EXHIBIT 4(7)
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. BOTH THIS WARRANT AND SUCH SHARES HAVE BEEN
ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE SOLD, ENCUMBERED
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENT, AND, IF AN EXEMPTION SHALL BE APPLICABLE, THE HOLDER
SHALL HAVE DELIVERED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
WARRANT
TO PURCHASE 6,269 SHARES OF COMMON STOCK OF
AXSYS TECHNOLOGIES, INC.
EXPIRING JULY 20, 2004
WHEREAS, (i) on July 20, 1994, The CIT Group/Credit Finance,
Inc. ("CIT Finance"), a Delaware corporation, was granted a warrant to
purchase 31,345 shares of Common Stock of the Company (as hereinafter
defined) at a purchase price of $0.34 per share (the "Original
Warrant"); (ii) on July 25, 1996, the Company completed a one-for-five
reverse stock split of its Common Stock (the "Reverse Stock Split");
(iii) on September 24, 1997, CIT Finance's board of directors approved
the assignment of the Original Warrant to its wholly-owned subsidiary,
The CIT Group/CrF Securities Investment, Inc., a New Jersey
corporation with a place of business at 000 XXX Xxxxx, Xxxxxxxxxx, XX
00000; and (iv) the Original Warrant was canceled by the Company as of
the date hereof upon receipt of an executed assignment agreement and
the original executed Original Warrant;
THIS IS TO CERTIFY that for value received, The CIT
Group/CrF Securities Investment, Inc., as assignee of CIT Finance, and
its successors and assigns (the "Holder" or sometimes "Holders") may,
at any time after the date hereof and, before 3:00 P.M., New York City
time, on July 20, 2004 (the "Expiration Date"), exercise this Warrant
in whole or in part from time to time for the purchase of Six Thousand
Two Hundred Sixty-Nine (6,269) shares of Common Stock, par value $.01
per share (such number of shares reflecting the Reverse Stock Split
and being subject to further adjustments from time to time as
hereinafter provided) at the purchase price of $1.70 per share and to
exercise all other appurtenant rights, powers and privileges provided
in this Warrant, all on the terms and conditions hereinafter
specified.
As used herein the following terms have the following
respective meanings:
"Common Stock" shall mean the common stock, $.01 par value,
of the Company.
"Company" shall mean Axsys Technologies, Inc., formerly
Vernitron Corporation, a Delaware corporation, with a place of
business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and any
corporation which shall succeed to or assume the obligations of the
Company hereunder whether by operation of law or otherwise.
"Purchase Price" shall mean $1.70 per share of Common Stock,
the price at which the Holder can exercise this Warrant to purchase
shares of Common Stock, as adjusted in accordance with the provisions
of Section 4 of this Warrant.
"register", "registered", "registration" shall mean a
registration effected by filing a registration statement in compliance
with the Securities Act.
"Securities Act" or "Act" shall mean the Securities Act of
1933, as amended, or any similar Federal statute in effect after the
date hereof, and the rules and regulations of the Securities and
Exchange Commission (or of any other Federal agency then administering
the Securities Act) promulgated thereunder, as the same shall be
amended from time to time.
"Warrant Common Stock" shall mean all shares of Common Stock
issued upon the exercise, by a Holder, of the right to purchase Common
Stock pursuant to the terms of this Warrant.
SECTION 1. EXERCISE OF WARRANT.
1.1 The Holder may, at any time and from time to time
after the date hereof, and, before 3:00 P.M., New York City time, on
the Expiration Date, exercise this Warrant in whole or in part for the
purchase of such number of shares of Common Stock as to which this
Warrant is then exercisable, at the Purchase Price. In order to
exercise this Warrant in whole or in part, the Holder shall deliver to
the Company at its principal office (a) a written notice of such
Holder's election to exercise this Warrant, in substantially the form
annexed hereto, specifying the number of shares of Common Stock to be
purchased, (b) a certified or official bank check or checks payable to
the order of the Company in an amount equal to the aggregate Purchase
Price of the shares of Common Stock being purchased and (c) this
Warrant.
1.2 ISSUANCE OF WARRANT COMMON STOCK. The Company
shall, as promptly as practicable after receipt of the items specified
in Section 1.1, issue to the Holder a single certificate, registered
in the name of the Holder, or Holder's nominee or designee,
representing the number of shares of Common Stock purchased upon such
exercise. Such certificate shall be deemed to have been issued, and
such Holder or such nominee or designee shall be deemed for all
purposes to have become the holder of record of such shares of Common
Stock, as of the close of business on the day payment for such shares
is received by the Company as provided in Section 1.1 (b). If this
Warrant shall have been exercised only in part, the Company shall, at
the time of delivery of said certificate, deliver to the Holder a new
Warrant evidencing the rights of such Holder to purchase the number of
remaining shares of Common Stock called for by this Warrant, which new
Warrant shall in all other respects be identical with this Warrant.
The obligations of the Company to issue shares of Common Stock upon
exercise of this Warrant shall be conditional on the Holder's
compliance with Section 3 hereof. All shares of Common Stock issued
upon exercise of this Warrant shall be validly issued, fully paid and
non-assessable. The Company shall pay all expenses, taxes (other than
stock transfer taxes) and other charges payable in connection with the
preparation, issue and delivery of stock certificates and a new
Warrant under this Section 1.
1.3 COMPANY TO REAFFIRM OBLIGATIONS. The Company will,
at the time of the exercise of this Warrant, in full or in part, upon
the request of the Holder, acknowledge in writing its continuing
obligation to afford to such Holder any rights (including, without
limitation, the right to registration of the Warrants and the shares
of Common Stock issued and issuable upon exercise) to which the Holder
shall continue to be entitled in accordance with the provisions of
this Warrant, provided that if the Holder of this Warrant shall fail
to make any such request, such failure shall not affect the continuing
obligation of the Company to afford to such Holder any such rights.
1.4 ABSENCE OF RIGHTS OF HOLDER. This Warrant shall not
entitle the Holder to any voting rights or other rights as a
shareholder of the Company, or to any rights whatsoever except the
rights herein expressed, and no dividend or interest shall be payable
or accrue in respect to this Warrant or the interest represented
hereby or the shares issuable upon the exercise hereof unless and
until, and except to the extent that, this Warrant shall be exercised.
SECTION 2. TRANSFER AND EXCHANGE; MUTILATED OR MISSING WARRANTS.
2.1 TRANSFER OF WARRANT. This Warrant is transferable,
subject to requirements set forth herein, in whole or in part, on the
books of the Company to be maintained for such purpose, upon surrender
of this Warrant at the principal office of the Company, together with
a written assignment of this Warrant, in substantially the form
annexed hereto, duly executed by the Holder hereof, and funds
sufficient to pay any stock transfer taxes payable upon such transfer.
Upon such surrender and payment the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees and
in the authorized denominations specified in such instrument of
assignment, and this Warrant shall promptly be cancelled. If and when
this Warrant is assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner of this
Warrant for all purposes.
2.2 EXCHANGE OF WARRANT. This Warrant is exchangeable
upon the surrender hereof at the principal office of the Company, for
new Warrants in authorized denominations and of like tenor and date
representing in the aggregate the right to purchase the number of
shares of Common Stock then issuable upon the exercise hereof.
2.3 LOST, STOLEN, DESTROYED OR MUTILATED WARRANT. Upon
receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and, in the case of
loss, theft or destruction, of an indemnity satisfactory to it, and,
in the case of mutilation upon surrender and cancellation of this
Warrant, the Company will execute and deliver a new Warrant of like
tenor and date, upon reimbursement to the Company for all reasonable
expense incidental thereto. Any such new Warrant executed and
delivered pursuant to this section shall constitute a contractual
obligation on the part of the Company, whether or not this Warrant (so
lost, stolen, destroyed or mutilated) shall thereafter at any time be
enforceable by anyone.
2.4 PAYMENT OF EXPENSES, TAXES AND CHARGES. Except as
otherwise provided in Section 2.3, the Company shall pay all expenses,
taxes (other than stock transfer taxes) and other charges payable in
connection with the preparation, issue and delivery of Warrants under
this Section 2.
2.5 WARRANT REGISTRATION. The Company agrees to
maintain, at its principal office, books for the registration and
transfer of the Warrant. Until transfer on the books of the Company,
the Company may treat the registered holder of this Warrant as the
owner hereof for all purposes. The foregoing provisions of this
Section 2 pertaining to transfer or exchange of the Warrant are
subject to the provisions of Section 3.
SECTION 3. COMPLIANCE WITH SECURITIES ACT; REGISTRATION, ETC.
3.1 RESTRICTIONS ON TRANSFER. (a) The Holder, by
acceptance hereof, represents and warrants that this Warrant, and upon
exercise hereof the holder of any Warrant Common Stock will represent
and warrant, that any shares of Warrant Common Stock are being
acquired for its own account for investment without any intent to make
a public distribution thereof in violation of the securities laws and
that this Warrant and such Warrant Common Stock may not be sold,
encumbered or otherwise transferred except pursuant to an effective
Registration Statement under the Act or an exemption from such
registration requirement and, if an exemption shall be applicable, the
Holder or the holder of Warrant Common Stock shall have delivered an
opinion of counsel reasonably satisfactory to the Company that such
registration is not required under the Act.
(b) The Holder acknowledges that the Company may
direct the Transfer Agent for the Warrant and the Warrant Common Stock
to note a stop transfer order upon its records in respect of this
Warrant and any certificates evidencing shares of the Warrant Common
Stock and that in the event of any sale, transfer or exchange of this
Warrant, any Warrant certificate issued by the Company shall bear the
legend contained on the front part of this Warrant. In addition, each
certificate for shares of Common Stock issued upon exercise of this
Warrant shall bear the following legend:
"The shares represented by this certificate
have not been registered under the Securities Act
of 1933, as amended. Such shares have been
acquired by the Holder for its own account for
investment and may not be sold, encumbered or
otherwise transferred except pursuant to an
effective registration statement under such Act or
an exemption from such registration requirement,
and, if an exemption shall be applicable, the
holder shall have delivered an opinion of counsel
reasonably satisfactory to the issuer that such
registration is not required under said Act."
(c) As a condition to any sale, transfer or other
disposition of this Warrant, the transferee shall be required to make
the representations and warranties contained in Section 3.1 (a) hereof
and acknowledge the stop transfer order and consent to the legend
contained in Section 3.1(b) hereof.
3.2 REGISTRATION RIGHTS. If at any time or from time to
time:
(a) the Company shall determine to register any of
its securities (other than by means of a registration statement on a
form (e.g., Form S-8 or Form S-4 or successor forms) which by its
terms could not be used for the sale and distribution of any Warrant
Common Stock) the Company will:
(i) promptly (but not less than thirty (30)
days prior to the filing of any registration
statement) give written notice thereof (which
shall include a list of the jurisdictions, if any,
in which the Company intends to register or
qualify such securities under the applicable blue
sky or other state securities laws) to each holder
of Warrant Common Stock;
(ii) if so requested in writing by any holder
of Warrant Common Stock, use its best efforts to
effect such registration and any qualification and
compliance relating thereto, including, without
limitation, the execution of an undertaking to
file post-effective amendments, appropriate
qualification under applicable blue sky or other
state securities laws and appropriate compliance
with the Securities Act and any other governmental
requirements or regulations as would permit or
facilitate the sale and distribution of all
Warrant Common Stock, unless, in the opinion of
counsel to the Company reasonably acceptable to
the holder of the Warrant Common Stock who wishes
to have them included in such registration
statement, registration under the Act is not
required for the sale of such Warrant Common Stock
in the manner proposed by such holders.
Notwithstanding the foregoing, if any managing
underwriter of the Company's offering shall advise
the Company in writing that, in its opinion, the
distribution of all or a portion of the Warrant
Common Stock (the "Piggy-back Shares") requested
to be included in the registration statement
concurrently with the securities being registered
by the Company would materially adversely affect
the distribution of such securities by the Company
for its own account, then the holders of such
Warrant Common Stock shall delay their offering
and sale of Warrant Common Stock (or the portions
thereof so designated by such managing
underwriter) for such period, not to exceed 180
days, as the managing underwriter shall request.
In the event of such delay, the Company shall file
such supplements, post-effective amendments or
separate registration statement, and take any such
other steps as may be necessary to permit such
holders to make their proposed offering
and sale for a period of 90 days immediately following the
end of such period of delay ("Piggy-back Termination Date");
provided, however, that if at the Piggy-back Termination
Date the Piggy-back Shares are covered by a registration
statement which is, or is required to remain, in effect
beyond the Piggy-back Termination Date, the Company shall
maintain in effect the registration statement as it relates
to the Piggy-back Shares for so long as such registration
statement remains or is required to remain in effect for any
other such securities.
(iii) bear all expenses in connection with
such registration, qualification and compliance,
including, without limitation, all registration
and filing fees, printing expenses, fees and
disbursements of the Company's counsel (but
exclusive of the fees and disbursements of legal
counsel retained by holders of Warrant Common
Stock) and expenses of any audits incident to or
required by any such registration, qualification
or compliance, provided, that the Company shall
not, in any event, be required to bear the cost of
any commissions and compensation paid, and
concessions and discounts allowed to,
underwriters, dealers or others performing similar
functions in connection with the sale and
distribution of the Warrant Common Stock sold by
any holders thereof.
3.3 NO ADDITIONAL LIABILITY. Notwithstanding anything
to the contrary contained in this Section 3 or elsewhere herein, the
Company will not, in any event, be obligated to qualify any Warrant
Common Stock covered by a registration statement under any blue sky or
other state securities law if the Company would by reason thereof be
required to qualify to do business in any jurisdiction where it is not
then so qualified.
3.4 NOTIFICATION; CONTINUATION OF EFFECTIVENESS. In the
case of each registration, qualification and compliance pursuant to
this Section 3, the Company will keep all holders of Warrant Common
Stock promptly advised in writing as to the initiation of proceedings
for such registration, qualification and compliance and as to the
completion thereof, and will advise, upon request, of the progress of
such proceedings. The Company will, at its expense, keep such
registration, qualification and compliance effective for a period of
90 days after the later of (x) the effective date of such registration
statement or (y) the last day on which the holder of this Warrant is
restricted in selling Warrant Common Stock, as set forth in Section
3.2(a)(ii) hereof.
3.5 INFORMATION FROM HOLDERS. The Company may require
the holder of Warrant Common Stock, as a condition to having the
Warrant Common Stock included among the securities as to which any
registration, qualification or compliance referred to in this Section
3 is being effected, to furnish to the Company such reasonable
information regarding the proposed distribution of the Warrant Common
Stock as the Company may request in writing and as shall be required
in connection with such registration, qualification or compliance.
3.6 PROSPECTUSES, ETC. Company will, at its expense,
furnish to each holder of Warrant Common Stock with respect to which
registration has been effected, such number of prospectuses, offering
circulars and other documents incident to such registration and
related qualification or compliance as such holder from time to time
may reasonably request.
3.7 INDEMNIFICATION. The Company will indemnify each
holder of Warrant Common Stock (and each person, if any, who or which
controls such holder) and each underwriter of the Warrant Common Stock
held by or issuable to such holder, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification
or the like) incident to any registration, qualification or compliance
referred to in this Section 3, or arising out of or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance,
and will reimburse each such holder of Warrant Common Stock (and each
person, if any, who or which controls such holder of Warrant Common
Stock) and each such underwriter for any legal or any other expenses
reasonably incurred
in connection with investigating or defending any such claim,
loss, damage, liability or action, provided, that the
Company will not be liable in any such case to the extent that any
such claim, loss, damage or liability arises out of or is based on any
untrue statement or omission based upon written information furnished
to the Company by an instrument duly executed by such holder of
Warrant Common Stock (and each person, if any, who or which controls
such holder of Warrant Common Stock) or underwriter and stated
specifically to be for use therein. The Company may require of such
holder of Warrant Common Stock, as a condition to having such Warrant
Common Stock held or issuable to holder of Warrant Common Stock
included among the securities as to which such registration,
qualification or compliance is being effected, that each such holder
of Warrant Common Stock and underwriter will indemnify the Company,
its directors, and its officers who sign the registration statement in
respect of such registration against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any written information furnished by such holder for
inclusion in the registration statement by such holder of Warrant
Common Stock or underwriter, as the case may be, or an omission (or
alleged omission) to state in any such written information a material
fact required to be stated therein or necessary to make the statement
therein not misleading.
3.8 NOTICE OF CLAIM, ETC. Each party entitled to
indemnification hereunder (the "Indemnified Party") shall give notice
to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to participate in the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall participate in the defense of such claim
or litigation, shall be acceptable to the Indemnified Party (which
acceptance shall not be unreasonably withheld), and provided further,
that the failure of any Indemnified Party to give notice as provided
in this Section 3.8 shall not relieve the Indemnifying Party of its
obligation under Section 3.7.
3.9 LISTING ON SECURITIES EXCHANGES, ETC. The Company
will, at its expense, promptly list on each national securities
exchange or quotation system on which Common Stock is at the time
listed, upon official notice of issuance upon the exercise of the
Warrant, all Warrant Common Stock, provided that the Warrant Common
Stock is registered under the Securities Act of 1933.
3.10 RIGHT TO DELIVER CASH. Notwithstanding the
provisions of this Warrant, the Company shall have the right, in lieu
of including the shares of Warrant Stock in a registration statement
pursuant to Section 3.2(a) or effecting a demand registration pursuant
to Section 3.2(b) hereof, to elect to purchase the Warrant Common
Stock to be included in such registration statement by delivering to a
holder of Warrant Common Stock cash in the amount ("Repurchase
Amount") equal to the number of shares of Warrant Common Stock to be
included in such registration statement multiplied by an amount equal
to the closing price (or, if applicable, the average of the closing
bid and asked prices) of the Company's Common Stock on the last
trading day immediately preceding the day of notice by the Company
pursuant to Section 3.2(a)(1) or the day preceding the day of demand
pursuant to Section 3.2(b), as the case may be. If the Company elects
to exercise its rights hereunder, it should so notify the holders of
Warrant Common Stock within 10 business days of such notice or demand,
as the case may be. The holders shall thereupon promptly deliver the
certificates evidencing shares of Warrant Common Stock to be sold at
the time and place designated in the Company's notice, in duly
transferable form, together with a representation and warranty of good
title free and clear of all liens and encumbrances against receipt
from the Company of a bank or certified check payable to the
respective order of such holders in the Repurchase Amount.
SECTION 4. ADJUSTMENT OF NUMBER AND PURCHASE
PRICE OF SHARES COVERED BY WARRANT.
4.1 ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If the
Company:
(a) pays a dividend or makes a distribution on its
Common Stock in its Common Stock;
(b) subdivides its outstanding Common Stock into a
greater number of shares;
(c) combines its outstanding Common Stock into a
lesser number of shares;
(d) pays a dividend or makes a distribution on its
Common Stock in shares of its capital stock other than Common Stock;
or
(e) issues by reclassification of its Common Stock
any shares of its capital stock,
then the Purchase Price in effect immediately prior to such action
shall be adjusted so that the Holder of this Warrant thereafter may
receive the number of shares of capital stock of the Company which he
would have owned immediately following such action if he had exercised
the Warrant immediately prior to such action.
The adjustment shall become effective immediately
after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a sub-division,
combination or reclassification.
If after an adjustment a Holder of this Warrant
upon exercise of it may receive shares of two or more classes of
capital stock of the Company, the Board of Directors of the Company
shall in good faith determine the allocation of the adjusted exercise
price between the classes of capital stock. After such allocation, the
price of each class of capital stock shall thereafter be subject to
adjustment on terms comparable to those applicable to Common Stock in
this Section 4.
4.2 ADJUSTMENT FOR RIGHTS OR WARRANTS ISSUED BELOW
MARKET PRICE. If the Company distributes any rights or warrants to
holders of its Common Stock entitling them to subscribe for or
purchase Common Stock at a Price Per Share (as defined and determined
according to the formula given below) lower than the Current Market
Price (as determined pursuant to Section 4.5) on the record date for
the determination of the shareholders entitled to receive such rights
or warrants, the Purchase Price shall be adjusted in accordance with
the following formula:
R
-
AE = CE x O + M
---------
0 + N
where
AE = the adjusted exercise price.
CE = the then current exercise price.
O = the number of shares of Common Stock outstanding at the
close of business on such record date. The number of shares
of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company.
N = the maximum number of additional shares of Common Stock
offered.
R = the total amount, if any, received or receivable by the
Company in consideration for the distribution of such rights
or warrants, plus the minimum aggregate amount of additional
consideration payable to the Company upon exercise thereof.
M = the Current Market Price for one share of Common Stock on
the record date.
"Price Per Share" shall be defined and determined
according to the following formula:
P = R
-
N
where
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall distribute rights or warrants for
a consideration consisting, in whole or in part, of property other
than cash the amount of such consideration shall be determined in good
faith by the Board of Directors whose determination shall be
conclusive and evidenced by a resolution of the Board of Directors
filed with the Secretary of the Company and a copy thereof made
available to the Holder of this Warrant.
The adjustment shall be made successively whenever any
such rights or warrants are distributed, and shall become effective
immediately after the record date for the determination of
shareholders entitled to receive such rights or warrants.
To the extent that such rights or warrants expire
unexercised, the Purchase Price shall be readjusted to the Purchase
Price which would then be in effect had the adjustment made upon the
record date of distribution of such rights or warrants been made upon
the basis of the distribution of rights or warrants to subscribe for
or purchase only the number of shares of Common Stock as to which such
rights or warrants were actually exercised.
4.3 ADJUSTMENT FOR OTHER DISTRIBUTIONS. If the Company
distributes to all holders of its Common Stock any of its assets or
debt securities or any rights or warrants to purchase assets or debt
securities of the Company, the Purchase Price shall be adjusted in
accordance with the formula:
AE = CE x (O x M) - F
-----------------
O x M
where:
AE = the adjusted exercise price.
CE = the then current exercise price.
O = the number of shares of Common Stock outstanding on the
record date mentioned below. M = the Current Market Price
per share of Common Stock on the record date mentioned
below.
F = the aggregate fair market value on the record date of the
assets, securities, rights or warrants distributed. The
Board of Directors of the Company shall in good faith
determine the fair market value thereof.
The adjustment shall become effective immediately
after the record date for the determination of stockholders entitled
to receive the distribution.
This Section 4.3 does not apply to (i) regular
cash dividends, (ii) to reclassifications or distributions referred to
in Section 4.1, or (iii) distributions of securities referred to in
Section 4.2.
4.4 LIMITATIONS ON ADJUSTMENT. The Company at any time
may reduce the Purchase Price, temporarily or otherwise, by any
amount, but in no event shall such exercise price be less than the par
value of the Common Stock at the time such reduction is made.
4.5 CURRENT MARKET PRICE. In this Section 4, the
current market price (the "Current Market Price") per share of Common
Stock on any date shall be the average of the "Immediate Market Price"
of the Common Stock for the five consecutive trading days immediately
preceding the date in question. The "Immediate Market Price" of the
Common Stock shall be the closing sale price of the Common Stock on
the principal trading market for the Common Stock on the trading day
immediately preceding the date of the event giving rise to such
determination or, if there is no such sale price, the average of the
closing bid and asked prices for the Common Stock on such trading day
on the principal trading market for the Common Stock, as determined by
the Board of Directors, whose determination shall be made in good
faith and shall be conclusive and described in a resolution of the
Board of Directors.
4.6 WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in
the Purchase Price need be made unless the adjustment would require an
increase or decrease of at least 1% in the exercise price. Any
adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
All calculations under this Section 4 shall be
made to the nearest cent or to the nearest 1/100th of a share, as the
case may be.
4.7 REORGANIZATION OF THE COMPANY. If the Company is a
party to a consolidation or merger transaction in which it is not the
surviving corporation, the corporation which is the surviving
corporation shall enter into a supplemental agreement.
The supplemental agreement shall provide that the
Holder of the Warrant may exercise the Warrant for the kind and amount
of securities, cash or other assets which he would have owned
immediately after the consolidation or merger transaction if he had
exercised the Warrant immediately before the effective date of the
transaction. The supplemental agreement shall provide for adjustments
which shall be as nearly equivalent as may be practical to the
adjustment provided for in this Section 4. Such surviving corporation
shall mail to Holder a notice briefly describing the supplemental
agreement. The above provisions of this Section shall apply similarly
to successive consolidations and mergers.
If this Section 4.7 applies, Section 4.1 does not
apply. Notwithstanding any provision hereof to the contrary, in the
event the Company shall be a party to a merger or consolidation and
neither the surviving corporation thereof nor any entity controlling
the surviving corporation shall have common stock registered under the
Securities Exchange Act of 1934, the Warrant shall be exercisable only
for the kind and amount of consideration payable per share of Common
Stock to holders of Common Stock in such merger or consolidation, less
the Purchase Price per share for each share of Common Stock covered by
this Warrant.
4.8 FRACTIONAL SHARES. In case at any time the total
number of shares issuable upon exercise of this Warrant shall be
increased or decreased pursuant to any of the provisions of this
Section 4, such total number of shares issuable shall be rounded out
to the nearest full share and no adjustment shall be made with respect
to any fractional share of Common Stock which otherwise would be
issuable as a result of any computation made pursuant to this Section.
4.9 CERTIFICATE. Whenever there is an adjustment in the
number and/or purchase price of shares of Common Stock issuable upon
exercise of this Warrant, as provided herein, the Company shall
promptly file with the Holder a certificate signed by the President or
a Vice President of the Company and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company,
showing in detail the facts requiring such adjustment and the purchase
price per share and number and kind of securities issuable upon
exercise of the Warrant after such adjustment.
SECTION 5. COVENANTS.
5.1 RESERVATION OF SHARES. The Company shall reserve
out of its authorized shares of Common Stock a number of shares
sufficient at all times to enable it to comply with its obligation to
issue shares of fully paid and non-assessable Common Stock upon the
exercise of the Warrant.
5.2 FURTHER ACTION. The Company will not, by amendment
of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but
shall at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment as elsewhere set forth
in this Agreement.
5.3 PRIOR NOTICE OF CERTAIN EVENTS. If the Company
shall take any action:
(a) to make any distribution to the holders of
Common Stock;
(b) to offer for subscription pro rata to the
holders of Common Stock any additional shares of stock of any class or
other rights;
(c) to accomplish any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation
or merger of the Company with, or sale of all or substantially all of
its assets, to another corporation; or
(d) to effect a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then in any one or more of such events, concurrent with the giving of
notice thereof to the Company's stockholders, the Company shall give
like notice thereof to the Holder of this Warrant. Such notice shall
also specify, in the case of any such distribution or subscription
rights, the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up,
as the case may be.
SECTION 6. MISCELLANEOUS.
6.1 NOTICE. All communications in connection herewith
shall be in writing and if sent to the Holder or to the holders of
Warrant Common Stock shall be mailed, delivered or telegraphed to such
Holder or holders of Warrant Common Stock at the last address shown on
the books of the Company maintained for the registry and transfer of
the Warrant or if sent to the Company shall be mailed, delivered or
telegraphed to it at Axsys Technologies, Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (until another address is furnished to the Holder
or holders of Warrant Common Stock in writing by the Company).
6.2 GOVERNING LAW. This Warrant and the provisions
contained herein 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 Delaware.
6.3 SPECIFIC PERFORMANCE. The Company stipulates that
the remedies at law of the Holder hereof and of the holders of Warrant
Common Stock in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of
this Warrant are not and will not be adequate, and that such terms may
be specifically enforced by a decree for the specific performance of
any agreement contained herein.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be executed by its Vice President - General Counsel thereunto duly
authorized and its corporate seal to be hereunto affixed and attested
by its Treasurer as of the 15th day of October, 1997.
AXSYS TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President - General Counsel
ATTEST:
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------
Xxxxxxx Xxxxxxxxxx
Treasurer
