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Exhibit 4.5
Right to purchase 32,195* Shares
of Convertible Non-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 HOLD 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 the 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, 32,195* fully paid and non-assessable
shares of Convertible Non-Voting Common Stock (as defined in Section 12 hereof),
at an initial purchase price per share of $4.84951 * (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.
________________
* As adjusted to reflect the reverse stock split of the Company's Common
Stock effective August 13, 1992 and 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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This Warrant supersedes and replaces a Warrant dated April 27, 1992 and
is issued pursuant to that certain letter agreement dated August 12, 1992,
between the Company and CIT, amending certain agreements including 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 & 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 to all of the benefits and shall be subject to all of the obligations
of the Agreement relating to the CHI Warrant (as such term is defined in the
Agreement) as provided therein as amended to date, as if this Warrant were
substituted therefor.
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
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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 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 this 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. PUT OPTION; REGISTRATION RIGHTS.
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The holder of this Warrant has the option to require the Company to
purchase this Warrant and/or shares of Warrant Stock at the times and in the
manner specified in the Agreement, except that this option shall not apply with
respect to Section 16.1(a) (including with reference to Sections 15.2(b) and
(c) and 16.5) of the Agreement and Section 11.6 of the Warrant Agreement dated
as of August 30, 1991, as amended, among the Company (as the surviving
corporation in the merger of Cryenco Holdings, Inc. with and into Gulf &
Mississippi Corporation), Cryenco, Inc. (as the surviving corporation in the
merger of Cryenco Energy Company with and into CEC Acquisition Corp.) and
Chemical Bank; provided, however, that the automatic exercise of such put
rights as provided in Section 15.2(b) or (c) of the Agreement shall continue to
apply to the extent such rights occur as a result of a default under Section
15.1(k)(i), (ii) or (iv) of the Agreement (except that with respect to Section
15.1(k)(iv), the words "or insolvent" in subparagraph (x) of such section
shall be deemed to be deleted for purposes of this provision only). 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.
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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, and in any event within twenty (20) days thereafter, the Company at its
expense (including the payment by it 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 such exercise.
5. ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS 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 securities or property (other than
cash) by way of dividend; or
(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 (adjustments 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
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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 Sections 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.
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 shares issuable hereunder after such Stock Event to
the total 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.
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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 (as defined below) 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 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 or 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.
--------------------------
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,
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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.
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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 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 hereof) 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.
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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
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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 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
Convertible Non-Voting Common Stock equal to the total number of shares of
Convertible Non-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.
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As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
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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,
$.01 par value (the "Voting Common Stock"), (ii) the Company's Convertible
Non-Voting Common Stock, $.01 par value (the "Convertible Non-Voting Common
Stock"), (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.
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.: (000) 000-0000), 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
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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 - 28th Floor, New
York, New York 10022, 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 mail 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 QUALIFICATION; 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, 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 of 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
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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.
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 April 27, 1992 CRYENCO SCIENCES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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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 Convertible Non-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 Convertible Non-Voting Common Stock and to deliver the net number of shares,
being ____ shares of Convertible Non-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
Convertible Non-Voting 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 of Assignor]
Signed in the presence of:
___________________
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