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EXHIBIT 4.3
REPRESENTATIVES WARRANT AGREEMENT
DATED AS OF ________, 1997
BETWEEN
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
AND
[--------------------------]
AS
WARRANT AGENT
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TABLE OF CONTENTS
PAGE
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Section 1. Appointment of Warrant Agent............................. 1
Section 2. Limitation on Issue...................................... 1
Section 3. Date, Denomination and Execution of Warrant Certificates. 2
Section 4. Issue of Warrant Certificate............................. 2
Section 5. Split-up, Combination and Exchange of Warrant Certificates. 3
Section 6. Mutilated, Destroyed, Lost or Stolen Warrant Certificates. 3
Section 7. Exercise of Warrant Certificates and Exercise Price...... 3
Section 8. Adjustments of Exercise Price............................ 6
Section 9. Reorganization, Consolidation, Merger, Sale of Assets. .. 8
Section 10. Fractional Interests..................................... 9
Section 11. Warrant Certificate Holder Not Deemed a Stockholder...... 9
Section 12. Rights of Action......................................... 9
Section 13. Agreement of Warrant Certificate Holders................. 9
Section 14. Cancellation of Warrant Certificates..................... 10
Section 15. Concerning the Warrant Agent............................. 10
Section 16. Merger or Consolidation or Change of Name of Warrant Agent 10
Section 17. Duties of Warrant Agent.................................. 11
Section 18. Change of Warrant Agent.................................. 12
Section 19. Issuance of New Warrant Certificates..................... 13
Section 20. Notices.................................................. 13
Section 21. Modification of Agreement................................ 14
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Section 22. Successors............................................... 14
Section 23. Governing Law............................................ 14
Section 24. Benefits of This Agreement............................... 14
Section 25. Descriptive Headings..................................... 14
Section 26. Counterparts............................................. 15
EXHIBIT A............................................................ X-0
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XXXXXXXXXXXXXXX XXXXXXX AGREEMENT
THIS WARRANT AGREEMENT (this "AGREEMENT"), dated as of ______, 1997, is
made and entered into by and between HANOVER CAPITAL MORTGAGE HOLDINGS, INC., a
Maryland corporation (hereinafter called the "COMPANY"), and
[__________________], as warrant agent (hereinafter called the "WARRANT AGENT").
WITNESSETH THAT:
WHEREAS this Agreement is made with reference to the following facts:
A. The Company has entered into an Underwriting Agreement, dated as of
August __, 1997 (the "UNDERWRITING AGREEMENT"), with Xxxxxx, Xxxxxxxx & Company,
Incorporated ("STIFEL") and Xxxxxxxxxx Securities ("XXXXXXXXXX"; Stifel and
Xxxxxxxxxx, collectively, referred to as the "REPRESENTATIVES"), as
representatives of the several underwriters;
B. The Company has agreed to issue Common Stock Purchase Warrants
(hereinafter called the "WARRANTS") to the Representatives, initially entitling
the Representatives to purchase either (a) 138,000 shares of its Common Stock,
par value $.01 per share (hereinafter called the "COMMON STOCK") if the Optional
Units (as defined in the Underwriting Agreement) are not purchased or (b)
158,700 shares of its Common Stock if the Optional Units (as defined in the
Underwriting Agreement) are purchased;
C. In accordance with the provisions of Section 7 hereof, the Warrants
will not be exerciseable until six months after issuance; and
D. The Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the issuance,
transfer, exchange, replacement and exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the terms and
conditions hereinafter set forth in this Agreement, and the Warrant Agent hereby
accepts such appointment.
Section 2. Limitation on Issue. Subject to Sections 4, 6 and 8 hereof, the
Company may execute and deliver to the Warrant Agent for countersignature, and
the Warrant Agent shall, upon written order of the Company signed by its
President or a Vice President, thereupon countersign and deliver certificates
evidencing the Warrants (the "WARRANT CERTIFICATES") to the Company. Such
Warrant Certificates initially shall evidence 138,000 (or 158,700 if the
Optional Units under the Underwriting Agreement
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are purchased) Warrants entitling the Representatives to purchase, subject to
the provisions of Section 8 hereof, 138,000 (or 158,700 if the Optional Units
under the Underwriting Agreement are purchased) shares of Common Stock.
Section 3. Date, Denomination and Execution of Warrant Certificates. The
Warrant Certificates (and the forms of election to purchase shares and of
assignment to be printed on the reverse thereof) shall be substantially in the
form of Exhibit A hereto and 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 Company 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 stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates (a)
upon initial issuance, shall be dated by the Warrant Agent as of the issue date
of the Warrants, and (b) upon transfer, exchange or an issuance of Warrants
other than the initial issuance of the Warrants, the Warrants shall be dated as
of the date of issuance thereof. The Warrants shall entitle the holders thereof
to purchase only whole shares of Common Stock at the price per share set forth
therein, subject to adjustments as provided herein, and to be paid the value of
any fractional shares as provided in Section 10 hereof.
The Warrant Certificates shall be executed on behalf of the Company by its
President or a Vice President, by the Secretary or an Assistant Secretary, by
manual or facsimile signature, and shall have affixed thereto a facsimile of the
Company's seal. The Warrant Certificates shall be mutually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned. In
the event any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer of the Company, whether before or
after countersignature by the Warrant Agent and issue and delivery thereof by
the Company, such Warrant Certificates, nevertheless, may be countersigned by
the Warrant Agent, issued and delivered with the same force and effect as though
the person who signed such Warrant Certificate had not ceased to be such officer
of the Company.
Section 4. Issue of Warrant Certificate. Subsequent to their original
issuance, no Warrant Certificates shall be issued except (a) Warrant
Certificates based upon transfers thereof in accordance with Section 13 hereof,
(b) Warrant Certificates issued upon the partial exercise of any Warrant to
evidence the unsubscribed portion of such Warrant, (c) Warrant Certificates
issued upon any combination, split-up or exchange of Warrant Certificates
pursuant to Section 5 hereof, (d) Warrant Certificates issued in replacement of
mutilated, destroyed, lost or stolen Warrant Certificates pursuant to Section 6
hereof, and (e) Warrant Certificates to reflect any change in the Exercise Price
(as hereinafter defined) and the number of shares of Common Stock purchasable
thereunder and issued pursuant to Section 19 hereof.
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The Warrant Agent will keep or cause to be kept, at its principal office,
books for registration and transfer of the Warrants issued hereunder. Such
registers shall show the names and addresses of the respective holders of the
Warrant Certificates and the numbers of shares of Common Stock which may be
purchased by each issued Warrant.
Section 5. Split-up, Combination and Exchange of Warrant Certificates. A
Warrant Certificate or Warrant Certificates, may be split-up, combined or
exchanged for another Warrant Certificate or Warrant Certificates entitling the
registered holder thereof to purchase a like aggregate number of shares of
Common Stock as the Warrant Certificate or Warrant Certificates surrendered then
entitled him to purchase. Any registered holder of a Warrant Certificate
desiring to split-up, combine or exchange Warrant Certificates shall make such
request in writing delivered to the Warrant Agent, and shall surrender the
Warrant Certificate or Warrant Certificates to be so split-up, combined or
exchanged. Thereupon the Warrant Agent shall countersign and deliver to the
person entitled thereto a Warrant Certificate or Warrant Certificates, as the
case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any such split-up, combination or exchange of Warrant
Certificates.
Section 6. Mutilated, Destroyed, Lost or Stolen Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in the event of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and reimbursement to them of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Warrant Certificate, if mutilated, the Company will issue and the Warrant
Agent shall countersign and deliver a new Warrant Certificate of like tenor for
the same number of shares of Common Stock. Applicants for such substitute
Warrant Certificates shall comply with such other reasonable regulations and pay
such other reasonable charges as the Company or the Warrant Agent may prescribe.
Any such new Warrant Certificate shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, destroyed
or mutilated Warrant Certificate shall be at any time enforceable by anyone.
Section 7. Exercise of Warrant Certificates and Exercise Price. Each
Warrant Certificate shall, when countersigned by the Warrant Agent, entitle the
holder thereof, subject to the provisions of this Agreement, to purchase from
the Company the number of whole shares of Common Stock stated therein, as such
shares are constituted on the date of its exercise. The registered holder of any
Warrant Certificate may exercise the Warrants in whole at any time, or in part
from time to time (but not as to fractional shares of Common Stock), upon (a)
surrender of said Warrant Certificate, with the form of election to purchase on
the reverse side thereof duly executed, to the Warrant Agent at the principal
office of the Warrant Agent in the City of [New York], State of [New York], only
after the opening of business on [Insert date which is six months after the
initial closing of the offering] and on or prior to the close of business on
[Insert date which is three years after the date of the Prospectus], at which
time the Warrants shall
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be and become wholly void and of no value and all rights of the registered
holders thereunder and under this Agreement shall cease, and (b) payment of the
Exercise Price for each share of Common Stock as to which the Warrants are
exercised. No adjustment shall be made for any cash dividends on any shares of
Common Stock issuable on exercise of Warrants.
A Warrant initially shall evidence the right to purchase one share of
Common Stock subject to adjustment as provided in Section 8 hereof. The Exercise
Price for each whole share of Common Stock purchasable pursuant to the exercise
of the Warrants shall be [insert initial public offering price of the Units] per
whole share in lawful money of the United States of America, subject to
adjustment as provided in Section 8 hereof. Except as the context otherwise
requires, the term "Exercise Price" as used in this Agreement shall mean the
Exercise Price for each whole share of Common Stock purchasable upon exercise of
the Warrants in effect as of any date and shall reflect all adjustments made in
accordance with the provisions of Section 8 through and at such date. Each
Exercise Price shall continue in effect until further adjusted pursuant to the
provisions of said Section 8.
Payment of the Exercise Price may be made (a) in the form of cash or by
certified or official bank check payable to the order of the Company or (ii) by
surrendering additional Warrants or shares of Common Stock for cancellation to
the extent the Company may lawfully accept shares of Common Stock in the
Company, with the value per share of such Common Stock for such purpose being
equal to the current market price per share of Common Stock determined in
accordance with Section 8(e) hereof as on the business day next preceding the
date the Warrant Certificates are surrendered for exercise and the value of a
Warrant being equal to the difference between such current market price per
share of Common Stock and the Exercise Price.
Upon receipt of a Warrant Certificate, with the form of election to
purchase duly executed, accompanied by payment of the Exercise Price for the
shares to be purchased and an amount equal to any applicable transfer tax, the
Warrant Agent shall thereupon promptly (i) requisition from any transfer agent
of the Common Stock of the Company, certificates for the number of whole shares
of Common Stock to be purchased, and (ii) promptly after receipt of such
certificates cause the same to be delivered to or upon the order of the
registered holder of such Warrant Certificate, registered in such name or names
as may be properly designated by such holder.
If a Certificate is exercised with respect to less than all of the shares
of Common Stock that may be subscribed for by the Warrants evidenced thereby, a
new Warrant Certificate for the unexercised Warrants shall be issued by the
Warrant Agent to the registered holder of such Warrant Certificate or to his
duly authorized assigns.
The Company covenants and agrees that it will cause to be reserved, out of
its authorized and unissued shares of Common Stock, a number of shares of Common
Stock that will be sufficient to permit the exercise in full of all outstanding
Warrants. As a
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condition precedent to the taking of any action which would result in the
Exercise Price for each share of Common Stock issuable upon the exercise of
Warrants being less than the par value per share of Common Stock, the Company
will take such corporate action as may, in the opinion of its counsel, be
necessary in order that the Company may comply with all of its obligations under
this Agreement with respect to the exercise of the Warrants.
The Company covenants and agrees that all the shares of Common Stock
delivered upon exercise of the Warrants shall, at the time of delivery of the
certificates for such shares (subject to payment of the Exercise Price), be
validly authorized and issued and fully paid and non-assessable shares. The
Company further covenants and agrees that it will pay when due and payable any
and all federal and state taxes and charges which may be payable in respect of
the issue or delivery of the Warrants or any shares of Common Stock upon the
exercise of the Warrants. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the transfer or
delivery of the Warrants or the issuance or delivery of certificates for Common
Stock in a name other than that of the registered holder of the Warrant
Certificate surrendered for exercise of the Warrants evidenced thereby or to
issue or deliver any certificate for shares of Common Stock upon the exercise of
any Warrant until any such tax shall have been paid (all such tax being payable
by the holder of such Warrant Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that no such tax is due.
The Company has filed a Registration Statement (File No. 333-29261) with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "SECURITIES ACT") registering the sale of the Warrants and the
Common Stock issuable upon exercise of the Warrants. The Company covenants and
agrees that it will take all action which may be necessary to keep effective the
registration under the Securities Act of the shares of Common Stock issuable
upon exercise of the Warrants and that it will use its best efforts to qualify
such Common Stock for sale under the securities laws of such of the States of
the United States as may be necessary to permit the free exercise of the
Warrants in all of the States of the United States in which the Common Stock is
qualified, and to maintain such qualifications during the entire period in which
the Warrants are exercisable; provided, however, that the Company shall not be
required in connection with any such qualification to file a general consent to
service of process or qualify to do business as a foreign corporation of any
jurisdiction where it is not now so subject or qualified.
The Company covenants and agrees that it will take all action which may be
necessary to cause the shares of Common Stock issuable upon exercise of the
Warrants to be duly listed on the securities exchange in which the other shares
of Common Stock of the Company are listed at the dates of exercise of the
Warrants.
Each person in whose name any certificate for shares of Common Stock is
issued upon the exercise of the Warrants shall for all purposes be deemed to
have become the
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holder of record of the Common Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate was duly
surrendered and payment of the Exercise Price (and any applicable transfer
taxes) was made, provided, however, that if the date of such surrender and
payment is a date upon which the Common Stock transfer books of the Company are
closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding business day
on which the Common Stock transfer books of the Company are open.
Section 8. Adjustments of Exercise Price. (a) In the event the Company
after the date hereof shall (i) pay a dividend or make a distribution in shares
of capital stock of the Company, or (ii) subdivide its outstanding shares of
Common Stock, or (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its shares of
Common Stock any shares of capital stock of the Company, the exercise right and
the Exercise Price in effect immediately prior to such action shall be adjusted
so that the holder of any Warrant thereafter surrendering such Warrant for
exercise shall be entitled to receive the number of shares of capital stock of
the Company which he would have owned immediately following such action had such
Warrant been exercised immediately prior to the record date for such action or
to such action, as appropriate. An adjustment made pursuant to this Section 8(a)
shall, in the case of a subdivision, combination or reclassification become
effective retroactively immediately after the record date thereof. If, as a
result of an adjustment made pursuant to this Section 8(a), the holder of any
Warrant thereafter surrendered for exercise shall become entitled to receive
shares of two or more classes of capital stock of the Company, the Board of
Directors of the Company (whose determination shall be described in a
certificate filed with the Warrant Agent) shall in good faith determine the
allocation of the adjusted Exercise Price between or among shares of such
classes of capital stock.
(b) In the event the Company after the date hereof shall distribute to all
the holders of Common Stock any dividend or other distribution (other than a
cash distribution made as a dividend payable out of earnings or out of any
earned surplus legally available for dividends under the laws of the
jurisdiction of incorporation of the Company) or any evidence of indebtedness or
any assets in respect of the Common Stock, or rights to subscribe or purchase
shares of Common Stock at a price per share less than the current market price
per share of Common Stock (as defined in Section 8(e)) at the record date
referenced below, then, and thereafter successively upon each such distribution,
the Exercise Price in effect immediately prior to such distribution shall
forthwith be reduced to a price determined by multiplying the Exercise Price in
effect immediately prior to such distribution by a fraction the numerator of
which shall be the current market price per share of Common Stock (as defined in
Section 8(e)) at the record date referenced below, less then fair market value
(as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a certificate filed with the Warrant Agent)
of the portion of such evidences of indebtedness or such assets so distributed,
or of such subscription or purchase rights, applicable to one
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share of Common Stock and the denominator of which shall be such current market
price per share of Common Stock. An adjustment made pursuant to Section 8(b)
shall become effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such distribution.
(c) After each adjustment of the Exercise Price pursuant to Section 8(a)
and 8(b), the total number off shares of Common Stock or fractional part thereof
purchasable upon the exercise of each Warrant shall be proportionately adjusted
to such number of shares or fractional part thereof as the total Exercise Price
of the number of shares or fractional part thereof purchasable immediately prior
to such adjustment will buy at the adjusted Exercise Price.
(d) The certificate of any independent firm of public accountants of
recognized national standing selected by the Board of Directors of the Company
shall be conclusive evidence of the correctness of any computations under
Sections 8(a) and 8(b).
(e) For the purposes of Sections 7, 8(a) and 8(b) hereof, the current
market price per share of Common Stock as of any date of determination shall be
deemed to be the average of the daily closing prices for the consecutive 20
trading days preceding the day of determination. The closing price for the day
shall be the last reported sale price regular way or, in case no such reported
sale takes place on that day, the average of the reported closing bid and asked
xxxxx regular way, in either case as officially reported by the principal stock
exchange on which the Common Stock is listed or admitted to trading, or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange, the average of closing bid and asked prices as furnished by the
National Association of Securities Dealers, Inc. through the national
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
similar organization if NASDAQ is no longer reporting such information.
(f) No adjustment of the Exercise Price shall be required under Sections
8(a) and 8(b) hereof if the amount of such adjustment is less than 1%; provided,
however, that any adjustments which by reason of the foregoing are not required
at the time to be made shall be carried forward and taken into account and
included in determining the amount of any subsequent adjustment. If the Company
shall take a record of holders of Common Stock for the purpose of entitling them
to receive any dividend or distribution and thereafter and before the
distribution to stockholders of any such dividend or distribution, legally
abandon its plan to pay or deliver such dividend or distribution, then no
adjustment of the Exercise Price shall be required by reason of the taking of
such record. All calculations under this Section 8 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Exercise Price is adjusted pursuant to this Section 8,
the Company shall promptly file with the Warrant Agent and with each transfer
agent for the Common Stock a certificate signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the
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Company setting forth in reasonable detail the events requiring the adjustment,
the method by which such adjustment was calculated, and specifying the Exercise
Price and the number or kind or class of shares or other securities or property
purchasable upon exercise of the Warrants after giving effect to such
adjustment, and will cause to be mailed, first class, postage prepaid a summary
thereof to the registered holders of the Warrant Certificates at their last
addressees as they appear on the registry books of the Warrant Agent.
(h) For the purposes of this Section 8, the term "Common Stock" shall mean
(i) the class of stock designated as the common stock, par value .01 per share,
of the Company, at the date of this Agreement, (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 at any time, as a result of an
adjustment made pursuant to Section 8(a), shares of capital stock of the Company
other than shares of Common Stock are issuable upon exercise of the Warrants,
thereafter the number of such other shares so issuable shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock contained in this
Section 8, and all other provisions of this Agreement with respect to Common
Stock shall apply on like terms to any such other shares. Subject to the
foregoing, and unless the context requires otherwise, all references to Common
Stock in this Agreement and in the Warrant Certificates shall, in the event of
an adjustment pursuant to this Section 8, be deemed to refer also to any other
securities or property then issuable upon exercise of the Warrants as a result
of such adjustments.
Unless and to the extent that the Company shall exercise the option to
issue new warrant certificates as provided in Section 19, irrespective of the
fact that the Warrant Certificates theretofore and thereafter issued shall
continue to express the Exercise Price per share and the number of shares
purchasable thereunder as the Exercise Price per share and the number of shares
purchasable were expressed in the Warrant Certificates when initially issued,
such Warrant Certificates shall be deemed to refer to the Exercise Price and the
number of shares purchasable as adjusted or changed pursuant to this Section 8.
Section 9. Reorganization, Consolidation, Merger, Sale of Assets. In the
event, after the date hereof, as a result of the Company effecting a
reorganization or as a result of a merger or consolidation of the Company into
or with another corporation, or the sale or other transfer of the Company's
property, assets and business substantially as an entirety to a successor
corporation, the Common Stock is in effect changed, in whole or in part, into a
different kind or class of stock or other securities or property (including
cash), the Company, or the successor corporation, as the case may be, shall
execute and deliver to the Warrant Agent a supplemental agreement providing that
the holder of each Warrant then outstanding shall have the right thereafter
(until the expiration of the right of exercise of such Warrant) to receive upon
exercise of such Warrant the kind and amount of shares of stock or other
securities or property (including cash) receivable
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upon such reorganization, merger or consolidation, or upon the dissolution
following such sale or other transfer, by a holder of the number of shares of
Common Stock of the Company issuable upon exercise of which shall be as nearly
equivalent as practicable to the adjustments provided for in this Agreement. The
provisions of this Section 9 shall similarly apply to successive
reorganizations, mergers or consolidations or sales or other transfers.
Section 10. Fractional Interests. The Company shall not be required to
issue fractional shares of Common Stock upon any exercise of Warrants, but in
respect of any final fraction of a share it will make a payment in cash based on
the current market price of the Common Stock as determined by the Warrant Agent
in accordance with Section 8(e) hereof on the business day next preceding the
date the Warrant Certificates are surrendered for exercise.
Section 11. Warrant Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Warrant Certificate or Warrant shall be entitled to vote
or receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable upon the exercise of
such Warrant for any purpose whatever, nor shall anything contained herein or in
any Warrant Certificate be construed to confer upon the holder of any Warrant
Certificate or Warrants, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger, conveyance or otherwise), or to receive notice of
meetings, or to receive dividends or subscription rights, or otherwise, until
such Warrant shall have been exercised in accordance with the provisions hereof
and the receipt of the Exercise Price payable upon such exercise by the Warrant
Agent.
Section 12. Rights of Action. All rights of action in respect to this
Agreement are vested in the respective registered holders of the Warrant
Certificates and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of the holder of any other Warrant Certificate,
may, on his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise in respect of, his right to exercise his Warrant for the purchase of
shares of Common Stock in the manner provided in the Warrant Certificate and in
this Agreement.
Section 13. Agreement of Warrant Certificate Holders.
Every holder of a Warrant Certificate by accepting the same consents and
agrees with the Company and the Warrant Agent and with every other holder of
Warrant Certificates that:
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(a) the Warrants are transferable only on the registry books of the
Warrant Agent by the registered holder thereof in person or by his
attorney duly authorized in writing, and only if surrendered at the
principal office of the Warrant Agent, duly endorsed, or accompanied by a
proper instrument of transfer satisfactory to the Warrant Agent and the
Company in their sole discretion; and
(b) the Company and the Warrant Agent may deem and treat the person
in whose name the Warrant Certificate is registered as the absolute owner
for all purposes whatever and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary.
(c) for a period of one year from [insert effective date of the
offering], no holder of a Warrant Certificate or any shares of Common
Stock received upon the exercise of the Warrants shall sell, transfer,
assign, pledge, or hypothecate such Warrant Certificate, or such shares of
Common Stock, except (i) transfers to officers of such holder, (ii) if
such holder is a partnership transfers to partners thereof, or (iii)
transfers by operation of law; provided the transferees in each case shall
be subject to the transfer restrictions set forth in this Section 13(iii).
Section 14. Cancellation of Warrant Certificates. In the event the Company
shall purchase or acquire upon exercise thereof or otherwise any Warrant
Certificate or Warrant after the issuance thereof, such Warrant Certificate or
Warrant shall thereupon be delivered to the Warrant Agent and be cancelled by it
and retired. The Warrant Agent also shall cancel any Warrant Certificate
delivered to it for exercise of the Warrants evidenced thereby, in whole or in
part, or delivered to it for transfer, redemption, split-up, combination, or
exchange of such Warrants.
Section 15. Concerning the Warrant Agent. The Company agrees to pay to the
Warrant Agent from time to time, on demand of the Warrant Agent, reasonable
compensation for all services rendered by it hereunder and also its reasonable
expenses and counsel fees and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Warrant Agent for, and to
hold it harmless against, any loss, liability, or expense, arising out of or in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability in connection
with this Agreement, except to the extent such loss liability or expense results
from the gross negligence, willful misconduct or bad faith of the Warrant Agent
as determined by a court of competent jurisdiction.
Section 16. Merger or Consolidation or Change of Name of Warrant Agent.
Any Corporation into which the Warrant Agent or any successor Warrant Agent may
be merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Warrant Agent or any successor
Warrant Agent shall be a party, or any corporation succeeding to the corporate
trust business of the Warrant Agent or any successor Warrant Agent, shall be the
successor to the Warrant
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Agent hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor Warrant Agent under the provisions of
Section 17. In the event at the time such successor Warrant Agent shall succeed
to the agency created by this Agreement any of the Warrant Certificates shall
have been countersigned but not delivered, any such successor Warrant Agent may
adopt the countersignature of the predecessor Warrant Agent and deliver such
Warrant Certificates so countersigned; and in the event at that time any of the
Warrant Certificates shall not have been countersigned, any successor Warrant
Agent may countersign such Warrant Certificates either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent; and in
all such cases such Warrant Certificates shall have the full force provided in
the Warrant Certificates and in this Agreement.
In the event at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersignature under its
prior name and deliver Warrant Certificates so countersigned; and in the event
at that time any of the Warrant Certificates shall not have been countersigned,
the Warrant Agent may countersign such Warrant Certificates either in its prior
name or in its changed name; and in all such cases such Warrant Certificates
shall have the full force provided in the Warrant Certificates and in this
Agreement.
Section 17. Duties of Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, and the Company and the holders of the Warrants, by their acceptance
thereof, hereby agree to be bound by such terms and conditions:
(a) The Warrant Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Warrant Agent as to
any action taken or omitted by it in good faith in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Agreement,
the Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company and
delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Warrant Agent shall be liable hereunder only for its own
gross negligence, wilful misconduct or bad faith.
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(d) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Warrant Certificates (except its countersignature thereof) or be required
to verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Warrant Agent) or in
respect of the validity or execution of any Warrant Certificate (except
its countersignature thereof); nor shall it be responsible for any breach
by the Company of any covenant or condition contained in this Agreement or
in any Warrant Certificate; nor shall it be responsible for the adjustment
of the Exercise Price or the making of any change in the number of shares
of Common Stock required under the provisions of Section 8 or responsible
for the manner, method or amount of any such change or the ascertaining of
the existence of facts that would require any such adjustment or change
(except with respect to the exercise of Warrant Certificates after actual
notice of any adjustment of the Exercise Price); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued
pursuant to this Agreement or any Warrant Certificate or as to whether any
shares of Common Stock will when issued be validly authorized and issued,
fully paid and non-assessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or
performing by the Warrant Agent of the provisions of this Agreement.
(g) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the President or a Vice President or the Secretary or the Treasurer of the
Company, and to apply to such officers for advice or instructions in
connection with its duties, and they shall not be liable for any action
taken or suffered to be taken by them in good faith in accordance with
instructions of any such officer.
Section 18. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Company by registered or certified mail, and to the
registered holders of the Warrant Certificates by first class mail. The Company
may remove the Warrant Agent or any successor Warrant Agent upon thirty (30)
days' notice in writing, mailed to the Warrant Agent or successor Warrant Agent,
as the case may be, and to each transfer agent of the Common Stock by registered
or certified mail, and to the registered holders of the Warrant Certificates by
first class mail. If the Warrant Agent shall resign or be
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removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after such removal or after it
has been notified in writing of such resignation or incapacity by the resigning
or incapacitated Warrant Agent or by the holder of the Warrant Certificate (who
shall, with such notice, submit his Warrant Certificate for inspection by the
Company), then the registered holder of any Warrant Certificate may apply to any
court of competent jurisdiction for the appointment of a new Warrant Agent. Any
successor Warrant Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of the State of [New York], in good standing, having its principal
office in the City of New York, State of [New York], which is authorized under
such laws to exercise corporate trust powers and is subject to supervision or
examination by Federal or state authority and which has at the time of its
appointment as Warrant Agent a combined capital and surplus of at least
[100,000,000]. After appointment the successor Warrant Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the
predecessor Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Warrant Agent and each transfer agent of
the Common Stock, and mail a notice thereof in writing to the registered holders
of the Warrant Certificates. Failure to give any notice provided in this Section
18, however, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Warrant Agent or the appointment of successor
Warrant Agent, as the case may be.
Section 19. Issuance of New Warrant Certificates. Notwithstanding any of
the provisions of this Agreement or of the several Warrant Certificates to the
contrary, the Company may, at its option, issue new Warrant Certificates in such
form as may be approved by its Board of Directors to reflect any adjustment or
change in the Exercise Price per share and the number of shares of Common Stock
purchasable under the Warrant Certificates made in accordance with the
provisions of this Agreement.
Section 20. Notices. Notice or demand authorized by this Agreement to be
given or made by the Warrant Agent or by the holder of any Warrant Certificate
to or on the Company shall be sufficiently given or made if sent by first class
mail, postage prepaid, addressed (until another address is filed in writing by
the Company with the Warrant Agent) as follows:
Hanover Capital Mortgage Holdings, Inc.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Subject to the provisions of Section 18, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Warrant
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Certificate to or on the Warrant Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing by the Warrant Agent with the Company) as follows:
[To come]
Section 21. Modification of Agreement. The Warrant Agent may, without the
consent or concurrence of the holders of the Warrants, by supplemental agreement
or otherwise join with the Company in taking any changes or corrections in this
Agreement that they shall have been advised by counsel (who may be counsel for
the Company) (a) are required to cure any ambiguity or to correct any defective
or consistent provision or clerical omission or mistake or manifest error herein
contained, (b) add to the covenants and agreements of the Company in this
Agreement further covenants and agreements thereafter to be observed, or
surrender any right or power reserved to or conferred upon the Company in this
Agreement, or (c) do not adversely affect, alter or change the rights,
privileges or immunities of the holders of the Warrants.
Section 22. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
Section 23. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York.
Section 24. Benefits of This Agreement. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the Company, the Warrant Agent and the holders of the
Warrants any right, remedy or claim under or by reason of this Agreement or of
any covenant, condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in this Agreement
contained shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their respective successors and of the Holders of the
Warrants.
Section 25. Descriptive Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
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Section 26. Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
HANOVER CAPITAL MORTGAGE
HOLDINGS, INC.
By:_____________________________
President
Title:__________________________
[ ______________________________ ]
By:_____________________________
Title:__________________________
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EXHIBIT A
(Form of Representatives Warrant Certificate)
No. W- Number of Warrants
One Warrant is required to purchase one share of Common Stock
[VOID AFTER _____________]
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
WARRANT TO PURCHASE COMMON STOCK
THIS CERTIFIES THAT for value received or registered assigns is entitled,
subject to the terms and conditions hereinafter set forth, to purchase from
Hanover Capital Mortgage Holdings, Inc., a corporation incorporated under the
laws of the State of Maryland (hereinafter called the "Company"),
shares of fully paid and non-assessable Common Stock, $.01 par
value, of the Company (hereinafter called the "Common Stock"), upon presentation
and surrender of this Warrant Certificate with the Form of Election to Purchase
duly executed, at any time after the opening of business on [Insert date which
is six months after the initial closing of the offering] and on or prior to the
close of business on [Insert date three years after the date of the Prospectus]
at the principal office of _________________________________, Warrant Agent of
the Company (hereinafter called the "Warrant Agent"), or its successor as
Warrant Agent, in the City of New York and upon payment therefor of the exercise
price of $[Insert initial public offering price] per whole share (the "Exercise
Price"). Payment of the Exercise Price may be made (a) in the form of cash or by
certified or official bank check payable to the order of the Company or (b) by
surrendering additional Warrants or shares of Common Stock for cancellation to
the extent the Company may lawfully accept shares of Common Stock, with the
value per share of such Common Stock for such purpose being equal to current
market price per share of Common Stock determined in accordance with Section
8(e) of the Warrant Agreement and the value of a Warrant being equal to the
difference between such current market price per share of Common Stock and the
Exercise Price.
This Warrant Certificate is subject to all of the terms, provisions and
conditions of that certain Representatives Warrant Agreement, dated as of
________________, 1997, between the Company and the Warrant Agent, which Warrant
Agreement is hereby incorporated herein by reference and made a part hereof and
to which Warrant Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Warrant Agent, the Company and the holders of the Warrant Certificates.
Capitalized terms used herein without definitions shall have the meanings given
such terms in the Warrant Agreement. Copies of the Warrant Agreement are on file
at the above-mentioned office of the Warrant Agent. Certain terms of the Warrant
Agreement are summarized on the reverse side hereof.
FOR A PERIOD OF ONE YEAR FROM [INSERT EFFECTIVE DATE OF THE OFFERING],
SALES, TRANSFERS, ASSIGNMENTS, PLEDGES AND HYPOTHECATIONS OF THIS WARRANT
CERTIFICATE ARE PROHIBITED BY THE HOLDER HEREOF, EXCEPT (i) TRANSFERS TO
OFFICERS OF SUCH HOLDER, (ii) IF SUCH HOLDER IS A PARTNERSHIP TRANSFERS TO
PARTNERS THEREOF, OR (iii) TRANSFERS BY OPERATION OF LAW; PROVIDED THE
TRANSFEREES IN EACH CASE SHALL BE SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH
IN THIS PARAGRAPH.
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As provided in the Warrant Agreement, the Exercise Price and the number of
shares of Common Stock purchasable upon the exercise of this Warrant Certificate
are, upon the happening of certain events, subject to modification and
adjustment.
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Warrant Agent.
Witness the facsimile signatures of the proper officers of the Company and
its corporate seal. Dated as of , .
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
By..................................
President
and
By..................................
Secretary
Countersigned:
---------------------------------,
Warrant Agent
By ..................................
AUTHORIZED SIGNATURE
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(FORM OF REVERSE SIDE OF WARRANT CERTIFICATE)
The Warrant Agreement provides for adjustments to the Exercise Price set
forth on the facing side of this Warrant Certificate as follows: (a) In the
event the Company after the date hereof shall (i) pay a dividend, or make a
distribution, in shares of capital stock of the Company, or (ii) subdivide its
outstanding shares of Common Stock, or (iii) combine its outstanding shares of
Common Stock into a smaller number of shares, or (iv) issue by reclassification
of its shares of Common Stock any shares of capital stock of the Company, the
exercise right and the Exercise Price in effect immediately prior to such action
shall be adjusted so that the holder of any Warrant thereafter surrendering such
Warrant for exercise shall be entitled to receive the number of shares of
capital stock of the Company which he would have owned immediately following
such action had such Warrant been exercised immediately prior to the record date
for such action or to such action, as appropriate. An adjustment made pursuant
to this paragraph (a) shall, in the case of a subdivision, combination or
reclassification become effective retroactively immediately after the effective
date thereof and shall, in case of a dividend or distribution, become effective
retroactively immediately after the record date thereof. If, as a result of an
adjustment made pursuant to this paragraph (a), the holder of any Warrant
thereafter surrendered for exercise shall become entitled to receive shares of
two or more classes of capital stock of the Company, the Board of Directors of
the Company (whose determination shall be described in a certificate filed with
the Warrant Agent) shall in good faith determine the allocation of the adjusted
Exercise Price between or among shares of such classes of capital stock.
(b) In the event the Company after the date hereof shall distribute to all
the holders of Common Stock any dividend or other distribution (other than a
cash distribution made as a dividend payable out of earnings or out of any
earned surplus legally available for dividends under the laws of the
jurisdiction of incorporation of the Company) or any evidence of indebtedness or
any assets with respect to the Common Stock, or rights to subscribe or purchase
shares of Common Stock at a price per share less then the current market price
per share of Common Stock (as defined in paragraph (e) below) at the record date
referenced below, then, and thereafter successively upon each such distribution,
the Exercise Price in effect immediately prior to such distribution shall
forthwith be reduced to a price determined by multiplying the Exercise Price in
effect immediately prior to such distribution by a fraction the numerator of
which shall be the current market price per share of Common Stock (as defined in
paragraph (e) below) at the record date referenced below, less the then fair
market value (as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a certificate filed with the
Warrant Agent) of the portion of such evidences of indebtedness or such assets
so distributed, or of such subscription or purchase rights, applicable to one
share of Common Stock and the denominator of which shall be such current market
price per share of Common Stock. An adjustment made pursuant to this paragraph
(b) shall become effective retroactively immediately after the record date for
the determination of stockholders entitled to receive such distribution.
(c) After each adjustment of the Exercise Price pursuant to paragraphs (a)
and (b) above, the total number of shares of Common Stock or fractional part
thereof purchasable upon the exercise of each Warrant shall be proportionately
adjusted to such number of shares or fractional part thereof as the total
Exercise Price of the number of shares or fractional part thereof purchasable
immediately prior to such adjustment will buy at the adjusted Exercise Price.
(d) The certificate of any independent firm of public accountants of
recognized standing selected by the Board of Directors of the Company shall be
conclusive evidence of the correctness of any computation made under paragraphs
(a) and (b) above.
(e) For the purposes of any computation under paragraphs (a) and (b)
above, the current market price per share of Common Stock as of any date of
determination shall be deemed to be the average of the daily closing prices for
the 20 consecutive trading days preceding the date of determination. The closing
price for each day shall be the last reported sale price regular way or, in case
no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case as officially reported
A-3
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by the principal stock exchange on which the Common Stock is listed or admitted
to trading, or, the Common Stock is not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices as
furnished by the National Association of Securities Dealers, Inc. through NASDAQ
or similar organization if NASDAQ is no longer reporting such information.
(f) No adjustment of the Exercise Price shall be required under paragraphs
(a) and (b) above if the amount of such adjustment is less than 1%; provided,
however, that any adjustments which by reason of the foregoing are not required
at the time to be made shall be carried forward and taken into account and
included in determining the amount of any subsequent adjustment. If the Company
shall take a record of the holders of Common Stock for the purpose of entitling
them to receive any dividend or distribution and shall, thereafter and before
the distribution to stockholders of any such dividend or distribution, legally
abandon its plan to pay or deliver such dividend or distribution, then no
adjustment of the Exercise Price shall be required by reason of the taking of
such record. All calculations under these provisions shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Exercise Price is adjusted pursuant to these provisions,
the Company shall promptly file with the Warrant Agent and with each transfer
agent for the Common Stock a certificate signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company setting forth in reasonable detail the events
requiring the adjustment and the method by which such adjustment was calculated,
and specifying the Exercise Price and the number or kind or class of shares or
other securities or property purchasable upon exercise of the several Warrants
after giving effect to such adjustment, and will cause to be mailed, first
class, postage prepaid, a brief summary thereof to the registered holders of the
Warrant Certificates at their last addresses as they appear on the registry
books of the Warrant Agent.
(h) For the purposes of these provisions, the term "Common Stock" shall
mean (i) the class of stock designated as the common stock, par value $.01 per
share, of the Company, at the date of the Warrant Agreement 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 at any time, as
a result of an adjustment made pursuant to paragraph (a), shares of capital
stock of the Company other than shares of Common Stock are issuable upon
exercise of the Warrants, thereafter the number of such other shares so issuable
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Common
Stock contained in these provisions, and all other provisions of the Warrant
Agreement with respect to Common Stock shall apply on like terms to any such
other shares. Subject to the foregoing, and unless the context requires
otherwise, all references to Common Stock in the Warrant Agreement and in the
Warrant Certificates shall, in the event of an adjustment pursuant to these
provisions, be deemed to refer also to any other securities or property then
issuable upon exercise of the Warrants as a result of such adjustments.
Unless and to the extent that the Company shall exercise the option to
issue new Warrant Certificates as provided in the Warrant Agreement,
irrespective of the fact that the Warrant Certificates theretofore and
thereafter issued shall continue to express the Exercise Price per share and the
number of shares purchasable thereunder as the Exercise Price per share and the
number of shares purchasable were expressed in the Warrant Certificates when
initially issued, such Warrant Certificates shall be deemed to refer to the
Exercise Price and the number of shares purchasable as adjusted or changed
pursuant to these provisions.
This Warrant Certificate, with our without other Warrant Certificates,
upon surrender at the principal office of the Warrant Agent may be exchanged for
another Warrant Certificate or Warrant Certificates entitling the holder to
purchase a like aggregate number of shares of Common Stock as the Warrant
Certificate or Warrant Certificates surrendered entitled him to purchase. If
this Warrant Certificate shall be exercised in part, the holder hereof shall be
entitled to receive upon surrender hereof, another Warrant Certificate or
Warrant Certificates for the number of shares not purchased upon such exercise.
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No fractional shares will be issued upon the exercise of rights to
purchase hereunder. As to any final fraction of a share which the same holder of
one or more Warrant Certificates, the rights to purchase under which are
exercised in the same transaction, would otherwise be entitled to purchase on
such exercise, the Company shall pay the cash value thereof determined as
provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or receive
dividends or be deemed the holder of Common Stock or any other securities of the
Company which may at any time be issuable on the exercise hereof for any
purpose, nor shall anything contained in the Warrant Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issue of stock, reclassification of stock, change of par value or change of
stock to no par value, consolidation, merger, conveyance, or otherwise) or to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise, until the Warrants evidenced by this Warrant Certificate shall have
been exercised and the Common Stock purchasable upon the exercise hereof shall
have become deliverable as provided in the Warrant Agreement.
Every holder of this Warrant Certificate by accepting the same consents
and agrees with the Company, the Warrant Agent, and with every other holder of a
Warrant Certificate that:
(a) this Warrant Certificate is transferable only by the registered
holder hereof in person or by his attorney duly authorized in writing, and
only at the principal office of the Warrant Agent duly endorsed, or
accompanied by a proper instrument of transfer satisfactory to the Warrant
Agent and the Company in their sole discretion; and
(b) the Company and the Warrant Agent may deem and treat the person
in whose name this Warrant Certificate is registered as the absolute owner
for all purposes whatsoever, and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary.
(c) for a period of one year from [insert effective date of the
offering], no holder of a Warrant Certificate or any shares of Common
Stock received upon the exercise of the Warrants shall sell, transfer,
assign, pledge, or hypothecate such Warrant Certificate, or such shares of
Common Stock, except (i) transfers to officers of such holder, (ii) if
such holder is a partnership transfers to partners thereof, or (iii)
transfers by operation of law; provided the transferees in each case shall
be subject to the transfer restrictions set forth in this paragraph (c).
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[FORM OF]
ELECTION TO PURCHASE
----------------------------------
The Warrant Agent
Attention: ______________________
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant(s) for, and to purchase thereunder,
............... shares of the stock provided for therein, and requests that
certificates for such shares and a certified check in payment of any fractional
share interest be issued in the name of and sent to:
................................................................................
(Please Print Name and Address)
................................................................................
................................................................................
and, if said number of shares shall not be all the shares purchasable
thereunder, that a new Warrant Certificate for the balance remaining of the
shares purchasable under the within Warrant Certificate be registered in the
name of the undersigned warrantholder or his assignee as below indicated and
delivered to the address stated below.
In payment of the Exercise Price, the undersigned hereby and together
herewith tenders payment in accordance with Section 7 of the Warrant Agreement.
Dates: _________________, 199___
Name of Warrantholder or Assignee: .............................................
(Please Print)
Address: ....................................................................
....................................................................
Signature: ....................................................................
(Note: The above signature must correspond with the name as written
upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatever
unless this Warrant Certificate has been assigned.)
Signature
Guaranteed: ........................
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[FORM OF]
ASSIGNMENT
For value received .......................................................
hereby sell, assign, and transfer unto .........................................
(Please Print Name and Address)
................................................................................
................................................................................
....................................... of the Warrants represented by the
within Certificate, together with all right, title and interest therein, and do
hereby irrevocably constitute and appoint
................................................................................
................................................................................
attorney, to transfer said Warrant(s) on the books of the within-named
Corporation, with full power of substitution in the premises.
Dated: ______________, 199_
Signature
................................................................................
(Note: The above signature must correspond with the name as
written upon the face of this Warrant Certificate in
every particular, without alteration or enlargement or
any change whatever unless this Warrant Certificate has
been assigned.)
Signature
Guaranteed: ..............................
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