AGREEMENT, dated this 16th day of July, 1997 by and between APOLLO
INTERNATIONAL OF DELAWARE, 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 (i) the offering to the public of up to
800,000 shares of the Company's common stock, $.01 par value ("Common
Stock"), and 800,000 redeemable warrants, entitling the holder to purchase
one share of Common Stock ("Redeemable Warrants") (collectively referred to
as the "Securities"), (ii) the over-allotment option to purchase up to
120,000 shares of Common Stock and/or 120,000 Redeemable Warrants (the
"Over-allotment Option"), and (iii) the sale to May Xxxxx Group, Inc. its
successors and assigns ("May Xxxxx") of warrants (the "Underwriter's
Warrants") to purchase up to 80,000 shares of Common Stock and/or 80,000
Redeemable Warrants, such Redeemable Warrants, except as otherwise set forth
herein, being identical to the Redeemable Warrants being sold to the public
(the Redeemable Warrants issuable upon the exercise of the Underwriter's
Warrants are referred to as the "Common Stock Warrants"), the Company will
issue up to 920,000 Redeemable Warrants and may issue up to 80,000 Common
Stock Warrants (subject to increase as provided in the Underwriter's Warrant
Agreement); and
WHEREAS, the Company desires to provide for the issuance of
certificates representing the Redeemable Warrants and the Common Stock
Warrants (collectively, the "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 and exchange of certificates
representing the Warrants and the exercise of the Warrants.
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
Underwriter, the holders of certificates representing the Warrants and the
Warrant Agent, the parties hereto agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Common Stock" shall mean the common stock of the Company, par
value $.01 per share.
(b) "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 on the date hereof at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(c) "Exercise Date" shall mean, subject to the provisions of
Section 5(b) hereof, as to any Warrant, the date on which the Warrant Agent
shall have received both (i) the Warrant Certificate representing such
Warrant, with the exercise form thereon duly executed by the Registered
Holder hereof with such Registered Holder's signature guaranteed, and (ii)
payment in cash or by bank or cashier's check made payable to the Warrant
Agent for the account of the Company, of the amount in lawful money of the
United States of America equal to the applicable Purchase Price.
(d) "Initial Warrant Exercise Date" shall mean the earlier of the date
upon which the Company gives a notice of redemption of the Redeemable
Warrants or, July 10, 1999 for the Redeemable Warrants and for the Common
Stock Warrants.
(e) "Initial Warrant Redemption Date" shall mean July 10, 1998,
provided May Xxxxx shall have consented in writing to the redemption, which
consent shall be required for redemptions occurring on or before July 10,
1999.
(f) "Purchase Price" shall mean, subject to modification and
adjustment as provided in Section 8, $5.50 per share of Common Stock.
(g) "Registered Holder" shall mean the person in whose name any
certificate representing the Warrants shall be registered on the books
maintained by the Warrant Agent pursuant to Section 6.
(h) "Subsidiary" or "Subsidiaries" shall mean any corporation or
corporations, as the case may be, of which stock having ordinary power to
elect a majority of the Board of Directors of such corporation (regardless of
whether or not at the time stock of any other class or classes of such
corporation shall have or may have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by the Company
or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
(i) "Transfer Agent" shall mean American Stock Transfer & Trust
Company, or its authorized successor.
(j) "Underwriting Agreement" shall mean the underwriting agreement
dated July 10, 1997 between the Company and May Xxxxx, relating to the
purchase for resale to the public of the Securities.
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(k) "Underwriter's Warrant Agreement" shall mean the agreement
dated as of July 16, 1997 between the Company and May Xxxxx relating to and
governing the terms and provisions of the Underwriter's Warrants.
(l) "Warrant Certificate" shall mean a certificate representing
each of the Warrants substantially in the form annexed hereto as Exhibit A.
(m) "Warrant Expiration Date" shall mean, unless the Warrants are
redeemed as provided in Section 9 hereof prior to such date, 5:00 p.m.
(Eastern time) on July 10, 2003 for the Redeemable Warrants and for the
Common Stock Warrants or, if such date shall in the State of New York be a
holiday or a day on which banks are authorized to close, than 5:00 p.m.
(Eastern time) on the next following day which in the State of New York is
not a holiday or a day on which banks are authorized to close.
SECTION 2. Warrants and Issuance of Warrant Certificates.
(a) One Warrant shall initially entitle the Registered Holder of
the Warrant Certificate representing such Warrant to purchase at the Purchase
Price therefor from the Initial Warrant Exercise Date until the Warrant
Expiration Date one share of Common Stock upon the exercise thereof, subject
to modification and adjustment as provided in Section 8
(b) Upon execution of this Agreement, Warrant Certificates
representing 800,000 Redeemable Warrants to purchase up to an aggregate of
80,000 shares of Common Stock (subject to modification and adjustment as
provided in Section 8) shall be executed by the Company and delivered to the
Warrant Agent.
(c) Upon exercise of the Over-allotment Option, in whole or in
part, and payment of the applicable sums, Warrant Certificates representing
up to 120,000 Redeemable Warrants to purchase up to an aggregate of 120,000
shares of Common Stock (subject to modification and adjustment as provided in
Section 8) shall be executed by the Company and delivered to the Warrant
Agent.
(d) Upon exercise of the Underwriter's Warrants as provided
therein, and payment of the applicable exercise price, Warrant Certificates
representing 80,000 Common Stock Warrants to purchase up to an aggregate of
80,000 shares of Common Stock (subject to modification and adjustment as
provided in Section 8 hereof and in the Underwriter's Warrant Agreement),
shall be executed by the Company and delivered to the Warrant Agent.
(e) From time to time, up to the Warrant Expiration Date, as the
case may be, the Warrant Agent shall countersign and deliver Warrant
Certificates in required denominations of one or whole number multiplies
thereof to the person entitled thereto in connection with any transfer or
exchange permitted under this Agreement. Except as provided in Section 7
hereof, no Warrant Certificates shall be issued except (i) Warrant
Certificates initially issued hereunder, (ii) Warrant Certificates issued
upon any transfer or exchange of Warrants, (iii) Warrant
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Certificates issued in replacement of lost, stolen, destroyed or mutilated
Warrant Certificates pursuant to Section 7, (iv) Warrant Certificates issued
upon exercise of the Underwriter's Warrant Agreement (including Common Stock
Warrants in excess of 80,000 Underwriter's Warrants issued as a result of the
antidilution provisions contained in the Underwriter's Warrant Agreement),
and (v) at the option of the Company, Warrant Certificates in such form as
may be approved by its Board of Directors, to reflect any adjustment or
change in the Purchase Price, the number of shares of Common Stock
purchasable upon exercise of the Warrants or the Redemption Price therefor
made pursuant to Section 8 hereof.
SECTION 3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates shall be substantially in the form
annexed hereto as Exhibit A (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. The Warrant Certificates
shall be dated the date of issuance thereof (whether upon initial issuance,
transfer, exchange or in lieu of mutilated, lost, stolen or destroyed Warrant
Certificates).
(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
Treasurer or an Assistant Treasurer or 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 such officer of the Company before the date of issuance of the Warrant
Certificates or before countersignature by the Warrant Agent and issue and
delivery thereof, such Warrant Certificates, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the same force
and effect as though the person who signed such Warrant Certificates had not
ceased to be such officer of the Company.
SECTION 4. Exercise.
(a) Warrants may be exercised commencing at any time on or after
the Initial Warrant Exercise Date, but not after the Warrant Expiration Date,
upon the terms and subject to the conditions set forth herein (including the
provisions set forth in Sections 5 and 9 hereof) and in the applicable
Warrant Certificate. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the Exercise Date, provided
that the Warrant Certificate representing such Warrant, with the exercise
form thereon duly executed by the Registered Holder thereof with such
Registered Holder's signature guaranteed, together with
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payment in cash or by bank or cashier's check made payable to the order of
the Company, of an amount in lawful money of the United States of America
equal to the applicable Purchase Price has been received in good funds by the
Warrant Agent. The person entitled to receive the securities deliverable
upon such exercise shall be treated for all purposes as the holder of such
securities as of the close of business on the Exercise Date. As soon as
practicable on or after the Exercise Date and in any event within five
business days after such date, upon due exercise of Warrants, the Warrant
Agent on behalf of the Company shall cause to be issued to the person or
persons entitled to receive the same a Common Stock certificate or
certificates for the shares of Common Stock deliverable upon such exercise,
and the Warrant Agent shall deliver the same to the person or persons
entitled thereto. Upon the exercise of any two or more even whole number
multiples of Warrants, the Warrant Agent shall promptly notify the Company in
writing of such fact and of the number of securities delivered upon such
exercise and, subject to subsection (b) below, shall cause all payments of an
amount in cash or by check made payable to the order of the Company, equal to
the Purchase Price, to be deposited promptly in the Company's bank account.
(b) At any time upon the exercise of Warrants after one year and
one day from the date hereof, (i) the market price of the Company's Common
Stock is equal to or greater than the Purchase Price, (ii) the exercise of
the Warrant is solicited by May Xxxxx at such time while May Xxxxx is a
member of the National Association of Securities Dealers, Inc. ("NASD"),
(iii) the Warrant is not held in a discretionary account, (iv) disclosure of
the compensation arrangement is made in documents provided to the holders of
the Warrants, and (v) the solicitation of the Warrant is not in violation of
Regulation M promulgated under the Securities Exchange Act of 1934, then May
Xxxxx shall be entitled to receive from the Company upon exercise of each of
the Warrants so exercised, a fee of five percent (5%) of the aggregate price
of the Warrants so exercised (the "Exercise Fee"). Within five (5) days
after the end of each month, commencing in July 1998, the Warrant Agent will
notify May Xxxxx of each Warrant Certificate which has been properly
completed for exercise by holders of Warrants during the last month. The
Warrant Agent will provide May Xxxxx with such information, in connection
with the exercise of each Warrant, as May Xxxxx shall reasonably request.
The Company hereby authorizes and instructs the Warrant Agent to deliver to
May Xxxxx the Exercise Fee promptly after receipt by the Warrant Agent from
the Company of a check payable to the order of May Xxxxx in the amount of the
Exercise Fee. In the event that an Exercise Fee is paid to May Xxxxx with
respect to a Warrant which was not properly completed for exercise or in
respect of which May Xxxxx is not entitled to an Exercise Fee, May Xxxxx will
return such Exercise Fee to the Warrant Agent which shall forthwith return
such fee to the Company. May Xxxxx and the Company may at any time after
July 16, 1997, and 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. Notwithstanding any provision to
the contrary, the provisions of this Section 4(b) may not be modified,
amended or deleted without the prior consent of May Xxxxx.
(c) The Company shall not be obligated to issue any fractional
share interests or fractional warrant interests upon the exercise of any
Warrant or Warrants, nor shall it be
5
obligated to issue scrip or pay cash in lieu of fractional interests. Any
fractional interest shall be eliminated.
(d) Anything in this Section 4 notwithstanding, no Warrant will be
exercisable unless at the time of exercise the Company has filed with the
Securities and Exchange Commission a registration statement under the
Securities Act of 1933 covering the shares of Common Stock issuable upon
exercise of such Warrant and such shares have been so registered or qualified
or deemed to be exempt under the securities laws of the state of residence of
the holder of such Warrant.
SECTION 5. Reservation of Shares; Listing; Payment of Taxes; etc.
(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
issuance 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 shares of Common Stock which shall be issuable
upon exercise of the Warrants shall, at the time of delivery thereof, be duly
and validly issued and fully paid and nonassessable and free from all
preemptive or similar rights, taxes, liens and charges with respect to the
issuance thereof, and that upon issuance such shares shall be listed on each
securities exchange, if any, on which the other shares of outstanding Common
Stock of the Company are then listed.
(b) The Company covenants that, so long as any unexpired Warrants
remain outstanding, the Company will file such post-effective amendments to
the registration statement (Form SB-2, Registration No. 333-18071) (the
"Registration Statement") filed pursuant to the Securities Act of 1933 (the
"Act") with respect to the Warrants (or other appropriate registration
statements or post-effective amendment or supplements) as may be necessary to
permit it to deliver to each person exercising a Warrant, a prospectus
meeting the requirements of Section 10(a)(3) of the Act and otherwise
complying therewith, and will deliver such a prospectus to each such person.
To the extent that during any period it is not reasonably likely that the
Warrants will be exercised, due to market price or otherwise, the Company
need not file such a post-effective amendment or other registration statement
or post-effective amendments or supplements during such period. The Company
will use its 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 of Common
Stock upon exercise of the Warrants; provided, however, that if 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.
6
(d) The Warrant Agent is hereby irrevocably authorized as the
Transfer Agent to requisition from time to time certificates representing
shares of Common Stock or other securities required upon exercise of the
Warrants, and the Company will comply with all such requisitions.
SECTION 6. Exchange and Registration of Transfer.
(a) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants or may be
transferred in whole or in part. Warrant Certificates to be so exchanged
shall be surrendered to the Warrant Agent at its Corporate Office, and the
Company shall execute and the Warrant's 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 such office, books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and the transfer thereof. 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 any Warrant Certificates presented for
registration of transfer, or for exchange or exercise, the subscription or
exercise form, as the case may be, 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 thereof with such Registered Holder's
signature guaranteed.
(d) A $10 service charge may be imposed for any exchange,
registration or transfer of Warrant Certificates. However, the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(f) All Warrant Certificates surrendered for exercise or for
exchange shall be promptly canceled by the Warrant Agent.
(g) Prior to due presentment for registration or transfer thereof,
the Company and the Warrant Agent may deem and treat the Registered Holder of
any Warrant Certificate as the absolute owner thereof of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company or the Warrant Agent) for all
purposes and shall not be affected by any notice to the contrary.
SECTION 7. Loss or Mutilation.
7
(a) Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and (in the case of loss, theft or
destruction) of indemnity satisfactory to them, and (in case of mutilation)
upon surrender and cancellation thereof, the Company shall execute and the
Warrant Agent shall countersign and deliver in lieu thereof a new Warrant
Certificate representing an equal aggregate number of Warrants. Applicants
for a substitute Warrant Certificate shall also comply with such other
reasonable regulations and pay such other reasonable fees as the Warrant
Agent shall establish.
SECTION 8. Adjustment of Exercise Price.
(a) Except as hereinafter provided, in the event the Company shall,
at any time or from time to time after the date hereof, sell any shares of
Common Stock for a consideration per share less than the lower of (i) the
closing bid price of the Common Stock as reported on NASDAQ on the trading
date next preceding such sale (the "Market Price"), or (ii) the Share
Exercise Price then in effect, or issue any shares of Common Stock as a stock
dividend to the holders of Common Stock, or subdivide or combine the
outstanding shares of Common Stock into a greater or lesser number of shares
(any such sale, issuance, subdivision or combination being herein called a
"Change of Shares"), then, and thereafter immediately before the date of such
sale or the record date for each Change of Shares, the Share Exercise Price
for the Common Stock included in this Warrant (whether or not the same shall
be issued and outstanding) in effect immediately prior to such Change of
Shares shall be changed to a price (including any applicable fraction of a
cent to the nearest cent) determined by dividing (1) the product of (a) the
Share Exercise Price in effect immediately before such Change of Shares and
(b) the sum (i) the total number of shares of Common Stock outstanding
immediately prior to such Change of Shares, and (ii) the number of shares
determined by dividing (A) the aggregate consideration, if any, received by
the Company upon such sale, issuance, subdivision or combination, by (3) the
lesser of (x) the Market Price, and (y) the Share Exercise Price, in effect
immediately prior to such Change of Shares; by (2) the total number of shares
of Common Stock outstanding immediately after such Change of Shares.
(b) For the purposes of any adjustment to be made in accordance
with Section 8(a) the following provisions shall be applicable:
(i)
(A) In case of the issuance or sale of shares of Common
Stock (or of other securities deemed hereunder to involve the issuance or
sale of shares of Common Stock) for a consideration part or all of which
shall be cash, the amount of the cash portion of the consideration therefor
deemed to have been received by the Company shall be (i) the subscription
price (before deducting any commissions or any expenses incurred in
connection therewith), if shares of Common Stock are offered by the Company
for subscription, or (ii) the public offering price (before deducting
therefrom any compensation paid or discount allowed in the sale, underwriting
or purchase thereof by underwriters or dealers or others performing similar
services, or any expenses incurred in connection therewith), if such
securities are sold to
8
underwriters or dealers for public offering without a subscription offering,
or (iii) the gross amount of cash actually received by the Company for such
securities, in any other case.
(B) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company, and otherwise
than on the exercise of options, rights or warrants or the conversion or
exchange of convertible or exchangeable securities) of shares of Common Stock
(or of other securities deemed hereunder to involve the issuance or sale of
shares of Common Stock) for a consideration part or all of which shall be
other than cash, the amount of the consideration therefor other than cash
deemed to have been received by the Company shall be the value of such
consideration as determined in good faith by the Board of Directors of the
Company.
(C) Shares of Common Stock issuable by way of dividend or
other distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business on the day following the
record date for the determination of shareholders entitled to receive such
dividend or other distribution and shall be deemed to have been issued
without consideration.
(D) The reclassification of securities of the Company
other than shares of Common Stock into securities including shares of Common
Stock shall be deemed to involve the issuance of such shares of Common Stock
for a consideration other than cash immediately prior to the close of
business on the date fixed for the determination of security holders entitled
to receive such shares, and the value of the consideration allocable to such
shares of Common Stock shall be determined as provided in subsection (B) of
this Section 8(a).
(F) The number of shares of Common Stock at any one time
outstanding shall be deemed to include the aggregate maximum number of shares
issuable (subject to readjustment upon the actual issuance thereof) upon the
exercise of options, rights or warrants and upon the conversion or exchange
of convertible or exchangeable securities.
(i) Upon each adjustment of the Exercise Price pursuant to
this Section 8, the number of shares of Common Stock purchasable upon the
exercise of each Warrant shall be the number derived by multiplying the
number of shares of Common Stock purchasable immediately prior to such
adjustment by the Exercise Price in effect prior to such adjustment and
dividing the product so obtained by the applicable adjusted Exercise Price.
(c) In case the Company shall at any time after the date hereof
issue options, rights or warrants to subscribe for shares of Common Stock, or
issue any securities convertible into or exchangeable for shares of Common
Stock, for a consideration per share (determined as provided in Section 8(a)
and as provided below) less than the lower of (i) the Market Price, or (ii)
Share Exercise Price in effect immediately prior to the issuance of such
options, rights or warrants, or such convertible or exchangeable securities,
or without consideration (including the issuance of any such securities by
way of dividend or other distribution), the Exercise Price for the Common
Stock included in this Underwriter's Warrants (whether or not the same shall
be
9
issued and outstanding) in effect immediately prior to the issuance of such
options, rights or warrants, or such convertible or exchangeable securities,
as the case may be, shall be reduced to a price determined by making the
computation in accordance with the provisions of Section 8(a) hereof,
provided that:
(A) The aggregate maximum number of shares of Common
Stock, as the case may be, issuable or that may become issuable under such
options, rights or warrants (assuming exercise in full even if not then
currently exercisable or currently exercisable in full) shall be deemed to be
issued and outstanding at the time such options, rights or warrants were
issued, for a consideration equal to the minimum Exercise Price per share
provided for in such options, rights or warrants at the time of issuance,
plus the consideration, if any, received by the Company for such options,
rights or warrants; provided, however, that upon the expiration or other
termination of such options, rights or warrants, if any thereof shall not
have been exercised, the number of shares of Common Stock deemed to be issued
and outstanding pursuant to this subsection (A) (and for the purposes of
subsection (E) of Section 8(a) hereof) shall be reduced by the number of
shares as to which options, warrants and/or rights shall have expired, and
such number of shares shall no longer be deemed to be issued and outstanding,
and the Exercise Price then in effect shall forthwith be readjusted and
thereafter be the price that it would have been had adjustment been made on
the basis of the issuance only of the shares actually issued plus the shares
remaining issuable upon the exercise of those options, rights or warrants as
to which the exercise rights shall not have expired or terminated unexercised.
(B) The aggregate maximum number of shares of Common
Stock issuable or that may become issuable upon conversion or exchange of any
convertible or exchangeable securities (assuming conversion or exchange in
full even if not then currently convertible or exchangeable in full) shall be
deemed to be issued and outstanding at the time of issuance of such
securities, for a consideration equal to the consideration received by the
Company for such securities, plus the minimum consideration, if any,
receivable by the Company upon the conversion or exchange thereof; provided,
however, that upon the expiration or other termination of the right to
convert or exchange such convertible or exchangeable securities (whether by
reason of redemption or otherwise), the number of shares of Common Stock
deemed to be issued and outstanding pursuant to this subsection (B) (and for
the purposes of subsection (E) of Section 8(a) hereof) shall be reduced by
the number of shares as to which the conversion or exchange rights shall have
expired or terminated unexercised, and such number of shares shall no longer
be deemed to be issued and outstanding, and the Exercise Price then in effect
shall forthwith be readjusted and thereafter be the price that it would have
been had adjustment been made on the basis of the issuance only of the shares
actually issued plus the shares remaining issuable upon conversion or
exchange of those convertible or exchangeable securities as to which the
conversion or exchange rights shall not have expired or terminated
unexercised.
(C) If any change shall occur in the exercise price per
share provided for in any of the options, rights or warrants referred to in
subsection (A) of this section 8(b), or in the price per share or ratio at
which the securities referred to in subsection (3) of this
10
Section 8(b) are convertible or exchangeable, such options, rights or
warrants or conversion or exchange rights, as the case may be, to the extent
not theretofore exercised, shall be deemed to have expired or terminated on
the date when such price change became effective in respect of shares not
theretofore issued pursuant to the exercise or conversion or exchange
thereof, and the Company shall be deemed to have issued upon such date new
options, rights or warrants or convertible or exchangeable securities.
(d) In case of any reclassification or change of outstanding shares
of Common Stock issuable upon exercise of the Warrants (other than a change
in par value, or from par value to no par value, or from no par value to par
value or as a result of subdivision or combination), or in case of any
consolidation or merger of the Company with or into another corporation
(other than a merger with a subsidiary in which merger the Company is the
continuing corporation and which does not result in any reclassification or
change of the then outstanding shares of Common Stock or other capital stock
issuable upon exercise of the Warrants) or in case of any sale or conveyance
to another corporation of the property of the Company as an entirety or
substantially as an entirety, then, as a condition of such reclassification,
change, consolidation, merger, sale or conveyance, the Company, or such
successor or purchasing corporation, as the case may be, shall make lawful
and adequate provision whereby the Registered Holder of each Public Warrant
then outstanding shall have the right thereafter to receive on exercise of
such Public Warrant the kind and amount of securities and property receivable
upon such reclassification, change, consolidation, merger, sale or conveyance
by a holder of the number of securities issuable upon exercise of such
Warrant immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance and shall forthwith file at the Corporate Office
of the Warrant Agent a statement signed by its President or a Vice President
and by its Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary evidencing such provision. Such provisions shall include
provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in Section 8(a) and (b). The
above provisions of this Section 8(c) shall similarly apply to successive
reclassifications and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
(e) Irrespective of any adjustments or changes in the Share
Exercise Price or the number of shares of Common Stock purchasable upon
exercise of the Public Warrants, the Warrant Certificates theretofore and
thereafter issued shall, unless the Company shall exercise its option to
issue new Warrant Certificates pursuant to the terms hereof, continue to
express the Share Exercise Price per share and the number of shares
purchasable thereunder as the Share Exercise Price per share and the number
of shares purchasable thereunder were expressed in the Warrant Certificates
when the same were originally issued.
(f) After each adjustment of the Share Exercise Price pursuant to
this Section 8, the Company will promptly prepare a certificate signed by the
Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (i) the
Exercise Price as so adjusted, (ii) the number of shares of Common Stock
purchasable upon exercise of each Warrant, after such adjustment, and (iii) a
brief statement of the facts accounting for such adjustment. The Company
will promptly file
11
such certificate with the Warrant Agent and cause a brief summary thereof to
be sent by ordinary first class mail to each Registered Holder 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 except as to the holder to whom the Company
failed to mail such notice, or except as to the holder whose notice was
defective. 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, be prima facie evidence of the facts stated
therein.
(g) No adjustment of the Share Exercise Price or the number of
shares issuable shall be made as a result of or in connection with (A) the
issuance or sale of the Underwriter's Warrants or the Securities underlying
the Underwriter's Warrants, (B) the issuance or sale of the securities
pursuant to the Initial Public Offering, including the securities underlying
the Securities, (C) the issuance or sale of shares of Common Stock pursuant
to options, warrants, stock purchase agreements and convertible or
exchangeable securities outstanding or in effect on the date hereof,
including options to be granted under the Company's 1996 Stock Option Plan or
Common Stock issuable on the exercise of such options, or (D) the issuance
or sale of shares of Common Stock if the amount of said adjustment shall be
less than $.02 for one share of Common Stock, provided, however, that in such
case, any adjustment that would otherwise be required then to be made shall
be carried forward and shall be made at the time of and together with the
next subsequent adjustment that shall amount, together with any adjustment so
carried forward, to at least $.02 for one share of Common Stock. In
addition, Registered Holders shall not be entitled to cash dividends paid by
the Company prior to the exercise of any Public Warrant or Public Warrants
held by them.
SECTION 9. Redemption.
(a) Commencing on the Initial Warrant Redemption Date, the Company
may, on 30 days prior written notice redeem all the Redeemable Warrants at
$.25 per Redeemable Warrant, provided, however, that before any such call for
redemption of Warrants can take place, the (i) average closing bid price for
the Common Stock in the over-the-counter market as reported by the NASD
Automated Quotation System or (ii) the average closing sale price on the
primary exchange on which the Common Stock is traded, if the Common Stock is
traded on a national securities exchange, or (iii) average closing sale price
in the over-the-counter market as furnished by The National Quotation Bureau,
Inc., or NASD historical research department, if the Common Stock is not
listed or admitted for trading on any national securities exchange, and is
not reported by NASDAQ, shall have for twenty (20) consecutive trading days
ending not more than 15 days prior to the notice of redemption exceeded 150%
of the Purchase Price (initially $7.50 per share of Common Stock) (subject to
adjustment in the event of any stock splits or other similar events as
provided in Section 8 hereof); provided further, that if such redemption
occurs on or before July 10, 1999, the representative of the Company's
Underwriters has consented in writing to the redemption. All Redeemable
Warrants must be redeemed if any are redeemed.
12
(b) In the event the Company exercises its right to redeem all of the
Redeemable Warrants, it shall give or cause to be given notice to the
Registered Holders of the Redeemable Warrants, by mailing to such Registered
Holders a notice of redemption, first class, postage prepaid, within 15
calendar days of the aforementioned twenty (20) consecutive trading days and
not later than the twenty-fifth (25th) day before the date fixed for
redemption, at their last address as shall appear on the records of the
Warrant Agent. 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. At the time of the mailing to the Registered
Holders of the Warrants of the notice of redemption, the Company shall
deliver or cause to be delivered to May Xxxxx a similar notice telephonically
and confirmed in writing together with a list of the Registered Holders
(including their respective addresses and number of Warrants beneficially
owned) to whom such notice of redemption has been or will be given.
(c) The notice of redemption shall specify (i) the redemption
price, (ii) the date fixed for redemption, (iii) the place where the Warrant
Certificate shall be delivered and the redemption price shall be paid, and
(iv) that the right to exercise the Warrant shall terminate at 5:00 p.m. (New
York 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 the
Secretary or Assistant Secretary of the Company that notice of redemption has
been mailed shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
(d) Any right to exercise a Warrant shall terminate at 5:00 p.m.
(New York time) on the business day immediately preceding the Redemption
Date. The redemption price payable to the Registered Holders shall be mailed
to such persons at their addresses of record.
SECTION 10. Concerning the Warrant Agent.
(a) The Warrant Agent acts hereunder as agent and in a ministerial
capacity for the Company and May Xxxxx, and its duties shall be determined
solely by the provisions hereof. 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 or 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 provided in this Agreement, or to
determine whether any fact exists which may require any such adjustment, 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 fact contained herein or for any
action taken, suffered or omitted
13
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 gross negligence or willful 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.
(d) Any notice, statement, instruction, request, direction, order
or demand of the Company shall be sufficiently evidenced by an instrument
signed by the Chairman of the Board of Directors, Vice-Chairman or Secretary
(unless other evidence in respect thereof is herein specifically prescribed).
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.
(e) The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse it for its
reasonable expenses hereunder; the Company further agrees to indemnify the
Warrant Agent and save it harmless against any and all losses, expenses and
liabilities, including judgments, 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 gross negligence or willful 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 willful misconduct), after
giving 30 days prior written notice to the Company. At least 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 the Company shall appoint in writing a new warrant agent. If the
Company shall fail to make such appointment within a period of 30 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 doing business in New York, New York. 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
14
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, 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 corporate trust business of the
Warrant Agent or any new 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 Holders of each Warrant Certificate.
(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 effect 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.
(i) The Warrant Agent shall retain for a period of two years from
the date of exercise any Warrant Certificate received by it upon such
exercise, marked to indicate its cancellation thereof in accordance with
Section 6(e) hereof.
SECTION 11. Modification of Agreement.
The Warrant Agent and the Company may by supplemental agreement make
any changes or corrections in this Agreement without the approval of any
holders of Warrants (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; (ii) that they may deem necessary or
desirable and which shall not adversely affect the interests of the holders
of Warrant Certificates; or (iii) which may be required by law; 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 representing not less than 50% of the Warrants then outstanding;
provided, further, that no change in the number of the securities purchasable
upon the exercise of any Warrant, or the Purchase Price therefor, shall be
made without the consent in writing of the Registered Holder of the Warrant
Certificate, other than such changes as are specifically permitted or
prescribed by this Agreement as originally executed. In addition, this
Agreement may not be modified, amended or supplemented without the prior
written consent of May Xxxxx, other than (i) to cure any ambiguity or to
correct any provision which is inconsistent or which is a manifest mistake or
error; (ii) to make any such change that is necessary or desirable and which
shall not adversely affect the interests of May Xxxxx; or (iii) except as may
be required by law.
15
SECTION 12. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
five days after mailed first-class postage prepaid, or upon receipt when sent
by facsimile, with confirmation received, if to the Registered Holder of a
Warrant Certificate, at the address of such holder as shown on the registry
books maintained by the Warrant Agent; if to the Company at 0000 Xxxxxxx 00,
Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxx 00000 Attention: Chairman, or at such other
address as may have been furnished to the Warrant Agent in writing by the
Company; and if to the Warrant Agent, at its Corporate Office. Copies of any
notice delivered pursuant to this Agreement shall be delivered to May Xxxxx
at 00 Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President, or at
such other addresses as may have been furnished to the Company and the
Warrant Agent in writing.
SECTION 13. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to conflicts of laws.
SECTION 14. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
Company, the Warrant Agent and their respective successors and assigns and
the holders from time to time of Warrant Certificates or any of them. Except
as hereinafter stated, nothing in this Agreement is intended or shall be
construed to confer upon any other person any right, remedy or claim or to
impose upon any other person any duty, liability or obligation. May Xxxxx
is, and shall at all times irrevocably be deemed to be, a third-party
beneficiary of this Agreement, with full power, authority and standing to
enforce the rights granted to it hereunder. In the event of any conflict
relating to the Underwriter's Warrant between the terms hereof and the terms
of the Underwriter's Warrant Agreement, the terms of the Underwriter's
Warrant Agreement shall prevail.
16
SECTION 15. 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.
[SEAL]
APOLLO INTERNATIONAL OF AMERICAN STOCK TRANSFER & TRUST
DELAWARE, INC. COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------ ------------------------------
Xxxxx X. Xxxxxx, Name: Xxxxxxx X. Xxxxxx
President Title: President
17
Exhibit A
No. W__________ VOID AFTER 5:00 P.M. July 10, 2003
WARRANTS
REDEEMABLE WARRANT CERTIFICATE TO
PURCHASE ONE SHARE OF COMMON STOCK
APOLLO INTERANTIONAL OF DELAWARE, INC.
CUSIP
THIS CERTIFIES THAT, FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of the number of
Redeemable Warrants (the "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 fully paid and non-assessable share of Common
Stock, $.01 par value, of Apollo International of Delaware, Inc., a Delaware
corporation (the "Company"), at any time from July 10, 1999 and prior to the
Expiration Date (as hereinafter defined) upon the presentation and surrender
of this Warrant Certificate 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 $5.50 per share, subject to adjustment (the
"Purchase Price"), in lawful money of the United States of America in cash or
by check made payable to the Warrant Agent for the account 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 July 16, 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 and 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 interests 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 Certificate 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 time) on
July 10, 2003. If each such date shall in the State of New York be a holiday
or a day on which the banks are authorized to close, then the Expiration Date
shall mean 5:00 P.M. (New York time) the next following day which in the
State of New York is not a holiday or a day on which banks are authorized to
close.
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 (the "Act"), with respect to
such securities is effective or an exemption thereunder is available. The
Company has covenanted and agreed that, if required by the Act, and unless
during any period it is not reasonably likely that the Warrants will be
exercised, it will file a registration statement under the Act, use its best
efforts to cause the same to become effective, keep such registration
statement current, if required under the Act, while any of the Warrants are
outstanding, and deliver a prospectus which complies with Section 10(a)(3) of
the Act to the Registered Holder exercising this Warrant. 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 due presentment and payment of
any tax or other charge imposed in connection therewith or incident thereto,
for registration or transfer of this Warrant Certificate at such office, a
new Warrant Certificate or Warrant Certificates 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 shareholder 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.
Subject to the provisions of the Warrant Agreement, this Warrant may
be redeemed at the option of the Company, at a redemption price of $.25 per
Warrant, at any time commencing after July 10, 1998, provided that (i) the
average closing bid price for the Common Stock in the over-the-counter market
as reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), or (ii) the average closing sale price on the
2
primary exchange on which the Common Stock is traded, if the Common Stock is
traded on a national securities exchange, or (iii) the average closing sale
price in the over-the-counter market as furnished by The National Quotation
Bureau, Inc., or NASD historical research department, if the Common Stock is
not listed or admitted for trading on any national securities exchange, and
is not reported by NASDAQ, shall have for twenty (20) consecutive trading
days ending no more than fifteen (15) days prior to the Notice of Redemption,
as defined below, exceeded 150% of the exercise price (initially $7.50 per
share) of the Redeemable Warrants (subject to adjustment in the event of any
stock splits or other similar events); provided further, that if such
redemption occurs on or before July 10, 1999, the representative of the
Company's Underwriters has consented in writing to the redemption. Notice of
redemption (the "Notice of Redemption") shall be given not later than the
thirtieth day before the date fixed for redemption, all as provided in the
Warrant Agreement. On and after the date fixed for redemption, the
Registered Holder shall have no rights with respect to this Warrant except to
receive the $.25 per Warrant upon surrender of this Certificate.
Under certain circumstances, May Xxxxx Group, Inc., its successors
and assigns shall be entitled to receive an aggregate of five percent (5%) of
the Purchase Price of the Warrants represented hereby.
Prior to due presentment for registration or 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, except as provided in
the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
conflicts of laws.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
3
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed as of the date first above, manually or in facsimile by
two of its officers thereunto duly authorized and a facsimile of its
corporate seal to be imprinted hereon.
APOLLO INTERNATIONAL OF
SEAL DELAWARE, INC.
By:----------------------------------
Name: Xxxxx X. Xxxxxx, President
By:-----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Secretary
COUNTERSIGNED:
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Warrant Agent
By:---------------------
Authorized Officer
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrant
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 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.
IMPORTANT: PLEASE COMPLETE THE FOLLOWING:
1. The exercise of this Warrant was solicited by May Xxxxx
Group, Inc. o
2. The exercise of this Warrant was solicited
by __________________________________. o
3. If the exercise of this Warrant was not
solicited, please check the following box. o
Dated:_________________199____ X_____________________________
______________________________
______________________________
Address
______________________________
Social Security or Taxpayer
Identification Number
______________________________
Signature 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:_________________199____ X_____________________________
Signature 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 MEDALLION GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A
MEMBER FIRM OF THE AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC
STOCK EXCHANGE, MIDWEST STOCK EXCHANGE OR BOSTON STOCK EXCHANGE, WHO IS A
MEMBER OF THE MEDALLION PROGRAM.
