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Exhibit 4.1
WARRANT AGREEMENT
AGREEMENT, dated as of this ____ day of __________, 1996, by and
between ▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INC., a Delaware corporation (the "Company"), and
AMERICAN STOCK TRANSFER & TRUST COMPANY, as warrant agent (the "Warrant Agent").
W I T N E S S E T H
WHEREAS, the Company proposes to make a public offering (the "Public
Offering") of up to 1,953,125 shares (the "Shares") of the common stock, par
value $.01 per share ("Common Stock"), of the Company and up to 1,562,500 common
stock purchase warrants (the "Warrants") of the Company (hereinafter
collectively referred to as the "Shares" and the "Warrants"), each Warrant
exercisable to purchase a one-quarter of a share of Common Stock; and
WHEREAS, in relation to the Public Offering, the Company has filed a
registration statement on Form SB-2 (Registration No. 333-13703) (as amended or
supplemented, the "Registration Statement") and a related prospectus (as amended
or supplemented, the "Prospectus") with the Securities and Exchange Commission;
and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and redemption of the Warrants, the
issuance of certificates representing the Warrants, the exercise of the
Warrants, and the rights of the registered holders thereof (the "Registered
Holders");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrants and the certificates representing the Warrants and
the respective rights and obligations thereunder of the Company, the Registered
Holders and the Warrant Agent, the parties hereto hereby agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall
have the following meanings, unless the context shall otherwise require:
(a) "Common Stock" shall mean the common stock, par value $.01 per
share, of the Company entitling the owners thereof one vote for each share on
all matters on which the holders of the Common Stock are entitled to vote, the
right to receive dividends subject to holders of convertible preferred and
preferred stock of the Company, and certain liquidation and dissolution rights
set forth in the Certificate of Incorporation of the Company, as amended (the
"Certificate of Incorporation").
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(b) "Corporate Office" shall mean the office of the Warrant Agent
(or its successor) at which at any particular time its principal business shall
be administered, which office is located at the date hereof at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
(c) "Exercise Date" shall mean, as to any Warrant, the date on which
the Warrant Agent shall have received both (a) the Warrant Certificate
representing such Warrant, with the exercise form thereon duly executed by the
Registered Holder thereof or his attorney duly authorized in writing, and (b)
payment in cash, or by official bank or certified check made payable to the
Company, of an amount in lawful money of the United States of America equal to
the Exercise Price plus transfer taxes, if any.
(d) "Exercise Price" shall mean the purchase price to be paid upon
exercise of four Warrants (each Warrant exercisable to purchase one-quarter of a
share of Common Stock), in accordance with the terms hereof, which price shall
be $_____ per share, subject to (i) adjustment from time to time pursuant to the
provisions of Section 8 hereof, and (ii) subject to the Company's right to
reduce the Exercise Price, upon written notice to all Registered Holders
(defined below) of the Warrants, for a period of not less than thirty days.
(e) "Redemption Date" shall mean the date fixed for redemption of
the Warrants as specified on the Redemption Notice.
(f) "Redemption Notice" shall mean the notice provided to the
Registered Holder by the Company thirty days before the call for redemption of
its Warrants in accordance with the terms of Section 9 herein.
(g) "Redemption Notice Date" shall mean the date of the Redemption
Notice.
(h) "Redemption Price" shall mean the price at which the Company
may, at its option, redeem the Warrants, in accordance with the terms of Section
9 herein, which price shall be $.25 per Warrant.
(i) "Registered Holder" shall mean the person in whose name any
certificate representing Warrants shall be registered on the books maintained by
the Warrant Agent pursuant to Section 6.
(j) "Transfer Agent" shall mean American Stock Transfer & Trust
Company, as the Company's transfer agent, or its authorized successor, as such.
(k) "Warrant Expiration Date" shall mean the earlier of 5:00 P.M.
(New York time) on __________ ___, 1999 or (ii) Redemption Date, (i) provided
that, if in the State of New York, such date shall be a holiday or a day on
which banks are authorized to close, then 5:00 P.M. (New York time) on the next
following day which in the State of New York is not a holiday or a day on which
banks are authorized to close.
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SECTION 2. Warrants and Issuance of Warrant Certificates.
(a) A Warrant shall initially entitle the Registered Holder of the
Warrant Certificate representing such Warrant to purchase one-quarter of a share
of Common Stock upon the exercise thereof, in accordance with the terms hereof,
subject to modification and adjustment as provided in Section 8.
(b) From time to time, up to the Warrant Expiration Date, the
Transfer Agent shall execute and deliver stock certificates in required whole
number denominations representing up to an aggregate of 390,625 shares of Common
Stock, subject to adjustment as described herein, upon the exercise of Warrants
in accordance with this Agreement.
(c) From time to time, up to the Warrant Expiration Date, the
Warrant Agent shall execute and deliver Warrant Certificates in required whole
number denominations to the persons entitled thereto in connection with any
transfer or exchange permitted under this Agreement; provided that no Warrant
Certificates shall be issued except (i) those initially issued hereunder; (ii)
those issued upon the exercise of fewer than all Warrants represented by any
Warrant Certificate, to evidence any unexercised Warrants held by the exercising
Registered Holder; (iii) those issued upon any transfer or exchange pursuant to
Section 6 herein; (iv) those issued in replacement of lost, stolen, destroyed or
mutilated Warrant Certificates pursuant to Section 7; and (v) at the option of
the Company, in such form as may be approved by its Board of Directors, to
reflect (a) any adjustment or change in the Exercise Price or the number of
shares of Common Stock purchasable upon exercise of the Warrants made pursuant
to Section 8 hereof and (b) other modifications approved by Registered Holders
in accordance with Section 16 hereof.
SECTION 3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates shall be substantially in the form
annexed hereto as Exhibit A (the provisions of which are hereby incorporated
herein) and may have such letters, numbers or other marks of identification or
designation and such legends, summaries or endorsements printed, lithographed,
engraved or typed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange or securities association on which
or through which the Warrants may be listed, or to conform to usage. The Warrant
Certificates shall be dated the date of issuance thereof (whether upon initial
issuance, transfer, exchange or in lieu of mutilated, lost, stolen, or destroyed
Warrant Certificates) and issued in registered form. Warrants shall be numbered
serially with the letter W.
(b) Warrant Certificates shall be executed on behalf of the Company
by its Chairman of the Board, President or any Vice President and by its
Secretary or an Assistant Secretary, by manual signatures or by facsimile
signatures printed thereon, shall have imprinted thereon a facsimile of the
Company's seal and shall be countersigned by an authorized signatory of the
Warrant Agent. In case any officer of the Company who shall
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have signed any of the Warrant Certificates shall cease to be such officer of
the Company before the date of issuance of the Warrant Certificates and issue
and delivery thereof, such Warrant Certificates may nevertheless be issued and
delivered with the same force and effect as though the person who signed such
Warrant Certificates had not ceased to be such officer of the Company. After
execution by the Company Warrant Certificates shall be delivered by the Warrant
Agent to the Registered Holder.
SECTION 4. Exercise.
Each Warrant may be exercised by the Registered Holder thereof at
any time after the effective date of the Registration Statement and until the
Warrant Expiration Date, upon the terms and subject to the conditions set forth
herein and in the applicable Warrant Certificate. A Warrant shall be deemed to
have been exercised immediately prior to the close of business on the Exercise
Date and the person entitled to receive the securities deliverable upon such
exercise shall be treated for all purposes as the holder of such securities upon
exercise of the Warrant Certificate as of the close of business on the Exercise
Date. As soon as practicable on or after the Exercise Date, the Warrant Agent
shall deposit the proceeds received from the exercise of a Warrant, and promptly
after clearance of checks received in payment of the Exercise Price pursuant to
such Warrants, cause to be issued and delivered by the Transfer Agent, to the
person or persons entitled to receive the same, a certificate or certificates
for the securities deliverable upon such exercise (plus a certificate for any
remaining unexercised Warrants of the Registered Holder, if applicable).
Notwithstanding the foregoing, in the case of payment made in the form of a
check drawn on an account of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. (the "Representative")
or such other investment banks and brokerage houses as the Company shall
approve, certificates shall immediately be issued without any delay. Upon the
exercise of any Warrant and clearance of the funds received, the Warrant Agent
shall promptly remit the payment received for the Warrant to the Company or as
the Company may direct in writing.
SECTION 5. Reservation of Shares; Listing; Payment of Taxes; etc.
(a) The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issuance
upon exercise of Warrants, such number of shares of Common Stock as shall then
be issuable upon the exercise of all outstanding Warrants. The Company covenants
that all shares of Common Stock which shall be issuable upon exercise of the
Warrants and payment of the Exercise Price in compliance with this Warrant
Agreement and the Warrant Certificate shall, at the time of delivery, be duly
and validly issued, fully paid, nonassessable and free from all taxes, liens and
charges with respect to the issue thereof (other than those which the Company
shall promptly pay or discharge).
(b) The Company will use reasonable efforts to obtain appropriate
approvals or registrations under state "blue sky" securities laws with respect
to the exercise of the Warrants; provided, however, that the Company shall not
be obligated to file any general consent to service of process or qualify as a
foreign corporation in any jurisdiction. With
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respect to any such securities laws, however, Warrants may not be exercised by,
or shares of Common Stock issued to, any Registered Holder in any state in which
such exercise would be unlawful.
(c) The Company shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect to the issuance
of Warrants, or the issuance, or delivery of any shares upon exercise of the
Warrants; provided, however, that if shares of Common Stock are to be delivered
in a name other than the name of the Registered Holder of the Warrant
Certificate representing any Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Warrant
Agent the amount of transfer taxes or charges incident thereto, if any.
(d) The Warrant Agent is hereby irrevocably authorized to
requisition the Transfer Agent from time to time for certificates representing
shares of Common Stock required upon exercise of the Warrants, and the Company
will authorize the Transfer Agent to comply with all such proper requisitions.
SECTION 6. Exchange and Recordation of Transfer.
Subject to the restrictions on transfer contained in the Warrant
Certificates:
(a) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants or may be
transferred in whole or in part. Warrant Certificates to be exchanged shall be
surrendered to the Warrant Agent at its Corporate Office, and upon satisfaction
of the terms and provisions hereof, the Company shall execute, and the Warrant
Agent shall countersign, issue and deliver in exchange therefor the Warrant
Certificate or Certificates which the Registered Holder making the exchange
shall be entitled to receive.
(b) The Warrant Agent shall keep books at its office, in which it
shall register Warrant Certificates and the transfer thereof in accordance with
its regular practice. Upon due presentment for recordation of transfer of any
Warrant Certificate at its office, the Company shall execute and the Warrant
Agent shall issue and deliver to the transferee or transferees a new Warrant
Certificate or Certificates representing an equal aggregate number of Warrants.
(c) With respect to all Warrant Certificates presented for
recordation of transfer, or for exchange or exercise, the exercise form on the
reverse thereof shall be duly endorsed, or be accompanied by a written
instrument or instruments of transfer and exercise, in form satisfactory to the
Company, duly executed by the Registered Holder or his attorney-in-fact duly
authorized in writing.
(d) A service charge may be imposed by the Warrant Agent upon the
Company for any exchange or recordation of transfer of Warrant Certificates. The
Company
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may require payment by a Registered Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection therewith.
(e) Prior to due presentment for recordation of transfer thereof,
the Company and the Warrant Agent may deem and treat the Registered Holder of
any Warrant Certificate as the absolute owner thereof and of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made by anyone other than a duly authorized officer of the Company or
the Warrant Agent) for all purposes and shall not be affected by any notice to
the contrary. The Warrants, which the Company intends to publicly offer with the
Common Stock, will be separately transferable immediately following the
completion of the Public Offering.
SECTION 7. Loss or Mutilation. Upon receipt by the Company and the
Warrant Agent of evidence satisfactory to them of the ownership and loss, theft,
destruction or mutilation of any Warrant Certificate and (in case of loss, theft
or destruction) of indemnity satisfactory to them, and (in the case of
mutilation) upon surrender and cancellation thereof, the Company shall execute
and the Warrant Agent shall (in the absence of notice to the Company and/or
Warrant Agent that the Warrant Certificate has been acquired by a bona fide
purchaser) countersign and deliver to the Registered Holder in lieu thereof a
new Warrant Certificate of like tenor representing an equal aggregate number of
Warrants. Registered Holders requesting a substitute Warrant Certificate will be
required to comply with such other reasonable regulations and pay such other
reasonable charges as the Warrant Agent may prescribe.
SECTION 8. Adjustment of Exercise Price and Number of Shares of
Common Stock or Warrants.
(a) Subject to the exceptions referred to in Section 8(g) below, in
the event the Company shall, at any time or from time to time after the date
hereof, sell any shares of Common Stock for a consideration per share less than
the current fair market value per share of the Common Stock on the date of the
sale or issue any shares of Common Stock as a stock dividend to the holders of
Common Stock, or subdivide or combine the outstanding shares of Common Stock
into a greater or lesser number of shares (any such sale, issuance, subdivision
or combination being herein called a "Change of Shares"), then, and thereafter
upon each Change of Shares, the Exercise Price in effect immediately prior to
such Change of Shares shall be changed to a price (including any applicable
fraction of a cent) determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which shall be the sum
of the number of shares of Common Stock outstanding immediately prior to the
issuance of such additional shares plus the number of shares of Common Stock
which the aggregate consideration received (determined as provided in subsection
8(f)(F) below), if any, for the issuance of such additional shares would
purchase at such current market price per share of Common Stock, and the
denominator of which shall be the sum of the number of shares of Common Stock
outstanding immediately after the issuance of such additional shares. Such
adjustment shall be made successively whenever such an issuance is made.
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Upon each adjustment of the Exercise Price pursuant to this
Section 8, the total number of shares of Common Stock purchasable upon the
exercise of each Warrant shall (subject to the provisions contained in Section
8(b) hereof) be such number of shares (calculated to the nearest tenth)
purchasable at the Exercise Price immediately prior to such adjustment
multiplied by a fraction, the numerator of which shall be the Exercise Price in
effect immediately prior to such adjustment and the denominator of which shall
be the Exercise Price in effect immediately after such adjustment.
(b) The Company may elect, upon any adjustment of the Exercise Price
hereunder, to adjust the number of Warrants outstanding, in lieu of the
adjustment in the number of shares of Common Stock purchasable upon the exercise
of each Warrant as hereinabove provided, so that each Warrant outstanding after
such adjustment shall represent the right to purchase one quarter of a share of
Common Stock. Each Warrant held of record prior to such adjustment of the number
of Warrants shall become that number of Warrants (calculated to the nearest
tenth) determined by multiplying the number one by a fraction, the numerator of
which shall be the Exercise Price in effect immediately prior to such adjustment
and the denominator of which shall be the Exercise Price in effect immediately
after such adjustment. Upon each adjustment of the number of Warrants pursuant
to this Section 8, the Company shall, as promptly as practicable, cause to be
distributed to each Registered Holder of Warrant Certificates, on the date of
such adjustment, Warrant Certificates evidencing, subject to Section 10 hereof,
the number of additional Warrants to which such Holder shall be entitled as a
result of such adjustment or, at the option of the Company, cause to be
distributed to such Holder in substitution and replacement for the Warrant
Certificates held by him prior to the date of adjustment (and upon surrender
thereof, if required by the Company) new Warrant Certificates evidencing the
number of Warrants to which such Holder shall be entitled after such adjustment.
(c) In case of any reclassification, capital reorganization or other
similar change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock), or in
case of any sale or conveyance to another corporation of the property of the
Company as, or substantially as, an entirety (other than a sale/leaseback,
mortgage or other financing transaction), the Company shall cause effective
provision to be made so that each holder of a Warrant then outstanding shall
have the right thereafter, by exercising such Warrant, to purchase the kind and
number of shares of stock or other securities or property (including cash)
receivable upon such reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock that might have been purchased upon exercise of such Warrant
immediately prior to such reclassification, capital reorganization or other
similar change, consolidation, merger, sale or conveyance. Any such provision
shall include provision for adjustments that shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 8. The
foregoing provisions shall similarly apply to successive reclassifications,
capital
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reorganizations and other changes of outstanding shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
(d) Irrespective of any adjustments or changes in the Exercise Price
or the number of shares of Common Stock purchasable upon exercise of the
Warrants, the Warrant Certificates theretofore issued, unless the Company shall
exercise its option to issue new Warrant Certificates pursuant to Section 2(c)
hereof, need not be amended or replaced, but certificates thereafter issued
shall bear an appropriate legend or other notice of any adjustments.
(e) After each adjustment of the Exercise Price pursuant to this
Section 8, the Company will promptly prepare a certificate signed by the
Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (i) the
Exercise Price as so adjusted, (ii) the number of shares of Common Stock
purchasable upon exercise of each Warrant after such adjustment, and, if the
Company shall have elected to adjust the number of Warrants, the number of
Warrants to which the Registered Holder of each Warrant shall then be entitled,
and the adjustment in Redemption Price resulting therefrom, and (iii) a brief
statement of the facts accounting for such adjustment. The Company will promptly
file such certificate with the Warrant Agent and cause a brief summary thereof
to be sent by ordinary first class mail to the Representative and to each
Registered Holder at his last address as it shall appear on the registry books
of the Warrant Agent. The affidavit of an officer of the Warrant Agent or the
Secretary or an Assistant Secretary of the Company that such notice has been
mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
(f) For purposes of Section 8(a) and 8(b) hereof, the following
provisions (A) to (F) shall also be applicable:
(A) The number of shares of Common Stock outstanding at any
given time shall include shares of Common Stock owned or held by or
for the account of the Company and the sale or issuance of such
treasury shares or the distribution of any such treasury shares
shall not be considered a Change of Shares for purposes of said
sections.
(B) No adjustment of the Exercise Price shall be made unless
such adjustment would require an increase or decrease of at least
$.02 in such price; provided that any adjustments which by reason of
this clause (B) are not required to be made shall be carried forward
and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment(s) so
carried forward, shall require an increase or decrease of at least
$.02 in the Exercise Price then in effect hereunder.
(C) In case of (1) the sale by the Company for cash of any
rights or warrants to subscribe for or purchase, or any options for
the purchase of, Common Stock or any securities convertible into or
exchangeable for Common
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Stock without the payment of any further consideration other than
cash, if any (such convertible or exchangeable securities being
herein called "Convertible Securities"), or (2) the issuance by the
Company, without the receipt by the Company of any consideration
therefor, of any rights or warrants to subscribe for or purchase, or
any options for the purchase of, Common Stock or Convertible
Securities, in each case, if (and only if) the consideration payable
to the Company upon the exercise of such rights, warrants or options
shall consist of cash, whether or not such rights, warrants or
options, or the right to convert or exchange such Convertible
Securities, are immediately exercisable, and the price per share for
which Common Stock is issuable upon the exercise of such rights,
warrants or options or upon the conversion or exchange of such
Convertible Securities (determined by dividing (x) the minimum
aggregate consideration payable to the Company upon the exercise of
such rights, warrants or options, plus the consideration received by
the Company for the issuance or sale of such rights, warrants or
options, plus, in the case of such Convertible Securities, the
minimum aggregate amount of additional consideration, if any, other
than such Convertible Securities, payable upon the conversion or
exchange thereof, by (y) the total maximum number of shares of
Common Stock issuable upon the exercise of such rights, warrants or
options or upon the conversion or exchange of such Convertible
Securities issuable upon the exercise of such rights, warrants or
options) is less than the market price of the Common Stock on the
date of the issuance or sale of such rights, warrants or options,
then the total maximum number of shares of Common Stock issuable
upon the exercise of such rights, warrants or options or upon the
conversion or exchange of such Convertible Securities (as of the
date of the issuance or sale of such rights, warrants or options)
shall be deemed to be outstanding shares of Common Stock for
purposes of Sections 8(a) and 8(b) hereof and shall be deemed to
have been sold for cash in an amount equal to such price per share.
(D) In case of the sale by the Company for cash of any
Convertible Securities, whether or not the right of conversion or
exchange thereunder is immediately exercisable, and the price per
share for which Common Stock is issuable upon the conversion or
exchange of such Convertible Securities (determined by dividing (x)
the total amount of consideration received by the Company for the
sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, other than such
Convertible Securities, payable upon the conversion or exchange
thereof, by (y) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of such convertible
Securities) is less than the market price of the Common Stock on the
date of the sale of such Convertible Securities, then the total
maximum number of shares of Common Stock issuable upon the
conversion or exchange of such Convertible Securities (as of the
date of the sale of such Convertible Securities) shall be deemed to
be outstanding shares of Common Stock for purposes of Sections 8(a)
and 8(b)
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hereof and shall be deemed to have been sold for cash in an amount
equal to such price per share.
(E) If the exercise or purchase price provided for in any
right, warrant or option referred to in (C) above, or the rate at
which any Convertible Securities referred to in (C) or (D) above are
convertible into or exchangeable for Common Stock, shall change at
any time (other than under or by reason of provisions designed to
protect against dilution), the Exercise Price then in effect
hereunder shall forthwith be readjusted to such Exercise Price as
would have been obtained (1) had the adjustments made upon the
issuance or sale of such rights, warrants, options or Convertible
Securities been made upon the basis of the issuance of only the
number of shares of Common Stock theretofore actually delivered (and
the total consideration received therefor) upon the exercise of such
rights, warrants or options or upon the conversion or exchange of
such Convertible Securities, (2) had adjustments been made on the
basis of the Exercise Price as adjusted under clause (1) for all
transactions (which would have affected such adjusted Exercise
Price) made after the issuance or sale of such rights, warrants,
options or Convertible Securities, and (3) had any such rights,
warrants, options or Convertible Securities then still outstanding
been originally issued or sold at the time of such change. On the
expiration of any such right, warrant or option or the termination
of any such right to convert or exchange any such Convertible
Securities, the Exercise Price then in effect hereunder shall
forthwith be readjusted to such Exercise Price as would have been
obtained (a) had the adjustments made upon the issuance or sale of
such rights, warrants, options or Convertible Securities been made
upon the basis of the issuance of only the number of shares of
Common Stock theretofore actually delivered (and the total
consideration received therefor) upon the exercise of such rights,
warrants or options or upon the conversion or exchange of such
Convertible Securities and (b) had adjustments been made on the
basis of the Exercise Price as adjusted under clause (a) for all
transactions (which would have affected such adjusted Exercise
Price) made after the issuance or sale of such rights, warrants,
options or Convertible Securities.
(F) In case of the sale for cash of any shares of Common
Stock, any Convertible Securities, any rights or warrants to
subscribe for or purchase, or any options for the purchase of,
Common Stock or Convertible Securities, the consideration received
by the Company therefore shall be deemed to be the gross sales price
therefor without deducting therefrom any expense paid or incurred by
the Company or any underwriting discounts or commissions or
concessions paid or allowed by the Company in connection therewith.
(g) No adjustment to the Exercise Price of the Warrants or to the
number of shares of Common Stock purchasable upon the exercise of each Warrant
will be made, however,
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(i) upon the exercise of any of the options presently
outstanding under the Company's 1990 Stock Option Plan (the "1990
Stock Option Plan") for officers, directors and all employees of the
Company outstanding as of the date hereof; or
(ii) upon the issuance of any warrants issued pursuant to the
Company's 1991 Directors' Warrant Plan (the "1991 Warrant Plan"); or
(iii) upon the grant or exercise of any other options or
warrants which may hereafter be granted or exercised under the 1990
Stock Option Plan or under the 1991 Directors' Warrant Plan; or
(iv) upon the sale or exercise of the Warrants issued to the
Representative in connection with the Public Offering (the
"Underwriter's Warrants") or the exercise of the Warrants issuable
upon exercise of the Underwriter's Warrant; or
(v) upon the issuance or sale of Common Stock upon the
conversion of the Company's Class A Preferred Stock or Class B
Preferred Stock outstanding as of the date hereof; or
(vi) upon the issuance or sale of Common Stock upon conversion
or exchange of any convertible debentures outstanding as of the date
hereof; or
(vii) upon the issuance or sale of Common Stock upon the
exercise of warrants outstanding (other than those granted pursuant
to the 1991 Directors' Warrant Plan) as of the date of the Public
Offering; or
(viii) upon the sale or exercise of the Warrants; or
(ix) upon the issuance of any shares of Common Stock declared
or paid as dividends with respect to any Preferred Stock of the
Company outstanding as of the date hereof; or
(x) upon the issuance of any shares of Common Stock issued by
the Company pursuant to a Dividend Reinvestment Plan; or
(xi) upon the issuance of any shares of Common Stock issued
pursuant to the exercise of Options granted under a company Stock
Option Plan adopted by the Company for purposes of compensation to
the Company's employees, directors and representative]
(collectively, the "Exempt Securities")
(h) As used in this Section 8, the term "Common Stock" shall mean
and include the Common Stock authorized on the date of the original issue of the
Shares and Warrants and shall also include any capital stock of any class of the
Company thereafter
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authorized which shall not be limited to a fixed sum or percentage in respect of
the rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or winding up
of the Company; provided, however, that the shares issuable upon exercise of the
Warrants shall include only shares of such class designated in the Company's
Certificate of Incorporation, as amended, as Common Stock on the date of the
original issue of the Shares and Warrants or (i), in the case of any
reclassification, change, consolidation, merger, sale or conveyance of the
character referred to in Section 8(c) hereof, the stock, securities or property
provided for in such section or (ii), in the case of any reclassification or
change in the outstanding shares of Common Stock issuable upon exercise of the
Warrants as a result of a subdivision or combination or consisting of a change
in par value, or from par value to no par value, or from no par value to par
value, such shares of Common Stock as so reclassified or changed.
(i) Any determination as to whether an adjustment in the Exercise
Price in effect hereunder is required pursuant to Section 8, or as to the amount
of any such adjustment, if required, shall be binding upon the Registered
Holders of the Warrants and the Company if made in good faith by the Board of
Directors of the Company.
(j) If and whenever the Company shall declare any dividends or
distributions or grant to the holders of Common Stock, as such, rights or
warrants to subscribe for or to purchase, or any options for the purchase of,
Common Stock or securities convertible into or exchangeable for or carrying a
right, warrant or option to purchase Common Stock or, (other than Exempt
Securities), the Company shall notify each of the then Registered Holders of the
Warrants of such event prior to its occurrence to enable such Registered Holders
to exercise their Warrants and participate as holders of Common Stock in such
event.
SECTION 9. Redemption.
(a) On not less than thirty days' prior written notice at any time
commencing , 1996 and during the time the Warrants are outstanding, all of the
outstanding Warrants may be redeemed, at the option of the Company, at the
Redemption Price, provided that the closing bid price of the Common Stock as
reported by NASDAQ averages in excess of 200% of the Exercise Price of the
Warrants in effect at the time of determination for a period of 30 days ending
within 15 days of the Redemption Notice Date, subject to certain adjustment as
set forth in Section 9(f) below.
(b) In the event the conditions set forth in Section 9(a) are met,
and the Company shall desire to exercise its right so to redeem the Warrants, it
shall request the Warrant Agent to mail a Redemption Notice to each of the
Registered Holders of the Warrants to be redeemed, first class, postage prepaid,
not later than the thirtieth day before the date fixed for redemption, at his or
her last address as shall appear on the records of the Warrant Agent. Any notice
mailed in the manner provided herein shall be conclusively presumed to have been
duly given whether or not the Registered Holder receives such notice.
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(c) The Redemption Notice shall specify (i) the Redemption Price,
(ii) the Redemption Date, (iii) the place where the Warrant Certificates shall
be delivered and the Redemption Price to be paid, and (iv) that the right to
exercise the Warrant shall terminate at 5:00 P.M. (New York time) on the
Redemption Date. An affidavit of the Warrant Agent or of the Secretary or an
Assistant Secretary of the Company that the Redemption Notice has been mailed
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein.
(d) Provided that the Company has irrevocably provided for the
payment of the Redemption Price, any right to exercise a Warrant shall terminate
at 5:00 P.M. (New York time) on the Redemption Date. After 5:00 P.M. on the
Redemption Date, Registered Holders of the Warrants shall have no further
rights, except to receive upon surrender of the Warrant the Redemption Price.
(e) From and after 5:00 P.M. (New York time) on the Redemption Date,
the Company shall, at the place specified in the Redemption Notice, upon
presentation and surrender to the Company by or on behalf of the Registered
Holder thereof of one or more Warrants to be redeemed, deliver or cause to be
delivered to or upon the written order of such Registered Holder a sum in cash
equal to the Redemption Price of each such Warrant.
(f) If the Exercise Price is adjusted pursuant to Section 8 hereof,
the Redemption Price shall be proportionately adjusted by the ratio by which the
total number of shares of Common Stock outstanding immediately prior to such
event bears to the total number of shares of Common Stock to be outstanding
immediately after such event.
SECTION 10. Fractional Warrants and Fractional Shares.
(a) Regardless of whether or not the number of shares of Common
Stock purchasable upon the exercise of each Warrant is adjusted pursuant to
Section 8 hereof, the Company shall nevertheless not be required to issue
fractions of shares upon exercise of the Warrants or otherwise, or to distribute
certificates that evidence fractional shares. With respect to any fraction of a
share called for upon any exercise hereof, the Company shall pay to the
Registered Holder an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as follows:
(1) if the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange
or listed for trading on the Nasdaq National Market System ("NMS"),
the current market value shall be the last reported sale price of
the Common Stock on such exchange or system on the last business day
prior to the date of exercise; or
(2) if the Common Stock is listed in the over-the-counter
market (other than on NMS) or admitted to unlisted trading
privileges thereon, the current market value shall be the mean of
the last reported bid and asked prices reported by the National
Quotation Bureau, Inc. on the last business day prior to the date of
the exercise; or
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(3) if the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so
reported, the current market value shall be an amount determined in
such reasonable manner as may be prescribed by the Board of
Directors of the Company.
SECTION 11. Warrant Holders Not Deemed Stockholders. No Registered
Holder shall, as such, be entitled to vote or to receive dividends or be deemed
the holder of Common Stock that may at any time be issuable upon exercise of
such Warrants for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the holder of Warrants, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issue or reclassification of stock, change of par value or change of stock to no
par value, consolidation, merger or conveyance or otherwise), or to receive
notice of meetings, or to receive dividends or subscription rights, until such
Registered Holder shall have exercised such Warrants and been issued shares of
Common Stock in accordance with the provisions hereof.
SECTION 12. Rights of Action. All rights of action with respect to
this Agreement are vested in the respective Registered Holders of the Warrants,
and any Registered Holder of a Warrant, without consent of the Warrant Agent or
of the holder of any other Warrant, may, on his own behalf and for his own
benefit, enforce against the Company his right to exercise his Warrants for the
purchase of shares of Common Stock in the manner provided in the Warrant
Certificate and this Agreement.
SECTION 13. Agreement of Warrant Holders. Every holder of a Warrant,
by his acceptance thereof, consents and agrees with the Company, the Warrant
Agent and every other holder of a Warrant that:
(a) The Warrants are transferable only on the registry books of the
Warrant Agent by the Registered Holder thereof in person or by his
attorney-in-fact duly authorized in writing and only if the Warrant Certificates
representing such Warrants are surrendered at the office of the Warrant Agent,
duly endorsed or accompanied by a proper instrument of transfer satisfactory to
the Warrant Agent and the Company in their sole discretion, together with
payment of any applicable transfer taxes; and
(b) The Company may deem and treat the person in whose name the
Warrant Certificate is registered as the Registered Holder thereof and as the
absolute, true and lawful owner of the Warrants represented thereby for all
purposes, and the Company shall not be affected by any notice or knowledge to
the contrary, except as otherwise expressly provided in Section 7 hereof.
SECTION 14. Cancellation of Warrant Certificates. If the Company
shall purchase or acquire any Warrant or Warrants, whether upon exercise thereof
open market purchase, redemption or otherwise, the Warrant Certificate or
Warrant Certificates
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evidencing the same shall thereupon be cancelled by the Warrant Agent and
retired. The Warrant Agent shall also cancel Warrant Certificates surrendered to
the Warrant Agent following exercise of any or all of the Warrants represented
thereby or delivered to it for transfer, splitup, combination or exchange.
SECTION 15. Concerning the Warrant Agent. The Warrant Agent acts
hereunder as agent and in a ministerial capacity for the Company, and its duties
shall be determined solely by the provisions hereof. The Warrant Agent shall
not, by issuing and delivering Warrant Certificates or by any other act
hereunder be deemed to make any representations as to the validity, value or
authorization of the Warrant Certificates or the Warrants represented thereby or
of any securities or other property delivered upon exercise of any Warrant or
whether any stock issued upon exercise of any Warrant is fully paid and
nonassessable.
The Warrant Agent shall account promptly to the Company with respect
to Warrants exercised and concurrently pay the Company, as provided in Section
4, all moneys received by the Warrant Agent upon the exercise of such Warrants.
The Warrant Agent shall, upon request of the Company from time to time, deliver
to the Company such complete reports of registered ownership of the Warrants and
such complete records of transactions with respect to the Warrants and the
shares of Common Stock as the Company may request. The Warrant Agent shall also
make available to the Company for inspection by their agents or employees, from
time to time as either of them may request, such original books of accounts and
record as may be maintained by the Warrant Agent in connection with the issuance
and exercise of Warrants hereunder, such inspections to occur at the Warrant
Agent's office as specified in Section 17, during normal business hours.
The Warrant Agent shall not at any time be under any duty or
responsibility to any Registered Holder to make or cause to be made any
adjustment of the Exercise Price provided in this Agreement, or to determine
whether any fact exists which may require any such adjustments, or with respect
to the nature or extent of any such adjustment, when made, or with respect to
the method employed in making the same. It shall not (i) be liable for any
recital or statement of facts contained herein or for any action taken, suffered
or omitted by it in reliance on any Warrant Certificate or other document or
instrument believed by it in good faith to be genuine and to have been signed or
presented by the proper party or parties, (ii) be responsible for any failure on
the part of the Company to comply with any of its covenants and obligations
contained in this Agreement or in any Warrant Certificate, or (iii) be liable
for any act or omission in connection with this Agreement except for its own
negligence or wilful misconduct.
The Warrant Agent may at any time consult with counsel satisfactory
to it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel.
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Any notice, statement, instruction, request, direction, order or
demand of the Company shall be sufficiently evidenced by an instrument signed by
the Chairman of the Board, President, any Vice President, its Secretary, or
Assistant Secretary (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable for any action
taken, suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand believed by it to be genuine.
The Company agrees to pay the Warrant Agent reasonable compensation
for its services hereunder and to reimburse it for its reasonable expenses
hereunder; it further agrees to indemnify the Warrant Agent and save it harmless
against any and all losses, expenses and liabilities, including judgments, costs
and counsel fees, for anything done or omitted by the Warrant Agent in the
execution of its duties and powers hereunder except losses, expenses and
liabilities arising as a result of the Warrant Agent's negligence or wilful
misconduct.
The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own negligence or wilful misconduct), upon 30 days' prior
written notice to the Company and the Company may discharge the Warrant Agent
from its duties and liabilities hereunder upon 30 days' prior written notice to
the Warrant Agent. At least 15 days prior to the date such resignation or
discharge is to become effective, the Warrant Agent shall cause a copy of such
notice of resignation or discharge to be mailed to the Registered Holder of each
Warrant Certificate at the Company's expense. Upon such resignation or
discharge, or any inability of the Warrant Agent to act as such hereunder, the
Company shall appoint a new warrant agent in writing. If the Company shall fail
to make such appointment within a period of 15 days after it has been notified
in writing of such resignation by the resigning Warrant Agent, or within a
period of 15 days after the Warrant Agent has been notified by the Company of
such discharge, then the Registered Holder of any Warrant Certificate may apply
to any court of competent jurisdiction for the appointment of a new warrant
agent. Any new warrant agent, whether appointed by the Company or by such a
court, shall be a bank or trust company having a capital and surplus, as shown
by its last published report to its stockholders, of not less than $10,000,000
or a stock transfer company. After acceptance in writing of such appointment by
the new warrant agent is received by the Company, the Warrant Agent's
resignation or discharge shall be deemed to be effective and such new warrant
agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named herein as the Warrant Agent, without any
further assurance, conveyance, act or deed; but if for any reason it shall be
necessary or expedient to execute and deliver any further assurance, conveyance,
act or deed, the same shall be done at the expense of the Company and shall be
legally and validly executed and delivered by the resigning Warrant Agent. Not
later than the effective date of any such appointment the Company shall file
notice thereof with the resigning Warrant Agent and shall forthwith cause a copy
of such notice to be mailed to the Registered Holder of each Warrant
Certificate.
Any corporation into which the Warrant Agent or any new warrant
agent may be converted or merged or any corporation resulting from any
consolidation to which the Warrant Agent or any new warrant agent shall be a
party or any corporation succeeding to the
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trust business of the Warrant Agent shall be a successor warrant agent under
this Agreement without any further act, provided that such corporation is
eligible for appointment as successor to the Warrant Agent under the provisions
of the preceding paragraph. Any such successor warrant agent shall promptly
cause notice of its succession as warrant agent to be mailed to the Company and
to the Registered Holder of each Warrant Certificate.
The Warrant Agent, its subsidiaries and affiliates, and any of its
or their officers or directors, may buy and hold or sell Warrants or other
securities of the Company and otherwise deal with the Company in the same manner
and to the same extent and with like effects as though it were not Warrant
Agent. Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
SECTION 16. Modification of Agreement.
(a) Subject to the provisions of Section 4(b), the parties hereto
may by supplemental agreement make any changes or corrections in this Agreement
(i) that they shall deem appropriate to cure any ambiguity or to correct any
defective or inconsistent provision or manifest mistake or error herein
contained; (ii) to reflect an increase in the number of Warrants which are to be
governed by this Agreement resulting from an increase in the size of the Public
Offering; or (iii) that they may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Warrant Certificates; provided,
however, that except as otherwise indicated in this Section and this Agreement,
this Agreement shall not otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered Holders of Warrant
Certificates representing not less than two-thirds of the Warrants then
outstanding.
(b) The Company, shall have the right to reduce the Exercise Price
for a period of not less than thirty days on not less than thirty days, prior
written notice to the Registered Holders of the Warrants.
SECTION 17. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
made when delivered or mailed first class registered or certified mail, postage
prepaid as follows: if to the Registered Holder of a Warrant Certificate, at the
address of such holder as shown on the registry books maintained by the Warrant
Agent; if to the Company, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Financial Officer; if to the
Warrant Agent, at its Corporate Office.
SECTION 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey, without
reference to principles of conflict of laws.
SECTION 19. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company and the Warrant Agent (and their respective
successors and assigns) and the holders from time to time of Warrant
Certificates. Nothing in
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this Agreement is intended or shall be construed to confer upon any other person
any right, remedy or claim, in equity or at law, or to impose upon any other
person any duty, liability or obligation.
SECTION 20. Termination. This Agreement shall terminate on the
earliest to occur of (i) the Expiration Date of all the Warrants, (ii) the date
upon which all Warrants have been exercised and (iii) the date on which the
Company certifies to the Warrant Agent that no Warrants are outstanding;
provided however, that notwithstanding any such termination, the Warrant Agent
shall be obligated to deliver funds to the Company in accordance with this
Agreement.
SECTION 21. Counterparts. This Agreement may be executed in all
counterparts, all of which taken together shall constitute a single document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INC.
By: ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive
Officer
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: _______________________________
Authorized Officer
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_____________ WARRANTS WARRANT
NO.____
NOT EXERCISABLE AFTER 5:00 P.M.,
(NEW YORK CITY TIME), ON __________ ___, 1999,
OR SUCH EARLIER DATE AS PROVIDED HEREIN
▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INC.
COMMON STOCK
NASDAQ: BARRW PURCHASE WARRANTS CUSIP ▇▇▇▇▇▇▇▇▇
THIS CERTIFIES THAT:
or registered assigns is the registered holder (the "Registered Holder") of the
number of Warrants set forth above, each of which represents the right to
purchase one-quarter of a fully paid and nonassessable share of common stock,
par value $.01 per share (the "Common Stock"), of ▇▇▇▇▇▇▇▇▇ Technologies Inc., a
Delaware corporation (the "Company"), at any time until the Expiration Date
hereinafter referred to, by surrendering this Warrant Certificate, with the
exercise form set forth hereon duly executed with signatures guaranteed as
provided below, at the office maintained pursuant to the Warrant Agreement
hereinafter referred to for that purpose by American Stock Transfer & Trust
Company, or its successor as warrant agent (any such warrant agent being herein
called the "Warrant Agent"), and by paying in full the Exercise Price, plus
transfer taxes, if any. Payment of the Exercise Price shall be made in United
States currency, by certified check or money order payable to the order of the
Company.
Upon certain events provided for in the Warrant Agreement, the Exercise
Price and the number of shares of Common Stock issuable upon the exercise of
each Warrant are required to be adjusted.
The Warrants are subject to call for redemption by the Company at a price
of $0.25 per Warrant (the "Redemption Price") commencing on , 1997
provided that (i) the Company provides written notice (the "Redemption Notice")
of redemption to the Registered Holder and the Warrant Agent at least thirty
days' prior to the redemption date , and (ii) the average bid price per share
of the Common Stock as reported by NASDAQ exceeds 200% of the then current
Exercise Price for a period of 30 days ending within 15 days of the date that
the Redemption Notice is given by the Company to the Warrant Agent and
Registered Holders.
No Warrant may be exercised after 5:00 P.M. (New York City time) on the
expiration date (the "Expiration Date") which will be the earlier of (i)
__________ ___, 1999 and (ii) the business day preceding the redemption date
specified in a Redemption Notice. After the Expiration Date, all Warrants
evidenced hereby shall thereafter become void, and the holders thereof shall
have not rights thereunder, except for the right to receive the Redemption
Price, if applicable.
21
Prior to the Expiration Date, subject to any applicable laws, rules or
regulations restricting transferability and to any restriction on
transferability that may appear on this Warrant Certificate in accordance with
the terms of the Warrant Agreement hereinafter referred to, the Registered
Holder shall be entitled to transfer this Warrant Certificate in whole or in
part upon surrender of this Warrant Certificate at the office of the Warrant
Agent maintained for that purpose with the form of assignment set forth hereon
duly executed, with signatures guaranteed by a member firm of a national
securities exchange, a commercial bank, a savings bank or a savings and loan
association or a trust company located in the United States, a member of the
National Association of Securities Dealers, Inc. or other eligible guarantor
institution which is a participant in a signature guarantee program (as such
terms are defined in Reg. 240.17Ad-15 under the Securities Exchange Act of 1934)
applicable to the Warrant Agent. Upon any such transfer, a new Warrant
Certificate or Warrant Certificates representing the same aggregate number of
Warrants will be issued in accordance with the instructions in the form of
assignment.
Upon the exercise of less than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the Registered Holder a new
Warrant Certificate in respect of the Warrants not exercised.
Prior to the Expiration Date, the Registered Holder shall be entitled to
exchange this Warrant Certificate, with or without other Warrant Certificates,
for another Warrant Certificate or Warrant Certificates for the same aggregate
number of Warrants, upon surrender of this Warrant Certificate at the office
maintained for such purpose by the Warrant Agent.
No fractional shares will be issued upon the exercise of Warrants. As to
any final fraction of a share, which the registered holder of one or more
Warrant Certificates, the rights under which are exercised in the same
transaction, would otherwise be entitled to purchase upon such exercise, the
Company shall pay the cash value thereof determined as provided in the Warrant
Agreement.
This Warrant Certificate is issued under and in accordance with a Warrant
Agreement between the Company and the Warrant Agent (the "Warrant Agreement")
and is subject to the terms and provisions contained in said Warrant Agreement,
to all of which terms and provisions the Registered Holder consents by
acceptance hereof.
This Warrant Certificate shall not entitle the Registered Holder to any of
the rights of a stockholder of the Company, including, without limitation, the
right to vote, to receive dividends and other distributions, or to attend or
receive any notice of meetings of stockholders or any other proceedings of the
Company.
This Warrant Certificate shall not be valid for any purpose until it shall
have been countersigned by the Warrant Agent.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
COUNTERSIGNED:
DATED: AMERICAN STOCK TRANSFER & TRUST
COMPANY NEW YORK, NEW YORK
WARRANT AGENT
▇▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
_____________________________ BY:__________________________________
SECRETARY AUTHORIZED SIGNATURE
CHAIRMAN OF THE BOARD
23
EXERCISE FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to exercise
Warrants represented by this Warrant Certificate, and to purchase
the securities issuable upon the exercise of such Warrants, and requests that
certificates for such securities shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
____________________________
____________________________
____________________________
____________________________
[please print or type name and address]
and be delivered to
____________________________
____________________________
____________________________
____________________________
[please print or type name and address]
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated above.
Accepted and Agreed To:
X______________________________
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Address:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Tax Payer Identification Number
-------------------------------
Signature Guaranteed
-------------------------------
A-2
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ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
___________________________
___________________________
___________________________
___________________________
[please print or type name and address]
_________________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitutes and appoints
_____________________________________________________________________
Attorney-in-fact to transfer this Warrant Certificate on the books of the
Company, with full power of substitution in the premises.
Dated:_________________________________________
Signed: _______________________________________
Signature Guaranteed: _________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE EXERCISE FORM MUST CORRESPOND TO THE NAME
AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY A COMMERCIAL BANK, TRUST COMPANY SAVINGS BANK OR SAVINGS AND LOAN
ASSOCIATION OR A MEMBER FIRM OF THE AMERICAN STOCK EXCHANGE, NEW YORK STOCK
EXCHANGE, PACIFIC STOCK EXCHANGE OR MIDWEST STOCK EXCHANGE.
A-3