Exhibit 4.4
OHS DRAFT
5/20/97
[FORM OF REPRESENTATIVE'S WARRANT AGREEMENT]
[SUBJECT TO ADDITIONAL REVIEW]
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QUIETPOWER SYSTEMS, INC.
AND
NATIONAL SECURITIES CORPORATION
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REPRESENTATIVE'S
WARRANT AGREEMENT
Dated as of ________, 1997
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REPRESENTATIVE'S WARRANT AGREEMENT dated as of _______, 1997 between
QUIETPOWER SYSTEMS, INC., a Delaware corporation (the "Company"), and NATIONAL
SECURITIES CORPORATION (hereinafter referred to variously as the "Holder" or the
"Representative").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to the Representative warrants
("Warrants") to purchase up to an aggregate of 200,000 shares of Common Stock,
$.01 par value, of the Company and/or 200,000 redeemable common stock purchase
warrants of the Company ("Redeemable Warrants"), each Redeemable Warrant to
purchase one additional share of Common Stock; and
WHEREAS, the Representative has agreed pursuant to the underwriting
agreement (the "Underwriting Agreement") dated as of the date hereof between the
Company and the several Underwriters listed therein to act as the Representative
in connection with the Company's proposed public offering of up to 2,000,000
shares of Common Stock and 2,000,000 Redeemable Warrants (the "Public Warrants")
at an initial public offering price of $____ per share of Common Stock and $____
per Public Warrant; and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued on the Closing Date (as such term is defined in the Underwriting
Agreement) by the Company to the Representative in consideration for, and as
part of the Representative's compensation in connection with, the Representative
acting as the Representative pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the
Representative to the Company of an aggregate twenty dollars ($20.00), the
agreements herein set forth and other good and valuable consideration, hereby
acknowledged, the parties hereto agree as follows:
1. Grant. The Representative (and/or its designees) is hereby granted the
right to purchase, at any time from _______, 1998 [one year from the effective
date of the Registration Statement], until 5:30 P.M., New York time, on _______,
2002 [five years from the effective date of the Registration Statement], up to
an aggregate of 200,000 shares of Common Stock and/or 200,000 Redeemable
Warrants at an initial exercise price (subject to adjustment as provided in
Section 8 hereof) of $____ per share of Common Stock [120% of the initial public
offering price per share] and $____ per Redeemable Warrant [120% of the initial
public offering price per Redeemable Warrant], subject to the terms and
conditions of this Agreement. One Redeemable Warrant is exercisable to purchase
one additional share of Common Stock at an initial exercise price of $_____
[150% of the initial public offering price per share] from ______, 1998 (one
year from the effective date of the Registration Statement) until 5:30 p.m. New
York time on _____, 2002 [five years from the effective date of the Registration
Statement], at which time the Redeemable Warrants shall expire. Except as set
forth herein, the shares of Common Stock and the Redeemable Warrants issuable
upon exercise of the Warrants are in all respects identical to the shares of
Common Stock and the Public Warrants being purchased by the Underwriters for
resale to the public pursuant to the terms and provisions of the Underwriting
Agreement. The shares of Common Stock and the Redeemable Warrants issuable upon
exercise of the Warrants are sometimes hereinafter referred to collectively as
the "Securities."
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2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant.
ss.3.1 Method of Exercise. The Warrants initially are exercisable at an
aggregate initial exercise price (subject to adjustment as provided in Section 8
hereof) per share of Common Stock and Redeemable Warrant set forth in Section 6
hereof payable by certified or official bank check in New York Clearing House
funds, subject to adjustment as provided in Section 8 hereof. Upon surrender of
a Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter defined)
for the shares of Common Stock and/or Redeemable Warrants purchased at the
Company's principal executive offices in New York, New York (presently located
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 10001) the registered holder of a Warrant
Certificate ("Holder" or "Holders") shall be entitled to receive a certificate
or certificates for the shares of Common Stock so purchased and a certificate or
certificates for the Redeemable Warrants so purchased. The purchase rights
represented by each Warrant Certificate are exercisable at the option of the
Holder thereof, in whole or in part (but not as to fractional shares of the
Common Stock and Redeemable Warrants underlying the Warrants). In the event the
Company redeems all of the Public Warrants (other than the Redeemable Warrants
underlying the Warrants), then the Warrants may only be exercised if such
exercise is accompanied by the simultaneous exercise of the Redeemable
Warrant(s) underlying the Warrants being so exercised. Warrants may be exercised
to purchase all or part of the shares of Common Stock together with an equal or
unequal number of the Redeemable Warrants represented thereby. In the case of
the purchase
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of less than all the shares of Common Stock and/or Redeemable Warrants
purchasable under any Warrant Certificate, the Company shall cancel said Warrant
Certificate upon the surrender thereof and shall execute and deliver a new
Warrant Certificate of like tenor for the balance of the shares of Common Stock
and/or Redeemable Warrants purchasable thereunder.
ss.3.2 Exercise by Surrender of Warrant. In addition to the method of
payment set forth in Section 3.1 and in lieu of any cash payment required
thereunder, the Holder(s) of the Warrants shall have the right at any time and
from time to time to exercise the Warrants in full or in part by surrendering
the Warrant Certificate in the manner specified in Section 3.1 in exchange for
the number of shares of Common Stock equal to the quotient derived from dividing
the numerator (x) an amount equal to the difference between (A) the sum of (1)
the number of shares of Common Stock as to which the Warrants are being
exercised multiplied by the per share Market Price, and (2) the number of
Redeemable Warrants as to which the Warrants are being exercised multiplied by
the per Redeemable Warrant Market Price, and (3) the number of shares of Common
Stock issuable upon exercise of the Redeemable Warrants underlying the Warrants
being exercised multiplied by the per share Market Price, and (B) the sum of (1)
the number of Warrants which are being exercised multiplied by the Exercise
Price and (2) the number of Redeemable Warrants included in the Warrants which
are being exercised multiplied by the exercise price per Redeemable Warrant (as
calculated pursuant to the Redeemable Warrant Agreement (hereinafter defined))
as then in effect, by the denominator (y) the per share Market Price of the
Common Stock. Solely for the purposes of this paragraph, Market Price shall be
calculated either (i) on the date on which the form of election attached hereto
is deemed to have been sent to the Company pursuant to Section 14 hereof
("Notice
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Date") or (ii) as the average of the Market Prices for each of the five trading
days preceding the Notice Date, whichever of (i) or (ii) is greater.
ss.3.3 Definition of Market Price. As used herein, the phrase "Market
Price" at any date shall be deemed to be (i) when referring to the Common Stock,
the last reported sale price, or, in case no such reported sale takes place on
such day, the average of the last reported sale prices for the last three (3)
trading days, in either case as officially reported by the American Stock
Exchange ("AMEX") or the principal securities exchange on which the Common Stock
is listed or admitted to trading, or, if the Common Stock is not listed or
admitted to trading on AMEX or any national securities exchange or q
