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EXHIBIT 4.11
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NEW WEST EYEWORKS, INC.
AND
XXXXXXXXXX & CO.
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FORM OF REPRESENTATIVE'S
WARRANT AGREEMENT
Dated as of February 7, 1997
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This REPRESENTATIVE'S WARRANT AGREEMENT, dated as of February 7, 1997,
is executed between NEW WEST EYEWORKS, INC., a Delaware corporation (the
"Company"), and XXXXXXXXXX & CO. (hereinafter referred to variously as the
"Holder" or the "Representative").
The Company proposes to issue to the Representative warrants
(collectively with Additional Warrants, as defined below in Section 12,
"Warrants") to purchase up to an aggregate of 46,173 shares of common stock, par
value $0.01 per share, of the Company ("Common Stock"), and to the persons
listed on Exhibit A hereto, warrants (sometimes, the "Additional Warrants") to
purchase an aggregate of 60,390 shares of Common Stock; and
The Representative has agreed to act as the Representative of the
several underwriters (the "Underwriters") in connection with the Company's
proposed public offering of up to 1,600,000 shares of Common Stock at a public
offering price of $____ per share of Common Stock pursuant to the underwriting
agreement (the "Underwriting Agreement"), dated as of the date hereof, among the
Underwriters, the Selling Stockholder (as defined therein) and the Company (the
"Public Offering"); and
The Company and Xxxxx & Co., Inc., a wholly owned subsidiary of the
Representative, entered into the Representative's Warrant Agreement, dated
December 31, 1993, and amended such agreement on December 19, 1996 (as amended,
the "1993 Agreement"); and
The Warrants to be issued pursuant to this Agreement will be issued on
the Closing Date (as such term is defined in the Underwriting Agreement) by the
Company to the Representative in consideration for, and as part of the
compensation in connection with, the Representative acting as the Representative
pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant. The Holder (as defined in Section 3 hereof) is hereby granted
the right to purchase, at any time between December 23, 1998, the date of
termination of the warrant issued under the 1993 Agreement, and 5:30 P.M., New
York time, on December 23, 2001, up to an aggregate of 46,173 shares of Common
Stock (the "Shares") at the initial exercise price (subject to adjustment as
provided in Section 8 hereof) set forth in Section 6.1 hereof, subject to the
terms and conditions of this Agreement; provided that, effective December 23,
1998, the number of Warrant Shares issuable upon exercise hereof shall equal the
number of Warrant Shares that remain issuable and unexercised under the 1993
Agreement upon its termination or such date; and provided further that,
effective December 23, 1998, the number of Warrant Shares issuable upon exercise
of each Additional Warrant shall equal the number of Warrant Shares that remain
issuable and unexercised under the applicable warrant issued pursuant to the
0000 Xxxxxxx upon its termination or such date. Except as set forth herein, the
Shares issuable upon exercise of the Warrants are in all respects identical to
the shares of Common Stock being purchased by the Underwriters for resale to the
public
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pursuant to the terms and provisions of the Underwriting Agreement.
2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit B, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant. Each Warrant initially is exercisable at the
initial exercise price (subject to adjustment as provided in Section 8 hereof)
per share of Common Stock set forth in Section 6 hereof payable by check or bank
draft to the order of the Company. Upon surrender of a Warrant Certificate at
the Company's principal offices in Arizona (2104 West Southern Avenue, Tempe,
Arizona 85282) with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price (as hereinafter defined) for the
shares of Common Stock purchased, the registered holder of a Warrant Certificate
("Holder" or "Holders") shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased. The purchase rights
represented by each Warrant Certificate are exercisable at the option of the
Holder thereof, in whole or in part (but not as to fractional shares of Common
Stock underlying the Warrants). In the case of the purchase of less than all the
shares of Common Stock purchasable under any Warrant Certificate, the Company
shall cancel said Warrant Certificate upon the surrender thereof and shall
execute and deliver a new Warrant Certificate of like tenor for the balance of
the shares of Common Stock purchasable thereunder.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock or other securities,
properties or rights underlying such Warrants, shall be made forthwith (and in
any event within five (5) business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the provisions
of Sections 5 and 7.1 hereof) be issued in the name of, or in such names as may
be directed by, the Holder thereof; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Shares
(and/or other securities, property or rights issuable upon the exercise of the
Warrants) shall be executed on behalf of the Company by the manual or facsimile
signature of the then present Chairman or Vice Chairman of the Board of
Directors or President or Vice President of the Company under its corporate seal
reproduced thereon, attested to by the manual or facsimile signature of the then
present Secretary or Assistant Secretary of the Company. Warrant Certificates
shall be dated the date of execution by the Company upon initial issuance,
division, exchange, substitution or transfer.
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5. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
are being acquired as an investment and not with a view of the distribution
thereof; that the Warrants may not be sold, transferred, assigned, hypothecated
or otherwise disposed of, in whole or in part, except to any Underwriter, any
person who controls any Underwriter, any partner or director of any Underwriter
and any officer or any employee having an equity interest in any Underwriter.
6. Exercise Price.
Section 6.1 Initial and Adjusted Exercise Price. Except as otherwise
provided in Section 8 hereof, the initial exercise price of each Warrant on
December 23, 1998, shall be equal to the Exercise Price on December 23, 1998,
as determined under the 1993 Warrant. The adjusted exercise price shall be the
price which shall result from time to time from any and all adjustments of the
initial exercise price in accordance with the provisions of Section 8 hereof.
Section 6.2 Exercise Price. The term "Exercise Price" herein shall
mean the initial exercise price or the adjusted exercise price, depending upon
the context.
7. Registration Rights.
Section 7.1 Registration Under the Securities Act of 1933. The Shares
and any of the other securities issuable upon exercise of the Warrants have not
been registered under the Securities Act of 1933, as amended (the "Act"). Upon
exercise, in part or in whole, of the Warrants, certificates representing the
Shares underlying the Warrants and any of the other securities issuable upon
exercise of the Warrants (collectively with the shares and other securities
issuable on exercise of the Additional Warrants as provided in Section 12, the
"Warrant Shares") shall bear the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered or sold except pursuant to (i)
an effective registration statement under the Act, or (ii) to
the extent applicable, Rule 144 under the Act (or any similar
rule under such Act relating to the disposition of securities)
or another exemption from registration under the Act is
available."
Section 7.2 Piggyback Registration. If, at any time between
December 23, 1998 and December 23, 2001, the Company proposes to register any
of its securities under the Act (for sale by the Company or otherwise and
whether by a new registration statement or a post-effective amendment to the
Registration Statement as defined in the Underwriting Agreement but other than
pursuant to Form S-8) it will give written notice by registered mail, at least
30 days prior to the filing of each such registration statement or
post-effective amendment, to the Representative and to all other Holders of the
Warrants and the Warrant Shares of its intention to do so. If the
Representative or
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other Holders of the Warrants or Warrant Shares notify the Company within 20
days after receipt of any such notice of its or their desire to include any
Warrant Shares in such proposed registration statement or post-effective
amendment, the Company shall afford the Representative and such Holders the
opportunity to have any such Warrant Shares registered under such registration
statement or post-effective amendment.
Notwithstanding the provisions of this Section 7.2, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 7.2 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
Section 7.3 Demand Registration.
(a) At any time commencing after December 23, 1998 through and
including December 23, 2001, the Holders of the Warrants and Warrant Shares
representing a "Majority" (as hereinafter defined) of such securities (assuming
for this purpose the exercise of all of the Warrants) shall have the right
(which right is in addition to the registration rights under Section 7.2
hereof), exercisable by written notice to the Company, to cause the Company to
prepare and file with the Securities and Exchange Commission (the "Commission"),
on one occasion, a registration statement and such other documents, including a
prospectus, as may be necessary in the opinion of both counsel for the Company
and counsel for the Holders, in order to comply with the provisions of the Act,
so as to permit a public offering and sale of all or any portion of their
respective Warrant Shares for nine consecutive months by such Holders and any
other Holders of the Warrants and/or Warrant Shares who elect to participate by
notice to the Company within ten (10) days after receiving notice from the
Company of such request.
(b) In addition to the registration rights under Section 7.2 and
subsection (a) of this Section 7.3, at any time prior to December 23, 2001, any
Holder of Warrants or Warrant Shares shall have the right, exercisable by
written request to the Company, to have the Company prepare and file, on one
occasion, with the Commission a registration statement so as to permit a public
offering and sale of all or any portion of their Warrant Shares for nine
consecutive months by such Holder and any other Holders of the Warrants who
elect to participate by notice to the Company within ten days after receiving
notice from the Company of such request; provided, however, that the provisions
of Section 7.4(c) hereof shall not apply to any such registration request and
registration and all costs incident thereto shall be at the expense of the
Holder or Holders making such request or electing to participate.
(c) The Company covenants and agrees to give written notice of any
registration request under this Section 7.3 by any Holder or Holders to all
other registered Holders of the Warrants and the Warrant Shares within ten (10)
days from the date of the receipt of any such registration request.
(d) Notwithstanding anything to the contrary contained herein, if the
Company shall not
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have filed a registration statement for the Warrant Shares within the time
period specified in Section 7.4(a) hereof pursuant to the written notice
specified in Section 7.3(a) of a Majority of the Holders of the Warrants and/or
Warrant Shares, the Company agrees that upon the written notice of election of a
Majority of the Holders of the Warrants and/or Warrant Shares it shall
repurchase (i) any and all Warrant Shares at the arithmetic average Market Price
(as defined in Section 8.1(a)) per share of Common Stock on each of the days
when the market shall be open during the seventy-five (75) calendar days
following the date of the notice sent pursuant to Section 7.3(a) and (ii) any
and all Warrants at such average Market Price less the lowest Exercise Price of
such Warrants during such seventy-five (75) day period. Such repurchase shall be
in immediately available funds and shall close within two (2) days after the
later of (i) the expiration of the period specified in Section 7.4(a) or (ii)
the delivery of the written notice of election specified in this Section 7.3(d).
(e) Any notice from Holders to cause a registration under Section
7.3(a) or (b) which does not result in a registration statement which is duly
declared effective pursuant to the Act in accordance with the terms hereof or as
to which a stop order is issued and not withdrawn shall not constitute a
exercise of the Holders' rights under such Sections, respectively.
(f) Notwithstanding the provisions of Sections 7.3(a) above, if upon
exercise of the demand registration rights set forth in the Registration Rights
Agreements dated August 5, 1988, by and among the Company and the signatories
thereto, as amended (the "MEDIQ/Mesirow Agreements"), a Holder declines to
exercise its right to include Warrant Shares in such registration statement or
post-effective amendment and such registration statement or amendment is duly
declared effective pursuant to the Act and is not subject to any stop order
which is not withdrawn, then such Holder shall be deemed to have waived its
right to demand registration pursuant to Sections 7.3(a) and (b) until one year
from the date of a demand registration request pursuant to the MEDIQ/Mesirow
Agreements; provided, however, that if the demand registration rights referred
to above shall be exercised within one year from the date when the Holder's
rights would expire, and if the market price of the Common Stock (which shall
equal the average of the bid and ask price of the Common Stock as quoted on the
National Association of Securities Dealers' Automated Quotation System) shall be
less than the Exercise Price at the time the Holder receives notice of the
demand registration request pursuant to the MEDIQ/Mesirow Agreements, and during
the period following such notice during which the Holder is permitted to notify
the Company whether it will so include its Shares, the Holder shall only be
deemed to have waived its right to demand registration pursuant to Sections
7.3(a) and (b) until one month prior to the date such Holder's rights would
otherwise expire.
Section 7.4 Covenants of the Company With Respect to Registration. In
connection with any registration under Section 7.2 or 7.3 hereof, the Company
covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within seventy-five (75) days of receipt of any demand therefor, shall
use its best efforts to have any registration statement declared effective at
the earliest possible time, and shall furnish each Holder desiring to sell
Warrant Shares such number of prospectuses as shall reasonably be requested;
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provided that before filing a registration statement or prospectus or any
amendment or supplement thereto, including, without limitation, documents
incorporated therein by reference after the initial filing of any registration
statement, the Company will furnish to the Holders of the Warrant Shares covered
by such registration statement and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review
and approval of such underwriters, and, with respect to information relating to
such Holders, to the comments of such Holders.
(b) The Company will prepare and file with the Commission such
amendments and post-effective amendments to a registration statement as may be
necessary to keep such registration statement effective for the period required
by Sections 7.3(a) or (b); cause the related prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement or
amendment or supplement to such prospectus.
(c) The Company shall make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a registration statement
at the earliest possible moment.
(d) The Company shall pay all costs (excluding fees and expenses of
Holder(s) counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Sections 7.2 and 7.3(a) hereof including, without limitation, the Company's
legal and accounting fees, printing expenses, blue sky fees and expenses. The
Holder(s) making a request or electing to participate pursuant to Section 7.3(b)
will pay all costs, fees and expenses in connection with any registration
statement filed pursuant to Section 7.3(b).
(e) The Company will take all necessary action which may be required in
qualifying or registering the Warrant Shares included in a registration
statement for offering and sale under the securities or blue sky laws of such
states as reasonably are requested by the Holder(s), provided that the Company
shall not be obligated to execute or file any general consent to service of
process or to qualify as a foreign corporation to do business under the laws of
any such jurisdiction.
(f) The Company shall indemnify the Holder(s) of the Warrant Shares to
be sold pursuant to any registration statement and each person, if any, who
controls such Holder(s) within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement but only to the same
extent and with the same effect as the provisions pursuant to which the Company
has agreed to indemnify each of the Underwriters contained in Section 8 of the
Underwriting Agreement.
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(g) The Holder(s) of the Warrant Shares to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or behalf of such Holder(s), or their successors or assigns, for
specific inclusion in such registration statement to the same extent and with
the same effect as the provisions contained in Section 8 of the Underwriting
Agreement pursuant to which the Underwriters have agreed to indemnify the
Company.
(h) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to exercise their Warrants prior to the initial filing of any
registration statement or the effectiveness thereof.
(i) Other than "Registrable Securities" and "Registrable Shares," as
defined in the MEDIQ/Mesirow Agreements, the Company shall not permit the
inclusion of any securities other than the Warrant Shares to be included in any
registration statement filed pursuant to Section 7.3 hereof, or permit any other
registration statement to be or remain effective during the effectiveness of a
registration statement filed pursuant to Section 7.3 hereof, without the prior
written consent of the Holders of the Warrants and Warrant Shares are presenting
a Majority of such securities.
(j) The Company shall furnish to each Holder participating in the
offering and to each underwriter, if any, a signed counterpart, addressed to
such Holder or underwriter, of (i) an opinion of counsel to the Company, dated
the effective date of such registration statement (or, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), and (ii) a "cold comfort" letter
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement) signed by the independent
public accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities.
(k) The Company shall as soon as practicable, but in any event not
later than 45 days after the end of the 12-month period beginning on the day
after the end of the fiscal quarter of the Company during which the effective
date of the registration statement occurs (90 days in the event that the end of
such fiscal quarter is the end of the Company's fiscal year), make "generally
available to its security holders" (within the meaning of Rule 158 under the
Act) an earnings statement (which need not be audited) complying with Section
11(a) of the Act and covering a period of at least 12 consecutive months
beginning after the effective date of the registration statement.
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(l) The Company shall deliver promptly to each Holder participating in
the offering requesting the correspondence and memoranda described below and the
managing underwriters copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to discussions
with the Commission or its staff with respect to the registration statement and
permit each Holder and underwriters to do such investigation, upon reasonable
advance notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. ("NASD"). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable extent and at
such reasonable times and as often as any such Holder shall reasonably request.
(m) The Company shall enter into an underwriting agreement with the
managing underwriters selected for such underwriting by Holders holding a
Majority of the Warrant Shares requested to be included in such underwriting.
Such agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of that type used by the managing underwriter.
The Holders shall be parties to any underwriting agreement relating to
an underwritten sale of their Warrant Shares and may, at their option, require
that any or all the representations, warranties and covenants of the Company to
or for the benefit of such underwriters shall also be made to and for the
benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution.
(n) For the purposes of this Agreement, the term "Majority" in
reference to the Holders of Warrants or Warrant Shares, shall mean in excess of
fifty percent (50%) of the then outstanding Warrants and Additional Warrants
(assuming for this purpose the exercise of all of the Warrants and Additional
Warrants) and Warrant Shares that (i) are not held by the Company, an affiliate,
officer, director, employee or agent thereof or any of their respective
affiliates, members of their family, persons acting as nominees or in
conjunction therewith or (ii) have not been resold to the public pursuant to a
registration statement filed with the Commission under the Act.
8. Adjustments to Exercise Price and Number of Securities.
Section 8.1 Subdivision and Combination. In case the Company shall at
any time after December 23, 1998 and prior to the exercise of all Warrants
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
Section 8.2 Adjustment in Number of Securities. Upon each adjustment
of the Exercise Price pursuant to the provisions of this Section 8, the number
of Warrant Shares issuable upon the exercise
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of each Warrant shall be adjusted to the nearest full amount by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares issuable upon exercise of the
Warrants immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
Section 8.3 Definition of Common Stock. For the purpose of this
Agreement, the term Common Stock shall mean (i) the class of stock designated
as Common Stock in the Certificate of Incorporation of the Company as amended
as of the date hereof, or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock, consisting solely
of changes in par value, or from par value to no par value, or from no par
value to par value. In the event that the Company shall after the date hereof
issue common stock with greater or superior voting rights than the shares of
Common Stock outstanding as of the date hereof, the Holder, at its option, may
receive upon exercise of any Warrant either shares of Common Stock or a like
number of such common stock with greater or superior voting rights.
8.4 Merger or Consolidation. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental warrant agreement providing that the holder of each
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of such
Warrant, the kind and amount of shares of and stock and other securities and
property receivable upon such consolidation or merger, by a holder of the number
of shares of Common Stock of the Company for which such Warrant might have been
exercised immediately prior to such consolidation, merger, sale or transfer.
Such supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 8. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
Section 8.5 Dividends and Other Distributions. In the event that the
Company shall at any time after December 23, 1998 and prior to the exercise of
all Warrants declare a dividend (other than a dividend consisting solely of
shares of Common Stock) or otherwise distribute to its stockholders any assets,
property, rights, evidences of indebtedness, securities (other than shares of
Common Stock), whether issued by the Company or by another, or any other thing
of value, the Holders of the unexercised Warrants shall thereafter be entitled,
in addition to the shares of Common Stock or other securities and property
receivable upon the exercise thereof, to receive, upon the exercise of such
Warrants, the same property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been entitled to
receive at the time of such dividend or distribution as if the Warrants had been
exercised immediately prior to such dividend or distribution. At the time of any
such dividend or distribution, the Company shall make appropriate reserves to
ensure the timely performance of the provisions of this Section 8.5.
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Section 8.6 Notice of Adjustment. In the case of any adjustment or
readjustment in the number of Warrant Shares issuable upon the exercise of
Warrants or in the Exercise Price, the Company at its own expense will promptly
compute such adjustment or readjustment in accordance with the terms of this
Agreement and cause independent public accountants of recognized national
standing (who may be the independent public accountants for the Company),
selected by the Board of Directors of the Company, to verify such computation in
writing, and the Company shall prepare and mail by first class mail to each
Warrantholder a certificate signed by the Chief Executive Officer and Chief
Financial Officer of the Company, setting forth such adjustment or readjustment
and showing in reasonable detail the method of calculation thereof and the facts
upon which such adjustment or readjustment is based, including a statement of
(a) consideration to be received by the Company from any sale or issuance of
securities, (b) the number of shares of Common Stock outstanding and (c) the
Exercise Price in effect immediately prior to such sale or issuance and as
adjusted and readjusted.
Section 8.7 No Dilution or Impairment. The Company will not, by
amendment of its Certificate of Incorporation or through any consolidation,
merger, reorganization, transfer of assets, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Agreement, but will at all times in
good faith assist in the performance of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights
of the Holder of this Warrant against dilution or other impairment. Without
limiting the generality of the foregoing, the Company (a) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of Common Stock on the
exercise of the Warrants from time to time outstanding and (b) will not take
any action which results in any adjustment of the Exercise Price if the total
number of shares of Common Stock issuable thereafter upon the exercise of all
Warrants would exceed the total number of shares of Common Stock then
authorized by the Company's Certificate of Incorporation and available for the
purpose of issuance such exercise.
9. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Shares in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of any Warrant and
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in lieu thereof shall pay to the Holder of such Warrant an amount in cash
(computed to the nearest cent) equal to the current Market Value of such
fractional interest.
11. Reservation and Listing of Securities. The Company shall at all
times between December 23, 1998 and December 23, 2001 reserve and keep available
out of its authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Warrants, such number of shares of Common Stock or
other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of the Warrants
and payment of the Exercise Price therefor, all shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly issued, fully
paid, non-assessable and not subject to the preemptive rights of any
stockholder. As long as the Warrants shall be outstanding, the Company shall use
its best efforts to cause all shares of Common Stock issuable upon the exercise
of the Warrants to be listed (subject to official notice of issuance) on all
securities exchanges on which the Common Stock issued to the public in
connection herewith may then be listed and/or quoted on NASDAQ-NMS or NASDAQ, as
the case may be.
12. Other Warrants Subject to the Agreement. On the date hereof, the
Company will issue to the persons listed on Exhibit A attached hereto,
Additional Warrants of like tenor to purchase an aggregate of 60,390 shares of
Common Stock, in the numbers of shares set forth opposite their respective names
on Exhibit A. The Additional Warrants and the shares of Common Stock and any
other securities issuable upon exercise thereof shall be subject to and governed
by the terms of this Agreement in the same manner as if they were Warrants and
Warrant Shares and shall be treated as Representative's Warrants and Warrant
Shares and the holders thereof shall be treated as Holders, for all purposes
hereunder except as may be expressly stated herein.
13. Notices to Warrant Holders. Nothing contained in this Agreement
shall be construed as construed upon the Holders the right to vote or to consent
or to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock
of the Company, or any option, right or warrant to subscribe therefor;
or
(c) a dissolution, liquidation or winding up of the Company
(other than in
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connection with a consolidation or merger) or a sale of all or
substantially all of its property assets and business as an entirety
shall be proposed;
then, in any one or more of said events the Company shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
14. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Warrants, to the
address of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3
hereof or to such other address as the Company may designate by notice
to the Holders.
15. Supplements and Amendments. The Company and the Representative may
from time to time supplement or amend this Agreement without the approval of any
Holders in order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any provisions
herein or to make any other provisions in regard to matters or questions arising
hereunder which the Company and the Representative may deem necessary or
desirable and which the Company and the Representative deem not to affect
adversely the interests of the Holders.
16. Successors. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
17. Termination. This Agreement shall terminate at the close of
business on December 23, 2001. Notwithstanding the foregoing, the
indemnification provisions of Section 7 shall survive such termination.
18. Governing Law; Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
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The Company, the Representative and the Holders hereby agree that any
action, proceeding or claim against any of them arising out of, or relating in
any way to, this Agreement shall be brought and enforced in the courts of the
State of New York or of the United States of America for the Southern District
of New York, and irrevocably submit to such jurisdiction, which jurisdiction
shall be exclusive. The Company, the Representative and the Holders hereby
irrevocably waive any objection to such exclusive jurisdiction or inconvenient
forum. Any such process or summons to be served upon any of the Company, the
Representative and the Holders (at the option of the party bringing such action,
proceeding or claim) may be served by transmitting a copy thereof, by registered
or certified mail, return receipt requested, postage prepaid, addressed to it at
the address set forth in Section 13 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim. The Company, the Representative and the Holders
agree that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
19. Entire Agreement; Modification. This Agreement (including the
Underwriting Agreement to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought.
20. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
21. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
22. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Representative and any other registered Holder(s) of the Warrant Certificates or
Warrant Shares any legal or equitable right, remedy or claim under this
Agreement; and this Agreement shall be for the sole and exclusive benefit of the
Company and the Representative and any other Holder(s) of the Warrant
Certificates or Warrant Shares.
23. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
NEW WEST EYEWORKS, INC.
By /s/
--------------------------------
Name:
Title:
Attest:
---------------------------------
Secretary
XXXXXXXXXX & CO. INC.
By
--------------------------------
Name:
Title:
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EXHIBIT A
ADDITIONAL WARRANTS
Xxxxxxxx X. Xxxxxxx 12,500
Xxxxx Xxxxxxxxx 12,500
Xxxxx Xxxxx 3,670
Xxxx X. Xxxxxxx 1,500
Xxxxxx X. Xxxxxxxx 3,500
Xxxxx X. Xxxxxxxxx 2,500
Xxxxxxx X. Xxxxxx 7,500
Xxxxx X. Xxxxxxxx 16,720
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EXHIBIT B
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE
UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR ANOTHER EXEMPTION
FROM REGISTRATION UNDER SUCH ACT.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT
REFERRED TO HEREIN.
EXERCISABLE BETWEEN 5:30 P.M., NEW YORK TIME, DECEMBER 23, 1998
AND 5:30 P.M., NEW YORK TIME, DECEMBER 23, 2001
No. W-__ ___ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ______, or registered assigns,
is the registered holder of Warrants to purchase initially, at any time from
December 23, 1998 until 5:30 p.m. New York time on December 23, 2001
("Expiration Date"), up to ___________ (which number is subject to adjustment
pursuant to the Representative's Warrant Agreement dated as of February __,
1997 between the Company and Xxxxxxxxxx & Co., as may be amended (the "Warrant
Agreement")) fully-paid and non-assessable shares of common stock, par value
$0.01 per share ("Common Stock") of NEW WEST EYEWORKS, INC., a Delaware
corporation (the "Company"), at the initial exercise price, subject to
adjustment in certain events (the "Exercise Price") set forth in Section 6.1 of
the Warrant Agreement upon surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Warrant Agreement. Payment of the
Exercise Price shall be made by check or bank draft to the order of the
Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
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The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants pursuant to the Warrant Agreement, which Warrant
Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder on the books of the Company) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and/or number of the Company's securities issuable
thereupon may, subject to certain conditions, be adjusted. In such event, the
Company will, at the request of the holder, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and/or type of
securities issuable upon the exercise of the Warrants; provided, however, that
the failure of the Company to issue such new Warrant Certificates shall not in
any way change, alter or otherwise impair, the rights of the holder as set forth
in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the
Representative's Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated as of ___________________, 1997
NEW WEST EYEWORKS, INC.
By /s/
-----------------------------
Name:
Title:
Attest:
-----------------
Secretary
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[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase shares of Common Stock and
herewith tenders in payment for such securities a check payable in New York
Clearing House Funds to the order of NEW WEST EYEWORKS, INC. in the amount of
$ _______________, all in accordance with the terms hereof. The undersigned
requests that a certificate for such securities be registered in the name of
____________________ whose address is _____________________________ and that
such Certificate be delivered to _____________________ whose address is
____________________________.
Dated: ______________________
Signature
-----------------------------
(Signature must conform in all
respects to name of holder
as specified on the face of the
Warrant Certificate.)
------------------------------
(Insert Social Security or Other
Identifying Number of Holder.)
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