjustment. Upon
each adjustment of the number of Warrants pursuant to this Paragraph 9, the
Company shall, as promptly as practicable, cause to be distributed to each
Registered Holder of Warrant Certificates on the date of such adjustment Warrant
Certificates evidencing, subject to Paragraph 10 of this Agreement, the number
of additional Warrants to which such Holder shall be entitled as a result of
such adjustment or, at the option of the Company, cause to be distributed to
such Holder in substitution and replacement for the Warrant Certificates held by
him prior to the date of adjustment (and upon surrender thereof, if required by
the Company) new Warrant Certificates evidencing the number of Warrants to which
such Holder shall be entitled after such adjustment. With respect to the
Representative's Option, the Company shall give the registered holders of the
Representative's Option notice as to the number of Warrants issuable in respect
of such Representative's Option reflecting such adjustment. Any Warrants or
notice to registered holders of Representative's Option may be mailed by the
Warrant Agent or by first class mail, postage prepaid.
(j) In case of any reclassification, capital reorganization or other change
of outstanding shares of Common Stock, or in case of any consolidation or merger
of the Company with or into another corporation (other than a consolidation or
merger in which the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock), or in case of any sale or conveyance to
another corporation of the property of the Company as, or substantially as, an
entirety (other than a sale/leaseback, mortgage or other financing transaction),
the Company shall cause effective provision to be made so that each holder of a
Warrant then outstanding shall have the right thereafter, by exercising such
Warrant, to purchase the kind and number of shares of stock or other securities
or property (including cash) receivable upon such reclassification, capital
reorganization or other change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock that might have been purchased
upon exercise of such Warrant immediately prior to such reclassification,
capital reorganization or other change, consolidation, merger, sale or
conveyance. Any such provisions shall include provision for adjustments that
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Paragraph 9. The Company shall not effect any such consolidation,
merger or sale unless, prior to or simultaneously with the consummation thereof,
the successor (if other than the Company) resulting from such consolidation or
merger or the corporation purchasing assets or other appropriate corporation or
entity shall assume, by written instrument executed and delivered to the Warrant
Agent, the obligation to deliver to the holder of each Warrant such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holders may be entitled to purchase and the other obligations under this
Agreement.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
The foregoing provisions shall similarly apply to successive
reclassifications, capital reorganizations and other changes of outstanding
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances. In the event that, as a result of any merger, consolidation or
similar transaction, all of the holders of Common Stock receive and are entitled
to receive no consideration other than cash in respect of their shares of Common
Stock, then, at the effective time of the transaction, the rights to purchase
Common Stock pursuant to the Warrants shall terminate, and the holders of the
Warrants shall, notwithstanding any other provisions of this Agreement or the
Warrants, receive in respect of each Warrant to purchase one (1) share of Common
Stock, upon presentation of the Warrant Certificate, the amount by which the
consideration per share of Common Stock payable to the holders of Common Stock
at such effective time exceeds the Purchase Price in effect on such effective
date, without giving effect to the transaction. In the event that, subsequent to
the effective time, additional cash or other consideration is payable to the
holders of Common Stock of record as of the effective time, the same
consideration shall be payable to the holders of the Warrants to the extent that
the total cash then received by the holders of Common Stock exceeds the Purchase
Price in effect at such effective date, without giving effect to the
transaction, with the same effect as if the Warrants had been exercised on and
as of such effective time. In the event of any merger, consolidation, sale or
lease of substantially all of the Company's assets or reorganization whereby the
Company is not the surviving corporation, in lieu of the foregoing provisions of
this Paragraph 9(j), the Company may provide in the agreement relating to the
transaction that each Warrant shall become, be converted into or be exchanged
for, such securities of the surviving or acquiring corporation or other entity
as has a value equal to the value of the Warrants (which shall not exceed the
amount by which the consideration to be received per share of Common Stock
(valued on such date as the Company's board of directors shall determine)
exceeds the exercise price of the Warrant), the value of the Warrants and
securities being issued in exchange therefor to be determined by the Company's
Board of Directors, such determination to be final, binding and conclusive on
the Company and the holders of the Warrants. In the event that, in such a
transaction, the value of the consideration to be received per share of Common
Stock is not greater than the exercise price of the Warrants, the Warrants shall
terminate and no consideration will be paid with respect thereof.
(k) Irrespective of any adjustments or changes in the Purchase Price or the
number of shares of Common Stock purchasable upon exercise of the Warrants, the
Warrant Certificates theretofore and thereafter issued shall, unless the Company
shall exercise its option to issue new Warrant Certificates pursuant to
Paragraphs 2(e) and 9(i) of this Agreement, continue to express the Purchase
Price per share, the number of shares purchasable thereunder and the Redemption
Price therefor as to the Purchase Price per share, and the number of shares
purchasable and the Redemption Price therefore were expressed in the Warrant
Certificates when the same were originally issued.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(l) After any adjustment of the Purchase Price pursuant to this Paragraph
9, the Company will promptly prepare a certificate signed by the Chairman,
President, Vice President or Treasurer, of the Company setting forth: (i) the
Purchase Price as so adjusted, (ii) the number of shares of Common Stock
purchasable upon exercise of each Warrant after such adjustment, and, if the
Company shall have elected to adjust the number of Warrants, the number of
Warrants to which the registered holder of each Warrant shall then be entitled,
and (iii) a brief statement of the facts accounting for such adjustment. The
Company will promptly file such certificate with the Warrant Agent and cause a
brief summary thereof to be sent by first class mail to the Representative and
to each registered holder of Warrants at his last address as it shall appear on
the registry books of the Warrant Agent. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect the validity thereof. The
affidavit of an officer of the Warrant Agent or the Secretary or an Assistant
Secretary of the Company that such notice has been mailed shall, in the absence
of fraud, constitute prima facie evidence of the facts stated therein.
(m) As used in this Paragraph 9, the term ACommon Stock" shall mean and
include the Company's Common Stock authorized on the Effective Date and shall
also include any capital stock of any class of the Company thereafter authorized
which shall not be limited to a fixed sum or percentage in respect of the rights
of the holders thereof to participate in dividends and in the distribution of
assets upon the voluntary liquidation, dissolution or winding up of the Company;
provided, however, that the shares issuable upon exercise of the Warrants shall
include only shares of such class designated in the Company's Certificate of
Incorporation as Common Stock on the Effective Date or, in the case of any
reclassification, change, consolidation, merger, sale or conveyance of the
character referred to in Paragraph 9(j) of this Agreement, the stock, securities
or property provided for in such section or, in the case of any reclassification
or change in the outstanding shares of Common Stock issuable upon exercise of
the Warrants as a result of a subdivision or combination or consisting of a
change in par value, or from par value to no par value, or from no par value to
par value, such shares of Common Stock as so reclassified or changed.
(n) Any determination as to whether an adjustment in the Purchase Price in
effect hereunder is required pursuant to this Paragraph 9, or as to the amount
of any such adjustment, if required, shall be binding upon the holders of the
warrants and the Company if made in good faith by the Board of Directors of the
Company.
(o) In lieu of an adjustment pursuant to Paragraph 9(b) of this Agreement,
if the Company shall grant to the holders of Common Stock, as such, rights or
warrants to subscribe for or to purchase Common Stock or securities convertible
into or exchangeable for or carrying a right or warrant to purchase Common
Stock, the Company may concurrently therewith grant to each Registered Holder as
of the record date for such transaction of the Warrants then outstanding, the
rights or warrants to which each Registered Holder would have been entitled if,
on the record date used to determine the stockholders entitled to the rights or
warrants being granted by the Company, the Registered Holder were the holder of
record of the number of whole shares of Common Stock then issuable upon exercise
of his Warrants. If the Company exercises such right no adjustment which
otherwise might be called for pursuant to said Paragraph 9(b) shall be made.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
10.Fractional Warrants and Fractional Shares. If the number of shares of
Common Stock purchasable upon the exercise of each Warrant is adjusted pursuant
to Paragraph 9 of this Agreement, the Company nevertheless shall not be required
to issue fractions of shares, upon exercise of the Warrants or otherwise, or to
distribute certificates that evidence fractional shares. With respect to any
fraction of a share called for upon any exercise hereof, the Company shall pay
to the Holder an amount in cash equal to such fraction multiplied by the current
market value of such fractional share, determined as follows:
(a) If the Common Stock is listed on the New York or American Stock
Exchange or admitted to unlisted trading privileges on such exchange or listed
for trading on the Nasdaq Stock Market, the current value shall be the reported
last sale price of the Common Stock on such exchange or system on the last
business day prior to the date of exercise of this Warrant, or if no such sale
is made on such day, the average closing bid and asked prices for such day on
such exchange or system; or
(b) If the Common Stock is not listed or admitted to unlisted trading
privileges, the current value shall be the last reported bid price reported by
the National Quotation Bureau, Inc. on the last business day prior to the date
of the exercise of this Warrant; or
(c) If the Common Stock is not so listed or admitted to unlisted trading
privileges and bid prices are not so reported, the current value shall be an
amount determined in such reasonable manner as may be prescribed by the Board of
Directors of the Company.
11. Warrant Holders Not Deemed Stockholders. No holder of Warrants shall,
as such, be entitled to vote or to receive dividends or be deemed the holder of
Common Stock that may at any time be issuable upon exercise of such Warrants for
any purpose whatsoever, nor shall anything contained in this Agreement be
construed to confer upon the holder of Warrants, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issue or reclassification of stock, change of par value or change of stock to no
par value, consolidation, merger or conveyance or otherwise), or to receive
notice of meetings, or to receive dividends or subscription rights, until such
Holder shall have exercised such Warrants and been issued shares of Common Stock
in accordance with the provisions hereof.
12. Rights of Action. All rights of action with respect to this Agreement
are vested in the respective Registered Holders of the Warrants, and any
Registered Holder of a Warrant, without consent of the Warrant Agent or of the
holder of any other Warrant, may, in his own behalf and for his own benefit,
enforce against the Company his right to exercise his Warrants for the purchase
of shares of Common Stock in the manner provide in the Warrant Certificate and
this Agreement.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
13. Agreement of Warrant Holders. Every holder of a Warrant, by his acceptance
of the Warrants, consents and agrees with the Company, the Warrant Agent and
every other holder of a Warrant that:
(a) The warrants are transferable only on the registry books of the Warrant
Agent by the Registered Holder thereof in person or by his attorney duly
authorized in writing and only if the Warrant Certificates representing such
Warrants are surrendered at the office of the Warrant Agent, duly endorsed or
accompanied by a proper instrument of transfer satisfactory to the Warrant Agent
and the Company in their sole discretion, together with payment of any
applicable transfer taxes; and
(b) The Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the holder and as the
absolute, true and lawful owner of the Warrants represented thereby for all
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice or knowledge to the contrary, except as otherwise expressly provided in
Paragraph 6 of this Agreement.
14. Cancellation of Warrant Certificates. If the Company shall purchase or
acquire any Warrant or Warrants, the Warrant Certificate or Warrant Certificates
evidencing the same shall thereupon be delivered to the Warrant Agent and
canceled by it and retired.
15. Concerning the Warrant Agent.
(a) The Warrant Agent acts hereunder as agent and in a ministerial capacity
for the Company, and its duties shall be determined solely by the provisions of
this Agreement. The Warrant Agent shall not, by issuing and delivering Warrant
certificates or by any other act hereunder be deemed to make any representations
as to the validity, value or authorization of the Warrant Certificates or the
Warrants represented thereby or of any securities or other property delivered
upon exercise of any Warrant or whether any stock issued upon exercise of any
Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of Warrant Certificates to make or cause to be made
any adjustment of the Purchase Price or the Redemption Price provided in this
Agreement, or to determine whether any fact exists which may require any such
adjustments, or with respect to the nature or extent of any such adjustment,
when made, or with respect to the method employed in making the same. It shall
not (i) be liable for any recital or statement of facts contained herein or for
any action taken, suffered or omitted by it in reliance on any Warrant
Certificate or other document or instrument believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties,
(ii) be responsible for any failure on the part of the Company to comply with
any of its covenants and obligations contained in this Agreement or in any
Warrant Certificate, or (iii) be liable for any act or omission in connection
with this Agreement except for its own negligence or wilful misconduct.
(c) The Warrant Agent may at any time consult with counsel satisfactory to
it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(d) Any notice, statement, instrument, request, direction, order or demand
of the Company shall be sufficiently evidenced by an instrument signed by the
Chairman of the Board, President, any Vice President, its Secretary, or
Assistant Secretary, unless other evidence in respect thereof is specifically
prescribed in this Agreement. The Warrant Agent shall not be liable for any
action taken, suffered or omitted by it in accordance with such notice,
statement, instruction, request, direction, order or demand believed by it to be
genuine.
(e) The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse it for its reasonable expenses
hereunder; it further agrees to indemnify the Warrant Agent and save it harmless
against any and all costs and counsel fees, for anything done or omitted by the
Warrant Agent in the execution of its duties and powers hereunder except losses,
expenses and liabilities arising as a result of the Warrant Agent's negligence
or wilful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own negligence or wilful misconduct), after giving thirty
(30) days' prior written notice to the Company. At least fifteen (15) days prior
to the date such resignation is to become effective, the Warrant Agent shall
cause a copy of such notice of resignation to be mailed to the Registered Holder
of each Warrant Certificate at the Company's expense. Upon such resignation, or
any inability of the Warrant Agent to act as such under this Agreement, the
Company shall appoint a new warrant agent in writing. If the Company shall fail
to make such appointment within a period of fifteen (15) days after it has been
notified in writing of such resignation by the resigning Warrant Agent, then the
Registered Holder of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a new warrant agent. Any new warrant agent,
whether appointed by the Company or by such a court, shall be a bank or trust
company having a capital and surplus, as shown by its last published report to
its stockholders, of not less than $10,000,000 or a stock transfer company.
After acceptance in writing of such appointment by the new warrant agent is
received by the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; but if for any reason, it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed and
delivered by the resigning Warrant Agent. Not later than the effective date of
any such appointment the Company shall file notice thereof with the resigning
Warrant Agent and shall forthwith cause a copy of such notice to be mailed to
the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or any new warrant agent
may be converted or merged or any corporation resulting from any consolidation
to which the Warrant Agent or any new warrant agent shall be a party or any
corporation succeeding to the trust business of the Warrant Agent shall be a
successor warrant agent under this Agreement without any further act, provided
that such corporation is eligible for appointment as successor to the Warrant
Agent under the provisions of the preceding paragraph. Any such successor
warrant agent shall promptly cause notice of its succession as warrant agent to
be mailed to the Company and to the Registered Holder of each Warrant
Certificate.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its or
their officers or directors, may buy and hold or sell Warrants or other
securities of the Company and otherwise deal with the Company in the same manner
and to the same extent and with like effects as though it were not Warrant
Agent. Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
16. Modification of Agreement. The Warrant Agent and the Company may, by
supplemental agreement, make any changes or corrections in this Agreement (i)
that they shall deem appropriate to cure any ambiguity or to correct any
defective or inconsistent provision or manifest mistake or error herein
contained; or (ii) that they may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Warrant Certificates; provided,
however, that this Agreement shall not otherwise be modified, supplemented or
altered in any respect except with the consent in writing of the Registered
Holders of Warrant Certificates representing not less than fifty percent (50%)
of the Warrants then outstanding; and provided, further, that no change in the
number or nature of the securities purchasable upon the exercise of any Warrant,
or the Purchase Price therefor, or the acceleration of the Warrant Expiration
Date, shall be made without the consent in writing of the Registered Holder of
the Warrant Certificate representing such Warrant, other than such changes as
are specifically prescribed by this Agreement as originally executed or are made
in compliance with applicable law; and provided, further, that Paragraphs 4(b)
and 4(c) may not be modified or amended without the consent of the Underwriter.
17. Notices. All notices provided for in this Agreement shall be in writing
signed by the party giving such notice, and, unless otherwise expressly provided
in this Agreement, delivered personally or sent by overnight courier or
messenger against receipt thereof or sent by registered or certified mail (air
mail if overseas), return receipt requested, or by facsimile transmission or
similar means of communication. Notices sent by facsimile transmission or
similar means of communication shall be confirmed by acknowledged receipt or by
registered or certified mail, return receipt requested. Notices shall be deemed
to have been received on the date of personal delivery or telecopy or, if sent
by certified or registered mail, return receipt requested, shall be deemed to be
delivered on the third business day after the date of mailing. Notices shall be
sent to the Registered Holders at their respective addresses on the Warrant
Agent's warrant register, to the Company at 0000 Xxxxxxxx Xxxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000, telecopier (000) 000-0000, Attention: Xx. Xxxxx X.
Xxxxxxxx, Chairman of the Board, and Xx. Xxxxxx X. Xxxxxxxx, President, or to
the Warrant Agent at its Corporate Office, telecopier (000) 000-0000. Either
party may, by like notice, change the address, person or telecopier number to
which notice should be given.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
entered and to be performed wholly within such State.
19. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company and, the Warrant Agent and their respective successors
and assigns, and the holders from time to time of Warrant Certificates. Nothing
in this Agreement is intended or shall be construed to confer upon any other
person any right, remedy or claim, in equity or at law, or to impose upon any
other person any duty, liability or obligation.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
20. Termination. This Agreement shall terminate at the close of business on
the Expiration Date of all the Warrants or such earlier date upon which all
Warrants have been exercised, except that the Warrant Agent shall account to the
Company for cash held by it, and the provisions of Paragraph 15 of this
Agreement shall survive any such termination.
21. Counterparts. This Agreement may be executed in several counterparts,
which taken together shall constitute a single document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written. TRANS GLOBAL SERVICES, INC
By:
Xxxxx X. Xxxxxxxx, CEO
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
, Authorized Officer
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
No. WA Warrants
Void after , 2000 or earlier upon redemption.
TRANS GLOBAL SERVICES, INC
SERIES A REDEEMABLE COMMON STOCK PURCHASE WARRANT
This certifies that FOR VALUE RECEIVED __________ or registered assigns
(the "Registered Holder") is the owner of the number of Series A Redeemable
Common Stock Purchase Warrants ("Warrants") specified above. Each Warrant
initially entitles the Registered Holder to purchase, subject to the terms and
conditions set forth in this Certificate and the Warrant Agreement (as
hereinafter defined), one (1) fully paid and nonassessable share of Common
Stock, par value $.01 per share ("Common Stock"), of Trans Global Services,
Inc., a Delaware corporation (the "Company"), at any time during the two-year
period commencing _______________, 1998, or earlier as provided in the Warrant
Agreement (as hereinafter defined), by delivery of this Warrant, with the
Subscription Form on the reverse hereof duly executed, at the corporate office
of American Stock Transfer & Trust Company, as Warrant Agent, or its successor
(the "Warrant Agent"), accompanied by payment of $6.00, subject to adjustment as
provided in the Warrant Agreement (the "Purchase Price") in lawful money of the
United States of America in cash or by official bank or certified check made
payable to the order of the Company.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions set
forth in the Warrant Agreement (the "Warrant Agreement"), dated as of , 1997, by
and between the Company and the Warrant Agent.
In the event of certain contingencies provided for in the Warrant Agreement, the
Purchase Price or the number of shares of Common Stock subject to purchase upon
the exercise of each Warrant represented hereby are subject to modification or
adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock will be issued. In
the case of the exercise of less than all the Warrants represented hereby, the
Company shall cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificates or Warrant Certificates of
like tenor, which the Warrant Agent shall countersign, for the balance of such
Warrants.
The term "Expiration Date" shall mean 5:00 P.M. (New York City time) on ,
2000 or earlier upon redemption as hereinafter provided. If such date shall in
the State of New York be a holiday or a day on which the banks are authorized or
required to close, then the Expiration Date shall mean 5:00 P.M. (New York City
time) the next following day which in the State of New York is not a holiday or
a day on which banks are authorized or required to close. Under certain
circumstances as provided in the Warrant Agreement, the period during which the
Warrant may be exercised may be extended.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
The Company shall not be obligated to deliver any securities pursuant to
the exercise of this Warrant unless a registration statement under the
Securities Act of 1933, as amended, with respect to such securities is
effective. The Company has covenanted and agreed that it will file a
registration statement and will use its best efforts to cause the same to become
effective and to keep such registration statement current while any of the
Warrants are outstanding. This Warrant shall not be exercisable by a Registered
Holder in any state where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by the
Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender. Upon payment by the Registered Holder of any tax or
other governmental charge imposed in connection therewith, for registration of
transfer of this Warrant Certificate at such office, a new Warrant Certificate
or Warrant Certificate representing an equal aggregate number of Warrants will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the Registered Holder
shall not be entitled to any rights of a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends or other
distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in the Warrant Agreement.
Commencing, , 1999, or earlier as provided in the Warrant Agreement, this
Warrant may be redeemed at the option of the Company, at a redemption price of
$.01 per Warrant at any time, provided the Market Price (as defined in the
Warrant Agreement) for the Common Stock issuable upon exercise of such Warrant
shall equal or exceed 166-2/3% of the Purchase Price. Notice of redemption shall
be given not later than the thirtieth (30th) day nor earlier than the sixtieth
(60th) day before the date fixed for redemption, all as provided in the Warrant
Agreement. On and after 5:00 P.M. (New York City time) on the business day
immediately preceding the date fixed for redemption, the Registered Holder shall
have no rights with respect to this Warrant except to receive the $.01 per
Warrant upon surrender of this Certificate. This Warrant may only be called for
redemption if, on the date the Warrant is called for redemption, the issuance of
the shares of Common Stock upon exercise of this Warrant is subject to a current
and effective registration statement.
Prior to due presentment for registration of transfer hereof, the Company and
the Warrant Agent may deem and treat the Registered Holder as the absolute owner
hereof and of each Warrant represented hereby (notwithstanding any notations of
ownership or writing hereon made by anyone other than a duly authorized officer
of the Company or the Warrant Agent) for all purposes and shall not be affected
by any notice to the contrary.
The Company has agreed to pay a fee of 6% of the Purchase Price upon certain
conditions as specified in the Warrant Agreement upon the exercise of this
Warrant.
TRANS GLOBAL SERVICES, INC.
WARRANT AGREEMENT
This Warrant Certificate shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements executed and to be
performed wholly within such State.
This Warrant Certificate is not valid unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly
executed, manually or in facsimile by two of its officers thereunto duly
authorized and a facsimile of its corporate seal to be imprinted hereon.
TRANS GLOBAL SERVICES, INC
Dated: By:
By:
Countersigned:
AMERICAN STOCK TRANSFER & [Seal]
TRUST COMPANY
as Warrant Agent
By:
Authorized Officer
[FORM OF REVERSE OF WARRANT CERTIFICATE]
TRANSFER FEE: $4.00 PER CERTIFICATE ISSUED
SUBSCRIPTION FORM
To Be Executed by the Registered Holder in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to exercise
_______ Warrants represented by this Warrant Certificate, and to purchase the
securities issuable upon the exercise of such Warrants, and requests that
certificates for such securities shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
[please print or type name and address]
and be delivered to
[please print or type name and address]
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
The undersigned represents that the exercise of the within Warrant was
solicited by a member of the National Association of Securities Dealers, Inc. If
not solicited by an NASD member, please write Aunsolicited" in the space below.
Unless otherwise indicated by listing the name of another NASD member firm, it
will be assumed that the exercise was solicited by Xxxxxxxxx Xxxxxx, Inc.
-----------------------------------------------
(Name of NASD Member if other than Xxxxxxxxx Xxxxxx, Inc.)
Dated: x_________________________________
_________________________________
_________________________________
Address
_________________________________
Taxpayer Identification Number
_________________________________
Signature Medallion Guaranteed:
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
_______________________________
_______________________________
_______________________________
[please print or type name and address]
______________ of the Warrants represented by this Warrant Certificate, and
hereby irrevocably constitutes and appoints ___________ Attorney to transfer
this Warrant Certificate on the books of the Company, with full power of
substitution in the premises.
Dated:_____________________ x ______________________________
Signature Medallion Guaranteed
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR
MIDWEST STOCK EXCHANGE.
