EXHIBIT 4.8
AMENDED AND RESTATED WARRANT
WARRANT NO.__________ WARRANTS
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY STATE SECURITIES OR BLUE SKY LAWS AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE
UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES AND (3) IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES AND BLUE SKY LAWS.
GANTOS, INC.
This warrant certificate (the "WARRANT CERTIFICATE") certifies that, for
value received, _______________ or registered assigns under Section 8 hereof
(the "HOLDER") is the owner of __________________________________________
warrants specified above (the "WARRANTS") each of which entitles the Holder
thereof to purchase one (1) fully paid and nonassessable share of common
stock, $.01 par value (the "COMMON STOCK"), of Gantos, Inc., a corporation
organized under the laws of the State of Michigan (the "COMPANY"), or such
other number of shares as may be determined pursuant to an adjustment in
accordance with Section 4 hereof, at the price per share set forth in Section
4 hereof, subject to adjustment from time to time pursuant to Section 4
hereof (the "WARRANT PRICE") and subject to the provisions and upon the terms
and conditions set forth herein. This Warrant amends and restates in its
entirety Warrant No. ______ dated as of July 1, 1998. By its acceptance of
this Warrant Certificate, the Holder acknowledges and agrees that Warrant No.
_____ is null and void.
1. TERM OF WARRANT.
Each Warrant is exercisable in full for a period beginning on the date
hereof and ending on June 30, 2003.
2. METHOD OF EXERCISE AND PAYMENT; ISSUANCE OF NEW WARRANT
CERTIFICATE; CONTINGENT EXERCISE.
(a) In connection with any exercise pursuant to Section 1 hereof,
this Warrant Certificate shall be surrendered (with the notice of exercise
form attached hereto as EXHIBIT 1 (the "NOTICE OF EXERCISE") duly executed)
at the principal office of the Company together with the payment to the
Company of cash or a certified check or a wire transfer in an amount equal to
the then applicable Warrant Price multiplied by the number of shares of
Common Stock then being purchased.
(b) NET ISSUE ELECTION. The holder hereof may elect to receive,
without the payment by such holder of any consideration (other than the
surrender referred to in this Section 2(b)), shares equal to the value of
this Warrant or any portion hereof (as determined below) by the surrender of
this Warrant or such portion to the Company, with the Notice of Exercise duly
executed by such xxxxxx, at the office of any duly appointed transfer agent
for the Common Stock or at the office of the Company. Thereupon, the Company
shall issue to such holder such number of fully paid and nonassessable shares
of Common Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares of Common Stock to be issued to such holder
pursuant to this Section 2(b).
Y = the number of shares of Common Stock covered by this Warrant in
respect of which the net issue election is made pursuant to this Section
2(b).
A = the Fair Market Value (as defined below) of one share of Common
Stock.
B = the Warrant Price then in effect under this Warrant at the time
the net issue election is made pursuant to this Section 2(b).
As used herein, "FAIR MARKET VALUE" per share of Common Stock as of
any date shall mean the numerical average of the fair market value per share
of Common Stock over a period of 21 business days consisting of the business
day on which the Notice of Exercise is received by the Company and the 20
consecutive business days prior to such date. The fair market value per
share of Common Stock for any day shall mean the average of the closing
prices of the Company's Common Stock sold on all securities exchanges on
which the Common Stock may at the time be listed or as quoted on the Nasdaq
National Market, or, if there have been no sales on any such exchange or any
such quotation on any day, the average of the highest bid and lowest asked
prices on all such exchanges or such system at the end of such day, or, if
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any day the Common Stock is not so listed, the average of the representative
bid and asked prices quoted in the Nasdaq system as of 4:00 p.m., Boston
time, or, if on any day that Common Stock is not quoted in the Nasdaq system,
the average of the highest bid and lowest asked price on such day in the
domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization. If at any time
the Common Stock is not listed on any securities exchange or quoted in the
Nasdaq system or the over-the-counter market, the current fair market value
of Common Stock shall be the highest price per share which the Company could
obtain from a willing buyer (not a current employee or director) for shares
of Common Stock sold by the Company, from authorized but unissued shares, as
determined in good faith by the Board of Directors of the Company.
(c) The Company agrees that the shares of Common Stock so
purchased shall be deemed to be issued to the Holder hereof as the record
owner of such shares as of the close of business on the date on which this
Warrant Certificate shall have been surrendered and payment made for such
shares as aforesaid. In the event of any exercise of the rights represented
by this Warrant Certificate, certificates for the shares of Common Stock so
purchased shall be delivered to the Holder hereof within ten (10) days
thereafter and, unless all of the Warrants represented by this Warrant
Certificate have been fully exercised or have expired pursuant to Section 1
hereof, a new Warrant Certificate representing the shares of Common Stock, if
any, with respect to which the Warrants represented by this Warrant
Certificate shall not then have been exercised, shall also be issued to the
Holder hereof within such ten (10) day period.
3. COMMON STOCK FULLY PAID; RESERVATION OF SHARES.
All Common Stock which may be issued upon the exercise of the Warrants
will, upon issuance, be fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issue thereof. During the
period within which the rights represented by this Warrant Certificate may be
exercised, the Company will at all times have authorized, and reserved for
the purpose of the issuance upon exercise of the purchase rights evidenced by
this Warrant Certificate, a sufficient number of shares of its Common Stock
to provide for the exercise of the Warrants.
4. WARRANT PRICE; ADJUSTMENT OF WARRANT PRICE AND NUMBER
OF SHARES.
The Warrant Price shall be $0.75 per share of Common Stock, and the
Warrant Price and the number of shares of Common Stock purchasable upon
exercise of the Warrants shall be subject to adjustment from time to time, as
follows:
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(a) RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of any
reclassification or change of outstanding securities of the class issuable
upon exercise of the Warrants, or in case of any consolidation or merger of
the Company with or into another corporation or entity, other than a
consolidation or merger with another corporation or entity in which the
Company is the continuing corporation and which does not result in any
reclassification, conversion or change of outstanding securities issuable
upon exercise of the Warrants, the Company, or such successor corporation, as
the case may be, shall execute a new warrant certificate (the "NEW WARRANT
CERTIFICATE"), providing that the Holder of this Warrant Certificate shall
have the right to exercise such new warrants and procure upon such exercise,
in lieu of each share of Common Stock theretofore issuable upon exercise of
the Warrants, the kind and amount of shares of stock, other securities, money
and property receivable upon such reclassification, conversion, change,
consolidation, or merger by a holder of one share of Common Stock. Such New
Warrant Certificate shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 4. The provisions of this Section 4(a) shall similarly apply to
successive reclassifications, changes, consolidations, mergers and transfers.
(b) SUBDIVISIONS, COMBINATIONS AND STOCK DIVIDENDS. If the
Company shall subdivide or combine its Common Stock, or shall pay a dividend
with respect to Common Stock payable in, or make any other distribution with
respect to its Common Stock consisting of, shares of Common Stock, then the
Warrant Price shall be adjusted, from and after the date of determination of
shareholders entitled to receive such dividend or distribution, to that price
(rounded to the nearest $.01) determined by multiplying the Warrant Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution. Such adjustment
shall be made successively whenever such a dividend or distribution occurs.
Upon each adjustment in the Warrant Price pursuant to this Section 4(b)
hereof, the number of shares of Common Stock purchasable hereunder shall be
adjusted to the product obtained by multiplying the number of shares
purchasable immediately prior to such adjustment in the Warrant Price by a
fraction (i) the numerator of which shall be the Warrant Price immediately
prior to such adjustment and (ii) the denominator of which shall be the
Warrant Price immediately thereafter.
(c) MINIMUM ADJUSTMENT. No adjustment of the Warrant Price or the
number of shares of Common Stock purchasable hereunder shall be made if the
amount of any such Warrant Price adjustment would be an amount less than
$.01, but any such amount shall be carried forward and an adjustment in
respect thereof shall be made at the time of, and together with any
subsequent adjustment which, together with such amount and any other amount
or amounts so carried forward, shall aggregate an increase or decrease of
$.01 or more.
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5. NOTICE OF ADJUSTMENTS.
Whenever any adjustment shall be made pursuant to Section 4 hereof, the
Company shall prepare a certificate signed by its chief financial officer
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was calculated,
the Warrant Price after giving effect to such adjustment and the number of
shares of Common Stock then purchasable upon exercise of the Warrants, and
shall cause copies of such certificate to be mailed to the Holder hereof at
the address specified in Section 9(d) hereof, or at such other address as may
be provided to the Company in writing by the Holder hereof.
6. COMPLIANCE WITH SECURITIES ACT.
The Holder of this Warrant Certificate, by acceptance hereof, agrees
that the Warrants and the shares of Common Stock to be issued upon exercise
thereof are being acquired for investment and that it will not offer, sell or
otherwise dispose of the Warrants or any shares of Common Stock to be issued
upon exercise thereof except under circumstances which will not result in a
violation of the Act or applicable state securities or blue sky laws. Upon
exercise of the Warrants, the Holder hereof shall, if requested by the
Company, confirm in writing that the shares of Common Stock so purchased are
being acquired for investment and not with a view toward distribution or
resale. This Warrant Certificate and all shares of Common Stock issued upon
exercise of the Warrants (unless registered under the Act) shall be stamped
or imprinted with a legend substantially in the following form:
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY STATE SECURITIES OR BLUE SKY LAWS AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE
UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES AND (3) IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES AND BLUE SKY LAWS.
7. TRANSFER.
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Subject to compliance with the terms of Section 6 above, the Warrants
and all rights under this Warrant Certificate are transferable, in whole or
in part, at the principal office of the Company by the Holder hereof, in
person or by its duly authorized attorney, upon surrender of this Warrant
Certificate properly endorsed (with the instrument of transfer form attached
hereto as EXHIBIT 2 duly executed), together with payment of all transfer
taxes, if any, payable in connection herewith. Each Holder of this Warrant
Certificate, by taking or holding the same, consents and agrees that this
Warrant Certificate, when endorsed in blank, shall be deemed negotiable;
provided, however, that the last Holder of this Warrant Certificate as
registered on the books of the Company may be treated by the Company and all
other persons dealing with this Warrant Certificate as the absolute owner of
the Warrants for any purposes and as the person entitled to exercise the
rights represented by this Warrant Certificate or to transfer the Warrants on
the books of the Company, any notice to the contrary notwithstanding, unless
and until such Holder seeks to transfer registered ownership of the Warrants
on the books of the Company and such transfer is effected.
8. MISCELLANEOUS.
(a) REPLACEMENT. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
Certificate and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement or bond reasonably satisfactory in form and amount to the
Company or, in the case of mutilation, on surrender and cancellation of this
Warrant Certificate, the Company, at its expense, will execute and deliver,
in lieu of this Warrant Certificate, a new warrant certificate of like tenor.
(b) NOTICE OF CAPITAL CHANGES. In case:
(i) the Company shall declare any dividend or distribution
payable to the holders of shares of Common Stock;
(ii) there shall be any capital reorganization or
reclassification of the capital of the Company, or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another corporation or business organization; or
(iii) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company.
then, in any one or more of said cases, the Company shall give the Holder
hereof prior written notice of such event, in the manner set forth in Section
8(c) below, at least 30 days prior to the date on which a record shall be
taken for such dividend or distribution or for determining shareholders
entitled to vote upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, winding up or the date when any such
transaction shall take place, as the case may be.
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(c) NOTICE. Any notice to be given to either party under this
Warrant Certificate shall be in writing and shall be deemed to have been
given to the Company or the Holder hereof, as the case may be, when delivered
in hand or when sent by first class mail, postage prepaid, addressed, if to
the Company, at its principal office and, if to the Holder hereof, at its
address as set forth in the Company's books and records or at such other
address as the Holder hereof may have provided to the Company in writing.
(d) NO IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation, Bylaws 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 to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of
all the provisions of this Warrant Certificate.
(e) WARRANT HOLDER NOT STOCKHOLDER. This Warrant Certificate
shall not confer upon the Holder hereof any right to vote or to consent to or
receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, or any other rights as a stockholder, prior to the
exercise hereof.
(f) GOVERNING LAW; JURISDICTION. This Warrant Certificate shall
be deemed to be a contract made under, and shall be construed in accordance
with, the laws of the State of Delaware without giving effect to conflict of
laws principles except to the extent that the corporate laws of the State of
Michigan are mandatorily applicable thereof. The Company and the Holder of
the Warrant Certificate by acceptance hereof, each hereby agrees that the
state and federal court of New York shall have jurisdiction to hear and
determine any claims or disputes between the Holder and the Company
pertaining directly or indirectly to this Warrant Certificate and all
documents, instruments and agreements executed pursuant hereto, or to any
matter arising therefrom (unless otherwise expressly provided for therein).
To the extent permitted by law, the Company and the Holder of the Warrant
Certificate by acceptance hereof, each hereby expressly submits and consents
in advance to such jurisdiction in any action or proceeding commenced by the
Company or any Holder in any of such courts, and agrees that service of such
summons and complaint or other process or papers may be made by registered or
certified mail addressed to such party at the address to which notices are to
be sent to such party pursuant to this Agreement. To the extent permitted by
law, should the Company or the Holder of this Warrant Certificate, as the
case may be, after being so served, fail to appear or answer to any summons,
complaint, or process or papers so served within 30 days after the mailing
thereof, such party shall be deemed in default and an order and/or judgment
may be entered against such party as demanded or prayed for in such summons,
complaint, process or papers. The exclusive choice of forum set forth in
this Section 8(f) shall not be deemed to preclude the enforcement of any
judgment obtained in such forum or the taking of any action to enforce the
same in any other appropriate jurisdiction.
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The Company has caused this Warrant Certificate to be executed as of
this _____ day of November, 1998.
GANTOS, INC.
By:
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Xxxxxx X. Xxxxx
President and Chief Executive Officer
Attest:
By:
-------------------------
M.A. Xxxxx
Secretary
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EXHIBIT 1
NOTICE OF EXERCISE
TO: GANTOS, INC.
1. The undersigned hereby irrevocably elects to purchase
____________________ (_________) shares of the Common Stock, $.01 par value
per share, of Gantos, Inc. covered by Warrant No.___ according to the terms
thereof and herewith makes payment of the Warrant Price of such shares in
full.
2. Specify method of exercise by check mark:
__ a. Such payment is hereby made in the amount of $_______ by
(i) cash, (ii) wire transfer or (iii) certified or bank check payable
to Gantos, Inc.
__ b. The holder elects to receive the number of shares of Common
Stock for the value (as determined pursuant to Section 2(b) of the
Warrant Certificate) of the Warrant or the portion thereof specified
in 1. above.
3. Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
----------------------------
(Name)
----------------------------
(Address)
--------------------------------
Signature
Dated:
---------------
EXHIBIT 2
FORM OF ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers
unto ____________ the rights represented by the within Warrant Certificate to
purchase [___________] shares of Common Stock of Gantos, Inc. to which the
within Warrant Certificate relates and appoints _______________________ to
transfer such rights on the books of Gantos, Inc. with full power of
substitution in the premises.
Dated:
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Signature
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