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EXHIBIT 4.4
XXXXXX INDUSTRIES, INC.
Form of Warrant Agreement
[for warrants sold attached to equity securities](1)
THIS WARRANT AGREEMENT is dated as of ___________, _______
between Xxxxxx Industries, Inc., a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation), and ___________, as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [title of Equity
Securities being offered] (the "Offered Securities") with warrant certificates
evidencing one or more warrants (the "Warrants" or, individually, a "Warrant")
representing the right to purchase [title of Equity Securities purchasable
through exercise of Warrants] (the "Warrant Securities"), such warrant
certificates and other warrant certificates issued pursuant to this Agreement
being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
Issuance of Warrants and Execution and
Delivery of Warrant Certificates.
Section 1.1. Issuance of Warrants. Warrants shall be initially
issued in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after __________ (the "Detachable Date")] [and
shall not be separately transferable] and each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
Warrant Securities. Warrant Certificates shall be initially issued in units
with the Offering Securities and each Warrant Certificate included in such a
unit shall evidence _____ Warrants for Offered Securities included in such
unit.
__________________________________
(1)Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants and Warrant Securities.
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Section 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered (2)form
substantially in the form set forth in Exhibit A hereto, shall be dated the
date of its issuance and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
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 made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, its President,
one of its Vice Presidents, its Treasurer or one of its Assistant Treasurers
under its corporate seal and attested by its Secretary or one of its Assistant
Secretaries. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose. [If Offered Securities with Warrants which are not immediately
detachable - or upon the register of the Offered Securities prior to the
Detachable Date. The Company will or will cause the registrar of the Offered
Securities to make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date.]
Section 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase Warrant Securities (except as
provided in Sections 2.3(c), 3.2 and 4.1) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
__________________________________
(2)If Warrants are issued in bearer form, appropriate revisions will be made to
this Agreement to facilitate such issuance.
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Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
____________ Warrant Securities and shall deliver such Warrant Certificates to
or upon the order of the Company. Subsequent to such original issuance of the
Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate
only if the Warrant Certificate is issued in exchange or substitution for one
or more previously countersigned Warrant Certificates or in connection with
their transfer, as hereinafter provided or as provided in Section 2.3(c).
ARTICLE II.
Warrant Price, Duration and Exercise of Warrants.
Section 2.1. Warrant Price. [On ___________, the] [The
original] exercise price of each Warrant is [$]____. [During the period from
_____________, through and including _____________, the exercise price of each
Warrant will be [$]___________. On _______________, the exercise price of each
Warrant will be [$]________.] [if applicable, insert relevant amounts in
applicable foreign currency, currency unit or composite currency] Such purchase
price of Warrant Securities is referred to in this Agreement as the "Warrant
Price." The Warrant Price and the number and kind of Warrant Securities for
which a Warrant may be exercised is subject to adjustment from time to time as
set forth in Article V hereof.
Section 2.2. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [_____________] and at or before 5 p.m. New York time on
______________ (the "Expiration Date"). Each Warrant not exercised at or before
5 p.m. New York time on the Expiration Date shall become void, and all rights
of the holder of the Warrant Certificate evidencing such Warrant under this
Agreement shall cease.
Section 2.3. Exercise of Warrants. (a) During the period
specified in Section 2.2, any whole number of Warrants may be exercised by
providing certain information set forth on the reverse side of the Warrant
Certificate and by paying in full, [in lawful money of the United States of
America] [if applicable -- insert relevant foreign currency, currency unit or
composite currency] [in cash or by certified check or official bank check or by
bank wire transfer, in each case] [by bank wire transfer], in immediately
available funds, the Warrant Price for each Warrant exercised, to the Warrant
Agent at its corporate trust office [or at ________], provided that such
exercise is subject to receipt, within three business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate with the form
of election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date on which
payment in full of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the
date on which the Warrant is exercised. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in an account of the
Company maintained with it and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants
is received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
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(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant,
the Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such
holder is entitled in fully registered form, registered in such name or names
as may be directed by such holder. Such certificate or certificates evidencing
the Warrant Securities shall be deemed to have been issued and any persons who
are designated to be named therein shall be deemed to have become the holder of
record of such Warrant Securities as of the close of business on the exercise
date. No fractional Warrant Securities will be issued upon exercise of any
Warrant. For each fractional Warrant Security that would otherwise be issued,
the Company will pay by company check in an amount equal to such fraction
multiplied by the closing sales price of the Warrant Securities on the
principal national securities exchange on which they are listed (or if not so
listed, another equivalent means reasonably determined by the Company) on the
business day immediately preceding the exercise date. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities; and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III.
Other Provisions Relating to Rights of
Holders of Warrant Certificates.
Section 3.1. No Rights as Stockholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive dividends,
vote, receive notice of any meeting of stockholders or otherwise have any right
as a stockholder of the Company.
Section 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to it,
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and, in the case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant
Agent that such Warrant Certificate has been acquired by a bona fide purchaser,
the Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate
of the same tenor and evidencing a like number of Warrants. Upon the issuance
of any new Warrant Certificate under this Section, 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 any other expenses (including the fees
and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed 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. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
Section 3.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may in
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
ARTICLE IV.
Exchange and Transfer of Warrant Certificates.
Section 4.1. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants which are immediately detachable - Upon]
[If Offered Securities with Warrants which are not immediately detachable -
Prior to the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Offered Securities to which the Warrant
Certificate was initially attached and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Securities. Prior to
the Detachable Date, each transfer of the Offered Securities [on the register
of the Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date, upon] surrender at the corporate trust
office of the Warrant Agent [or at ________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. The
Warrant Agent shall keep, at its corporate trust office [and at _______ __]
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or at ____________] for exchange or
registration of transfer, properly
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endorsed or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result
in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or
a number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer 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 exchange or registration of transfer.
Section 4.2. Treatment of Holders of Warrant Certificates.
[If Warrants which are not immediately detachable - Every holder of a Warrant
Certificate, by accepting the same, consents and agrees with the Company, the
Warrant Agent and with every subsequent holder of such Warrant Certificate that
until the transfer of the Warrant Certificate is registered on the books of the
Warrant Agent [or the registrar of the Offered Securities prior to the
Detachable Date], the Company and the Warrant Agent [or the registrar of the
Offered Securities prior to the Detachable Date] may treat the registered
holder as the absolute owner thereof for any purpose and as the person entitled
to exercise the rights represented by the Warrants evidenced thereby, any
notice to the contrary notwithstanding.]
Section 4.3. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V.
Adjustments.
Section 5.1. Adjustment of Warrant Price and Number of Warrant
Securities Purchaseable.
(a) In case at any time the Company shall issue and sell for
cash any Warrant Securities (excluding (i) Warrant Securities issued
in any of the transactions described in
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paragraphs (b), (c) or (d) below and (ii) Warrant Securities issued
upon exercise of Warrants) at a price per Share lower than 15% below
the Market Price determined as of the date immediately preceding the
date of such sale and issuance, the Warrant Price in effect at the
close of business on the date immediately preceding the date of such
sale and issuance shall be reduced by multiplying such Warrant Price
by a fraction, (i) the numerator of which shall be the sum of (x) the
number of Warrant Securities outstanding at the close of business on
the date immediately preceding the date of such sale and issuance plus
(y) the number of Warrant Securities which the aggregate amount of
cash received or receivable for such sale and issuance would purchase
at such current Market Price per Warrant Security, and (ii) the
denominator of which shall be the total number of Warrant Securities
outstanding immediately after such sale and issuance. Such adjustment
shall be made successively whenever such an issuance is made.
(b) In case the Company shall pay or make a dividend or other
distribution on any class of stock of the Company in Warrant
Securities or securities convertible into or exchangeable for Warrant
Securities (such convertible or exchangeable stock or securities being
hereinafter called "Convertible Securities"), other than Convertible
Securities which require payments of cash to be made by the holder
thereof in connection with any conversion into or exchange for Warrant
Securities, the Warrant Price in effect at the close of business on
the day fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be reduced by
multiplying such Warrant Price by a fraction of which the numerator
shall be the number of Warrant Securities outstanding at the close of
business on the date immediately preceding the date fixed for such
determination and the denominator shall be the sum of such number of
Warrant Securities and the total number of Warrant Securities
constituting such dividend or other distribution or the maximum number
of Warrant Securities issuable upon conversion or exchange of all
Convertible Securities constituting such dividend or other
distribution.
(c) In case at any time the Company shall grant (whether
directly or otherwise) any rights (other than the Warrants and "poison
pill" rights distributed pursuant to a stockholders' rights plan) to
subscribe for or to purchase, or any options for the purchase of,
Warrant Securities or Convertible Securities, whether or not such
rights or options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the price per
Warrant Security for which Warrant Securities are issuable upon the
exercise of such rights or options or upon conversion or exchange of
such Convertible Securities (determined by dividing (x) the total
amount, if any, received or receivable by the Company as consideration
for the granting of such rights or options, plus the minimum aggregate
amount of additional consideration payable to the Company upon the
exercise of all such rights or options, or, in the case of such rights
or options which relate to Convertible Securities, the total amount,
if any, received or receivable by the Company as consideration for the
granting of such rights or options, plus the minimum aggregate amount
of additional consideration, if any, payable upon the issuance or sale
of such Convertible Securities and upon the conversion or exchange
thereof, by (y) the total maximum number of Warrant Securities
issuable upon the exercise of such rights or options or upon the
conversion or exchange of all such Convertible Securities issuable
upon the exercise of such rights or
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options) shall be less than the Market Price, determined as of the
date immediately preceding the date of granting such rights or
options, the Warrant Price in effect at the close of business on the
date immediately preceding the date of granting such rights or options
shall be adjusted by multiplying such Warrant Price by a fraction, (i)
the numerator of which shall be the sum of (x) the number of Warrant
Securities outstanding at the close of business on the date
immediately preceding the date of granting such rights or options plus
(y) the quotient obtained by dividing the product of the price per
Warrant Security, determined as set forth above, and the maximum
number of Warrant Securities issuable upon the exercise of such rights
or options or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such rights or options by the
Market Price and (ii) the denominator of which shall be the sum of the
number of Warrant Securities outstanding at the close of business on
the date immediately preceding the date of granting such rights or
options and the maximum number of Warrant Securities issuable upon the
exercise of such rights or options or upon the conversion or exchange
of all such Convertible Securities issuable upon the exercise of such
rights or options. Except as provided in this subparagraph (c), no
further adjustments of the Warrant Price shall be made upon the
issuance of such Warrant Securities or of such Convertible Securities
upon exercise of such rights or options or upon the actual issuance of
such Warrant Securities upon conversion or exchange of such
Convertible Securities.
(d) In case the Company shall issue (whether directly or by
assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per Warrant
Security for which Warrant Securities are issuable upon such
conversion or exchange (determined by dividing (x) the total amount
received or receivable by the Company as consideration for the issue
or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company
upon the conversion or exchange thereof, by (y) the total maximum
number of Warrant Securities issuable upon the conversion or exchange
of all such Convertible Securities) shall be less than the Market
Price, determined as of the date immediately preceding the date of
such issuance or sale of such Convertible Securities, then the Warrant
Price in effect at the close of business on the date immediately
preceding the date of issuance or sale of such Convertible Securities
shall be adjusted by multiplying such Warrant Price by a fraction, (i)
the numerator of which shall be the sum of (x) the number of Warrant
Securities outstanding at the close of business on the date
immediately preceding the date of issuance or sale of such Convertible
Securities plus (y) the quotient obtained by dividing the product of
the price per Warrant Security, determined as set forth above, and the
maximum number of Warrant Securities issuable upon conversion or
exchange of all such Convertible Securities by the Market Price and
(ii) the denominator of which shall be the sum of the number of
Warrant Securities outstanding at the close of business on the date
immediately preceding the date of issuance or sale of such Convertible
Securities and such maximum number of Warrant Securities issuable upon
conversion or exchange, provided that (1) except as provided in
subparagraph (e), no further adjustments of the Warrant Price shall be
made upon the actual issuance of such Warrant Securities upon
conversion or exchange of such Convertible Securities, and (2) if any
such issuance or sale of such Convertible Securities is made upon
exercise of any rights to subscribe for or to
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purchase or any option to purchase any such Convertible Securities for
which adjustments of the Warrant Price have been or are to be made
pursuant to subparagraph (c) or the other provisions of this
subparagraph (d), no further adjustments of the Warrant Price shall be
made by reason of such issuance or sale.
(e) If (x) the purchase price provided for in any rights or
options referred to in subparagraph (c), or (y) the additional
consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in subparagraphs (c) and/or (d), or
(z) the rate at which any Convertible Securities referred to in
subparagraphs (c) and/or (d) are convertible into or exchangeable for
Warrant Securities shall change (other than under or by reason of
provisions contained in the instruments governing such rights, options
or Convertible Securities that are designed to protect against
dilution), the Warrant Price in effect at the close of business on the
date of such event shall forthwith be adjusted to the Warrant Price
which would have been in effect at such time had such rights, options
or Convertible Securities still outstanding provided for such changed
purchase price, additional consideration or conversion rate, as the
case may be, at the time initially granted, issued or sold. On the
expiration of any such option or right or the termination of any such
right to convert or exchange such Convertible Securities, the Warrant
Price in effect at the close of business on the date of expiration or
termination shall be readjusted to the Warrant Price which would have
been in effect at such time had such right, option or Convertible
Securities, to the extent outstanding immediately prior to the date of
such expiration or termination, never been granted, issued or sold.
(f) In case the Company shall, by dividend or otherwise,
declare a dividend or other distribution on its Warrant Securities
payable in evidences of its indebtedness or assets (including
securities, but excluding (i) any rights or options referred to in
subparagraph (c) of this Section, (ii) any dividend or distribution
paid in cash out of consolidated retained earnings or consolidated
earned surplus, determined in accordance with generally accepted
accounting principles, including the making of appropriate deductions
for minority interests, if any, in subsidiaries, and (iii) any
dividend or distribution otherwise paid in Warrant Securities or
Convertible Securities), the Warrant Price in effect at the close of
business on the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be
adjusted so that the same shall equal the price determined by
multiplying the Warrant Price in effect at the close of business on
the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution by a fraction of which the
numerator shall be the current Market Price per Warrant Security on
the date fixed for such determination less the then fair market value
(as determined by the board of directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Warrant
Agent) of the portion of the assets or evidences of indebtedness so
distributed applicable to one share and of which the denominator shall
be such current Market Price per share.
(g) In case the Company shall at any time subdivide its
outstanding Warrant Securities into a greater number of Warrant
Securities, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case
the outstanding Warrant Securities shall be combined into a smaller
number of Warrant
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Securities, the Warrant Price in effect immediately prior to such
combination shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately upon the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(h) In case of any consolidation of the Company with, or
merger of the Company into, any other corporation or other entity, or
in case of any merger of another corporation or other entity into the
Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
Warrant Securities), or in case of any sale or transfer of all or
substantially all of the assets of the Company, or in the case of a
capital reorganization or recapitalization of the capital stock of the
Company in such a way that holders of Warrant Securities shall be able
to receive securities, cash or assets with respect to or in exchange
for such Warrant Securities from the corporation or other entity
formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, or from the Company, in the
case of a capital reorganization or recapitalization not involving a
consolidation, merger or sale or transfer of all or substantially all
of the assets of the Company, such corporation or other entity or the
Company, as the case may be, and the Warrant Agent shall execute and
deliver an amendment to this Agreement providing that the holder of
each Warrant then outstanding shall have the right thereafter, during
the period such Warrant shall be exercisable, to exercise such Warrant
only for the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale, transfer, capital
reorganization or recapitalization by a holder of the number of
Warrant Securities for which such Warrant might have been exercised on
the date immediately prior to such consolidation, merger, sale,
transfer, capital reorganization or recapitalization, assuming such
holder of Warrant Securities failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale,
transfer, capital reorganization or recapitalization (provided that if
the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale, transfer, capital
reorganization or recapitalization is not the same for each Warrant
Security in respect of which such rights of election shall not have
been exercised (the "Non-electing Warrant Securities"), then, for the
purpose of this subparagraph (h), the kind and amount of securities,
cash and other property receivable upon such consolidation, merger,
sale, transfer, capital reorganization or recapitalization by each
Non- electing Warrant Security shall be deemed to be the kind and
amount so receivable per Warrant Security by a plurality of the
Non-electing Warrant Securities).
Such amendment shall provide for adjustments which, for events
subsequent to the effective date of such amendment, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article V. The above provisions of this paragraph shall similarly apply to
successive consolidations, mergers, sales, transfers, capital reorganizations
or recapitalization.
The Company shall not effect any such consolidation, merger,
sale or transfer, unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than
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the Company) resulting from such consolidation or merger or the corporation
purchasing or otherwise acquiring such assets or other appropriate corporation
or entity shall assume, by written instrument executed and delivered to the
Warrant Agent, the obligation to deliver to the holder of each Warrant such
shares of stock, securities, cash or assets as, in accordance with the
foregoing provisions, such holders may be entitled to receive and the other
obligations under this Agreement.
(i) In case an adjustment in the Warrant Price shall be
required by Section 5.1 (a), (b), (c), (d) and/or (f) above, the
required adjustment shall become effective at the opening of business
on (i) the Business Day immediately following the date fixed for the
determination of shareholders of the Company entitled to receive such
dividend or distribution, in the case of any adjustment pursuant to
Section 12(b) or (f), or (ii) the Business Day immediately following
the date of such sale and issuance or the date of such grating of such
rights or options, as the case may be, in the case of an adjustment
pursuant to section 5.1 (a), (c) or (d).
(j) For the purposes of this Article V the number of Warrant
Securities outstanding at any given time shall not include Warrant
Securities owned or held by or for the account of the Company or of
any of its wholly or majority owned subsidiaries.
(k) Upon each adjustment of the Warrant Price pursuant to this
Section 5.1, each Warrant outstanding at the time of and immediately
prior to such adjustment shall give the holder thereof the right to
purchase, at the Warrant Price resulting from such adjustment, the
number of Warrant Securities obtained by multiplying the Warrant Price
in effect immediately prior to such adjustment by the number of
Warrant Securities issuable upon exercise of such Warrant immediately
prior to such adjustment and dividing the product thereof by the
Warrant Price resulting from such adjustment.
(l) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at
least one percent in such Warrant Price; provided, however, that any
one or more such adjustments which, by reason of this subparagraph (l)
is not required to be made shall be carried forward on a cumulative
basis and fully taken into account in any subsequent adjustment. All
calculations under this Section 5.1 shall be made to the nearest cent
or to the nearest 1/100 of a Warranty Security, as the case may be.
The provisions of this Section 12(l) shall also apply to readjustments
provided for in subparagraph (e).
(m) The Company shall be obligated to issue any additional
Warrant Securities which become issuable upon exercise of Warrants as
a result of any event described in this Section 5.1 which requires an
adjustment in the Warrant Price and the number of Warrant Securities
issuable upon exercise of the Warrants.
(n) For purposes of this Section 5.1, "Market Price" means the
average of the closing prices per Warrant Security on the American
Stock Exchange or the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ"), as the case may be (or, if
there is no such closing price, the mean between the bid and asked
prices reported on
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12
American Stock Exchange or NASDAQ, or on any other national securities
exchange or over-the-counter market on which such quotations are
regularly available, as the case may be), on each of the ten trading
days immediately preceding the date as of which the determination of
Market Price is to be made. If at any time the Warrant Securities are
not listed on any national securities exchange or quoted in the
over-the-counter market, the Market Price shall be deemed to be the
fair value thereof determined in good faith by an independent
brokerage firm or Standard & Poor's Corp. as of a date which is within
15 days of the date as of which the determination of Market Price is
to be made.
(o) If the Company shall take any action affecting the Warrant
Securities, other than action described in this Section 5.1, which in
the opinion of the Board of Directors of the Company would materially
adversely affect the exercise rights of the holders of the Warrants,
the Warrant Price for the Warrants may be adjusted, to the extent
permitted by law, in such manner, if any, and at such time, as such
Board of Directors may determine in good faith to be equitable in the
circumstances. Failure of the Board of Directors of the Company to
provide for any such adjustment prior to the effective date of any
such action by the Company affecting the Warrant Securities shall be
evidence that the Board of Directors of the Company has determined
that it is equitable to make no adjustments in the circumstances.
Section 5.2. Voluntary Adjustment by the Company. The Company
may at its option, at any time during the term of the Warrants, reduce the then
current Warrant Price to any amount deemed appropriate by the Board of
Directors of the Company; provided, that, if the Company elects so to reduce
the then current Warrant Price, such reduction shall remain in effect for at
least 20 Business Days, after which time the Company may, at its option,
reinstate the Warrant Price in effect prior to such reduction.
Section 5.3. Notice of Adjustment. Whenever the Warrant Price
is adjusted as herein provided, the Chief Financial Officer of the Company
shall compute the adjusted Warrant Price in accordance with the foregoing
provisions and shall prepare a certificate setting forth such adjusted Warrant
Price and showing in reasonable detail the facts upon which such adjustment is
based. A copy of such certificate shall be filed promptly with the Warrant
Agent. Promptly after delivery of such certificate, the Company shall prepare a
notice of such adjustment of the Warrant Price setting forth the adjusted
Warrant Price and the date on which such adjustment becomes effective and shall
mail, or cause the Warrant Agent to mail at the Company's expense, such notice
of such adjustment of the Warrant Price to each holder of a Warrant at his last
address as shown on the Warrant Register.
Section 5.4. No Adjustment for Dividends. Except as provided
in Section 5.1 hereof, no adjustment in respect of any dividends or other
payments or distributions made to holders of securities issuable upon exercise
of Warrants shall be made during the term of a Warrant or upon the exercise of
a Warrant.
Section 5.5. Statement on Warrants Certificate. Irrespective
of any adjustments in the number or kind of securities purchasable upon the
exercise of the Warrants or the Warrant Securities,
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13
any Warrant Certificate theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in the
Warrant Certificate initially issuable pursuant to this Agreement.
Section 5.6. Warrant Agent's Adjustment Disclaimer. The
Warrant Agent has no duty to determine when an adjustment under this Article V
should be made, how it should be made or what it should be. The Warrant Agent
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon exercise of Warrants. The Warrant
Agent shall not be responsible for the Company's failure to comply with this
Article V.
ARTICLE VI.
Concerning the Warrant Agent
Section 6.1. Warrant Agent. The Company hereby appoints
__________, as Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the conditions herein set
forth; and _________ hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and
provisions hereof.
Section 6.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred
by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the
part of the Warrant Agent, arising out of or in connection with its
acting as Warrant Agent hereunder, as well as the costs and expenses
of defending against any claim of such liability.
(b) In acting under this Warrant Agreement and in connection
with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to
it, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action
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14
taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by
it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Warrant Securities or other obligations of the Company as freely as if
it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall have no liability for interest on
any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant Certificates.
(g) The Warrant Agent shall have no liability with respect to
any invalidity of this Agreement or any of the Warrant Certificates.
(h) The Warrant Agent shall not be responsible for any of the
recitals or representations herein or in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon), all of
which are made solely by the Company.
(i) The Warrant Agent shall be obligated to perform only such
duties as are herein and in the Warrant Certificates specifically set
forth and no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing,
any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.2,
to make any demand upon the Company.
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15
(j) The Warrant Agent is hereby authorized to obtain from time
to time from the present transfer agent for the Warrant Securities
(the "Transfer Agent"), and any successor Transfer Agent, stock
certificates required to honor outstanding Warrants. The Company
hereby authorizes its present and any successor Transfer Agent to
comply with all such requests. The Company will supply such Transfer
Agent with duly executed stock certificates for such purpose and will
provide or otherwise make available any cash which may be payable as
provided in Section 2.3 hereof, and the Warrant Agent shall not be
responsible for any delay or failure by such Transfer Agent in
supplying such stock certificates.
Section 6.3. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders of the Warrant Certificates,
that there shall at all times be a Warrant Agent hereunder until all the
Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become
effective; provided that such date shall not be less than three months
after the date on which such notice is given unless the Company
otherwise agrees. The Warrant Agent hereunder may be removed at any
time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect
upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company
authorized under the laws of the jurisdiction of its organization to
exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent. The obligation of the
Company under Section 6.3(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant
Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or shall file a petition seeking
relief under the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable Federal or State
bankruptcy law or similar law or make an assignment for the benefit of
its creditors or consent to the appointment of a receiver or custodian
of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be
entered for relief against it under the provisions of the Federal
Bankruptcy Code, as now constituted or hereafter amended, or under any
other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent
or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as
aforesaid, shall be appointed by the Company, by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment
as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall
cease to be Warrant Agent hereunder.
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16
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company
an instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive,
all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business of
the Warrant Agent, provided that it shall be qualified as aforesaid,
shall be the successor Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any
of the parties hereto.
ARTICLE VII.
Miscellaneous.
Section 7.1. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein, or
making any other provisions with respect to matters or questions arising under
this Agreement as the Company and the Warrant Agent may deem necessary or
desirable; provided, that such action shall not materially and adversely affect
the interests of the holders of the Warrant Certificates and, provided further,
that the Company and the Warrant Agent may amend this Agreement in any manner
prior to the issuance of any Warrants hereunder. With the consent of the
holders of not less than a majority in number of the then outstanding
unexercised Warrants affected, the Company and the Warrant Agent may modify or
amend any other term of this Agreement; provided, however, that no such
modification or amendment may be made without the consent of the holders
affected thereby if such proposed amendment would (i) shorten the period of
time during which the Warrants may be exercised; (ii) otherwise materially and
adversely affect the exercise rights of the holders of the Warrants; or (iii)
reduce the number of outstanding Warrants.
Section 7.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
Section 7.3. Addresses. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
____________, and any communication from
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the Warrant Agent to the Company with respect to this Agreement shall be
addressed to Xxxxxx Industries, Inc., 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: _______________ (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
Section 7. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by and
construed in accordance with, the laws of the State of New York, without giving
effect to the conflict of laws principles thereof.
Section 7.5. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with, the delivery of the Warrant Securities issued
upon such exercise, a Prospectus.
Section 7.6. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including, without limitation, a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933, as amended), which may be or become requisite in connection with the
issuance, sale, transfer, and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer, and delivery of the
Warrant Securities issued upon exercise of the Warrants or upon the expiration
of the period during which the Warrants are exercisable.
Section 7.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
Section 7.8. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 7.9. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
Section 7.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificates for inspection by it.
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18
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
affixed hereunto, and the same to be attested, all as of the day and year first
above written.
XXXXXX INDUSTRIES, INC.
By
----------------------------------
Attest:
----------------------------
[NAME OF WARRANT AGENT],
as Warrant Agent
By
----------------------------------
Attest:
----------------------------
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19
Exhibit A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
[Form of Legend of Warrants which are not immediately detachable: Prior to
______, this Warrant Certificate cannot be transferred or exchanged unless
attached to [Title of Offered Securities].]
Exercisable Only if Countersigned by the Warrant Agent as Provided Herein
XXXXXX INDUSTRIES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
Void After 5:00 P.M. New York Time on
[No.] Warrants
This certifies that ____________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after 5 p.m. New York time on
_________, and] on or before 5 p.m. New York time on _________, [Title of
Warrant Securities] (the "Warrant Securities"), of Xxxxxx Industries, Inc. (the
"Company"), on the following basis: [on _________, the exercise price of each
Warrant is [$] ; during the period from _____________, through and including
_______________, the exercise price of each Warrant will be [$] ________] . The
holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, [in lawful
money of the United States of America] [if applicable, express Warrant exercise
price in applicable foreign currency, currency unit or composite currency] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case] [by bank wire transfer], in immediately available funds, the Warrant
Price for each Warrant exercised to the Warrant Agent (as hereinafter defined)
and by surrendering this Warrant Certificate, with the purchase form on the
back hereof duly executed, at the corporate trust office of [name of Warrant
Agent], or its successors as warrant agent (the "Warrant Agent"), [or
______________] currently at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised. The
Company will not be required to issue fractional shares of Warrant Securities
upon exercise of the Warrants or distribute stock certificates that evidence
fractional shares of Warrant Securities. In lieu of fractional Warrant
Securities, there shall be paid by the Company to the registered holder of this
Warrant Certificate at the time such Warrant Certificate is exercised an amount
in cash payable by company
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check equal to the closing sales price of the Warrant Securities on the
American Stock Exchange (or if not so listed, another equivalent means
reasonably determined by the Company) on the business day immediately preceding
the exercise date, multiplied by such fraction.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ___________, (the "Warrant Agreement")
between the Company and the Warrant Agent 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. Copies of the Warrant Agreement and the form of Warrant Securities are
on file at the above-mentioned office of the Warrant Agent [and at ].
[If Offered Securities with Warrants which are not immediately
detachable - Prior to ___________ this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Securities. After such date, this [If Offered Securities with
Warrants which are immediately detachable - Transfer of this] Warrant
Certificate may be transferred when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or _____] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing,
in the manner and subject to the terms provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable - After]
countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing the
same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of Warrant Securities, including, without
limitation, the right to receive dividends, vote, receive notice of any meeting
of stockholders or otherwise have any right as a stockholder of the Company.
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This Warrant Certificate shall not be valid for any purpose
until countersigned by the Warrant Agent.
Dated as of .
----------------------------------------
XXXXXX INDUSTRIES, INC.
By
---------------------------------
Attest:
----------------------------
Countersigned
-------------------------------------
As Warrant Agent
By
----------------------------------
Authorized Signature
- 21 -
22
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
[in cash or by certified check or official bank check or by bank wire transfer]
[by bank wire transfer], in immediately available funds, the Warrant Price in
full for Warrants exercised to [insert name of Warrant Agent] Corporate Trust
Department [insert address of Warrant Agent], Attn: [or ], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below and present this Warrant Certificate in person or by mail
(registered mail is recommended) to the Warrant Agent at the addresses set
forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent within five business days of the [payment] [wire
transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise Warrants
evidenced by this Warrant Certificate, to purchase _______________ [Title of
Warrant Securities] (the "Warrant Securities") of Xxxxxx Industries, Inc. and
represents that he has tendered payment for such Warrant Securities [in cash or
by certified check or official bank check or by bank wire transfer, in each
case] [by bank wire transfer], in immediately available funds, to the order of
Xxxxxx Industries, Inc., c/o [insert name and address of Warrant Agent], in the
amount of [$]______________ [if applicable -- insert relevant amounts in
applicable foreign currency, currency unit or composite currency] in accordance
with the terms hereof]. The undersigned requests that said principal amount of
Warrant Securities be in fully registered form and in the authorized
denominations, registered in such names and delivered, all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated: Name -------------------------------
(Please Print)
----------------------------------
Address
----------------------------------
Social Security Number
of Holder
----------------------------------
Signature
The Warrants evidenced hereby may be exercised at the following addresses:
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By hand at
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
By mail at
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants--complete as
appropriate.]
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Assignment
(Form of Assignment to be Executed if Holder Desires
to Transfer Warrants Evidenced Hereby)
For value received______________hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address, including zip code of assignee, and Social
Security Number or other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution
in the premises.
Dated: ---------------------------------------
Signature
(Signature must conform in all respect
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee of a
commercial bank, trust company, or
member broker of the New York, American,
Midwest or Pacific Stock Exchange.)
Signature Guaranteed:
-----------------------------
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