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EXHIBIT 4.5
THIS AMENDED AND RESTATED WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. THIS AMENDED AND RESTATED WARRANT AND THE SHARES
OF VOTING COMMON STOCK PURCHASABLE HEREUNDER ARE SUBJECT TO AND HAVE THE BENEFIT
OF (1) A STOCKHOLDER AGREEMENT DATED AS OF JULY 23, 1996, AMONG MICROWAVE
COMPONENTS ENTERPRISES, INC. AND THE STOCKHOLDERS LISTED ON THE SIGNATURE PAGES
THEREOF, WHICH CONTAINS CERTAIN RESTRICTIONS ON TRANSFER, AND (2) A REGISTRATION
RIGHTS AGREEMENT, DATED AS OF JULY 23, 1996 AND AS AMEDED AS OF THE DATE HEREOF
AMONG MICROWAVE COMPONENTS ENTERPRISES, INC. AND THE STOCKHOLDERS AND
WARRANTHOLDERS LISTED ON THE SIGNATURE PAGES THEREOF, A COPY OF WHICH IS ON FILE
WITH MICROWAVE COMPONENTS ENTERPRISES, INC.
Dated: October 17, 1997
AMENDED AND RESTATED WARRANT
To Purchase 18,382.72 Shares of Common Stock plus any Additional Exercise Amount
(as hereinafter defined)
provided for herein of
MICROWAVE COMPONENTS ENTERPRISES, INC.
Expiring on the earlier of (i) July 23, 2007 or (ii) the
date which is six years after the date on which the Company's 12% Promissory
Notes due July 23, 2001 in the aggregate principal amount of $3,500,000 shall be
paid in full
THIS IS TO CERTIFY THAT, for value received, NATIONAL CITY
CAPITAL CORPORATION or registered assigns ("Holder") is entitled to purchase
from MICROWAVE COMPONENTS ENTERPRISES, INC., a Michigan corporation (the
"Company"), at any time or from time to time after 9:00 a.m., New York City
time, on and after the earlier of (a) the date on which a Triggering Event (as
hereinafter defined) shall occur or (b) July 23, 2001, and prior to 5:00 p.m.,
New York City time, and on the earlier of (i) July 23, 2007, (ii) the date which
is six years after the date on which the Company's 12% Promissory Notes due July
23, 2001 in the aggregate principal amount of $3,500,000 shall be paid in full
or (iii) the Business Day preceding the date of redemption of this Warrant, at
the place where the Warrant Agency is located, at the Exercise Price, the number
of shares of Common Stock, without par value per share (the "Common Stock") of
the Company shown above, all subject to adjustment and upon the terms and
conditions hereinafter provided, and is entitled also to exercise the other
appurtenant rights, powers and privileges hereinafter described.
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This Warrant is one of one or more warrants (the "Warrants")
of the same form and having similar terms except with respect to certain put
rights and the right to obtain additional Warrant Shares, entitling the holders
initially to purchase up to an aggregate of 28,723 shares of Common Stock (the
"Original Exercise Amount"), as the number of shares of Common Stock subject to
the Warrants that are to be issued upon the exercise of the Warrants may be
increased as provided in Section 5.5 of this Warrant (the "Additional Exercise
Amount"). The Warrants have been issued pursuant to the Note, Warrant and
Preferred Stock Purchase Agreement dated as of July 23, 1996 (as amended from
time to time, the "Purchase Agreement") among the Company and the Purchasers
listed on the signature pages thereof, and the Holder is entitled to certain
benefits and is subject to certain obligations as set forth therein and to
certain benefits and certain obligations described in the Stockholder Agreement
and the Registration Rights Agreement (as those terms are hereinafter defined).
The Company shall keep copies of the Purchase Agreement, the Stockholder
Agreement, and the Registration Rights Agreement, and any amendments thereto, at
the Warrant Agency and shall furnish, without charge, copies thereof to the
Holder upon request.
This is an Amended and Restated Warrant in respect of the
Warrant that was issued by the Company on July 23, 1996 to Holder (the "Original
Warrant"). The Company and Holder desire to make certain changes to the terms of
the Original Warrant, including an increase in the number of Warrant Shares (as
defined herein) in an amount equal to the Additional Exercise Amount.
Certain terms used in this Warrant are defined in Article VI.
ARTICLE I
EXERCISE OF WARRANTS
1.1. Method of Exercise. To exercise this Warrant in whole or
in part, the Holder shall deliver on any Business Day to the Company at the
Warrant Agency, (a) this Warrant, (b) a written notice of such Holder's election
to exercise this Warrant, which notice shall specify the number of shares of
Common Stock to be purchased (which shall be a minimum of 10 whole shares if for
less than all the shares then issuable hereunder), the denominations of the
share certificate or certificates desired and the name or names in which such
certificates are to be registered, and (c) payment of the Exercise Price with
respect to such shares. Such payment may be made, at the option of the Holder,
either (a) by cash, certified or bank cashier's check or wire transfer in an
amount equal to the product of (i) the Exercise Price times (ii) the number of
Warrant Shares as to which this Warrant is being exercised or (b) at any time on
or after the date of consummation of the initial public offering of the Common
Stock by receiving from the Company the number of Warrant Shares equal to (i)
the number of Warrant Shares as to which this Warrant is being exercised minus
(ii) the number of Warrant Shares having a value, based on (x) on the date of
consummation of the initial public offering of the Common Stock, the public
offering price thereof and (y) thereafter the Closing Price on the trading day
immediately prior to the date of such exercise, equal to the product of (x) the
Exercise Price times (y) the number of Warrant Shares as to which this Warrant
is being exercised.
The Company shall, as promptly as practicable and in any event
within seven days after receipt of such notice and payment, execute and deliver
or cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate
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number of shares of Common Stock specified in said notice together with cash in
lieu of any fractions of a share as provided in Section 1.3. The share
certificate or certificates so delivered shall be in such denominations as may
be specified in such notice, and shall be issued in the name of the Holder or
such other name or names as shall be designated in such notice. This Warrant
shall be deemed to have been exercised and such certificate or certificates
shall be deemed to have been issued, and such Holder or any other Person so
designated to be named therein shall be deemed for all purposes to have become a
holder of record of shares, as of the date the aforementioned notice and payment
is received by the Company. If this Warrant shall have been exercised only in
part, the Company shall, at the time of delivery of such certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights to
purchase the remaining shares of Common Stock called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant, or, at
the request of the Holder, appropriate notation may be made on this Warrant
which shall then be returned to the Holder. The Company shall pay all expenses,
taxes and other charges payable in connection with the preparation, issuance and
delivery of share certificates and new Warrants, except that, if share
certificates or new Warrants shall be registered in a name or names other than
the name of the Holder, funds sufficient to pay all transfer taxes payable as a
result of such transfer shall be paid by the Holder at the time of delivery of
the aforementioned notice of exercise or promptly upon receipt of a written
request of the Company for payment.
1.2. Shares to be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable and, if such class of Common Stock is then listed
on any national securities exchange (as defined in the Exchange Act) or quoted
on NASDAQ, shall be duly listed or quoted thereon, as the case may be.
1.3. No Fractional Shares Required to be Issued. The Company
shall not be required to issue fractions of shares of Common Stock upon exercise
of this Warrant. If any fraction of a share would, but for this Section, be
issuable upon final exercise of this Warrant, in lieu of such fractional share
the Company may, at its option, pay to the Holder, in cash, an amount equal to
the same fraction of the Fair Market Value of the Company per share of
outstanding Common Stock on the Business Day immediately prior to the date of
such exercise.
1.4. Share Legend. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such shares
are registered under the Securities Act, shall bear the following legend:
"This security has not been registered under the Securities
Act of 1933 and may not be sold or offered for sale unless
registered under said Act and any applicable state securities
laws or unless an exemption from such registration is
available."
In addition, each such certificate shall bear the legend set forth in Section 6
of the Stockholder Agreement.
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public offering pursuant to a registration statement under the
Securities Act) shall also bear such legend unless, in the opinion of counsel
selected by the holder of such certificate (who may be an employee of such
holder) and reasonably acceptable to the Company, the securities represented
thereby need no longer be subject to restrictions on resale under the Securities
Act.
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1.5. Reservation. The Company has duly reserved and will keep
available for issuance upon exercise of the Warrants the total number of Warrant
Shares deliverable from time to time upon exercise of all Warrants from time to
time outstanding and the total number of shares of Common Stock deliverable upon
conversion of such Warrant Shares to Common Stock.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE AND
REPLACEMENT OF WARRANTS
2.1. Warrant Agency. As long as any of the Warrants remain
outstanding, the Company shall perform the obligations of and be the warrant
agency with respect to the Warrants (the "Warrant Agency") at its address set
forth in the Credit Agreement or at such other address as the Company shall
specify by notice to all Warrantholders.
2.2. Ownership of Warrant. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any person
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until due presentment of this Warrant for registration of
transfer as provided in this Article II.
2.3. Registration of Warrants. The Company agrees to maintain
at the Warrant Agency books for the registration of transfers of the Warrants,
and any transfer of this Warrant and all rights hereunder pursuant to and in
accordance with Section 2.7 below shall be registered, in whole or in part, on
such books, upon surrender of this Warrant at the Warrant Agency, together with
a written assignment of this Warrant duly executed by the Holder or its duly
authorized agent or attorney, with (if the Holder is a natural person)
signatures guaranteed by a bank or trust company or a broker or dealer
registered with the NASD, and funds sufficient to pay any transfer taxes payable
upon such transfer. Upon surrender and, if required, such payment, the Company
shall execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees and in the denominations specified in the instrument of assignment
(which shall be whole numbers of shares only) and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be canceled.
2.4. Division or Combination of Warrants. This Warrant may be
divided or combined with other Warrants held by the Holder upon presentment
hereof and of any Warrant or Warrants with which this Warrant is to be combined
at the Warrant Agency, together with a written notice specifying the names and
denominations (which shall be whole numbers of shares only) in which the new
Warrant or Warrants are to be issued, signed by the Holder hereof or its
respective duly authorized agents or attorneys. Subject to compliance with
Sections 2.3 and 2.7 as to any transfer or assignment which may be involved in
the division or combination, the Company shall execute and deliver a new Warrant
or Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
2.5. Loss, Theft, Destruction of Warrant Certificates. Upon
receipt of evidence satisfactory to the Company of the ownership of and the
loss, theft, destruction or mutilation of any Warrant and, in the case of any
such loss, theft or destruction, upon receipt of indemnity or security
satisfactory to the Company (it being understood and agreed that if the holder
of such Warrant is the Purchaser, then a written agreement of indemnity given by
the Purchaser alone
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shall be satisfactory to the Company and no further security shall be required)
or, in the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Company will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing the
right to purchase the same aggregate number of shares of Common Stock.
2.6. Expenses of Delivery of Warrants. The Company shall pay
all expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of Warrants hereunder.
2.7. Restrictions on Transfer.
(a) General Restriction. The Warrants shall be transferable
only upon satisfaction of the conditions set forth in this Section 2.7 and any
applicable provisions of the Stockholder Agreement.
(b) Transfer Notice; Opinion. Prior to any transfer of any
Warrants, the transferor thereof shall deliver (i) if reasonably determined by
the Company to be necessary with respect to such transfer, an opinion addressed
to the Company of counsel nominated by the transferor and reasonably acceptable
to the Company (which may be in-house counsel for a Purchaser), that such
transfer may be effected without registration of such Warrants under the
Securities Act, and (ii) the written agreement of the proposed transferee to be
bound by all of the provisions of the Stockholder Agreement and the Registration
Rights Agreement.
ARTICLE III
CERTAIN RIGHTS
3.1. Rights and Obligations under the Stockholder Agreement
and the Registration Rights Agreement. This Warrant is entitled to the benefits
and subject to the terms of each of the Stockholder Agreement dated as of July
23, 1996, among the Company and the Stockholders listed on the signature pages
thereof and the Registration Rights Agreement dated as of July 23, 1996 and as
amended, among the Company and the Stockholders and/or Warrantholders listed on
the signature pages thereof (as amended from time to time, the "Stockholders
Agreement," and the "Registration Rights Agreement," respectively).
3.2. Board Meetings. The Company will hold at least four
regular meetings of the Board of Directors of the Company during each calendar
year at such times and places as shall be determined from time to time by the
Board of Directors. The Company shall give to the Holder notice of all meetings
and actions by written consent of the Board of Directors of the Company and each
committee thereof, at the same time and in the same manner as notice of any
meetings of such board or committees is required to be given to directors who do
not waive such notice (or, if such action requires no notice, then 10 days
written notice thereof describing the matters upon which action is to be taken).
The Holder shall have the right to send a representative selected by such Holder
to each such meeting, who shall be permitted to attend, at the expense of the
Company, such meetings and any adjournments thereof (other than any portion of
such meeting devoted to discussion of the Holder solely in its capacity as a
holder of the Warrants), subject to Section 8.08 of the Purchase Agreement.
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3.3 Financial Statements and Other Information. The Company
will, and will cause its Subsidiaries to, deliver to any Holder:
(a) as soon as practicable and in any event within 30 days
after the end of each fiscal quarter, a consolidated and
consolidating balance sheet of the Company as at the end of
such fiscal quarter and the related statements of operations
and cash flows for such fiscal quarter and for the portion of
the fiscal year ended at the end of such fiscal quarter,
setting forth in each case in comparative form the revenues
and the other figures for the corresponding periods of the
previous fiscal year, all in reasonable detail and certified
by the chief financial officer of the Company as fairly
presenting the financial condition and results of operations
of the Company and as having been prepared in accordance with
generally accepted accounting principles applied on a basis
consistent with the audited financial statements of the
Company, subject to changes resulting from audit and normal
year-end adjustments;
(b) as soon as available and in any event within 90 days after
the end of each fiscal year, a balance sheet of the Company as
of the end of such fiscal year and the related consolidated
statements of operations, stockholders' equity and cash flows
for such fiscal year, setting forth in each case in
comparative form the revenues and the other figures for the
previous fiscal year, certified by Ernst & Young LLP, or other
independent public accountants of nationally recognized
standing;
(c) promptly following the filing thereof with the Department
of Consumer and Industry Services of the State of Michigan, a
copy of each amendment to, or restatement of, the Articles of
Incorporation of the Company, and promptly following the
adoption thereof by the Company, a copy of each amendment to,
or restatement of, the By-laws of the Company;
(d) as promptly as practicable following each meeting of the
board of directors of the Company, a copy of the minutes of
such meeting, and promptly following the execution by all of
the directors on the board of directors of the Company, a copy
of each unanimous written consent of directors in lieu of a
meeting of the board of directors of the Company, in each
case, including all exhibits and attachments, if any, to such
minutes or unanimous written consents; and
(e) with reasonable promptness, such other information and
data with respect to the Company or any of its Subsidiaries as
from time to time may be reasonably requested by such
Warrantholders holding the Required Interest.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1. Adjustment Generally. The Exercise Price and the number
of shares of Common Stock (or other securities or property) issuable upon
exercise of this Warrant shall be subject to adjustment from time to time upon
the occurrence of certain events as provided in this Article IV; provided, that
the Exercise Price and the number of shares of Common Stock issuable
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upon exercise of this Warrant shall not be adjusted pursuant to this Article IV
with respect to the exercise of the Management Options.
4.2. Common Stock Reorganization. If the Company shall
subdivide its outstanding shares of Common Stock (or any class thereof) into a
greater number of shares or consolidate its outstanding shares of Common Stock
(or any class thereof) into a smaller number of shares (any such event being
called a "Common Stock Reorganization"), then (a) the Exercise Price shall be
adjusted, effective immediately after the effective date of such Common Stock
Reorganization, to a price determined by multiplying the Exercise Price in
effect immediately prior to such effective date by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on such
effective date before giving effect to such Common Stock Reorganization and the
denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such Common Stock Reorganization, and (b) the number of
shares of Common Stock subject to purchase upon exercise of this Warrant shall
be adjusted, effective at such time, to a number determined by multiplying the
number of shares of Common Stock subject to purchase immediately before such
Common Stock Reorganization by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding after giving effect to such Common
Stock Reorganization and the denominator of which shall be the number of shares
of Common Stock outstanding immediately before such Common Stock Reorganization.
4.3. Common Stock Distribution. (a) If the Company shall
issue, sell or otherwise distribute any shares of Common Stock, other than
pursuant to a Common Stock Reorganization (which is governed by Section 4.2
hereof) (any such event, including any event described in paragraphs (b) and (c)
below, being herein called a "Common Stock Distribution"), for a consideration
per share less than the Exercise Price then in effect or less than the Fair
Market Value of the Company per share of outstanding Common Stock on a Fully
Diluted Basis on the date of such Common Stock Distribution (before giving
effect to such Common Stock Distribution), then, effective upon such Common
Stock Distribution, the Exercise Price shall be reduced, if such consideration
per share shall be less then the Exercise Price then in effect but not less than
such Fair Market Value per share, to the lower of the prices (calculated to the
nearest one-thousandth of one cent) determined as provided in clauses (i) and
(ii) below or, if such consideration per share shall be less than such Fair
Market Value per share, to the lowest of the prices (calculated to the nearest
one-thousandth of one cent) determined as provided in clauses (i), (ii) and
(iii) below:
(i) if the Company shall receive any consideration for the
Common Stock issued, sold or distributed in such Common Stock
Distribution, the consideration per share of Common Stock
received by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the
number of shares of Common Stock outstanding immediately prior
to such Common Stock Distribution multiplied by the then
existing Exercise Price, plus (2) the consideration, if any,
received by the Company upon such Common Stock Distribution by
(B) the total number of shares of Common Stock outstanding
immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect immediately
prior to such Common Stock Distribution by a fraction, the
numerator of which shall be the sum of (A) the number of
shares of Common Stock outstanding immediately prior to such
Common Stock Distribution multiplied by such Fair Market Value
per share on the date of such Common Stock Distribution,
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plus (B) the consideration, if any, received by the Company
upon such Common Stock Distribution, and the denominator of
which shall be the product of (1) the total number of shares
of Common Stock outstanding immediately after such Common
Stock Distribution multiplied by (2) such Fair Market Value
per share on the date of such Common Stock Distribution.
If any Common Stock Distribution shall require an adjustment
to the Exercise Price pursuant to the foregoing provisions of this paragraph
(a), including by operation of paragraph (b) or (c) below, then, effective at
the time such adjustment is made, the number of shares of Common Stock subject
to purchase upon exercise of this Warrant shall be increased to a number
determined by multiplying the number of shares of Common Stock subject to
purchase immediately before such Common Stock Distribution by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately after giving effect to such Common Stock Distribution and the
denominator of which shall be the sum of the number of shares of Common Stock
outstanding immediately before giving effect to such Common Stock Distribution
(both calculated on a Fully Diluted Basis) plus the number of shares of Common
Stock which the aggregate consideration received by the Company with respect to
such Common Stock Distribution would purchase at the Fair Market Value of the
Company per share of outstanding Common Stock on a Fully Diluted Basis on the
date of such Common Stock Distribution (before giving effect to such Common
Stock Distribution). In computing adjustments under this paragraph, fractional
interests in Common Stock shall be taken into account to the nearest
one-thousandth of a share.
The provisions of this paragraph (a), including by operation
of paragraph (b) or (c) below, shall not operate to increase the Exercise Price
or reduce the number of shares of Common Stock subject to purchase upon exercise
of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise
grant in any manner (including by assumption) any rights to subscribe for or to
purchase, or any warrants or options for the purchase of Common Stock or any
stock or securities convertible into or exchangeable for Common Stock (such
rights, warrants or options being herein called "Options" and such convertible
or exchangeable stock or securities being herein called "Convertible
Securities"), whether or not such Options or the rights to convert or exchange
any such Convertible Securities in respect of such Options are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such Convertible
Securities in respect of such Options (determined by dividing (i) the aggregate
amount, if any, received or receivable by the Company as consideration for the
granting of such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all such Options,
plus, in the case of Options to acquire Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the issuance
or sale of such Convertible Securities and upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options) shall be less
than the Exercise Price then in effect or less than the Fair Market Value of the
Company per share of outstanding Common Stock on a Fully Diluted Basis on the
date of granting such Options (before giving effect to such grant), then, for
purposes of paragraph (a) above, the total maximum number of shares of Common
Stock issuable upon the exercise of such Options or upon conversion or exchange
of the total maximum amount of such Convertible Securities issuable upon the
exercise of such Options shall be deemed to have been issued as of the date of
granting of such Options and thereafter shall be deemed to be outstanding and
the Company shall be deemed to have received as consideration of such price per
share, determined as provided above, therefor. Except as otherwise provided in
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paragraph (d) below, no additional adjustment of the Exercise Price shall be
made upon the actual exercise of such Options or upon conversion or exchange of
such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute
(including by assumption) any Convertible Securities, whether or not the rights
to exchange or convert thereunder are immediately exercisable, and the price per
share for which Common Stock is issuable upon such conversion or exchange
(determined by dividing (i) the aggregate amount received or receivable by the
Company as consideration for the issuance, sale or distribution of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities) shall be
less than the Exercise Price then in effect or less than the Fair Market Value
of the Company per share of outstanding Common Stock on a Fully Diluted Basis on
the date of such issuance, sale or distribution (before giving effect to such
issuance, sale or distribution), then, for purposes of paragraph (a) above, the
total maximum number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall be deemed to have been issued
as of the date of the issuance, sale or distribution of such Convertible
Securities and thereafter shall be deemed to be outstanding and the Company
shall be deemed to have received as consideration such price per share,
determined as provided above, therefor. Except as otherwise provided in
paragraph (d) below, no additional adjustment of the Exercise Price shall be
made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option
referred to in paragraph (b) above or the additional consideration, if any,
payable upon the conversion or exchange of any Convertible Securities referred
to in paragraph (b) or (c) above or the rate at which any Convertible Securities
referred to in paragraph (b) or (c) above are convertible into or exchangeable
for Common Stock shall change at any time (other than under or by reason of
provisions designed to protect against dilution upon an event which results in a
related adjustment pursuant to this Article IV), or (ii) any of such Options or
Convertible Securities shall have terminated, lapsed or expired, the Exercise
Price then in effect shall forthwith be readjusted to the Exercise Price which
would then be in effect, and the number of shares of Common Stock then subject
to purchase upon exercise of the Warrant shall be readjusted to the number of
shares of Common Stock which would then be subject to purchase upon exercise of
this Warrant (in each case effective only with respect to any exercise of this
Warrant after such readjustment), had the adjustment made upon the issuance,
sale, distribution or grant of such Options or Convertible Securities been made
based upon such changed purchase price, additional consideration or conversion
rate, as the case may be (in the case of any event referred to in clause (i) of
this paragraph (d)) or had such adjustment not been made (in the case of any
event referred to in clause (ii) of this paragraph (d)).
(e) If the Company shall pay a dividend or make any other
distribution upon any capital stock of the Company payable in Common Stock,
Options or Convertible Securities, then, for purposes of paragraph (a) above,
such Common Stock, Options or Convertible Securities shall be deemed to have
been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for cash, the consideration
received therefor shall be deemed to be the gross amount received by the Company
therefor. If any shares of Common Stock, Options or Convertible Securities shall
be issued sold or distributed for a consideration other than cash, the amount of
the consideration other than cash received by the Company shall be deemed to be
the Fair Market Value of such consideration, after deduction of any expenses
incurred in connection
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therewith. If any shares of Common Stock, Options or Convertible Securities
shall be issued in connection with any merger in which the Company is the
surviving corporation, the amount of consideration therefor shall be deemed to
be the Fair Market Value of such portion of the assets and business of the
non-surviving corporation as shall be attributable to such Common Stock, Options
or Convertible Securities, as the case may be. If any Options shall be issued in
connection with the issuance and sale of other securities of the Company,
together comprising one integral transaction in which no specific consideration
is allocated to such Options by the parties thereto, such Options shall be
deemed to have been issued without consideration.
4.4. Special Dividends. If the Company shall issue or
distribute to any holder or holders of shares of Common Stock evidences of
indebtedness, any other securities of the Company or any cash, property or other
assets (excluding a Common Stock Reorganization or a Common Stock Distribution),
whether or not accompanied by a purchase, redemption or other acquisition of
shares of Common Stock (any such nonexcluded event being herein called a
"Special Dividend"), (a) the Exercise Price shall be decreased, effective
immediately after the effective date of such Special Dividend, to a price
determined by multiplying the Exercise Price then in effect by a fraction, the
numerator of which shall be the Fair Market Value of the Company per share of
outstanding Common Stock as of such effective date less any cash and the then
Fair Market Value of any evidences of indebtedness, securities or property or
other assets issued or distributed in such Special Dividend with respect to one
share of Common Stock, and the denominator of which shall be such Fair Market
Value per share and (b) the number of shares of Common Stock subject to purchase
upon exercise of this Warrant shall be increased to a number determined by
multiplying the number of shares of Common Stock subject to purchase immediately
before such Special Dividend by a fraction, the numerator of which shall be the
Exercise Price in effect immediately before such Special Dividend and the
denominator of which shall be the Exercise Price in effect immediately after
such Special Dividend. A reclassification of 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) into shares of Common Stock and shares of any other class of stock shall
be deemed a distribution by the Company to the holders of such Common Stock of
such shares of such other class of stock and, if the outstanding shares of
Common Stock shall be changed into a larger or smaller number of shares of
Common Stock as part of such reclassification, a Common Stock Reorganization.
4.5. Capital Reorganizations. If there shall be any
consolidation or merger to which the Company is a party, other than a
consolidation or a merger of which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization) in, outstanding shares of Common Stock, or any sale or
conveyance of the property of the Company as an entirety or substantially as an
entirety, or any recapitalization of the Company (any such event being called a
"Capital Reorganization"), then, effective upon the effective date of such
Capital Reorganization, the Holder shall no longer have the right to purchase
Common Stock, but shall have instead the right to purchase, upon exercise of
this Warrant, the kind and amount of shares of stock and other securities and
property (including cash) which the Holder would have owned or have been
entitled to receive pursuant to such Capital Reorganization if this Warrant had
been exercised immediately prior to the effective date of such Capital
Reorganization. As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to each Warrantholder and to the Warrant Agency an agreement
as to the Warrantholders' rights in accordance with this Section 4.5, providing,
to the extent of any right to purchase equity securities hereunder, for
subsequent adjustments as nearly equivalent as may be practicable to the
adjustments provided for in this Article IV. The provisions of this Section 4.5
shall similarly apply to successive Capital Reorganizations.
11
4.6. Adjustment Rules. Any adjustments pursuant to this
Article IV shall be made successively whenever an event referred to herein shall
occur, except that, notwithstanding any other provision of this Article IV, no
adjustment shall be made to the number of shares of Common Stock to be delivered
to each Holder (or to the Exercise Price) if such adjustment represents less
than one percent (1%) of the number of shares previously required to be so
delivered, but any lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall amount to one percent (1%) or more of
the number of shares to be so delivered. No adjustment shall be made pursuant to
this Article IV in respect of the issuance from time to time of shares of Common
Stock upon the exercise of any of the Warrants. If the Company shall take a
record of the holders of its Common Stock for any purpose referred to in this
Article IV, then (i) such record date shall be deemed to be the date of the
issuance, sale, distribution or grant in question and (ii) if the Company shall
legally abandon such action prior to effecting such action, no adjustment shall
be made pursuant to this Article IV in respect of such action.
4.7. Proceedings Prior to Any Action Requiring Adjustment. As
a condition precedent to the taking of any action which would require an
adjustment pursuant to this Article IV, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that the Company may thereafter validly and legally issue as fully paid
and nonassessable all shares of Common Stock which the holders of Warrants are
entitled to receive upon exercise thereof.
4.8. Notice of Adjustment. Not less than 10 nor more than 30
days prior to the record date or effective date, as the case may be, of any
action which requires or might require an adjustment or readjustment pursuant to
this Article IV, the Company shall give notice to each Warrantholder of such
event, describing such event in reasonable detail and specifying the record date
or effective date, as the case may be, and, if determinable, the required
adjustment and the computation thereof. If the required adjustment is not
determinable at the time of such notice, the Company shall give notice to each
Warrantholder of such adjustment and computation promptly after such adjustment
becomes determinable.
ARTICLE V
PURCHASE OF WARRANTS; INCREASE OF WARRANT SHARES
5.1. Purchase of Warrants by the Company. The Company shall
have the obligation to purchase or otherwise acquire Warrants at such times, in
such manner and for such consideration as set forth below.
5.2. Put Rights. The Holder shall:
(a) at any time and from time to time on or after the date
on which a Triggering Event shall occur, have the right (the
"Put Right") to sell back to the Company its Warrant Shares at
the greater of (i) the Fair Market Value of all such Warrant
Shares or (ii) the cash amount determined by application of
the following formula:
[(EBITDA times 5) - Term Debt - Minimum Revolving Debt -
Preferred Stock + Cash] times Applicable Percentage
12
(b) Within thirty (30) days of the Company's receipt of
notification from the Holder that it wishes to exercise its
Put Right (the "Put Notification"), the Company shall
repurchase such number of Warrant Shares then held by the
Holder as shall be specified in the Put Notification (the
"Repurchase Date"). The repurchase price for each Share (the
"Repurchase Price") shall be paid in cash on the Repurchase
Date or, at the option of the Holder, in the form of an
unsecured promissory note in form reasonably satisfactory to
the Holder maturing in one year and bearing interest at the
rate of twelve percent (12%) per annum.
(c) Surrender the certificate(s) representing Warrant Shares
being repurchased to the Company and thereupon the Repurchase
Price for such Warrant Shares shall be paid to the order of
the person whose name appears on such certificate(s) and each
surrendered certificate shall be canceled and retired.
5.3. Termination of Put Rights; Limitation. Notwithstanding
anything herein to the contrary, (a) the Put Rights shall terminate upon the
closing of a Qualified IPO, and (b) the Holder shall have the right to exercise
no more than three (3) Put Rights.
5.4. Cancellation of Warrants. All Warrants purchased,
redeemed or otherwise acquired by the Company shall thereupon be canceled and
retired. The Warrant Agency shall cancel any Warrant surrendered for exercise or
registration of transfer or exchange and deliver such canceled Warrants to the
Company.
5.5 Increase of Warrant Shares. If the Company has not
redeemed or repurchased all of the Holder Warrant Shares on or prior to July 18,
2002, then on July 23, 2002 and on each October 23, January 23, April 23, and
July 23 thereafter (each a "Warrant Share Increase Date"), on which any of the
Holder Warrant Shares have not been redeemed or repurchased by the Company, then
the number of shares of Common Stock that are subject to this Warrant shall
automatically, and without any act of the Company or its Board of Directors,
increase by an amount equal to the product of:
(a) the number of shares of outstanding Common Stock of the Company on
a Fully Diluted Basis as of July 23, 2002; and
(b) .32% (provided that, in the event that this Warrant is transferred
or assigned, the percentage set forth in this subsection (b) shall be
adjusted on a pro rata basis among the Warrants issued as a result of
such transfer or assignment so that the aggregate sum of such
percentages set forth in all of the Warrants resulting from the
transfer or assignment of this Warrant shall equal .32%) multiplied by
a fraction, the numerator of which shall be the number of Holder
Warrant Shares that have not been redeemed (excluding those shares
attributable to the Additional Exercise Amount) and the denominator of
which shall be the initial number of Holder Warrant Shares (i.e.,
18,382.72, assuming no adjustments pursuant to Article IV hereof).
13
ARTICLE VI
DEFINITIONS
The following terms, as used in this Warrant, have the
following meanings:
"Additional Exercise Amount" has the meaning set forth in the
second paragraph of this Warrant.
"Applicable Percentage" means the percentage equity ownership
of the Holder in the Company represented by the Warrant Shares being put to the
Company, assuming exercise of the Warrants into Common Shares.
"Business Day" means any day excluding Saturday, Sunday and
any day on which banking institutions located in New York are authorized by law
or other governmental action to be closed, unless there shall have been an
offering of Common Stock registered under the Securities Act, in which case
"Business Day" means (a) if Common Stock is listed or admitted to trading on a
national securities exchange, a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
business or (b) if Common Stock is not so listed or admitted to trading, a day
on which the New York Stock Exchange is open for business.
"Capital Reorganization" has the meaning set forth in Section
4.5.
"Cash" shall mean cash or cash equivalents then on the balance
sheet of the Company.
"Common Stock" has the meaning set forth in the first
paragraph of this Warrant, subject to change pursuant to Article IV.
"Closing Price" on any day means (a) if Common Stock is listed
or admitted for trading on a national securities exchange, the reported last
sales price regular way or, if no such reported sale occurs on such day, the
average of the closing bid and asked prices regular way on such day, in each
case on the principal national securities exchange on which Common Stock is
listed or admitted to trading, or (b) if Common Stock is not listed or admitted
to trading on any national securities exchange, the average of the closing bid
and asked prices in the over-the-counter market on such day as reported by
NASDAQ or any comparable system or, if not so reported, as reported by any New
York Stock Exchange member firm selected by the Company for such purpose.
"Common Stock Distribution" has the meaning set forth in
Section 4.3(a).
"Common Stock Reorganization" has the meaning set forth in
Section 4.2.
"Company" means Microwave Components Enterprises, Inc., a
Michigan corporation, together with its successors.
"Convertible Securities" has the meaning set forth in Section
4.3(b).
"Determination Notice" has the meaning set forth in Section
5.2.
"EBITDA" shall mean annual consolidated earnings of the
Company and all of its Subsidiaries before income tax, depreciation and
amortization, and before extraordinary, non-recurring and non-operating income
and expense, computed in accordance with GAAP at the end of the Company's most
recent four full fiscal quarters immediately preceding the Repurchase Date. For
purposes of determining EBITDA, the Company agrees, at the request of the
Holders,
14
to have the Company's financial statements audited at the expense of the Company
by an independent public accounting firm acceptable to the Holders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor Federal statute, and the rules and regulations of the
Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercise Price" means $.01 per share of the Common Stock,
subject to adjustment pursuant to Article IV.
"Fair Market Value" as at any date of determination means the
fair market value of the business or property or services in question as of such
date, as determined in good faith by the Board of Directors of the Company. If
the Holders disagree with such determination, the Holders shall select a pool of
three independent investment banking firms which are nationally or regionally
recognized and which are not affiliated with the Holder, from which the Company
shall select one such firm to appraise such fair market value. The determination
of such investment banking firm shall be binding. All expenses of such
investment banking firm shall be borne by the Company. The Fair Market Value of
the Company as at any date of determination shall be the greatest of (i) the
Fair Market Value at such date of the Company and its Subsidiaries as a going
concern, (ii) the liquidation value at such date of the Company and its
Subsidiaries and (iii) the consolidated net worth of the Company and its
Subsidiaries as shown on its latest available consolidated balance sheet of the
Company. Notwithstanding the foregoing, if, at any date of determination of the
Fair Market Value of the Company, the Common Stock shall then be publicly
traded, the Fair Market Value of the Company on such date shall be the greater
of (a) the amount determined in accordance with the immediately preceding
sentence and (b) the Market Price on such date multiplied by the number of
shares of Common Stock then outstanding. Determination of the Fair Market Value
of the Company per share of Common Stock, shall be on a Fully Diluted Basis made
without giving effect to any discount for (i) minority interest, or (ii) any
lack of liquidity of the Common Stock due to the fact that there may be no
public market for the Common Stock; provided, however, that in the event the
Common Stock shall not then be publicly traded, the Fair Market Value shall
reflect the appropriate multiple for comparable privately held companies.
"Fully Diluted Basis" means, with respect to any determination
or calculation, that such determination or calculation is performed on a fully
diluted basis (assuming the issuance of all shares issuable under any then
outstanding options, warrants or convertible securities of any kind) determined
in accordance with generally accepted accounting principles as in effect from
time to time.
"GAAP" means generally accepted accounting principles, as in
effect on the date hereof.
"Holder" has the meaning set forth in the first paragraph of
this Warrant.
"Holder Warrant Shares" means the Warrant Shares issued or to
be issued pursuant to this Warrant.
"Management Options" means the options granted to certain key
employees of the Company or any of its Subsidiaries for the purchase of not more
than five percent (5%) of the Common Stock on a Fully Diluted Basis.
15
"Mandatory Redemption Right" has the meaning set forth in
Section 5.2.
"Market Price" as at any date of determination means the
average of the daily Closing Prices of a share of Common Stock for the shorter
of (i) the 20 consecutive Business Days ending on the most recent Business Day
prior to the Time of Determination and (ii) the period commencing on the date
next succeeding the first public announcement of the issuance, sale,
distribution, grant or exercise in question through such most recent Business
Day prior to the Time of Determination. "Time of Determination" means the time
and date of the earliest of (x) the determination of the stockholders entitled
to receive such issuance, sale, distribution or grant, (y) the determination of
the Holders or the Company to exercise their respective rights set forth in
Sections 5.2 or 5.3 hereof and (z) the commencement of "ex-dividend" trading in
respect thereof.
"Minimum Revolving Debt" means, with respect to any revolving
debt of the Company and its Subsidiaries on a consolidated basis for purposes of
GAAP, an amount equal to the sum of the lowest principal amount of outstanding
revolving debt of each of the Company and its Subsidiaries during the
twelve-month period immediately preceding the date in question.
"NASD" means The National Association of Securities Dealers,
Inc.
"NASDAQ" means the Nasdaq Stock Market.
"Options" has the meaning set forth in Section 4.3(b).
"Original Warrant" has the meaning set forth in the third
paragraph of this Warrant.
"Person" means any natural person, corporation, limited
partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank, trust company, land trust, business trust or
other organization, whether or not a legal entity, and any government agency or
political subdivision thereof.
"Preferred Stock" means, with respect to the issued and
outstanding Series A Preferred Stock of the Company, the book value thereof as
set forth on the most recent audited financial statements of the Company and its
Subsidiaries delivered to the Holder in accordance with Section 8.01(b) of the
Purchase Agreement.
"Purchase Agreement" has the meaning set forth in the second
paragraph of this Warrant.
"Put Notification" has the meaning set forth in Section 5.2
hereof.
"Put Right" has the meaning set forth in Section 5.2 hereof.
"Qualified IPO" means any sale of shares of Common Stock by
and for the account of the Company pursuant to an underwritten initial public
offering registered under the Securities Act resulting on the date of closing in
net proceeds to the Company and selling security holders of an amount not less
than $20,000,000, which offering is managed by an independent investment banking
firm that (i) is nationally or regionally recognized, and (ii) has a net worth,
determined in accordance with GAAP, of at least $25,000,000.
"Registration Rights Agreement" has the meaning set forth in
Section 3.1 hereto.
16
"Repurchase Date" has the meaning set forth in Section 5.2
hereof.
"Repurchase Price" has the meaning set forth in Section 5.2
hereof.
"Securities Act" means the Securities Act of 1933, as amended,
and rules and regulations of the Securities and Exchange Commission thereunder.
"Special Dividend" has the meaning set forth in Section 4.4.
"Stockholder Agreement" has the meaning set forth in Section
3.1.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, association or other business entity of which more than fifty
percent (50%) of the total voting power of shares of stock or other interests
therein entitled to vote in the election of members of the board of directors,
partnership committee, board of managers or trustees or other managerial body
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof. Unless otherwise specified, "Subsidiary" means a Subsidiary of the
Company and "Subsidiaries" means all Subsidiaries of the Company.
"Term Debt" means the aggregate principal amount of any senior
and subordinated term debt of the Company and its Subsidiaries on a consolidated
basis for purposes of GAAP that is outstanding at the time in question.
"Triggering Event" means (i) an underwritten public offering
pursuant to an effective registration statement under the Securities Act
covering the offer and sale of shares of Common Stock, (ii) a merger or
consolidation into or with any other entity which results in the exchange of
outstanding shares of the Company for securities or other consideration issued
or paid or caused to be issued or paid by any such entity or affiliate thereof,
(iii) a sale, transfer or other disposition of all or substantially all of the
assets of the Company, (iv) a Qualified IPO or (v) the occurrence of an Event of
Default (as defined in the Purchase Agreement).
"Warrant Agency" has the meaning set forth in Section 2.1.
"Warrant Shares" means the shares of Common Stock that are
issued or to be issued upon the exercise of the Warrants, consisting of the
shares of Common Stock that constitute the Original Exercise Amount and the
Additional Exercise Amount.
"Warrantholder" means a holder of a Warrant.
"Warrants" has the meaning set forth in the second paragraph
of this Warrant.
All references herein to "days" shall mean calendar days
unless otherwise specified.
17
ARTICLE VII
MISCELLANEOUS
7.1. Notices. Notices and other communications provided for
herein shall be in writing and may be given by mail, overnight courier,
confirmed telex or facsimile transmission and shall, unless otherwise expressly
required, be deemed given when received or, if mailed, four Business Days after
being deposited in the United States mail (via first class) with postage
prepaid, certified mail, return receipt requested and properly addressed. In the
case of the Holder, such notices and communications shall be addressed to its
address as shown on the books maintained by the Warrant Agency, unless the
Holder shall notify the Warrant Agency that notices and communications should be
sent to a different address (or telex or facsimile number), in which case such
notices and communications shall be sent to the address (or telex or facsimile
number) specified by the Holder.
7.2. Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and the holders of Warrants entitling
such holders to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding (exclusive of Warrants then
owned by the Company or any Subsidiary (as defined in the Purchase Agreement) or
Affiliate (as defined in the Purchase Agreement) thereof); provided, however,
that no such amendment, modification or waiver shall, without the written
consent of the holders of all Warrants at the time outstanding, (a) change the
number of shares of Common Stock subject to purchase upon exercise of this
Warrant, the Exercise Price or provisions for payment thereof or (b) amend,
modify or waive the provisions of this Section 7.2 or Article III, IV or V or
Section 1.5. The provisions of the Purchase Agreement may be amended, modified
or waived only in accordance with the respective provisions thereof.
Any such amendment, modification or waiver effected pursuant
to and in accordance with the provisions of this Section or the applicable
provisions of the Purchase Agreement shall be binding upon the holders of all
Warrants and Warrant Shares, upon each future holder thereof and upon the
Company. In the event of any such amendment, modification or waiver the Company
shall give prompt notice thereof to all holders of Warrants and Warrant Shares
and, if appropriate, notation thereof shall be made on all Warrants thereafter
surrendered for registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle
the Company to any other or future notice or demand in similar or other
circumstances.
7.3. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF MICHIGAN (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW).
7.4. Transfer; Covenants to Bind Successor and Assigns. All
covenants, stipulations, promises and agreements in this Warrant contained by or
on behalf of the Company or the Holder shall bind its successors and assigns,
whether so expressed or not. This Warrant shall be transferable and assignable
by the Holder hereof in whole or from time to time in part to any other Person
and the provisions of this Warrant shall be binding upon and inure to the
benefit of the Holder hereof and its successors and assigns.
18
7.5. Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
7.6. Section Headings. The section headings used herein are
for convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
7.7. Tax Basis. The Company and the Holder agree pursuant to
Proposed Treasury Regulation Section 1.1273-2 that, for Federal income tax
purposes, the aggregate issue price of the Notes (as defined in the Purchase
Agreement) and the aggregate purchase price for the Warrants are those set forth
in Section 2.04 of the Purchase Agreement. Neither the Company nor the Holder
hereof shall voluntarily take any action inconsistent with the agreement set
forth in this Section 7.7.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed in its corporate name by one of its officers thereunto duly authorized,
and its corporate seal to be hereunto affixed, attested by its Secretary or an
Assistant Secretary, all as of the day and year first above written.
MICROWAVE COMPONENTS
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
Attest:
/s/ J. Xxxxxxx Xxxxxxx
-----------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Assistant Secretary
19
FIRST AMENDMENT TO AMENDED AND RESTATED WARRANT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED WARRANT, dated as of
October 13, 2000, is entered into by MCE COMPANIES, INC., a Michigan
corporation and formerly known as MICROWAVE COMPONENTS ENTERPRISES, INC. (the
"Company"), in favor of NATIONAL CITY CAPITAL CORPORATION (the "Holder").
WITNESSETH THAT:
WHEREAS, the Company issued to the Holder an Amended and Restated
Warrant, dated October 17, 1997, to purchase 18,382.72 shares of common stock,
without par value (the "Common Stock"), of the Company (the "Warrant"); and
WHEREAS, the Company and the Holder desire to amend the Warrant as set
forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Effect of Amendment; Definitions.
Effective upon the closing of the transactions contemplated by that
certain Equity Underwriting Agreement to be entered into by the Company, certain
warrantholders and the several underwriters named therein, the Warrant shall be
and hereby is amended as provided in Section 2 hereof. Except as expressly
amended in Section 2 hereof, the Warrant shall continue in full force and effect
in accordance with its respective provisions on the date hereof. As used in the
Warrant, the terms "this Warrant", "herein", "hereinafter", "hereto", "hereof",
and words of similar import shall, unless the context otherwise requires, mean
the Warrant as amended and modified by this Amendment.
2. Amendments.
(A) As a result of the consummation of a 99-for-1 stock dividend on the
outstanding Common Stock, the first page of the Warrant shall be amended by
deleting the number "18,382.72" and substituting in lieu thereof "1,838,272".
(B) The Warrant shall be amended by deleting Sections 5.1, 5.2, 5.3,
5.4 and 5.5.
3. Miscellaneous.
(A) This Amendment shall be construed in accordance with and governed
by the laws of the State of Michigan, without reference to principles of
conflict of laws.
(B) The acceptance, acknowledgment and agreement by the Holder of this
Amendment shall not constitute, or be deemed to be or construed as, a waiver of
any right, power or remedy of the Holder, or a waiver of any provision of the
Warrant.
20
(C) This Amendment may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall
constitute but one instrument. The Company agrees to pay on demand all costs and
expenses of the Holder, including reasonable attorneys' fees and expenses, in
connection with the preparation, execution and delivery of this Amendment.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed in its corporate name by one of its officers thereunto duly authorized,
and its corporate seal to be hereunto affixed, attested by its Secretary or an
Assistant Secretary, all as of the day and year first above written.
MCE COMPANIES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
Attest:
/s/ Xxx X. Xxxxxxx
-----------------------
Name: Xxx X. Xxxxxxx
Title: CFO
The foregoing Amendment to Amended and Restated Warrant is hereby
acknowledged, accepted and agreed to by the undersigned as of the 13th day of
October, 2000.
NATIONAL CITY CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Managing Director
Page 2
