Exhibit 10.2
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
BOTH THIS WARRANT AND SUCH SHARES HAVE BEEN ACQUIRED BY THE HOLDER FOR
INVESTMENT AND MAY NOT BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL BE APPLICABLE,
THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
WARRANT
to purchase 30,000 shares of Common Stock of
▇▇▇▇▇▇ TECHNOLOGIES
Expiring April 29, 2001 or later as provided herein
THIS IS TO CERTIFY that for good and valuable consideration, the
receipt of which is hereby acknowledged, THE CIT GROUP/CREDIT FINANCE, INC., a
Delaware corporation with a place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and its successors and assigns (the "Holder" or
sometimes "Holders" of this Warrant) may, at any time after the date hereof and,
before 3:00 P.M., New York City time, on the later of (i) April 29, 2001 and
(ii) the date of termination of that certain Loan and Security Agreement dated
of even date herewith by and between The CIT Group/Credit Finance, Inc. and
▇▇▇▇▇▇ Technologies Company and the payment in full of all Obligations
thereunder and as defined therein (the "Expiration Date"), exercise this Warrant
in whole or in part from time to time for the purchase of Thirty Thousand
(30,000) shares of Common Stock, par value $.01 per share (such number of shares
being subject to adjustment as hereinafter provided) of the Company (as
hereinafter defined) at the purchase price of $4.33 per share and to exercise
all other appurtenant rights, powers and privileges provided in this Warrant,
all on the terms and conditions hereinafter specified.
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As used herein the following terms have the following respective
meanings:
"Common Stock" shall mean the common stock, $.01 par value, of the
Company.
"Company" shall mean ▇▇▇▇▇▇ Technologies, Inc., a Tennessee
corporation, with a place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ and any corporation which shall succeed to or assume the obligations
of the Company hereunder whether by operation of law or otherwise.
"Purchase Price" shall mean $4.33 per share of Common Stock, the price
at which the Holder can exercise this Warrant to purchase shares of Common
Stock, as adjusted in accordance with the provisions of Section 4 of this
Warrant.
"register", "registered", "registration" shall mean a registration
effected by filing a registration statement in compliance with the Securities
Act.
"Securities Act" or "Act" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute in effect after the date hereof, and the
rules and regulations of the Securities and Exchange Commission (or of any other
Federal agency then administering the Securities Act) promulgated thereunder, as
the same shall be amended from time to time.
"Warrant Common Stock" shall mean all shares of Common Stock issued
upon the exercise, by a Holder, of the right to purchase Common Stock pursuant
to the terms of this Warrant.
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SECTION 1. Exercise of Warrant.
1.1 The Holder may, at any time and from time to time after
the date hereof, and, before 3:00 P.M., New York City time, on the Expiration
Date, exercise this Warrant in whole or in part for the purchase of such number
of shares of Common Stock as to which this Warrant is then exercisable, at the
Purchase Price. In order to exercise this Warrant in whole or in part, the
Holder shall deliver to the Company at its principal office (a) a written notice
of such Holder's election to exercise this Warrant, in substantially the form
annexed hereto, specifying the number of shares of Common Stock to be purchased,
(b) a certified or official bank check or checks payable to the order of the
Company in an amount equal to the aggregate Purchase Price of the shares of
Common Stock being purchased and (c) this Warrant.
1.2 Issuance of Warrant Common Stock. The Company shall, as
promptly as practicable after receipt of the items specified in Section 1.1,
issue to the Holder a single certificate, registered in the name of the Holder,
or Holder's nominee or designee, representing the number of shares of Common
Stock purchased upon such exercise. Such certificate shall be deemed to have
been issued, and such Holder or such nominee or designee shall be deemed for all
purposes to have become the holder of record of such shares of Common Stock, as
of the close of business on the day payment for such shares is received by the
Company as provided in Section 1.1(b). If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of said certificate,
deliver to the Holder a new Warrant evidencing the rights of such Holder to
purchase the number of remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant. The obligations of the Company to issue shares of Common Stock upon
exercise of this Warrant shall be conditional on the Holder's compliance with
Section 3 hereof. All shares of Common Stock issued upon exercise of this
Warrant shall be validly issued, fully paid and non-assessable. The Company
shall pay all expenses, taxes (other than stock transfer taxes) and other
charges payable in connection with the preparation, issue and delivery of stock
certificates and a new Warrant under this Section 1.
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1.3 Company to Reaffirm Obligations. The Company will, at the
time of the exercise of this Warrant, in full or in part, upon the request of
the Holder, acknowledge in writing its continuing obligation to afford to such
Holder any rights (including, without limitation, the right to registration of
the Warrants and the shares of Common Stock issued and issuable upon exercise)
to which the Holder shall continue to be entitled in accordance with the
provisions of this Warrant, provided that if the Holder of this Warrant shall
fail to make any such request, such failure shall not affect the continuing
obligation of the Company to afford to such Holder any such rights.
1.4 Absence of Rights of Holder. This Warrant shall not
entitle the Holder to any voting rights or other rights as a shareholder of the
Company, or to any rights whatsoever except the rights herein expressed, and no
dividend or interest shall be payable or accrue in respect to this Warrant or
the interest represented hereby or the shares issuable upon the exercise hereof
unless and until, and except to the extent that, this Warrant shall be
exercised.
SECTION 2. Transfer and Exchange; Mutilated or Missing Warrants.
2.1 Transfer of Warrant. This Warrant is transferable, subject
to requirements set forth herein, in whole or in part, on the books of the
Company to be maintained for such purpose, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment of this
Warrant, in substantially the form annexed hereto, duly executed by the Holder
hereof, and funds sufficient to pay any stock transfer taxes payable upon such
transfer. Upon such surrender and payment the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees and in the
authorized denominations specified in such instrument of assignment, and this
Warrant shall promptly be cancelled. If and when this Warrant is assigned in
blank, the Company may (but shall not be obligated to) treat the bearer hereof
as the absolute owner of this Warrant for all purposes.
65
2.2 Exchange of Warrant. This Warrant is exchangeable upon the
surrender hereof at the principal office of the Company, for new Warrants in
authorized denominations and of like tenor and date representing in the
aggregate the right to purchase the number of shares of Common Stock then
issuable upon the exercise hereof.
2.3 Lost, Stolen, Destroyed or Mutilated Warrant. Upon receipt
by the Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and, in the case of loss, theft or destruction, of
an indemnity satisfactory to it, and, in the case of mutilation upon surrender
and cancellation of this Warrant, the Company will execute and deliver a new
Warrant of like tenor and date, upon reimbursement to the Company for all
reasonable expense incidental thereto. Any such new Warrant executed and
delivered pursuant to this section shall constitute a contractual obligation on
the part of the Company, whether or not this Warrant (so lost, stolen, destroyed
or mutilated) shall thereafter at any time be enforceable by anyone.
2.4 Payment of Expenses, Taxes and Charges. Except as
otherwise provided in Section 2.3, the Company shall pay all expenses, taxes
(other than stock transfer taxes) and other charges payable in connection with
the preparation, issue and delivery of Warrants under this Section 2.
2.5 Warrant Registration. The Company agrees to maintain, at
its principal office, books for the registration and transfer of the Warrant.
Until transfer on the books of the Company, the Company may treat the registered
holder of this Warrant as the owner hereof for all purposes. The foregoing
provisions of this Section 2 pertaining to transfer or exchange of the Warrant
are subject to the provisions of Section 3.
SECTION 3. Compliance with Securities Act; Registration, etc.
3.1 Restrictions on Transfer. (a) The Holder, by acceptance
hereof, represents and warrants that this Warrant, and upon exercise hereof the
holder of any Warrant Common Stock will represent and warrant that any shares of
Warrant Common Stock, are being acquired for its own account for investment
without any intent to make a public distribution thereof in violation of the
securities laws and that this Warrant and such Warrant Common Stock may not be
sold, encumbered or otherwise transferred except pursuant to an effective
Registration Statement under the Act or an exemption from such registration
requirement and, if an exemption shall be applicable, the Holder or the holder
of Warrant Common Stock shall have delivered an opinion of counsel reasonably
satisfactory to the Company that such registration is not required under the
Act.
66
(b) The Holder acknowledges that the Company may
direct the Transfer Agent for the Warrant and the Warrant Common Stock to note a
stop transfer order upon its records in respect of this Warrant and any
certificates evidencing shares of the Warrant Common Stock and that in the event
of any sale, transfer or exchange of this Warrant, any Warrant certificate
issued by the Company shall bear the legend contained on the front part of this
Warrant. In addition, each certificate for shares of Common Stock issued upon
exercise of this Warrant shall bear the following legend:
"The shares represented by this certificate
have not been registered under the Securities Act of
1933, as amended. Such shares have been acquired by
the Holder for its own account for investment and may
not be sold, encumbered or otherwise transferred
except pursuant to an effective registration
statement under such Act or an exemption from such
registration requirement, and, if an exemption shall
be applicable, the holder shall have delivered an
opinion of counsel reasonably satisfactory to the
issuer that such registration is not required under
said Act."
(c) As a condition to any sale, transfer or other
disposition of this Warrant, the transferee shall be required to make the
representations and warranties contained in Section 3.1(a) hereof and
acknowledge the stop transfer order and consent to the legend contained in
Section 3.1(b) hereof.
3.2 Registration Rights. If at any time or from time to time
the Company shall determine to register any of its securities (other than by
means of a registration statement on a form (e.g., Form S-8) which by its terms
could not be used for the sale and distribution of any Warrant Common Stock) the
Company will:
67
(a) promptly (but not less than thirty (30) days
prior to the filing of any registration statement) give written notice thereof
(which shall include a list of the jurisdictions, if any, in which the Company
intends to register or qualify such securities under the applicable blue sky or
other state securities laws) to each holder of Warrant Common Stock;
(b) if so requested in writing by any holder of
Warrant Common Stock, use its best efforts to effect such registration and any
qualification and compliance relating thereto, including, without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with the Securities Act and any other governmental
requirements or regulations as would permit or facilitate the sale and
distribution of all Warrant Common Stock, unless, in the opinion of counsel to
the Company reasonably acceptable to the holder of the Warrant Common Stock who
wishes to have them included in such registration statement, registration under
the Act is not required for the sale of such Warrant Common Stock in the manner
proposed by such holders. Notwithstanding the foregoing, if any managing
underwriter of the Company's offering shall advise the Company in writing that,
in its opinion, the distribution of all or a portion of the Warrant Common Stock
(the "Piggy-back Shares") requested to be included in the registration statement
concurrently with the securities being registered by the Company would
materially adversely affect the distribution of such securities by the Company
for its own account, then the holders of such Warrant Common Stock shall delay
their offering and sale of Warrant Common Stock (or the portions thereof so
designated by such managing underwriter) for such period, not to exceed thirty
(30) days, as the managing underwriter shall request. In the event of such
delay, the Company shall file such supplements, post-effective amendments or
separate registration statement, and take any such other steps as may be
necessary to permit such holders to make their proposed offering and sale for a
period of 90 days immediately following the end of such period of delay
("Piggy-back Termination Date"); provided, however, that if at the Piggy-back
Termination Date the Piggy-back Shares are covered by a registration statement
which is, or is required to remain, in effect beyond the Piggy-back Termination
Date, the Company shall maintain in effect the registration statement as it
relates to the Piggy-back Shares for so long as such registration statement
remains or is required to remain in effect for any other such securities.
68
(c) bear all expenses in connection with such
registration, qualification and compliance, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of the
Company's counsel (but exclusive of the fees and disbursements of legal counsel
retained by holders of Warrant Common Stock) and expenses of any audits incident
to or required by any such registration, qualification or compliance, provided,
that the Company shall not, in any event, be required to bear the cost of any
commissions and compensation paid, and concessions and discounts allowed to,
underwriters, dealers or others performing similar functions in connection with
the sale and distribution of the Warrant Common Stock sold by any holders
thereof.
3.3 No Additional Liability. Notwithstanding anything to the
contrary contained in this Section 3 or elsewhere herein, the Company will not,
in any event, be obligated to qualify any Warrant Common Stock covered by a
registration statement under any blue sky or other state securities law if the
Company would by reason thereof be required to qualify to do business in any
jurisdiction where it is not then so qualified.
3.4 Notification; Continuation of Effectiveness. In the case
of each registration, qualification and compliance pursuant to this Section 3,
the Company will keep all holders of Warrant Common Stock promptly advised in
writing as to the initiation of proceedings for such registration, qualification
and compliance and as to the completion thereof, and will advise, upon request,
of the progress of such proceedings. The Company will, at its expense, keep such
registration, qualification and compliance effective for a period of 90 days
(subject to Section 3.2(a)(ii) hereof), or for such longer period as may be
required by the Securities Act, by such action as may be necessary or
appropriate to permit the sale or distribution of Warrant Common Stock not
theretofore sold or distributed including, without limitation, the filing of
post-effective amendments and supplements to any registration statement or
prospectus necessary to keep the registration current and for further
qualification under any applicable blue sky or other state securities law, all
as requested by any holder of Warrant Common Stock with respect to which such
registration is being effected.
69
3.5 Information From Holders. The Company may require the
holder of Warrant Common Stock, as a condition to having the Warrant Common
Stock included among the securities as to which any registration, qualification
or compliance referred to in this Section 3 is being effected, to furnish to the
Company such reasonable information regarding the proposed distribution of the
Warrant Common Stock as the Company may request in writing and as shall be
required in connection with such registration, qualification or compliance.
3.6 Prospectuses, etc. The Company will, at its expense,
furnish to each holder of Warrant Common Stock with respect to which
registration has been effected, such number of prospectuses, offering circulars
and other documents incident to such registration and related qualification or
compliance as such holder from time to time may reasonably request.
3.7 Indemnification. The Company will indemnify each holder of
Warrant Common Stock (and each person, if any, who or which controls such
holder) and each underwriter of the Warrant Common Stock held by or issuable to
such holder, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any registration, qualification or
compliance referred to in this Section 3, or arising out of or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such holder of Warrant Common Stock (and
each person, if any, who or which controls such holder of Warrant Common Stock)
and each such underwriter for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, provided, that the Company will not be liable in
any such case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by an instrument duly executed by such
holder of Warrant Common Stock (and each person, if any, who or which controls
such holder of Warrant Common Stock) or underwriter and stated specifically to
be for use therein. The Company may require of such holder of Warrant Common
Stock, as a condition to having such Warrant Common Stock held or issuable to
holder of Warrant Common Stock included among the securities as to which such
registration, qualification or compliance is being effected, that each such
holder of Warrant Common Stock and underwriter will indemnify the Company, its
directors, and its officers who sign the registration statement in respect of
such registration against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any written
information furnished by such holder for inclusion in the registration statement
by such holder of Warrant Common Stock or underwriter, as the case may be, or an
omission (or alleged omission) to state in any such written information a
material fact required to be stated therein or necessary to make the statement
therein not misleading.
70
3.8 Notice of Claim, etc. Each party entitled to
indemnification hereunder (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to participate
in the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall participate in the defense of
such claim or litigation, shall be acceptable to the Indemnified Party (which
acceptance shall not be unreasonably withheld), and provided further, that the
failure of any Indemnified Party to give notice as provided in this Section 3.8
shall not relieve the Indemnifying Party of its obligation under Section 3.7.
3.9 Listing on Securities Exchanges, etc. The Company will, at
its expense, promptly list on each national securities exchange on which Common
Stock is at the time listed, or, if applicable, the NASDAQ National List, upon
official notice of issuance upon the exercise of the Warrant, and maintain such
listing of, all shares of Common Stock from time to time issuable upon the
exercise of the Warrant, and when and if required by the Securities Exchange Act
of 1934 (or any similar statute then in effect) will register thereunder all
shares of Common Stock from time to time so issuable.
3.10 Right to Deliver Cash. Notwithstanding the provisions of
this Warrant, the Company shall have the right, in lieu of including the shares
of Warrant Stock in a registration statement pursuant to Section 3.2(a) or
effecting a demand registration pursuant to Section 3.2(b) hereof, to elect to
purchase the Warrant Common Stock to be included in such registration statement
by delivering to a holder of Warrant Common Stock cash in the amount
("Repurchase Amount") equal to the number of shares of Warrant Common Stock to
be included in such registration statement multiplied by an amount equal to the
closing price (or, if applicable, the average of the closing bid and asked
prices) of the Company's Common Stock on the last trading day immediately
preceding the day of notice by the Company pursuant to Section 3.2(a)(1) or the
day preceding the day of demand pursuant to Section 3.2(b), as the case may be.
If the Company elects to exercise its rights hereunder, it should so notify the
holders of Warrant Common Stock within 10 business days of such notice or
demand, as the case may be. The holders shall thereupon promptly deliver the
certificates evidencing shares of Warrant Common Stock to be sold at the time
and place designated in the Company's notice, in duly transferable form,
together with a representation and warranty of good title free and clear of all
liens and encumbrances against receipt from the Company of a bank or certified
check payable to the respective order of such holders in the Repurchase Amount.
71
SECTION 4. Adjustment of Number and Purchase Price of Shares Covered by Warrant.
4.1 Adjustment of Number of Shares. In order to protect the
Holder from dilution with respect to the shares of Common Stock as to which this
Warrant may be exercised, the Company hereby agrees to adjust the number of
shares issuable upon the exercise of this Warrant as follows:
(a) In case the outstanding shares of Common Stock
shall be subdivided into a greater or combined into a lesser number of shares of
such stock, the number of shares of Common Stock deliverable upon the exercise
of this Warrant shall be proportionately increased or decreased, as the case may
be, effective at the close of business on the date that such subdivision or
combination shall become effective.
(b) If any capital reorganization or reclassification
of the capital stock of the Company, or consolidation or merger of the Company
with another corporation, or the sale of all or substantially all of its assets
to another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful or
adequate provision shall be made whereby the Holder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of the shares of the Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
this Warrant, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of such Common Stock immediately
theretofore purchasable and receivable upon the exercise of this Warrant 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 provisions contained herein (including without limitation
provisions for adjustment of the number of shares issuable upon the exercise of
this Warrant) which shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets thereafter deliverable
upon exercise of this Warrant. The Company shall not effect any such
consolidation, merger or sale, unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument executed and delivered to the Holder,
the obligation to deliver to the Holder such shares of stock, securities or
assets as, in acceptance with the foregoing provisions, the Holder may be
entitled to purchase.
72
4.2 Adjustment of Purchase Price. In case of any adjustment in
the number of shares issuable upon exercise of this Warrant in accordance with
Section 4.1(a) or Section 4.1(b) the purchase price of such shares shall be
non-commitently adjusted. No increase or decrease in the number of shares of
Common Stock issuable upon exercise of this Warrant shall affect the aggregate
Purchase Price for all shares so issuable, which shall be $129,900.
4.3 Fractional Shares. In case at any time the total number of
shares issuable upon exercise of this Warrant shall be increased or decreased
pursuant to any of the provisions of this Section 4, such total number of shares
issuable shall be rounded out to the nearest full share and no adjustment shall
be made with respect to any fractional share of Common Stock which otherwise
would be issuable as a result of any computation made pursuant to this Section.
4.4 Certificate. Whenever there is an adjustment in the number
and/or purchase price of shares of Common Stock issuable upon exercise of this
Warrant, as provided herein, the Company shall promptly file with the Holder a
certificate signed by the President or a Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, showing in detail the facts requiring such adjustment
and the purchase price per share and number and kind of securities issuable upon
exercise of the Warrant after such adjustment.
73
SECTION 5. Covenants.
5.1 Reservation of Shares. The Company shall reserve out of
its authorized shares of Common Stock a number of shares sufficient at all times
to enable it to comply with its obligation to issue shares of fully paid and
non-assessable Common Stock upon the exercise of the Warrant.
5.2 Further Action. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, 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 shall at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment.
5.3 Prior Notice of Certain Events. If the Company shall
take any action:
(a) to make any distribution to the holders of Common
Stock;
(b) to offer for subscription pro rata to the holders
of Common Stock any additional shares of stock of any class or other rights;
(c) to accomplish any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with, or sale of all or substantially all of its assets, to
another corporation; or
(d) to effect a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then in any one or more of such events, the Company shall (i) at least 30 days
prior to the date on which the books of the Company shall close or a record
shall be taken for such distribution or subscription rights or for determining
stockholders entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, cause written notice thereof to be sent to the Holder as provided in
Section 6.1 hereof, and (ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale dissolution, liquidation or
winding up, cause at least 20 days' prior written notice of the date when the
same shall become effective to be given to the Holder in the same manner. Such
notice in accordance with the foregoing clause (i) shall also specify, in the
case of any such distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be.
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SECTION 6. Miscellaneous.
6.1 Notice. All communications in connection herewith shall be
in writing and if sent to the Holder or to the holders of Warrant Common Stock
shall be mailed, delivered or telegraphed to such Holder or holders of Warrant
Common Stock at the last address shown on the books of the Company maintained
for the registry and transfer of the Warrant or if sent to the Company shall be
mailed, delivered or telegraphed to it at ▇▇▇▇▇▇ Technologies, Inc. ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President (until another
address is furnished to the Holder or holders of Warrant Common Stock in writing
by the Company).
6.2 Governing Law. This Warrant and the provisions contained
herein shall be deemed to be a contract made under the laws of the State of New
York and for all purposes shall be construed in accordance with the laws of New
York.
6.3 Specific Performance. The Company stipulates that the
remedies at law of the Holder hereof and of the holders of Warrant Common Stock
in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its President or Vice President thereunto duly authorized and its corporate
seal to be hereunto affixed and attested by its Secretary or Assistant Secretary
as of the ____ day of April, 1998.
▇▇▇▇▇▇ TECHNOLOGIES, INC.
By:
------------------------------------
Title:
------------------------------------
ATTEST:
------------------------------------
Secretary
75
FORM OF SUBSCRIPTION
[To be signed only upon exercise of Warrant]
TO: ▇▇▇▇▇▇ TECHNOLOGIES, INC.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder 1 shares of Common Stock of _____________________________,
and herewith makes payment of $ therefor, and requests that the certificates for
such shares be issued in the name of, and delivered to,
, whose address is .
Dated:
(Signature must conform in all respects to name
of holder specified on the face of the Warrant)
------------------------------------
--------
1 Insert here the number of shares called for on the face of the
Warrant (or, in the case of a partial exercise, the portion
thereof as to which the Warrant is being exercised), in either
case with making any adjustment for additional Common Stock or
any other stock or other securities or property or cash which,
pursuant to the adjustment provisions of the Warrant, may be
deliverable upon exercise.
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FORM OF ASSIGNMENT
[To be signed only upon transfer of Warrant]
For value received, the undersigned hereby sells, assigns and transfers
unto ___________the right represented by the within Warrant to purchase ________
shares of Common Stock of ▇▇▇▇▇▇ TECHNOLOGIES, INC., to which the within Warrant
relates, and appoints___________________________________________________________
Attorney to transfer such right on the books of____________________________ with
full power of substitution in the premises.
Dated:
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(Signature must conform in all respects to name
of holder as specified on the face of the Warrant)
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(Address)
Signed in the presence of:
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