EXHIBIT 4.4
SECOND AMENDED AND RESTATED
WARRANT AGREEMENT
SECOND AMENDED AND RESTATED WARRANT AGREEMENT dated as of November
17, 1995 (as amended, supplemented or modified from time to time, the "Warrant
Agreement") between SATELLINK PAGING INC., a Georgia corporation (the "Issuer"),
and CREDITANSTALT AMERICAN CORPORATION, having offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Creditanstalt").
W I T N E S S E T H:
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WHEREAS, pursuant to the Promissory Note dated as of December 3, 1992 (the
"Original Note") among the Issuer and Creditanstalt-Bankverein, an affiliate of
Creditanstalt (the "Bank"), the Bank made a loan to the Issuer upon the terms
set forth in the Original Note; and
WHEREAS, on December 23, 1992 the Issuer and the Bank entered into a
certain Loan and Security Agreement dated as of December 23, 1992 (the "Loan
Agreement") pursuant to which the loan evidenced by the Original Note was
superseded and replaced by revolving credit facility; and
WHEREAS, in order to induce the Bank to structure and to provide the loan
pursuant to the Original Note, the Issuer executed and delivered a Warrant
Agreement dated as of December 3, 1992 (the "Original Warrant Agreement") and
issued to the Bank 11,951 of the Warrants hereinafter described; and
WHEREAS, the Bank assigned the Warrants issued under the Original Warrant
Agreement to Creditanstalt; and
WHEREAS, pursuant to the Consent, Waiver and Third Amendment to Loan and
Security Agreement dated as of December 23, 1994 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Loan Agreement
Amendment") between the Issuer and the Bank, the Issuer and the Bank amended the
Loan Agreement to provide for the loan of additional funds and to make other
changes therein; and
WHEREAS, in connection with and to induce the Bank to enter into the Loan
Agreement Amendment, the Issuer amended and restated the Original Warrant
Agreement in order to provide for additional Warrants and make certain other
changes therein, such amended and restated warrant agreement dated as of
December 23, 1994 (the "Amended and Restated Warrant Agreement"); and
WHEREAS, in connection with the Amended and Restated Loan and Security
Agreement dated of even date herewith (as the same may be amended, supplemented
or otherwise modified from time to time, the "Restated Loan Agreement") between
the Issuer
and the Bank, the Issuer and the Bank now wish to enter into a Securities
Purchase Agreement dated of even date herewith (the "Securities Purchase
Agreement") in order to provided for the purchase by the Bank of additional
capital stock of the Issuer; and
WHEREAS, in connection with and to induce Creditanstalt to enter into the
Securities Purchase Agreement, the Issuer has agreed to further amend and
restate the Amended and Restated Warrant Agreement (the "Second Amended and
Restated Warrant Agreement") in order to amend the terms of the Warrants and
make certain changes therein; and
WHEREAS, in connection with this Second Amended and Restated Warrant
Agreement, Creditanstalt has agreed to return for cancellation by the Issuer
nine (9) Warrant Shares (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises the parties hereto agree
as follows:
Section 1. Definitions. (a) As used in this Warrant Agreement, unless
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otherwise defined herein, terms defined in the Loan Agreement (as in effect on
the date hereof, whether or not the Loan Agreement is thereafter terminated or
expires according to its terms) shall have such defined meanings when used
herein and the following terms shall have the following meanings, unless the
context otherwise requires:
"Affiliate" of any Person shall mean any other Person directly or
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indirectly controlling, controlled by or under direct or indirect common control
with such Person. For purposes of this definition, a Person shall be deemed to
control another Person if such first Person possesses directly or indirectly the
power to (i) vote 10% or more of the securities having ordinary voting power for
the selection of directors of such Person or (ii) direct, or cause the direction
of, the management and policies of the second Person, whether through the
ownership of voting securities, by contract or otherwise. In addition, as to
Creditanstalt, "Affiliate" shall include any partnership a majority of the
partners of which are officers, directors, employees or Affiliates of
Creditanstalt, and as to the Issuer, "Affiliate" shall not include Creditanstalt
or any Affiliate of Creditanstalt which is a holder of any Warrants.
"Commission" shall mean the Securities and Exchange Commission or any
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entity succeeding to any or all of its functions under the Securities Act and
the Exchange Act.
"Common Stock" shall mean the Class A Common Stock, par value $.0l per
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share, of the Issuer, and shall include any stock into which such Common Stock
shall have been changed or any stock resulting from any reclassification of such
Common Stock and all other stock of any class or classes (however designated) of
the Issuer the registered holders of which have the right, without limitation as
to amount, either to all or to a share of the
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balance of current dividends and liquidating dividends after the payment of
dividends and distributions on any shares entitled to preference.
"Current Market Price Per Share" shall mean, with respect to any shares of
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the Common Stock, as of any particular date of determination:
(i) if the Common Stock is then reported on the Composite
Transactions Tape, the average of the daily closing prices for the 30
consecutive trading days immediately prior to such date as reported on the
Composite Transactions Tape (as adjusted for any stock dividend, split,
combination or reclassification that occurred during such 30-day period);
or
(ii) if the Common Stock is not then reported on the Composite
Transaction Tape but is then listed or admitted to trading on a national
securities exchange, the average of the daily last sale prices regular way
of the Common Stock, for the 30 consecutive trading days immediately prior
to such date (as adjusted for any stock dividend, split, combination or
reclassification that occurred during such 30-day period), on the
principal national securities exchange on which the Common Stock is traded
or, in case no such sale takes place on any such day, the average of the
closing bid and asked prices regular way, in either case on such national
securities exchange; or
(iii) if the Common Stock is not then reported on the Composite
Transaction Tape and is not then listed or admitted to trading on a
national securities exchange but is then traded in the over-the-counter
market, the average of the daily closing sales prices, or, if there is no
closing sales price, the average of the closing bid and asked prices, in
the over-the-counter market, for the 30 consecutive trading days
immediately prior to such date (as adjusted for any stock dividend, split,
combination or reclassification that occurred during such 30-day period),
as reported by the National Association of Securities Dealers' Automated
Quotation System, or, if not so reported, as reported by the National
Quotation Bureau, Incorporated or any successor thereof, or, if not so
reported the average of the closing bid and asked prices as furnished by
any member of the National Association of Securities Dealers, Inc.
selected from time to time by the Board of Directors of the Issuer for
that purpose; or
(iv) if no such prices are then furnished, the higher of (x) the
Exercise Price and (y) the fair market value of a share of Common Stock as
determined by agreement between the holders of a majority of the Warrants
and the Issuer or, in the absence of such an agreement, by an independent
investment banking firm or an independent appraiser engaged by the Issuer
(in either case the cost of which engagement will be borne by the Issuer)
and reasonably acceptable to the holders of a majority of the Warrants.
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"Equity of the Issuer" shall mean the total shareholders' equity of the
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Issuer, including all series of Preferred Stock, determined in accordance with
generally accepted accounting principles.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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or any successor federal statute.
"Exchange Right" shall have the meaning given to such term in subsection
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16(d).
"Exempted Securities" shall mean (A) Warrant Shares, (B) shares issued
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upon conversion of the Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock or Series C Convertible Preferred Stock, (C) 3,000
shares of Class A Common Stock issued to employees of the Issuer pursuant to
options issued to employees of the Issuer having an exercise or conversion price
per share at least equal to the then Current Market Price Per Share, and (D) up
to 1000 shares issued upon exercise of options, rights or warrants outstanding
on the date hereof and held by officers or employees of the Issuer.
"Exercise Price" shall mean the exercise price of a Warrant, which shall
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be $.0l per share of Common Stock or Series B Preferred Stock, provided that in
no event shall the Exercise Price of all Warrants exceed $100.00 in the
aggregate.
"Expiration Date" shall mean December 3,2005.
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"Non-Attributable Stock" shall mean shares of Common Stock, Series B
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Preferred Stock or other shares of capital stock of the Issuer previously held
by Creditanstalt or its Affiliates which have been previously sold, or were
issued pursuant to the exercise of Warrants which were previously sold, either
(a) in a widely dispersed public offering; (b) in a private placement in which
no purchaser, individually or in concert with others, acquired Warrants, Common
Stock, Series B Preferred Stock, other shares of capital stock of the Issuer or
any combination thereof, representing (upon conversion, in the case of the
Series B Preferred Stock or Series C Preferred Stock, and upon exercise for
Common Stock, in the case of the Warrants) more than 2% of the outstanding
Common Stock; (c) in compliance with Rule 144 (or any rule which is a successor
thereto) of the Securities Act or (d) into the secondary market in a market
transaction executed through a registered broker-dealer in blocks of no more
than 2.0% of the shares outstanding of the Issuer in any six month period.
"Non-Public Warrant Shares" shall mean Warrant Shares that have not been
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sold to the public and bear the legend set forth in subsection 14(b).
"Non-Surviving Combination" shall mean any merger, consolidation or other
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business combination by the Issuer with one or more Persons in which the Issuer
is not the survivor, or a sale of all or substantially all of the assets of the
Issuer to one or more such other Persons.
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"Operating Cash Flow" shall mean, for any period for which the same is
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computed, the sum of (i) the Issuer's and its Subsidiaries' consolidated net
income (loss) for such period, plus (ii) the Issuer's and its Subsidiaries'
interest expense for such period, plus (iii) the Issuer's and its Subsidiaries'
depreciation and amortization for financial reporting purposes for such period,
plus (iv) the Issuer's and its Subsidiaries' income tax expense for such period,
computed in each case on a consolidated basis in accordance with generally
accepted accounting principles.
"Offer Right" shall have the meaning given to such term in subsection
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16(b).
"Put Closing Date" shall have the meaning given to such term in subsection
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16(d).
"Put Period" shall mean the period commencing on November 17, 2000 and
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ending at 5:00 p.m., New York time, on the Expiration Date; provided that in the
event that, on or before November 17, 1999, all indebtedness outstanding under
the Loan has been repaid in full and all loan commitments under the Loan
Agreement or the Commitment Letter have been terminated, said period shall
commence on the later of (A) said repayment of indebtedness and termination of
loan commitments or (B) November 17, 1999.
"Put Price" shall have the meaning given to such term in subsection
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16(a)(l).
"Put Right" shall have the meaning given to such term in subsection
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16(a)(l).
"Put Valuation Amount" shall mean, as of any date, the greater of (x) zero
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or (y) an amount equal to Operating Cash Flow for the most recently ended twelve
full calendar months preceding the date of determination multiplied by seven
(7).
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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successor federal statute and the rules and regulations of the Commission
thereunder, all as the same may be in effect from time to time.
"Series A Preferred Stock" shall mean the Series A Convertible Preferred
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Stock, par value $.0l per share, of the Issuer and shall include any stock into
which such Series A Preferred Stock shall have been changed or any stock
resulting from any reclassification of such Series A Preferred Stock.
"Series B Preferred Stock" shall mean the Series B Convertible Preferred
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Stock, par value $.0l per share, of the Issuer which is convertible into Common
Stock of the Issuer, and shall include any stock into which such Series B
Preferred Stock shall have been changed or any stock resulting from any
reclassification of such Series B Preferred Stock.
"Series C Preferred Stock" shall mean the Series C Convertible Preferred
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Stock, par value $.0l per share, of the Issuer which is convertible into Common
Stock or Series B Preferred Stock, and shall include any stock into which such
Series C Preferred Stock shall
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have been changed or any stock resulting from any reclassification of such
Series C Preferred Stock.
"Subsidiary" shall mean, as to any Person, a corporation of which shares
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of stock having ordinary voting power (other than stock having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Warrant Agreement
shall refer to a Subsidiary or Subsidiaries of the Issuer.
"Warrant Certificate" shall mean a certificate evidencing one or more
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Warrants, substantially in the form of Exhibit A attached hereto, with such
changes therein as may be required to reflect any adjustments made pursuant to
Section 12.
"Warrant Holders" shall mean Creditanstalt or an Affiliate thereof and
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such other financial institutions which receive Warrants in connection with the
syndication of the Loan and such other Persons to whom Creditanstalt or an
Affiliate thereof or such other financial institutions transfers Warrants in
compliance with the terms of this Warrant Agreement, and for purposes of Section
15 shall include holders of Non-Public Warrant Shares.
"Warrant Office" shall mean the office or agency of the Issuer at which
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the Warrant Register shall be maintained and where the Warrants may be presented
for exercise, exchange, substitution and transfer, which office or agency will
be the office of the Issuer at 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, which office or agency may be changed by the Issuer pursuant to
notice in writing to the Persons named in the Warrant Register as the holders of
the Warrants.
"Warrant Register" shall mean the register, substantially in the form of
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Exhibit B attached hereto, maintained by the Issuer at the Warrant Office.
"Warrant Shares" shall mean the shares of Common Stock or Series B
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Preferred Stock issued or issuable upon exercise of the Warrants, or Common
Stock issued or issuable upon conversion of the Series B Preferred Stock, in
each case as the number of such shares may be adjusted from time to time
pursuant to Section 12 and the provisions of the Issuer's Articles of
Incorporation.
"Warrants" shall mean the stock purchase warrants issued pursuant to this
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Warrant Agreement entitling the record holders thereof to purchase from the
Issuer at the Warrant Office an aggregate of 13,325 shares of Common Stock or
Series B Preferred Stock (in the percentages and to the extent provided in
subsections 6(e) and 6(f) hereof and subject in each case to adjustment as
provided in Section 12) at the Exercise Price at any time after November 17,
1995 and before 5:00 P.M., New York time, on the Expiration Date; individually,
a "Warrant."
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(b) For all purposes of this Warrant Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(i) "Herein, "hereof" and "hereunder" and other words of similar
import refer to this Warrant Agreement as a whole and not to any
particular Section or other subdivision;
(ii) Any uses of the masculine, feminine or neuter gender shall also
be deemed to include any other gender as appropriate;
(iii) The exhibits and schedules to this Warrant Agreement shall be
deemed an integral part of this Warrant Agreement;
(iv) Except as specifically set forth in such representation, each
of the representations and warranties of the Issuer in Section 3 hereof is
separate and is not limited, qualified or modified by the existence,
wording or satisfaction of any other representation of the Issuer in
Section 3 or otherwise;
(v) All references herein (in covenants or otherwise) to any
action(s) which are to be taken (or which are prohibited from being taken)
by any Person, the Issuer or any Subsidiary shall apply to such Person,
the Issuer or such Subsidiary, as the case may be, whether such action is
taken directly or indirectly; and
(vi) All references herein to actions by the Issuer or any
Subsidiary (including, without limitation, actions denoted by terms such
as "create", "sell", "transfer" or "dispose of") mean such action whether
voluntary or involuntary, by operation of law or otherwise.
Section 2. Issuance of Warrants. The Issuer hereby agrees to issue and
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deliver to Creditanstalt or, at the option of Creditanstalt, an Affiliate
thereof, on the date hereof, the Warrants and one or more Warrant Certificates
evidencing the Warrants. No payment shall be required from Creditanstalt or its
Affiliate in consideration of its receipt of the Warrants. Previously issued
Warrant Certificates shall be delivered to the Issuer for cancellation upon
issuance of one or more new Warrant Certificates.
Section 3. Representations and Warranties. The Issuer hereby represents
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and warrants to Creditanstalt, for the benefit of Creditanstalt and any other
Warrant Holder, as follows:
(a) The Issuer is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Georgia, has the corporate power
and authority to conduct its business as presently conducted and as intended to
be conducted, has the corporate power and authority to execute and deliver this
Warrant Agreement and the Warrant Certificates, to issue the Warrants and to
perform its obligations under this Warrant Agreement and the Warrant
Certificates, has the corporate power and authority and legal
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right to own and lease its properties and is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which it owns or leases real
property or in which the conduct of its business requires such qualification,
except where failure to be so qualified could not be reasonably expected to have
a material adverse effect on the business, properties, financial condition or
results of operations of the Issuer and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Issuer of this Warrant
Agreement and the Warrant Certificates, the issuance of the Warrants and the
issuance of the Warrant Shares upon the exercise of the Warrants and the
issuance of Common Stock upon conversion of the Series B Preferred Stock have
been duly authorized by all necessary corporate action and do not and will not
violate, or result in a breach of, or constitute a default under, or require any
consent under, or result in the creation of any lien, charge or encumbrance upon
the assets of the Issuer pursuant to, any law, statute, ordinance, rule,
regulation, order or decree of any court, governmental body or regulatory
authority or administrative agency having jurisdiction over the Issuer or its
Subsidiaries or the Issuer's Articles of Incorporation or any contract,
mortgage, loan agreement, note, lease or other instrument binding upon the
Issuer or its Subsidiaries or by which their properties are bound.
(c) This Warrant Agreement has been duly executed and delivered by the
Issuer and constitutes a legal, valid, binding and enforceable obligation of the
Issuer. When the Warrants and Warrant Certificates have been issued as
contemplated hereby, (i) the Warrants and the Warrant Certificates will
constitute legal, valid, binding and enforceable obligations of the Issuer,
except as enforceability may be limited by bankruptcy and insolvency, and (ii)
the Warrant Shares, when issued upon exercise of the Warrants in accordance with
the terms hereof, and the Common Stock, when issued upon conversion of the
Series B Preferred Stock in accordance with the terms of the Issuer's Articles
of Incorporation relating to the Series B Preferred Stock, will be duly
authorized, validly issued, fully paid and nonassessable shares of the Common
Stock and Series B Preferred Stock, as applicable, with no personal liability
attaching to the ownership thereof.
(d) The Issuer has authorized capital stock consisting of 5,000,000 shares
of Class A Common Stock, par value $.0l per share, of which 32,158.513 shares
are issued and outstanding and 20,000 shares of Class B Common Stock, par value
$.0l per share, of which 2,071.318 shares are issued and outstanding, 7,500
shares of Series A Convertible Preferred Stock, par value $.0l per share, of
which 7,360 shares are issued and outstanding, 30,000 shares of Series B
Convertible Preferred Stock, par value $.0l per share, none of which are issued
and outstanding, 3,500 shares of Series C Convertible Preferred Stock, par value
$.01 per share, 3,500 of which are issued and outstanding. Except as set forth
on Schedule I hereto, there are no outstanding options, warrants, subscriptions,
rights, convertible or exchangeable securities or other agreements or plans
under which the Issuer may be or become obligated to issue, sell or transfer
shares of its capital stock of other securities. The Series B Preferred Stock
has no voting rights, except as required by law, and is convertible on a share-
for-share basis into Common Stock of the Issuer. To the Issuer's best knowledge,
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there are no voting agreements, voting trusts, proxies or other agreements or
understandings with respect to the voting of any capital stock of the Issuer or
any Subsidiary.
(e) Except as set forth on Schedule II hereto, no holder of securities of
the Issuer has any right to the registration of such securities under the
Securities Act and any applicable state securities law.
Section 4. Registration, Transfer and Exchange of Certificates.
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(a) The Issuer shall maintain, at the Warrant Office, the Warrant Register
for registration of the Warrants and Warrant Certificates and transfers thereof.
On the date hereof, the Issuer shall register the Warrants and Warrant
Certificates in the Warrant Register in the name of Creditanstalt or an
Affiliate thereof, as the case may be. The Issuer may deem and treat the
registered holders of the Warrant Certificates as the absolute owners thereof
and the Warrants represented thereby (notwithstanding any notation of ownership
or other writing on the Warrant Certificates made by any person) for the purpose
of any exercise thereof or any distribution to the holders thereof, and for all
other purposes, and the Issuer shall not be affected by any notice to the
contrary.
(b) Subject to Section 14, the Issuer shall register the transfer of any
outstanding Warrants in the Warrant Register upon surrender of the Warrant
Certificates evidencing such Warrants to the Issuer at the Warrant Office,
accompanied (if so required by it) by a written instrument or instruments of
transfer in form satisfactory to it, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof. Upon any
such registration of transfer, new Warrant Certificates evidencing such
transferred Warrants shall be issued to the transferee and the surrendered
Warrant Certificates shall be cancelled. If less than all the Warrants evidenced
by Warrant Certificates surrendered for transfer are to be transferred, new
Warrant Certificates shall be issued to the holder surrendering such Warrant
Certificates evidencing such remaining number of Warrants.
(c) Warrant Certificates may be exchanged at the option of the holders
thereof, when surrendered to the Issuer at the Warrant Office, for another
Warrant Certificate or other Warrant Certificates of like tenor and representing
in the aggregate a like number of Warrants. Warrant Certificates surrendered for
exchange shall be cancelled.
(d) No charge shall be made for any such transfer or exchange except for
any tax or other governmental charge imposed in connection therewith. Except as
provided in subsection 14(b) each Warrant Certificate issued upon transfer or
exchange shall bear the legend set forth in subsection 14(b) if the Warrant
Certificate presented for transfer or exchange bore such legend.
Section 5. Mutilated or Missing Warrant Certificates. If any Warrant
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Certificate shall be mutilated, lost, stolen or destroyed, the Issuer shall
issue, in exchange and substitution for and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and substitution for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate
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of like tenor and representing an equivalent number of Warrants, but only upon
receipt of evidence satisfactory to the Issuer of such loss, theft or
destruction of such Warrant Certificate and, if requested, indemnity
satisfactory to it. The Issuer acknowledges that a written indemnity by
Creditanstalt or, if an Affiliate of Creditanstalt is the holder of such lost,
stolen or destroyed Warrant Certificate, by such Affiliate shall be satisfactory
to the Issuer for such purpose. No service charge shall be made for any such
substitution, but all expenses and reasonable charges associated with procuring
such indemnity and all stamp, tax and other governmental duties that may be
imposed in relation thereto shall be borne by the holder of such Warrant
Certificate. Each Warrant Certificate issued in any such substitution shall bear
the legend set forth in subsection 14(b) if the Warrant Certificate for which
such substitution was made bore such legend.
Section 6. Duration and Exercise of Warrants.
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(a) The Warrants evidenced by a Warrant Certificate shall be exercisable
in whole or in part by the registered holder thereof on any Business Day after
November 17, 1995 and on or before 5:00 P.M., New York time, on the Expiration
Date.
(b) Subject to the provisions of this Warrant Agreement, the Warrants
evidenced by a Warrant Certificate may be exercised by the registered holder
thereof by the surrender of the Warrant Certificate evidencing the Warrants to
be exercised, with the form of election to purchase on the reverse thereof or
attached thereto duly completed and signed, to the Issuer at the Warrant Office,
and upon payment of the aggregate Exercise Price for the number of Warrant
Shares in respect of which such Warrants are being exercised in lawful money of
the United States of America and/or by surrender to the Issuer of shares of
Common Stock then owned by the Warrant Holder and valued for purposes hereof at
their Current Market Price Per Share at the time of exercise. In lieu of
exercising Warrants pursuant to the immediately preceding sentence, the Warrant
Holder shall have the right to require the Issuer to convert the Warrants, in
whole or in part and at any time or times (the "Conversion Right"), into Warrant
Shares, by surrendering to the Issuer the Warrant Certificate evidencing the
Warrants to be converted, accompanied by the form of conversion notice on the
reverse thereof or attached thereto which has been duly completed and signed.
Upon exercise of the Conversion Right, the Issuer shall deliver to the Warrant
Holder (without payment by the Warrant Holder of any Exercise Price) that number
of Warrant Shares which is equal to the quotient obtained by dividing (x) the
value of the number of Warrants being converted at the time the Conversion Right
is exercised (determined by subtracting the aggregate Exercise Price for all
such Warrants immediately prior to the exercise of the Conversion Right from the
aggregate current market price (determined on the basis of the Current Market
Price Per Share) of that number of Warrant Shares purchasable upon exercise of
such Warrants immediately prior to the exercise of the Conversion Right (taking
into account all applicable adjustments pursuant to Section 12, including
without limitation any adjustments which would be made pursuant to subdivision
(7) of subsection 12(c) upon exercise of the Warrants being converted) by (y)
the Current Market Price Per Share of one share of Common Stock (or the number
of shares of Common Stock into which one share of Series B Preferred Stock can
be converted if the Warrants are being converted
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into Series B Preferred Stock) immediately prior to the exercise of the
Conversion Right. Any references in this Warrant Agreement to the "exercise" of
any Warrants, and the use of the term "exercise" herein, shall be deemed to
include (without limitation) any exercise of the Conversion Right. Any exercise
of a Warrant hereunder may be made subject to the satisfaction of one or more
conditions (including, without limitation, the consummation of a sale of the
capital stock of the Issuer or a merger or other business combination involving
the Issuer) which are set forth in a writing which is made a part of or is
appended to the aforementioned form of election to purchase or conversion notice
(as the case may be) by the Warrant Holder.
(c) Upon exercise of any Warrants hereunder, the Issuer shall issue and
cause to be delivered to or upon the written order of the registered holders of
such Warrants and in such name or names as such registered holders may
designate, a certificate for the Warrant Share or Warrant Shares issued upon
such exercise of such Warrants. Any Persons so designated to be named therein
shall be deemed to have become holders of record of such Warrant Share or
Warrant Shares as of the date of exercise of such Warrants.
(d) If less than all of the Warrants evidenced by a Warrant Certificate
are exercised at any time, a new Warrant Certificate or Certificates shall be
issued for the remaining number of Warrants evidenced by such Warrant
Certificate. Each new Warrant Certificate so issued shall bear the legend set
forth in subsection 14(b) if the Warrant Certificate presented in connection
with partial exercise thereof bore such legend unless the transfer restrictions
referred to in such legend are no longer applicable pursuant to subsection
14(d). All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled.
(e) At the election of a Warrant Holder made at the time of exercise, the
Warrant Shares to be issued upon such exercise may be either Common Stock or
Series B Preferred Stock (or a combination thereof), provided that the Warrant
Holder shall not have the right to have issued to it upon exercise Common Stock
which, when aggregated with the shares of Common Stock (other than shares of
Non- Attributable Stock) previously issued as Warrant Shares or issued in
conversion of Series B Preferred Stock previously issued as Warrant Shares, will
exceed 4.99% of the then outstanding Common Stock unless such Warrant Holder
certifies that such Warrants have previously been transferred either (i) in a
widely dispersed public offering of the Warrants, or (ii) in a private placement
in which no purchaser, individually or in concert with others, would have
acquired more than 2% of the outstanding Common Stock if the Warrants so
transferred had been exercised for Common Stock, or (iii) in compliance with
Rule 144 (or any rule which is a successor thereto) of the Securities Act, or
(iv) into the secondary market in a market transaction executed through a
registered broker-dealer in blocks of no more than 2.0% of the shares
outstanding of the Issuer in any six month period; provided further that (A) if
the Warrant Holder is a bank or an Affiliate of a bank subject to the provisions
of the Bank Holding Company Act of 1956, as amended, such Common Stock, together
with all other shares of Common Stock then owned by such Warrant Holder and its
Affiliates, will not exceed 4.99% of the then outstanding Common Stock and (B)
in no event shall more than 13,872 shares of Common Stock or Series B Preferred
Stock (or a combination thereof) in the aggregate, subject to
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adjustment pursuant to Section 12, be issued upon exercise of the Warrants. In
the event two or more Warrant Holders attempt to exercise Warrants for Common
Stock simultaneously and, if permitted, such exercises would cause the 4.99%
limitation to be exceeded, then the Issuer shall notify the Warrant Holders who
had attempted to exercise Warrants for Common Stock and each such Warrant Holder
shall be entitled to exercise for Common Stock only such number of Warrants as
shall equal the product of (i) the number of Warrants the Warrant Holder sought
to exercise for Common Stock times (ii) a fraction, the numerator of which is
the maximum number of Warrants which may be exercised for Common Stock without
exceeding the 4.99% limitation and the denominator of which is the maximum
number of Warrants sought to be exercised for Common Stock by such Warrant
Holders.
(f) Notwithstanding the foregoing provisions of this Section 6, in no
event shall any Warrant be exercisable for shares of Common Stock or Series B
Preferred Stock which, when aggregated with all other Warrant Shares then held
by Creditanstalt or its Affiliates, would, upon issuance, represent in excess of
24.99% of the Equity of the Issuer unless such shares, when issued, would
constitute Non-Attributable Stock.
Section 7. No Fractional Shares. The Issuer shall not be required to issue
--------------------
fractional shares of Common Stock or Series B Preferred Stock upon exercise of
the Warrants but shall pay for any such fraction of a share an amount in cash
equal to the then Current Market Price Per Share of one share of Common Stock
multiplied by such fraction.
Section 8. Payment of Taxes. The Issuer will pay all taxes attributable to
----------------
the initial issuance of Warrant Shares upon the exercise of the Warrants,
provided that the Issuer shall not be required to pay (i) any income tax
incurred by the holder of the Warrant Certificate or the Warrant Shares upon
exercise of the Warrants or the issuance of the Warrant Shares, or (ii) any tax
which may be payable in respect of any transfer involved in the issue of any
Warrant Certificate or any certificate for Warrant Shares in a name other than
that of the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Issuer shall not be required to issue or deliver
such certificate unless or until the person or persons requesting the issuance
thereof shall have paid to the Issuer the amount of such tax or shall have
established to the satisfaction of the Issuer that such tax has been paid.
Section 9. Stockholder Rights.
------------------
(a) Nothing contained in this Warrant Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as a stockholder in respect of the
meetings of stockholders or the election of directors of the Issuer or any other
matter, or any rights whatsoever as a stockholder of the Issuer.
(b) Nothing contained in this Warrant Agreement or in any of the Warrant
Certificates shall be construed as imposing any obligation on the registered
holders thereof to purchase any securities or as imposing any liabilities on
such holders as stockholders of the
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Issuer, whether such obligation or liabilities are asserted by the Issuer or by
creditors of the Issuer.
Section 10. Reservation and Issuance of Warrant Shares; Certain Corporate
-------------------------------------------------------------
Actions.
-------
(a) The Issuer will at all times have authorized, and reserve and keep
available, free from preemptive rights, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon the exercise of the Warrants
and conversion of the Series B Preferred Stock, the number of shares of Common
Stock and Series B Preferred Stock deliverable upon exercise of all outstanding
Warrants and conversion of Series B Preferred Stock.
(b) The Issuer covenants that all Warrant Shares will, upon issuance in
accordance with the terms of this Warrant Agreement and the Issuer's Articles of
Incorporation, be fully paid and nonassessable and free from all taxes (except
as otherwise contemplated in Section 8 hereof) with respect to the issuance
thereof and from all liens, charges and security interests (other than any
created by or on behalf of any Warrant Holder).
(c) So long as any Warrants are outstanding, the Issuer shall make no
amendment of its Articles of Incorporation which would affect the authorization,
dividend, put, voting, liquidation, conversion, exchange or notice rights or
additional remedies provisions of the Series B Preferred Stock without the
written consent of all of the Warrant Holders.
(d) The Issuer will not, by amendment of its Articles of Incorporation or
through any consolidation, merger, reorganization, transfer of assets,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant
Agreement or the Warrant Certificates. Without limiting the generality of the
foregoing, the Issuer (a) will not permit the par value or the determined or
stated value of any shares of the Issuer's Common Stock or Series B Preferred
Stock receivable upon the exercise of the Warrants to exceed the amount payable
therefor upon such exercise, (b) will take all such action as may be necessary
or appropriate in order that the Issuer may validly and legally issue fully paid
and nonassessable shares of the Issuer's Common Stock or Series B Preferred
Stock (as the case may be), upon the exercise of the Warrants from time to time
outstanding, including, without limitation, amending its Articles of
Incorporation to reduce or eliminate the par value of the Common Stock, (c) will
not take any action which results in an adjustment in the number of Warrant
Shares obtainable upon the exercise of any Warrants if the total number of
shares of the Issuer's Common Stock (or other securities) issuable after such
action upon the exercise of all of the then-outstanding Warrants would exceed
the total number of shares of the Issuer's Common Stock (or other securities)
then authorized by the Issuer's Articles of Incorporation and available for
purpose of issuance upon such exercise, (d) will not have any authorized Common
Stock other than its existing authorized Common Stock, and (e) will not amend
its Articles of Incorporation to change any terms of its Common Stock.
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(e) If the Issuer proposes, prior to the Expiration Date, to enter into a
transaction that would constitute a Non-Surviving Combination, if consummated,
the Issuer shall give written notice thereof to each of the Warrant Holders
promptly after an agreement is reached with respect to the Non-Surviving
Combination but in any event no less than thirty (30) days prior to the
consummation thereof. Such notice shall describe the proposed transaction in
reasonable detail and specify the consideration to be received by the Warrant
Holders in respect thereto and/or any adjustment to be made to the number of
Warrant Shares obtainable upon the exercise of the Warrants as a result of such
Non-Surviving Combination. The Issuer shall also furnish to each Warrant Holder
all notices and materials furnished to its stockholders in connection with such
transaction as and when such notices and materials are furnished to its
stockholders. The Issuer agrees that it will not enter into an agreement
providing for a Non-Surviving Combination or effect any such Non-Surviving
Combination unless the party to such transaction that is the surviving entity
thereof or the purchaser or purchasers of substantially all of the assets of the
Issuer (the "Survivor") (i) shall be obligated to distribute or pay to each
Warrant Holder, upon payment of the Exercise Price prior to the Expiration Date,
the number of shares of stock or other securities or other property (including
any cash) of the Survivor that would have been distributable or payable on
account of the Warrant Shares if such Warrant Holder's Warrants had been
exercised immediately prior to such Non-Surviving Combination (or, if
applicable, the record date therefor), as such number of shares or other
securities or other property may thereafter be adjusted pursuant to Section 12
of this Warrant Agreement and (ii) shall assume by written instrument all of the
obligations of the Issuer under this Warrant Agreement.
(f) The Issuer will take no action with respect to its capital stock
(including without limitation any purchase of its shares or any combination of
shares or reverse stock split and elimination of fractional shares) which would
cause the sum of the number of Warrant Shares theretofore issued, if any, plus
the number of Warrant Shares then issuable in respect of Warrants then
outstanding and other capital stock at any time held by Creditanstalt (other
than Non-Attributable Stock) to exceed 24.99% of the aggregate issued and
outstanding shares of the Issuer after giving effect to such action, unless in
any such case the holders of a majority of the outstanding Warrants and Warrant
Shares shall have given their prior written consent to such action.
Section 11. Obtaining of Governmental Approvals and Stock Exchange
------------------------------------------------------
Listings. Subject, in the case of any registration under the Securities Act, to
--------
the limitations set forth in Section 15, the Issuer will, at its own expense,
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities which are or become requisite in connection with the issuance,
sale, transfer and delivery of the Warrant Certificates and the exercise of the
Warrants and the issuance, sale, transfer and delivery of the Warrant Shares and
all action which may be necessary so that such Warrant Shares, immediately upon
their issuance upon the exercise of Warrants and conversion of the Series B
Preferred Stock, will be listed on each securities exchange, if any, on which
the Common Stock and/or Series B Preferred Stock is then listed.
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Section 12. Adjustment of Number of Warrant Shares Purchasable.
--------------------------------------------------
(a) The number of shares of Common Stock or Series B Preferred Stock
purchasable upon the exercise of each Warrant is subject to adjustment from time
to time upon the occurrence of any of the events enumerated in this Section 12
at any time or from time to time after the date hereof and prior to the
Expiration Date.
(b) If the Issuer shall (i) declare a dividend on the Common Stock or
Series B Preferred Stock in shares of its capital stock (whether shares of
Common Stock, Series B Preferred Stock or of capital stock of any other class),
(ii) split or subdivide the outstanding Common Stock or Series B Preferred Stock
or (iii) combine the outstanding Common Stock or Series B Preferred Stock into a
smaller number of shares, each Warrant outstanding at the time of the record
date for such dividend or of the effective date of such split, subdivision or
combination shall thereafter entitle the holder of such Warrant to receive the
aggregate number and kind of shares which, if such Warrant had been exercised
immediately prior to such time, such holder would have owned or have become
entitled to receive by virtue of such dividend, subdivision or combination. Such
adjustment shall be made successively whenever any event listed above shall
occur and, if a dividend which is declared is not paid, each Warrant outstanding
shall again entitle the holder thereof to receive the number of shares of Common
Stock or Series B Preferred Stock as would have been the case had such dividend
not been declared. If at any time, as a result of an adjustment made pursuant to
this subsection 12(b), the holder of any Warrant thereafter exercised shall
become entitled to receive any shares of capital stock of the Issuer other than
shares of Common Stock and Series B Preferred Stock, thereafter the number of
such other shares so receivable upon exercise of any Warrant 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 Warrant Shares contained in
this Section 12, and the provisions of this Warrant Agreement with respect to
the Warrant Shares shall apply on like terms to such other shares.
(c) If the Issuer shall issue any shares of Common Stock without
consideration or at a price per share less than the Current Market Price Per
Share of the Common Stock as at the date of such issuance, including any shares
of Common Stock deemed to have been issued pursuant to this subsection 12(c) but
excluding any Exempted Securities, each Warrant outstanding on the date of such
issuance shall thereafter entitle the holder of such Warrant to receive a number
of shares of Common Stock or Series B Preferred Stock equal to the product of
(i) the number of shares of Common Stock or Series B Preferred Stock to which
the holder of such Warrant was entitled immediately prior to such issuance and
(ii) the quotient that is obtained by dividing:
(X) the total number of shares of Common Stock outstanding
immediately after such issuance (including any shares of
Common Stock deemed to have been issued pursuant to this
subsection 12(c))
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by
(Y) the sum of
(i) the number of shares of Common Stock outstanding
immediately prior to such issuance plus
(ii) the number of shares of Common Stock which the aggregate
consideration received (or deemed to be received) by the
Issuer upon such issuance would purchase at such Current
Market Price Per Share.
For purposes of any adjustment of the number of shares of Common Stock or Series
B Preferred Stock obtainable upon the exercise of any Warrants pursuant to this
subsection 12(c), the following provisions shall be applicable:
(1) In the case of the issuance of Common Stock for cash, the
consideration therefor shall be deemed to be the amount of cash paid therefor,
without deducting therefrom any discounts, commissions or other expenses
allowed, paid or incurred by the Issuer in connection with the issuance or sale
thereof.
(2) In the case of the issuance of Common Stock for a consideration
part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined by agreement between the holders of a
majority of the Warrants outstanding and the Issuer or, in the absence of such
an agreement, by an independent investment banking firm or an independent
appraiser engaged by the Issuer and reasonably acceptable to the holders of a
majority of the Warrants outstanding (in either case the cost of which
engagement will be borne by the Issuer). In the case of any issuance of Common
Stock upon the exercise of any warrants, options or other rights or the
conversion or exchange of any convertible or exchangeable securities, the
aggregate consideration received by the Issuer upon such issuance shall be
deemed to include the consideration, if any, received by the Issuer as
consideration for the issuance of such warrants, options or rights or such
convertible or exchangeable securities (excluding any cash received on account
of accrued interest or accrued dividends) and, in the case of any conversion or
exchange of securities, shall not include any amount attributable to the
converted or exchanged securities. If any warrant, option or right to purchase
or subscribe for any Common Stock or convertible securities is issued in
connection with the issuance or sale of other securities by the Issuer, together
comprising one integrated transaction in which no specific consideration is
allocated to such warrant, option or right, such warrant, option or right shall
be deemed to have been issued for no consideration.
(3) If (a) the Issuer shall issue warrants or options to purchase or
rights to subscribe for Common Stock other than Exempted Securities, and (b) the
consideration, if any, received by the Issuer as consideration for the issuance
of such warrants, options or rights plus the minimum aggregate consideration
required to be paid upon exercise of such
-16-
warrants, options or rights (the amount of such consideration to be determined
in each case as set forth above) shall be less than the product of the Current
Market Price Per Share on the date of such issuance multiplied by the maximum
number of shares of Common Stock deliverable upon such exercise, then such
aggregate maximum number of shares shall be deemed to have been issued at the
time such warrants, options or rights were issued and for a consideration equal
to such minimum aggregate consideration.
(4) If (a) the Issuer shall issue (i) securities (other than
Exempted Securities) which are by their terms convertible into or exchangeable
for Common Stock or (ii) warrants or options to purchase or rights to subscribe
for any such convertible or exchangeable securities (other than Exempted
Securities), and (b) the consideration received by the Issuer for any such
securities or any such options or rights (excluding any cash received on account
of accrued interest or accrued dividends) plus the minimum aggregate
consideration (not including any amount attributed to the converted or exchanged
securities), if any, to be received by the Issuer upon the conversion or
exchange of such securities or upon the exercise of such options and the
conversion or exchange of the securities received upon such exercise, as the
case may be (the amount of such consideration to be determined in each case as
set forth above) shall be less than the product of the Current Market Price Per
Share on the date of such issuance multiplied by the maximum number of shares
deliverable upon conversion of or in exchange for such convertible or
exchangeable securities or upon the exercise of any such options and subsequent
conversion or exchanges thereof, then such aggregate maximum number of shares
shall be deemed to have been issued at the time such securities were issued or
such options or rights were issued and for a consideration equal to such minimum
aggregate consideration.
(5) Upon any reduction in the exercise price of Common Stock
deliverable upon exercise of any of such warrants, options or rights as are
referred to in this subsection 12(c) or any reduction in the amount of
consideration required to be paid or the conversion or exchange price or ratio
payable upon conversion or exchange of any of such convertible or exchangeable
securities, in each case other than a change resulting from any antidilution
provisions thereof which are no more favorable in such instance to the holder
thereof than the provisions of this Section 12 are to the Warrant Holders, (i)
if an adjustment shall previously have been made pursuant to this subsection
12(c) in respect of such warrants, options or rights or such securities, the
number of shares of Common Stock or Series B Preferred Stock obtainable upon the
exercise of the Warrants shall forthwith be readjusted to such number of shares
as would have obtained had the adjustment made upon the issuance of such
warrants, options, rights or securities as have not been exercised, converted or
exchanged prior to such change (or any prior adjustment made pursuant to this
subdivision (5)) been made upon the basis of such change, and (ii) if an
adjustment has not previously been made pursuant to this subsection 12(c) in
respect of such options or rights or such securities, then such warrants,
options or rights or such securities shall be deemed to have been granted or
issued (as the case may be) for purposes of this subsection 12(c) as of the date
of such reduction, and any adjustments required to be made pursuant to this
subsection 12(c) as a result of such deemed grant or issuance shall forthwith be
made effective as of such date.
-17-
(6) All grants or issuances of options or other rights to acquire
shares of Common Stock (or securities convertible into or exchangeable for
shares of Common Stock) issued to any officer, director or employee of the
Issuer or of any Subsidiary of the Issuer or to members of the immediate family
of any of them ("Management Options"), and all issuances of shares of Common
Stock (or securities convertible into or exchangeable for shares of Common
Stock) under or pursuant to such Management Options shall, for purposes of this
subsection 12(c), be deemed to be granted and issued for no consideration except
to the extent cash or notes are paid therefor; provided that the foregoing
provisions of this clause (6) shall not apply to options or other rights to
acquire securities that constitute Exempted Securities.
(7) Shares of Common Stock owned by or held for the account of the
Issuer or any majority-owned Subsidiary shall not be deemed outstanding for the
purpose of any computation made pursuant to this subsection 12(c). Any
adjustment required to be made pursuant to this subsection 12(c) shall be made
successively whenever the date of issuance or deemed issuance of any such Common
Stock or any such options, rights or convertible or exchangeable securities is
fixed (which date of issuance shall be the record date for such issuance if a
record date therefor is fixed) and, in the event that (A) such shares or
options, rights, warrants or convertible or exchangeable securities are not so
issued, or (B) any such option, right, warrant or convertible or exchangeable
security (or the conversion or exchange right thereunder) expires according to
its terms without having been exercised, converted or exchanged, each Warrant
outstanding shall, as of the date of cancellation of such issuance in the case
of clause (A) above and the date of such expiration in the case of clause (B)
above, entitle the holder thereof to receive the number of shares of Common
Stock or Series B Preferred Stock as would have been the case had the date of
such issuance of such unissued options, rights, warrants or convertible or
exchangeable securities not been fixed or such expired options, rights, warrants
or convertible or exchangeable securities not been issued, as the case may be.
(d) In case the Issuer shall make a distribution to all holders of Common
Stock (including any such distribution made in connection with a consolidation
or merger in which the Issuer is the continuing corporation) of evidences of its
indebtedness, cash or other assets, each Warrant outstanding on the date of such
distribution shall thereafter entitle the holder of such Warrant to receive a
number of shares of Common Stock and Series B Preferred Stock equal to the
product of (i) the number of shares of Common Stock and Series B Preferred Stock
to which the holder of such Warrant was entitled immediately prior to such date
of distribution and (ii) a fraction of which the numerator shall be the then
Current Market Price Per Share of Common Stock on such date and of which the
denominator shall be the then Current Market Price Per Share of Common Stock on
such date less the fair market value, as determined by agreement between the
holders of a majority of the Warrants and the Issuer or, in the absence of such
an agreement, by an independent investment banking firm or an independent
appraiser engaged by the Issuer and reasonably acceptable to the holders of a
majority of the Warrants (in either case the cost of which engagement will be
borne by the Issuer) of the portion of the assets or evidences of indebtedness,
or the portion of the cash, so to be distributed applicable to one share of
then-outstanding Common
-18-
Stock. Such adjustment shall be made successively whenever a date for such
distribution is fixed (which date of distribution shall be the record date for
such distribution if a record date therefor is fixed) and, if such distribution
is not so made, each Warrant outstanding shall again entitle the holder thereof
to receive the number of shares of Common Stock and Series B Preferred Stock as
would have been the case had such date of distribution not been fixed.
(e) In the event of any capital reorganization of the Issuer, or of any
reclassification of the Common Stock (other than a subdivision or combination of
outstanding shares of Common Stock), or in case of the consolidation of the
Issuer with or the merger of the Issuer with or into any other corporation or of
the sale of the properties and assets of the Issuer as, or substantially as, an
entirety to any other corporation, each Warrant shall after such capital
reorganization, reclassification of Common Stock, consolidation, merger or sale
be exercisable upon the terms and conditions specified in this Warrant
Agreement, for the number of shares of stock or other securities or assets to
which a holder of the number of Warrant Shares purchasable (at the time of such
capital reorganization, reclassification of Common Stock, consolidation, merger
or sale) upon exercise of such Warrant would have been entitled upon such
capital reorganization, reclassification of Common Stock, consolidation, merger
or sale; and in any such case, if necessary, the provisions set forth in this
Section 12 with respect to the rights thereafter of the holders of the Warrants
shall be appropriately adjusted so as to be applicable, as nearly as may
reasonably be, to any shares of stock or other securities or assets thereafter
deliverable on the exercise of the Warrants.
(f) If any event occurs, as to which, in the good faith opinion of the
Board of Directors of the Issuer, the other provisions of this Section 12 are
not strictly applicable or (if strictly applicable) would not fairly protect the
purchase rights of the Warrants in accordance with the essential intent and
principles of such provisions, then the Board of Directors shall make an
adjustment in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such purchase rights as
aforesaid, but in no event shall any such adjustment have the effect of
decreasing the number of shares of Common Stock or Series B Preferred Stock
purchasable upon the exercise of each Warrant from that which would otherwise be
determined pursuant to this Section 12.
(g) No adjustment in the number of Warrant Shares purchasable shall be
required unless such adjustment would require an increase or decrease in the
aggregate number of Warrant Shares purchasable of at least 1%, provided that any
adjustments which by reason of this subsection 12(g) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 12 shall be made to the nearest cent or to
the nearest hundredth of a share, as the case may be.
(h) Irrespective of any adjustments in the number or kind of shares
purchasable upon the exercise of the Warrant, Warrant Certificates theretofore
or thereafter issued may continue to express the same number and kind of shares
as are stated on the Warrant Certificates initially issuable pursuant to this
Warrant Agreement.
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(i) If any question shall at any time arise with respect to the number of
Warrant Shares purchasable following any adjustment pursuant to this Section 12,
such question shall be determined by agreement between the holders of a majority
of the Warrants and the Issuer or, in the absence of such an agreement, by an
independent investment banking firm or an independent appraiser engaged by the
Issuer (in either case the cost of which engagement will be borne by the Issuer)
and reasonably acceptable to the Issuer and the holders of a majority of
Warrants and such determination shall be binding upon the Issuer and the holders
of the Warrants.
(j) Anything in this Section 12 to the contrary notwithstanding:
(1) the Issuer shall be entitled to make such increases in the
number of Warrant Shares purchasable upon the exercise of each Warrant, in
addition to those adjustments required by this Section 12, as it in its
sole discretion shall determine to be advisable in order that any
consolidation or subdivision of the Common Stock, or any issuance wholly
for cash or any shares of Common Stock at less than the Current Market
Price Per Share, or any issuance wholly for cash or shares of Common Stock
or securities which by their terms are convertible into or exchangeable
for shares of Common Stock or any stock dividend, or any issuance of
rights, options or warrants referred to hereinabove in this Section 12,
hereinafter made by the Issuer to the holders of its Common Stock shall
not be taxable to them; and
(2) no adjustment in the number of Warrant Shares purchasable shall
be required in the event the Issuer pays a cash dividend to holders of
Common Stock and/or Series B Preferred Stock; provided that the Issuer
also pays a cash dividend to all holders of Warrants which dividend shall
be calculated as if the Warrants had been exercised; provided further that
in such event, no adjustment in the number of Warrant Shares purchasable
shall be made by the Issuer if such adjustment would cause the sum of the
number of Warrant Shares theretofore issued, if any, plus the number of
Warrant Shares purchasable and the number of shares of other capital stock
of the Issuer held by Creditanstalt to exceed 24.99% of the aggregate
issued and outstanding shares of the Issuer and in such event, the Issuer
shall pay a cash dividend to all holders of Warrants which dividend shall
be calculated as if the Warrants had been exercised.
Section 13. Notices to Warrant Holders; Notices of Issuances and
----------------------------------------------------
Dividends.
---------
(a) Upon any adjustment of the number of Warrant Shares purchasable upon
exercise of a Warrant pursuant to Section 12, the Issuer shall promptly but in
any event within 20 days thereafter, cause to be given to each of the registered
holders of the Warrants at its address appearing on the Warrant Register by
registered mail, postage prepaid, return receipt requested a certificate signed
by its chairman, president or chief financial officer setting forth the number
of Warrant Shares purchasable upon exercise of a Warrant as so adjusted and
describing in reasonable detail the facts accounting for such adjustment and the
method of calculation used. Where appropriate, such certificate may be given in
advance and
-20-
included as a part of the notice required to be mailed under the other
provisions of this Section 13.
(b) In the event:
(i) that the Issuer shall authorize the issuance to all holders of
Common Stock or Series B Preferred Stock of rights or warrants to
subscribe for or purchase capital stock of the Issuer or of any other
subscription rights or warrants; or
(ii) that the Issuer shall authorize the distribution to all holders
of Common Stock or Series B Preferred Stock of evidences of its
indebtedness or assets (including, without limitation cash dividends or
cash distributions payable out of consolidated earnings or earned surplus
or dividends payable in Common Stock or Series B Preferred Stock); or
(iii) of any consolidation or merger to which the Issuer is a party
and for which approval of any stockholders of the Issuer is required, or
of the conveyance or transfer of the properties and assets of the Issuer
substantially as an entirety, or of any capital reorganization or
reclassification or change of the Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination); or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Issuer; or
(v) that the Issuer proposes to take any other action which would
require an adjustment in the number of Warrant Shares or other securities
or assets to which each Warrant Holder is entitled pursuant to Section 12;
then the Issuer shall cause to be given to each of the registered holders of the
Warrants at its address appearing on the Warrant Register at least 20 calendar
days prior to the applicable record date, if any, hereinafter specified, or, if
no such record date is specified, 20 calendar days prior to the taking of any
action referred to in clauses (i) through (v) above, by registered mail, postage
prepaid, return receipt requested, a written notice stating (i) the date as of
which the holders of record of Common Stock or Series B Preferred Stock to be
entitled to receive any such rights, warrants or distribution are to be
determined, or (ii) the date on which any such consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up is expected to
become effective, or (iii) the date on which such other action is to be
effected, and the date as of which it is expected that holders of record of
Common Stock or Series B Preferred Stock shall be entitled to exchange their
shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up or other action. The failure to give the notice
required by this Section 13 or any defect therein shall not affect the legality
or validity of any distribution, right, warrant, consolidation, merger,
conveyance, transfer,
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dissolution, liquidation or winding up or other action referred to above, or the
vote upon any such action.
(c) Prior to the expiration or exercise of all outstanding Warrants, the
Issuer shall furnish to each Warrant Holder:
(1) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Issuer, either (A) a copy of the Issuer's
Annual Report on Form 10-K (or any successor form) and any documents
incorporated by reference into such form for the prior fiscal year, as
filed with the Commission under the Exchange Act, or (B) a copy of the
consolidated balance sheet of the Issuer and its consolidated Subsidiaries
as at the end of such year and the related consolidated statement of
income and retained earnings and of cash flow for such year, setting forth
in each case in comparative form the figures for the previous year
certified by certified independent public accountants, and the
consolidated balance sheet of the Issuer and its consolidated Subsidiaries
as at the end of such fiscal year, showing inter-company eliminations, and
the related consolidating statements of income and retained earnings and
changes in financial position of the Issuer and its consolidated
Subsidiaries for such year, showing inter-company eliminations, setting
forth in each case in comparative form the figures for the previous fiscal
year, certified by a firm of nationally recognized independent certified
public accountants;
(2) as soon as available but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Issuer, either (A) a copy of the Issuer's Quarterly Report on
Form 10-Q (or any successor form) for the preceding fiscal quarter, as
filed with the Commission under the Exchange Act, or (B) the unaudited
consolidated balance sheet of the Issuer and its consolidated Subsidiaries
as at the end of each such quarter and the related unaudited consolidated
statements of income and retained earnings and of cash flow of the Issuer
and its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through such date setting forth in each case in comparative
form the figures for the same period of the previous fiscal year,
certified by the chief-financial or accounting officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments); and
(3) promptly after the sending or filing thereof, as the case may
be, copies of any reports, certificates, budgets, definitive proxy
statements or financial statements which Issuer sends to its shareholders
and copies of any regular periodic and special reports or registration
statements which Issuer files with the Commission (or any governmental
agency substituted therefor), including, but not limited to, any report or
registration statement which Issuer files with any national securities
exchange;
(4) no later than April 30 of each year, a certificate of the
chairman, president or chief financial officer of the Issuer setting forth
the number of Warrant Shares purchasable upon exercise of a Warrant as of
the end of the preceding fiscal
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year and a description in reasonable detail of any adjustments in such
number during the preceding fiscal year;
all such financial statements to be prepared in reasonable detail and in
accordance with generally accepted accounting principles applied consistently
throughout the periods reflected therein (except as approved by such accountants
and officer and disclosed therein). So long as the Loan Agreement remains in
effect, compliance by the Issuer with the provisions of Section 6.2 thereof
shall be deemed to be compliance with subsections 13(c)(l) and 13(c)(2).
(d) The Issuer shall not:
(i) at any time prior to the expiration or exercise of all
outstanding Warrants or at any time while Creditanstalt or an Affiliate
thereof holds any Warrants or Warrant Shares, (A) issue any shares of
Common Stock without consideration or at a price per share less than the
Current Market Price Per Share of Common Stock, other than (y) Exempted
Securities and (z) shares issued for cash in a private placement not
registered under the Securities Act at a price per share not less than 85%
of the Current Market Price Per Share, or (B) issue options, rights or
warrants to subscribe for or purchase Common Stock (or securities
convertible into Common Stock) at an exercise price per share (or having a
conversion price per share, if a security convertible into Common Stock),
less than the Current Market Price Per Share of Common Stock on the date
of issuance of such options, rights, warrants or convertible securities or
(C) without the consent of Creditanstalt, issue after the date of this
Warrant Agreement options, rights or warrants to subscribe for or purchase
(or securities convertible into) shares of Common Stock if the number of
shares of Common Stock issuable thereunder during any fiscal year, when
added to shares of Common Stock issuable during such fiscal year under all
other options, rights or warrants or convertible securities issued after
the date of this Warrant Agreement, exceeds ten percent (10%) of the
Common Stock outstanding on the first day of the fiscal year in which such
option, rights, warrants or convertible securities are issued; and
provided that for purposes of this clause (C) and subsection 12(c)(i)(C)
hereof such options, rights and warrants (and convertible securities)
shall be deemed issued as to the shares of Common Stock purchasable or
convertible into thereunder during the fiscal year in which such rights as
to such shares become fully vested.
(ii) at any time declare any dividend (other than dividends payable
solely in Common Stock or any series of the Preferred Stock) on, or make
any payment on account of, or make any other distribution in respect of
any shares of any class of stock of the Issuer, whether in cash or
property or obligations of the Issuer or any of its Subsidiaries without
giving all Warrant Holders written notice of the proposed declaration of
such dividend on, or the making of such payment or other distribution in
respect of, the Common stock or Preferred Stock at least 10 days prior to
the record date set for such proposed dividend, payment or other
distribution.
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Section 14. Restrictions on Transfer.
------------------------
(a) Each of Creditanstalt and its Affiliates who are issued Warrants
pursuant to this Agreement (i) represents that it is acquiring the Warrants for
its own account for investment and not with a view to any distribution or public
offering within the meaning of the Securities Act, except in any case pursuant
to the registration of such Warrants or Warrant Shares under the Securities Act
or pursuant to a valid exemption from such registration requirement, (ii)
acknowledges that the Warrants and the Warrant Shares issuable upon exercise
thereof have not been registered under the Securities Act and (iii) agrees that
it will not sell or otherwise transfer any of its Warrants or Warrant Shares
except upon the terms and conditions specified herein and that it will cause any
transferee thereof to agree to take and hold the same subject to the terms and
conditions specified herein, provided that the Warrant Holders may sell the
Warrants or the Warrant Shares purchased upon exercise of the Warrants and
issued on conversion of the Series B Preferred Stock in one or more private
transactions not requiring registration under the Securities Act.
(b) Except as provided in subsection 14(d) hereof each Warrant Certificate
and each certificate for the Warrant Shares issued to Creditanstalt or an
Affiliate thereof or to a subsequent transferee thereof pursuant to subsection
14(c) shall include a legend in substantially the following form (with such
changes therein as may be appropriate to reflect whether such legend refers to
Warrants or Warrant Shares), provided that such legend shall not be required if
such transfer is being made in connection with a sale which is exempt from
registration pursuant to Rule 144 under the Securities Act or if the opinion of
counsel referred to in subsection 14(c) is to the further effect that neither
such legend nor the restrictions on transfer in this Section 14 are required in
order to ensure compliance with the Securities Act:
THE WARRANTS AND SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAW AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR LAW. SUCH
WARRANTS AND SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN AND ARE SUBJECT TO OTHER PROVISIONS OF THE SECOND
AMENDED AND RESTATED WARRANT AGREEMENT, DATED AS OF NOVEMBER 17, 1995
BETWEEN THE ISSUER AND CREDITANSTALT AMERICAN CORPORATION, A COMPLETE AND
CORRECT COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE
OF THE ISSUER AND WILL BE FURNISHED TO THE HOLDER HEREOF UPON WRITTEN
REQUEST AND WITHOUT CHARGE.
(c) Prior to or promptly after any assignment, transfer or sale of any
Warrant or any Warrant Shares (other than a transfer among Creditanstalt and/or
its Affiliates), the holder thereof shall give written notice to the Issuer of
such holder's intention to effect such assignment, transfer or sale, which
notice shall set forth the date of such proposed
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assignment, transfer or sale and the identity of the proposed transferee. Each
holder wishing to effect such a transfer of any Warrant or Warrant Shares shall
also furnish to the Issuer an agreement by the transferee thereof that it is
taking and holding the same subject to the terms and conditions specified herein
and, unless the transferee is an Affiliate of such holder, a written opinion of
such holder's counsel, in form reasonably satisfactory to the Issuer, to the
effect that the proposed transfer may be effected without registration under the
Securities Act.
(d) The restrictions set forth in this Section l4 shall terminate and
cease to be effective with respect to any Warrants or Warrant Shares which are
registered under the Securities Act or upon receipt by the Issuer of an opinion
of counsel, in form reasonably satisfactory to the Issuer, to the effect that
compliance with such restrictions is not necessary in order to comply with the
Securities Act with respect to the transfer of the Warrants and the Warrant
Shares; provided, however, that after three (3) years from the date of issuance
of any Warrants, such restrictions will automatically terminate (without the
necessity of any opinion of counsel) as to such Warrants and as to any Warrant
Shares issued in respect of such Warrants upon exercise of the Conversion Right
set forth in subsection 6(b) above. Whenever such restrictions shall so
terminate the holder of such Warrants and/or Warrant Shares shall be entitled to
receive from the Issuer, without expense (other than transfer taxes, if any),
Warrant Certificates or certificates for such Warrant Shares not bearing the
legend set forth in subsection 14(b) at which time the Issuer will rescind any
transfer restrictions relating thereto.
(e) With a view to making available to Creditanstalt and its Affiliates
and subsequent holders of the Warrant Shares the benefits of certain rules and
regulations of the Securities and Exchange Commission (including, without
limitation, Rules 144 and 144A under the Securities Act) which may permit the
sale of Warrants and Warrant Shares to the public or certain other institutions
without registration, the Issuer agrees to take any and all such actions as may
be required of it to make available to Creditanstalt and its Affiliates and such
subsequent holders such benefits, including without limitation, to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act or any
successor provision thereto from and after the date the Issuer first
becomes subject to the provisions of Section 13 or 15(d) of the Exchange
Act;
(ii) file with the Commission in a timely manner all reports and
other documents required of the Issuer under the Securities Act and the
Exchange Act from and after the date the Issuer first becomes subject to
the provisions of Section 13 or 15(d) of the Exchange Act; and
(iii) so long as Creditanstalt or an Affiliate thereof owns any
Warrants or Warrant Shares furnish to Creditanstalt forthwith upon request
a written statement by the Issuer as to its compliance with the reporting
requirements of Rule 144 or any successor provision thereto, and of the
Securities Act and the Exchange Act, (to the
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extent not previously furnished to Creditanstalt under subsection 13(d)) a
copy of the most recent annual or quarterly report of the Issuer filed
with the Commission, in each case from and after the date the Issuer first
becomes subject to the provisions of Section 13 or 15(d) of the Exchange
Act, and such other reports and documents of the Issuer and other
information in the possession of or reasonably obtainable by the Issuer as
Creditanstalt and its Affiliates and subsequent holders of the Warrants
may reasonably request in availing itself of any rule or regulation of the
Commission allowing Creditanstalt and its Affiliates and subsequent
holders of the Warrants to sell any such securities without registration.
Section 15. Registration.
------------
(a) Upon the written demand of any Warrant Holder to the Issuer (a
"Demand") at any time and from time to time after the earlier of (i) six months
following an initial public offering of securities by the Issuer or (ii) three
years after the date hereof requesting that the Issuer effect the registration
under the Securities Act of Warrants or Non-Public Warrant Shares of such
Warrant Holder, the Issuer will promptly give written notice (a "Demand Notice")
of such Demand to all other Warrant Holders. Each other Warrant Holder may
request that the Issuer effect the registration under the Securities Act of
additional Warrants or Non-Public Warrant Shares of such Warrant Holder by
delivering written notice to the Issuer specifying such number of Warrants or
Non-Public Warrant Shares within 20 days of receipt of the Demand Notice. In the
event that the Issuer receives requests for the registration under the
Securities Act of at least an aggregate of 1,000 Warrants and/or Non-Public
Warrant Shares (or if less than an aggregate of 1,000 Warrants or Non-Public
Warrant Shares are outstanding, the remainder of the Non-Public Warrant Shares
then outstanding) within such 20-day period the Issuer shall give written notice
(a "Registration Notice") to all Warrant Holders that the Issuer will be filing
a registration statement pursuant to this subsection 15(a) and will thereupon
use its reasonable best efforts promptly to effect the registration under the
Securities Act of (i) the Warrants or Non-Public Warrant Shares which Warrant
Holders have requested to be registered within 20 days of the Demand Notice, and
(ii) additional Warrants or Non-Public Warrant Shares which Warrant Holders have
requested to be registered within 10 days of the Registration Notice. Promptly
within 20 days of the Registration Notice, the Issuer will notify all Warrant
Holders whose Warrants or Non-Public Warrant Shares are to be included in the
registration of the number of additional Warrants or Non-Public Warrant Shares
requested to be included therein by the other Warrant Holders. If the
registration of which the Issuer gives notice pursuant to subsection 15(a) is
for an underwritten public offering, only Warrants or Non-Public Warrant Shares
which are to be included in the underwriting may be included in such
registration, and the selling Warrant Holders shall, after reasonable
consultation with the Issuer, have the right to designate the managing
underwriter(s) in any such underwritten public offering with the consent of the
Issuer (which consent shall not be unreasonably withheld). Holders who include
Warrants or Warrant Shares in a registration pursuant to subsection 15(a) shall
bear the cost of any underwriters' discounts and commissions relating to their
Warrants or Warrant Shares which are sold. If a demand registration is made
prior to an initial public offering by the Issuer, the Issuer may, by written
notice to the Warrant Holders, convert
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such demand registration into a primary offering by the Issuer, and the Issuer
may include Common Stock to be issued by the Issuer in a registration pursuant
to the the provisions of subsection 15(c)(provided that any reduction in the
number of securities shall be on a pro rata basis) and such registration will
not constitute a demand registration under this subsection 15(a).
(b) The Issuer is obligated to effect not more than three (3) demand
registrations under subsection 15(a) and, with respect to each such
registration, the Issuer shall bear all expenses other than underwriting
discounts and commissions, if any, in connection with registrations, filings or
qualifications pursuant to subsection 15(a), including without limitation all
registration, filing and qualification fees, printers' and accounting fees, the
fees and disbursements of counsel for the Issuer and the fees and disbursements
of one counsel for the selling Warrant Holders, provided that (i) a registration
will not constitute a demand registration under subsection 15(a) until it has
been declared effective under the Securities Act, (ii) if a registration
statement filed pursuant to subsection 15(a) is terminated or withdrawn by the
Issuer before all Warrants and Non-Public Warrant Shares covered thereby have
been sold, the Issuer shall be obligated to pay the expenses of an additional
demand registration under subsection 15(a), and (iii) no Person other than
holders of Warrants or Non-Public Warrant Shares and the Persons who have
registration rights on the date of this Warrant Agreement as described on
Schedule II hereto shall have any right to have securities included in any
registration under subsection 15(a); provided, however, that the Warrant Holder
acknowledges that the Issuer has the right, as provided in subsection 15(a), to
convert a demand registration that would be an initial public offering into a
primary offering by the Issuer with the Warrant Holder having piggyback
registration rights with respect thereto.
(c) If, at any time after the date hereof, the Issuer proposes to register
any of its securities under the Securities Act (except pursuant to a
registration statement filed on Form S-8 or Form S-4 or such other form as shall
be prescribed under the Act for substantially similar purposes), it will at each
such time give written notice (which notice shall state the intended method of
disposition thereof by the prospective sellers) to all holders of outstanding
Warrants and Non-Public Warrant Shares of its intention to do so and the
proposed minimum offering price per Warrant or Warrant Shares and upon the
written request of any holder thereof given within 10 days after the Issuer's
giving of such notice, the Issuer will use its reasonable best efforts to effect
the registration of the Warrants and/or Non-Public Warrant Shares which it shall
have been so requested to register by including the same in such registration
statement all to the extent required to permit the sale or other disposition
thereof in accordance with the intended method of sale or other disposition
given in each such request. If the registration of which the Issuer gives notice
pursuant to this subsection 15(c) is for an underwritten public offering, only
Warrants or Non-Public Warrant Shares which are to be included in the
underwriting may be included in such registration, and the Issuer shall have the
right to designate the managing underwriter(s) in any such underwritten public
offering; provided that (i) the Issuer shall use its best efforts to cause the
managing underwriter(s) to include the Warrants or Non-Public Warrant Shares
requested to be included in the registration in the underwriting; (ii) if the
managing underwriter(s) advises the holders of the Warrants or Non-Public
Warrant Shares and all other Persons seeking to
-27-
include securities of the Issuer held by them in such registration statement
("Other Security Holders") in writing that the total amount of securities which
they and the Issuer and any Other Security Holders intend to include in such
offering is sufficiently large to materially and adversely affect the success of
such offering, the amount of securities to be offered shall be reduced (A) in
the case of an exercise of the Issuer's right to convert a demand registration
to a primary offering, pro rata among the Seller and the holders of Warrants or
Non-Public Warrant Shares, or (B) in any other case, pro rata among the holders
of Warrant Shares and Non-Public Warrant Shares and Other Security Holders
(based upon the amount of securities each such Person, other than the Issuer,
sought to include in the offering) to the extent necessary to reduce the total
amount of securities to be included in the offering to the amount recommended by
such managing underwriter(s) (which amount may be zero, if so recommended by
such managing underwriter(s)). Any registration statement filed pursuant to this
subsection 15(c) may be withdrawn at any time at the discretion of the Issuer.
(d) If a registration under subsection 15(a) or 15(c) shall be in
connection with an underwritten public offering, each holder of Warrants or
Non-Public Warrant Shares shall be deemed to have agreed by acquisition of such
Warrants or Non-Public Warrant Shares not to effect any sale or distribution,
including any sale pursuant to Rule 144 or Rule 144A, of any Warrants or
Non-Public Warrant Shares, and to use such holder's reasonable best efforts not
to effect any such sale or distribution of any other equity security of the
Issuer or of any security convertible into or exchangeable or exercisable for
any equity security of the Issuer (other than as part of such underwritten
public offering) within seven days before or 90 days after the effective date of
such registration statement (and the Issuer hereby also so agrees and agrees to
cause each holder of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Issuer purchased
from the Issuer at any time other than in a public offering, so to agree).
(e) As a condition to the inclusion of a holder's Warrants or Non-Public
Warrant Shares in any registration statements, each such holder of Warrants or
Non-Public Warrant Shares requesting registration thereof will furnish to the
Issuer such information with respect to such holder as is required to be
disclosed in the registration statement (and the prospectus included therein) by
the applicable rules, regulations and guidelines of the Commission. Failure of a
holder to furnish such information or agreement shall not affect the obligation
of the Issuer under this Section 15 to the remaining holders who furnish such
information.
(f) If and whenever the Issuer is required under this Section 15 to use
its reasonable best efforts to effect the registration of Warrants or Non-Public
Warrant Shares under the Securities Act, the Issuer shall:
(1) as expeditiously as possible and subject to the limitations set
forth in subsection 15(c), prepare and file with the Commission a
registration statement on the appropriate form with respect to such
Warrants or Non-Public Warrant Shares and use its best efforts to cause
such registration statement to become effective as soon as practicable
after such filing;
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(2) as expeditiously as possible, prepare and file with the
Commission such amendments and supplements (including post-effective
amendments and supplements) to the registration statement covering such
Warrants or Non-Public Warrant Shares and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and usable for resale for a period necessary to
complete the distribution of such securities, but in no event in excess of
24 months plus any period during which the holders of Warrants or Warrant
Shares are obligated to refrain from selling because the Issuer is
required to amend or supplement the prospectus under subsection 15(f)(iv),
and to comply with the provisions of the Securities Act with respect to
the disposition of all Warrants or Non-Public Warrant Shares covered by
such registration statement during such period in accordance with the
intended method of disposition of the sellers set forth therein;
(3) as expeditiously as possible, furnish to each seller of such
Warrants or Non-Public Warrant Shares registered, or to be registered
under the Securities Act, and to each underwriter, if any, of such
Warrants or Non-Public Warrant Shares such number of copies of a
prospectus and preliminary prospectus in conformity with the requirements
of the Securities Act, and such other documents as such seller or
underwriter may reasonably request in order to facilitate the public sale
or other disposition of such Warrants or Non-Public Warrant Shares;
(4) as expeditiously as possible, notify each seller of such
Warrants or Non- Public Warrant Shares if, at any time when a prospectus
relating to such Warrants or Non-Public Warrant Shares, is required to be
delivered under the Securities Act, any event shall have occurred as a
result of which the prospectus then in use with respect to such Warrants
or Non-Public Warrant Shares would include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or for
any other reason it shall be necessary to amend or supplement such
prospectus in order to comply with the Securities Act and prepare and
furnish to all sellers as promptly as possible, and in any event within
ninety (90) days of such notice, a reasonable number of copies of a
supplement to or an amendment of such prospectus which will correct such
statement or omission or effect such compliance;
(5) as expeditiously as possible, use its reasonable best efforts to
register or qualify such Warrants or Non-Public Warrant Shares under such
other securities or blue sky laws of such jurisdictions as such seller
shall reasonably request and do any and all other acts and things which
may be reasonably necessary to enable such seller to consummate the public
sale or other disposition in each such jurisdiction of the Warrants or
Non-Public Warrant Shares owned by such seller and included in such
registration statement, provided that the Issuer shall not be required to
consent to the general service of process or to qualify to do business in
any jurisdiction where it is not then qualified;
-29-
(6) use its reasonable best efforts to keep the holders of such
Warrants or Non-Public Warrant Shares informed of the Issuer's best
estimate of the earliest date on which such registration statement or any
post-effective amendment or supplement thereto will become effective and
will promptly notify such holders and the managing underwriters, if any,
participating in the distribution pursuant to such registration statement
of the following: (A) when such registration statement or any
post-effective amendment or supplement thereto becomes effective or is
approved; (B) of the issuance by any competent authority of any stop order
suspending the effectiveness or qualification of such registration
statement or the prospectus then in use or the initiation or threat of any
proceeding for that purpose; and (C) of the suspension of the
qualification of any Warrants or Non-Public Warrant Shares included in
such registration statement for sale in any jurisdiction;
(7) make available to its security holders, as soon as practicable,
an earnings statement covering a period of at least twelve months which
satisfies the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder;
(8) cooperate with the sellers of such Warrants or Non-Public
Warrant Shares and the underwriters, if any, of such Warrants or
Non-Public Warrant Shares; give each seller of such Warrants or Non-Public
Warrant Shares, and the underwriters, if any, of such Warrants or
Non-Public Warrant Shares and their respective counsel and accountants,
such access to its books and records and such opportunities to discuss the
business of the Issuer with its officers and independent public
accountants as shall be necessary to enable them to conduct a reasonable
investigation within the meaning of the Securities Act and, in the event
that Warrants or Non-Public Warrant Shares are to be sold in an
underwritten offering, enter into an underwriting agreement containing
customary representations and warranties, covenants, conditions and
indemnification provisions, including without limitation the furnishing to
the underwriters of a customary opinion of independent counsel to the
Issuer and a customary "comfort" letter from the Issuer's independent
public accountants;
(9) provide a CUSIP number for all Warrants and Non-Public Warrant
Shares not later than the effective date of the registration statement;
(10) as to all registrations under subsection 15(a) and all
registrations under subsection 15(c), pay all costs and expenses incident
to the performance and compliance by the Issuer of this Section 15,
including without limitation (A) all registration and filing fees; (B) all
printing expenses; (C) all fees and disbursements of counsel and
independent public accountants for the Issuer; (D) all blue sky fees and
expenses (including fees and expenses of counsel in connection with blue
sky surveys); (E) all transfer taxes; (F) the entire expense of any
special audits required by the rules and regulations of the Commission;
(G) the cost of distributing prospectuses in preliminary and final form as
well as any supplements thereto and (H) the fees and expenses of one
counsel for the holders of the Warrants or Non-Public Warrant Shares being
registered; and
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(11) as to the first registration under subsection 15(a) which is in
respect of an underwritten offering, as expeditiously as possible, take
such actions as the underwriters reasonably request in order to expedite
or facilitate the disposition of the Warrants or Non-Public Warrant Shares
to be included in such offering (including, without limitation, effecting
a stock split, stock dividend or a combination of shares of Common Stock).
(a)(i) The Issuer will indemnify and hold harmless each seller of
Warrants or Non-Public Warrant Shares, each director, officer, employee
and agent of each seller, and each other person, if any, who controls such
seller within the meaning of the Securities Act or the Exchange Act from
and against any and all losses, claims, damages, liabilities and legal and
other expenses (including costs of investigation) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement under which such Warrants or Non-Public Warrant
Shares were registered under the Securities Act, any prospectus or
preliminary prospectus contained therein or any amendment or supplement
thereto, or caused by 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, except insofar as such losses, claims,
damages, liabilities or expenses are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to such seller and furnished to the Issuer in writing by such
seller expressly for use therein, and provided that the Issuer will not be
liable to any Person who participates as an underwriter in the offering or
sale of Warrants or Non-Public Warrant Shares or any other Person, if
any, who controls such underwriter within the meaning of the Securities
Act under the indemnity agreement in this subsection 15(g) with respect to
any preliminary prospectus or the final prospectus or the final prospectus
as amended or supplemented, as the case may be, to the extent that any
such loss, claim, damage or liability of such underwriter or controlling
Person results from the sale by such underwriter of Warrants or Non-Public
Warrant Shares to a Person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the final
prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Issuer has previously furnished copies
thereof to such underwriter, or from a sale to a Person in a state where
the offering has not been registered or qualified, if the Issuer has
notified the seller and any underwriter involved in such sale of the
states where the offering has been registered or qualified.
(ii) It shall be a condition to the obligation of the Issuer to
effect a registration of Warrants or Non-Public Warrant Shares under the
Securities Act pursuant hereto that (X) each seller, severally and not
jointly, indemnify and hold harmless the Issuer and each person, if any,
who controls the Issuer within the meaning of the Securities Act or the
Exchange Act to the same extent as the indemnity from the Issuer in the
foregoing paragraph, but only with reference to any breach by such seller
of any agreement between such seller, and the Issuer with respect to the
offering and with reference to information relating to such seller
furnished to the Issuer in writing by
-31-
such seller expressly for use in the registration statement, any
prospectus or preliminary prospectus contained therein or any amendment or
supplement thereto and (Y) each seller, in the event that Warrants or
Non-Public Warrant Shares are to be sold in an underwritten offering,
enters into an underwriting agreement containing customary representations
and warranties, covenants, conditions and indemnification provisions.
(iii) In case any claim shall be made or any proceeding (including
any governmental investigation) shall be instituted involving any
indemnified party in respect of which indemnity may be sought pursuant to
this subsection 15(g), such indemnified party shall promptly notify the
indemnifying party in writing of the same, provided that failure to notify
the indemnifying party shall not relieve it from any liability it may have
to an indemnified party otherwise than under this subsection 15(g). The
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party in such proceeding and shall pay the fees and
disbursements of such counsel. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
disbursements of such counsel shall be at the expense of such indemnified
party unless (A) the indemnifying party shall have failed to retain
counsel for the indemnified party as aforesaid, (B) the indemnifying party
and such indemnified party shall have mutually agreed to the retention of
such counsel or (C) representation of such indemnified party by the
counsel retained by the indemnifying party would, in the reasonable
opinion of the indemnified party, be inappropriate due to actual or
potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding, provided that the
Issuer shall not be liable for the fees and disbursements of more than one
additional counsel for all indemnified parties. The indemnifying party
shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subsection 15(g) is
due in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Issuer or the applicable
sellers, as the case may be, shall contribute to the aggregate losses, claims,
damages and liabilities incurred (including legal or other expenses reasonably
incurred in connection with the investigating or defending of same) by the other
and for which such indemnification was sought. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering of the
securities included in the registration statement (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate in the
circumstances; provided,
-32-
however, that (i) in no case shall any seller of Warrants or Non-Public Warrant
Shares be required to contribute any amount in excess of the total public
offering price of the Warrants or Non-Public Warrant Shares sold by him and (ii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
subsection 15(h), each person who controls any seller of Warrants or Non-Public
Warrant Shares or the Issuer shall have the same rights to contribution as such
seller or the Issuer. Any party entitled to contribution shall, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against the
Issuer or the seller of Warrants or Non-Public Warrant Shares under this
subsection 15(h), notify the Issuer or such seller, as the case may be, but the
omission to so notify the Issuer or such seller, as the case may be, shall not
relieve it from any other obligation it may have hereunder or otherwise.
(c) After the date hereof, the Issuer shall not grant to any holder of
securities of the Issuer any registration rights which have a priority greater
than or equal to those granted to holders of Warrants or Non-Public Warrant
Shares pursuant to this Section 15 without the prior written consent of the
holders of at least a majority of the aggregate outstanding Warrants and Non-
Public Warrant Shares, voting as a single group.
Section 16. Put Rights, Offer Rights and Exchange Rights.
--------------------------------------------
(a)(1) Subject to the limitations hereinafter set forth, (a)
Creditanstalt and its Affiliates shall have the right, if the outstanding
Warrant Shares issued or issuable upon exercise of the Warrants and held
by Creditanstalt and its Affiliates, when aggregated with all other
Warrant Shares or other shares of capital stock of the Issuer then or
previously held by Creditanstalt or its Affiliates (excluding
Non-Attributable Stock), would represent in excess of 24.99% of the Equity
of the Issuer, upon written notice to Issuer, to require the Issuer to
purchase that portion of such Warrant Shares as will reduce the Warrant
Shares held by or issuable to Creditanstalt and its Affiliates to 24.99%
of the Equity of the Issuer, excluding Non-Attributable Stock; and (b) any
holder of Warrants and/or Warrant Shares shall have the right at any time,
and from time to time, during the Put Period, at its option, upon written
notice to the Issuer, to require the Issuer to purchase all or a portion
of the Warrants and/or Warrant Shares held by such holder (any such right
being herein called a "Put Right"). The price to be paid to the holder
upon exercise of a Put Right or an Offer Right shall be an amount equal to
the Put Valuation Amount at the date the notice exercising such Put Right
or Offer Right is given to the Issuer or the holder, as the case may be,
multiplied by a fraction the denominator of which is the number of issued
and outstanding shares of Common Stock of the Issuer at such date,
calculated on a fully diluted basis in accordance with generally accepted
accounting principles (except that no Management Options that are not
Exempted Securities shall be treated as issued and outstanding), and the
numerator of which is (Y) the aggregate number of shares of Common Stock
of the Issuer (i) comprising the Warrant Shares to be purchased by the
Issuer, and/or (ii) issuable upon exercise of the Warrants to be
-33-
purchased by the Issuer, and/or (iii) issuable upon conversion of the
Series B Preferred Stock comprising the Warrant Shares to be purchased by
the Issuer, and/or (iv) issuable upon conversion of the Series B Preferred
Stock issuable upon exercise of the Warrants to be purchased by the Issuer
(assuming Series B Preferred Stock, rather than Common Stock, is then
issuable under such Warrants)(the "Put Price").
(2) The completion of all purchases and sales of Warrants and
Warrant Shares pursuant to exercises of Put Rights and Offer Rights shall
take place on the thirtieth (30th) day following the date on which the
respective notice exercising such Put Right or Offer Right is given,
unless another date is mutually agreed upon by the Issuer and the selling
holder (the "Put Closing Date"). The Put Prices for all purchases and
sales pursuant to exercises of Offer Rights shall be paid by the Issuer to
the selling holder in immediately available funds on the Put Closing Date.
The Put Prices for all purchases and sales pursuant to exercises of Put
Rights shall be paid by the Issuer either (A) in immediately available
funds or (B) by issuing to the selling holder a promissory note (the
"Note") in the principal amount of such Put Price payable to the selling
holder, which Note shall accrue interest at a rate per annum equal to the
higher of 9% or the rate publicly announced from time to time in New York
by Creditanstalt as its "prime rate". The Note shall be governed by the
laws of the State of New York and shall be secured by all of the Warrants
so repurchased and will be subordinate in right of payment only to the
Issuer's then outstanding bank indebtedness. The principal amount of the
Note shall be payable in twelve (12) equal quarterly installments,
together with interest accrued on the principal balance to the respective
payment date, beginning on the first day of the fourth full calendar month
following such Put Closing Date and continuing on the first day of each
third calendar month thereafter to the first day of the twenty-fifth
(25th) full calendar month following the Put Closing Date. The principal
amount of the Notes may be prepaid without any penalty. The Put Price
shall be paid against delivery of certificates representing the Warrants
or Warrant Shares to be purchased, duly endorsed for transfer to the
Issuer.
(b) Subject to the limitations hereinafter set forth, at any time prior to
the effectiveness of a registration statement filed by the Issuer with the
Commission with respect to a public offering of shares of Common Stock, any
holder of Warrants or Warrant Shares shall not sell or transfer any such
Warrants or Warrant Shares without first offering, by written notice to the
Issuer, to sell such Warrants or Warrant Shares to the Issuer in accordance with
the terms of this Section 16. Issuer shall have thirty (30) days from the date
of such notice to exercise its right to purchase such Warrants or Warrant Shares
by written notice to such holder (such right being herein called an "Offer
Right"). If the Issuer does not so exercise its right to purchase such Warrants
or Warrant Shares within thirty (30) days from the date of holder's notice
hereunder, such holder shall be free to sell or otherwise transfer such Warrants
or Warrant Shares to any person, without restriction as to price or terms and
free and clear of any further restrictions on sale or transfer under this
subsection 16(b), at any time during the one hundred eighty (180) day period
commencing sixty (60) days after
-34-
holder's notice to Issuer under this subsection 16(b). Notwithstanding the
foregoing, the provisions of this subsection 16(b) shall not apply to any sale
or transfer of Warrants or Warrant shares (i) to any Affiliate of the Issuer; or
(ii) pursuant to an effective registration statement filed by the Issuer with
the Commission.
(c) The Put Prices for all purchases and sales of Warrants and Warrant
Shares pursuant to exercises of Put Rights or Offer Rights shall be determined
and calculated in accordance with subsection 16(a) by the Issuer's regularly
engaged independent accountants. The Issuer shall cause such accountants to
deliver to the Issuer and the selling holder, not later than 15 days prior to
the completion of each purchase and sale under subsection 16(a), a written
statement, signed by such accountants, setting forth in reasonable detail the
respective purchase price and the calculation thereof and stating that such
calculation was based on the books and records of the Issuer and was made and
delivered pursuant to this Section 16.
(d) Creditanstalt and its Affiliates shall have the right, if the
outstanding Common Stock issued upon exercise of the Warrants and held by
Creditanstalt and its Affiliates at any time exceeds 4.99% of the aggregate
number of issued and outstanding shares of Common Stock, upon written notice to
Issuer, to require the Issuer to exchange that portion of such Common Stock for
Series B Preferred Stock as will reduce the shares of Common Stock held by
Creditanstalt and its Affiliates to 4.99% of the aggregate number of issued and
outstanding shares of Common Stock (such right being called an "Exchange
Right").
(e) As used in this Section 16, "Warrant Shares" shall include all shares
of Common Stock and/or Series B Preferred Stock and other securities of the
Issuer or its Affiliates issued to holders of the Issuer's Common Stock and/or
Series B Preferred Stock in respect of stock dividends, stock splits and other
distributions and any recapitalizations, to the extent the same were not
included in any adjustment of the Warrant Shares issuable upon exercise of
Warrants pursuant to Section 12 hereof.
(f) Except with the approval by vote or written consent of the holders of
at least a majority of the Warrants and outstanding Warrant Shares, voting
together as a class, so long as these Put Rights remain in effect, the Issuer
shall not (3) repurchase or redeem any shares of the capital stock of the
Issuer, except Warrants or Warrant Shares purchased pursuant to this Section 16
or (4) enter into any agreement or otherwise grant any right to any person to
require the Issuer to repurchase or redeem any such stock, rights, options or
warrants.
(g) The Put Rights described in subsection 16(a)(i)(B) shall terminate
upon the effectiveness of a registration statement filed by the Issuer with the
Commission with respect to a public offering of shares of Common Stock with
proceeds paid to the Issuer and any selling shareholders of not less than
$10,000,000.
(h) The certificates representing the Warrants and the Warrant Shares
shall bear a legend indicating that the Warrants and Warrant Shares are subject
to the provisions of this Section 16.
-35-
(i) Notwithstanding any provision of this Warrant Agreement to the
contrary, all Warrants and Warrant Shares which are sold pursuant to an
effective registration statement under the Securities Act shall, upon such sale,
cease to be subject to the provisions of this Section 16.
Section 17. Amendments and Waivers. Any provision of this Warrant
----------------------
Agreement may be amended, supplemented, waived, discharged or terminated by a
written instrument signed by the Issuer and the holders of not less than a
majority of the outstanding Warrants (or in the case of Sections 14, 15 and 16,
the holders of a majority of the aggregate outstanding Warrants and Non-Public
Warrant Shares, voting as a single group), provided that (i) this Agreement may
not be amended, supplemented or waived so as to increase the Exercise Price,
reduce the number of Warrant Shares issuable upon exercise of any Warrants,
alter the period during which any Warrants may be exercised (except to provide
for a later Expiration Date), or reduce the Put Valuation Amount, in each case
without the consent of the holders of all outstanding Warrants (and, with
respect to any reduction in the Put Valuation Amount, all outstanding Non-Public
Warrant Shares), and (ii) this Section 17 may not be amended or supplemented
without the consent of the holders of all outstanding Warrants and Non-Public
Warrant Shares, voting as a single group, and no waiver of the requirements of
this Section 17 shall be binding upon any such holder without its consent.
Section 18. Specific Performance. The parties agree that irreparable
--------------------
damage will result in the event that the obligations of the Issuer under this
Warrant Agreement are not specifically enforced, and that any damages available
at law for a breach of any such obligations would be inadequate. Therefore, the
holders of the Warrants and/or Non-Public Warrant Shares shall have the right to
specific performance by the Issuer of the provisions of this Warrant Agreement,
and appropriate injunctive relief may be applied for and granted in connection
therewith. The Issuer hereby irrevocably waives, to the extent that it may do so
under applicable law, any defense based on the adequacy of a remedy at law which
may be asserted as a bar to the remedy of specific performance in any action
brought against the Issuer for specific performance of this Warrant Agreement by
the holders of the Warrants and/or Non-Public Warrant Shares. Such remedies and
all other remedies provided for in this Warrant Agreement shall, however, be
cumulative and not exclusive and shall be in addition to any other remedies
which may be available under this Warrant Agreement.
Section 19. Notices.
-------
(a) Any notice or demand to be given or made by the Warrant Holders or the
holders of Warrant Shares to or on the Issuer pursuant to this Warrant Agreement
shall be sufficiently given or made if sent by registered mail, return receipt
requested, postage prepaid, addressed to the Issuer at the Warrant Office.
(b) Any notice to be given by the Issuer to the Warrant Holders or the
holders of Warrant Shares shall be sufficiently given or made if sent by
registered mail, return receipt requested, postage prepaid, addressed to such
holder as such holder's name and address shall
-36-
appear on the Warrant Register or the Common Stock or Series B Preferred Stock
registry of the Issuer, as the case may be.
Section 20. Binding Effect. This Warrant Agreement shall be binding upon
--------------
and inure to the sole and exclusive benefit of the Issuer, its successors and
assigns, Creditanstalt, Affiliates of Creditanstalt and the registered holders
from time to time of the Warrants and the Warrant Shares.
Section 21. Continued Validity. A holder of Warrant Shares shall continue
------------------
to be entitled with respect to such Warrant Shares to all rights and subject to
all obligations to which it would have been entitled or subject as a Warrant
Holder under Sections 14 through 24 of this Warrant Agreement. The Issuer will,
at the time of each exercise of any Warrant, in whole or in part, upon the
request of the holder of the Warrant Shares issued upon such exercise thereof,
acknowledge in writing, in form reasonably satisfactory to such holder, its
continuing obligation to afford to such holder all such rights, provided,
however, that if such holder shall fail to make any such request, such failure
shall not affect the continuing obligation of the Issuer to afford to such
holder all such rights.
Section 22. Counterparts. This Warrant Agreement may be executed in one or
------------
more separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
Section 23. New York Law. THIS WARRANT AGREEMENT AND EACH WARRANT
------------
CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
Section 24. Benefits of This Warrant Agreement. Nothing in this Warrant
----------------------------------
Agreement shall be construed to give to any Person other than the Issuer and the
registered holders of the Warrants and the Warrant Shares any legal or equitable
right, remedy or claim under this Warrant Agreement.
Section 25. Voting and Consents to be on a Fully Converted Basis. Wherever
----------------------------------------------------
this Warrant Agreement calls for the written consent or vote of any combinations
of the holders of the Warrants, any of the Warrant Shares and/or the Series B
Preferred Stock, voting as a single group, the Warrants shall be counted as if
they had been exercised for Common Stock and shares of Series B Preferred Stock
shall be counted as if they had been converted to Common Stock.
Section 26. Entire Agreement. This Second Amended and Restated Warrant
----------------
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior negotiations,
understandings and agreements between such parties in respect of such subject
matter, including, without limitation, the Original Warrant Agreement and the
Amended and Restated Warrant Agreement.
[Remainder of page intentionally left blank]
-37-
IN WITNESS WHEREOF the parties hereto have caused this Warrant Agreement
to be duly executed and delivered by their proper and duly authorized officers,
as of the date and year first above written.
SATELLINK PAGING INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------
Title: President
--------------------------
Attest: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
----------------------
Title: Secretary
---------------------
CREDITANSTALT AMERICAN CORPORATION
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
IN WITNESS WHEREOF the parties hereto have caused this Warrant Agreement
to be duly executed and delivered by their proper and duly authorized officers,
as of the date and year first above written.
SATELLINK PAGING INC.
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Attest:
---------------------------
Name:
----------------------
Title:
---------------------
CREDITANSTALT AMERICAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
IN WITNESS WHEREOF the parties hereto have caused this Warrant Agreement
to be duly executed and delivered by their proper and duly authorized officers,
as of the date and year first above written.
SATELLINK PAGING INC.
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Attest:
-----------------------------
Name:
----------------------
Title:
---------------------
CREDITANSTALT AMERICAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
--------------------------
EXHIBIT A
To Warrant Agreement
--------------------
FORM OF WARRANT CERTIFICATE
THE WARRANTS AND SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAW AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT OR LAW. SUCH WARRANTS AND SHARES MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN AND ARE SUBJECT
TO OTHER PROVISIONS OF THE SECOND AMENDED AND RESTATED WARRANT AGREEMENT, DATED
AS OF NOVEMBER 17, 1995, BETWEEN THE ISSUER AND CREDITANSTALT AMERICAN
CORPORATION, A COMPLETE AND CORRECT COPY OF WHICH IS AVAILABLE FOR INSPECTION AT
THE PRINCIPAL OFFICE OF THE ISSUER AND WILL BE FURNISHED TO THE HOLDER HEREOF
UPON WRITTEN REQUEST AND WITHOUT CHARGE.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN PUT RIGHTS
AND EXCHANGE RIGHTS MORE FULLY SET FORTH IN THE WARRANT AGREEMENT.
EXERCISABLE ONLY ON OR BEFORE
DECEMBER 3, 2005
Warrant Certificate
This Warrant Certificate certifies that _______________________, or
registered assigns, is the registered holder of _____ Warrants (the "Warrants")
to purchase Class A Common Stock (the "Common Stock") or Series B Convertible
Preferred Stock (the "Series B Preferred Stock") of SATELLINK PAGING INC., a
Georgia corporation (the "Issuer"). Each Warrant entitles the holder, but only
subject to the conditions set forth herein and in the Warrant Agreement referred
to below, to purchase from the Issuer before 5:00 P.M., New York time, on
December 3, 2005 (the "Expiration Date"), one (1) fully paid and nonassessable
share of the Common Stock or Series B Preferred Stock of the Issuer (the
"Warrant Shares") in the percentages and to the extent set forth in the Warrant
Agreement, at a price (the "Exercise Price") of $____________ per Warrant
payable in lawful money of the United States of America, upon surrender of this
Warrant Certificate, execution of the annexed Form of Election to Purchase and
payment of the Exercise Price at the office of the Issuer at 0000 Xxxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or such other address as the Issuer
may specify in writing to the registered holder of the Warrants evidenced hereby
(the "Warrant Office"). In lieu of exercising Warrants pursuant to the
immediately preceding sentence, the Warrant holder shall have the right to
require the Issuer
A-1
to convert the Warrants, in whole or in part and at any time or times, into
Warrant Shares, by surrendering to the Issuer the Warrant Certificate evidencing
the Warrants to be converted, accompanied by the annexed Form of Notice of
Conversion which has been duly completed and signed. The Exercise Price and
number of Warrant Shares purchasable upon exercise of the Warrants are subject
to adjustment prior to the Expiration Date as set forth in the Warrant
Agreement. In no event shall this Warrant be exercisable for shares of Common
Stock or Series B Preferred Stock which, when aggregated with all other Warrant
Shares (as defined in the Warrant Agreement) previously issued (other than Non-
Attributable Stock (as defined in the Warrant Agreement)) would, upon issuance,
represent in excess of 24.99% of the Equity of the Issuer (defined in the
Warrant Agreement) unless such shares, when issued, would constitute Non-
Attributable Stock (as defined in the Warrant Agreement).
No Warrant may be exercised after 5:00 P.M., New York time, on the
Expiration Date and (except as otherwise provided in the Warrant Agreement) all
rights of the registered holders of the Warrants shall cease after 5:00 P.M.,
New York time, on the Expiration Date.
The Issuer may deem and treat the registered holders of the Warrants
evidenced hereby as the absolute owners thereof (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof and of any distribution to the holders hereof and for all other
purposes, and the Issuer shall not be affected by any notice to the contrary.
Warrant Certificates, when surrendered at the office of the Issuer at the
above-mentioned address by the registered holder hereof in person or by a legal
representative duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, but without
payment of any service charge, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the office of the Issuer at the above-mentioned address, a new
Warrant Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued in exchange for this Warrant
Certificate to the transferee(s) and, if less than all the Warrants evidenced
hereby are to be transferred, to the registered holder hereof, subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith.
This Warrant Certificate is one of the Warrant Certificates referred to in
the Second Amended and Restated Warrant Agreement, dated as of November __,
1995, between the Issuer and Creditanstalt American Corporation. Said Second
Amended and Restated Warrant Agreement is hereby incorporated by reference in
and made a part of this instrument and is hereby referred to for a description
of the rights, limitation of rights, obligations, duties and immunities
thereunder of the Issuer and the holders.
A-2
IN WITNESS WHEREOF the Issuer has caused this Warrant Certificate to be
signed by its duly authorized officers and has caused its corporate seal to be
affixed hereunto.
SATELLINK PAGING INC.
By: _______________________________
Name: _________________________
Title: ________________________
(CORPORATE SEAL)
ATTEST:
___________________________
Secretary
A-3
ANNEX to Form
of Warrant
Certificate
-------------
FORM OF ELECTION TO PURCHASE
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ___ Warrant Shares* and
herewith tenders payment for such Warrant Shares to the order of the Issuer in
the amount of $____________ in accordance with the terms hereof. The undersigned
requests that a certificate for such Warrant Shares be registered in the name of
____________________________ whose address is ____________________________ and
that such certificate be delivered to _______________ whose address is
____________________________. If said number of Warrant Shares is less than all
of the Warrant Shares purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the remaining balance of the Warrant Shares be
registered in the name of ____________________________ whose address is
____________________________ and that such Warrant Certificate be delivered to
____________________________ whose address is ____________________________.
Signature:
_________________________________________
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date: ______________
* Consisting of:
____ shares of Common Stock
____ shares of Series B Preferred Stock
A-4
ANNEX to Form
of Warrant
Certificate
-------------
FORM OF NOTICE OF CONVERSION
(To be executed upon conversion of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to convert Warrants represented hereby
into ___ Warrant Shares* in accordance with the terms hereof. The undersigned
requests that a certificate for such Warrant Shares be registered in the name of
____________________________ whose address is ____________________________ and
that such certificate be delivered to ____________________________ whose address
is ____________________________. If said number of Warrant Shares is less than
all of the Warrant Shares obtainable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of the Warrant Shares
be registered in the name of ____________________________ whose address is
____________________________ and that such Warrant Certificate be delivered to
____________________________ whose address is ____________________________.
Signature:
_________________________________________
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
Date: ______________
* Consisting of:
____ shares of Common Stock
____ shares of Series B Preferred Stock
A-5
EXHIBIT B to
Warrant Agreement
-----------------
WARRANT REGISTER
----------------
Warrant Original Number Number of Names and
Certificate of Warrants and Warrants Addresses of
Number Warrant Shares Expired Warrant Holders
B-1
SCHEDULE I
to Warrant Agreement
[list shares with exercise or conversion rights, referenced in definition of
Exempted Securities]
B-2
SCHEDULE II
to Warrant Agreement
[list shares with registration rights]
B-3
SCHEDULE I
to Warrant Agreement
Options, Warrants, Etc.
-----------------------
The Company has 7,360 shares of Series A Convertible Preferred Stock
outstanding, which shares are convertible into Class A Common Stock of the
Company.
The Company has issued an option to purchase 1,000 shares of Class A Common
Stock to Xxxxxx X. Xxxxxxxx.
The Company has issued a warrant to purchase 11,325 shares of Class A Common
Stock or, at the option of the holders, Series B Convertible Preferred Stock to
Creditanstalt American Corporation.
SCHEDULE II
to Warrant Agreement
Warrant held by Creditanstalt American Corporation.
