Exhibit 4.10
THIS WARRANT AND ANY SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT ARE
SUBJECT TO THE PROVISIONS (INCLUDING TRANSFER RESTRICTIONS) OF A SECURITYHOLDERS
AGREEMENT DATED AS OF MAY 1, 2002 (THE "AGREEMENT'), BY AND AMONG R.A.B.
HOLDINGS, INC., A DELAWARE CORPORATION (THE "COMPANY"), AND THE OTHER
SIGNATORIES THERETO. A COPY OF THE AGREEMENT, AS IT MAY BE AMENDED FROM TIME TO
TIME, IS MAINTAINED WITH THE CORPORATE RECORDS OF THE COMPANY AND IS AVAILABLE
FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND MUST
BE HELD INDEFINITELY, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED, GIFTED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT COVERING THE TRANSFER OF THE SECURITIES OR AN OPINION
OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE ACCEPTABLE TO THE COMPANY AND WHICH
COUNSEL SHALL BE ACCEPTABLE TO THE COMPANY, THAT REGISTRATION UNDER THE ACT IS
NOT REQUIRED.
R.A.B. HOLDINGS, INC.
WARRANT TO PURCHASE COMMON STOCK
Dated as of May 1, 2002
This Warrant is void after April 30, 2010.
Warrant Number: W__
This certifies that, for value received, and subject to the terms
and conditions set forth below, _________________, or its registered assigns, is
entitled to purchase from R.A.B. HOLDINGS, INC., a Delaware corporation (the
"Company"), __________ shares (or such other number of shares as may be
determined in accordance with Section 6 hereof) of the common stock, par value
$.01 per share, of the Company (the "Common Stock"), at an exercise price of
$0.01 per share (the "Exercise Price"), upon surrender of this Warrant at the
principal office of the Company referred to below, with the notice of exercise
form attached hereto duly executed and the simultaneous payment of the Exercise
Price or, in lieu of payment of such Exercise Price, by indication on the
exercise form that the conversion method provided in Section 2(c) has been
elected in connection with such exercise.
This Warrant is one of the Warrants (the "Warrants") originally
issued in connection with the execution and delivery of the Securityholders
Agreement dated as of May 1, 2002 (the "Securityholders Agreement") by and among
the Company and the Securityholders party thereto.
Certain capitalized terms used in this Warrant are defined in
Section 7.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, and subject to compliance with applicable securities laws, this Warrant
shall be exercisable, in whole or in part, at any time and from time to time,
commencing at 9:00 a.m., New York, New York time, on May 1, 2002 and ending at
5:00 p.m., New York, New York time, on April 30, 2010 (the "Expiration Time"),
and shall be void and of no force or effect thereafter.
2. Exercise of Warrant.
(a) Manner of Exercise. The right to purchase shares of Common
Stock represented by this Warrant are exercisable by the holder hereof in whole
or in part, at any time or from time to time, prior to the Expiration Time, by
the surrender of this Warrant, the giving by the holder to the Company, in
accordance with the notice provisions of Section 9(a), of a duly completed
notice of exercise executed by the holder in the form annexed hereto (which
shall specify the number of shares of Common Stock as to which this Warrant is
being exercised), and the payment by the holder to the Company in cash or wire
transfer of immediately available funds of the Exercise Price with respect to
the shares to be purchased or, in lieu of payment of such Exercise Price, by
indication on the exercise form that the conversion method provided in Section
2(c) has been elected in connection with such exercise.
(b) Time of Exercise. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the Person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As promptly as practicable on or after such date and in any event
within five (5) days thereafter, the Company, at its expense, will issue and
deliver to the Person or Persons entitled to receive the same a certificate or
certificates for the number of shares issuable upon such exercise.
(c) Conversion of Warrant. Notwithstanding any provisions herein
to the contrary, at any time that the Fair Market Value is greater than the
Exercise Price, in lieu of exercising this Warrant for cash, the holder may
convert this Warrant or any part hereof into a number of shares of Common Stock
determined according to the following formula:
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Y (A-B)
X = -------------
A
Where (i) "X" equals the number of shares of Common Stock to be issued to the
holder upon such conversion; (ii) "Y" equals the number of shares of Common
Stock purchasable pursuant to the Warrant or (if applicable) pursuant to the
portion of the Warrant being exercised as of the date of calculation; (iii) "A"
equals the Fair Market Value of one share of Common Stock as of the date of
calculation; and (iv) "B" equals the Exercise Price of $.01 per share.
(d) No Fractional Shares or Scrip. No fractional shares of Common
Stock or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. In lieu of any fractional share of Common Stock to which the
holder may otherwise be entitled, the Company shall make a cash payment equal to
the Exercise Price hereof multiplied by such fraction.
3. Transfer, Replacement of Warrant.
(a) Warrant Register. The Company will maintain a register
containing the name and address of the holder of this Warrant. Any holder of
this Warrant or any portion thereof may change his address as shown on the
Warrant register by written notice to the Company requesting such change. Any
notice or written communication required or permitted to be given to the holder
may be delivered or given at the address shown on the Warrant register. Until
the transfer of this Warrant is recorded in the Warrant register, the Company
may treat the holder as shown on the Warrant register as the absolute owner of
this Warrant for all purposes, notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the
holder, appoint an agent for the purpose of maintaining the Warrant register
referred to in Section 3(a) above, issuing the Common Stock or other securities
then issuable upon the exercise of this Warrant, exchanging this Warrant,
replacing this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent. Until any such appointment, the Company shall
be responsible for the foregoing.
(c) Transferability and Nonnegotiability of Warrant. This Warrant
may not be transferred, sold, assigned, pledged, mortgaged, hypothecated or
otherwise disposed of, in whole or in part, without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions satisfactory to the Company, if such are requested by the
Company). Subject to the provisions of this Warrant with respect to compliance
with the Securities Act of 1933, as amended (the "Act"), title to this Warrant
may be transferred by indorsement (by the holder executing the assignment form
annexed hereto) and delivery in the same manner as a negotiable instrument
transferable by indorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, properly indorsed on the assignment form and subject to
the provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers contained in this Section 3 and in
the Securityholders Agreement, the Company at its expense shall issue to or on
the order of the holder a new Warrant or Warrants of like tenor, in the name of
the holder or as the holder (on payment by the Holder of any applicable transfer
taxes) may direct, for the number of shares issuable upon exercise hereof.
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(e) Remainder Warrant Upon Partial Exercise. Upon any partial
exercise of this Warrant, the Company, at its expense, shall execute and deliver
to the holder a Warrant of like tenor and amount representing the unexercised
portion hereof.
(f) Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company, at its expense, shall execute and deliver, in lieu of this Warrant,
a new Warrant of like tenor and amount.
4. Securityholders Agreement; Legends. This Warrant and any
shares of Common Stock purchasable upon the exercise of this Warrant are subject
in all respects to the Securityholders Agreement. The shares purchasable
pursuant to this Warrant will be "restricted securities" as such term is defined
in Rule 144 promulgated under the Act and may not be transferred, sold,
assigned, pledged, mortgaged, hypothecated or otherwise disposed of, in whole or
in part, except in compliance with applicable federal and state securities laws.
All stock certificates for such shares now or hereafter owned by the holder
hereof shall have indorsed in writing, stamped or printed, upon the back
thereof, legends to the following effect:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS (INCLUDING TRANSFER RESTRICTIONS) OF A
SECURITYHOLDERS AGREEMENT DATED AS OF MAY 1, 2002 (THE
"AGREEMENT'), BY AND AMONG R.A.B. HOLDINGS, INC., A DELAWARE
CORPORATION (THE "COMPANY"), AND THE OTHER SIGNATORIES
THERETO. A COPY OF THE AGREEMENT, AS IT MAY BE AMENDED FROM
TIME TO TIME, IS MAINTAINED WITH THE CORPORATE RECORDS OF THE
COMPANY AND IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL
OFFICE OF THE COMPANY, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND
MUST BE HELD INDEFINITELY, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED, GIFTED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT
COVERING THE TRANSFER OR AN OPINION OF COUNSEL, IN FORM,
SUBSTANCE AND SCOPE ACCEPTABLE TO THE COMPANY AND WHICH
COUNSEL SHALL BE ACCEPTABLE TO THE COMPANY, THAT REGISTRATION
UNDER THE ACT IS NOT REQUIRED.
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5. Notices of Certain Events. In case the Company shall:
(i) take a record of the holders of its Common Stock (or other
stock or securities at the time receivable upon the exercise of this
Warrant) for the purpose of entitling them to receive any dividend or
other distribution, or any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any
other right, or
(ii) give effect to or be subject to any capital reorganization
of the Company, any reclassification of the capital stock of the
Company, any consolidation or merger of the Company with or into
another corporation (in which the Company is not the surviving
corporation), or any conveyance of all or substantially all of the
assets of the Company to another corporation or other entity, or
(iii) give effect to or approve any voluntary dissolution,
liquidation or winding-up of the Company;
then, and in each such case, the Company will cause notice thereof to be
provided to the holder of this Warrant, such notice to specify, as the case may
be, (A) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (B) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such stock or securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up and a
description in reasonable detail of the transaction. Such notice shall be
provided not less than twenty (20) days prior to the date therein specified.
6. Adjustments of Number of Shares.
6.1. Adjustment upon Issuance of Additional Shares of Common
Stock.
(a) If the Company, at any time or from time to time after the
date hereof until the Public Offering Date, shall issue or sell Additional
Shares of Common Stock, including Additional Shares of Common Stock deemed to be
issued pursuant to Section 6.3 or 6.4, without consideration or for a
consideration per share less than the greater of the Fair Market Value of the
Common Stock or the Exercise Price in effect, in each case immediately prior to
such issuance or sale, then, and in each such case, subject to Section 6.7, the
number of shares of Common Stock issuable pursuant to this Warrant shall be
increased, concurrently with such issuance or sale, to a number (calculated to
the nearest whole share) determined by multiplying the number of shares for
which this Warrant is exercisable immediately prior thereto, by a fraction, of
which:
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(x) the numerator shall be the sum of (A) the number of shares of
Common Stock outstanding on a Fully Diluted Basis immediately prior to
such issuance or sale plus (B) the number of Additional Shares of
Common Stock issued or deemed issued in the issuance or sale pursuant
to Section 6.3 or Section 6.4; and
(y) the denominator shall be the sum of (A) the number of shares
of Common Stock outstanding on a Fully Diluted Basis immediately prior
to such issuance or sale plus (B) the number of shares of Common Stock
that the aggregate consideration received by the Company for the total
number of Additional Shares of Common Stock so issued or sold would
purchase at the Fair Market Value on a Fully Diluted Basis then in
effect;
and for purposes of this Section 6.1(a), immediately after any Additional Shares
of Common Stock shall be deemed to be issued pursuant to Section 6.3. or 6.4,
such Additional Shares of Common Stock shall be deemed to be outstanding.
6.2. Dividends and other Distributions. If the Company at any
time or from time to time after the date hereof shall declare, order, pay or set
apart any sum or property for or make a dividend or other distribution
(including, without limitation, any distribution of other or additional stock or
other securities or property or options by way of dividend or spin-off,
reclassification, recapitalization or similar corporate rearrangement) on Common
Stock, other than a dividend payable in Additional Shares of Common Stock (in
which case the provisions of Section 6.1(a) and Section 6.4 shall apply) then,
and in each such case, subject to Section 6.7, at the option of the holder
hereof, which may be exercised at the time of such dividend or other
distribution upon written notice to the Company within ten (10) business days
after receipt from the Company of notice under Section 9 (provided that if such
notice is not given the holder shall be deemed to have exercised the option set
forth in paragraph (ii) below), either:
(i) the number of shares of Common Stock issuable pursuant to
this Warrant shall be increased, concurrently with such issuance or sale, to a
number (calculated to the nearest whole share) determined by multiplying the
number of shares for which this Warrant is exercisable immediately prior
thereto, by a fraction, of which:
(x) the numerator shall be the Fair Market Value of Common
Stock on a Fully Diluted Basis in effect on such record date; and
(y) the denominator shall be Fair Market Value of Common Stock
on a Fully Diluted Basis in effect on such record date for the action
contemplated by this Section 6.2 less the amount of such dividend or
distribution (as determined in good faith by the Board of Directors of
the Company) applicable to one share of Common Stock; or
(ii) the Company shall pay over to the holder of the Warrant the
securities and other property (including cash) that such holder would have
received (together with all distributions thereon) if such holder had exercised
this Warrant, immediately prior to the record date fixed for the action
contemplated by this Section 6.2, and the Company shall take whatever steps are
necessary or appropriate to keep in reserve at all times such securities and
other property as shall be required to fulfill its obligations hereunder in
respect of the shares issuable upon the exercise of the Warrant.
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6.3. Treatment of Options and Convertible Securities. For
purposes of Section 6.1(a), if the Company at any time or from time to time
after the date hereof shall issue, sell, grant or assume, or shall fix a record
date for the determination of holders of any class of securities entitled to
receive, any Options or Convertible Securities, then, and in each such case, the
Additional Shares of Common Stock deemed to be issued as of the time of such
issuance, sale, grant or assumption shall be the maximum number of Additional
Shares of Common Stock (as set forth in the instrument relating thereto, without
regard to any provisions contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or, in the case of
Convertible Securities, the conversion or exchange of such Convertible
Securities (or, in case such a record date shall have been fixed, as of the
close of business on such record date); provided, however, that such Additional
Shares of Common Stock shall not be deemed to have been issued unless the
consideration per share (determined pursuant to Section 6.5) of such shares
would be less than the greater of the Fair Market Value or the Exercise Price in
effect, in each case on the date of and immediately prior to such issuance,
sale, grant or assumption (or immediately prior to the close of business on such
record date), as the case may be. In the event any such Additional Shares of
Common Stock are deemed to be issued as provided in the preceding sentence:
(i) no further adjustment of the number of shares issuable
hereunder shall be made upon the subsequent issuance or sale of Convertible
Securities or shares of Common Stock upon the exercise of such Options or the
conversion or exchange of such Convertible Securities;
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or for any decrease in the number of
Additional Shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof (by change of rate or otherwise), the number of shares issuable
hereunder computed upon the original issuance, sale, grant or assumption thereof
(or upon the occurrence of the record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increases or
decreases becoming effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options, or the rights of conversion or exchange
under such Convertible Securities, that are outstanding at such time;
(iii) upon the expiration (or purchase by the Company and
cancellation or retirement) of any such Options that shall not have been
exercised or the expiration of any rights of conversion or exchange under any
such Convertible Securities that (or purchase by the Company and cancellation or
retirement of any such Convertible Securities the rights of conversion or
exchange under which) shall not have been exercised, the number of shares
issuable hereunder computed upon the original issuance, sale, grant or
assumption thereof (or upon the occurrence of the record date), and any
subsequent adjustments based thereon, shall, upon such expiration (or such
cancellation or retirement, as the case may be), be recomputed as if:
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(A) in the case of such Options or Convertible
Securities, the only Additional Shares of Common Stock issued or
sold were the shares of Common Stock, if any, actually issued or
sold upon the exercise of such Options or the conversion or
exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by the
Company for the issuance, sale, grant or assumption of all such
Options, whether or not exercised, plus the consideration
actually received by the Company upon such exercise, or for the
issuance or sale of all such Convertible Securities that were
actually converted or exchanged, plus the additional
consideration, if any, actually received by the Company upon such
conversion or exchange, and
(B) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually
issued or sold upon the exercise thereof were issued at the time
of the issuance, sale, grant or assumption of such Options, and
the consideration received by the Company for the Additional
Shares of Common Stock deemed to have then been issued was the
consideration actually received by the Company for the issuance,
sale, grant or assumption of all such Options, whether or not
exercised, plus the consideration deemed to have been received by
the Company (pursuant to Section 6.5) upon the issuance or sale
of the Convertible Securities with respect to which such Options
were actually exercised; and
(C) no readjustment pursuant to clause (ii) or
(iii) of this Section 6.3 shall have the effect of decreasing the
number of shares purchasable upon exercise of this Warrant by an
amount in excess of the amount of the adjustment thereof
originally made in respect of the issuance, sale, grant or
assumption of such options or Convertible Securities.
6.4. Treatment of Stock Dividends, Stock Splits, etc. For
purposes of Section 6.1(a), if the Company, at any time or from time to time
after the date hereof, shall declare or pay any dividend on its Common Stock
payable in Common Stock, or shall effect a subdivision of the outstanding shares
of Common Stock into a greater number of shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock),
then, and in each such case, Additional Shares of Common Stock shall be deemed
to have been issued (a) in the case of any such dividend, immediately after the
close of business on the record date for the determination of holders of any
class of securities entitled to receive such dividend, or (b) in the case of any
such subdivision, at the close of business on the day immediately prior to the
day upon which such corporate action becomes effective.
6.5. Computation of Consideration.
(a) The consideration for the issuance or sale of any Additional
Shares of Common Stock shall (irrespective of the accounting treatment of such
consideration):
(i) insofar as the consideration consists of cash, be
computed as the amount of cash received by the Company, net of
any expenses paid or incurred by the Company and any commission
or compensations paid or concessions or discounts allowed to
underwriters, dealers or others performing similar services in
connection with such issuance or sale,
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(ii) insofar as the consideration consists of property
(including securities) other than cash, be computed at the fair
value thereof at the time of such issuance or sale, as determined
in good faith by the Board of Directors of the Company, and
(iii) in case Additional Shares of Common Stock are issued or
sold together with other stock or securities or other assets of
the Company for a consideration that covers both, be the portion
of such consideration so received, computed as provided in
clauses (i) and (ii) above, allocable to such Additional Shares
of Common Stock, all as determined in good faith by the Board of
Directors of the Company.
(b) Additional Shares of Common Stock deemed to have been issued
pursuant to Section 6.3, relating to Options and Convertible Securities, shall
be deemed to have been issued for a consideration per share determined by
dividing:
(i) the total amount of consideration, if any, received and
receivable by the Company for the issuance, sale, grant or
assumption of the Options or Convertible Securities in question,
plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to
any provision contained therein for a subsequent adjustment of
such consideration the purpose of which is to protect against
dilution) payable to the Company upon the exercise in full of
such Options or the conversion or exchange of such Convertible
Securities, or, in the case of Options for Convertible
Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible
Securities, in each case computing such consideration as provided
in Section 6.5(a), by
(ii) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such
number the purpose of which is to protect against dilution)
issuable upon the exercise of such Options or the conversion or
exchange of such Convertible Securities.
(c) Additional Shares of Common Stock deemed to have been
issued pursuant to Section 6.4, relating to stock dividends, stock splits, etc.,
shall be deemed to have been issued for no consideration.
6.6. Adjustments for Combinations, etc. In case the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the number of shares that may be purchased upon exercise of this Warrant
immediately prior to such combination or consolidation (and each other share or
per-share amount set forth in this Warrant, where appropriate) shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately reduced as determined in good faith by the Board of Directors of
the Company.
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6.7. Minimum Adjustment of Number of Shares. If the amount of
any adjustment of the number of shares of Common Stock that may be purchased
upon exercise of this Warrant required pursuant to this Section 6 would be less
than one-tenth of 1% of such number of shares prior to such adjustment is
otherwise so required to be made, such amount shall be carried forward and
adjustment with respect thereto made at the time of and together with any
subsequent adjustment which, together with such amount and any other amount or
amounts so carried forward, shall aggregate at least one percent (0.01) of such
number of shares; provided, however, that upon the exercise of this Warrant, all
necessary adjustments (calculated to the nearest whole share) not theretofore
made relating thereto by reason of the initial clause of this sentence, up to
and including the date of such exercise or conversion, shall be made.
6.8. Reclassification, Consolidation, Merger, etc. In the case
of any reclassification or change of the outstanding shares of Common Stock
(other than a change from no par value to par value or vice versa or a change in
par value, or as a result of a subdivision or combination), or in the case of
any consolidation of the Company with, or merger of the Company with or into,
another corporation (other than a consolidation or merger in which the Company
is the surviving corporation and that does not result in any reclassification or
change of the outstanding shares of Common Stock except a change as a result of
a subdivision or combination of such shares or a change in par value as
aforesaid), the holder of this Warrant shall thereafter (but only until the
Expiration Time) have the right to purchase the kind and number of shares of
stock and/or other securities or property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance in respect of the number of
shares issuable under this Warrant immediately prior to the time of
determination of stockholders of the Company entitled to receive such shares of
stock and/or other securities or property, at a purchase price equal to the
product of (x) the number of shares issuable under this Warrant immediately
prior to such determination, times (y) the Exercise Price provided hereunder, as
if such holder had exercised this Warrant immediately prior to such
determination. The Company shall be obligated to retain and set aside, or
otherwise make fair provision for exercise of the right of the holder hereof to
receive, the shares of stock and/or other securities or property provided for in
this Section 6.8.
6.9. Assumption of Obligations. Notwithstanding anything
contained herein to the contrary, the Company will not effect any of the
transactions described in Section 6.8 unless, prior to the consummation thereof,
each Person (other than the Company) which may be required to deliver any stock,
securities, cash or property upon the exercise of this Warrant as provided
herein shall assume, by written instrument delivered to the holder of this
Warrant, and reasonably satisfactory to Securityholders who hold a
majority-in-interest of the Warrants, (a) the obligations of the Company under
this Warrant (and if the Company shall survive the consummation of such
transaction, such assumption shall be in addition to, and shall not release the
Company from, any continuing obligations of the Company under this Warrant) and
(b) the obligation to deliver to such holder such shares of stock, securities,
cash or property as, in accordance with the foregoing provisions of this Section
6, such holder may be entitled to receive.
6.10. No Adjustment with Respect to Shares of Common Stock
Held. Anything to the contrary contained herein notwithstanding, subject to
Section 6.13, the antidilution rights provided under this Section 6 shall be
available to the extent (and only to the extent) provided herein in respect of
the rights to purchase Common Stock hereunder but shall not be available in
respect of shares of Common Stock held by the holder, whether or not such shares
were purchased pursuant to this Warrant.
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6.11. No Voting Rights. The holder of this Warrant shall have
no right to vote as a stockholder in respect of this Warrant.
6.12. Transactions with Affiliates and Related Parties. The
Company covenants and agrees, for the benefit of the Warrantholder, that so long
as the Warrant (or any replacement thereof) remains outstanding, the Company
will not permit any Permitted Holder (as defined in the Amended and Restated
Indenture dated as of May 1, 2002 between the Company and JPMorgan Chase Bank,
as trustee (the "Indenture")), Subsidiary (as defined in the Indenture) of the
Company, executive officer or director of the Company or any of its
Subsidiaries, family member of the any of the foregoing or any Affiliate of any
of the foregoing to hold at any time any direct or indirect interest in the
Original Securities (as defined in the Indenture), economic, beneficial or
otherwise, including, without limitation, any participation in the Original
Securities.
6.13. Additional Adjustment in Respect of Preferred Stock.
(a) From and after the A/B Determination Date, the number of
shares purchasable pursuant to this Warrant shall be increased by adding thereto
the result obtained by dividing:
(i) the product of (A) the number of shares of Common
Stock that, immediately prior to the adjustment pursuant to this
provision, are purchasable under this Warrant times (B) the
result of (x) the Number of A/B Common Shares multiplied by (y)
0.05; by
(ii) the product of (A) 5,500 (i.e., the number of shares
that would initially be purchasable under all Warrants if all
holders of the Company's 13% Senior Notes consent to the Amended
and Restated Indenture being executed and delivered as of May 1,
2002 by and between the Company and JPMorgan Chase Bank, as
trustee) as such number is adjusted from time to time pursuant to
the terms of this Section 6 and (B) 0.95.
(b) Promptly after the A/B Determination Date, the Company
shall prepare and deliver to the holder of this Warrant a calculation, in
reasonable detail, of the Number of A/B Common Shares and of the increase in the
number of shares purchasable pursuant to this Warrant as provided in paragraph
(a) above. The Company's calculation of the Number of A/B Common Shares and the
increase in the number of shares purchasable pursuant to this Warrant as
provided in Section 6.13(a) above shall be final and binding on the holder of
this Warrant absent manifest error.
(c) Anything to the contrary notwithstanding, with respect to
any full or partial exercise of this Warrant (the portion of this Warrant so
exercised, for purposes of this paragraph (c), the "Exercised Portion of this
Warrant") that occurs before the A/B Determination Date, the Company shall be
obligated (subject to compliance with applicable securities laws) until the
Expiration Time to issue to the holder or any Affiliate of the holder in respect
of the Warrant Shares purchased pursuant to such exercise (provided however that
the Company shall not be so required in respect of any Warrant Shares
transferred by the holder or any Affiliate of the holder to any Person that is
not an Affiliate of the holder), promptly after the A/B Determination Date, a
number of shares of Common Stock, against payment by the holder or Affiliate (as
applicable) of the Exercise Price with respect thereto, equal to the number of
additional shares of Common Stock by which the Exercised Portion of this Warrant
would have increased from and after the A/B Determination Date as provided in
Section 6.13(a) if the Exercised Portion of this Warrant had not been exercised
prior to the A/B Determination Date.
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7. Definitions. As used herein, unless the context otherwise
requires the following terms have the following respective meanings:
(a) A/B Determination Date: shall mean the Business Day
immediately after the first five (5) consecutive trading days following the
initial underwritten offering of shares of Common Stock (the "IPO") on which the
closing trading prices for such shares (as reported on the principal exchange on
which the Common Stock is listed or, if not listed on an exchange, the principal
securities market on which the Common Stock is traded) equals or exceeds 120% of
the price to the public (without reduction for underwriting discounts or
commissions or any other expenses) of one share of Common Stock as set forth on
the cover page of the prospectus or prospectus supplement required to be filed
with the Securities and Exchange Commission under Rule 424(b) (as amended from
time to time) under the Act, in connection with the IPO.
(b) Additional Shares of Common Stock: shall mean all shares
of Common Stock issued or sold (or, pursuant to Section 6.3 or 6.4, deemed to be
issued) by the Company after the date hereof; provided, however, that Additional
Shares of Common Stock shall not include (and no adjustment shall be made
pursuant to Section 6 in respect of) shares of Common Stock that are issued or
that may be deemed to be issued:
(i) upon the exercise or conversion of securities issued
pursuant to any transaction of the type contemplated in items
(ii) through (vi) of this definition;
(ii) pursuant to the terms of any security that is
outstanding on the date hereof, including, but not limited to,
shares of the Company's Series A Preferred Stock or shares of the
Company's Series B Preferred Stock;
(iii) to employees, officers, directors or consultants of
the Company or any of its subsidiaries pursuant to any stock
option plan, stock purchase plan, stock issuance plan or similar
employee benefit plan or arrangement (each, an "Employee Equity
Plan") that has been approved by the Board of Directors of the
Company or a committee of the Board of Directors of the Company
up to a number of shares of Common Stock that equal an aggregate
of 4.5% of the shares of Common Stock outstanding on a Fully
Diluted Basis on the date hereof (excluding the Warrants)
(adjusted as appropriate as a result of stock dividends, stock
splits, combinations of shares and similar capital transactions);
provided that the foregoing 4.5% shall be in addition to any
shares that are issued and outstanding on the date hereof (and
subsequent repurchases and reissuances of such shares in
connection with Employee Equity Plans);
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(iv) in connection with mergers and acquisitions by the
Company or any of its subsidiaries with any Person that is not an
Affiliate of the Company or of the Principal Stockholders (as
defined in the Securityholders Agreement) and that have been
approved by the Board of Directors of the Company;
(v) pursuant to an underwritten public offering;
(vi) in addition to the shares issued in transactions
described in item (vii) below, in connection with any financing,
refinancing, recapitalization, exchange offer, amendment or
similar transaction (a "Refinancing") entered into by the Company
or any of its subsidiaries with any bank, investment company,
venture capital firm or other institutional lender, or with any
other lenders or investors in the indebtedness of the Company or
any subsidiary, in each case as approved by the Board of
Directors of the Company up to an aggregate of 2% of the shares
of Common Stock outstanding on a Fully Diluted Basis on the date
hereof (excluding the Warrants) (adjusted as appropriate as a
result of stock dividends, stock splits, combinations of shares
and similar capital transactions); and
(vii) in addition to the shares issued in transactions
described in item (vi) above, in connection with any Refinancing
entered into by the Company and/or R.A.B. Enterprises, Inc.
("Enterprises") with the holders of the 10.50% Senior Notes of
Enterprises due 2005.
(c) Affiliate: shall mean, with respect to the Company or any
of its Subsidiaries (or any other specified Person), any other Person which,
directly or indirectly controls or is controlled by or is under direct or
indirect common control with the Company or such Subsidiary (or such specified
Person), and, without limiting the generality of the foregoing, shall include
(a) any Person which beneficially owns or holds 10% of more of any class of
voting securities of such Person or 10% or more of the equity interest in such
Person, (b) any Person of which such Person beneficially owns or holds 10% or
more of any class of voting securities or in which such Person beneficially owns
or holds 10% or more of the equity interest in such Person and (c) any director
or executive officer of such Person. For the purposes of this definition, the
term "control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
(d) Appraiser: shall mean an independent accounting firm, an
investment banking firm, a business appraiser or a valuation consultant selected
by the Company and identified to the holder hereof in a written notice from the
Company; provided that Securityholders who hold a majority-in-interest of the
Warrants shall not have notified the Company of a reasonable objection to such
proposed Appraiser within 30 days after the Company gives notice thereof.
-13-
(e) Business Day: shall mean a day other than a Saturday, a
Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(f) Convertible Securities: shall mean any evidences of
indebtedness, shares of stock (other than Common Stock) or other securities
directly or indirectly convertible into or exchangeable for Common Stock.
(g) Fair Market Value: shall mean, as of any particular date
specified herein, the amount per share of Common Stock equal to the average of
the closing per share prices of the sales of the Common Stock on all securities
exchanges on which the Common Stock may at the time be listed, or if there have
been no sales on any such exchange on any day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day the Common Stock is not so listed, the average of the representative bid
and asked per share prices quoted in the NASDAQ National Market System as of
4:00 p.m., New York time, or, if on any day the Common Stock is not quoted in
the NASDAQ National Market System, the average of the highest bid and lowest
asked per share prices on such day in the domestic over-the-counter market as
reported by the NASDAQ National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of 20 trading
days consisting of the day as of which the Fair Market Value is being determined
and the 19 consecutive trading days prior to such day. If at any time the Common
Stock is not so listed on any securities exchange or quoted in the NASDAQ
National Market System or the domestic over-the-counter market, the Fair Market
Value will be the fair value of the Common Stock as determined in good faith by
the Company's Board of Directors or the Company's Chief Financial Officer and
approved by the Company's Board of Directors on the basis of the Company's total
enterprise value without any increase for any control premium or any reduction
for minority interest; provided, that if Additional Shares of Common Stock are
issued to an Affiliate of the Company (except in any transaction in which an
Affiliate of the Company is purchasing not more than 10% of the Additional
Shares of Common Stock to be issued in such transaction), the Fair Market Value
of such Additional Shares of Common Stock (if determined by the Board of
Directors of the Company in accordance with this definition) at the time of such
issuance or sale shall be the value determined by the Board of Directors of the
Company and confirmed in a written opinion of an Appraiser.
(h) Fully Diluted Basis: shall mean, in any calculation of a
number of shares of Common Stock, the number of such shares that would be
outstanding after issuances of all shares of Common Stock issuable in respect of
any and all securities convertible into, exercisable or exchangeable for, or
otherwise providing the right to acquire, shares of Common Stock; provided that
shares issuable pursuant to the Company's Series A or Series B Preferred Stock
shall not be included for this purpose.
(i) NASDAQ: shall mean the National Association of Securities
Dealers Automated Quotation System.
(j) Number of A/B Common Shares: shall mean the number of
shares of Common Stock issuable upon conversion of the then outstanding shares
of the Company's Series A Preferred Stock and the then outstanding shares of the
Company's Series B Preferred Stock, in each case in accordance with the terms of
the Certificate of Designation applicable to the Series A Preferred Stock and
the terms of the Certificate of Designation applicable to the Series B Preferred
Stock, respectively.
-14-
(k) Options: shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or Convertible
Securities.
(l) Person: shall mean a corporation, an association, a
partnership, an organization or business, an individual, a government or
political subdivision thereof or a governmental agency.
(m) Public Offering Date: shall mean the effective date of an
underwritten public offering of Common Stock or securities exercisable or
exchangeable for or convertible into shares of Common Stock, which public
offering shall provide for gross proceeds to the Company of not less than
$25,000,000.
8. Reservation; Authorization; Capitalization. The Company has
duly reserved, and will keep available for issuance upon exercise of the
Warrant, the total number of shares of Common Stock issuable from time to time
upon exercise of this Warrant in its entirety. The Company will not take any
actions during the term of this Warrant that would result in any adjustment of
the number of shares of Common Stock issuable upon the exercise of this Warrant
if the sum of (i) the total number of shares of Common Stock issuable after such
action upon exercise of this Warrant, (ii) all shares of Common Stock issued and
outstanding and (iii) all shares of Common Stock then issuable (y) upon the
exercise of all outstanding Options and (z) upon the exercise, conversion or
exchange of all other outstanding Convertible Securities, would exceed the total
number of shares of Common Stock then authorized for issuance by the Company.
The issuance of the shares of Common Stock issuable pursuant to this Warrant has
been duly and validly authorized and, when issued and sold in accordance with
the Warrants, the shares of Common Stock issuable hereunder will be duly and
validly issued, fully paid and non-assessable. Neither the issuance of this
Warrant nor the issuance of Warrant Shares upon exercise of this Warrant
violates or conflicts with the Company's certificate of incorporation or by laws
or any material agreement to which the Company is a party.
The Company will not, by amendment of its certificate of incorporation
or through any consolidation, merger, reorganization, transfer of assets,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith carry out of all such terms and take such
action as necessary to protect the rights of the holder as provided in this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
not permit the par value of any shares of stock receivable upon the exercise of
this Warrant to exceed the amount payable therefor upon such exercise, (b) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock on the exercise of the Warrants from time to time outstanding, (c) will
not issue any capital stock of any class which is preferred as to dividends or
as to the distribution of assets upon voluntary or involuntary dissolution,
liquidation or winding-up, unless the rights of the holders thereof shall be
limited to a fixed sum or percentage of par value or a sum determined by
reference to a formula based on a published index of interest rates, an interest
rate publicly announced by a financial institution or a similar indicator of
interest rates in respect of participation in dividends and to a fixed sum or
percentage of par value in any such distribution of assets (provided however
that this item (c) shall not prevent the issuance of non-participating preferred
stock that is convertible into shares of Common Stock) and (d) will not issue
any Option or Convertible Security as to which the underlying shares of Common
Stock are not readily determinable upon the date of issuance.
-15-
9. Miscellaneous.
(a) Notices. All notices, demands, consents, requests,
instructions and other communications to be given or delivered or permitted
under or by reason of the provisions of this Warrant or in connection with the
transactions contemplated hereby shall be in writing and shall be deemed to be
delivered and received by the intended recipient as follows: (a) if personally
delivered, on the Business Day of such delivery (as evidenced by the receipt of
the personal delivery service), (b) if mailed certified or registered mail
return receipt requested, four (4) Business Days after being mailed, (c) if
delivered by overnight courier (with all charges having been prepaid), on the
Business Day of such delivery (as evidenced by the receipt of the overnight
courier service of recognized standing), or (d) if delivered by facsimile
transmission, on the Business Day of such delivery if sent by 6:00 p.m. in the
time zone of the recipient, or if sent after that time, on the next succeeding
Business Day (as evidenced by the printed confirmation of delivery generated by
the sending party's facsimile machine). If any notice, demand, consent, request,
instruction or other communication cannot be delivered because of a changed
address of which no notice was given (in accordance with this Section 9(a)), or
the refusal to accept same, the notice, demand, consent, request, instruction or
other communication shall be deemed received on the second Business Day the
notice is sent (as evidenced by a sworn affidavit of the sender). All such
notices, demands, consents, requests, instructions and other communications will
be sent to the following addresses or facsimile numbers as applicable:
If to the Company:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Chairman
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Senior Vice President - Legal Affairs
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and:
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Jenkens & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
The Chrysler Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Securityholder, to the address set forth with the
Securityholder's signature on the signature pages to the
Securityholders Agreement.
or to such other address as any party may specify by notice given to the other
party in accordance with this Section 9(a).
(b) Governing Law; Jurisdiction. This Warrant shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed in that state, without regard
to any of its principles of conflicts of laws or other laws which would result
in the application of the laws of another jurisdiction. This Warrant shall be
construed and interpreted without regard to any presumption against the party
causing this Warrant to be drafted. Each of the parties unconditionally and
irrevocably consents to the exclusive jurisdiction of the courts of the State of
New York and the federal district court for the Southern District of New York
with respect to any suit, action or proceeding arising out of or relating to
this Warrant or the transactions contemplated hereby, and each of the parties
hereby unconditionally and irrevocably waives any objection to venue in any such
court or to assert that any such court is an inconvenient forum, and agrees that
service of any summons, complaint, notice or other process relating to such
suit, action or other proceeding may be effected in the manner provided in
Section 9(a). Each of the parties hereby unconditionally and irrevocably waives
the right to a trial by jury in any such action, suit or other proceeding.
(c) Assignment. Assignment of this Warrant without compliance
with certain provisions of the Securityholders Agreement may result in the loss
of rights under the Securityholders Agreement and under the Registration Rights
Agreement entered into in connection therewith (the "Registration Rights
Agreement"). This Warrant shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
(d) Headings. The section headings contained in this Warrant
are inserted for reference purposes only and shall not affect in any way the
meaning, construction or interpretation of this Warrant. Any reference to the
masculine, feminine, or neuter gender shall be a reference to such other gender
as is appropriate. References to the singular shall include the plural and vice
versa. Nothing herein is intended or shall be construed to confer upon or give
to any person, other than the parties hereto, any rights, privileges or remedies
under or by reason of this Warrant.
-17-
(e) Severability. Should any provision of this Warrant be held
to be invalid, illegal or unenforceable by any court of competent jurisdiction,
that holding shall be effective only to the extent of such invalidity, illegally
or unenforceability without invalidating or rendering illegal or unenforceable
the remaining provisions hereof, and any such invalidity, illegally or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. It is the intent of the
parties that this Warrant be enforced to the fullest extent permitted by
applicable law.
-18-
(f) Entire Agreement. This Warrant, and the Securityholders
Agreement and the Registration Rights Agreement, contain the entire
understanding and agreement of the parties relating to the subject matter hereof
and supersede all prior and/or contemporaneous understandings and agreements of
any kind and nature (whether written or oral) among the parties with respect to
such subject matter, all of which are merged herein.
R.A.B. HOLDINGS, INC.
By:____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
-19-
NOTICE OF EXERCISE
To: R.A.B. Holdings, Inc.
The undersigned hereby elects to acquire _______ shares of
Common Stock of R.A.B. Holdings, Inc. (the "Company") pursuant to the terms of
the attached Warrant, and tenders herewith payment of the purchase price for
such shares in full.
___ Attached is a check payable to the Company for the total
Exercise Price of the shares being purchased; or
___ The holder elects to exercise this Warrant by way of the conversion
method provided in Section 2(c) of this Warrant; the number of shares specified
above shall be reduced in accordance with the formula set forth in Section 2(c)
of the Warrant.
Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
---------------------
Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
---------------------
------------------------------
(Signature)
-----------------------------
(Print or type name)
Dated ________________________
ASSIGNMENT FORM
To: R.A.B. Holdings, Inc.
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below:
Name of the assignee: _________________
Address of the assignee: _______________
Number of Shares: ___________________
And does hereby irrevocably constitute and appoint ________________________, as
the undersigned's attorney to make such transfer on the books of R.A.B.
Holdings, Inc. maintained for the purpose, with full power of substitution in
the premises.
Dated: ____________
Signature of holder: ______________________
The undersigned Assignee represents that any shares of stock to be
issued upon exercise hereof or conversion hereof will be acquired for investment
and that the Assignee will not offer, sell or otherwise dispose of this Warrant
or any shares of stock to be issued upon exercise hereof or conversion thereof
except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended, or any state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Dated: ____________
Signature of Assignee: ______________________