F&J DRAFT: 9/30/96
VOTAN CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. 1 ______________ Shares
FOR VALUE RECEIVED, Votan Corporation, a Delaware corporation
(the "COMPANY"), hereby certifies that ____________________ or its permitted
assigns, is entitled to purchase from the Company, at any time or from time to
time commencing on October __, 1997 and prior to 5:00 P.M., New York City time,
on October __, 2001, ___________________________ Thousand (________) fully paid
and non-assessable shares of the common stock, $.01 par value per share, of the
Company for an aggregate purchase price of $__________ (computed on the basis
of $______1 per share). (Hereinafter, (i) said common stock, together with any
other equity securities which may be issued by the Company with respect thereto
or in substitution therefor, is referred to as the "COMMON STOCK," (ii) the
shares of the Common Stock purchasable hereunder or under any other Warrants
(as hereinafter defined) are referred to individually as a "WARRANT SHARE" and
collectively as the "WARRANT SHARES," (iii) the aggregate purchase price
payable for the Warrant Shares hereunder is referred to as the "AGGREGATE
WARRANT PRICE," (iv) the price payable for each of the Warrant Shares hereunder
is referred to as the "PER SHARE WARRANT PRICE," (v) this Warrant, all similar
Warrants issued on the date hereof and all Warrants hereafter issued in
exchange or substitution for this Warrant or such similar Warrants are referred
to as the "WARRANTS" and (vi) the holder of this Warrant is referred to as the
"HOLDER" and the holder of this Warrant and all other Warrants or Warrant
Shares issued upon the exercise of any Warrant are referred to as the
"HOLDERS.") The Aggregate Warrant Price is not subject to adjustment. The Per
Share Warrant Price is subject to adjustment as hereinafter provided; in the
event of any such adjustment, the number of Warrant Shares shall be adjusted by
dividing the Aggregate Warrant Price by the Per Share Warrant Price in effect
immediately after such adjustment.
1. EXERCISE OF WARRANT. (a) The Holder may exercise this Warrant, in
whole or in part, as follows:
(i) By presentation and surrender of this Warrant to
the Company at the address set forth in Subsection 9(a) hereof, with
the Subscription Form annexed hereto (or a
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1 The greater of $10 or 125% of public offering price.
reasonable facsimile thereof) duly executed and accompanied by payment
of the Per Share Warrant Price for each Warrant Share to be purchased.
Payment for Warrant Shares shall be made by certified or official bank
check payable to the order of the Company; or
(ii) By presentation and surrender of this Warrant
to the Company at the address set forth in Subsection 9(a) hereof,
with a Cashless Exercise Form annexed hereto (or a reasonable
facsimile thereof) duly executed (a "CASHLESS EXERCISE"). Such
presentation and surrender shall be deemed a waiver of the Holder's
obligation to pay all or any portion of the Aggregate Warrant Price.
In the event of a Cashless Exercise, the Holder shall exchange its
Warrant for that number of shares of Common Stock determined by
multiplying the number of Warrant Shares being exercised by a
fraction, the numerator of which shall be the difference between the
then current market price per share of the Common Stock and the Per
Share Warrant Price, and the denominator of which shall be the then
current market price per share of Common Stock. For purposes of any
computation under this Section 1(a)(ii), the then current market price
per share of Common Stock at any date shall be deemed to be the
average for the thirty consecutive business days immediately prior to
the Cashless Exercise of the daily closing prices of the Common Stock
on the principal national securities exchange on which the Common
Stock is admitted to trading or listed, or if not listed or admitted
to trading on any such exchange, the closing prices as reported by the
Nasdaq National Market, or if not then listed on the Nasdaq National
Market, the average of the highest reported bid and lowest reported
asked prices as reported by the National Association of Securities
Dealers, Inc. electronic inter-dealer quotation system ("NASDAQ") or
if not then publicly traded, the fair market price of the Common Stock
as reasonably determined by the Board of Directors.
(b) If this Warrant is exercised in part, this Warrant must
be exercised for a number of whole shares of the Common Stock, and the Holder
is entitled to receive a new Warrant covering the Warrant Shares which have not
been exercised and setting forth the proportionate part of the Aggregate
Warrant Price applicable to such Warrant Shares. Upon such surrender of this
Warrant, the Company will (i) issue a certificate or certificates, in such
denominations as are requested for delivery by the Holder, in the name of the
Holder for the largest number of whole shares of the Common Stock to which the
Holder shall be entitled and, if this Warrant is exercised in whole, in lieu of
any fractional share of the Common Stock to which the Holder shall be entitled,
pay to the Holder cash in an amount equal to the fair value of such fractional
share (determined in such reasonable manner as the Board of Directors of the
Company shall determine), and (ii) deliver the
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other securities and properties receivable upon the exercise of this Warrant,
or the proportionate part thereof if this Warrant is exercisable in part,
pursuant to the provisions of this Warrant. The Holder shall be deemed to be
the holder of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder.
2. RESERVATION OF WARRANT SHARES; LISTING. The Company agrees that,
prior to the expiration of this Warrant, the Company will at all times (a) have
authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant, the shares of the Common Stock and
other securities and properties as from time to time shall be receivable upon
the exercise of this Warrant, free and clear of all restrictions on sale or
transfer and free and clear of all preemptive rights and rights of first
refusal and (b) if the Company hereafter lists its Common Stock on any national
securities exchange, keep the shares of the Common Stock receivable upon the
exercise of this Warrant authorized for listing on such exchange upon notice of
issuance.
3. PROTECTION AGAINST DILUTION. (a) In case the Company shall
hereafter (i) pay a dividend or make a distribution on its capital stock in
shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares or (iv) issue by reclassification of its
Common Stock any shares of capital stock of the Company, the Per Share Warrant
Price shall be adjusted so that the Holder upon the exercise hereof shall be
entitled to receive the number of shares of Common Stock or other capital stock
of the Company which he would have owned immediately following such action had
such Warrant been exercised immediately prior thereto. An adjustment made
pursuant to this Subsection 3(a) shall become effective immediately after the
record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification.
(b) If, at any time or from time to time after the date of
this Warrant, the Company shall issue or distribute to the holders of shares of
Common Stock evidences of its indebtedness, any other securities of the Company
or any cash, property or other assets (excluding a subdivision, combination or
reclassification, or dividend or distribution payable in shares of Common
Stock, referred to in Subsection 3(a), and also excluding cash dividends or
cash distributions paid out of net profits legally available therefor if the
full amount thereof, together with the value of other dividends and
distributions made substantially concurrently therewith or pursuant to a plan
which includes payment thereof, is equivalent to not more than 5% of the
Company's net worth) (any
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such nonexcluded event being herein called a "SPECIAL DIVIDEND"), the
Per Share Warrant Price shall be adjusted by multiplying the Per Share Warrant
Price then in effect by a fraction, the numerator of which shall be the then
current market price of the Common Stock (defined as the average for the thirty
consecutive business days immediately prior to the record date of the daily
closing price of the Common Stock as reported by the national securities
exchange upon which the Common Stock is then listed or if not listed on any
such exchange, the average of the closing prices as reported by Nasdaq National
Market, or if not then listed on the Nasdaq National Market, the average of the
highest reported bid and lowest reported asked prices as reported by NASDAQ, or
if not then publicly traded, the fair market price as reasonably determined by
the Company's Board of Directors) less the fair market value (as reasonably
determined by the Company's Board of Directors) of the evidences of
indebtedness, cash, securities or property, or other assets issued or
distributed in such Special Dividend applicable to one share of Common Stock
and the denominator of which shall be such then current market price per share
of Common Stock. An adjustment made pursuant to this Subsection 3(b) shall
become effective immediately after the record date of any such Special
Dividend.
(c) In case of any capital reorganization or
reclassification, or any consolidation or merger to which the Company is a
party other than a merger or consolidation in which the Company is the
continuing corporation, or in case of any sale or conveyance to another entity
of the property of the Company as an entirety or substantially as an entirety,
or in the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Company), the Holder of this Warrant shall have the right
thereafter to receive on the exercise of this Warrant the kind and amount of
securities, cash or other property which the Holder would have owned or have
been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and in any such case, if necessary, appropriate adjustment
shall be made in the application of the provisions set forth in this Section 3
with respect to the rights and interests thereafter of the Holder of this
Warrant to the end that the provisions set forth in this Section 3 shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the exercise of this Warrant. The above provisions of this
Subsection 3(c) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, statutory exchanges, sales or
conveyances. The issuer of any shares of stock or other securities or property
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thereafter deliverable on the exercise of this Warrant shall be responsible for
all of the agreements and obligations of the Company hereunder. Notice of any
such reorganization, reclassification, consolidation, merger, statutory
exchange, sale or conveyance and of said provisions so proposed to be made,
shall be mailed to the Holders of the Warrants not less than thirty days prior
to such event. A sale of all or substantially all of the assets of the Company
for a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
(d) In case any event shall occur as to which the other
provisions of this Section 3 are not strictly applicable but as to which the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles hereof then, in each such case, the Holders of Warrants representing
the right to purchase a majority of the Warrant Shares subject to all
outstanding Warrants may appoint a firm of independent public accountants of
recognized national standing reasonably acceptable to the Company, which shall
give their opinion as to the adjustment, if any, on a basis consistent with the
essential intent and principles established herein, necessary to preserve the
purchase rights represented by the Warrants. Upon receipt of such opinion, the
Company will promptly mail a copy thereof to the Holder of this Warrant and
shall make the adjustments described therein. The fees and expenses of such
independent public accountants shall be borne by the Company.
(e) No adjustment in the Per Share Warrant Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; provided, however, that any adjustments
which by reason of this Subsection 3(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment; provided
further, however, that adjustments shall be required and made in accordance
with the provisions of this Section 3 (other than this Subsection 3(e)) not
later than such time as may be required in order to preserve the tax-free
nature of a distribution to the Holder of this Warrant or Common Stock issuable
upon exercise hereof. All calculations under this Section 3 shall be made to
the nearest cent or to the nearest 1/100th of a share, as the case may be.
Anything in this Section 3 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the Per Share Warrant Price, in addition
to those required by this Section 3, as it in its discretion shall deem to be
advisable in order that any stock dividend, subdivision of shares or
distribution of rights to purchase stock or securities convertible or
exchangeable for stock hereafter made by the Company to its stockholders shall
not be taxable.
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(f) Whenever the Per Share Warrant Price is adjusted as
provided in this Section 3 and upon any modification of the rights of a Holder
of Warrants in accordance with this Section 3, the Company shall cause the
Chief Financial Officer of the Company to prepare a certificate setting forth
the Per Share Warrant Price and the number of Warrant Shares after such
adjustment or the effect of such modification, a brief statement of the facts
requiring such adjustment or modification and the manner of computing the same
and cause copies of such certificate to be mailed to the Holders of the
Warrants. At Holder's option, Xxxxxx may request that the certificate prepared
by the Chief Financial Officer be confirmed and verified, in writing, by
independent public accountants of recognized standing selected by the Board of
Directors (who may be the regular auditors of the Company). The cost of such
review shall be paid by Xxxxxx unless, as a result of the review, adjustments
are made in favor of Xxxxxx, in which case, the cost of the review shall be
paid by the Company.
(g) If the Board of Directors of the Company shall (i)
declare any dividend or other distribution with respect to the Common Stock,
other than a cash dividend subject to the first parenthetical in Subsection
3(b), (ii) offer to the holders of shares of Common Stock any additional shares
of Common Stock, any securities convertible into or exercisable for shares of
Common Stock or any rights to subscribe thereto, or (iii) propose a
dissolution, liquidation or winding up of the Company, the Company shall mail
notice thereof to the Holders of the Warrants not less than 15 days prior to
the record date fixed for determining stockholders entitled to participate in
such dividend, distribution, offer or subscription right or to vote on such
dissolution, liquidation or winding up.
(h) If, as a result of an adjustment made pursuant to this
Section 3, the Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of Common Stock and other capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
written notice to the Holder of any Warrant promptly after such adjustment)
shall determine the allocation of the adjusted Per Share Warrant Price between
or among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
4. FULLY PAID STOCK; TAXES. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and nonassessable, and not
subject to preemptive rights or rights of first refusal, and the Company will
take all such actions as may be necessary to assure that the par value or
stated value, if any, per share of the Common Stock is at
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all times equal to or less than the then Per Share Warrant Price. The Company
further covenants and agrees that it will pay, when due and payable, any and
all Federal and state stamp, original issue or similar taxes which may be
payable in respect of the issue of any Warrant Share or certificate therefor.
5. REGISTRATION UNDER SECURITIES ACT OF 1933.
(a) The Company agrees that if, at any time during the period
commencing on October __, 1997, and ending on October __, 2001, the Holder
and/or the Holders of any other Warrants and/or Warrant Shares who or which
shall hold, as amended, not less than 50% of the Warrants and/or Warrant Shares
outstanding at such time and not previously sold pursuant to this Section 5
shall request that the Company file, under the Securities Act of 1933 (the
"ACT"), a registration statement under the Act covering not less than 50% of
the Warrant Shares issued or issuable upon the exercise of the Warrants and not
so previously sold, the Company will (i) promptly notify each Holder of the
Warrants and each holder of Warrant Shares not so previously sold that such
registration statement will be filed and that the Warrant Shares which are then
held, and/or may be acquired upon exercise of the Warrants by the Holder and
such Holders, will be included in such registration statement at the Holder's
and such Holders' request, (ii) cause such registration statement to be filed
with the Securities and Exchange Commission within forty-five days of such
request and to cover all Warrant Shares which it has been so requested to
include, (iii) use its best efforts to cause such registration statement to
become effective as soon as practicable and (iv) take all other action
reasonably necessary under any Federal or state law or regulation of any
governmental authority to permit all Warrant Shares which it has been so
requested to include in such registration statement to be sold or otherwise
disposed of, and will maintain such compliance with each such Federal and state
law and regulation of any governmental authority for the earlier of a period of
180 days or such other period necessary for such Holders to effect the proposed
sale or other disposition. The Company shall be required to effect a
registration or qualification pursuant to this Subsection 5(a) on one occasion
only.
(b) Notwithstanding anything to the contrary set forth in
Subsection 5(a), the Company shall not be obligated to register any Warrant
Shares hereunder if: (i) such Warrant Shares can be publicly sold by the Holder
thereof without registration under the Act and without any volume or other
material limitations, (ii) a registration statement covering such Warrant
Shares has been declared effective and they have been disposed of pursuant to
such effective registration statement, (iii) such Warrant Shares are
transferred on the open market pursuant to any available exemption under the
Act, (iv) such Warrant Shares have been otherwise transferred and the Company
has delivered new certificates or other
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evidences of ownership for them not subject to any stop transfer order or other
restriction on transfer and not bearing any legend restricting transfer in the
absence of an effective registration or an exemption from the registration
requirements of the Act, (v) they have been sold, assigned, pledged,
hypothecated or otherwise disposed of by the Holder in a transaction in which
the Holder's rights hereunder are not assigned or assignable, or (vi) the
Holder acquired such Warrant Shares pursuant to a Cashless Exercise of this
Warrant, as described in Section 1(a) hereof. In addition, if the Company shall
furnish to Holders requesting a registration statement pursuant to Section
5(a), a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer taking action with respect to such filing for a period of not
more than 90 days after receipt of the request of the Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve-month period.
(c) The Company agrees that if, at any time and from time to
time during the period commencing on October __, 1997, and ending on October
__, 2003, the Board of Directors of the Company shall authorize the filing of a
registration statement (any such registration statement being hereinafter
called a "SUBSEQUENT REGISTRATION STATEMENT") under the Act (otherwise than
pursuant to Subsection 5(a) hereof, or other than a registration statement on
Form S-8 or other form which does not include substantially the same
information as would be required in a form for the general registration of
securities) in connection with the proposed offer of any of its securities by
it or any of its stockholders, the Company will (i) promptly notify the Holder
and each of the Holders, if any, of other Warrants and/or Warrant Shares not
previously sold pursuant to this Section 5 that such Subsequent Registration
Statement will be filed and that the Warrant Shares which are then held, and/or
which may be acquired upon the exercise of the Warrants, by the Holder and such
Holders, will, at the Holder's and such Holders' request, be included in such
Subsequent Registration Statement, (ii) upon the written request of a Holder
made within 15 days after the giving of such notice by the Company, include in
the securities covered by such Subsequent Registration Statement all Warrant
Shares which it has been so requested to include, (iii) use its best efforts to
cause such Subsequent Registration Statement to become effective as soon as
practicable and (iv) take all other action reasonably necessary under any
Federal or state law or regulation of any governmental authority to permit all
Warrant Shares which it has been so requested to include in such Subsequent
Registration Statement to be sold or otherwise disposed of, and will maintain
such compliance with each such Federal and state law and regulation of any
governmental authority
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for the earlier of a period of 180 days or such other period necessary for the
Holder and such Holders to effect the proposed sale or other disposition.
Notwithstanding any other provision of this Section 5(c), if the managing
underwriters advise the Holders in writing that marketing factors require a
limitation of the number of shares to be registered in such Subsequent
Registration Statement, then the number of Warrant Shares that may be included
in the underwriting shall be allocated among all Holders thereof in proportion
(as nearly as practicable) to the amount of Warrant Shares owned by each
Holder.
(d) Whenever the Company is required pursuant to the
provisions of this Section 5 to include Warrant Shares in a registration
statement, the Company shall (i) furnish each Holder of any such Warrant Shares
and each underwriter of such Warrant Shares with such copies of the prospectus,
including the preliminary prospectus, conforming to the Act (and such other
documents as each such Holder or each such underwriter may reasonably request)
in order to facilitate the sale or distribution of the Warrant Shares, (ii) use
its best efforts to register or qualify such Warrant Shares under the blue sky
laws (to the extent applicable) of such jurisdiction or laws (to the extent
applicable) of such jurisdiction or jurisdictions as the Holders of any such
Warrant Shares and each underwriter of Warrant Shares being sold by such
Holders shall reasonably request and (iii) take such other actions as may be
reasonably necessary or advisable to enable such Holders and such underwriters
to consummate the sale or distribution in such jurisdiction or jurisdictions in
which such Holders shall have reasonably requested that the Warrant Shares be
sold. Nothing contained in this Warrant shall be construed as requiring a
Holder to exercise its Warrant prior to the closing of an offering pursuant to
a registration statement referred to in Subsection 5(a) or 5(b).
(e) The Company shall furnish to each Holder participating in
an offering pursuant to a registration statement under this Section 5 and to
each underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under
the underwriting agreement), and (ii) a "comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
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subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(f) The Company shall enter into an underwriting agreement
with the managing underwriters selected by the Company, subject to the consent
of Holders holding 50% of the Warrant Shares requested to be included in a
registration statement filed pursuant to Section 5(a), such consent not to be
unreasonably withheld. Notwithstanding the foregoing, in the event that the
Company has not selected the managing underwriters within twenty (20) days of
receipt of request for registration pursuant to Section 5(a), the Holders
holding 50% of the Warrant Shares requested to be included in a registration
statement filed pursuant to Section 5(a) shall have twenty (20) days to select
the managing underwriters, subject to the consent of the Company, such consent
not to be unreasonably withheld. In the event that such Holders have not
selected an acceptable managing underwriter within such twenty (20) day period,
the parties shall follow the procedures herein set forth until such time as a
selection is made. Such agreement shall be reasonably satisfactory in form and
substance to the Company, each Holder and such managing underwriters, and shall
contain such representations, warranties and covenants by the Company and such
other terms as are customarily contained in agreements of that type used by the
managing underwriter. The Holders shall be parties to any underwriting
agreement relating to an underwritten sale of their Warrant Shares. Such
Holders shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters except as they may relate to
such Holders and their intended methods of distribution.
(g) The Company shall pay all expenses incurred in connection
with any registration statement or other action pursuant to the provisions of
this Section 5, excluding the fees and expenses of counsel representing the
Holders of Warrant Shares included in any such registration statement and any
underwriting discounts and applicable transfer taxes relating to the Warrant
Shares.
(h) The Company will indemnify, and, if such indemnity is
unavailable, will agree to just and equitable contribution to, the Holders of
Warrant Shares which are included in each registration statement referred to in
Subsections 5(a) and 5(b), and the underwriters of such Warrant Shares,
substantially to the same extent as the Company has indemnified, and agreed to
just and equitable contribution to, the underwriters (the "UNDERWRITERS") of
its public offering of Common Stock pursuant to the Underwriting Agreement (the
"Underwriting Agreement"), dated September __, 1996, by and among the Company,
Ladenburg, Xxxxxxxx & Co. Inc., Xxxxxxx Bros., L.P., MOSCOM Corporation, as the
Selling Stockholder, and
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the other underwriters named in Schedule A thereto. Each selling Holder of
Warrant Shares, severally and not jointly, will indemnify and hold harmless the
Company, its directors, its officers who shall have signed any such
registration statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act to the same extent as the foregoing
indemnity from the Company, but in each case to the extent, and only to the
extent, that any statement in or omission from or alleged omission from such
registration statement, any final prospectus, or any amendment or supplement
thereto was made in reliance upon information furnished in writing to the
Company by such selling Holder specifically for use in connection with the
preparation of such registration statement, any final prospectus or any such
amendment or supplement thereto; provided, however, that the obligation of any
Holder of Warrant Shares to indemnify the Company under the provisions of this
Subsection (h) shall be limited to the product of (A) the number of Warrant
Shares being sold by the selling Holder and (B) the market price of the Common
Stock on the date of the sale to the public of such Warrant Shares.
6. LIMITED TRANSFERABILITY. This Warrant may not be sold, transferred,
assigned or hypothecated by the Holder (a) except in compliance with the
provisions of the Act, (b) until the first anniversary hereof except (i) to any
successor firm or corporation of Ladenburg, Xxxxxxxx & Co. Inc. or Xxxxxxx
Bros., L.P., (ii) to any of the officers of Ladenburg, Xxxxxxxx & Co. Inc. or
Xxxxxxx Bros., L.P. or of any such successor firm or (iii) in the case of an
individual, pursuant to such individual's last will and testament or the laws
of descent and distribution, and is so transferable only upon the books of the
Company which it shall cause to be maintained for the purpose. The Company may
treat the registered Holder of this Warrant as he or it appears on the
Company's books at any time as the Holder for all purposes. All Warrants issued
upon the transfer or assignment of this Warrant will be dated the same date as
this Warrant, and all rights of the Holder thereof shall be identical to those
of the Holder.
7. LOSS, ETC., OF WARRANT. Upon receipt of evidence satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant, and
of indemnity reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
8. WARRANT HOLDER NOT SHAREHOLDER. Except as otherwise provided
herein, this Warrant does not confer upon the Holder 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 or liabilities as a
stockholder, prior to the exercise hereof.
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9. NOTICES. All notices and other communications required or permitted
to be given under this Warrant shall be in writing and shall be deemed to have
been duly given if delivered personally or by facsimile transmission, or sent
by recognized overnight courier or by certified mail, return receipt requested,
postage paid, to the parties hereto as follows:
(a) if to the Company at 0000 Xxxx Xxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx 00000, Attn.: Xxxx X. Xxxxx, facsimile
no. (000) 000-0000, or such other address as the Company has
designated in writing to the Holder, or
(b) if to the Holder at Attn.: _______________________,
facsimile no. __________________, at
____________________________________, or such other address
or facsimile number as the Holder has designated in writing
to the Company.
10. HEADINGS. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
11. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the law of the State of New York without giving effect to the
principles of conflicts of law thereof.
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IN WITNESS WHEREOF, Votan Corporation, has caused this
Warrant to be signed by its President and its corporate seal to be hereunto
affixed and attested by its Secretary this ____ day of October, 1996.
VOTAN CORPORATION
By:________________________________
Xxxx X. Xxxxx
President and Chief Executive
Officer
ATTEST:
Xxxxxxx X. X'Xxxxxx
Chief Financial Officer,
Treasurer and Secretary
[Corporate Seal]
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ASSIGNMENT
FOR VALUE RECEIVED ____________________________ hereby sells,
assigns and transfers unto __________________________ the foregoing Warrant and
all rights evidenced thereby, and does irrevocably constitute and appoint
_______________________, attorney, to transfer said Warrant on the books of
Votan Corporation.
Dated:_____________________________ Signature: ______________________________
Address:_________________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby assigns
and transfers unto ____________________________ the right to purchase
______________ shares of the Common Stock of Votan Corporation covered by the
foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced thereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer that part of said Warrant on the
books of Votan Corporation.
Dated:_____________________________ Signature: ______________________________
Address:_________________________________
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SUBSCRIPTION FORM
To be executed upon exercise of Warrant pursuant to Section 1(a)(i))
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for, and to purchase
thereunder, ______________ shares of Common Stock, as provided for in Section
1(a)(i), and tenders herewith payment of the purchase price in full in the form
of cash or a certified or official bank check in the amount of $___________.
Please issue a certificate or certificates for such Common
Stock in the name of, and pay any cash for any fractional share to:
Name______________________________________
(Please Print Name, Address and Social
Security No.)
Address___________________________________
__________________________________________
Social____________________________________
Security Number
Signature_________________________________
NOTE: The above signature
should correspond exactly
with the name on the first
page of this Warrant or
with the name of the
assignee appearing in the
assignment form below.
Date______________________________________
And if said number of shares shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned for the balance remaining of the shares purchasable
thereunder.
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CASHLESS EXERCISE FORM
(To be executed upon exercise of Warrant
pursuant to Section 1(a)(ii))
The undersigned hereby irrevocably elects to surrender
_______ shares purchasable under this Warrant for such shares of Common Stock
issuable in exchange therefor pursuant to the Cashless Exercise provisions of
the within Warrant, as provided for in Section 1(a)(ii) of such Warrant.
Please issue a certificate or certificates for such Common
Stock in the name of, and pay cash for fractional shares to:
Name______________________________________
(Please Print Name, Address and Social
Security No.)
Address___________________________________
__________________________________________
Social____________________________________
Security Number
Signature_________________________________
NOTE: The above signature
should correspond exactly
with the name on the first
page of this Warrant or
with the name of the
assignee appearing in the
assignment form below.
Date______________________________________
And if said number of shares shall not be all the shares
exchangeable or purchasable under the within Warrant, a new Warrant is to be
issued in the name of the undersigned for the balance remaining of the shares
purchasable thereunder.
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