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Exhibit 4.6
Right to Purchase 18,042* Shares of Voting
Common Stock of Cryenco Sciences, Inc.
THIS WARRANT HAS NOT BEEN, AND ANY SHARES ACQUIRED UPON THE EXERCISE OF
THIS WARRANT WILL NOT BE, REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR ANY APPLICABLE STATE SECURITIES
LAWS. FURTHERMORE, THIS WARRANT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN SECTION 21 OF THE AGREEMENT
REFERRED TO HEREINAFTER, A COMPLETE AND CORRECT COPY OF WHICH IS AVAILABLE
FOR INSPECTION AT THE PRINCIPAL OFFICE OF CRYENCO SCIENCES, INC. AND WILL BE
FURNISHED WITHOUT CHARGE TO THE HOLDER OF THIS WARRANT UPON WRITTEN REQUEST.
Cryenco Sciences, Inc.
Common Stock Purchase Warrant
Cryenco Sciences, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, The CIT Group/Equity Investments, Inc., a
New Jersey corporation ("CIT"), or its transferees, successors and assigns, is
entitled, subject to terms set forth below, to purchase from the Company at any
time or from time to time after the date hereof and prior to the expiration
hereof pursuant to Section 2.4 hereof, 18,042* fully paid and non-assessable
shares of Voting Common Stock (as defined in Section 12 hereof), at an initial
purchase price per share of $6.18834* (such price per share as adjusted from
time to time as provided herein is referred to herein as the "Exercise Price").
The number and character of such shares of Common Stock and the Exercise Price
are subject to adjustment as provided herein.
This Warrant is issued pursuant to that certain letter agreement dated as
of October 31, 1993, among the Company, Cryenco, Inc. and CIT, amending the
Securities Purchase Agreement dated as of August 30, 1991, as amended (the
"Agreement"), among the Company (as the surviving corporation in the merger of
Cryenco Holdings, Inc. with and into Gulf and Mississippi Corporation),
Cryenco, Inc. (as the surviving corporation in the merger of Cryogenic Energy
Company with and into CEC Acquisition Corp.) and CIT, copies of which are on
file at the principal office of the Company. The holder of this Warrant shall
be entitled
____________________
* As adjusted to reflect the antidilution adjustments triggered by
the Company's Private Placement and related transactions with
International Capital Partners, Inc. which occurred in December
1994, January 1995 and June 1995.
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to all of the benefits and shall be subject to all of the obligations of the
Agreement relating to the Warrants (as such term is defined in the Agreement)
as provided therein as amended to date.
1. DEFINITIONS.
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Terms defined in the Agreement and not otherwise defined herein shall
have the meanings assigned thereto in the Agreement. Certain terms used in this
Warrant are specifically defined in Section 12 hereof.
2. EXERCISE OF WARRANT.
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2.1 IN GENERAL. This Warrant may be exercised in whole or in part by
the holder hereof at any time or from time to time prior to its expiration by
surrender of this Warrant, with the form of subscription at the end hereof duly
executed by such holder, to the Company at its principal office, accompanied by
payment, by certified or official bank check payable to the order of the
Company or by wire transfer to its account in the amount obtained by
multiplying the number of shares of Common Stock for which this Warrant is then
being exercised by the Exercise Price then in effect; PROVIDED, HOWEVER, that
the holder hereof shall have the right, at its election, in lieu of delivering
the Exercise Price in cash, to instruct the Company in the form of subscription
to retain, in payment of the Exercise Price, a number of shares of Common Stock
(the "Payment Shares") equal to the quotient of (i) the aggregate Exercise
Price of the shares as to which this Warrant is then being exercised divided by
(ii) the "Average Closing Price" as of the date of exercise and to deduct the
number of Payment Shares from the shares to be delivered to the holder hereof.
"Average Closing Price" means, as of any date, (x) if shares of Voting Common
Stock are listed on a national securities exchange, the average of the closing
sales prices therefor on the largest securities exchange on which such shares
are traded on the last ten (10) trading days before such date, (y) if such
shares are listed on the NASDAQ National Market System but not on any national
securities exchange, the average of the closing sales prices therefor on the
NASDAQ National Market System on the last ten (10) trading days before such
date or (z) if such shares are not listed on either a national securities
exchange or the NASDAQ National Market System, the average of the sales prices
therefor on the last twenty (20) trading days before such date. In the event
the Warrant is not exercised in full, the Company, at its expense, will
forthwith issue and deliver to or upon the order of the holder hereof a new
Warrant or Warrants of like tenor, in the name of the holder hereof or as such
holder (upon payment by such holder of any applicable transfer taxes) may
request, calling in the aggregate on the face or faces thereof for the number
of shares of Common Stock equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of such shares (without giving effect to any adjustment
therein) for which this Warrant shall have been exercised.
2.2 Intentionally Omitted.
2.3 CONFLICT WITH OTHER LAWS. Any other provisions hereof to the
contrary notwithstanding, no Bank Affiliate shall be entitled to exercise the
right under this Warrant to
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purchase any share or shares of Common Stock if, under any law or under any
regulation, rule or other requirement of any governmental authority at any time
applicable to such Bank Affiliate, (a) as a result of such purchase, such Bank
Affiliate would own, control or have power to vote a greater quantity of
securities of any kind than the Bank Affiliate shall be permitted to own,
control or have power to vote or (b) such purchase would not be permitted. For
purposes of this Section 2.3, a written certification of the Bank Affiliate
exercising the Warrant, delivered upon surrender of the Warrant pursuant to the
Agreement, to the effect that the Bank Affiliate is legally entitled to
exercise its right under this Warrant to purchase securities and that such
purchase will not violate the prohibitions set forth in the preceding sentence,
shall be conclusive and binding upon the Company and shall obligate the Company
to deliver certificates representing the shares of Common Stock so purchased in
accordance with the other provisions hereof and shall relieve the Company of
any liability under this Section 2.3.
2.4 TERMINATION OF THE WARRANT. This Warrant shall terminate upon the
earlier to occur of (i) August 29, 2003 and (ii) the exercise in full.
3. REGISTRATION RIGHTS.
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The holder of this Warrant has the right to cause the Company to
register shares of Warrant Stock, and any shares issued upon exercise hereof,
under the Securities Act and any blue sky or securities laws of any
jurisdictions within the United States at the time and in the manner specified
in the Registration Rights Agreement.
4. DELIVERY OF STOCK CERTIFICATES ON EXERCISE.
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As soon as practicable after the exercise of this Warrant in full or
in part, any in any event within twenty (20) days thereafter, the Company at
its expense (including the payment by or of any applicable issue taxes) will
cause to be issued in the name of and delivered to the holder hereof, or as
such holder (upon payment by such holder of any applicable transfer taxes) may
direct, a certificate or certificates for the number of fully paid and
non-assessable shares of Common Stock (or Other Securities) which such holder
shall be entitled to receive on such exercise, together with any other stock or
other securities and property (other than cash) which such holder is entitled
to receive upon exercise.
5. ADJUSTMENT FOR DIVIDEND, DISTRIBUTION AND RECLASSIFICATIONS.
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In case at any time or from time to time the holders of Common Stock
shall have received or (on or after the record date fixed for the determination
of shareholders eligible to receive) shall have become entitled to receive,
without payment therefor:
(a) other or additional stock or other certificates or property (other
than cash) by way of dividend; or
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(b) other or additional stock or other securities or property (other
than cash) by way of spin-off, split-up, reclassification, recapitalization,
combination of shares or similar corporate restructuring;
OTHER THAN additional shares of Common Stock issued in a stock split or other
reclassification, recapitalization or similar corporate restructuring of the
Company's Common Stock (adjustment in respect of which are provided for in
Section 7.1 hereof), then and in each such case the holder of this Warrant, on
the exercise hereof as provided in Section 2 hereof, shall be entitled to
receive the amount of stock and other securities and property (other than cash)
which such holder would have received prior to, or would have held on the date
of, such exercise if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this Warrant and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and all such other or additional stock and
other securities and property (other than cash) receivable by such holder as
aforesaid during such period, giving effect to all further adjustments called
for during such period by Sections 6 and 7 hereof. The Company hereby agrees
that it will at all times reserve and keep available for such holder, solely
for delivery upon the exercise of this Warrant, any distribution to which such
holder is entitled under this Section 5.
6. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
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6.1 CERTAIN ADJUSTMENTS. In case at any time or from time to time, the
Company shall (i) effect a capital reorganization, reclassification or
recapitalization, (ii) consolidate with or merge into any other Person or (iii)
transfer all or substantially all of its properties or assets to any other
Person under any plan or arrangement contemplating the dissolution of the
Company, then in each such case, the holder of this Warrant, on the exercise
hereof as provided in Section 2 hereof at any time after the consummation of
such reorganization, reclassification, recapitalization, consolidation, merger
or transfer, or the effective date of such dissolution, as the case may be,
shall receive, in lieu of the Common Stock (or Other Securities) issuable on
such exercise prior to such consummation or effective date, the stock and other
securities and property (including cash) to which such holder would have been
entitled upon such consummation or in connection with such dissolution, as the
case may be, if such holder had so exercised this Warrant immediately prior
thereto, all subject to further adjustment thereafter as provided in Section 5
and 7 hereof.
6.2 CONTINUATION OF TERMS. Upon any reorganization, reclassification,
recapitalization, consolidation, merger or transfer referred to in this Section
6, this Warrant shall continue in full force and effect and the terms hereof
shall be applicable to the shares of stock and Other Securities and property
receivable on the exercise of this Warrant after the consummation of such
reorganization, reclassification, recapitalization, consolidation or merger, as
the case may be, and shall be binding upon the issuer of any such stock or
Other Securities, including, in the case of any such transfer, the Person
acquiring all or substantially all of the properties or assets of the Company,
whether or not such Person shall have expressly assumed the terms of this
Warrant as provided in Section 8 hereof.
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7. ADJUSTMENTS FOR ISSUANCE OF COMMON STOCK
AND AMOUNT OF OUTSTANDING COMMON STOCK.
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7.1 IN GENERAL. If at any time there shall occur any stock split,
stock dividend, reverse stock split or other subdivision, reclassification,
recapitalization, recombination of shares or similar corporate restructuring of
the Company's Common Stock, any rights offering by the Company to its existing
stockholders or any issuance by the Company of Additional Shares of Common
Stock upon the exercise of Convertible Securities (each as defined in Section
7.2 hereof) granted before the consummation of the G&M Merger, other than any
such shares issued upon the exercise of options granted to Xxxxxx X. Xxxxxxx
before August 30, 1991 (each, a "Stock Event"), then the number of shares of
Common Stock to be received by the holder of this Warrant shall be
appropriately adjusted such that the proportion of the number of shares
issuable hereunder to the total number of outstanding shares of the Company
(calculated on a Fully-Diluted Basis) prior to such Stock Event is equal to
the proportion of the number of outstanding shares of the Company after such
Stock Event (calculated on a Fully-Diluted Basis). No adjustment to the
Exercise Price shall be made in connection with any adjustment of the number of
shares of Common Stock receivable upon exercise of this Warrant, except that
the Exercise Price shall be proportionately increased or decreased upon the
occurrence of any event provided for in this Section 7.1 so that the aggregate
Exercise Price for all shares of Common Stock covered hereby shall remain
unchanged.
7.2 ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK. If at any time the
Company shall issue or sell (i) any Additional Shares of Common Stock in
exchange for consideration in an amount per Additional Share of Common Stock
less than the Fair Market Value Per Share of Common Stock at the time the
Additional Shares of Common Stock are issued or sold or (ii) any Convertible
Securities having an exercise price or Conversion Price in an amount per share
of Common Stock less than the Fair Market Value Per Share of Common Stock at
the time of such issuance or sale, then the number of shares of Common Stock
for which this Warrant is exercisable shall be adjusted to equal the product
obtained by multiplying the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such issuance or sale by a fraction
(a) the numerator of which shall be the number of shares of Common Stock
outstanding immediately after such issuance or sale (assuming the conversion or
exercise of all such Convertible Securities) and (b) the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior to
such issuance or sale plus either (x) the number of shares which the aggregate
offering price of the total number of such Additional Shares of Common Stock
would purchase at the then Fair Market Value Per Share or (y) the number of
shares of Common Stock which could be purchased if the exercise price of such
Convertible Security or the Conversion Price of such Convertible Security (as
applicable) were set at the then Fair Market Value Per Share. Thereupon, the
Exercise Price shall be correspondingly reduced so that the aggregate Exercise
Price for all shares of Common Stock covered hereby shall remain unchanged. No
adjustments shall be made upon the exercise or conversion of Convertible
Securities. For purposes of this paragraph, (i) the term "Additional Shares of
Common Stock" means any shares of Common Stock issued by the Company after the
Closing Date other than Warrant Stock or stock issuable upon the exercise of
options granted
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to Xxxxxx X. Xxxxxxx, before August 30, 1991, (ii) the term "Convertible
Securities" means all options, warrants or securities exercisable for, all
rights to subscribe for, and all securities which are convertible into to
exchangeable for, Common Stock and (iii) the term "Conversion Price" means,
with respect to any Convertible Security, the price paid for such Convertible
Security divided by the number of shares of Common Stock into which such
Convertible Security is convertible on the date of issuance of such Convertible
Security.
8. NO DILUTION OR IMPAIRMENT.
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The Company will not, by amendment of its Certificate of Incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant
hereunder. Without limiting the generality of the foregoing, the Company (i)
will not increase the par value of any shares of stock receivable on the
exercise of the Warrant above the amount payable therefor on such exercise,
(ii) will take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and non-assessable shares
of stock on the exercise of the Warrant from time to time outstanding, (iii)
will not issue any capital stock of any class which is preferred as to
dividends or as to the distribution of assets upon voluntary or involuntary
dissolution, liquidation or winding up, unless the rights of the holders
thereof shall be limited to a fixed sum or percentage of par value in respect
of participation in dividends and in any such distribution of assets and (iv)
will not transfer all or substantially all of its properties and assets to any
other entity (corporate or otherwise), or consolidate with or merge into any
other entity or permit any such entity to consolidate with or merge into the
Company (if the Company is not the surviving entity), unless such other entity
shall expressly assume in writing and will be bound by all the terms of this
Warrant and the Agreement. If any event occurs as to which the provisions of
Sections 5, 6 or 7 hereof are strictly applicable and the application thereof
would not, in the good faith judgment of the Board of Directors of the Company,
fairly protect the purchase rights of the Warrants in accordance with the
essential intent and principles of such provisions, then such Board shall make
such adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of such Board, to protect such purchase rights as aforesaid, but
in no event shall any such adjustment have the effect of increasing the
Exercise Price or decreasing the number of shares of Common Stock subject to
purchase upon exercise of this Warrant. Nothing contained in this Warrant shall
prohibit the Company from issuing or selling securities in the future.
9. ACCOUNTANTS' CERTIFICATE AS TO ADJUSTMENTS.
-------------------------------------------
In each case of any event that may require any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable on
the exercise of this Warrant, the Company at its expense will promptly prepare
a certificate setting forth such adjustment or readjustment and showing, in
detail, the facts upon which any such adjustment or readjustment
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is based, including a statement of (i) the number of shares of the Company's
Common Stock then outstanding on a Fully-Diluted Basis, and (ii) the number of
shares of Common Stock (or Other Securities) to be received upon exercise of
this Warrant (A) immediately prior to such adjustment or readjustment and (B)
as adjusted and readjusted (if required by Section 7) on account thereof. The
Company will forthwith mail a copy of each such certificate to each holder of a
Warrant and will, on the written request at any time of any holder of a
Warrant, furnish to such holder a like certificate setting forth the
calculations used to determine such adjustment or readjustment. At its option,
the holder of a Warrant may confirm the adjustment noted on the certificate by
causing such adjustment to be computed by an independent certified public
accountant at the expense of the Company. The cost of any such confirmation
shall be borne (x) by the Company, if the computation of such independent
certified public accountant indicates that the adjustment noted on the
Company's certificate was in any respect incorrect to the detriment of the
holders, and (y) otherwise, by the holder requesting such confirmation.
10. NOTICES OF RECORD DATE.
-----------------------
In the event of:
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution (including, without
limitation, any distribution that may arise as a result of a spin-off,
split-up, reclassification, recapitalization, combination of shares or similar
corporate restructuring), or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or property,
or to receive any other right;
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or any
consolidation or merger of the Company with or into any other Person;
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(d) any proposed issuance or grant by the Company of any shares
of stock of any class or any other securities, or any right or option to
subscribe for, purchase or otherwise acquire any shares of stock of any class
or any other securities (other than the issuance of Common Stock on the
exercise of this Warrant),
then, and in each such event, the Company will mail or cause to be mailed to
the holder of this Warrant a notice specifying (i) the date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right,
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place and the time, if any, to be fixed, as of which the
holders of record of Common Stock (or
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Other Securities) shall be entitled to exchange their shares of Common Stock
(or Other Securities) for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least twenty (20) days
prior to the date specified in such notice on which any such action is to be
taken.
11. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT.
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The Company will at all times reserve and keep available, solely
for issuance and delivery on the exercise of the Warrant, a number of shares of
Voting Common Stock equal to the total number of shares of Voting Common Stock
from time to time issuable upon exercise of this Warrant and the number of
Other Securities which at any time may be issuable hereunder, and, from time to
time, will take all steps necessary to amend its Certificate of Incorporation
to provide sufficient reserves of shares of Common Stock issuable upon exercise
of the Warrant and upon the conversion of shares of one class of Common Stock
into shares of the other class of Common Stock, as provided in its Certificate
of Incorporation.
12. DEFINED TERMS.
--------------
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
12.1 The term BANK AFFILIATE means any Person that is a bank
holding company or a subsidiary of a bank holding company as defined in the
Bank Holding Company Act of 1956, as amended, or other applicable banking laws
of the United States and the rules and regulations promulgated thereunder.
12.2 The term COMPANY means Cryenco Sciences, Inc., the surviving
corporation of the merger of CHI into G&M, and any corporation which shall
succeed to or assume the obligations of the Company hereunder.
12.3 The term COMMON STOCK means (i) the Company's Voting Common
Stock, $.0l par value (the "Voting Common Stock"), (ii) the Company's
Convertible Non-Voting Common Stock, $.0l par value, (iii) any other capital
stock of any class or classes (however designated) of the Company the holders
of which shall have the right, without limitation as to amount, either to all
or to a share of the balance of current dividends and liquidating dividends
after the payment of dividends and distributions on any shares entitled to
preference and (iv) any other securities into which or for which any of the
securities described in clauses (i), (ii) or (iii) above have been converted,
exchanged or combined pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
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12.4 The term OTHER SECURITIES means any stock (other than Common
Stock) and other securities of the Company or any other entity (corporate or
otherwise) which (i) the holder of this Warrant at any time shall be entitled to
receive, or shall have received, on the exercise of this Warrant, in lieu of or
in addition to Common Stock, or (ii) at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities, in each case pursuant to Section 5 or 6 hereof.
13. REMEDIES.
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The Company stipulates that the remedies at law of the holder of
this Warrant in the event of any default or threatened default by the Company
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or
by an injunction against a violation of any of the terms hereof or otherwise.
14. NOTICES.
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All notices and other communications provided for or permitted
hereunder shall be made in writing (including facsimile transmission or other
similar writing) as follows: if to CIT, to it at 000 XXX Xxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000-0000, Attention: Xxxxx Xxxxxxx (telecopier no.: (201)
740-5555), with a copy to Xxxxxxx Xxxx & Xxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxxxxxx, Esq. (telecopier no.: (000) 000-0000);
if to a subsequent holder of this Warrant, to it at such address as may have
been furnished to the Company in writing by such holder or, until any such
holder furnishes to the Company an address, then to, and at the address of, the
last holder of this Warrant who has so furnished an address to the Company; and
if to the Company, to it c/o Charterhouse Group International, Inc. at 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President
(telecopier no.: (000) 000-0000) with a copy to Shack & Siegel, P.C. 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq.
(telecopier no.: (000) 000-0000); and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 14.
All such notices shall be deemed to have been duly given: (i) if
delivered personally, upon actual delivery, (ii) if delivered by mail, one
Business Day after deposited in the United States mail, overnight express mail,
return receipt requested, postage prepaid, or one Business Day after delivery
to a nationally recognized overnight express mall or courier service, or (iii)
if sent by facsimile transmission (or other similar writing), upon receipt of
telephonic or written confirmation thereof.
15. PUBLIC FILINGS, NASDAQ QUALIFICATIONS; AND MISCELLANEOUS.
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15.1 PUBLIC FILINGS AND NASDAQ QUALIFICATION. For so long as (i)
this Warrant is outstanding or (ii) the Shares of Warrant Stock issuable upon
the exercise of this Warrant are outstanding and have not been registered or
transferred in reliance upon Rule 144 or Rule 144A,
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in each case as amended from time to time under the Securities Act, or any
successor provisions relating to the resale of restricted securities without
registration under Section 5 of the Securities Act, the Company agrees to use
its best efforts (A) to file timely (whether or not it shall then be required
to do so) such information, documents and reports as the Commission may require
or prescribe under Section 13 or 15(d) (whichever is applicable) of the
Exchange Act, (B) promptly upon request, to furnish to any holder of this
Warrant or the Warrant Stock a copy of the most recent annual, current or
quarterly report of the Company and such other information which is provided to
all stockholders of the Company generally, (C) to file such other information,
documents and reports as shall be required of it hereafter by the Commission as
a condition to the availability of Rule 144 or 144A, in each case as may be
amended from time to time, under the Securities Act, or any successor (but not
additional) provisions relating to the resale of restricted securities without
registration under Section 5 of the Securities Act, and (D) to maintain the
quotation of its Common Stock on the National Association of Securities
Dealers, Inc. Automated Quotation System (bid and asked) including, without
limitation, using its best efforts to keep effective the registration to its
Common Stock under Section 12 of the Exchange Act and to make timely payment of
all applicable fees.
15.2 MISCELLANEOUS. In case any provision of this Warrant shall
be invalid, illegal or unenforceable, or partially invalid, illegal or
unenforceable, the provision shall be enforced to the extent, if any, that it
may legally be enforced and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by a statement in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought. This Warrant shall be
governed by and construed in accordance with the domestic substantive laws (and
not the conflict of law rules) of the State of New York. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its duly authorized officer and attested by its Secretary.
Dated as of November 24, 1993
CRYENCO SCIENCES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chairman
Attest:
/s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
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FORM OF SUBSCRIPTION
(To be signed only on exercise
of Common Stock Purchase Warrant)
To: Cryenco Sciences, Inc.
The undersigned, the Holder of the within Common Stock Purchase
Warrant, hereby irrevocably elects to exercise this Common Stock Purchase
Warrant for, and to purchase thereunder, ___shares of Voting Common Stock of
Cryenco Sciences, Inc. and herewith [makes payment of $_____ therefor]
[instructs you herein, in payment of the Exercise Price, to deduct ___ shares
of Voting Common Stock and to deliver the net number of shares, being ___
shares of Voting Common Stock], and requests that the certificates for such
shares be issued in the name of, and delivered to _________________ whose
address is __________
Dated:
_____________________________________
(Signature must conform in all
respects to name of Holder as
specified on the face of the Warrant)
______________________________________
(Address)
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _______ the right represented by the within Warrant to purchase
____ shares of ______ Common Stock of Cryenco Sciences, Inc., a Delaware
corporation, to which the within Warrant relates, and appoints ___________,
attorney to transfer such right on the books of Cryenco Sciences, Inc., with
full power of substitution in the premises.
[Name of Assignor]
Dated: _____________ By:_________________________________
Title: ___________________
Address: __________________
Signed in the presence of:
___________________________
