EXHIBIT 4.5
(SPECIMEN)
NEITHER THIS WARRANT NOR ANY EXERCISE SHARE (AS DEFINED BELOW) MAY BE
OFFERED FOR SALE OR SOLD, OR OTHERWISE TRANSFERRED OR SOLD IN ANY TRANSACTION
WHICH WOULD CONSTITUTE A SALE THEREOF WITHIN THE MEANING OF THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), UNLESS (I) SUCH SECURITY HAS BEEN
REGISTERED FOR SALE UNDER THE 1933 ACT AND REGISTERED OR QUALIFIED UNDER
APPLICABLE STATE SECURITIES LAWS RELATING TO THE OFFER AND SALE OF SECURITIES,
OR (II) EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND THE
REGISTRATION OR QUALIFICATION REQUIREMENTS OF ALL SUCH STATE SECURITIES LAWS ARE
AVAILABLE AND THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AS TO ITS ISSUER, FORM AND CONTENTS, THAT THE
PROPOSED SALE OR OTHER DISPOSITION OF SUCH SECURITIES MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE 1933 ACT AND WOULD NOT RESULT IN ANY VIOLATION OF ANY
APPLICABLE STATE SECURITIES LAWS RELATING TO THE REGISTRATION OR QUALIFICATION
OF SECURITIES FOR SALE.
WARRANT TO PURCHASE
UP TO _______ COMMON SHARES OF
XXXXXX HOLDINGS, LTD.
Void after 5:30 p.m. Eastern Time on the Expiration Date (as hereinafter
defined).
This is to certify that, FOR VALUE RECEIVED, _____________________________,
a _______ corporation or registered assigns (hereinafter referred to as the
"Holder"), is entitled to purchase, subject to the terms and conditions hereof,
from Xxxxxx Holdings, Ltd., a Pennsylvania corporation (the "Company"),
__________________ (__________) shares of common stock, par value $.01 per
share, of the Company (the "Common Shares") at any time during the period
commencing on the date hereof and ending at 5:30 p.m. on the Expiration Date at
an exercise price of __________ ($____) per Common Share. This document shall
constitute the Warrant Certificate referred to below. The number of Common
Shares purchasable upon exercise of this Warrant and the exercise price per
share shall be subject to adjustment from time to time upon the occurrence of
certain events as set forth below.
The Common Shares or any other shares or other units of stock or other
securities or property, or any combination thereof receivable upon exercise of
this Warrant, as adjusted from time to time, are sometimes referred to
hereinafter as "Exercise Shares."
The exercise price per share as from time to time in effect is referred to
hereinafter as the "Exercise Price."
1. Exercise of Warrant; Issuance of Exercise Shares.
(a) Exercise of Warrant. This Warrant may be exercised in whole or in part
at any time or from time to time until and including the Expiration Date upon
surrender on any business day to the Company at its principal office, together
with: (i) a completed and executed Notice of Warrant Exercise in the form set
forth in Appendix A hereto and made a part hereof and (ii) payment of the full
Exercise Price for the amount of Exercise Shares set forth in the Notice of
Warrant Exercise, in lawful money of the United States of America in cash or by
certified check or cashier's check, made payable to the order of the Company.
In the event that this Warrant shall be duly exercised in part prior to the
Expiration Date, the Company shall issue a new Warrant or Warrants of like tenor
evidencing the rights of the Holder thereof to purchase the balance of the
Exercise Shares purchasable under the Warrant so surrendered that shall not have
been purchased.
No adjustments shall be made for any cash dividends on Exercise Shares
issuable upon exercise of the Warrant. The Company shall cancel Warrant
Certificates surrendered upon exercise thereof.
(b) Issuance of Exercise Shares; Delivery of Warrant Certificate. The
Company shall, within ten (10) business days, or as soon thereafter as is
practicable, of the exercise of this Warrant, issue in the name of and cause to
be delivered to the Holder (or such other person or persons, if any, as the
Holder shall have designated in the Notice of Warrant Exercise) one or more
Warrant Certificates representing the Exercise Shares to which the Holder (or
such other person or persons) shall be entitled upon such exercise under the
terms hereof. Such Warrant Certificate or Certificates shall be deemed to have
been issued and the Holder (or such other person or persons so designated) shall
be deemed to have become the record holder of the Exercise Shares as of the date
of the due exercise of this Warrant.
(c) Exercise Shares Fully Paid and Non-Assessable. The Company agrees and
covenants that all Exercise Shares issuable upon the due exercise of the Warrant
represented by this Warrant Certificate will, upon issuance in accordance with
the terms hereof, be duly authorized, validly issued, fully paid and
non-assessable.
(d) Reservation of Exercise Shares. At the time of or before taking any
action which would cause an adjustment pursuant to Paragraph 7 hereof increasing
the number of shares of capital stock constituting the Exercise Shares, the
Company will take any corporate action which
-2-
may, in the opinion of its counsel, be necessary in order that the Company have
remaining, after such adjustment, a number of shares of such capital stock
unissued and unreserved for other purposes sufficient to permit the exercise of
all the then outstanding Warrants of like tenor immediately after such
adjustment; the Company will also from time to time take action to increase the
authorized amount of its capital stock constituting the Exercise Shares if at
any time the number of shares of capital stock authorized but remaining unissued
and unreserved for other purposes shall be insufficient to permit the exercise
of the Warrants then outstanding. The Company will at all times reserve and keep
available, out of the aggregate of its authorized but unissued shares of capital
stock, for the purpose of enabling it to satisfy any obligation to issue
Exercise Shares upon exercise of Warrants, through the Expiration Date, the
number of Exercise Shares deliverable upon the full exercise of this Warrant and
all other Warrants of like tenor then outstanding.
(e) Fractional Shares. The Company shall not be required to issue fractional
shares of capital stock upon the exercise of this Warrant or to deliver Warrant
Certificates which evidence fractional shares of capital stock. In the event
that any fraction of an Exercise Share would, except for the provisions of this
Subparagraph (e), be issuable upon the exercise of this Warrant, the Company
may, at its option, issue such fractional share or pay to the Holder exercising
the Warrant an amount in cash equal to such fraction multiplied by the then
Current Market Value of the Exercise Share. For purposes of this Subparagraph
(e), the Current Market Value shall be determined as follows:
(i) if the Exercise Shares are traded in the over-the-counter
market, and not on a national securities exchange or in the NASDAQ National
Market System, the average of the mean between the last bid and asked prices per
share, as reported by the National Quotation Bureau, Inc., or an equivalent
generally accepted reporting service, for the thirty (30) trading days prior to
the date on which this Warrant is exercised, or, if not so reported, the average
of the closing bid and asked prices for an Exercise Share for the thirty (30)
trading days prior to the date on which this Warrant is exercised, as furnished
to the Company by any member of the National Association of Securities Dealers,
Inc., selected by the Company for that purpose.
(ii) if the Exercise Shares are listed or traded on a
national securities exchange or in the NASDAQ National Market System, the
average closing prices on the principal national securities exchange on which
they are so listed or traded or in the NASDAQ National Market System, as the
case may be, for the thirty (30) trading days prior to the date of the exercise
of this Warrant. The closing price referred to in this clause (ii) shall be the
last reported sales price or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices, in either case on
the national securities exchange on which the Exercise Shares are then listed or
in the NASDAQ National Market System for the thirty (30) trading days prior to
the date on which this Warrant is exercised; or
-3-
(iii) if no such closing price or closing bid and asked
prices are available, as determined in any reasonable manner as may be
prescribed by the Board of Directors of the Company.
2. Expiration Date. The Expiration Date shall be the first anniversary of the
date that a registration statement, filed pursuant to Section 9 hereof,
registering the resale of the Exercise Shares is declared effective by the
Securities and Exchange Commission.
3. Payment of Taxes. The Company shall not be responsible to pay any documentary
stamp taxes, if any, attributable to the initial issuance of Exercise Shares
upon the exercise of this Warrant; and, in addition, the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant or any certificates for Exercise Shares in
a name other than that of the Holder of a Warrant surrendered upon the exercise
of a Warrant, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
4. Mutilated or Missing Warrant Certificates. In case any Warrant Certificate
shall be mutilated, lost, stolen or destroyed, the Company may in its discretion
issue, in exchange and substitution for and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and in substitution for the Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate or Warrant
Certificates of like tenor and in the same aggregate denomination, but only (i)
in the case of loss, theft or destruction, upon receipt of evidence satisfactory
to the Company of such loss, theft or destruction of such Warrant and indemnity
or bond, if requested, also satisfactory to them and (ii) in the case of
mutilation, upon surrender of the mutilated Warrant Certificate. Applicants for
such substitute Warrant Certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or its counsel
may prescribe.
5. Rights of Holder. The Holder shall not, by virtue of anything contained in
this Warrant Certificate or otherwise, be entitled to any right whatsoever,
either in law or equity, of a shareholder of the Company, including without
limitation, the right to receive dividends or to vote, consent or receive notice
as a shareholder in respect of the meetings of shareholders or the election of
directors of the Company or any other matter.
6. Registration of Transfers and Exchanges. The Warrant shall be transferable,
subject to the provisions of Paragraph 8 hereof, only upon the books of the
Company, if any, to be maintained by it for that purpose, upon surrender of the
Warrant Certificate to the Company at its principal office or such other
location as the Company may from time to time designate accompanied (if so
required by it) by a written instrument or instruments of transfer in form
satisfactory to the
-4-
Company and duly executed by the Holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney and upon payment of any
necessary transfer tax or other governmental charge imposed upon such transfer.
In all cases of transfer by an attorney, the original letter of attorney, duly
approved, or an official copy thereof, duly certified, shall be deposited and
remain with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited and remain with
the Company in its discretion. Upon any such registration of such transfer, a
new Warrant shall be issued to the transferee named in such instrument of
transfer, and the surrendered Warrant shall be canceled by the Company.
Any Warrant Certificate may be exchanged, at the option of the Holders
thereof and without charge, when surrendered to the Company at its principal
office, or at the office of its transfer agent, if any, for another Warrant
Certificate or Certificates of like tenor and representing in the aggregate the
right to purchase from the Company a like number and kind of Exercise Shares as
the Warrant Certificate so surrendered for exchange or transfer, and the Warrant
Certificate so surrendered shall be canceled by the Company or transfer agent,
as the case may be.
7. Adjustment of Exercise Shares and Exercise Price. The Exercise Price and the
number and kind of Exercise Shares purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the occurrence of certain
events as hereinafter provided. The Exercise Price in effect at any time and the
number and kind of securities purchasable upon exercise of each Warrant shall be
subject to adjustment as follows:
(a) In the event the Company shall (i) pay a dividend or make a distribution
on its Common Shares in Common Shares, (ii) subdivide or classify its
outstanding Common Shares into a greater number of shares, or (iii) combine or
reclassify its outstanding Common Shares into a smaller number of shares, the
Exercise 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 proportionally adjusted so that the Holder of this
Warrant exercised after such date shall be entitled to receive the aggregate
number and kind of shares which, if this Warrant had been exercised by such
Holder immediately prior to such date, he would have owned upon such exercise
and been entitled to receive upon such dividend, subdivision, combination or
reclassification. By way of example, if the Company declares a two (2) for one
(1) share dividend or share split and the Exercise Price immediately prior to
such event was One Dollar ($1.00) per share, the adjusted Exercise Price
immediately after such event would be Fifty Cents ($.50) per share and the
Holder would be entitled to purchase Three Hundred Thousand (300,000) shares at
such an adjusted Exercise Price. Such adjustment shall be made successively
whenever any event listed above shall occur.
-5-
(b) Whenever the Exercise Price payable upon exercise of each warrant is
adjusted pursuant to Subparagraph (a) above, the number of Exercise Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Exercise Shares initially issuable upon exercise of
this Warrant by the Exercise Price in effect on the date hereof and dividing the
product so obtained by the Exercise Price, as adjusted.
(c) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($.01) in
such price; provided, however, that any adjustments which by reason of this
Subparagraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment required to be made hereunder. All
calculations under this Paragraph 6 shall be made to the nearest one-half of a
cent or to the nearest one-hundredth of a share, as the case may be.
(d) If the Company at any time merges or consolidates with or into any other
corporation or enters into a similar transaction (other than a merger in which
the Company is the surviving corporation and in connection with which there is
no reclassification or other change in Common Shares or other securities of the
Company or any issuance of stock, securities or property to the holders of its
outstanding Common Shares), then, the Company shall notify such Holder of any
such event and, effective upon the record or other date of determination of
persons affected by such merger, consolidation or similar transaction, the
Exercise Shares shall include the kind and amount of securities, cash and
property that would have been held by the Holder if on such determination date
the Holder had been the holder of record of the securities, cash and properties
issuable upon exercise of the Warrant on such determination date (or the right
thereto prior to the effective date thereof). In the event of any merger,
consolidation or similar transaction referred to above in this Subparagraph (d),
the Company shall, and shall cause any successor corporation as a condition
precedent to such transaction to, execute and deliver to each Holder a new
Warrant (i) providing that the owner of such Warrant, upon any exercise thereof,
shall have the right to purchase the Exercise Shares adjusted as described
above, and (ii) containing provisions for subsequent adjustments in a manner and
on terms as nearly equivalent as may be practicable to the adjustments provided
for in this Subparagraph.
(e) Whenever an adjustment is required as herein provided, the Company shall
promptly cause a notice setting forth the adjusted Exercise Price and adjusted
number of Exercise Shares issuable upon the exercise of each Warrant or the
number of warrants to be issued to be mailed to the Holders, at their last
addresses appearing in the Warrant Register, and shall cause a certified copy
thereof to be mailed to its transfer agent, if any. The Company may retain a
firm of independent certified public accountants selected by the Board of
Directors (who may be the regular accountants employed by the Company) to make
any computation required by this Paragraph 7, and a certificate signed by such
firm shall be conclusive evidence of the correctness of such adjustment.
-6-
(f) In the event that, at any time, as a result of an adjustment made
pursuant to the provisions, the Holder of this Warrant thereafter shall become
entitled to receive any Exercise Shares of the Company, other than Common
Shares, thereafter the number of such other shares so receivable upon exercise
of this 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 Shares contained in Subparagraphs (a) to (e), inclusive above.
(g) Irrespective of any adjustments in the Exercise Price or the number or
kind of Exercise Shares purchasable upon exercise of this Warrant, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
(h) Whenever the Exercise Price shall be adjusted as required by the
provisions of the foregoing Section, the Company shall forthwith file in the
custody of its Secretary or an Assistant Secretary at its principal office and
with its share transfer agent, if any, an officer's certificate showing the
adjusted Exercise Price and other adjustments determined as herein provided,
setting forth in reasonable detail the facts requiring such adjustment,
including a statement of the number of additional Common Shares, if any, and
such other facts as shall be necessary to show the reason for and the manner of
computing such adjustment. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Holder.
8. Restrictions on Transferability: Restrictive Legend. Neither this Warrant nor
the Exercise Shares shall be transferable except in accordance with the
provisions of this paragraph.
(a) Restrictions on Transfer: Indemnification. Neither this Warrant nor any
Exercise Share may be offered for sale or sold, or otherwise transferred or sold
in any transaction which would constitute a sale thereof within the meaning of
the Securities Act of 1933, as amended (the "1933 Act"), unless (i) such
security has been registered for sale under the 1933 Act and registered or
qualified under applicable state securities laws relating to the offer and sale
of securities, or (ii) exemptions from the registration requirements of the 1933
Act and the registration or qualification requirements of all such state
securities laws are available and the Company shall have received an opinion of
counsel, satisfactory to the Company as to its Issuer, form and contents, that
the proposed sale or other disposition of such securities may be effected
without registration under the 1933 Act and would not result in any violation of
any applicable state securities laws relating to the registration or
qualification of securities for sale.
The Holder agrees to indemnify and hold harmless the Company against any
loss, damage, claim or liability arising from the disposition of this Warrant or
any Exercise Share held by such holder or any interest therein in violation of
the provisions of this Paragraph 8.
-7-
(b) Restrictive Legends. Unless and until otherwise permitted by this
Paragraph 8, this Warrant Certificate, each Warrant Certificate issued to the
Holder or to any transferee or assignee of this Warrant, and each certificate
representing Exercise Shares issued upon exercise of this Warrant or to any
transferee of the person to whom the Exercise Shares were issued, shall bear a
legend setting forth the requirements of Subparagraph (a) of this Paragraph 8,
together with such other legend or legends as may otherwise be deemed necessary
or appropriate by counsel to the Company.
(c) Notice of Proposed Transfers. Prior to any transfer, offer to transfer
or attempted transfer of this Warrant or any Exercise Share, the holder of such
security shall give written notice to the Company of such holder's intention to
effect such transfer. Each such notice shall (x) describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall contain
an undertaking by the person giving such notice to furnish such other
information as may be required, to enable counsel to render the opinions
referred to below, and shall (y) designate the counsel for the person giving
such notice, such counsel to be satisfactory to the Company. The person giving
such notice shall submit a copy thereof to the counsel designated in such notice
and the Company shall submit a copy thereof to its counsel, and the following
provisions shall apply:
(i) If, in the opinion of each such counsel, the proposed
transfer of this Warrant or Exercise Share, as appropriate, may be effected
without registration of such security under the 1933 Act, the Company shall, as
promptly as practicable, so notify the holder of such security and such holder
shall thereupon be entitled to transfer such security in accordance with the
terms of the notice delivered by such holder to the Company. Each certificate
evidencing the securities thus to be transferred (and each certificate
evidencing any untransferred balance of the securities evidenced by such
certificate shall bear the restrictive legends referred to in Subparagraph (b)
above, unless in the opinion of each such counsel such legend is not required in
order to insure compliance with the 1933 Act.
(ii) If, in the opinion of either of such counsel, the
proposed transfer of securities may not be effected without registration under
the 1933 Act, the Company shall, as promptly as practicable, so notify the
holder thereof. However, the Company shall have no obligation to register such
securities under the 1933 Act, except as otherwise provided herein.
The holder of the securities giving the notice under this Subparagraph (c)
shall not be entitled to transfer any of the securities until receipt of notice
from the Company under Subparagraph (i) of this Subparagraph (c) or the
registration of such securities under the 1933 Act has become effective.
(d) Removal of Legends. The Company shall, at the request of any registered
holder of
-8-
a warrant or Exercise Share, exchange the certificate representing such security
for a certificate representing the same security not bearing the restrictive
legend required by Subparagraph (b) if, in the opinion of counsel to the
Company, such restrictive legend is no longer necessary.
9. Registration Rights.
(a) Required Registration.
(i) As soon as practicable after issuance of this Warrant, the
Company shall register the shares of restricted stock underlying this Warrant
(the "Restricted Stock") under the 1933 Act for public sale in open market
transactions.
(ii) The Company shall be entitled to include in any Registration
Statement referred to in subparagraph (a)(i) of this Paragraph 9, Common Shares
to be sold by other shareholders of the Company.
(iii) The Company's obligation in Subparagraph (i) above extends only
to the use of all reasonable efforts to register such shares pursuant to a
Registration statement. The Company shall have no obligation whatsoever to
indemnify or hold harmless the Holder in connection with the sale of Restricted
Stock. Furthermore, the Holder hereby agrees, as a condition precedent to such
registration, to provide the Company with a certificate or certificates
evidencing compliance with the 1933 Act and all applicable rules and regulations
thereunder.
(b) Registration Procedures. In connection with the Company's obligations
under subparagraph (a) hereof to effect the registration of the Restricted Stock
under the 1933 Act, the Company will use all reasonable efforts to:
(i) prepare and file with the Commission a Registration Statement
with respect to such securities and use its reasonable efforts to cause such
Registration Statement to become and remain effective for the period of the
distribution contemplated thereby or as required under the 1933 Act, but in no
event shall the Company be obligated to cause any Registration Statement to
remain effective beyond the period ending two years from the date of issuance of
this Warrant;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective for
the period specified in Subparagraph (i) above and as comply with the provisions
of the 1933 Act;
(iii) furnish to the Holder such number of copies of the Registration
Statement and
-9-
the prospectus included therein as the Holder may reasonably request in order to
facilitate the sale of the Restricted Stock covered by such Registration
Statement;
(iv) use its reasonable efforts to register or qualify the Restricted
Stock covered by such Registration Statement under the securities or blue sky
laws of such jurisdictions as the Holder shall reasonably request; provided,
however, that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process in any
such jurisdiction;
(v) immediately notify the Holder, at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act, of the
happening of any event as a result of which the prospectus contained in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required or necessary to be
stated therein in order to make the statements contained therein not misleading
in light of the circumstances then existing;
(vi) make available for inspection by the Holder and any attorney,
accountant or other agent retained by the Holder all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by the Holder in connection with such Registration
Statement; and
(vii) if the Common Shares of the Company are listed on any
securities exchange or automated quotation system, the Company shall use its
best efforts to list (with the listing application being made at the time of the
filing of such Registration Statement or as soon thereafter as is reasonably
practicable) the Restricted Stock covered by such Registration Statement on such
exchange or automated quotation system.
(d) Expenses.
(i) For the purposes of this Subparagraph (d) of this Paragraph 9,
the term "Registration Expenses" shall mean: all expenses incurred by the
Company in complying with paragraph (a) of this Paragraph 9, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for the Company
(other than the expenses of any special audit as described below), fees of the
National Association of Securities Dealers, Inc. ("NASD"), fees and expenses of
listing shares of Restricted Stock on any securities exchange or automated
quotation system on which the Company's shares are listed and fees of transfer
agents and registrars. The term "Selling Expenses" shall mean: all underwriting
discounts and selling commissions applicable to the sale of Restricted Stock;
the cost
-10-
of any special (i.e., other than fiscal year-end) audit required by the
1933 Act as a result of the Company's obligation to maintain the effectiveness
of the Registration Statement, and any fees and expenses of compliance with Blue
Sky laws.
(ii) The Company will pay all Registration Expenses in connection
with the Registration Statement filed pursuant to Subparagraph 9(a). The Holder
shall pay all Selling Expenses in connection with such registration.
(e) Miscellaneous Provisions.
(i) In connection with the registration hereunder, as a condition
precedent to including the Holder's Restricted Stock in the Registration
Statement, the Holder will furnish to the Company in writing such information
with respect to it and the securities held by it and the proposed distribution
by it as shall be reasonably requested by the Company in order to assure
compliance with federal and applicable state securities laws. The Holder also
hereby agrees to promptly notify the Company of any changes in such information
included in the Registration Statement or prospectus as a result of which there
is an untrue statement of material fact or an omission to state any material
fact required or necessary to be stated therein in order to make the statements
contained therein not misleading in light of the circumstances then existing.
(ii) In connection with the registration pursuant to this Paragraph
9, the Holder will not effect sales thereof until notified in writing by the
Company of the effectiveness of the Registration Statement, and thereafter will
suspend such sales after receipt of telegraphic or written notice from the
Company to suspend sales to permit the Company to correct or update a
Registration Statement or prospectus. At the end of the period during which the
Company is obligated to keep the Registration Statement current, the Holder
shall discontinue sales of shares pursuant to such Registration Statement upon
receipt of notice from the Company of its intention to remove from registration
the shares covered by such Registration Statement which remain unsold, and the
Holder shall notify the Company of the number of shares registered which remain
unsold immediately upon receipt of such notice from the Company.
10. Supplements and Amendments. The Company may from time to time supplement or
amend this Warrant Certificate without the approval of any holders of Warrants
in order to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision, or to make any other provisions in regard to matters or questions
herein arising hereunder which the Company may deem necessary or desirable and
which shall not materially adversely affect the interests of the Holder.
11. Successors and Assigns. This Warrant shall inure to the benefit of and be
binding on the respective successors, assigns and legal representatives of the
Holder and the Company.
-11
12. Severability. If, for any reason, any provision, paragraph or term of this
Warrant Certificate is held to be invalid or unenforceable, all other valid
provisions herein shall remain in full force and effect and all terms,
provisions and paragraphs of this Warrant shall be deemed to be severable.
13. Governing Law. This Warrant shall be deemed to be a contract made under the
laws of the Commonwealth of Pennsylvania and for all purposes shall be governed
by and construed in accordance with the laws of said State.
14. Headings. Paragraph and subparagraph headings are included herein for
convenience of reference only and shall not affect the construction of this
Warrant Certificate nor constitute a part of this Warrant Certificate for any
other purpose.
IN WITNESS WHEREOF, the Company has caused these presents to be duly
executed as of the ______ day of __________, 1995.
XXXXXX HOLDINGS, LTD.
BY:__________________
Executive Officer
APPENDIX A
NOTICE OF WARRANT EXERCISE
To: Xxxxxx Holdings, Ltd.
The undersigned, the holder of the within Warrant, hereby irrevocably
exercises its purchase rights under the Warrant to purchase ________________
Common Shares of Xxxxxx Holdings, Ltd., and herewith makes payment of
$__________________________ ____________________ Dollars and _______________
Cents) in lawful money of the United States, all at the Exercise Price and on
the terms and conditions specified in the within Warrant. If such number of
shares shall not be all of the shares purchasable under the within Warrant,
please issue a new Warrant Certificate for the balance of the remaining shares
purchasable under the within Warrant and deliver such new certificates to the
undersigned at the address stated below.
The undersigned directs that a certificate representing the Common Shares or
other securities issuable upon the exercise of the within Warrant pursuant to
this Notice be issued in the name of and at the address specified below and
delivered thereto as follows:
Dated:_____________________________
______________________________________________________________________________
(Signature of Owner)
______________________________________________________________________________
(Street Address)
______________________________________________________________________________
(City (State) (Zip Code)
Shares to be issued to:
___________________________
Taxpayer Identification No.
Name___________________________________________________________
Street Address___________________________________________________
City, State and Zip Code______________________________________
-13-
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
Name_______________________________________________________
(the "Assignee")
(Please type or print in block letters)
Address__________________________________________________________
_________________________________________________________________
the right to purchase Common Shares represented by this Warrant to the extent
which such right is exercisable and does hereby irrevocably constitute and
appoint the Assignee as the attorney of the undersigned, to transfer the same on
the books of the Company with full power of substitution in the premises.
Dated:_____________________________________________, 19____
Print Name:_________________________________________________
____________________________________________________________
Signature
-14-
