EXHIBIT 6
WARRANT AGREEMENT
BETWEEN
LIVENT INC.
AND
XXX X. XXXXXX
June 12th, 1998
TABLE OF CONTENTS
Page
1. DEFINITIONS....................................................................2
Additional Shares of Common Stock.......................................2
Common Stock............................................................3
Contract................................................................3
Convertible Securities..................................................3
Exercise Price..........................................................3
Expiration Date.........................................................3
Fair Market Value.......................................................3
Holders.................................................................4
Liens .................................................................4
Material Adverse Effect.................................................4
NASDAQ .................................................................4
1933 Act................................................................4
Options.................................................................4
Organizational Documents................................................4
Other Securities........................................................4
Person .................................................................4
Series A Exercise Price.................................................4
Series B Exercise Price.................................................4
Subsidiary..............................................................4
Underlying Shares.......................................................5
Voting Securities.......................................................5
Warrant Certificates....................................................5
Warrants................................................................5
2. ISSUE OF WARRANTS..............................................................5
2.1 Form of Warrant Certificates.....................................5
2.2 Execution and Delivery of Warrant Certificates...................5
3. EXERCISE OF WARRANTS...........................................................6
3.1 Exercise Price...................................................6
3.2 Exercise of Warrants.............................................6
3.3 Expiration of Warrants...........................................6
3.4 Method of Exercise...............................................6
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
XXXXXX........................................................................6
4.1 Due Authorization................................................6
4.2 No Conflicts.....................................................7
4.3 Consents, Approvals and Notices..................................7
4.4 Litigation. .....................................................7
4.5 Investor Status..................................................7
4.6 Accredited Investor..............................................7
4.7 No General Solicitation..........................................8
4.8 Brokers..........................................................8
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................................8
5.1 Organization, Good Standing and Qualification....................8
5.2 Capitalization...................................................8
5.3 Due Authorization................................................8
5.4 No Conflicts.....................................................9
5.5 Compliance.......................................................9
5.6 Consents, Approvals and Notices..................................9
5.7 Litigation......................................................10
6. RIGHTS OF HOLDERS.............................................................10
7. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.............................10
7.1 Adjustment of Exercise Price....................................10
7.1.1 Issuance of Additional Shares of Common Stock............10
7.1.2 Extraordinary Dividends and Distributions...............11
7.2 Treatment of Options and Convertible Securities.................11
7.3 Treatment of Stock Dividends, Stock Splits, etc.................13
7.4 Underwriting Discounts..........................................13
7.5 Computation of Consideration....................................14
7.6 Adjustments for Combinations, etc...............................15
7.7 Dilution in Case of Other Securities............................15
7.8 Other Dilutive Events...........................................15
7.9 Minimum Adjustment of Exercise Price............................15
7.10 Notice of Adjustment............................................16
7.11 Statement on Warrants...........................................16
7.12 Fractional Interest.............................................16
8. CONSOLIDATION, MERGER, ETC....................................................16
8.1 Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc.............................................17
8.2 Assumption of Obligations.......................................17
8.3 Other Dilutive Events...........................................17
9. WARRANT TRANSFER BOOKS........................................................17
10. WARRANT HOLDERS...............................................................18
10.1 No Voting Rights................................................18
10.2 Right of Action.................................................18
11. COVENANTS.....................................................................19
11.1 Reservation of shares of Common Stock...........................19
11.2 Determinations by Board of Directors............................19
12. MISCELLANEOUS.................................................................19
12.1 Payment of Taxes................................................19
12.2 Surrender of Certificates.......................................19
12.3 Mutilated, Destroyed, Lost and Stolen Warrant Certificates......19
12.4 Notices. .......................................................20
12.5 Applicable Law..................................................21
12.6 Obligations Under Investment Agreement..........................22
12.7 Currency........................................................22
12.8 Persons Benefitting.............................................22
12.9 Costs and Expenses..............................................22
12.10 Counterparts....................................................22
12.11 Headings........................................................22
WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement") is made and
entered into as of June 12, 1998 between Livent Inc., an Ontario corporation
(the "Company"), and Xxx X. Xxxxxx ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, the Company and Xxxxxx have entered into an
Investment Agreement, dated as of June , 1998 (the "Investment Agreement"),
providing for the issuance and sale of shares of Common Stock by the
Company to Xxxxxx;
WHEREAS, the Company, Xxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxx,
Xxxxx X. Xxxxxx ("Xxxxxx"), Lynx Ventures L.P. ("LV") and Xxxxxx desire to
enter into a Shareholders Agreement providing for certain rights and
restrictions with respect to the Common Stock held by such parties and
establishing certain terms and conditions concerning the voting of Common
Stock held by the parties thereto (the "Shareholders Agreement");
WHEREAS, in connection with the agreements above and the
transactions contemplated thereby, the Company agrees to issue to Xxxxxx
(i) warrants entitling Xxxxxx to purchase 80,000 shares of Common Stock of
the Company (the "Series A Warrants") at $9.00 per share (the "Series A
Exercise Price") and (ii) warrants entitling Xxxxxx to purchase 80,000
shares of Common Stock (the "Series B Warrants") at $10.00 per share (the
"Series B Exercise Price") (the Series A Warrants and Series B Warrants
collectively the "Warrants");
WHEREAS, the Series A Exercise Price and the Series B
Exercise Price (collectively, the "Exercise Prices") are subject to
adjustment as herein provided;
WHEREAS, the certificates evidencing the Series A Warrants
(the "Series A Warrant Certificates") and the Series B Warrants (the
"Series B Warrant Certificates") (collectively, the "Warrant Certificates")
are attached as Exhibits A and B hereto, respectively; and
WHEREAS, the Company has received from Xxxxxx $2.00 and
other good and valuable consideration.
NOW, THEREFORE, in consideration of the foregoing, for the
purpose of defining the terms and provisions of the Warrants and the
respective rights and obligations thereunder of the Company and the
recordholders of the Warrants, the Company and Xxxxxx hereby agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have
the following meanings:
"Additional Shares of Common Stock" means all shares of
Common Stock issued or sold (or, pursuant to Section 7.2 or
7.3, deemed to be issued) by the Company after the date
hereof, whether or not subsequently reacquired
or retired by the Company, other than
(a) shares issued upon the exercise of the
Warrants and the warrants issued to LV pursuant to a
warrant agreement between LV and the Company dated
June 12th, 1998,
(b) shares not to exceed 2,900,000 (as
constituted on such date) issued upon the exercise of
options granted or to be granted under the Company's
stock option plans as in effect on the date hereof or
under any other employee stock option or purchase
plan or plans adopted or assumed after such date,
(c) shares issued upon the exercise of options
to acquire 990,000, 1,025,000 and 400,000 shares,
granted by the Company to CKE Associates LLC, Xxxxxx
and Xxxxxx,
(d) shares issued upon the conversion of the
Company's 8.95% Subordinated Convertible Notes due
February 29, 2000,
(e) shares issued upon the conversion of the
Company's 10% Subordinated Convertible Debentures due
July 28, 2003,
(f) such additional number of shares as may
become issuable upon the exercise of any of the
securities referred to in the foregoing clauses (a),
(b), (c), (d) and (e) by reason of adjustments
required pursuant to anti-dilution provisions
applicable to such securities as in effect on the
date hereof, but only if and to the extent that such
adjustments are required as the result of the
original issuance of the Warrants, and
(g) such additional number of shares as may
become issuable upon the exercise of any of the
securities referred to in the foregoing clauses (a),
(b), (c), (d) and (e) by reason of adjustments
required pursuant to anti-dilution provisions
applicable to such securities as in effect on the
date hereof, in order to reflect any subdivision or
combination of Common Stock, by reclassification or
otherwise, or any dividend on Common Stock payable in
Common Stock.
"Common Stock" means shares of Common Stock, no par value,
of the Company, including any stock into which such Common
Stock shall have been changed or any stock resulting from
any reclassification of such Common Stock, and all other
stock of any class or classes (however designated) of the
Company the holders of which have the right, without
limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after
the payment of dividends and distributions on any shares
entitled to preference;
"Contract" has the meaning set forth in Section 4.3;
"Convertible Securities" means any evidences of
indebtedness, shares of stock (other than Common Stock) or
other securities directly or indirectly convertible into or
exchangeable for Additional Shares of Common Stock;
"Exercise Price" means the corresponding Exercise Price as
set forth in the recitals;
"Expiration Date" means the third anniversary of this
Agreement;
"Fair Market Value" means, per share of Common Stock (or
equivalent equity interests) on any date specified herein,
(a) the average of the last sale prices, regular way, on the
20 consecutive business days immediately preceding such date
or, if there shall have been no sale on any such day, the
average of the closing bid and asked prices on such date, in
each case as officially reported on the principal national
securities exchange on which such Common Stock is at the
time listed or admitted to trading, or (b) if such common
stock is not then listed or admitted to trading on any
national securities exchange, but is designated as a
national market system security by the NASD, the last
trading price of the Common Stock on such date, or if there
shall have been no trading on such date or if the Common
Stock is not so designated, the average of the reported
closing bid and asked prices on such 20 days as shown by the
NASD automated quotation system; provided, however, that if
such Common Stock is not then listed or admitted to trading
on any national exchange or designated as a national market
system security or quoted in the over-the-counter market,
the Fair Market Value shall be as determined by any
investment banking firm of recognized standing mutually
acceptable to Xxxxxx and the Board of Directors of the
Company;
"Holders" means from time to time, the holders of the
Warrants and, unless otherwise provided or indicated herein,
the holders of the Underlying Shares;
"Liens" means claims, liens, charges, restrictions,
reservations and agreements, mortgages, pledges, security
interests, guarantees, easements, rights of way and
encumbrances of any kind or character;
"Material Adverse Effect" shall mean a material adverse
effect on the business, results of operations, prospects,
assets, liabilities or condition (financial or otherwise) of
the Company and its Subsidiaries, taken as a whole;
"NASDAQ" means the NASDAQ national market;
"1933 Act" means the Securities Act of 1933, as amended;
"Options" means rights, options or warrants to subscribe
for, purchase or otherwise acquire either Additional Shares
of Common Stock or Convertible Securities;
"Organizational Documents" means the articles of
incorporation, certificate of incorporation, by-laws,
certificates of formation, or other constitutional
documents;
"Other Securities" means any stock (other than Common Stock)
and other securities of the Company or any other Person
(corporate or otherwise) which the holders of the Warrants
at any time shall be entitled to receive, or shall have
received, upon the exercise of the Warrants, in lieu of or
in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to
Section 8 or otherwise.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof;
"Series A Exercise Price" has the meaning set forth in the
recitals;
"Series B Exercise Price" has the meaning set forth in the
recitals;
"Subsidiary" means any Person of which the Company (either
alone or through or together with any other Subsidiary)
owns, directly or indirectly, 50% or more of the capital
stock or other equity interest, the holders of which are
generally entitled to vote for the election of the board of
directors or other governing body of such Person;
"Underlying Shares" means the shares of Common Stock
issuable or issued upon the exercise of the Warrants;
"Voting Securities" means stock of any class or classes (or
equivalent interests), if the holders of the stock of such
class or classes (or equivalent interests) are ordinarily,
in the absence of contingencies, entitled to vote for the
election of the directors (or persons performing similar
functions) of such business entity, even though the right so
to vote has been suspended by the happening of such a
contingency;
"Warrant Certificates" has the meaning set forth in the
recitals; and
"Warrants" has the meaning set forth in the recitals.
Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Investment Agreement.
2. ISSUE OF WARRANTS.
2.1 Form of Warrant Certificates. The Warrant Certificates
shall be in registered form only, and shall be dated the date on which
executed by the Company and may have such legends and endorsements typed,
stamped, printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any
securities exchange on which the Warrants may be listed, or to conform to
usage.
2.2 Execution and Delivery of Warrant Certificates. Warrant
Certificates evidencing Warrants to purchase a number of duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock shall
be executed, on the date of this Agreement, by the Company and delivered to
and issued in the name of Xxxxxx. The Warrant Certificates shall be
executed on behalf of the Company by its President or by any of its Vice
Presidents, either manually or by facsimile signature printed thereon. In
case any officer of the Company whose signature shall have been placed upon
any of the Warrant Certificates shall cease to be such officer of the
Company before issue and delivery thereof, such Warrant Certificates may,
nevertheless, be issued and delivered with the same force and effect as
though such person had not ceased to be such officer of the Company.
3. EXERCISE OF WARRANTS.
3.1 Exercise Price. Each Warrant Certificate shall entitle
the Holder thereof, subject to the provisions of this Agreement, to receive
one share of Common Stock for each Warrant represented thereby at the
corresponding Exercise Price, subject to
adjustment as herein provided.
3.2 Exercise of Warrants. The Warrants shall be exercisable
in whole or in part on or prior to the Expiration Date.
3.3 Expiration of Warrants. The Warrants shall terminate and
become void at the close of business on the Expiration Date.
3.4 Method of Exercise.
(a) In order to exercise a Warrant the Holder thereof must
surrender the Warrant Certificate evidencing such Warrant to the Company at
its principal office, together with the Exercise Subscription Form on the
reverse of or attached to the Warrant Certificate duly executed,
accompanied by payment, in cash or by certified or by official bank check
payable to the order of the Company, in the amount equal to the Exercise
Price multiplied by the number of Warrants being exercised.
(b) If fewer than all the Warrants represented by a Warrant
Certificate are surrendered for exercise, such Warrant Certificate shall be
surrendered and a new Warrant Certificate of the same tenor and for the
number of Warrants that were not surrendered shall be executed by the
Company. The new Warrant Certificate shall be registered in such name or
names as may be directed in writing by the Holder and delivered to the
Person or Persons entitled to receive the same.
(c) Upon exercise of a Warrant in conformity with the
foregoing provisions, the Company shall issue or cause to be issued in the
name of and delivered to the Holder of such Warrant or, subject to Section
12.1, as such Holder (upon payment by such Holder of any applicable
transfer taxes) may direct, a certificate or certificates for the number of
duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which such Holder shall be entitled upon such exercise
together with an amount in cash in lieu of any fraction of a share as
provided in Section 7.12.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF XXXXXX.
Xxxxxx represents and warrants to the Company that:
4.1 Due Authorization. Xxxxxx has taken all necessary action
to authorize the execution, delivery and performance of this Agreement and
to consummate the transactions contemplated hereby. This Agreement has
been, and upon execution and delivery thereof to the Company will be, duly
executed and delivered on behalf of Xxxxxx and will constitute legal valid
and binding obligations of Xxxxxx enforceable against Xxxxxx by the Company
in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency or other laws of general application
affecting the enforcement of creditors' rights and subject to the
qualification that specific performance and injunction, being equitable
remedies, may only be granted in the discretion of a court of competent
jurisdiction.
4.2 No Conflicts. The authorization, execution, delivery and
performance by Xxxxxx of this Agreement is not in conflict with and does
not and will not result in a breach of and does not and will not create a
state of facts which after notice or lapse of time or both will result in a
breach of any of the terms or provisions of any statute, law, regulation,
court order or decision to which Xxxxxx is subject, or any material
indenture, instrument, agreement or undertaking to which Xxxxxx is a party
or by which Xxxxxx or the properties and assets of Xxxxxx are or may become
bound or results or would result in the creation or imposition of any Lien
upon any of the properties or assets of Xxxxxx.
4.3 Consents, Approvals and Notices. The execution and
delivery of this Agreement by Xxxxxx and the consummation by Xxxxxx of the
transactions contemplated hereby does not require any (a) material consent,
authorization, order or approval of, filing or registration with, or notice
to, any governmental or regulatory authority, which has not otherwise been
obtained or (b) material consent, authorization, approval, waiver, order,
license, certificate or permit or act of or from, or notice to, any party
to any material mortgage, indenture, lease, franchise, license, permit,
agreement or instrument (each, a "Contract") to which Xxxxxx is a party or
by which any of his assets or properties are bound, which has not been
otherwise obtained.
4.4 Litigation. There is no action, suit or proceeding
pending or, to the knowledge of Xxxxxx, threatened, before any court
against Xxxxxx which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
4.5 Investor Status. Xxxxxx has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of his acquisition of Warrants or purchase of
Underlying Shares and is able to bear the economic risks of such
investment.
4.6 Accredited Investor. Xxxxxx is an "accredited investor"
as defined in Rule 501(a) under the 1933 Act. Xxxxxx is acquiring the
Warrants for its own account and not with a view to any resale,
distribution or other disposition of the Warrants in violation of the
United States securities laws.
4.7 No General Solicitation. Xxxxxx acknowledges that he has
not acquired the Warrants as a result of any general solicitation or
general advertising (as those terms are used in Regulation D under the 1933
Act), including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast over
radio or television, or any seminar or meeting whose attendees have been
invited by general solicitation or general advertising.
4.8 Brokers. No broker, investment banker, financial advisor
or other person or entity is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of Xxxxxx or any of its affiliates except as provided for in
the Investment Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to Xxxxxx that:
5.1 Organization, Good Standing and Qualification. The
Company is a corporation duly incorporated and organized and is validly
subsisting under the laws of the Province of Ontario. The Company has all
requisite power and authority to own, lease and operate the property and
assets it now owns, leases and operates and to conduct its business as
presently conducted and as proposed to be conducted and to execute and
deliver this Agreement. The Company is duly qualified and licensed as a
corporation to conduct its business and is in good standing in each
jurisdiction in which the nature of the business conducted by it or the
property owned, leased or operated by it makes such qualification or
licensing necessary, except for such failures to be so duly qualified and
licensed and in good standing which will not in the aggregate have a
Material Adverse Effect.
5.2 Capitalization. The authorized capital of the Company
consists of (i) an unlimited number of shares of Common Stock of which on
the date hereof there are 18,071,235 outstanding, all of which are duly
authorized, validly issued, fully paid and non-assessable and free of
pre-emptive rights, other than those contemplated by the Shareholders
Agreement and the THL Voting Agreement, and (ii) an unlimited number of
First Preferred Shares, of which on the date hereof there are none
outstanding.
5.3 Due Authorization. The Company has taken all necessary
corporate action to authorize the execution, delivery and performance of
this Agreement and to issue and deliver the Warrants and to consummate the
transactions contemplated hereby; this Agreement has been, and upon
execution and delivery thereof to Xxxxxx will be, duly executed and
delivered on behalf of the Company and will constitute a legal, valid and
binding obligation of the Company enforceable against the Company by Xxxxxx
in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency or other laws of general application
affecting the enforcement of creditors' rights and subject to the
qualification that specific performance and injunction, being equitable
remedies, may only be granted in the discretion of a court of competent
jurisdiction.
5.4 No Conflicts. Except as otherwise required by the
Investment Canada Act, none of: (i) the authorization, execution, delivery
and performance by the Company of this Agreement, or (ii) the issuance and
delivery of the Warrants, results or would result in the creation or
imposition of any Lien upon any of the properties or assets of the Company
or any of its Subsidiaries or is in conflict with or does or will result in
a breach by the Company of or does or will create a state of facts which
after notice or lapse of time or both will result in a breach by the
Company of any of the terms or provisions of (a) the Organizational
Documents of the Company or any of its Subsidiaries, (b) the resolutions of
the directors or shareholders of the Company, (c) any statute, law,
regulation, court order or decision to which the Company is subject or (d)
any material indenture, instrument, agreement or undertaking to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries or the properties or assets of the Company or any
of its Subsidiaries are or may become bound, excluding from such clauses
(c) and (d), such breaches or violations that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.5 Compliance. Neither the Company nor any of the
Subsidiaries is in violation of any term or provision of (a) their
respective Organizational Documents, (b) any agreement or instrument to
which any of them is a party or by which any of them or their respective
assets are bound, including any existing license to conduct business, note,
bond, mortgage, indenture, contract, lease, permit, franchise or other
instrument, or (c) any applicable law, excluding from such clauses (b) and
(c), such violations that, in the aggregate, have not had, or could not
reasonably be expected to have, a Material Adverse Effect.
5.6 Consents, Approvals and Notices. The execution, delivery
and performance of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby do not and will not,
require any (a) consent, approval, authorization, registration,
qualification, declaration, filing, governmental approval or other action
by, or filing with or notification to, any third party or any governmental
authority or (b) the execution, delivery and performance of this Agreement
and the acquisition of the Warrants and the consummation of the
transactions contemplated hereby shall not trigger any change of control or
ownership provisions or clauses in any agreement, arrangement,
understanding or contract, whether formal or informal, written or oral, or
subject the Company or its Subsidiaries to any predetermined adverse
alteration or modification in any ongoing relationship (without
consideration of the change of control or ownership provision or the
provision for the predetermined adverse alteration or modification as part
of the ongoing relationship).
5.7 Litigation. There is not now pending against the Company
or any of its Subsidiaries or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries, nor has the Company
received notice in respect of, any claim or potential claim which could
lead to any litigation, action, suit or other proceeding by or before any
court, tribunal, governmental agency or authority, securities commission or
regulatory body in Canada or the United States that may seek to enjoin the
transactions contemplated herein or that, if successful, would have in the
aggregate a Material Adverse Effect.
6. RIGHTS OF HOLDERS.
Each Holder hereby agrees that if such Holder is not a party
to the Shareholders Agreement, then such Holder will take all necessary and
appropriate steps to become a party to the Shareholders Agreement. For this
purpose, the Warrants and such Underlying Shares shall be subject to the
restrictions, and entitled to the benefits, to the extent provided in the
Shareholders Agreement with respect to shares of Common Stock held by a
"Shareholder" (as defined in the Shareholders Agreement).
7. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
7.1 Adjustment of Exercise Price.
7.1.1 Issuance of Additional Shares of Common Stock.
In case the Company at any time or from time to time after the date hereof
shall issue or sell Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to Section 7.2 or 7.3)
without consideration or for a consideration per share less than Fair
Market Value, then, and in each such case, subject to Section 7.9, the
Exercise Price shall be reduced, concurrently with such issue or sale, to a
price (calculated to the nearest .001 of a cent) determined by multiplying
such Exercise Price by a fraction
(1) the numerator of which shall be (i) the
number of shares of Common Stock outstanding immediately prior to such
issue or sale plus (ii) the number of shares of Common Stock which the
aggregate consideration received by the Company for the total number of
such Additional Shares of Common Stock so issued or sold would purchase at
such Fair Market Value, and
(2) the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such issue or sale,
provided that, for the purposes of this Section 7.1.1, immediately after
any Additional Shares of Common Stock are deemed to have been issued
pursuant to Section 7.2 or 7.3, such Additional Shares of Common Stock
shall be deemed to be outstanding.
7.1.2 Extraordinary Dividends and Distributions. In
case the Company at any time or from time to time after the date hereof
shall declare, order, pay or make a dividend or other distribution
(including, without limitation, any distribution of other or additional
stock or other securities or property or Options by way of dividend or
spin-off, reclassification, recapitalization or similar corporate
rearrangement) on the Common Stock, other than (a) a dividend payable in
Additional Shares of Common Stock or (b) a regular periodic cash dividend
at a rate not in excess of 110% of the rate of the last regular periodic
cash dividend theretofore paid, then, and in each such case, subject to
Section 7.8, the Exercise Price in effect immediately prior to the close of
business on the record date fixed for the determination of holders of any
class of securities entitled to receive such dividend or distribution shall
be reduced, effective as of the close of business on such record date, to a
price (calculated to the nearest .001 of a cent) determined by multiplying
such Exercise Price by a fraction
(x) the numerator of which shall be the Fair Market Value on
such record date or, if the Common Stock trades on an ex-dividend
basis, on the date prior to the commencement of ex-dividend
trading, less the amount of such dividend or distribution (as
determined in good faith by the Board of Directors of the Company)
applicable to one share of Common Stock, and
(y) the denominator of which shall be such Fair Market
Value.
7.2 Treatment of Options and Convertible Securities. In case
the Company at any time or from time to time after the date hereof shall
issue, sell, grant or assume, or shall fix a record date for the
determination of holders of any class of securities entitled to receive,
any Options or Convertible Securities, then, and in each such case, the
maximum number of Additional Shares of Common Stock (as set forth in the
instrument relating thereto, without regard to any provisions contained
therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or, in the case of Convertible Securities and
Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued
as of the time of such issue, sale, grant or assumption or, in case such a
record date shall have been fixed, as of the close of business on such
record date (or, if the Common Stock trades on an ex-dividend basis, on the
date prior to the commencement of ex-dividend trading), provided that such
Additional Shares of Common Stock shall not be deemed to have been issued
unless the consideration per share (determined pursuant to Section 7.5) of
such shares would be less than Fair Market Value on the date of and
immediately prior to such issue, sale, grant or assumption or immediately
prior to the close of business on such record date (or, if the Common Stock
trades on an ex-dividend basis, on the date prior to the commencement of
ex-dividend trading), as the case may be, and provided, further, that in
any such case in which Additional Shares of Common Stock are deemed to be
issued
(a) no further adjustment of the Exercise Price shall be
made upon the subsequent issue or sale of Convertible Securities or
shares of Common Stock upon the exercise of such Options or the
conversion or exchange of such Convertible Securities, except in
the case of any such Options or Convertible Securities which
contain provisions requiring an adjustment, subsequent to the date
of the issue or sale thereof, of the number of Additional Shares of
Common Stock issuable upon the exercise of such Options or the
conversion or exchange of such Convertible Securities by reason of
(x) a change of control of the Company, (y) the acquisition by any
Person or group of Persons of any specified number or percentage of
the Voting Securities of the Company or (z) any similar event or
occurrence, each such case to be deemed hereunder to involve a
separate issuance of Additional Shares of Common Stock, Options or
Convertible Securities, as the case may be;
(b) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in
the consideration payable to the Company, or decrease in the number
of Additional Shares of Common Stock issuable, upon the exercise,
conversion or exchange thereof (by change of rate or otherwise),
the Exercise Price computed upon the original issue, sale, grant or
assumption thereof (or upon the occurrence of the record date, or
date prior to the commencement of ex-dividend trading, as the case
may be, with respect thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options, or the rights of conversion or
exchange under such Convertible Securities, which are outstanding
at such time;
(c) upon the expiration (or purchase by the Company and
cancellation or retirement) of any such Options which shall not
have been exercised or the expiration of any rights of conversion
or exchange under any such Convertible Securities which (or
purchase by the Company and cancellation or retirement of any such
Convertible Securities the rights of conversion or exchange under
which) shall not have been exercised, the Exercise Price computed
upon the original issue, sale, grant or assumption thereof (or upon
the occurrence of the record date, or date prior to the
commencement of ex-dividend trading, as the case may be, with
respect thereto), and any subsequent adjustments based thereon,
shall, upon such expiration (or such cancellation or retirement, as
the case may be), be recomputed as if:
(i) in the case of Options for Common Stock or
Convertible Securities, the only Additional Shares of Common
Stock issued or sold were the Additional Shares of Common
Stock, if any, actually issued or sold upon the exercise of
such Options or the conversion or exchange of such
Convertible Securities and the consideration received
therefor was the consideration actually received by the
Company for the issue, sale, grant or assumption of all such
Options, whether or not exercised, plus the consideration
actually received by the Company upon such exercise, or for
the issue or sale of all such Convertible Securities which
were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Company upon
such conversion or exchange, and
(ii) in the case of Options for Convertible
Securities, only the Convertible Securities, if any,
actually issued or sold upon the exercise of such Options
were issued at the time of the issue, sale, grant or
assumption of such Options, and the consideration received
by the Company for the Additional Shares of Common Stock
deemed to have then been issued was the consideration
actually received by the Company for the issue, sale, grant
or assumption of all such Options, whether or not exercised,
plus the consideration deemed to have been received by the
Company (pursuant to Section 7.5) upon the issue or sale of
such Convertible Securities with respect to which such
Options were actually exercised;
(d) no readjustment pursuant to subdivision (b) or (c) above
shall have the effect of increasing the Exercise Price by an amount
in excess of the amount of the adjustment thereof originally made
in respect of the issue, sale, grant or assumption of such Options
or Convertible Securities; and
(e) in the case of any such Options which expire by their
terms not more than 30 days after the date of issue, sale, grant or
assumption thereof, no adjustment of the Exercise Price shall be
made until the expiration or exercise of all such Options,
whereupon such adjustment shall be made in the manner provided in
subdivision (c) above.
7.3 Treatment of Stock Dividends, Stock Splits, etc. In case
the Company at any time or from time to time after the date hereof shall
declare or pay any dividend on the Common Stock payable in Common Stock, or
shall effect a subdivision of the outstanding shares of Common Stock into a
greater number of shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in Common Stock), then, and in each such
case, Additional Shares of Common Stock shall be deemed to have been issued
(a) in the case of any such dividend, immediately after the close of
business on the record date for the determination of holders of any class
of securities entitled to receive such dividend, or (b) in the case of any
such subdivision, at the close of business on the day immediately prior to
the day upon which such corporate action becomes effective.
7.4 Underwriting Discounts. For the purposes of this Section
7, there shall be no adjustment to the Exercise Price of any Warrant
pursuant to this Section 7 if Additional Shares of Common Stock are issued
to an underwriter at less than current market value due to the application
of ordinary and customary underwriting discounts.
7.5 Computation of Consideration. For the purposes of this
Section 7,
(a) the consideration for the issue or sale of any
Additional Shares of Common Stock shall, irrespective of the
accounting treatment of such consideration,
(i) insofar as it consists of cash, be computed at
the net amount of cash received by the Company,
(ii) insofar as it consists of property (including
securities) other than cash, be computed at the fair value
thereof at the time of such issue or sale, as determined in
good faith by the Board of Directors of the Company, and
(iii) in case Additional Shares of Common Stock are
issued or sold together with other stock or securities or
other assets of the Company for a consideration which covers
both, be the portion of such consideration so received,
computed as provided in clauses (i) and (ii) above,
allocable to such Additional Shares of Common Stock, all as
determined in good faith by the Board of Directors of the
Company;
(b) Additional Shares of Common Stock deemed to have been
issued pursuant to Section 7.2, relating to Options and Convertible
Securities, shall be deemed to have been issued for a consideration
per share determined by dividing
(i) the total amount, if any, received and receivable
by the Company as consideration for the issue, sale, grant
or assumption of the Options or Convertible Securities in
question, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein
for a subsequent adjustment of such consideration to protect
against dilution) payable to the Company upon the exercise
in full of such Options or the conversion or exchange of
such Convertible Securities or, in the case of Options for
Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of
such Convertible Securities, in each case computing such
consideration as provided in the foregoing subdivision (a),
by
(ii) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent
adjustment of such number to protect against dilution)
issuable upon the exercise of such Options or the conversion
or exchange of such Convertible Securities; and
(c) Additional Shares of Common Stock deemed to have been
issued pursuant to Section 7.3, relating to stock dividends, stock
splits, etc., shall be deemed to have been issued for no
consideration.
7.6 Adjustments for Combinations, etc. In case the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common
Stock, the Exercise Price in effect immediately prior to such combination
or consolidation shall, concurrently with the effectiveness of such
combination or consolidation, be proportionately increased.
7.7 Dilution in Case of Other Securities. In case any Other
Securities shall be issued or sold or shall become subject to issue or sale
upon the conversion or exchange of any stock (or Other Securities) of the
Company or to subscription, purchase or other acquisition pursuant to any
Options issued or granted by the Company (or any such other issuer or
Person) for a consideration such as to dilute, on a basis consistent with
the standards established in the other provisions of this Section 7, the
purchase rights granted by this Agreement, then, and in each such case, the
computations, adjustments and readjustments provided for in this Section 7
with respect to the Exercise Price shall be made as nearly as possible in
the manner so provided and applied to determine the amount of Other
Securities from time to time receivable upon the exercise of the Warrants,
so as to protect the Holders of the Warrants against the effect of such
dilution.
7.8 Other Dilutive Events. In case any event shall occur as
to which the provisions of this Section 7 are not strictly applicable but
the failure to make any adjustment would not fairly protect the purchase
rights represented by this Agreement in accordance with the essential
intent and principles of such Section, then, in each such case, the Company
shall appoint a firm of independent certified public accountants of
recognized national standing (which may be the regular auditors of the
Company), which shall give their opinion upon the adjustment, if any, on a
basis consistent with the essential intent and principles established in
this Section 7, necessary to preserve, without dilution, the purchase
rights represented by each Warrant. Upon receipt of such opinion, the
Company will promptly mail a copy thereof to the Holder of each Warrant and
shall make the adjustments described therein.
7.9 Minimum Adjustment of Exercise Price. If the amount of
any adjustment of the Exercise Price required pursuant to this Section 7
would be less than one tenth (1/10) of one percent (1%) of the Exercise
Price in effect at the time such adjustment is otherwise so required to be
made, such amount shall be carried forward and adjustment with respect
thereto made at the time of and together with any subsequent adjustment
which, together with such amount and any other amount or amounts so carried
forward, shall aggregate at least one tenth (1/10) of one percent (1%) of
such Exercise Price.
7.10 Notice of Adjustment. Whenever the number of shares of
Common Stock issuable upon the exercise of a Warrant is adjusted, as herein
provided, the Company shall mail by first class mail, postage prepaid, to
each Holder, notice of such adjustment or adjustments setting forth the
number of shares of Common Stock or other stock or property issuable upon
the exercise of each Warrant after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Notwithstanding the
foregoing, the Company's failure to send notice to each Holder pursuant to
this Section 7.10 shall under no circumstances be interpreted to mean that
an adjustment is not required.
7.11 Statement on Warrants. Irrespective of any adjustment
in the number or kind of shares issuable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
7.12 Fractional Interest. The Company shall not be required
to issue fractional shares of Common Stock on the exercise of Warrants. If
more than one Warrant shall be presented for exercise in full at the same
time by the same Holder, the number of full shares of Common Stock which
shall be issuable upon such exercise thereof shall be computed on the basis
of the aggregate number of shares of Common Stock acquirable on exercise of
the Warrants so presented. If any fraction of a share of Common Stock
would, except for the provisions of this Section, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall
pay an amount in cash calculated by it to be equal to the Fair Market Value
per Share, multiplied by such fraction computed to the nearest whole cent.
8. CONSOLIDATION, MERGER, ETC.
8.1 Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. In case the Company after the date hereof (a) shall
consolidate with or merge into any other Person and shall not be the
continuing or surviving corporation of such consolidation or merger, or (b)
shall permit any other Person to consolidate with or merge into the Company
and the Company shall be the continuing or surviving Person but, in
connection with such consolidation or merger, the Common Stock or Other
Securities shall be changed into or exchanged for stock or other securities
of any other Person or cash or any other property, or (c) shall transfer
all or substantially all of its properties or assets to any other Person,
or (d) shall effect a capital reorganization or reclassification of the
Common Stock or Other Securities (other than a capital reorganization or
reclassification resulting in the issue of Additional Shares of Common
Stock for which adjustment in the Warrant Price is provided in Section
7.1.1 or 7.1.2), then, and in the case of each such transaction, proper
provision shall be made so that, upon the basis and the terms and in the
manner provided in this Agreement, the Holder of a Warrant, upon the
exercise thereof at any time after the consummation of such transaction,
shall be entitled to receive (at the aggregate Exercise Price in effect at
the time of such consummation for all Common Stock or Other Securities
issuable upon such exercise immediately prior to such consummation), in
lieu of the Common Stock or Other Securities issuable upon such exercise
prior to such consummation, the stock and other securities, cash and
property to which such Holder would have been entitled upon such
consummation if such Holder had exercised the rights represented by this
Warrant immediately prior thereto, subject to adjustments (subsequent to
such corporate action) as nearly equivalent as possible to the adjustments
provided for in Section 7 and this Section 8.
8.2 Assumption of Obligations. Notwithstanding anything
contained in the Warrants or in the Investment Agreement to the contrary,
the Company will not effect any of the transactions described in clauses
(a) through (d) of Section 8.1 unless, prior to the consummation thereof,
each Person (other than the Company) which may be required to deliver any
stock, securities, cash or property upon the exercise of a Warrant as
provided herein shall assume, by written instrument delivered to, and
reasonably satisfactory to, the Holder of such Warrant, (a) the obligations
of the Company under the Warrant (and if the Company shall survive the
consummation of such transaction, such assumption shall be in addition to,
and shall not release the Company from, any continuing obligations of the
Company under the Warrant) and (b) the obligation to deliver to such Holder
such shares of stock, securities, cash or property as, in accordance with
the foregoing provisions of this Section 8, such Holder may be entitled to
receive, and such Person shall have similarly delivered to such Holder an
opinion of counsel for such Person, which counsel shall be reasonably
satisfactory to such Holder, stating that this Agreement shall thereafter
continue in full force and effect and the terms hereof (including, without
limitation, all of the provisions of this Section 8) shall be applicable to
the stock, securities, cash or property which such Person may be required
to deliver upon any exercise of a Warrant or the exercise of any rights
pursuant thereto.
8.3 Other Dilutive Events. In case any event shall occur as
to which the provisions of this Section 8 are not strictly applicable but
the failure to make any adjustment would not fairly protect the purchase
rights represented by this Agreement in accordance with the essential
intent and principles of such Section, then, in each such case, the Company
shall appoint an investment banking firm of recognized national standing
(which may be the regular auditors of the Company), which shall give their
opinion upon the adjustment, if any, on a basis consistent with the
essential intent and principles established in this Section 8, necessary to
preserve, without dilution, the purchase rights represented by this
Agreement. Upon receipt of such opinion, the Company will promptly mail a
copy thereof to the Holder and shall make the adjustments described
therein.
9. WARRANT TRANSFER BOOKS.
The Warrant Certificates shall be issued in registered form
only. The Company shall keep a register at its office in which, subject to
such reasonable regulations as it may prescribe, it shall provide for the
registration of Warrant Certificates and of transfers or exchanges of
Warrant Certificates as herein provided. At the option of the Holder,
Warrant Certificates may be exchanged at such office, and upon payment of
the charges hereinafter provided. Whenever any Warrant Certificates are so
surrendered for exchange, the Company shall execute the Warrant
Certificates that the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificates surrendered for such
registration of transfer or exchange. Every Warrant Certificate surrendered
for registration of transfer or exchange shall (if so required by the
Company) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and duly executed by the
Holder thereof or his attorney duly authorized in writing. No service
charge shall be made for any registration of transfer or exchange of
Warrant Certificates. The Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Warrant
Certificates. Any Warrant Certificate when duly endorsed in blank shall be
deemed negotiable and when a Warrant Certificate shall have been so
endorsed, the Holder thereof may be treated by the Company and all other
persons dealing therewith as the absolute owner thereof for any purpose and
as the Person entitled to exercise the rights represented thereby, or to
the transfer thereof on the register of the Company, any notice to the
contrary notwithstanding; but until such transfer on such register, the
Company may treat the registered Holder thereof as the owner for all
purposes.
10. WARRANT HOLDERS.
10.1 No Voting Rights. Prior to the exercise of the
Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to
any rights of a stockholder of the Company, including, without limitation,
the right to vote, to consent, to exercise any preemptive right, to receive
any notice of meetings of shareholders for the election of directors of the
Company or any other matter or to receive any notice of any proceedings of
the Company, except as may be specifically provided for herein.
10.2 Right of Action. All rights of action in respect of
this Agreement are vested in the Holders of the Warrants, and any Holder of
any Warrant, without the consent of the Holder of any other Warrant, may,
in such Holder's own behalf and for such Holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, such Holder's
right to exercise, exchange or tender for purchase such Holder's Warrants
in the manner provided in this Agreement.
11. COVENANTS.
11.1 Reservation of shares of Common Stock. The Company
covenants that it will at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued shares of Common
Stock, solely for the purpose of issuing upon exercise of Warrants as
herein provided, such number of shares of voting Common Stock or non-voting
Common Stock as shall then be issuable upon the exercise of all outstanding
Warrants. The Company covenants that all shares of Common Stock which shall
be so issuable shall, upon such issue, be duly and validly issued and fully
paid and nonassessable.
11.2 Determinations by Board of Directors. All
determinations by the Board of Directors of the Company under the
provisions of this Agreement shall be made in good faith with due regard to
the interests of the Holder of a Warrant, and in accordance
with good financial practice.
12. MISCELLANEOUS.
12.1 Payment of Taxes. The Company shall pay all issuance or
transfer taxes and similar governmental charges that may be imposed on the
Company in connection with the issuance of the Warrants or any securities
deliverable upon exercise of Warrants with respect thereto. The Company
shall not be required, however, to pay any tax or other governmental charge
imposed in connection with any transfer involved in the issue of any
certificate for Underlying Shares or payment of cash to any Person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or
governmental charge has been paid or it has been established to the
Company's satisfaction that no such tax or other governmental charge is
due.
12.2 Surrender of Certificates. Any Warrant Certificate
surrendered for exercise shall be delivered to the Company, promptly
cancelled and not reissued by the Company. The Company shall destroy such
cancelled Warrant Certificates.
12.3 Mutilated, Destroyed, Lost and Stolen Warrant
Certificates.
(a) If (i) any mutilated Warrant Certificate is surrendered
to the Company or (ii) the Company receives evidence to its satisfaction of
the destruction, loss or theft of any Warrant Certificate, and there is
delivered to the Company such security or indemnity as may be required by
it to save it harmless, then, in the absence of notice to the Company that
such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, in exchange for any such mutilated Warrant
Certificate or in lieu of any such destroyed, lost or stolen Warrant
Certificate, a new Warrant Certificate of like tenor and for a like
aggregate number of Warrants.
(b) Upon the issuance of any new Warrant Certificate under
this Section 12.3. the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto and other expenses (including the reasonable fees and
expenses of counsel to the Company) in connection therewith.
(c) Every new Warrant Certificate executed and delivered
pursuant to this Section 12.3 in lieu of any destroyed, lost or stolen
Warrant Certificate shall constitute an original contractual obligation of
the Company, whether or not the destroyed, lost or stolen Warrant
Certificate shall be at any time enforceable by anyone, and shall be
entitled to the benefits of this Agreement equally and proportionately with
any and all other Warrant Certificates duly executed and delivered
hereunder.
(d) The provisions of this Section 12.3 are exclusive and
shall preclude (to the extent lawful) all other rights or remedies with
respect to the replacement of mutilated, destroyed, lost or stolen Warrant
Certificates.
12.4 Notices. All notices and other communications necessary
or contemplated under this Agreement shall be in writing and shall be
delivered in the manner specified herein. All notices shall be deemed to
have been duly given upon confirmation by telecopy if delivered by telecopy
or by hand, or one day after sending by overnight delivery service, or five
days after sending by certified mail, postage prepaid, return receipt
requested to the respective addresses of the parties set forth below:
Notice to the Company shall be addressed as follows:
Livent Inc.
Xxxxx 000
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx and
Xxxxx X. Xxxxxxxx
with a copy to:
Shearman & Sterling
Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
P.O. Box 247, Suite 4405
Toronto, Ontario
Canada X0X 0X0
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
Notices to Xxxxxx shall be addressed as follows:
x/x Xxxxxxx, Xxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
with a courtesy copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
X.X.X.
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
By notice complying with the foregoing provisions of this Section 12.4,
each party shall have the right to change the notice address for future
notices and communications to such party.
12.5 Applicable Law. This Agreement and each Warrant issued
hereunder and all rights arising hereunder shall be governed by the laws of
the State of New York without regard to principles of conflicts of law.
12.6 Obligations under Investment Agreement. Nothing in this
Agreement shall be deemed to modify any of the Company's obligations under
the Investment Agreement.
12.7 Currency. All amounts are in U.S. dollars unless
otherwise noted.
12.8 Persons Benefitting. This Agreement shall be binding
upon and inure to the benefit of the Company and its respective successors,
assigns, beneficiaries, executors and administrators, and the Holders from
time to time of the Warrants. Nothing in this Agreement is intended or
shall be construed to confer upon any Person, other than the Company and
the Holders of the Warrants, any right, remedy or claim under or by reason
of this Agreement or any part hereof.
12.9 Costs and Expenses. Any costs and expenses incurred in
connection with services provided by any (i) independent public accountant
pursuant to section 7.8 of this Agreement or (ii) investment banking firm
pursuant to sections 7.1, 7.2 and 8.3 of this Agreement, shall be borne by
the parties hereto in equal amounts.
12.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all
of which together constitute one and the same instrument.
12.11 Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience and shall not
control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duty executed, as of the day and year first above written.
LIVENT INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and
Chief Executive Officer
By: /s/ Xxx X. Xxxxxx
------------------------------
Xxx X. Xxxxxx
EXHIBIT A
FORM OF FACE OF WARRANT CERTIFICATE
SERIES A
WARRANTS TO PURCHASE SHARES
OF LIVENT INC. COMMON STOCK
No. 1 Certificate for 80,000 Warrants
This certifies that Xxx X. Xxxxxx, or registered assigns, is
the registered holder of the number of Warrants set forth above. Each
Warrant entitles the holder thereof (a "Holder"), subject to the provisions
contained herein and in the Warrant Agreement referred to below, to receive
from Livent Inc., an Ontario corporation (the "Company"), one common share
("Common Share") of the Company ("Shares"), at the exercise price (the
"Exercise Price") of US$9.00 per share, subject to adjustment upon the
occurrence of certain events.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement, dated as of June 12th, 1998 (the "Warrant
Agreement"), between the Company and Xxxxxx as named therein, and is
subject to the terms and provisions contained in the Warrant Agreement, to
all of which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Warrant Agreement is hereby incorporated
herein by reference and made a part hereof. Reference is hereby made to the
Warrant Agreement for a full statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company and the Holders of the Warrants.
The Warrants represented by this Warrant Certificate shall
be exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of Shares issuable upon
the exercise of each Warrant are subject to adjustment as provided in the
Warrant Agreement.
All Shares issuable by the Company upon the exercise of
Warrants shall, upon such issue, be duly and validly issued and fully paid
and nonassessable.
In order to exercise a Warrant, the registered holder hereof
must surrender this Warrant Certificate at the office of the Company, with
the Exercise Subscription Form on the reverse hereof duly executed by the
Holder hereof, with signature guaranteed as therein specified, together
with any required payment in full of the Exercise Price then in effect for
the Underlying Shares as to which the Warrant(s) represented by this
Warrant Certificate are submitted for exercise, all subject to the terms
and conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and
similar governmental charges that may be imposed on the Company in
connection with the issuance of the Warrants or any securities deliverable
upon exercise of Warrants. The Company shall not be required, however, to
pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Underlying Shares or payment
of cash to any person other than the Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and in case of such transfer or
payment, the Company shall not be required to issue any stock certificate
or pay any cash until such tax or other charge has been paid or it has been
established to the Company's satisfaction that no such tax or other charge
is due.
Subject to compliance with the Warrant Agreement, this
Warrant Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the
Company, upon surrender of this Warrant Certificate for registration of
transfer at the office of the Company, duly endorsed by, or accompanied by
a written instrument of transfer substantially in the form of the attached
Form of Assignment or otherwise in a form satisfactory to the Company duly
executed by, the Holder hereof or his attorney duly authorized in writing,
with signature guaranteed. Upon any partial transfer, the Company will
issue and deliver to such Holder a new Warrant Certificate or Certificates
with respect to any portion not so transferred.
No service charge shall be made for any registration of
transfer or exchange of the Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Each Holder of this Warrant Certificate by taking or holding
the same consents and agrees that this Warrant Certificate when duly
endorsed in blank shall be deemed negotiable and that when this Warrant
Certificate shall have been so endorsed, the Holder hereof may be treated
by the Company and all other Persons dealing with this Warrant Certificate
as the absolute owner hereof for any purpose and as the Person entitled to
exercise the rights represented hereby, or to the transfer hereof on the
register of the Company maintained by a Warrant agent, any notice to the
contrary notwithstanding, but until such transfer on such register, the
Company may treat the registered Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined
herein that are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
Dated: June __, 1998
LIVENT INC.
By:_____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and
Chief Executive Officer
FORM OF REVERSE OF SERIES A WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: LIVENT INC.
The undersigned irrevocably exercises ________ of the
Warrants for the acquisition of one Common Share (subject to adjustment),
no par value, (a "Share"), of Livent Inc. (the "Company"), for each Warrant
represented by the Warrant Certificate and herewith makes payment of $____
(such payment being in cash or by certified or official bank check payable
to the order of the Company), all at the Exercise Price and on the terms
and conditions specified in this Warrant Certificate and the Warrant
Agreement therein referred to, surrenders this Warrant Certificate and all
right, title and interest therein to the Company and directs that the
Shares deliverable upon the exercise of such Warrants be registered or
placed in the name and at the address specified below and delivered
thereto.
Date: ________________, ___
_______________________________(1)
(Signature of Owner)
_________________________________
(Xxxxxx Xxxxxxx)
_________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
__________________________________
_______________
(1) Signature must correspond with the name as written upon the face
of the within Warrant Certificate in every particular, without
alteration or enlargement or any change whatever, and must be
guaranteed by a financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
enclosed Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any
Warrants constituting a part of the Warrants evidenced by the enclosed
Warrant Certificate not being assigned hereby) all of the rights of the
undersigned under the enclosed Warrant Certificate, with respect to the
number of Warrants set forth below:
SOCIAL SECURITY
OR OTHER
IDENTIFYING
NAME OF NUMBER OF NAME OF
ASSIGNEES ADDRESS ASSIGNEE(S) WARRANTS
---------- ------- --------------- --------
and does hereby irrevocably constitute and appoint Livent Inc. the
undersigned's attorney to make such transfer on the books of Livent Inc.
maintained for that purpose, with full power of substitution in the
premises.
Date: _________________, ___
__________________________________(1)
(Signature of Owner)
____________________________________
(Xxxxxx Xxxxxxx)
___________________________________
(City) (State) (Zip Code)
SIGNATURE GUARANTEED BY:
__________________________________
______________
(1) The signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
EXHIBIT B
FORM OF FACE OF WARRANT CERTIFICATE
SERIES B
WARRANTS TO PURCHASE SHARES
OF LIVENT INC. COMMON STOCK
No. 1 Certificate for 80,000 Warrants
This certifies that Xxx X. Xxxxxx, or registered assigns, is
the registered holder of the number of Warrants set forth above. Each
Warrant entitles the holder thereof (a "Holder"), subject to the provisions
contained herein and in the Warrant Agreement referred to below, to receive
from Livent Inc., an Ontario corporation (the "Company"), one common share
("Common Share") of the Company ("Shares"), at the exercise price (the
"Exercise Price") of US$10.00 per share, subject to adjustment upon the
occurrence of certain events.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement, dated as of June 12th, 1998 (the "Warrant
Agreement"), between the Company and Xxxxxx as named therein, and is
subject to the terms and provisions contained in the Warrant Agreement, to
all of which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Warrant Agreement is hereby incorporated
herein by reference and made a part hereof. Reference is hereby made to the
Warrant Agreement for a full statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company and the Holders of the Warrants.
The Warrants represented by this Warrant Certificate shall
be exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of Shares issuable upon
the exercise of each Warrant are subject to adjustment as provided in the
Warrant Agreement.
All Shares issuable by the Company upon the exercise of
Warrants shall, upon such issue, be duly and validly issued and fully paid
and nonassessable.
In order to exercise a Warrant, the registered holder hereof
must surrender this Warrant Certificate at the office of the Company, with
the Exercise Subscription Form on the reverse hereof duly executed by the
Holder hereof, with signature guaranteed as therein specified, together
with any required payment in full of the Exercise Price then in effect for
the Underlying Shares as to which the Warrant(s) represented by this
Warrant Certificate are submitted for exercise, all subject to the terms
and conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and
similar governmental charges that may be imposed on the Company in
connection with the issuance of the Warrants or any securities deliverable
upon exercise of Warrants. The Company shall not be required, however, to
pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Underlying Shares or payment
of cash to any person other than the Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and in case of such transfer or
payment, the Company shall not be required to issue any stock certificate
or pay any cash until such tax or other charge has been paid or it has been
established to the Company's satisfaction that no such tax or other charge
is due.
Subject to compliance with the Warrant Agreement, this
Warrant Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the
Company, upon surrender of this Warrant Certificate for registration of
transfer at the office of the Company, duly endorsed by, or accompanied by
a written instrument of transfer substantially in the form of the attached
Form of Assignment or otherwise in a form satisfactory to the Company duly
executed by, the Holder hereof or his attorney duly authorized in writing,
with signature guaranteed. Upon any partial transfer, the Company will
issue and deliver to such Holder a new Warrant Certificate or Certificates
with respect to any portion not so transferred.
No service charge shall be made for any registration of
transfer or exchange of the Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Each Holder of this Warrant Certificate by taking or holding
the same consents and agrees that this Warrant Certificate when duly
endorsed in blank shall be deemed negotiable and that when this Warrant
Certificate shall have been so endorsed, the Holder hereof may be treated
by the Company and all other Persons dealing with this Warrant Certificate
as the absolute owner hereof for any purpose and as the Person entitled to
exercise the rights represented hereby, or to the transfer hereof on the
register of the Company maintained by a Warrant agent, any notice to the
contrary notwithstanding, but until such transfer on such register, the
Company may treat the registered Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined
herein that are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
Dated: June ___, 1998
LIVENT INC.
By:_____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and
Chief Executive Officer
FORM OF REVERSE OF SERIES B WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: LIVENT INC.
The undersigned irrevocably exercises __________ of the
Warrants for the acquisition of one Common Share (subject to adjustment),
no par value, (a "Share"), of Livent Inc. (the "Company"), for each Warrant
represented by the Warrant Certificate and herewith makes payment of $____
(such payment being in cash or by certified or official bank check payable
to the order of the Company), all at the Exercise Price and on the terms
and conditions specified in this Warrant Certificate and the Warrant
Agreement therein referred to, surrenders this Warrant Certificate and all
right, title and interest therein to the Company and directs that the
Shares deliverable upon the exercise of such Warrants be registered or
placed in the name and at the address specified below and delivered
thereto.
Date: ________________, __
_______________________________(1)
(Signature of Owner)
_______________________________
(Xxxxxx Xxxxxxx)
________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
________________________________
___________
(1) Signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular,
without alteration or enlargement or any change whatever, and must
be guaranteed by a financial institution satisfactory to the
Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
enclosed Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any
Warrants constituting a part of the Warrants evidenced by the enclosed
Warrant Certificate not being assigned hereby) all of the rights of the
undersigned under the enclosed Warrant Certificate, with respect to the
number of Warrants set forth below:
SOCIAL SECURITY
OR OTHER
IDENTIFYING
NAME OF NUMBER OF NAME OF
ASSIGNEES ADDRESS ASSIGNEE(S) WARRANTS
--------- ------- --------------- --------
and does hereby irrevocably constitute and appoint Livent Inc. the
undersigned's attorney to make such transfer on the books of Livent Inc.
maintained for that purpose, with full power of substitution in the
premises.
Date: _________________, __
________________________(1)
(Signature of Owner)
__________________________
(Xxxxxx Xxxxxxx)
___________________________
(City) (State) (Zip Code)
SIGNATURE GUARANTEED BY:
_____________________________
_____________
(1) The signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.