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Exhibit 4.11
FORM OF REPRESENTATIVE'S WARRANT AGREEMENT
REPRESENTATIVE'S WARRANT AGREEMENT dated as of February 3, 1997 among NEW
WEST EYEWORKS, INC., a Delaware corporation (the "Company"), and XXXXXXXXXX &
CO. INC. on behalf of itself and its affiliates (hereinafter referred to as the
"Holder" or the "Representative").
The Company proposes to issue to the Representative warrants (the
"Warrants") to purchase up to an aggregate of 66,563 shares of common stock, par
value $0.01 per share, of the Company ("Common Stock"); and
The Warrants to be issued pursuant to this Agreement will be issued by the
Company to the Representative in consideration for its participation in the
Company's proposed public offering of up to 1,600,000 shares of Common Stock at
a public offering price of $[____] per share of Common Stock pursuant to the
underwriting agreement (the "Underwriting Agreement"), dated February [ __],
1997 among the Underwriters, the Selling Stockholders (as defined therein) and
the Company (the "Public Offering") and at such time as the Representative
delivers to the Company for cancellation of the 66,563 warrants issued to its
predecessor Xxxxx & Co., Inc. and its affiliates under the Representative's
Warrant Agreement between the Company and Xxxxx & Co., Inc., dated as of
December 31, 1993 (the "1993 Agreement");
NOW, THEREFORE, in consideration of the premises, the cancellation of the
warrants held by the Representative issued pursuant to the 1993 Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant. The Holder (as defined in Section 3 hereof) is hereby granted the
right to purchase, at any time from the Closing Date (as defined in the
Underwriting Agreement) until 5:30 P.M., New York time, on December 23, 2001, up
to an aggregate of 66,563 shares of Common Stock (the "Shares") at an initial
exercise price (subject to adjustment as provided in Section 8 hereof) of $8.00
per share of Common Stock subject to the terms and conditions of this Agreement.
The Shares issuable upon exercise of the Warrants are in all respects identical
to the shares of Common Stock being purchased by the Underwriters for resale to
the public pursuant to the terms and provisions of the Underwriting Agreement.
2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement. The Representative on behalf of itself
and its affiliates hereby relinquishes and forfeits to the Company all rights it
had under the 1993 Agreement or the warrants issued pursuant thereto.
3. Exercise of Warrant. Each Warrant initially is exercisable at the
initial exercise price (subject to adjustment as provided in Section 8 hereof)
per share of Common Stock set forth in
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Section 6 hereof payable by check or bank draft to the order of the Company.
Upon surrender of a Warrant Certificate at the Company's principal offices in
Arizona (2104 West Southern Avenue, Tempe, Arizona 85282) with the annexed Form
of Election to Purchase duly executed, together with payment of the Exercise
Price (as hereinafter defined) for the shares of Common Stock purchased, the
registered holder of a Warrant Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased. The purchase rights represented by each Warrant Certificate are
exercisable at the option of the Holder thereof, in whole or in part (but not as
to fractional shares of Common Stock underlying the Warrants). In the case of
the purchase of less than all the shares of Common Stock purchasable under any
Warrant Certificate, the Company shall cancel said Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate of
like tenor for the balance of the shares of Common Stock purchasable thereunder.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock or other securities,
properties or rights underlying such Warrants, shall be made forthwith (and in
any event within five (5) business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the provisions
of Sections 5 and 7.1 hereof) be issued in the name of, or in such names as may
be directed by, the Holder thereof; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Shares
(and/or other securities, property or rights issuable upon the exercise of the
Warrants) shall be executed on behalf of the Company by the manual or facsimile
signature of the then present Chairman or Vice Chairman of the Board of
Directors or President or Vice President of the Company under its corporate seal
reproduced thereon, attested to by the manual or facsimile signature of the then
present Secretary or Assistant Secretary of the Company. Warrant Certificates
shall be dated the date of execution by the Company upon initial issuance,
division, exchange, substitution or transfer.
5. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
are being acquired as an investment and not with a view of the distribution
thereof; that the Warrants may not be sold, transferred, assigned, hypothecated
or otherwise disposed of, in whole or in part, except to any Underwriter, any
person who controls any Underwriter, any partner or director of any Underwriter
and any officer or any employee having an equity interest in any Underwriter.
However, if the Warrants are exercised by the Representative or any permitted
transferee within one year from the effective date of the Public Offering, the
Shares received from such exercise shall remain subject to the transfer
restriction specified herein for the remainder of the one year period.
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6. Exercise Price.
Section 6.1 Initial and Adjusted Exercise Price. Except as otherwise
provided in Section 8 hereof, the initial exercise price of each Warrant shall
be $8.00 per share of Common Stock. The adjusted exercise price shall be the
price which shall result from time to time from any and all adjustments of the
initial exercise price in accordance with the provisions of Section 8 hereof.
Section 6.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
Section 7.1 Registration Under the Securities Act of 1933. The Shares and
any of the other securities issuable upon exercise of the Warrants have not been
registered under the Securities Act of 1933, as amended (the "Act"). Upon
exercise, in part or in whole, of the Warrants, certificates representing the
Shares underlying the Warrants and any of the other securities issuable upon
exercise of the Warrants (collectively, the "Warrant Shares") shall bear the
following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
and may not be offered or sold except pursuant to (i) an effective
registration statement under the Act, or (ii) to the extent
applicable, Rule 144 under the Act (or any similar rule under such Act
relating to the disposition of securities) or another exemption from
registration under the Act is available."
Section 7.2 Piggyback Registration. If, at any time prior to December 23,
2001, the Company proposes to register any of its securities under the Act (for
sale by the Company or otherwise and whether by a new registration statement or
a post-effective amendment to the Registration Statement as defined in the
Underwriting Agreement but other than pursuant to Form S-8) it will give written
notice by registered mail, at least 30 days prior to the filing of each such
registration statement or post-effective amendment, to the Representative and to
all other Holders of the Warrants and the Warrant Shares of its intention to do
so. If the Representative or other Holders of the Warrants or Warrant Shares
notify the Company within 20 days after receipt of any such notice of its or
their desire to include any Warrant Shares in such proposed registration
statement or post-effective amendment, the Company shall afford the
Representative and such Holders the opportunity to have any such Warrant Shares
registered under such registration statement or post-effective amendment.
Notwithstanding the provisions of this Section 7.2, the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 7.2 (irrespective of whether a written request for inclusion of any such
securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
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Section 7.3 Demand Registration.
(a) At any time commencing after the Closing Date through and including
December 23, 2001, the Holders of the Warrants and Warrant Shares representing a
"Majority" (as hereinafter defined) of such securities (assuming for this
purpose the exercise of all of the Warrants) shall have the right (which right
is in addition to the registration rights under Section 7.2 hereof), exercisable
by written notice to the Company, to cause the Company to prepare and file with
the Securities and Exchange Commission (the "Commission"), on one occasion, a
registration statement and such other documents, including a prospectus, as may
be necessary in the opinion of both counsel for the Company and counsel for the
Holders, in order to comply with the provisions of the Act, so as to permit a
public offering and sale of all or any portion of their respective Warrant
Shares for nine consecutive months by such Holders and any other Holders of the
Warrants and/or Warrant Shares who elect to participate by notice to the Company
within ten (10) days after receiving notice from the Company of such request.
(b) In addition to the registration rights under Section 7.2 and subsection
(a) of this Section 7.3, at any time prior to December 23, 2001, any Holder of
Warrants or Warrant Shares shall have the right, exercisable by written request
to the Company, to have the Company prepare and file, on one occasion, with the
Commission a registration statement so as to permit a public offering and sale
of all or any portion of their Warrant Shares for nine consecutive months by
such Holder and any other Holders of the Warrants who elect to participate by
notice to the Company within ten days after receiving notice from the Company of
such request; provided, however, that the provisions of Section 7.4(c) hereof
shall not apply to any such registration request and registration and all costs
incident thereto shall be at the expense of the Holder or Holders making such
request or electing to participate.
(c) The Company covenants and agrees to give written notice of any
registration request under this Section 7.3 by any Holder or Holders to all
other registered Holders of the Warrants and the Warrant Shares within ten (10)
days from the date of the receipt of any such registration request.
(d) Notwithstanding anything to the contrary contained herein, if the
Company shall not have filed a registration statement for the Warrant Shares
within the time period specified in Section 7.4(a) hereof pursuant to the
written notice specified in Section 7.3(a) of a Majority of the Holders of the
Warrants and/or Warrant Shares, the Company agrees that upon the written notice
of election of a Majority of the Holders of the Warrants and/or Warrant Shares
it shall repurchase (i) any and all Warrant Shares at the arithmetic average
Market Price (as defined in Section 8.1(a)) per share of Common Stock on each of
the days when the market shall be open during the seventy-five (75) calendar
days following the date of the notice sent pursuant to Section 7.3(a) and (ii)
any and all Warrants at such average Market Price less the lowest Exercise Price
of such Warrants during such seventy-five (75) day period. Such repurchase shall
be in immediately available funds and shall close within two (2) days after the
later of (i) the expiration of the period specified in Section 7.4(a) or (ii)
the delivery of the written notice of election specified in this Section 7.3(d).
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(e) Any notice from Holders to cause a registration under Section 7.3(a) or
(b) which does not result in a registration statement which is duly declared
effective pursuant to the Act in accordance with the terms hereof or as to which
a stop order is issued and not withdrawn shall not constitute a exercise of the
Holders' rights under such Sections, respectively.
(f) Notwithstanding the provisions of Sections 7.3(a) above, if upon
exercise of the demand registration rights set forth in the Registration Rights
Agreements dated August 5, 1988, by and among the Company and the signatories
thereto, as amended (the "MEDIQ/Mesirow Agreements"), a Holder declines to
exercise its right to include Warrant Shares in such registration statement or
post-effective amendment and such registration statement or amendment is duly
declared effective pursuant to the Act and is not subject to any stop order
which is not withdrawn, then such Holder shall be deemed to have waived its
right to demand registration pursuant to Sections 7.3(a) and (b) until one year
from the date of a demand registration request pursuant to the MEDIQ/Mesirow
Agreements; provided, however, that if the demand registration rights referred
to above shall be exercised within one year from the date when the Holder's
rights would expire, and if the Market Price of the Common Stock (as defined in
Section 8.1(vi)) shall be less than the Exercise Price at the time the Holder
receives notice of the demand registration request pursuant to the MEDIQ/Mesirow
Agreements, and during the period following such notice during which the Holder
is permitted to notify the Company whether it will so include its Shares, the
Holder shall only be deemed to have waived its right to demand registration
pursuant to Sections 7.3(a) and (b) until one month prior to the date such
Holder's rights would otherwise expire.
Section 7.4 Covenants of the Company With Respect to Registration. In
connection with any registration under Section 7.2 or 7.3 hereof, the Company
covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration statement
within seventy-five (75) days of receipt of any demand therefor, shall use its
best efforts to have any registration statement declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell Warrant
Shares such number of prospectuses as shall reasonably be requested; provided
that before filing a registration statement or prospectus or any amendment or
supplement thereto, including, without limitation, documents incorporated
therein by reference after the initial filing of any registration statement, the
Company will furnish to the Holders of the Warrant Shares covered by such
registration statement and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review
and approval of such underwriters, and, with respect to information relating to
such Holders, to the comments of such Holders.
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(b) The Company will prepare and file with the Commission such amendments
and post-effective amendments to a registration statement as may be necessary to
keep such registration statement effective for the period required by Sections
7.3(a) or (b); cause the related prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement or amendment or supplement to
such prospectus.
(c) The Company shall make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a registration statement at the
earliest possible moment.
(d) The Company shall pay all costs (excluding fees and expenses of
Holder(s) counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Sections 7.2 and 7.3(a) hereof including, without limitation, the Company's
legal and accounting fees, printing expenses, blue sky fees and expenses. The
Holder(s) making a request or electing to participate pursuant to Section 7.3(b)
will pay all costs, fees and expenses in connection with any registration
statement filed pursuant to Section 7.3(b).
(e) The Company will take all necessary action which may be required in
qualifying or registering the Warrant Shares included in a registration
statement for offering and sale under the securities or blue sky laws of such
states as reasonably are requested by the Holder(s), provided that the Company
shall not be obligated to execute or file any general consent to service of
process or to qualify as a foreign corporation to do business under the laws of
any such jurisdiction.
(f) The Company shall indemnify the Holder(s) of the Warrant Shares to be
sold pursuant to any registration statement and each person, if any, who
controls such Holder(s) within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement but only to the same
extent and with the same effect as the provisions pursuant to which the Company
has agreed to indemnify each of the Underwriters contained in Section 8 of the
Underwriting Agreement.
(g) The Holder(s) of the Warrant Shares to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or behalf of such Holder(s), or their successors or assigns, for
specific
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inclusion in such registration statement to the same extent and with the same
effect as the provisions contained in Section 8 of the Underwriting Agreement
pursuant to which the Underwriters have agreed to indemnify the Company.
(h) Nothing contained in this Agreement shall be construed as requiring the
Holder(s) to exercise their Warrants prior to the initial filing of any
registration statement or the effectiveness thereof.
(i) Other than "Registrable Securities" and "Registrable Shares," as
defined in the MEDIQ/Mesirow Agreements, the Company shall not permit the
inclusion of any securities other than the Warrant Shares to be included in any
registration statement filed pursuant to Section 7.3 hereof, or permit any other
registration statement to be or remain effective during the effectiveness of a
registration statement filed pursuant to Section 7.3 hereof, without the prior
written consent of the Holders of the Warrants and Warrant Shares are presenting
a Majority of such securities.
(j) The Company shall furnish to each Holder participating in the offering
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 (or, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold 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
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.
(k) The Company shall as soon as practicable, but in any event not later
than 45 days after the end of the 12-month period beginning on the day after the
end of the fiscal quarter of the Company during which the effective date of the
registration statement occurs (90 days in the event that the end of such fiscal
quarter is the end of the Company's fiscal year), make "generally available to
its security holders" (within the meaning of Rule 158 under the Act) an earnings
statement (which need not be audited) complying with Section 11(a) of the Act
and covering a period of at least 12 consecutive months beginning after the
effective date of the registration statement.
(l) The Company shall deliver promptly to each Holder participating in the
offering requesting the correspondence and memoranda described below and the
managing underwriters copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to discussions
with the Commission or its staff with respect to the registration statement and
permit each Holder and underwriters to do such investigation, upon reasonable
advance notice, with respect to information contained in or omitted from the
registration statement
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as it deems reasonably necessary to comply with applicable securities laws or
rules of the National Association of Securities Dealers, Inc. ("NASD"). Such
investigation shall include access to books, records and properties and
opportunities to discuss the business of the Company with its officers and
independent auditors, all to such reasonable extent and at such reasonable times
and as often as any such Holder shall reasonably request.
(m) The Company shall enter into an underwriting agreement with the
managing underwriters selected for such underwriting by Holders holding a
Majority of the Warrant Shares requested to be included in such underwriting.
Such agreement shall be 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 and may, at their option, require that
any or all the representations, warranties and covenants of the Company to or
for the benefit of such underwriters shall also be made to and for the benefit
of such Holders. 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.
(n) For the purposes of this Agreement, the term "Majority" in reference to
the Holders of Warrants or Warrant Shares, shall mean in excess of fifty percent
(50%) of the then outstanding Warrants (assuming for this purpose the exercise
of all of the Warrants) and Warrant Shares that (i) are not held by the Company,
an affiliate, officer, director, employee or agent thereof or any of their
respective affiliates, members of their family, persons acting as nominees or in
conjunction therewith or (ii) have not been resold to the public pursuant to a
registration statement filed with the Commission under the Act.
8. Adjustments to Exercise Price and Number of Securities.
Section 8.1 Subdivision and Combination. In case the Company shall at any
time subdivide or combine the outstanding shares of Common Stock, the Exercise
Price shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
Section 8.2 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 8, the number of
Warrant Shares issuable upon the exercise of each Warrant shall be adjusted to
the nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Warrant Shares
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
Section 8.3 Definition of Common Stock. For the purpose of this Agreement,
the term Common Stock shall mean (i) the class of stock designated as Common
Stock in the Certificate of
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Incorporation of the Company as amended as of the date hereof, or (ii) any other
class of stock resulting from successive changes or reclassifications of such
Common Stock, consisting solely of changes in par value, or from par value to no
par value, or from no par value to par value. In the event that the Company
shall after the date hereof issue common stock with greater or superior voting
rights than the shares of Common Stock outstanding as of the date hereof, the
Holder, at its option, may receive upon exercise of any Warrant either shares of
Common Stock or a like number of such common stock with greater or superior
voting rights.
8.4 Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute and deliver to the Holder a
supplemental warrant agreement providing that the holder of each Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such Warrant, the kind
and amount of shares of and stock and other securities and property receivable
upon such consolidation or merger, by a holder of the number of shares of Common
Stock of the Company for which such Warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 8. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
Section 8.5 Dividends and Other Distributions. In the event that the
Company shall at any time prior to the exercise of all Warrants declare a
dividend (other than a dividend consisting solely of shares of Common Stock) or
otherwise distribute to its stockholders any assets, property, rights, evidences
of indebtedness, securities (other than shares of Common Stock), whether issued
by the Company or by another, or any other thing of value, the Holders of the
unexercised Warrants shall thereafter be entitled, in addition to the shares of
Common Stock or other securities and property receivable upon the exercise
thereof, to receive, upon the exercise of such Warrants, the same property,
assets, rights, evidences of indebtedness, securities or any other thing of
value that they would have been entitled to receive at the time of such dividend
or distribution as if the Warrants had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make appropriate reserves to ensure the timely performance of the
provisions of this Section 8.5.
Section 8.6 Notice of Adjustment. In the case of any adjustment or
readjustment in the number of Warrant Shares issuable upon the exercise of
Warrants or in the Exercise Price, the Company at its own expense will promptly
compute such adjustment or readjustment in accordance with the terms of this
Agreement and cause independent public accountants of recognized national
standing (who may be the independent public accountants for the Company),
selected by the Board of Directors of the Company, to verify such computation in
writing, and the Company shall prepare and mail by first class mail to each
Warrantholder a certificate signed by the Chief Executive Officer and Chief
Financial Officer of the Company, setting forth such adjustment or readjustment
and showing in
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reasonable detail the method of calculation thereof and the facts upon which
such adjustment or readjustment is based, including a statement of (a)
consideration to be received by the Company from any sale or issuance of
securities, (b) the number of shares of Common Stock outstanding and (c) the
Exercise Price in effect immediately prior to such sale or issuance and as
adjusted and readjusted.
Section 8.7 No Dilution or Impairment. The Company will not, by amendment
of its Certificate of Incorporation or through any consolidation, merger,
reorganization, transfer of assets, 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 Agreement, but will at all times in good faith
assist in the performance 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 against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock on the exercise of the
Warrants from time to time outstanding and (b) will not take any action which
results in any adjustment of the Exercise Price if the total number of shares of
Common Stock issuable thereafter upon the exercise of all Warrants would exceed
the total number of shares of Common Stock then authorized by the Company's
Certificate of Incorporation and available for the purpose of issuance such
exercise.
9. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Shares in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock upon the
exercise of any Warrant and in lieu thereof shall pay to the Holder of such
Warrant an amount in cash (computed to the nearest cent) equal to the current
Market Value of such fractional interest.
11. Reservation and Listing of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrants, such number of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and agrees that, upon
exercise of the Warrants and payment of the Exercise Price therefor, all shares
of Common Stock and other securities issuable upon such exercise shall be duly
and validly issued, fully paid, non-assessable and not subject to the preemptive
rights of any stockholder. As long as the Warrants
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shall be outstanding, the Company shall use its best efforts to cause all shares
of Common Stock issuable upon the exercise of the Warrants to be listed (subject
to official notice of issuance) on all securities exchanges on which the Common
Stock issued to the public in connection herewith may then be listed and/or
quoted on NASDAQ-NMS or NASDAQ, as the case may be.
12. Notices to Warrant Holders. Nothing contained in this Agreement shall
be construed as construed upon the Holders the right to vote or to consent or to
receive notice as a stockholder in respect of any meetings of stockholders for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on
the books of the Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any
option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property assets and business as an entirety shall
be proposed;
then, in any one or more of said events the Company shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
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(b) If to the Company, to the address set forth in Section 3 hereof or
to such other address as the Company may designate by notice to the
Holders.
14. Supplements and Amendments. The Company and the Representative may from
time to time supplement or amend this Agreement without the approval of any
Holders in order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any provisions
herein or to make any other provisions in regard to matters or questions arising
hereunder which the Company and the Representative may deem necessary or
desirable and which the Company and the Representative deem not to affect
adversely the interests of the Holders.
15. Successors. All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate at the close of business on
December 23, 2003. Notwithstanding the foregoing, the indemnification provisions
of Section 7 shall survive such termination.
17. Governing Law;Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company, the Representative and the Holders hereby agree that any
action, proceeding or claim against any of them arising out of, or relating in
any way to, this Agreement shall be brought and enforced in the courts of the
State of New York or of the United States of America for the Southern District
of New York, and irrevocably submit to such jurisdiction, which jurisdiction
shall be exclusive. The Company, the Representative and the Holders hereby
irrevocably waive any objection to such exclusive jurisdiction or inconvenient
forum. Any such process or summons to be served upon any of the Company, the
Representative and the Holders (at the option of the party bringing such action,
proceeding or claim) may be served by transmitting a copy thereof, by registered
or certified mail, return receipt requested, postage prepaid, addressed to it at
the address set forth in Section 13 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim. The Company, the Representative and the Holders
agree that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
18. Entire Agreement;Modification. This Agreement (including the
Underwriting Agreement to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification
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or amendment is sought.
19. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
20. Captions. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Representative and any other registered Holder(s) of the Warrant Certificates or
Warrant Shares any legal or equitable right, remedy or claim under this
Agreement; and this Agreement shall be for the sole and exclusive benefit of the
Company and the Representative and any other Holder(s) of the Warrant
Certificates or Warrant Shares.
22. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
NEW WEST EYEWORKS, INC.
By
---------------------------------
Name:
Title:
Attest:
--------------------------------
Secretary
XXXXXXXXXX & CO. INC.
By
---------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE
UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR ANOTHER EXEMPTION
FROM REGISTRATION UNDER SUCH ACT.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT
REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, DECEMBER 23, 2001
No. Warrants
------------ ----------
WARRANT CERTIFICATE
This Warrant Certificate certifies that ________________, or
registered assigns, is the registered holder of _____________ Warrants to
purchase initially, at any time from the Closing Date until 5:30 p.m. New York
time on December 23, 2001 ("Expiration Date"), up to ________________________
fully-paid and non-assessable shares of common stock, par value $0.01 per share
("Common Stock") of NEW WEST EYEWORKS, INC., a Delaware corporation (the
"Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $8.00 per share of Common Stock upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the Representative's Warrant Agreement dated as of February 3, 1997
between the Company and Xxxxxxxxxx & Co. Inc., as may be amended (the "Warrant
Agreement"). Payment of the Exercise Price shall be made by check or bank draft
to the order of the Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants pursuant to the Warrant Agreement, which Warrant
Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights,
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limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder on the books of the Company) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and/or number of the Company's securities issuable
thereupon may, subject to certain conditions, be adjusted. In such event, the
Company will, at the request of the holder, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and/or type of
securities issuable upon the exercise of the Warrants; provided, however, that
the failure of the Company to issue such new Warrant Certificates shall not in
any way change, alter or otherwise impair, the rights of the holder as set forth
in the Representative's Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the
Representative's Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated as of , 1997
------------- NEW WEST EYEWORKS, INC.
By
-------------------------
Name:
Title:
Attest:
-----------------------------
Secretary
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[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase shares _____________ of
Common Stock and herewith tenders in payment for such securities a check
payable in New York Clearing House Funds to the order of NEW WEST EYEWORKS,
INC. in the amount of $_______________ , all in accordance with the terms
hereof. The undersigned requests that a certificate for such securities be
registered in the name of ____________________ whose address is
___________________________ and that such Certificate be delivered to
_______________________ whose address is ____________________.
Dated:
Signature
----------------------------
(Signature must conform in
all respects to name of
holder as specified on the
face of the Warrant
Certificate.)
----------------------------
(Insert Social Security or
Other Identifying Number of
Holder)
