Exhibit 4.10
WD-4
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), AND NEITHER THIS WARRANT NOR
SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF
AN EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. New York City time, on January 19, 2000.
Subject to early termination as provided in Sections 8(d) and 10
herein.
SERIES D REDEEMABLE WARRANT TO PURCHASE COMMON STOCK
OF
UNSI CORPORATION
This is to certify that, FOR VALUE RECEIVED, M&A Investments,
Inc. or assigns ("Holder") , is entitled to purchase, subject to
the provisions of this Warrant, from UNSI Corporation, a Delaware
corporation (the "Company"), at an exercise price per share of
ten cents ($.10), 770,000 shares (subject to adjustment as set
forth in the next sentence and as otherwise set forth herein) of
common stock, par value $.01 per share, of the Company (the
"Common Stock") at any time during the period (the "Exercise
Period") commencing after January 4, 1997 and prior to 5:00 p.m.
New York City time, on January 19, 2000; provided, however, that
if such date is a day on which banking institutions in the State
of New York are authorized by law to close, then on the next
succeeding day which shall not be such a day. In the event that
one or more of the Company's Series B Warrants and/or 7% PIK
Debentures due 1999 (the "PIK Debentures") are not retired,
redeemed, cancelled or otherwise terminated prior to the exercise
of this Warrant, the number of shares issuable upon exercise of
this Warrant shall be adjusted so that this Warrant shall be
exercisable to acquire 10.12% of the UNSI Common Stock
outstanding as of the date hereof on a fully diluted basis. The
term "fully diluted basis" means after giving effect to the
exercise or conversion of all UNSI securities outstanding as of
the date hereof (other than the Company's Series B Warrants
and/or PIK Debentures that are retired, redeemed, cancelled or
otherwise terminated prior to the date of exercise of this
Warrant and the Series D Redeemable Warrant (denominated WD-5))
convertible or exercisable into UNSI Common Stock.
Notwithstanding anything to the contrary herein, this Warrant may
be exercised after December 18, 1995, in the event that
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the Company shall have received prior to the date of
exercise an opinion of its counsel to the effect that such
exercise will not adversely effect the Company's ability to
use its net operating losses. The number of shares of Common
Stock to be received upon the exercise of this Warrant and the
price to be paid for a share of Common Stock may be adjusted
from time to time as hereinafter set forth. The shares of
Common Stock deliverable upon such exercise, and as
adjusted from time to time, are hereinafter sometimes
referred to as "Warrant Shares," and the exercise price for
the purchase of a share of Common Stock pursuant to this
Warrant in effect at any time and as adjusted from time to
time is hereby referred to as the "Exercise Price".
1. EXERCISE OF WARRANT. This Warrant may be
exercised in whole at any time or in part from time to time
during the Exercise Period by presentation and surrender hereof
to the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form annexed
hereto as Exhibit A duly executed and accompanied by payment of
the Exercise Price for the number of shares specified in such
form. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the
Holder hereof to purchase the balance of the shares purchasable
hereunder. Upon receipt by the Company of this Warrant at its
office, or by the stock transfer agent of the Company at its
office, in proper form for exercise, the Holder shall be deemed
to be the holder of record of the shares of Common Stock issuable
upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be
actually delivered to the Holder.
2. RESERVATION OF SHARES. The Company hereby agrees
that at all times there shall be reserved for issuance and/or
delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery
upon exercise of this Warrant.
3. FRACTIONAL SHARES. No fractional shares or script
representing fractional shares shall be issued upon the exercise
of this Warrant.
4. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT.
This Warrant is exchangeable, without expense, at the option of
the Holder, upon presentation and surrender hereof to the Company
or at the office of its stock transfer agent, if any, for other
warrants of different denominations entitling the holder thereof
to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Subject to the provisions of
Section 9 of this Warrant, upon surrender of this Warrant to the
Company or at the office of its stock transfer agent, if any,
with the Assignment Form annexed hereto as Exhibit A duly
executed and funds sufficient
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to pay any transfer tax, the Company shall, without
charge, execute and deliver a new Warrant in the name of
the assignee named in such instrument of assignment and
this Warrant shall promptly be cancelled. This Warrant
may be divided or combined with other Warrants which carry
the same rights upon presentation hereof at the office of
the Company or at the office of its stock transfer agent, if
any, together with a written notice specifying the
names and denominations in which new Warrants are to be
issued and signed by the Holder hereof. The term "Warrant"
as used herein includes any Warrants into which this Warrant
may be divided or exchanged. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction
or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and
deliver a new Warrant of like tenor and date.
5. RIGHTS OF THE HOLDER. The Holder shall not, by
virtue of this Warrant, be entitled to any rights of a
stockholder in the Company, either at law or equity, and the
rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Company except to the
extent set forth herein.
6. ADJUSTMENT OF EXERCISE PRICE. In case the Company
shall, (a) pay a dividend or make a distribution on its shares of
Common Stock in shares of Common Stock (b) subdivide or
reclassify its outstanding Common Stock into a greater number of
shares, or (c) combine or reclassify its outstanding Common Stock
into a smaller number of shares, the Exercise Price in effect at
the time of the record date for such dividend or distribution or
of the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the
Holder of this Warrant exercised after such date shall be
entitled to receive the aggregate number and kind of shares
which, if this Warrant had been exercised immediately prior to
such time, he would have owned upon such exercise and been
entitled to receive upon such dividend, subdivision, combination
or reclassification. Such adjustment shall be made successively
whenever any event listed in this Section 6 shall occur. All
calculations under this Section 6 shall be made to the nearest
cent or to the nearest share, as the case may be.
7. RECLASSIFICATION, REORGANIZATION OR MERGER. If
any capital reorganization or reclassification of the capital
stock of the Company or any consolidation or merger of the
Company with another corporation, or the sale of all or
substantially all of its assets to another corporation shall be
effected in such a way (including, without limitation, by way of
consolidation or merger) that holders of Common Stock shall be
entitled to receive stock, securities or assets with respect to
or in exchange for Common Stock, then, as a condition of such
reorganization,
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reclassification, consolidation, merger or sale, adequate
provision shall be made whereby the Holder of this
Warrant shall thereafter have the right to receive, upon
the basis and upon the terms and conditions specified herein
and in lieu of the shares of Common Stock of the Company then
receivable upon the exercise of this Warrant, such
shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number
of shares of such stock then receivable had such
reorganization, reclassification, consolidation, merger or
sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and
interests of such holder to the end that the provisions
hereof shall thereafter be applicable, as nearly
practicable, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise of this
Warrant. In the event of a merger or consolidation of the
Company as a result of which a greater or lesser number of
shares of common stock of the surviving corporation is
issuable to holders of Common Stock of the Company outstanding
immediately prior to such merger or consolidation, the
Exercise Price in effect immediately prior to such merger or
consolidation shall be adjusted in the same manner as
though there were a subdivision or combination of the
outstanding shares of Common Stock of the Company.
8. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(a) For the four year period commencing after
January 19, 1996 (subject to Section 8(f)), the Company shall
advise the Holder of Warrants or the Warrant Shares or any then
holder of the Warrants or Warrant Shares (such persons being
collectively referred to herein as "holders") by written notice
at least thirty (30) days prior to the filing of any registration
statement under the Act (other than a registration statement on
Form X-0, Xxxx X-0 or subsequent similar forms) covering
securities of the Company and will upon the request of any such
holder, include in any such registration statement such
information as may be required to permit a public offering of the
Warrant Shares; provided, however, that if the registration
statement relates to a public offering by the Company of its
securities and the managing underwriters advise the holder that
the inclusion in the offering of securities being sold by the
holder would adversely affect the ability of the Company to
complete the public offering (and other selling stockholders, if
any, are similarly advised), then the holder will agree to reduce
the number of Warrant Shares to be registered to a number of
shares which shall be not less than ten percent (10%) of the
number of shares being offered by the Company and the holder will
further agree not to make any sales of the securities so included
for a period of one hundred eighty (180) days from the effective
date of such registration statement. The Company shall keep such
registration statement current for a period of up to nine (9)
months from the conclusion of such one hundred eighty (180) day
period; provided, however, that the Company shall
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not be required to keep the registration statement
effective beyond the date after which the registration
statement must be amended to include updated audited
financial statements. The Company shall supply prospectuses,
qualify the Warrants and the Warrant Shares for sale in
such states as any such holder reasonably designates and
furnish indemnification in the manner as set forth in
Section 8(b)(ii). Such holders shall furnish information
and provide indemnification as set forth in Section 8(b)(ii).
(b) The following provisions shall also be
applicable:
(i) The Company shall bear the entire cost
and expense of any registration of securities initiated by it
under Section 8 of this Warrant. Any holder whose Warrant Shares
are included in any such registration statement pursuant to this
Section 8 shall, however, bear the fees of his own counsel and
accountants and any transfer taxes or underwriting discounts or
commissions applicable to the Warrant Shares sold by him pursuant
thereto.
(ii) The Company shall indemnify and hold
harmless each such holder and each underwriter, within the
meaning of the Act, who may purchase from or sell for any such
holder any Warrants and/or Warrant Shares from and against any
and any losses, claims, damages and liabilities caused by any
untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereto or any
registration statement under the Act or any prospectus included
therein required to be filed or furnished by reason of this
Section 8 or any application or other filing under any state
securities law caused by any omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading to which such holder or any
such underwriter or any of them may become subject under the Act,
the Securities Exchange Act of 1934, as amended, or other Federal
or state statutory law or regulation, except insofar as such
losses, claims, damages or liabilities are caused by any such
untrue statement or omission based upon information furnished or
required to be furnished to the Company by any such holder or
underwriter expressly for use therein, which indemnification
shall include each person, if any, who controls any such
underwriter within the meaning of such Act; provided, however,
that any such holder or underwriter shall at the same time
indemnify the Company, its directors, each officer signing the
related registration statement, each person, if any, who controls
the Company within the meaning of such Act and each other Holder,
from and against any and all losses, claims, damages and
liabilities caused by any untrue statement of a material fact
contained in any registration statement or any prospectus
required to be filed or furnished by reason of this Section 8 or
caused by any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein
not misleading,
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insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission is based
upon information furnished to the Company by any such
holder or underwriter expressly for use therein.
(c) The Company's agreements with respect to
Warrants or Warrant Shares in this Section 8 shall continue in
effect regardless of the exercise and surrender of this Warrant.
(d) Notwithstanding any contrary provisions of
this Section 8 the holder of this Warrant may, at its election,
include this Warrant as well as the Warrant Shares issuable upon
exercise of this Warrant in any registration statement filed
pursuant to this Section 8; provided, however, that in the event
that both (i) this Warrant shall be included in any such
registration statement and (ii) this Warrant shall be transferred
at a time subsequent to the effective date of such registration
statement at which time the registration statement is current,
then this Warrant shall cease to be exercisable after 5:00 P. M.,
New York City time on the thirtieth (30th) day after the date of
such transfer or, if such thirtieth (30th) day shall be a day on
which banking institutions in the State of New York are
authorized by law to close, then on the next succeeding day which
shall not be such a day. In the event that any registration
statement referred to in the preceding sentence shall cease to be
current during the thirty (30) day period referred to above,
then, notwithstanding the preceding sentence, the exerciseability
of this Warrant shall not be affected by the transfer of this
Warrant. Nothing in this Warrant shall be construed in any
manner to require the Company to take steps to create or provide
for a public market for the Warrants.
9. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF
1933. This Warrant or the Warrant Shares or any other security
issued or issuable upon exercise of this Warrant may not be sold
or otherwise disposed of except as follows:
(a) To a person who, in the opinion of counsel
for the Company, is a person to whom this Warrant or Warrant
Shares may legally be transferred without registration and
without the delivery of a current prospectus under the Act with
respect thereto against receipt of an agreement of such person to
comply with the provisions of this Section 9 with respect to any
resale or other disposition of such securities which agreement
shall be reasonably satisfactory in form and substance to the
Company and its counsel; or
(b) to any person upon delivery of a prospectus
then meeting the requirements of the Act relating to such
securities and the offering thereof for such sale or disposition.
10. REDEMPTION OF WARRANT. The Company may, at its
option, at any time prior to the close of business on December
18,
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1995 (the "Final Date"), redeem all of the Series D Warrants
upon notice and in the manner set forth below. The Company may
redeem all the Warrants by mailing or otherwise delivering a
notice of such redemption prior to the Final Date to the holder
of Warrants to be redeemed at M&A Investments, Inc., 0000 Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxx 00000 or at such other address as the
holder of this Warrant shall designate in writing to the Company.
Such notice of redemption shall be accompanied by a certified
check payable to the holder of this Warrant in the amount of
$77,000. Such Warrant shall be deemed to be redeemed on the date
such notice (accompanied by such payment) is given. (For the
purposes of this Warrant, the term "business day" shall mean any
day other than a Saturday or Sunday or a day on which banking
institutions in the City of New York are authorized or obligated
to close).
Dated: June 28, 1995
UNSI CORPORATION
By:________________________________
Xxxxx X. Xxxx
Chairman of the Board
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Exhibit A
PURCHASE FORM
Dated , 19
The undersigned hereby irrevocably elects to exercise the
within Warrant to the extent of purchasing
shares of Common Stock and hereby makes payment of
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
(Please typewrite or print in block letters)
Signature
ASSIGNMENT FORM
FOR VALUE RECEIVED,
hereby sells, assigns and transfer unto
Name
(Please typewrite or print in block letters)
Address
Social Security or Employer Identification No.
the right to purchase Common Stock represented by this Warrant to
the extent of shares as to which such right is
exercisable and does hereby irrevocably constitute and appoint
Attorney, to transfer the same on the
books of the Company with full power of substitution in the
premises.
Dated: , 19
Signature
Signature Guaranteed
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