1
Exhibit 4.23
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of Januay 26, 1995 between CRYENCO SCIENCES,
INC., a Delaware corporation (the "Company"), and Mezzanine Capital Corporation
Limited (the "Holder").
1. GRANT. Subject to the terms of this Agreement, in consideration of
$10.00 and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged by the Company, the Holder is hereby initially
granted the right to purchase, at any time and from time to time from January
26, 1995 until 5:30 p.m., Denver time on January 25, 2000 (the "Exercise
Period"), up to an aggregate of 15,000 shares of Common Stock at an initial
exercise price of $3.55. The adjusted exercise price shall be the price which
shall result from time to time from any and all adjustments of the initial
exercise price, in accordance with the provisions of SECTION 6 hereof. The term
"Exercise Price" herein shall mean the initial exercise price, as applicable
based on the date of exercise, or the adjusted exercise price, depending upon
the context.
2. WARRANT CERTIFICATES. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
3. EXERCISE OF WARRANTS. The Warrants initially are exercisable at the
Exercise Price (subject to adjustment as provided in SECTION 6 hereof) per share
of Common Stock, payable by certified or official bank cashier's check payable
to the order of the Company; PROVIDED, HOWEVER, that the Holder shall have the
right, at his or its election, in lieu of delivering the Exercise Price in cash,
to instruct the Company in the form of subscription to retain, in payment of the
Exercise Price, a number of shares of Common Stock (the "Payment Shares") equal
to the quotient of (i) the Exercise Price multiplied by the number of shares as
to which the Warrant is then being exercised divided by (ii) the "Average
Closing Price" as of the date of exercise and to deduct the number of Payment
Shares from the shares to be delivered to the Holder. "Average Closing Price"
means, as of any date, (x) if shares of Common Stock are listed on a national
securities exchange, the average of the closing sales prices therefor on the
largest securities exchange on which such shares are traded on the last 10
trading days before such date, (y) if such shares are listed on the NASDAQ
National Market System but not on any national securities exchange, the average
of the closing sales prices therefor on the NASDAQ National Market System on the
last 10 trading days before such date or (z) if such shares are not listed on
either a national securities exchange or the NASDAQ National Market System, the
average of the sales prices therefor on the last 20 trading days before such
date. Upon surrender of a Warrant Certificate with the annexed Form of Election
to Purchase duly executed, together with payment of the Exercise Price for the
shares of Common Stock at the Company's principal offices (currently located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇), the Holder or any
2
subsequent registered holder or holders of a Warrant Certificate (any such
subsequent holder or holders also referred to herein as the "Holder" or
"Holders") shall be entitled to receive a certificate or certificates for the
shares of Common Stock so purchased for the Warrants so exercised. The purchase
rights represented by each Warrant Certificate are exercisable at the option of
the Holder thereof, in whole or in part (but not as to fractional shares of the
Common Stock underlying the Warrants). Warrants may be exercised to purchase all
or part of the shares of Common Stock represented thereby. In the case of the
purchase of less than all the securities purchasable under any Warrant
Certificate, the Company shall cancel said Warrant Certificate upon the
surrender thereof and, unless the Warrant has expired, shall execute and deliver
a new Warrant Certificate of like tenor for the balance of the securities
purchasable thereunder. With respect to any such exercise, the Holder shall for
all purposes be deemed to have become the holder of record of the number of
shares of Common Stock from the date on which the Warrant was surrendered and
payment of the Exercise Price was made irrespective of the date of delivery of
such shares, except that, if the date of such surrender and payment is a date on
which the stock transfer books of the Company are closed, such person shall be
deemed to have become the holder of such shares at the close of business on the
next succeeding date on which the stock transfer books are open.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants, the
issuance of certificates for the shares of Common Stock shall be made forthwith
(and in any event within 10 business days thereafter) without charge to the
Holder thereof including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall (subject to the
provisions of SECTIONS 5 and 7 hereof) be issued in the name of, or in such
names as may be directed by, the Holder thereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such certificates in
a name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof in a name other than that of the Holder shall
have paid to the Company the amount of such tax or shall have established to
the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the shares of
Common Stock shall be executed on behalf of the Company by the manual or
facsimile signature of the then present Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the dual or facsimile signature of the
then present Secretary or Assistant Secretary of the Company. Warrant
Certificates shall be dated the date of execution by the Company upon initial
issuance, division, exchange, substitution or transfer.
5. RESTRICTION ON TRANSFER OF WARRANTS.
There shall be not more than five (5) Holders of record of the Warrants.
The Holder of a Warrant Certificate, by his or its acceptance thereof,
covenants and agrees that the Warrants may not be sold, transferred, assigned,
hypothecated or otherwise disposed of, in
2
3
whole or in part, except to or among wholly owned subsidiaries of the Holder or
officers, directors or employees of the Holder, who also shall hold the
warrants subject to the restrictions contained in this Section 5.
6. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
6.1 COMPUTATION OF ADJUSTED EXERCISE PRICE. For the purposes of this
SECTION 6, the term Exercise Price shall mean the Exercise Price per share of
Common Stock set forth in SECTION 1 hereof, as adjusted from time to time
pursuant to the provisions of this SECTION 6.
6.2 SUBDIVISION AND COMBINATIONS. In case the Company shall at any time
subdivide (for example, a stock split or stock dividend) or combine (for
example, a reverse stock split) the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
6.3 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this SECTION 6, the number of
securities issuable upon the exercise of each Warrant shall be adjusted to the
nearest full share by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of shares of Common
Stock (or other securities as provided in this SECTION 6) issuable upon
exercise of the Warrants immediately prior to such adjustment and dividing the
product so obtained by the adjusted Exercise Price.
6.4 DEFINITION OF COMMON STOCK. For the purpose of this Agreement, the
term "Common Stock" shall mean (i) the class of stock designated as Class A
Voting Common Stock, $.01 par value, in the Restated Certificate of
Incorporation of the Company as of the date hereof, (ii) the class of stock
designated as Class B non-voting Convertible Common Stock, $.0l par value, in
the Restated Certificate of Incorporation, as amended, of the Company as of the
date hereof, (iii) any other capital stock of any class or classes (however
designated) of the Company the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and distributions on any shares entitled to preference except the
Series A Preferred Stock of the Company and (iv) any other securities into
which or for which any of the securities described in clauses (i), (ii) or
(iii) above have been converted, exchanged or combined pursuant to a plan of
recapitalization, reorganization, merger, sale of assets or otherwise. In the
event that the Company shall after the date hereof issue securities with
greater or superior voting rights than the shares of Common Stock outstanding
as of the date hereof, the Holder, at his or its option, may receive upon
exercise of any Warrant either shares of Common Stock or an equal number of
such securities with greater or superior voting rights.
6.5 MERGER OR CONSOLIDATION. If any capital reorganization or
reclassification of the capital stock of the Company or any consolidation,
merger or other transaction of the Company with another corporation in which
the Company is the surviving corporation, or the sale of all or substantially
all of the Company's assets to another corporation shall be effected
3
4
in such a way that holders of Common Stock shall be entitled to receive
consideration (including but not limited to stock, securities or assets) with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provisions shall be made whereby each Holder 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 immediately
theretofore so receivable upon the exercise of each Warrant or Warrants, such
shares of stock, securities or assets (including cash) 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 immediately
theretofore so 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 (including, without limitation,
provisions for adjustments of the Exercise Price) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise of such rights. In the event
of a merger or consolidation of the Company or other transaction in which the
Company is not the surviving corporation or in which, as the result of the
transaction, no trading market will exist for the Common Stock, the Company
shall give notice regarding the transaction in accordance with SECTION 12
hereof as soon as practicable (and in no event less than 20 days prior to the
record date fixed for the transaction or, if none, the closing date for such
transaction) in order to afford the Holders the opportunity to exercise their
Warrants and receive after exercise the same consideration payable in the
transaction to other holders of Common Stock. This SECTION 6.5 shall similarly
apply to successive reorganizations, classifications, consolidations, mergers
or other transaction contemplated hereby.
6.6 NOTICE OF ADJUSTMENT. Upon any adjustment of the Exercise Price, the
Company shall give written notice thereof to each Holder in accordance with
SECTION 12 hereof, which notice shall state the Exercise Price resulting from
such adjustment, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
7. REGISTRATION RIGHTS.
7.1 REGISTRATION UNDER THE SECURITIES ACT OF 1933. The Warrants and the
shares of Common Stock have not been registered for sale under the Act. Upon
exercise of the Warrants, in part or in whole, certificates representing the
shares of Common Stock shall bear the following legend:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("Act"), and may not be
offered or sold except pursuant to (i) an effective registration
statement under the Act, (ii) to the extent applicable, Rule 144 under
the Act (or any similar rule under such Act relating to the disposition
of securities), or (iii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer that an exemption from
registration under such Act is available.
4
5
7.2 PIGGYBACK REGISTRATION.
(a) If, at any time commencing after the date hereof through and
including the fifth anniversary hereof the Company proposes to register
any of its equity securities under the Act (other than in connection with
a transaction contemplated by Rule 145(a) promulgated under the Act or
pursuant to Form S-8 or S-4 or successor forms) it will give written
notice by registered or certified mail, at least 15 days prior to the
filing of each such registration statement, to the Holders of the
Warrants of its intention to do so. If the Holders of the Warrants notify
the Company within 15 days after receipt of any such notice of its or
their desire to include Common Stock underlying the Warrants in such
proposed registration statement, the Company shall afford such Holders of
the opportunity to have any such Common Stock registered under such
registration statement.
(b) In the case of an underwritten offering, if the managing
underwriter of the offering determines and advises the Company in writing
that inclusion of the Common Stock of the Holders requested to be
included would interfere with the successful offering of shares by the
Company there shall be excluded from such offering, to the extent that
the managing underwriter deems necessary, shares of Common Stock owned by
the Holders on a PRO RATA basis.
(c) Notwithstanding anything to the contrary herein, any
registration rights hereunder shall not be exercisable at any time or
with respect to any proposed registration unless each of Chemical Bank
and The CIT Group/Equity Investments, Inc. shall have exercised to the
fullest extent permitted by the applicable agreement with the Company or
waived any registration rights held by either of them at such time or in
connection with such registration.
7.3 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. In connection
with any registration under SECTION 7.2 hereof, the Company covenants and
agrees as follows:
(a) The Company shall pay all reasonable costs (excluding transfer
taxes, if any, and fees and expenses of Holder(s)' counsel and any
underwriting or selling commissions), fees and expenses in connection
with all registration statements filed pursuant to SECTION 7.2 hereof
including, without limitation, the Company's legal and accounting fees
(including the costs and expenses of any special audit or other
procedures), printing expenses, blue sky fees and expenses.
(b) The Company will take all necessary action which may be
required in qualifying or registering the Common Stock included in a
registration statement for offering and sale under the securities or blue
sky laws of such states as reasonably are requested by the Holder(s)
provided, however, that the number of states in which qualification or
registration shall be required shall not exceed five
5
6
(5) and in no event shall the Company be required to effect such
qualification or registration if such act would require the Company to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction where it is not now so qualified or
required to file such a consent.
(c) Upon any registration becoming effective pursuant to this
SECTION 7, the Company shall use its best efforts to: (i) keep such
registration statement current for a period of 90 days; (ii) prepare and
file with the Securities and Exchange Commission (the "Commission") such
amendments and supplements to such registration statement as may be
necessary to comply with the provisions of the Act and the Regulations of
the Commission with respect to the disposition of all securities covered
by such registration statement; (iii) cause all the Common Stock
registered pursuant to such registration statement to be listed on each
exchange or automated quotation system on which the Common Stock is then
listed; (iv) provide a transfer agent and registrar for all stock
registered pursuant to such registration statement and CUSIP number for
all such stock, in each case not later than the effective date of such
registration; and (v) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission.
(d) The Company shall indemnify and hold harmless the Holder(s) of
the Common Stock to be sold pursuant to any registration statement and
each person, if any, who controls such Holders within the meaning of
Section 15 of the Act or Section 20(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against and from all loss, claim,
damage, expense or liability (including all expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to
which any of them may become subject under the Act, the Exchange Act or
otherwise, arising from such registration statement, except such matters
in respect of which such Holders are required to indemnify the Company
under the next succeeding paragraph.
(e) The Holders of the Common Stock to be sold pursuant to a
registration statement, and its or their successors and assigns, shall
indemnify and hold harmless the Company, its officers and directors and
each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against and
from all loss, claim, damage, expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject under the
Act, the Exchange Act or otherwise, arising from information furnished by
or on behalf of such Holders or its or their successors or assigns, for
specific inclusion in such registration statement.
(f) Any person entitled to indemnification under this SECTION 7
will (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (ii) unless in
such indemnified party's
6
7
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect
to such claim.
(g) Nothing contained in this Agreement shall be construed as
requiring the Holder to exercise his or its Warrants prior to the initial
filing of any registration statement or the effectiveness thereof.
(h) The Company at its expense shall deliver promptly to each
Holder participating in the offering and requesting the correspondence
and memoranda described below copies of all documents proposed to be
filed with the Commission, all correspondence between the Commission and
the Company, its counsel or auditors, and all memoranda relating to the
registration statement and permit each such Holder at its expense to do
such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as it
deems reasonably necessary to comply with applicable securities laws or
rules of the National Association of Securities Dealers, Inc. Such
investigation shall include access to books, records and properties and
opportunities to discuss the business of the Company with its officers
and independent auditors, all to such reasonable extent and at such
reasonable times and as often as any such Holder shall reasonably
request.
8. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of securities in such denominations as shall
be designated by the Holder thereof at the time of such surrender, subject to
the provisions of Section 5 hereof.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant
Certificate, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
7
8
9. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock upon the
exercise of the Warrants, nor shall it be required to issue scrip or pay cash
in lieu of fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of shares of Common Stock or other securities, properties
or rights.
10. RESERVATION AND LISTING. The Company shall at times have and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon the exercise of the Warrants, such number of shares of Common
Stock or other securities, properties or rights as shall be issuable upon the
exercise thereof. The Company covenants and agrees that, upon exercise of the
Warrants, and payment of the respective exercise price therefor, all shares of
Common Stock and other securities issuable upon such exercise shall, at the
time of delivery thereof, be duly and validly issued, fully paid,
nonassessable, not subject to the preemptive rights of any stockholder and free
from all taxes, liens and charges with respect to the issue thereof. The
Company will take all such action as may be necessary to ensure that all such
shares of Common Stock may be so issued without violation of any applicable law
or regulation, or of any requirements of any national securities exchange upon
which the Common Stock of the Company may be listed. The Company will not take
any action which results in any adjustment of the Exercise Price if the total
number of shares of Common Stock issued and issuable after such action upon
exercise of the Warrants would exceed the total number of shares of Common
Stock then authorized by the Company's Restated Certificate of Incorporation.
The Company has not granted and will not grant any right of first refusal with
respect to shares issuable upon exercise of the Warrants, and there are no
preemptive rights associated with such shares. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges, if any, on which the
Common Stock issued to the public in connection herewith may then be listed
and/or quoted on NASDAQ.
11. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement shall
be construed as conferring upon the Holders the right to vote or to consent or
to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings,
as indicated by the accounting treatment of such dividend or distribution
on the books of the Company; or
8
9
(b) the Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entity shall
be proposed
then, in any one or more of said events, the Company shall give written notice
of such event at least 15 days prior to the date fixed as a record date or the
date of closing the transfer books for the determination of the stockholder
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give
such notice or any defect therein shall not affect the validity of any action
taken in connection with the declaration or payment of any such dividend, or
the issuance of any convertible or exchangeable securities or subscription
rights, options or warrants or any proposed dissolution, liquidation, winding
up or sale.
12. NOTICES.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Warrants, to the
address of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in SECTION 3
hereof or to such other address as the Company may designate by
notice to the Holders.
13. SUPPLEMENTS AND AMENDMENTS. The Company and the Holder may from
time to time supplement or amend this Agreement without the approval of any
subsequent Holders of Warrant Certificates (other than the Holder) in order to
cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with provisions herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Holder may deem necessary or desirable and which the Company
and the Holder deem shall not adversely affect the interests of the Holders of
Warrant Certificates.
14. SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders, the
limited partners of the Holder and their respective successors and assigns
hereunder.
9
10
15. TERMINATION. This Agreement shall terminate at the close of
business on January 25, 2000. Notwithstanding the foregoing, the
indemnification provisions of SECTION 7 shall survive such termination until
the close of business on January 25, 2003.
16. GOVERNING LAW: SUBMISSION TO JURISDICTION. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be construed
in accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company and the Holders hereby agree that any action, proceeding
or claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the state of New York or of the
United States of America for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The
Company and the Holders hereby irrevocably waive any objection to such
exclusive jurisdiction or inconvenient forum. Any such process or summons to be
served upon any of the Company and the Holders (at the option of the party
bringing such action, proceeding or claim) may be served by transmitting a copy
thereof, by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in SECTION 12 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon
the party so served in any action, proceeding or claim.
17. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and may not be modified or amended except by a writing duly signed by
the party against whom enforcement of the modification or amendment is sought.
18. SEVERABILITY. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
19. CAPTIONS. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive
effect.
20. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holder and any subsequent registered Holder(s) of the Warrant Certificates or
Warrants any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Holder and subsequent Holder(s) of the Warrant Certificates or
Warrants.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
10
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
CRYENCO SCIENCES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary MEZZANINE CAPITAL
CORPORATION LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇
11
12
EXHIBIT A
FORM OF WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), AND MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (II)
TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER
SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES) OR (III) AN OPINION OF
COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE
ISSUER. THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., DENVER TIME. ____________, 2000
No. W-1995(A)______ ________ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ________________________, or
registered assigns, is the registered holder of ___________ Warrants to
purchase initially, at any time from _______________, 1995 until 5:30 p.m.,
Denver time, on _________________, 2000 ("Expiration Date"), up to ______
shares of Class A voting common stock, $.01 par value ("Common Stock") of
CRYENCO SCIENCES, INC., a Delaware corporation (the "Company"), at the price
per share of Common Stock equal to the Exercise Price set forth in the Warrant
Agreement dated as of __________________, 1995 between the Company and
____________________ (the "Warrant Agreement"), upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the Warrant
Agreement. Payment of the Exercise Price shall be made by certified or official
bank cashier's check payable to the order of the Company; PROVIDED, HOWEVER,
that the Holder shall have the right, at his or its election, in lieu of
delivering the Exercise Price in cash, to instruct the Company in the form of
subscription to retain, in payment of the Exercise Price, a number of shares of
Common Stock (the "Payment Shares") equal to the quotient of (i) the Exercise
Price multiplied by the number of shares as to which the Warrant is then being
exercised divided by (ii) the "Average Closing Price" as of the date of
exercise and to deduct the number of Payment Shares from the shares to be
delivered
12
13
to the Holder. "Average Closing Price" means, as of any date, (x) if shares of
Common Stock are listed on a national securities exchange, the average of the
closing sales prices therefor on the largest securities exchange on which such
shares are traded on the 10 trading days before such date, (y) if such shares
are listed on the NASDAQ National Market System but not on any national
securities exchange, the average of the closing sales prices therefor on the
NASDAQ National Market System on the last 10 trading days before such date or
(z) if such shares are not listed on either a national securities exchange or
the NASDAQ National Market System, the average of the sales prices therefor on
the last 20 trading days before such date.
No Warrant may be exercised after 5:30 p.m., Denver time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which 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 Company and the Holders
(the words "Holders" or "Holder" meaning the registered holders or registered
holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the Holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
PROVIDED, HOWEVER, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair, the
rights of the Holder as set forth in the Warrant Agreement to purchase the
number of shares for the exercise price as so adjusted or any other rights set
forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax or other governmental
charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the Holder hereof a new
Warrant Certificate representing such unexercised Warrants.
The Company may deem and treat the registered Holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (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
13
14
Holder(s) hereof, and for all other purposes, and the Company shall not be
affected by any notice to the contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Date as of ________________, 1995
CRYENCO SCIENCES, INC.
[SEAL]
By:________________________
Name:
Title:
Attest:
___________________________
Name:
Title:
14
15
FORM OF ELECTION TO PURCHASE
TO: Cryenco Sciences, Inc.
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase:
____________ shares of Class A voting Common Stock;
and herewith [tenders in payment for such securities a certified or
official bank cashier's check payable to the order of CRYENCO SCIENCES, INC. in
the amount of $______________ therefor] [instructs you herein, in payment of
the Exercise Price, to deduct ___________ shares of Class A voting Common Stock
and to deliver the net number of shares, being _________ shares of Class A
voting Common Stock]. The undersigned requests that a certificate for such
securities be registered in the name of __________________________ whose
address is _____________________________________________ and that such
Certificate be delivered to __________________________________ whose address is
_________________________________.
Dated: Signature:_________________________________
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant Certificate.)
(Insert Social Security or Other Identifying
Number of Holder)
15
16
FORM OF ASSIGNMENT
(To be exercised by the registered holder if such holder desires to
transfer the Warrant Certificate to the extent permitted by Section 5 of the
Warrant Agreement.)
FOR VALUE RECEIVED ________________________________ hereby sells,
assigns and transfers unto
____________________________________________________
(Please print name and address of transferee)
this Warrant Certificate; together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________________
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated: Signature:_________________________________
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant Certificate.)
(Insert Social Security or Other Identifying
Number of Assignee)
16