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EXHIBIT C
FORM OF WARRANT AGREEMENT
THE WARRANT REPRESENTED HEREBY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933 OR APPLICABLE STATE SECURITIES LAWS, UNLESS THE COMPANY HAS RECEIVED THE
WRITTEN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH COUNSEL IS OF
THE OPINION THAT SUCH SALE, ASSIGNMENT OR TRANSFER DOES NOT INVOLVE A
TRANSACTION REQUIRING THE REGISTRATION OF SUCH SECURITY UNDER THE SECURITIES ACT
OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
RIGHT TO PURCHASE-SHARES OF COMMON STOCK
OF ACRODYNE COMMUNICATIONS, INC.
ACRODYNE COMMUNICATIONS, INC.
COMMON STOCK PURCHASE WARRANT
ACRODYNE COMMUNICATIONS, INC., a Delaware corporation (the
"Company"), having its principal executive offices at 000 Xxxxxxxx Xxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxxxx 00000, hereby certifies that, for value received, [
_______________ ]or assigns (the "Holder" or "Holders"), having its address at [
_______________ ], is entitled, subject to the terms set forth below, to
purchase from the Company at any time or from time to time before 5:00 P.M., New
York time, on August __, 2005, ____________ ( _________ ) fully paid and
nonassessable shares of Common Stock of the Company at an exercise price,
subject to adjustment, of Three Dollars ($3.00) per share (the "Purchase
Price").
I. EXERCISE OF WARRANT.
(a) Exercise. Commencing on the date of this Warrant, or from
time to time thereafter prior to the expiration hereof, this Warrant may be
exercised in whole or in part by the holder hereof by surrender of this Warrant,
with the form of subscription attached as Exhibit A hereto duly executed by such
holder, to the Company at its principal office, accompanied by payment, in cash
or by certified or official bank check payable to the order of the Company, in
the amount obtained by multiplying the number of shares of Common Stock for
which this Warrant is then exercisable by the Purchase Price then in effect.
(b) Trustee for Warrant Holders. In the event that a bank or
trust company has been appointed as trustee for the holder of this Warrant
pursuant to Section 3.2, such bank or trust company will have all the powers and
duties of a warrant agent appointed pursuant to Section II and will accept, in
its own name for the account of the Company or such successor person as may be
entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 1.
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2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within (ten) 10 days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof, or as such holder (upon payment by the
Company of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock to which such holder is entitled upon such exercise.
3. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION OR MERGER.
(a) Reorganization, Consolidation or Merger. In case, at any
time or from time to time, the Company (a) effects a reorganization, (b)
consolidates with or merges into any other person or (c) transfers all or
substantially all of its properties or assets to any other person under any plan
or arrangement contemplating the dissolution of the Company, then, in each such
case, the holder of this Warrant, on the exercise hereof as provided in Section
1 at any time after the consummation of such reorganization, consolidation or
merger or the effective date of such dissolution, as the case may be, will
receive, in lieu of the Common Stock issuable on such exercise prior to such
consummation or such effective date, the stock and other securities and property
(including cash) to which such holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if such
holder had so exercised this Warrant immediately prior thereto, all subject to
further adjustment as provided in Section 4.
(b) Dissolution. In the event of any dissolution of the
Company following the transfer of all or substantially all of its properties or
assets, the Company, prior to such dissolution, will at its expense deliver or
cause to be delivered the stock and other securities and property (including
cash, where applicable) receivable by the holder of this Warrant after the
effective date of such dissolution pursuant to this Section 3 to a bank or trust
company, as trustee for the holder of this Warrant, and will promptly notify
each holder of the Warrants of the occurrence of any events specified in this
Section 3.
(c) Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 3, this Warrant will continue in full force and
effect and the terms hereof will be applicable to all securities and other
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and will be binding
upon the issuer of any such stock or other securities, including, in the case of
any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person has expressly
assumed the terms of this Warrant.
4. ADJUSTMENTS FOR STOCK DIVIDENDS AND STOCK SPLITS. In the
event that the Company (a) issues additional shares of Common Stock as a
dividend or other distribution on outstanding Common Stock, (b) subdivides its
outstanding shares of Common Stock or (c) combines its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, then, in each such
event, the Purchase Price will, simultaneously with the happening of such event,
be adjusted by multiplying the then prevailing Purchase Price by a fraction, the
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numerator of which will be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which will be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained will hereafter be the Purchase Price then in effect. The
Purchase Price, as so adjusted, will be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 4.
The holder of this Warrant will thereafter, on the exercise hereof as provided
in Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 4) be issuable on such
exercise, by a fraction of which (i) the numerator is the Purchase Price which
would otherwise (but for the provisions of this Section 4) be in effect, and
(ii) the denominator is the Purchase Price in effect on the date of such
exercise.
5. NOTICES OF RECORD DATE, ETC. In the event of:
(a) the Company's taking a record of the holders of its Common
Stock (or other securities at the time receivable upon the exercise of the
Warrant) for the purpose of entitling such holders to receive any dividend
(other than a cash dividend payable out of earned surplus) or other
distribution, or any night to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities, or to receive any other
right; or
(b) any capital reorganization of the Company (other than a
stock split or reverse stock split), any reclassification of the capital stock
of the Company, any consolidation or merger of the Company with or into another
corporation (other than a merger for purposes of change of domicile) or any
conveyance of all or substantially all of the assets of the Company to another
corporation; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders at the time outstanding a notice specifying, as the case may
be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right and the amount and character of such dividend,
distribution or right or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, is to be fixed, as to which
the holders of record of Common Stock (or such other securities at the time
receivable upon the exercise of the Warrant) will be entitled to exchange their
shares of Common Stock (or such other securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up. Such notice will be
mailed at least twenty (20) days prior to the date therein specified and this
Warrant may be exercised prior to said date during the term of the Warrant but
no later than five days prior to said date.
6. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
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necessary or appropriate in order to protect the rights of the holder of this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
not increase the par value of any shares of stock receivable on the exercise of
the Warrant above the amount payable therefor on such exercise and (b) will take
all such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of stock on the
exercise of this Warrant from time to time outstanding.
7. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrant, all shares of Common Stock from time to
time issuable on the exercise of the Warrant.
8. EXCHANGE OF WARRANT. On surrender for exchange of this
Warrant, properly endorsed, to the Company, the Company at its expense will
issue and deliver to or on the order of the holder thereof a new Warrant or
Warrants of like tenor, in the name of such holder or as such holder (on payment
by such holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which the Warrant or Warrants may still be exercised.
9. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver in lieu thereof a new Warrant of like tenor.
10. WARRANT AGENT. The Company may, by written notice to each
holder of a Warrant, appoint an agent for the purpose of issuing the Common
Stock on the exercise of the Warrant pursuant to Section 1, exchanging this
Warrant pursuant to Section 8 and replacing this Warrant pursuant to Section 9,
or any of the foregoing, and thereafter any such issuance, exchange or
replacement, as the case may be, will be made at such office by such agent.
11. NEGOTIABILITY; RESTRICTIONS ON TRANSFER; WARRANT HOLDER
NOT DEEMED STOCKHOLDER. This Warrant is issued upon the following terms, to all
of which each holder or owner hereof by the taking hereof consents and agrees:
(a) No holder of this Warrant will, as such, be entitled to
vote or to receive dividends or to be deemed the holder of any class of security
that may at any time be issuable upon exercise of the Warrant for any purpose
whatsoever, nor will anything contained herein be construed to confer upon such
holder, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issue or reclassification
of stock, change of par value or change of stock to no par value, consolidation,
merger or conveyance or otherwise), or to receive notice of meetings or to
receive dividends or subscription rights, until such holder has exercised the
Warrant and been issued shares of Common Stock in accordance with the provisions
hereof; and
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(b) Neither this Warrant nor any shares of Common Stock
purchased pursuant to this Warrant have been registered under the Securities Act
of 1933. Therefore, the Company may require, as a condition of allowing the
transfer or exchange of this Warrant or such shares, that the holder or
transferee of this Warrant or such shares, as the case may be, furnish to the
Company an opinion of counsel reasonably acceptable to the Company to the effect
that such transfer or exchange may be made without registration under the
Securities Act of 1933. The certificates evidencing the Common Stock issued on
the exercise of the Warrant will bear a legend to the effect that the
certificates have not been registered under the Securities Act of 1933.
12. FURTHER ASSURANCES. The Company undertakes generally to
execute all such agreements and other instruments and to do all such other acts
as are necessary or appropriate (including, but not limited to, authorizing and
issuing additional shares of stock of the Company) to give full effect to the
terms, conditions and provisions of this Warrant and make it binding on the
Company.
13. NOTICES. All notices and other communications between the
Company and the holder of this Warrant shall be mailed by first class mail,
postage prepaid, at such addresses listed above, or as may have been
subsequently furnished to the other party in writing.
14. DEFINITIONS. As used herein, the following terms, unless
the context otherwise requires, have the following respective meanings:
(a) The term "Company" includes Acrodyne Communications, Inc.
and any corporation which succeeds or assumes the obligations of the
Company hereunder.
(b) The term "Common Stock" includes (a) the Company's Common
Stock, $.0l par value per share, as authorized on the date hereof, (b)
any other capital stock of any class or classes (however designated) of
the Company, authorized on or after such date, the holders of which
shall 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 and (c) any other securities into which
or for which any of the securities described in (a) or (b) may be
converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
15. MISCELLANEOUS. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant will be construed and enforced in
accordance with and governed by the laws of the State of New York. The headings
in this Warrant are for purposes of reference only, and will not limit or
otherwise affect any of the terms hereof. This Warrant is being executed as an
instrument under seal. The invalidity or unenforceability of any provision
thereof will in no way affect the validity or enforceability of any other
provision.
16. EXPIRATION. The right to exercise this Warrant will expire
at 5:00 P.M., New York time, [seven years from the closing date].
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Date: August __, 1998
ACRODYNE COMMUNICATIONS, INC.
By:
---------------------------
Name: A. Xxxxxx Xxxxxxx
Title: President
(Corporate Seal)
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EXHIBIT A TO FORM OF WARRANT AGREEMENT
FORM OF SUBSCRIPTION
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO ACRODYNE COMMUNICATIONS, INC.
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant for, and to purchase thereunder,
____ shares of Common Stock of ACRODYNE COMMUNICATIONS, INC. and herewith makes
payment of $_______ therefor, and requests that the certificates for such shares
be issued in the name of, and delivered to ________________, whose address is
________________.
Dated:
(Signature must conform to name of holder
as specified on the face of the Warrant)
(Address)
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