EXHIBIT 4.12
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FORM OF WARRANT SERVICES AGREEMENT
This WARRANT SERVICES AGREEMENT (the "Agreement"), dated as of ________,
2001, by and among THE XXXXXX GROUP, INC., a Delaware corporation (the
"Corporation"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York
corporation, as warrant agent (the "Warrant Agent").
W I T N E S S E T H
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WHEREAS, each record holder of the Corporation's Class A common stock,
$.015 par value (the "Class A Common Stock"), on the record date of
_____________, 2001 (the "Record Date"), will receive one warrant to purchase an
additional share of our Class A common stock (a "Warrant") for each share of
Class A common stock held on the Record Date at an exercise price of $9.00 per
share (the "Warrant Exercise Price"), subject to adjustment;
WHEREAS, the Warrant Exercise Price for the Class A Warrants will be
reduced to $6.00 during a reduction period of at least 30 days to be set by the
Corporation's Board of Directors;
WHEREAS, the Corporation has filed with the Securities Exchange Commission
a Registration Statement (Reg. No. 333-63188) on Form S-2 (the "Registration
Statement") for the registration of the Common Stock under the Securities Act of
1933, as amended, issuable upon exercise of the Warrants;
WHEREAS, the Corporation plans to distribute the Warrants to be exercisable
for a 5-year period from the date (the "Effective Date") of the Prospectus (the
"Prospectus") dated ___________, 2001 and forming part of the Registration
Statement, and continuing until the Expiration Time (as hereinafter defined);
WHEREAS, the Corporation desires the Warrant Agent to act on behalf of the
Corporation, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, permitted transfer and exchange of the Warrants, the
issuance of certificates representing the Warrants, the exercise of the
Warrants, and the rights of the holders thereof; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Corporation and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Corporation, and to authorize the
execution and delivery of this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the Parties hereto agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Common Stock" shall mean the authorized shares of Class A Common
Stock, $.015 per value per share, of the Corporation.
(b) "Corporate Office" shall mean the office of the Warrant Agent (or
its successor) at which at any particular time its principal business shall
be administered, which office is located on the date hereof at 00 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
(c) "Effective Date" shall mean, as to each Warrant, the date of the
Prospectus pursuant to which the Warrants may be exercised and Common Stock
issued.
(d) "Exercise Date" shall mean, as to any Warrant, the date on which
the Warrant Agent shall have received both (a) the Warrant Certificate
representing such Warrant, with the Exercise Form thereon duly executed by
the Registered Holder thereof or his attorney duly authorized in writing,
and (b) payment in cash, by wire transfer or by official bank or certified
check (if payment is made by uncertified check, then payment is not
considered received until clearance of the uncertified check) made payable
to the Warrant Agent, of an amount in lawful money of the United States of
America equal to the aggregate Warrant Exercise Price for the Common Stock
purchased.
(e) "Registered Holder" shall mean the person in whose name any
certificate representing a Warrant or Warrants shall be registered on the
books maintained by the Warrant Agent pursuant to Section 6.
(f) "Warrant Agent" shall mean American Stock Transfer & Trust
Company, as the Corporation's warrant agent, or its authorized successor,
as such.
(g) "Expiration Time" shall mean 5:00 p.m., New York City time, on
___________, 2006.
(h) "Warrant Exercise Price" has the meaning set forth in the Warrant
Certificate, the form of which is attached as Exhibit A.
SECTION 2. Warrants and Issuance of Warrant Certificates.
(a) The Warrant Agent shall initially countersign and issue Warrant
Certificates in appropriate denominations to the Registered Holders thereof
as of the Effective Date.
(b) Each Warrant shall initially entitle the Registered Holder of the
Warrant Certificate representing such Warrant to purchase one share of
Common Stock upon the exercise thereof, in accordance with the terms
hereof, subject to modification and adjustment as provided in the Warrant
Certificate.
(c) From time to time, up to the Expiration Time, the Warrant Agent
shall countersign and deliver stock certificates in required whole number
denominations upon the exercise of Warrants in accordance with this
Agreement.
(d) From time to time, up to the Expiration Time, the Warrant Agent
shall execute and deliver Warrant Certificates in required whole number
denominations to the individuals or entities entitled thereto in connection
with any permitted transfer or exchange permitted under this Agreement;
provided that no Warrant Certificates shall be issued except (i) those
initially issued hereunder, (ii) those issued on or after the Effective
Date, upon the exercise of fewer than all Warrants represented by any
Warrant Certificate, to evidence any unexercised Warrants held by the
exercising Registered Holder, (iii) those issued upon any transfer or
exchange pursuant to Section 6; (iv) those issued in replacement of lost,
stolen, destroyed or mutilated Warrant Certificates pursuant to Section 7;
and (v) at the option of the Corporation, in such form as may be approved
by its Board of Directors, to reflect any adjustment or change in the
applicable Warrant Exercise Price or the number of shares of Common Stock
purchasable upon exercise of the Warrants made pursuant to the Warrants.
(e) The Corporation is simultaneously issuing 2,200,000 warrants to
purchase Class B common stock on the Effective Date to its holder of Class
B common stock. The Warrant Agent shall have no obligations or
responsibility respecting such Class B warrants.
SECTION 3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates representing the Warrants shall be
substantially in the form annexed hereto as Exhibit A, the terms of which
are incorporated herein by reference. The Warrant Certificates may have
such letters, numbers or other marks of identification or designation and
such legends, summaries or endorsements printed, lithographed or engraved
thereon as the Corporation may deem appropriate and as are not inconsistent
with the provisions of this Agreement or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be dated the
date of issuance thereof (whether upon initial issuance, permitted
transfer, exchange or issuance in lieu of mutilated, lost, stolen, or
destroyed Warrant Certificates) and issued in registered form. Warrants
shall be numbered serially following the letters "WA".
(b) Warrant Certificates shall be executed on behalf of the
Corporation by its Chairman of the Board, President or any Vice President
by manual signature or by facsimile signatures printed thereon. Warrant
Certificates shall be manually countersigned and authenticated by the
Warrant Agent, and shall not be valid for any purpose unless so
countersigned. In case any officer of the Corporation who shall have signed
any of the Warrant Certificates shall cease to be such officer of the
Corporation before the date of issuance of the Warrant Certificates or
before countersigned by the Warrant Agent and issue and delivery thereof,
such Warrant Certificates may nevertheless be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the
person who signed such Warrant Certificates had not ceased to be such
officer of the Corporation. After countersignature by the Warrant Agent,
the Warrant Certificate may be delivered to the Registered Holder as
provided herein without further action by the Corporation, except as
otherwise provided by Section 4(a) hereof.
SECTION 4. Exercise.
(a) Each Warrant may be exercised by the Registered Holder thereof at
any time on or after the Effective Date, but not after the Expiration Time,
upon the terms and subject to the conditions set forth in the applicable
Warrant Certificate. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the Exercise Date and the
person entitled to receive the securities deliverable upon such exercise
shall be treated for all purposes as the holder upon exercise thereof as of
the close at business on the Exercise Date. As soon as practicable on or
after the Exercise Date the Warrant Agent shall deposit the proceeds
received from the exercise of a Warrant and shall notify the Corporation in
writing of the exercise of such Warrant and the name and address of the
person exercising the warrant. As soon as practicable after the date of
such notice, the Warrant Agent, on behalf of the Corporation, shall cause
to be issued and delivered to the party or parties entitled to receive the
certificate or certificates representing the securities deliverable upon
such exercise (plus a Warrant Certificate for any remaining unexercised
Warrants of the Registered Holder), unless prior to the date of issuance of
such certificates the Corporation shall instruct the Warrant Agent to
refrain from causing such issuance of certificates for any reason. Upon the
exercise of any Warrant and clearance of the funds received, the Warrant
Agent shall promptly, and in no event later than three business days
following the day in which the funds clear, remit the payment received for
the Warrants to the Corporation or as the Corporation may direct in
writing.
SECTION 5. Reservation of Shares; Registration of Warrants; Listing of
Securities; Payment of Taxes; etc.
(a) The Corporation covenants that it will at all times reserve and
keep available out of its authorized Common Stock, solely for issuance upon
exercise of Warrants, such number of shares of Common Stock as shall then
be issuable upon the exercise of all outstanding Warrants. The Corporation
covenants that all shares of Common Stock which shall be issuable upon
exercise of the Warrants shall, at the time of issuance and delivery
against payment therefor of the aggregate Warrant Exercise Price for the
Common Stock purchased, be duly and validly issued, fully paid,
nonassessable and free from all taxes, liens and charges with respect to
the issuance thereof (other than those which the Corporation shall promptly
pay or discharge).
(b) The Corporation covenants that if the distribution of any Warrants
hereunder require registration with, or approval of, any governmental
authority under any federal securities law before such Warrants may be
validly delivered upon such distribution, then the Corporation will in good
faith and as expeditiously as reasonably possible, endeavor to secure such
registration or approval. The Corporation will use reasonable efforts to
obtain appropriate approvals or registrations with respect to such Warrants
under the "blue sky" securities laws of the states in which they are
issued.
(c) The Corporation covenants that if any securities to be reserved
for the purpose of exercise of Warrants hereunder require registration
with, or approval of, any governmental authority under any federal
securities law before such securities may be validly issued or delivered
upon such exercise, then the Corporation will in good faith and as
expeditiously as reasonably possible, endeavor to secure such registration
or approval. However, Warrants may not be exercised or sold by, or shares
of Common Stock issued to, any Registered Holder in any state in which such
exercise or sale would be unlawful.
(d) The Corporation shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect to the
issuance of Warrants, or the issuance or delivery of any shares upon
exercise of the Warrants; provided, however, that if the shares of Common
Stock are to be delivered in a name other than the name of the Registered
Holder of the Warrant Certificate representing any Warrant being exercised,
then no such delivery shall be made unless the person requesting the same
has paid to the Warrant Agent the amount of transfer taxes or charges
incident thereto, if any.
(e) The Warrant Agent is hereby authorized to requisition the
Corporation's stock transfer agent from time to time for certificates
representing shares of Common Stock required upon exercise of the Warrants,
and the Corporation will authorize the stock transfer agent to comply with
such proper requisitions, if the warrant agent and the stock transfer agent
are not the same entity.
(f) The Corporation shall give the Warrant Agent written notice within
five (5) business days of any action or determination modifying the terms
of the Warrants or adjusting the Warrant Exercise Price or determining the
securities or other property for which the Warrants are exercisable, in
accordance with the terms of the Warrants.
SECTION 6. Exchange of Warrant Certificates.
(a) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants of the same
class. Warrant Certificates to be exchanged shall be surrendered to the
Warrant Agent at its Corporate Office or, with respect to deliveries other
than by mail or hand, at such other locations set forth in the Prospectus,
and upon satisfaction of the terms and provisions hereof, the Warrant Agent
shall execute, issue and deliver in exchange therefor the Warrant
Certificates which the Registered Holder making the exchange shall be
entitled to receive.
(b) The Warrant Agent shall keep at its office books in which, subject
to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and the permitted transfer thereof in accordance with
its regular practice. Upon due presentment for registration of transfer of
any Warrant Certificate at such office in accordance with the terms of the
Warrant and this Agreement the Transfer Agent shall issue and deliver to
the transferee or transferees new Warrant Certificates representing an
equal aggregate number of Warrants of the same class.
(c) The Warrants shall not be transferred except (i) in connection
with a merger or consolidation of the Registered Holder or beneficial owner
or otherwise by operation of law, pursuant to court order or pursuant to
the laws of descent and distribution; or (ii) with the express prior
written consent of the Corporation, in the Corporation's sole discretion. A
Warrant Certificate may be transferred by a Registered Holder if such
transfer does not represent any change of the beneficial ownership of the
Warrant. The Warrant Agent shall not give effect to any transfer in
violation of this provision. Upon presentation of any Warrant Certificate
for transfer, the Warrant Agent shall require delivery by the Registered
Holder of such written representations and or other evidence as it deems
reasonable to substantiate that the transfer does not violate the
restrictions of the Warrant Certificate.
(d) With respect to all Warrant Certificates presented for
registration of transfer, or for exchange or exercise, the Exercise Form
included therein shall be duly endorsed, or be accompanied by a written
instrument or instruments of transfer and subscription, in form
satisfactory to the Corporation and the Warrant Agent, duly executed by the
Registered Holder or his attorney-in-fact duly authorized in writing.
With respect to all Warrant Certificates presented for registration of
transfer, the signature of the Register Holder thereon must be guaranteed
by an Eligible Guarantor Institution, as defined in Rule 17Ad-15 of the
Securities Exchange Act of 1934, as amended.
(e) A reasonable service charge may be imposed by the Warrant Agent
against a Registered Holder for any exchange or registration of transfer of
Warrant Certificates. In addition, the Corporation may require payment by
such holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(f) All Warrant Certificates surrendered for exercise or for exchange
shall be promptly canceled by the Warrant Agent and thereafter retained by
the Warrant Agent until termination of this Agreement or resignation as
Warrant Agent, or disposed of or destroyed, at the direction of the
Corporation. If the Corporation shall purchase or acquire any Warrant or
Warrants, the Warrant Certificate or Warrant Certificates evidencing the
same shall thereupon be delivered to the Warrant Agent and canceled by it
and retired.
SECTION 7. Loss or Mutilation. Upon receipt by the Corporation and the
Warrant Agent of evidence satisfactory to them of the ownership of and loss,
theft, destruction or mutilation of any Warrant Certificate, and (in case of
loss, theft or destruction) of indemnity satisfactory to them, and (in the case
of mutilation) upon surrender and cancellation thereof, the Warrant Agent shall
(in the absence of notice to the Corporation and/or Warrant Agent that the
Warrant Certificate has been acquired by a bonafide purchaser) execute and
deliver to the Registered Holder in lieu thereof a new Warrant Certificate of
like tenor representing an equal aggregate number of Warrants. Applicants for a
substitute Warrant Certificate shall comply with such other reasonable
regulations, provide such reasonable indemnification and pay such other
reasonable charges as the Warrant Agent or the Corporation may prescribe.
SECTION 8. Concerning the Warrant Agent. The Warrant Agent acts hereunder
as agent and in a ministerial capacity for the Corporation, and its duties shall
be determined solely by the provisions hereof. The Warrant Agent shall not, by
issuing and delivering Warrant Certificates or by any other act hereunder be
deemed to make any representations as to the validity, value or authorization of
the Warrant Certificates or the Warrants represented thereby or of any
securities or other property delivered upon exercise of any Warrant or whether
any stock issued upon exercise of any Warrant is fully paid and nonassessable.
Except as expressly provided in this Agreement, the Warrant Agent shall not at
any time be under any duty or responsibility to any holder of Warrant
Certificates to make or cause to be made any adjustment of the applicable
Warrant Exercise Price, or to determine whether any fact exists which may
require any such adjustments, or with respect to the nature or extent of any
such adjustment, when made, or with respect to the method employed in making the
same. It shall not (i) be liable for any recital or statement of facts contained
herein or for any action taken, suffered or omitted by it in reliance on any
Warrant Certificate or other document of instrument believed by it in good faith
to be genuine and to have been signed or presented by the proper party or
parties, except for any action taken, suffered or omitted by it due to its
negligence, willful misconduct or bad faith, (ii) be responsible for any failure
on the part of the Corporation to comply with any of its covenants and
obligations contained in this Agreement or in any Warrant Certificate, or (iii)
be liable for any act or omission in connection with this Agreement except for
its own negligence or willful misconduct.
The Warrant Agent may at any time consult with counsel to it and shall
incur no liability or responsibility for any action taken, suffered or omitted
by it in good faith in accordance with the opinion or advice of such counsel.
Any notice, statement, instruction, request, direction, order or demand of
the Corporation shall be sufficiently evidenced by an instrument signed by the
Chairman of the Board, President, any Vice President, its Secretary, or
Assistant Secretary (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable for any action
taken, suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand believed by it to be genuine.
The Corporation agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse it for its reasonable expenses
hereunder; it further agrees to indemnify the Warrant Agent and save it harmless
against any and all losses, expenses and liabilities, including judgments, costs
and counsel fees, for anything done or omitted by the Warrant Agent in the
execution of its duties and powers hereunder except losses, expenses and
liabilities arising as a result of the Warrant Agent's negligence, willful
misconduct or bad faith.
The Warrant Agent may resign its duties and be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of the
Warrant Agent's own negligence or wilful misconduct or bad faith), after giving
30 days, prior written notice to the Corporation. At least 15 days prior to the
date such resignation is to become effective, the Warrant Agent shall cause a
copy of such notice of resignation to be mailed to each Registered Holder at the
Corporation's expense. Upon such resignation, or any inability of the Warrant
Agent to act as such hereunder, the Corporation shall appoint a new warrant
agent in writing. In connection with the appointment of a new warrant agent, the
Warrant Agent shall execute and deliver any further assurance, conveyance, act
or deed requested by the Corporation, at the Corporation's expense.
Any corporation into which the Warrant Agent or any new warrant agent may
be converted or merged or any corporation resulting from any consolidation to
which the Warrant Agent or any new warrant agent shall be a party or any
corporation succeeding to the trust business of the Warrant Agent shall be a
successor warrant agent under this Agreement without any further act. Any such
successor warrant agent shall promptly cause notice of its succession as warrant
agent to be mailed to the Corporation and to each Registered Holder.
SECTION 9. Modification of Agreement. The Warrant Agent and the Corporation
may modify or amend this Agreement from time to time, provided, however, that
this Agreement shall not be modified, supplemented or altered in any manner
materially adverse to the interests of the holders of the Warrant Certificates
except with the consent in writing of the Registered Holders of Warrant
Certificates representing not less than 50% of the Warrants then outstanding.
SECTION 10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
made when delivered or mailed first class registered or certified mail, postage
prepaid as follows: if to the Registered Holder of a Warrant Certificate, at the
address of such holder as shown on the registry books maintained by the Warrant
Agent; if to the Corporation, at 0000 Xxx X.X. 00 Xxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxx X. Xxxxxxx, Executive Vice President, or at such other address
as may have been furnished to the Warrant Agent in writing by the Corporation;
if to the Warrant Agent, at 00 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Shareholder Relations.
SECTION 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to principles of conflict of laws.
SECTION 12. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Corporation and the Warrant Agent and their respective
successors and assigns. Nothing in this Agreement is intended or shall be
construed to confer upon any other person any right, remedy or claim, in equity
or at law, or to impose upon any other person any duty, liability or obligation.
SECTION 13. Termination. This Agreement shall terminate at the Expiration
Time or such earlier date upon which all Warrants have been exercised or
surrendered, except that the Warrant Agent shall account to the Corporation for
cash held by it and the provisions of Section 8 hereof shall survive such
termination.
SECTION 14. Counterparts. This Agreement may be executed in counterparts,
which taken together shall constitute a single document.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed as of the date first above written.
The "Corporation"
THE XXXXXX GROUP, INC.
By:
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Xxxx X. Xxxxxxx
Executive Vice President of Finance
and Administration
The "Warrant Agent"
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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Name:
Title:
EXHIBIT A
Certificate No. WA-________ __________ Warrants
THE XXXXXX GROUP, INC.
WARRANT CERTIFICATE
For Class A Warrants To Purchase Class A Common Stock
THIS CERTIFIES THAT,
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Name of Registered Holder
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Address of Registered Holder
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is the registered holder (the "Registered Holder") of the number of warrants
(the "Warrants") set forth above. Each Warrant entitles the Registered Holder to
purchase, subject to the terms and conditions set forth in this certificate, one
fully paid and nonassessable share of Class A Common Stock, $0.15 par value per
share (the "Common Stock"), of The Xxxxxx Group, Inc., a Delaware Corporation
(the "Corporation"), during the period commencing the date hereof and ending at
5:00 p.m. (New York City time) on ____________, 2006 (the "Expiration Time"),
upon the presentation and surrender of this Warrant Certificate with the
Exercise Form attached hereto duly executed, at the corporate office of American
Stock Transfer & Trust Company, as Warrant Agent, or its successor (the "Warrant
Agent"), accompanied by payment of the Warrant Exercise Price (defined below),
and any and all applicable taxes due in connection with the exercise of the
Warrant in lawful money of the United States of America by wire transfer,
certified or official bank check, bank draft or money order. The "Warrant
Exercise Price" shall be $9.00 per share, provided, that the Warrant Exercise
Price will be reduced to $6.00 per share during a reduction period of at least
30 days (the "Reduction Period") to be determined by the Board of Directors of
the Corporation. If the Reduction Period has not been set prior to the date 60
days before the Expiration Time, such period will comprise the final 30 days
prior to the date upon which the Warrants expire (the "Default Reduction
Period"). In the event the Reduction Period is set by the Board of Directors,
the Corporation will provide a written notice to all holders of Warrants
indicating the dates upon which the Reduction Period shall commence and end.
By acceptance of this Warrant Certificate, the holder hereof consents and
agrees with the Corporation, its Warrant Agent and every other holder of a
Warrant, to the terms of this Warrant Certificate, and to any adjustments to the
terms of the Warrants, the Warrant Exercise Price, the number of Warrants and
the number of shares of Common Stock purchasable pursuant to each Warrant, made
as follows:
(a) The Corporation may, by action of its board of directors
(including the favorable vote of its director elected solely by holders of
its Class A common stock), make any changes or corrections to terms of the
Warrant that it shall deem appropriate to cure any ambiguity or to correct
any inconsistency or manifest mistake or desirable and which shall not
materially adversely affect the interest of the holders of Warrant
Certificates including, without limitation, decreasing the Warrant Exercise
Price.
(b) In the event the Corporation shall hereafter issue any shares of
Common Stock as a stock dividend to the holders of Common Stock, or
subdivide or combine the outstanding shares of Common Stock into a greater
or lesser number of shares (any such issuance, subdivision or combination
being herein called a "Change of Shares"), then, and thereafter upon each
further Change of Shares, the applicable Warrant Exercise Price in effect
immediately prior to such Change of Shares shall be changed to a price
(including any applicable fraction of a cent) determined by multiplying the
Warrant Exercise Price in effect immediately prior thereto by a fraction,
the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such Change of Shares and the denominator
of which shall be the total number of shares of Common Stock outstanding
immediately after such Change of Shares. The number of shares of Common
Stock outstanding at any given time shall include shares of Common Stock
owned or held by or for the account of the Corporation and the sale or
issuance of such treasury shares or the distribution of any such treasury
shares shall not be considered a Change of Shares for purposes of said
sections.
Upon each adjustment of the applicable Warrant Exercise Price pursuant
to this subsection (b) above, the total number of shares of Common Stock
purchasable upon the exercise of each Warrant shall (subject to the
provisions contained in subsection (c) below) be such number of shares
(calculated to the nearest hundredth) purchasable at the applicable Warrant
Exercise Price immediately prior to such adjustment multiplied by a
fraction, the numerator of which shall be the applicable Warrant Exercise
Price in effect immediately prior to such adjustment and the denominator of
which shall be the applicable Warrant Exercise Price in effect immediately
after such adjustment.
(c) In case of any reclassification or capital reorganization of
outstanding shares of Common Stock, or in case of any consolidation or
merger of the Corporation with or into another corporation (other than a
consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any reclassification or capital
reorganization of outstanding shares of Common Stock), the Corporation
shall cause effective provision to be made so that the Registered Holder
shall have the right thereafter to purchase the kind and number of shares
of stock or other securities or property (including cash) receivable upon
such reclassification or capital reorganization, consolidation or merger by
a holder of the number of shares of Common Stock that might have been
purchased by the Registered Holder upon exercise of the Warrants,
immediately prior to such reclassification or capital reorganization,
consolidation or merger. The foregoing provisions shall similarly apply to
successive reclassifications or capital reorganizations of outstanding
shares of Common Stock and to successive consolidations or mergers.
(d) Irrespective of any adjustments or changes in the Warrant Exercise
Price or the number of shares of Common Stock purchasable upon exercise of
any Warrant, this Warrant Certificate shall, unless the Corporation shall
exercise its option to issue new warrant certificates to each holder of
warrants, continue to express the applicable Warrant Exercise Price per
share and the number of shares purchasable thereunder as expressed in this
Warrant Certificate when originally issued, but shall nevertheless
represent the rights of the Registered Holder after giving effect to all
adjustments provided in the Warrant Services Agreement. If the number of
shares of Common Stock purchasable, upon the exercise of each Warrant is
adjusted pursuant hereto; the Corporation shall nevertheless not be
required to issue fractional shares upon exercise of the Warrants or
otherwise, or to distribute certificates that evidence fractional shares or
Warrants to purchase fractional shares. The Corporation shall not pay any
cash in lieu of fractional shares or fractional Warrants.
(e) Except with respect to the Default Reduction Period, promptly
after each adjustment of the Warrant Exercise Price or other modification
of the terms of the Warrants, as authorized or provided herein, the
Corporation will cause a notice describing such adjustments or
modifications to be sent by ordinary first class mail to the Registered
Holder at such Registered Holder's last address as it shall appear on the
registry books of the Warrant Agent.
(f) No adjustment of the Warrant Exercise Price shall be made unless
such adjustment would require an increase or decrease of at least $.01 in
such price; provided that any adjustments which by reason of this clause
(f) are not required to be made shall be carried forward and shall be made
at the time of and together with the next subsequent adjustment which,
together with any adjustment(s) so carried forward, shall require an
increase or decrease of at least $.01 in the Warrant Exercise Price then in
effect hereunder.
(g) Any determination as to whether an adjustment in the Warrant
Exercise Price or other terms of the Warrant in effect hereunder is
required or as to the terms of any such adjustment, shall be binding upon
the holders of the Warrants and the Corporation if made in good faith by
the Board of Directors of the Corporation.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock will be issued. In
the case of the exercise of less than all the Warrants represented hereby, the
Corporation shall cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificate or Warrant Certificates of
like tenor for the balance of such Warrants.
The Warrants may not be transferred except (i) in connection with a merger
or consolidation or otherwise by operation of law, pursuant to court order or
pursuant to the laws of descent and distribution; or (ii) with the express prior
written consent of the Company, in the Company's sole discretion. The Warrants
may be transferred by the Registered Holder if such transfer does not represent
any change of the beneficial ownership of the Warrant (to be evidenced by
written certification to the Warrant Agent). Any attempted transfer in violation
of this provision shall be void and the Company shall have no obligation to give
effect to any transfer in violation of this provision. The Company and the
Warrant Agent may require written representations or other evidence as they deem
necessary to substantiate compliance herewith before permitting any transfer
hereof.
This Warrant Certificate is exchangeable and (subject to the limitations
set forth herein) transferable, upon the surrender hereof by the Registered
Holder at the corporate offices of the Warrant Agent, American Stock Transfer &
Trust Company, located at 00 Xxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other locations provided by written notice to the Registered Holder, for
a new Warrant Certificate or Warrant Certificates of like tenor representing an
equal aggregate number of Warrants, each of such new Warrant Certificates to
represent such number of Warrants as shall be designated by such Registered
Holder at the time of such surrender. Upon due presentment of this Warrant
Certificate for registration of transfer in accordance with the provisions
hereof, together with any tax or other governmental charge imposed in connection
therewith, a new Warrant Certificate or Warrant Certificates representing an
equal aggregate number of Warrants will be issued to the transferee in exchange
therefor.
If this Warrant Certificate shall be surrendered for exercise within any
period during which the transfer books for the Common Stock or other securities
purchasable upon the exercise of this Warrant Certificate are closed for any
purpose, the Corporation shall not be required to make delivery of certificates
for the securities purchasable upon such exercise until the date of the
reopening of said transfer books.
The Corporation shall not be obligated to deliver any securities pursuant
to the exercise or sale of this Warrant Certificate unless a registration
statement under the Securities Act of 1933, as amended, is effective and a
current form of prospectus is available with respect to such securities. The
Corporation has filed a registration statement with the Securities and Exchange
Commission and shall use its reasonable best efforts to keep such registration
statement effective while any of the Warrants are outstanding. This Warrant
Certificate may not be exercised or transferred by a Registered Holder in any
state where such exercise or transfer would be unlawful.
Prior to the exercise of any Warrant represented hereby, the Registered
Holder shall not be entitled to any rights of a stockholder of the Corporation,
including, without limitation, the right to vote or to receive dividends or
other distributions, and shall not be entitled to receive any notice of any
proceedings of the Corporation.
Prior to due presentment for registration of transfer of this Warrant
Certificate, the Corporation and the Warrant Agent may deem and treat the
Registered Holder as the absolute owner hereof and of each Warrant represented
hereby (notwithstanding any notations of ownership or writing hereon made by
anyone other than a duly authorized officer of the Corporation or the Warrant
Agent), for all purposes and shall not be affected by any notice to the
contrary. This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
This Warrant Certificate is not valid unless countersigned by the Warrant
Agent.
IN WITNESS WHEREOF, the Corporation has caused this Warrant Certificate to
be duly executed, manually or in facsimile, on its behalf by its duly authorized
officer.
Dated:
----------------------------
THE XXXXXX GROUP, INC.
By:________________________________
Xxxxxxx X. Xxxxxx, III
President and Chief Executive Officer
COUNTERSIGNED:
AMERICAN STOCK TRANSFER & TRUST COMPANY,
As Warrant Agent
BY:
--------------------------------
Name:
Title:
Exercise Form
EXERCISE OF WARRANTS:
The undersigned Registered Holder hereby irrevocably elects to exercise
one or more Warrants represented by this Warrant Certificate for shares of Class
A Common Stock as indicated below, on the terms and subject to the conditions
specified in the Prospectus, receipt of which is hereby acknowledged.
(a) Please indicate below the number shares of Class A Common
Stock you desire to purchase and the requisite payment for
such shares:
NUMBER OF WARRANT PAYMENT
WARRANTS TO EXERCISE -------
BE EXERCISED* PRICE**
-------------- -------
X $.900 = $
---------
* You are initially entitled to purchase one (1) share of
Class A Common Stock per Warrant.
** The warrant exercise price shall be reduced to $6.00 during
a reduction period of at least 30 days (the "Reduction
Period") to be set by the Board of Directors of the Company
or, if the Reduction Period has not been set prior to the
date 60 days before the Expiration Time, such period will
comprise the last 30 days prior to the date upon which the
Warrants expire. The Corporation will deliver notice to all
registered holders of Warrants in the event the Reduction
Period is set by the Board of Directors.
METHOD OF PAYMENT (check only one box):
(b) [ ] Certificated or uncertified check, bank draft or U.S.
postal money order payable to "American Stock
Transfer and Trust Company, as warrant agent" or
[ ] Wire transfer directed to ________________________,
ABA No. _________, for the account of American Stock
Transfer and Trust Company, as Warrant Agent for The
Xxxxxx Group, Inc., for further credit to Account No.
---------------.
DELIVERY OF REMAINING WARRANTS:
(c) [ ] Do not deliver to the undersigned a new Warrant
Certificate evidencing the remaining Warrants to
which the undersigned is entitled.
[ ] Deliver a new Warrant Certificate in accordance with
the instructions below.
DELIVERY INSTRUCTIONS
Please provide the address for mailing of a certificate representing shares
of Class A Common Stock purchased hereby or a new Warrant Certificate if
different from the address shown on the face of this Warrant Certificate.
Name: ____________________________________________
Address: _________________________________________
_________________________________________
_________________________________________
S I G N A T U R E
Signature(s) of Registered Holder(s): _____________________ Date: ___________
---------------------
(Please sign exactly as your name appears on the face of this Warrant
Certificate. Joint owners should each sign personally. Where applicable,
indicate your official position or representative capacity.)
TRANSFER OF WARRANTS:
TRANSFER OF WARRANTS IS NOT PERMITTED EXCEPT IN LIMITED CIRCUMSTANCES DESCRIBED
IN THE WARRANT CERTIFICATE. THE COMPANY AND THE WARRANT AGENT WILL REQUIRE THE
HOLDER TO SUBMIT WRITTEN REPRESENTATIONS AND EVIDENCE TO DEMONSTRATE THAT ANY
TRANSFER IS PERMITTED BY THE TERMS OF THE WARRANT.
For value received the Registered Holder sells, assigns and transfers the
number of Warrants to the transferee indicated below:
Number of Warrants to be Transferred: __________________________
Address of Transferee: _________________________________________
_________________________________________
Social Security Number or Taxpayer
Identification Number of Transferee: __________________________
Signature(s) of Registered Holder(s): _____________________ Date: ___________
_____________________
(Please sign exactly as your name appears on the face of this Warrant
Certificate. Joint owners should each sign personally. Where applicable,
indicate your official position or representative capacity.)
YOU MUST HAVE YOUR SIGNATURE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION IF
YOU WISH TO HAVE YOUR WARRANTS TRANSFERRED. Please refer to the Prospectus for
discussions regarding Eligible Guarantor Institutions and Guaranteed Signatures.
Signature Guaranteed By: _______________________________
