THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
Warrant No. _________ Number of Shares: ______
Dated as of:___________
XXXXXXXX.XXX, INC.
Common Stock Purchase Warrant
Xxxxxxxx.xxx, Inc., a Delaware corporation (the "Company"), for value
received, hereby certifies that Xxxx Xxxxx Xxxx Xxxxxx Incorporated, or its
registered assigns (the "Registered Holder"), is entitled, subject to the terms
set forth below, to purchase from the Company, at any time or from time to time
on or after the date of issuance and on or before ____________ __, ____ at not
later than 5:00 p.m. (New York, New York time), __________ shares of Common
Stock, $0.0001 par value per share, of the Company, at a purchase price of
$______ per share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Shares"
and the "Purchase Price," respectively.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in whole or in
part, by surrendering this Warrant, with the purchase form appended hereto as
Exhibit I duly executed by such Registered Holder or by such Registered Holder's
duly authorized attorney, at the principal office of the Company, or at such
other office or agency as the Company may designate, accompanied by payment in
full, in lawful money of the United States, of the Purchase Price payable in
respect of the number of Warrant Shares purchased upon such exercise.
(b) The Registered Holder may, at its option, elect to pay some or all of
the Purchase Price payable on an exercise of this Warrant by surrendering to the
Company Common Stock of the Company with a fair market value equal to the
purchase price paid. The Registered Holder may, at its option, elect to pay some
or all of the Purchase Price payable upon an exercise of this Warrant by
cancelling a portion of this Warrant exercisable for such number of Warrant
Shares as is determined by dividing (i) the total Purchase Price payable in
respect of the number of Warrant Shares being purchased upon such exercise by
(ii) the excess of the Fair Market Value per share of Common Stock as of the
effective date of exercise, as determined pursuant to subsection 1(c) below (the
"Exercise Date"), over the Purchase Price per share. If the Registered Holder
wishes to exercise this Warrant pursuant to this method of payment with respect
to the maximum number of Warrant Shares purchasable pursuant to this method,
then the number of Warrant Shares so purchasable shall be equal to the total
number of Warrant Shares, minus the product obtained by multiplying (x) the
total number of Warrant Shares by (y) a fraction, the
numerator of which shall be the Purchase Price per share and the denominator of
which shall be the Fair Market Value per share of Common Stock as of the
Exercise Date. The Fair Market Value per share of Common Stock shall be
determined as follows:
(i) If the Common Stock is listed on a national securities exchange,
the Nasdaq National Market, the Nasdaq system, or another nationally recognized
exchange or trading system as of the Exercise Date, the Fair Market Value per
share of Common Stock shall be deemed to be the last reported sale price per
share of Common Stock thereon on the Exercise Date; or, if no such price is
reported on such date, such price on the next preceding business day (provided
that if no such price is reported on the next preceding business day, the Fair
Market Value per share of Common Stock shall be determined pursuant to clause
(ii)).
(ii) If the Common Stock is not listed on a national securities
exchange, the Nasdaq National Market, the Nasdaq system, or another nationally
recognized exchange or trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the amount most recently
determined by the Board of Directors to represent the fair market value per
share of the Common Stock (including without limitation a determination for
purposes of granting Common Stock options or issuing Common Stock under an
employee benefit plan of the Company); and, upon request of the Registered
Holder, the Board of Directors (or a representative thereof) shall promptly
notify the Registered Holder of the Fair Market Value per share of Common Stock.
Notwithstanding the foregoing, if the Board of Directors has not made such a
determination within the three-month period prior to the Exercise Date, then (A)
the Fair Market Value per share of Common Stock shall be the amount next
determined by the Board of Directors to represent the fair market value per
share of the Common Stock (including without limitation a determination for
purposes of granting Common Stock options or issuing Common Stock under an
employee benefit plan of the Company), (B) the Board of Directors shall make
such a determination within 10 days of a request by the Registered Holder that
it do so, and (C) the exercise of this Warrant pursuant to this subsection 1(b)
shall be delayed until such determination is made.
(c) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in subsection 1(a) above.
At such time, the person or persons in whose name or names any certificates for
Warrant Shares shall be issuable upon such exercise as provided in subsection
1(d) below shall be deemed to have become the holder or holders of record of the
Warrant Shares represented by such certificates.
(d) As soon as practicable after the exercise of this Warrant in full or in
part, and in any event within 10 days thereafter, the Company, at its expense,
will cause to be issued in the name of, and delivered to, the Registered Holder,
or as such Holder (upon payment by such Holder of any applicable transfer taxes)
may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which such Registered Holder shall be entitled upon such exercise
plus, in lieu of any fractional share to which such Registered Holder would
otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
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(ii) in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate on the face or
faces thereof for the number of Warrant Shares equal (without giving effect to
any adjustment therein) to the number of such shares called for on the face of
this Warrant minus the sum of (a) the number of such shares purchased by the
Registered Holder upon such exercise plus (b) the number of Warrant Shares (if
any) covered by the portion of this Warrant cancelled in payment of the Purchase
Price payable upon such exercise pursuant to subsection 1(b) above.
2. Adjustments.
(a) If outstanding shares of the Company's Common Stock shall be subdivided
into a greater number of shares or a dividend in Common Stock shall be paid in
respect of Common Stock, the Purchase Price in effect immediately prior to such
subdivision or at the record date of such dividend shall simultaneously with the
effectiveness of such subdivision or immediately after the record date of such
dividend be proportionately reduced. If outstanding shares of Common Stock shall
be combined into a smaller number of shares, the Purchase Price in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. When any
adjustment is required to be made in the Purchase Price, the number of Warrant
Shares purchasable upon the exercise of this Warrant shall be changed to the
number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Purchase Price in effect immediately prior to such adjustment,
by (ii) the Purchase Price in effect immediately after such adjustment.
(b) If there shall occur any capital reorganization or reclassification of
the Company's Common Stock (other than a change in par value or a subdivision or
combination as provided for in subsection 2(a) above), or any consolidation or
merger of the Company with or into another corporation, or a transfer of all or
substantially all of the assets of the Company, then, as part of any such
reorganization, reclassification, consolidation, merger or sale, as the case may
be, lawful provision shall be made so that the Registered Holder of this Warrant
shall have the right thereafter to receive upon the exercise hereof the kind and
amount of shares of stock or other securities or property which such Registered
Holder would have been entitled to receive if, immediately prior to any such
reorganization, reclassification, consolidation, merger or sale, as the case may
be, such Registered Holder had held the number of shares of Common Stock which
were then purchasable upon the exercise of this Warrant. In any such case,
appropriate adjustment (as reasonably determined in good faith by the Board of
Directors of the Company) shall be made in the application of the provisions set
forth herein with respect to the rights and interests thereafter of the
Registered Holder of this Warrant, such that the provisions set forth in this
Section 2 (including provisions with respect to adjustment of the Purchase
Price) shall thereafter be applicable, as nearly as is reasonably practicable,
in relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
(c) When any adjustment is required to be made in the Purchase Price, the
Company shall promptly mail to the Registered Holder a certificate setting forth
the Purchase Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Such certificate shall also set forth the
kind and amount of stock or other securities or property into
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which this Warrant shall be exercisable following the occurrence of any of the
events specified in subsection 2(a) or (b) above.
3. Fractional Shares. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall make an adjustment
therefor in cash on the basis of the Fair Market Value per share of Common
Stock, as determined pursuant to subsection 1(b) above.
4. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be sold or transferred
unless either (i) they first shall have been registered under the Securities Act
of 1933, as amended (the "Act"), or (ii) the Company first shall have been
furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act.
(b) Notwithstanding the foregoing, no registration or opinion of counsel
shall be required for (i) a transfer by a Registered Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner, if the transferee agrees in writing to be subject to
the terms of this Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act.
(c) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be offered, sold or otherwise transferred, pledged or hypothecated
unless and until such securities are registered under such Act or an
opinion of counsel satisfactory to the Company is obtained to the
effect that such registration is not required."
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.
(d) This Warrant and the Warrant Shares shall be subject to the provisions
of that certain Xxxxxxx and Restated Stockholders' Agreement dated as of June
30, 1999, by and among the Company and the stockholders signatory thereto, as
amended from time to time (the "Stockholders' Agreement"); and upon any transfer
of the Warrant Shares hereunder, the transferee shall be bound by the terms of
the Stockholder's Agreement and be entitled to the same rights and obligations
thereunder as the original Registered Holder of this Warrant.
5. No Impairment. The Company will not, by amendment of its charter or through
reorganization, consolidation, merger, dissolution, sale of assets 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
reasonably necessary or appropriate in order to protect the rights of the holder
of this Warrant against impairment.
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6. Liquidating Dividends. If the Company pays a dividend or makes a
distribution on the Common Stock payable otherwise than in cash out of earnings
or earned surplus (determined in accordance with generally accepted accounting
principles) except for a stock dividend payable in shares of Common Stock (a
"Liquidating Dividend"), then the Company will pay or distribute to the
Registered Holder of this Warrant, upon the exercise hereof, in addition to the
Warrant Shares purchased upon such exercise, the Liquidating Dividend which
would have been paid to such Registered Holder if he had been the owner of
record of such Warrant Shares immediately prior to the date on which a record is
taken for such Liquidating Dividend or, if no record is taken, the date as of
which the record holders of Common Stock entitled to such dividends or
distribution are to be determined.
7. Notices of Record Date, etc. In case:
(a) the Company shall take a record of the holders of its Common Stock (or
other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right; or
(b) of any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in which
the Company is the surviving entity), or any transfer of all or substantially
all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
(d) then, and in each such case, the Company will mail or cause to be
mailed to the Registered Holder of this Warrant a notice specifying, as the case
may be, (i) the date on which a 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, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten (10) days
prior to the record date or effective date for the event specified in such
notice.
8. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant.
9. Exchange of Warrants. Upon the surrender by the Registered Holder of any
Warrant or Warrants, properly endorsed, to the Company at the principal office
of the Company, the
5
Company will, subject to the provisions of Section 4 hereof, issue and deliver
to or upon the order of such Holder, at the Company's expense, a new Warrant or
Warrants of like tenor, in the name of such Registered Holder or as such
Registered Holder (upon payment by such Registered Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock called for on the face or faces
of the Warrant or Warrants so surrendered.
10. Replacement of Warrants. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
11. Transfers, etc
(a) The Company will maintain a register containing the names and addresses
of the Registered Holders of this Warrant. Any Registered Holder may change its
or his address as shown on the warrant register by written notice to the Company
requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and all
rights hereunder are transferable, in whole or in part, upon surrender of this
Warrant with a properly executed assignment (in the form of Exhibit II hereto)
at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant register, the
Company may treat the Registered Holder of this Warrant as the absolute owner
hereof for all purposes; provided, however, that if and when this Warrant is
properly assigned in blank, the Company may (but shall not be obligated to)
treat the bearer hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
12. Mailing of Notices, etc. All notices and other communications from the
Company to the Registered Holder of this Warrant shall be mailed by first-class
certified or registered mail, postage prepaid, to the address furnished to the
Company in writing by the last Registered Holder of this Warrant who shall have
furnished an address to the Company in writing. All notices and other
communications from the Registered Holder of this Warrant or in connection
herewith to the Company shall be mailed by first-class certified or registered
mail, postage prepaid, to the Company at its principal office set forth below.
If the Company should at any time change the location of its principal office to
a place other than as set forth below, it shall give prompt written notice to
the Registered Holder of this Warrant and thereafter all references in this
Warrant to the location of its principal office at the particular time shall be
as so specified in such notice.
13. Registration Rights.
(a) If the Company at any time or from time to time subsequent to the date
hereof proposes to register any securities under the Act either for its own
account or the account of any selling security holders (other than pursuant to:
(i) a registration statement on Forms S-4 or S-8 or any successor or similar
forms, (ii) a registration relating solely to a Securities Exchange
6
Commission Rule 145 offering, or (iii) a registration on any form that does not
permit secondary sales), the Company shall:
(i) give to each holder of Warrant Shares written notice thereof at
least 20 days in advance of the filing of any registration statement in respect
thereof (which notice will include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable blue
sky or other states securities laws, the proposed offering price, and the plan
of distribution);
(ii) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Warrant Shares specified in a written request or requests, made within
20 days after receipt of such written notice from the Company, by any holder or
holders of Warrant Shares;
(iii) use commercially reasonable efforts to cause the managing
underwriter or underwriters of such proposed underwritten offering to permit the
Warrant Shares requested to be included in the Registration Statement for such
offering to be included on the same terms and conditions as any similar
securities of the Company included therein. Notwithstanding the foregoing, if
the managing underwriter or underwriters of such offering deliver a written
opinion to the holders of such Warrant Shares that marketing considerations
require a limitation on the number of Warrant Shares offered pursuant to any
Registration Statement subject to this Section, then subject to the advice of
said managing underwriter or underwriters as to the size and composition of the
offering, the Company will include Warrant Shares in such registration pursuant
to, and in accordance with the terms of, Section 4(c)(v) of the Registration
Rights Agreement, dated as of June 30, 1999, by and among the Company and the
stockholders signatory thereto, as amended from time to time. The Company will
bear all registration expenses in connection with a registration hereunder.
Notwithstanding the foregoing, if at any time after giving written
notice of its intention to register its equity securities and before the
effectiveness of the Registration Statement filed in connection with such
registration, the Company determines for any reason either not to effect such
registration or to delay such registration, the Company may, at its election, by
delivery of written notice to each holder of Warrant Shares (A) in the case of a
determination not to effect registration, relieve itself of its obligation to
register the Warrant Shares in connection with such registration or (B) in the
case of a determination to delay registration, delay the registration of such
Warrant Shares for the same period as the delay in the registration of such
other equity securities.
Holders of Warrant Shares may exercise registration rights under this
Section 13 at any time or from time to time, so long as such holders continue to
hold Warrant Shares which have not previously been sold pursuant to a valid
registration statement under the Act.
(b) In connection with the Company's registration obligations pursuant to
Section 13(a) hereof, the Company will use commercially reasonable efforts to
effect such registration to permit the sale of such Warrant Shares in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible but in no
7
event later than 30 days after receipt of a request for registration pursuant to
the terms of Section 13(a):
(i) before filing a Registration Statement (as defined below) or
Prospectus (as defined below) or any amendments or supplements thereto, furnish
to the counsel selected by the holders of securities covered by such
Registration Statement and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be made available for prior
review and comment by such counsel;
(ii) prepare and file with the Securities and Exchange Commission (the
"SEC") a Registration Statement and such amendments and post-effective
amendments to any Registration Statement, and such supplements to the
Prospectus, as may be required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the Act or
otherwise necessary to keep such Registration Statement continuously effective;
and comply with the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the one-year period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) notify the selling holders of Warrant Shares and the managing
underwriters, if any, promptly, and (if requested by any such person or entity)
confirm such advice in writing,
a) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective,
b) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information,
c) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceedings for that purpose,
d) if at any time the representations and warranties of the
Company contemplated by paragraph (xiv) below cease to be true and
correct,
e) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Warrant Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, and
f) of the existence of any fact which results in the Registration
Statement, the Prospectus or any document incorporated therein by
reference containing an untrue statement of material fact or omitting
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
8
(iv) use reasonable efforts to prevent the issuance of any stop order
or to obtain the withdrawal of any order suspending the effectiveness of the
Registration Statement as soon as practicable;
(v) if reasonably requested by the managing underwriter or
underwriters or a holder of Warrant Shares being sold in connection with an
underwritten offering, immediately incorporate in a Prospectus supplement or
post-effective amendment such necessary information as the managing underwriters
or the holders of a majority in number of the securities being sold reasonably
request to have included therein relating to the plan of distribution with
respect to such Warrant Shares, including, without limitation, information with
respect to the amount of Warrant Shares being sold to such underwriters, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the underwritten (or best efforts underwritten) offering of the
Warrant Shares to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as notified of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(vi) at the request of any selling holder of Warrant Shares, furnish
to such selling holder of Warrant Shares and each managing underwriter, without
charge, at least one copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
(vii) deliver to each selling holder of Warrant Shares and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such persons or entities may reasonably request; the Company consents to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling holders of Warrant Shares and the underwriters, if any, in connection
with the offering and sale of the Warrant Shares covered by the Prospectus or
any amendment or supplement thereto;
(viii) prior to any public offering of Warrant Shares, use
commercially reasonable efforts to register or qualify or cooperate with the
selling holders of Warrant Shares, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of such
Warrant Shares for offer and sale under the securities or blue sky laws of such
jurisdictions as any seller or underwriter reasonably requests in writing and do
any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Warrant Shares covered by the
Registration Statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or taxation in any such jurisdiction where it is not then so subject;
(ix) cooperate with the selling holders of Warrant Shares and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Warrant Shares to be sold and not bearing any
restrictive legends; and enable such Warrant Shares to be in such denominations
and registered in such names as the managing underwriters may request at least
two business days prior to any sale of Warrant Shares to the underwriters;
9
(x) use commercially reasonable efforts to cause the Warrant Shares
covered by the applicable Registration Statement to be registered with or
approved by such other United States federal or state governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof and the
underwriters, if any, to consummate the disposition of such Warrant Shares;
(xi) if any fact contemplated by paragraph (iii)(f) above shall exist,
prepare a supplement or post-effective amendment to the Registration Statement
or the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Warrant Shares, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(xii) use commercially reasonable efforts to cause all Warrant Shares
covered by the Registration Statement to be listed on each securities exchange
or automated quotation system on which similar securities issued by the Company
are then listed, if requested by the holders of a majority in number of such
Warrant Shares or by the managing underwriters, if any;
(xiii) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Warrant Shares and
provide the applicable trustee(s) or transfer agent(s) with printed certificates
for the Warrant Shares which are in a form eligible for deposit with The
Depositary Trust Company;
(xiv) enter into customary agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
facilitate the disposition of such Warrant Shares and in such connection,
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
a) make such representations and warranties and indemnities to
the holders of such Warrant Shares and the underwriters, if any, in
form, scope and substance as are customarily made by issuers to
underwriters in primary underwritten offerings;
b) obtain opinions of counsel to the Company and updates thereof
addressed to each selling holder of Warrant Shares and the
underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings;
c) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
selling holders of Warrant Shares and the underwriters, if any, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with primary underwritten offerings (provided that the
Warrant Shares constitute at least 10% of the securities covered by
such Registration Statement);
10
d) deliver such documents and certificates as may be reasonably
requested by the holders of a majority of the securities of the
Company being sold and the managing underwriters, if any, to evidence
compliance with paragraph (xi) above and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company.
(xv) subject to the execution of confidentiality agreements in form
and substance satisfactory to the Company, make available to a representative of
the holders of a majority in number of the securities of the Company being
registered pursuant to such Registration Statement, any underwriter
participating in any disposition pursuant to such Registration Statement, and
any attorney or accountant retained by the sellers or underwriter all financial
and other records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with the registration, with respect to each
at such time or times as the Company shall reasonably determine; provided that
any records, information or documents that are designated by the Company in
writing as confidential shall be kept confidential by such individuals or
entities unless disclosure of such records, information or documents (a) is
required by court or administrative order; (b) becomes generally available to
the public other than as a result of a disclosure by such individuals or
entities; (c) was available to such individuals or entities on a
non-confidential basis prior to its disclosure by the Company, as shown by prior
written record, or (d) becomes available to such individuals or entities on a
non-confidential basis from a source other than the Company or its
representatives, provided that such source is not known by such individuals or
entities to be bound by a confidentiality agreement with or other obligation of
secrecy to the Company.
(xvi) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make generally available to its
security holders earnings statements satisfying the provisions of Section 11(a)
of the Act, no later than 45 days after the end of any 12-month period (or 90
days, if such a period is a fiscal year) (1) commencing at the end of any month
in which Warrant Shares are sold to underwriters in an underwritten offering,
or, if not sold to underwriters in such an offering, (2) beginning with the
first month commencing after the effective date of the Registration Statement,
which statements shall cover said 12-month periods;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD); and
(xviii) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) provide copies of such
document for review and comment to counsel to the selling holders of securities
of the Company and to the managing underwriters, if any, and make the Company's
representatives available for discussion of such document.
11
The Company may require each seller of Warrant Shares as to which any
registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Warrant Shares agrees that to avail itself of the
rights afforded hereby, upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (xi) above, such
holder will forthwith discontinue disposition of Warrant Shares registered in a
Registration Statement until such xxxxxx's receipt of the copies of the
supplemented or amended Prospectus contemplated by paragraph (xi) above, or
until it is advised in writing by the Company that the use of the Prospectus may
be resumed, and has received copies of any additional or supplemental filings
which are incorporated by reference in the Prospectus, and, if so directed by
the Company, such holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such holder's possession,
of the Prospectus covering such Warrant Shares current at the time of receipt of
such notice.
Each holder of Warrant Shares agrees that to avail itself of the
rights afforded hereby, such holder shall (i) make such representations and
warranties and indemnities to the Company and the underwriters in form, scope
and substance as are customarily made by selling shareholders in primary
underwritten offerings; (ii) obtain opinions of counsel to such holder and
updates thereof (provided that such opinions shall be at the sole expense of the
Company) and addressed to the Company and the underwriter covering the matters
customarily covered in opinions requested in underwritten offerings; and (iii)
deliver such documents and certificates as may be reasonably requested by the
Company and the managing underwriters to ensure the Company's compliance with
Section 13(b)(xi) above.
In the event the Company shall give any such notice, the time periods
mentioned in Section 13(b)(ii) hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when each seller of Warrant Shares covered by such
Registration Statement either receives the copies of the supplemented or amended
prospectus contemplated by Section 13(b)(xi) hereof or is advised in writing by
the Company that the use of the Prospectus may be resumed.
For the purposes of this Section 13:
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Warrant Shares, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such Registration Statement, and "Prospectus" shall mean the
prospectus included in any Registration Statement, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Warrant Shares covered by the Registration Statement and by all
other amendments and supplements to the prospectus, including post-effective
amendments to the Registration Statement of which such prospectus is a part and
all material incorporated by reference in such prospectus.
12
14. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
15. Change or Waiver. Any term of this Warrant may be changed or waived only by
an instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
16. Headings. The headings in this Warrant are for purposes of reference only
and shall not limit or otherwise affect the meaning of any provision of this
Warrant.
17. Governing Law. This Warrant will be governed by and construed in accordance
with the laws of the State of New York.
XXXXXXXX.XXX, INC.
By: _________________________________
[Corporate Seal] Title: ______________________________
ATTEST:
_________________________ Address of principal office:
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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EXHIBIT I
PURCHASE FORM
To: Xxxxxxxx.xxx, Inc. Dated:______________
The undersigned, pursuant to the provisions set forth in the attached
Warrant hereby irrevocably elects to purchase ________ shares of the Common
Stock covered by such Warrant. The undersigned herewith makes payment of
$____________, representing the full purchase price for such shares at the price
per share provided for in such Warrant. Such payment takes the form of (check
applicable box or boxes):
o $_________ in lawful money of the United States, and/or
o the cancellation of such portion of the attached
Warrant as is exercisable for a total of ______
Warrant Shares (using a Fair Market Value of $_______
per share for purposes of this calculation).
Signature: _____________________________
Address: _______________________________
_______________________________
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to the number of shares of Common Stock covered thereby set
forth below, unto:
Name of Assignee Address No. of Shares
By acceptance of the transfer contemplated hereby and by signing this Assignment
Form, the Assignee hereby agrees to be bound by the terms and provisions of that
certain Amended and Restated Stockholders' Agreement, dated as of ____ __, 199_,
as such agreement shall be amended and in effect from time to time.
Dated: __________________________ Signature: _____________________________
Dated: __________________________ Witness: _______________________________
