EXHIBIT 4.1
UNDERWRITER'S WARRANT AGREEMENT (the "Underwriter's Warrant Agreement"
or "Agreement"), dated as of ____________, 2000, between n-Gen
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc. (the
"Underwriter").
W I T N E S S E T H:
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WHEREAS, the Underwriter has agreed, pursuant to the underwriting
agreement (the "Underwriting Agreement") dated as of the date hereof
between the Company and the Underwriter, to act as the Underwriter in
connection with the Company's proposed public offering (the "Public
Offering") of 1,600,000 shares of the Company's Common Stock at $5.00 per
share and 1,600,000 Warrants ("Public Warrants") at $.125 per Public
Warrant; and
WHEREAS, the Company proposes to issue to the Underwriter and/or
persons related to the Underwriter as those persons are defined in Rule
2710 of the NASD Conduct Rules (the "Holder"), 160,000 warrants ("Common
Stock Underwriter Warrants") to purchase 160,000 shares of the Company's
Common Stock (the "Shares") and 160,000 warrants ("Warrant Underwriter
Warrants") to purchase 160,000 Common Stock Purchase Warrants ("Underlying
Warrants") exercisable to purchase 160,000 shares of the Company's Common
Stock. The "Common Stock Underwriter Warrants" and the "Warrant
Underwriter Warrants" are collectively referred to as the "Warrants". The
"Shares" and the "Underlying Warrants" are collectively referred to as the
"Warrant Securities"; and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued on the Closing Date (as such term is defined in the Underwriting
Agreement) by the Company to the Holders in consideration for, and as part
of the compensation in connection with, the Underwriter acting as
Underwriter pursuant to the Underwriting Agreement.
NOW, THEREFORE, in consideration of the premises, the payment to the
Company of TEN DOLLARS AND NO CENTS ($10.00), the agreements herein set
forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant and Period.
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The above recitals are true and correct. The Public Offering has been
registered under a Registration Statement on Form SB-2 (File No. 333-_____)
and declared effective by the Securities and Exchange Commission (the "SEC"
or "Commission") on _______, 2000 (the "Effective Date"). This Agreement,
relating to the purchase of the Warrants, is entered into pursuant to the
Underwriting Agreement between the Company and the Underwriter in
connection with the Public Offering.
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Pursuant to the Warrants, the Holders are hereby granted the right to
purchase from the Company, at any time during the period commencing on the
Effective Date and expiring five (5) years thereafter (the "Expiration
Time"), up to 160,000 Shares at an initial exercise price (subject to
adjustment as provided in Article 8 hereof) of $8.00 per share (160% of the
public offering price) and/or 200,000 non-redeemable Underlying Warrants at
an initial exercise price of $.20 per warrant (160% of the public offering
price) (the "Exercise Price" or "Purchase Price"), subject to the terms and
conditions of this Agreement. Each Underlying Warrant is exercisable to
purchase one (1) share of Common Stock at $8.80 per share (160% of the
Public Warrant exercise price) during the five (5) year period commencing
on the Effective Date.
Except as specifically otherwise provided herein, the Shares and the
Underlying Warrants constituting the Warrant Securities shall bear the same
terms and conditions as such securities described under the caption
"Description of Securities" in the Registration Statement, and as
designated in the Company's Articles of Incorporation and any amendments
thereto, and the Underlying Warrants shall be governed by the terms of the
Warrant Agreement executed in connection with the Company's public offering
(the "Warrant Agreement"), except as provided herein, and the Holders shall
have registration rights under the Securities Act of 1933, as amended (the
"Act"), for the Warrants, the Shares, the Underlying Warrants, and the
shares of Common Stock underlying the Underlying Warrants, as more fully
described in paragraph seven (7) of this Underwriter's Warrant Agreement.
In the event of any extension or change of the expiration date or reduction
or change of the exercise price of the Public Warrants, the same expiration
date and percentage price change to the Underlying Warrants shall be
simultaneously effected, except that the Underlying Warrants shall expire
no later than five (5) years from the Effective Date.
2. Warrant Certificates.
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The warrant certificates (the "Warrant Certificate") delivered and to
be delivered pursuant to this Agreement shall be in the form set forth in
the form of Warrant Certificate, attached hereto and made a part hereof,
with such appropriate insertions, omissions, substitutions, and other
variations as required or permitted by this Agreement.
3. Exercise of Warrant.
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3.1 Full Exercise.
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(i) The Holder may effect a cash exercise of the Common Stock
Underwriter Warrants and/or the Warrant Underwriter Warrants and/or
the Underlying Warrants by surrendering to the Company the Warrant
Certificate, together with a Subscription in the form of Exhibit "A"
attached thereto, duly executed by
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such Holder, at any time prior to the Expiration Time, at the
Company's principal office, accompanied by payment in cash or by
certified or official bank check payable to the order of the Company
in the amount of the aggregate purchase price (the "Aggregate Price"),
subject to any adjustments provided for in this Agreement. The
aggregate price hereunder for each Holder shall be equal to the
exercise price as set forth in Section six (6) hereof multiplied by
the number of Warrants, Underlying Warrants or Shares that are the
subject of each Holder's Warrant (as adjusted as hereinafter
provided).
(ii) The Holder hereof may effect a cashless exercise of the
Common Stock Underwriter Warrants and/or the Underlying Warrants by
delivering the Warrant Certificate to the Company together with a
Subscription in the form of Exhibit "B" attached thereto, duly
executed by such Holder, in which case no payment of cash will be
required. Upon such cashless exercise, the number of Shares to be
purchased by each Holder hereof shall be determined by dividing: (i)
the number obtained by multiplying the number of Shares that are the
subject of each Holder's Warrant Certificate by the amount, if any, by
which the then Market Value (as hereinafter defined) exceeds the
Purchase Price; by (ii) the then per share Market Value or Purchase
Price, whichever is greater. In no event shall the Company be
obligated to issue any fractional securities and, at the time it
causes a certificate or certificates to be issued, it shall pay the
Holder in lieu of any fractional securities or shares to which such
Holder would otherwise be entitled, by the Company check, in an amount
equal to such fraction multiplied by the Market Value. The Market
Value shall be determined on a per Share basis as of the close of the
business day preceding the exercise, which determination shall be made
as follows: (a) if the Common Stock is listed for trading on a
national or regional stock exchange or is included on the NASDAQ
National Market or Small-Cap Market, the average closing sale price
quoted on such exchange or the NASDAQ National Market or Small-Cap
Market which is published in THE WALL STREET JOURNAL for the three (3)
trading days immediately preceding the date of exercise, or if no
trade of the Common Stock shall have been reported during such period,
the last sale price so quoted for the next day prior thereto on which
a trade in the Common Stock was so reported; or (b) if the Common
Stock is not so listed, admitted to trading or included, the average
of the closing highest reported bid and lowest reported ask price as
quoted on the National Association of Securities Dealer's OTC Bulletin
Board or in the "pink sheets" published by the National Daily
Quotation Bureau for the first day immediately preceding the date of
exercise on which the Common Stock is traded.
3.2 Partial Exercise. The securities referred to in
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paragraph 3.1 above also may be exercised from time to time in part by
surrendering the Warrant Certificate in the manner specified in Section 3.1
hereof, except that with respect to a cash exercise, the Purchase Price
payable shall be equal to the number of securities being purchased
hereunder multiplied by the per security Purchase Price, subject to any
adjustments provided for in this Agreement. Upon any such partial
exercise, the Company, at its expense, will forthwith issue to the Holder
hereof a new Warrant Certificate or Warrants of like tenor calling in the
aggregate for the number of securities (as constituted as of the date
hereof) for which the Warrant Certificate shall not have been exercised,
issued in the name of the Holder hereof or as such Holder (upon payment by
such Holder of any applicable transfer taxes) may direct.
4. Issuance of Certificates.
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Upon the exercise of the Warrants and/or the Underlying Warrants, the
issuance of certificates for the shares of Common Stock and/or other
securities shall be made forthwith (and in any event within three (3)
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Sections
5 and 7 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificates in
a name other than that of the Holder and the Company shall not be required
to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
The Warrant Certificates and the certificates representing the shares
of Common Stock and/or other securities shall be executed on behalf of the
Company by the manual or facsimile signature of the then present Chairman
or Vice Chairman of the Board of Directors or President or Vice President
of the Company, attested to by the manual or facsimile signature of the
then present Secretary or Assistant Secretary of the Company. Warrant
Certificates shall be dated the date of execution by the Company upon
initial issuance, division, exchange, substitution or transfer.
5. Restriction On Transfer of Warrants.
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The Holder of a Warrant Certificate, by acceptance thereof, covenants
and agrees that the Warrants may not be sold, transferred, assigned,
hypothecated or otherwise disposed of, in whole or in part, for a period of
one (1) year from the Effective Date of the Public Offering, except (a) to
officers of the Underwriter or to officers and partners of the Selected Dealers
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participating in the Public Offering; (b) by will; or (c) by operation of law.
6. Exercise Price.
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6.1 Initial and Adjusted Exercise Prices.
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The initial exercise price of each Common Stock Underwriter Warrant
shall be $8.00 per share (160% of the public offering price). The initial
exercise price of each Warrant Underwriter Warrant shall be $.20 per
Underlying Warrant (160% of the public offering price). The initial
exercise price of each Underlying Warrant shall be $8.80 per share (160% of
the Public Warrant exercise price). The adjusted exercise price shall be
the price which shall result from time to time from any and all adjustments
of the initial exercise price in accordance with the provisions of Section
8 hereof. The Warrant Underwriter Warrants and the Underlying Warrants are
exercisable during the five (5) year period commencing on the Effective
Date.
6.2 Exercise Price.
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The term "Exercise Price" herein shall mean the initial exercise price
or the adjusted exercise price, depending upon the context.
7. Registration Rights.
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7.1 Registration Under the Securities Act of 1933.
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The Warrants, the Shares, the Underlying Warrants and the shares of
Common Stock issuable upon exercise of the Underlying Warrants
(collectively the "Registrable Securities") have been registered under the
Securities Act of 1933, as amended (the "Act"). Upon exercise, in part or
in whole, of the Warrants, certificates representing the Shares, the
Underlying Warrants and/or the shares of Common Stock issuable upon
exercise of the Underlying Warrants shall bear the following legend in the
event there is no current registration statement effective with the
Commission at such time as to such securities:
The securities represented by this certificate may not be offered
or sold except pursuant to (i) an effective registration
statement under the Act, (ii) to the extent applicable, Rule 144
under the Act (or any similar rule under such Act relating to the
disposition of securities), or (iii) an opinion of counsel, if
such opinion shall be reasonably satisfactory to counsel to the
issuer, that an exemption from registration under such Act and
applicable state securities laws is available.
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7.2 Piggyback Registration.
----------------------
If, at any time commencing after the Effective Date of the offering
and expiring seven (7) years thereafter, the Company prepares and files a
post-effective amendment to the Registration Statement, or a new
Registration Statement under the Act, or files a Notification on Form 1-A
or otherwise registers securities under the Act, or files a similar
disclosure document with the Commission (collectively the "Registration
Documents") as to any of its securities under the Act (other than under a
Registration Statement pursuant to Form S-8), it will give written notice
by registered mail, at least thirty (30) days prior to the filing of each
such Registration Document, to the Underwriter and to all other Holders of
the Registrable Securities of its intention to do so. If the Underwriter
and/or other Holders of the Registrable Securities notify the Company
within twenty (20) days after receipt of any such notice of its or their
desire to include any such Registrable Securities in such proposed
Registration Documents, the Company shall afford the Underwriter and such
Holders of such Registrable Securities the opportunity to have any
Registrable Securities registered under such Registration Documents or any
other available Registration Document.
Notwithstanding the provisions of this Section 7.2, the Company shall
have the right at any time after it shall have given written notice
pursuant to this Section 7.2 (irrespective of whether a written request for
inclusion of any such securities shall have been made) to elect not to file
any such proposed registration statement, or to withdraw the same after the
filing but prior to the effective date thereof.
7.3 Demand Registration.
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(a) At any time commencing one (1) year after the Effective Date of
the Public Offering, and expiring four (4) years thereafter, the Holders of
Registrable Securities representing more than 50% of such securities at
that time outstanding shall have the right (which right is in addition to
the registration rights under Section 7.2 hereof), exercisable by written
notice to the Company, to have the Company prepare and file with the
Commission, on one occasion, a registration statement and/or such other
documents, including a prospectus, and/or any other appropriate disclosure
document as may be reasonably necessary in the opinion of both counsel for
the Company and counsel for the Underwriter and Holders, in order to comply
with the provisions of the Act, so as to permit a public offering and sale
of their respective Registrable Securities for nine (9) consecutive months
(or such longer period of time as permitted by the Act) by such Holders and
any other Holders of any of the Registrable Securities who notify the
Company within twenty (20) days after receipt of notice by registered or
certified mail from the Company of such request. A Demand Registration
shall not be counted as a Demand Registration hereunder until such Demand
Registration has been declared
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effective by the SEC and maintained continuously effective for a period of
at least nine months or such shorter period when all Registrable Securities
included therein have been sold in accordance with such Demand
Registration, provided that a Demand Registration shall be counted as a
Demand Registration hereunder if the Company ceases its efforts in respect
of such Demand Registration at the request of the majority Holders making
the demand for a reason other than a material and adverse change in the
business, assets, prospects or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole.
(b) The Company covenants and agrees to give written notice by
registered or certified mail, of any registration request under this
Section 7.3 by the majority of the Holders to all other registered Holders
of any of the Registrable Securities within ten (10) days from the date of
the receipt of any such registration request.
(c) In addition to the registration rights under Section 7.2 and
subsection (a) of this Section 7.3, at any time commencing one (1) year
after the Effective Date of the offering, and expiring four (4) years
thereafter, the Holders of a majority of the Registrable Securities shall
have the right, exercisable by written request to the Company, to have the
Company prepare and file, on one occasion, with the Commission a
registration statement or any other appropriate disclosure document so as
to permit a public offering and sale for nine (9) consecutive months (or
such longer period of time as permitted by the Act) by any such Holder of
Registrable Securities; provided, however, that the provisions of Section
7.4(b) hereof shall not apply to any such registration request and
registration and all costs incident thereto shall be at the expense of the
Holder or Holders participating in the offering pro-rata.
(d) Any written request by the Holders made pursuant to this Section
7.3 shall:
(i) specify the number of Registrable Securities which the
Holders intend to offer and sell and the minimum price at which the
Holders intend to offer and sell such securities;
(ii) state the intention of the Holders to offer such securities
for sale;
(iii) describe the intended method of distribution of such
securities; and
(iv) contain an undertaking on the part of the Holders to provide
all such information and materials concerning the Holders and take all
such action as may be reasonably required to permit the Company to
comply with all applicable requirements of the Commission and to
obtain acceleration
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of the effective date of the registration statement.
(e) In the event the Company receives from the Holders of any
Registrable Securities representing more than 50% of such securities at
that time outstanding, a request that the Company effect a registration on
Form S-3 with respect to the Registrable Securities and if Form S-3 is
available for such offering, the Company shall, as soon as practicable,
effect such registration as would permit or facilitate the sale and
distribution of the Registrable Securities as are specified in the request.
All expenses incurred in connection with a registration requested pursuant
to this Section shall be borne by the Company. Registrations effected
pursuant to this Section 7.3(e) shall not be counted as registrations
pursuant to Section 7.3(a) and 7.3(c) hereof.
7.4 Covenants of the Company With Respect to Registration.
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In connection with the filing of any Registration Document by the
Company, the Company covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand pursuant to
Section 7.3, and shall use its best efforts to have any such registration
statement declared effective at the earliest practicable time. The Company
will promptly notify each seller of such Registrable Securities and confirm
such advice in writing, (i) when such registration statement becomes
effective, (ii) when any post-effective amendment to such registration
statement becomes effective and (iii) of any request by the SEC for any
amendment or supplement to such registration statement or any prospectus
relating thereto or for additional information.
The Company shall furnish to each seller of such Registrable
Securities such number of copies of such registration statement and of each
such amendment and supplement thereto (in each case including each
preliminary prospectus and summary prospectus) in conformity with the
requirements of the Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller.
(b) The Company shall pay all costs (excluding transfer taxes, if
any, and fees and expenses of Holder(s)' counsel and the Holder's pro-rata
portion of the selling discount or commissions), fees and expenses in
connection with all registration statements filed pursuant to Sections 7.2
and 7.3(a) hereof including, without limitation, the Company's legal and
accounting fees, printing expenses, blue sky fees and expenses. The
Holder(s) will pay all costs, fees and expenses in connection with any
registration statement filed pursuant to Section 7.3(c). If the Company
shall fail to comply with the provisions of Section
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7.3(a), the Company shall, in addition to any other equitable or other
relief available to the Holder(s), be liable for any or all special and
consequential damages sustained by the Holder(s) requesting registration of
their Registrable Securities.
(c) The Company shall prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be reasonably necessary to keep such
registration statement effective for at least nine months (or such longer
period as permitted by the Act), and to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the seller or sellers of Registrable Securities
set forth in such registration statement. If at any time the SEC should
institute or threaten to institute any proceedings for the purpose of
issuing a stop order suspending the effectiveness of any such registration
statement, the Company will promptly notify each seller of such Registrable
Securities and will use all reasonable efforts to prevent the issuance of
any such stop order or to obtain the withdrawal thereof as soon as
possible. The Company will use its good faith reasonable efforts and take
all reasonably necessary action which may be required in qualifying or
registering the Registrable Securities included in a registration statement
for offering and sale under the securities or blue sky laws of such states
as reasonably are required by the Holder(s), provided that the Company
shall not be obligated to execute or file any general consent to service of
process or to qualify as a foreign corporation to do business under the
laws of any such jurisdiction. The Company shall use its good faith
reasonable efforts to cause such Registrable Securities covered by such
registration statement to be registered with or approved by such other
governmental agencies or authorities of the United States or any State
thereof as may be reasonably necessary to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities.
(d) The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement and each
person, if any, who controls such Holders within the meaning of Section 15
of the Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of them
may become subject under the Act, the Exchange Act or otherwise, arising
from such registration statement but only to the same extent and with the
same effect as the provisions pursuant to which the Company has agreed to
indemnify the Underwriter as contained in the Underwriting Agreement.
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(e) If requested by the Company prior to the filing of any
registration statement covering the Registrable Securities, each of the
Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage or expense or liability (including all expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to
which they may become subject under the Act, the Exchange Act or otherwise,
arising from written information furnished by such Holder, or their
successors or assigns, for specific inclusion in such registration
statement to the same extent and with the same effect as the provisions
contained in the Underwriting Agreement pursuant to which the Underwriter
has agreed to indemnify the Company, except that the maximum amount which
may be recovered from each Holder pursuant to this paragraph or otherwise
shall be limited to the amount of net proceeds received by the Holder from
the sale of the Registrable Securities.
(f) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise their Warrants or Underlying Warrants
prior to the filing of any registration statement or the effectiveness
thereof.
(g) The Company shall not permit the inclusion of any securities
other than the Registrable Securities to be included in any registration
statement filed pursuant to Section 7.3 hereof without the prior written
consent of the Holders of the Registrable Securities representing a
majority of such securities.
(h) The Company shall furnish to each Holder participating in the
offering and to each underwriter, if any, a signed counterpart, addressed
to such Holder or underwriter, of (i) an opinion of counsel to the Company,
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, an opinion dated the
date of the closing under the underwriting agreement), and (ii) a "cold
comfort" letter dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, a
letter dated the date of the closing under the underwriting agreement)
signed by the independent public accountants who have issued a report on
the Company's financial statements included in such registration statement,
in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of such accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to underwriters
in underwritten public offerings of securities.
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(i) The Company shall deliver promptly to each Holder participating
in the offering and to the managing underwriter copies of all
correspondence between the Commission and the Company, its counsel or
auditors and all non-privileged memoranda relating to discussions with the
Commission or its staff with respect to the registration statement and
permit each Holder and underwriter to do such investigation, upon
reasonable advance notice, with respect to information contained in or
omitted from the registration statement as it deems reasonably necessary to
comply with applicable securities laws or rules of the National Association
of Securities Dealers, Inc. ("NASD"). Such investigation shall include
access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to
such reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request.
(j) With respect to a registration statement filed pursuant to
Section 7.3, the Company, if requested, shall enter into an underwriting
agreement with the managing underwriter, reasonably satisfactory to the
Company, selected for such underwriting by Holders holding a majority of
the Registrable Securities requested to be included in such underwriting.
Such agreement shall be satisfactory in form and substance to the Company,
each Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such other
terms as are customarily contained in agreements of that type used by the
managing underwriter. The Holders, if required by the Underwriter to be
parties to any underwriting agreement relating to an underwritten sale of
their Registrable Securities, may, at their option, require that any or all
the representations, warranties and covenants of the Company to or for the
benefit of such underwriters shall also be made to and for the benefit of
such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution.
(k) Notwithstanding the provisions of paragraph 7.2 or paragraph 7.3
of this Agreement, the Company shall not be required to effect or cause the
registration of Registrable Securities pursuant to paragraph 7.2 or
paragraph 7.3 hereof if, within thirty (30) days after its receipt of a
request to register such Registrable Securities (i) counsel for the Company
delivers an opinion to the Holders requesting registration of such
Registrable Securities, in form and substance satisfactory to counsel to
such Holder(s), to the effect that the entire number of Registrable
Securities proposed to be sold by such Holder(s) may otherwise be sold, in
the manner proposed by such Holder(s), without registration under the
Securities Act, or (ii) the SEC shall have issued a no-action position, in
form and substance satisfactory to counsel for the Holder(s) requesting
registration of such
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Registrable Securities, to the effect that the entire number of Registrable
Securities proposed to be sold by such Holder(s) may be sold by it, in the
manner proposed by such Holder(s), without registration under the
Securities Act.
(l) After completion of the Public Offering, the Company shall not,
directly or indirectly, enter into any merger, business combination or
consolidation in which (a) the Company shall not be the surviving
corporation and (b) the stockholders of the Company are to receive, in
whole or in part, capital stock or other securities of the surviving
corporation, unless the surviving corporation shall, prior to such merger,
business combination or consolidation, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Securities" shall be deemed to include
the securities which the Holders would be entitled to receive in exchange
for Registrable Securities under any such merger, business combination or
consolidation, provided that to the extent such securities to be received
are convertible into shares of Common Stock of the issuer thereof, then any
such shares of Common Stock as are issued or issuable upon conversion of
said convertible securities shall also be included within the definition of
"Registrable Securities".
8. Adjustments to Exercise Price and Number of Securities.
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8.1 Adjustment for Dividends, Subdivisions, Combinations or
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Reclassifications.
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In case the Company shall (a) pay a dividend or make a distribution in
shares of its capital stock (whether shares of Common Stock or of capital
stock of any other class), (b) subdivide its outstanding shares of Common
Stock into a greater number of shares, (c) combine its outstanding shares
of Common Stock into a smaller number of shares, or (d) issue by
reclassification of its shares of Common Stock any shares of capital stock
of the Company; then, and in each such case, the per share Exercise Price
and the number of Warrant Securities in effect immediately prior to such
action shall be adjusted so that the Holder of this Warrant thereafter upon
the exercise hereof shall be entitled to receive the number and kind of
shares of the Company which such Holder would have owned immediately
following such action had this Warrant been exercised immediately prior
thereto. An adjustment made pursuant to this Section shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or reclassification. If, as
a result of an adjustment made pursuant to this Section, the Holder of this
Warrant shall become entitled to receive shares of two or more classes of
capital stock of the Company, the Board of Directors of the Company (whose
determination shall be conclusive) shall determine the allocation of the
adjusted Exercise Price
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between or among shares of such class of capital stock.
Immediately upon any adjustment of the Exercise Price pursuant to this
Section, the Company shall send written notice thereof to the Holder of
Warrant Certificates (by first class mail, postage prepaid), which notice
shall state the Exercise Price resulting from such adjustment, and any
increase or decrease in the number of Warrant Securities to be acquired
upon exercise of the Warrants, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
8.2 Adjustment For Reorganization, Merger or Consolidation.
------------------------------------------------------
In case of any reorganization of the Company or consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not
result in any reclassification or change of the outstanding Common Stock),
the corporation formed by such consolidation or merger shall execute and
deliver to the Holder a supplemental Warrant Agreement providing that the
Holder of each Warrant then outstanding or to be outstanding shall have the
right thereafter (until the expiration of such Warrant) to receive, upon
exercise of such warrant, the kind and amount of shares of stock and other
securities and property receivable upon such consolidation or merger, by a
holder of the number of shares of Common Stock of the Company for which
such warrant might have been exercised immediately prior to such
reorganization, consolidation, merger, conveyance, sale or transfer. Such
supplemental Warrant Agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 8 and such registration
rights and other rights as provided in this Agreement. The Company shall
not effect any such consolidation, merger, or similar transaction as
contemplated by this paragraph, 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,
receiving, or leasing such assets or other appropriate corporation or
entity shall assume, by written instrument executed and delivered to the
Holders, the obligation to deliver to the Holders, such shares of stock,
securities, or assets as, in accordance with the foregoing provisions, such
holders may be entitled to purchase, and to perform the other obligations
of the Company under this Agreement. The above provision of this
Subsection shall similarly apply to successive consolidations or
successively whenever any event listed above shall occur.
8.3 Dividends and Other Distributions.
---------------------------------
In the event that the Company shall at any time prior to the exercise
of all of the Warrants and/or Underlying Warrants distribute to its
stockholders any assets, property, rights, evidences of indebtedness,
securities (other than a distribution
13
made as a cash dividend payable out of earnings or out of any earned
surplus legally available for dividends under the laws of the jurisdictions
of incorporation of the Company), whether issued by the Company or by
another, the Holders of the unexercised Warrants shall thereafter be
entitled, in addition to the shares of Common Stock or other securities and
property receivable upon the exercise thereof, to receive, upon the
exercise of such Warrants, the same property, assets, rights, evidences of
indebtedness, securities or any other thing of value that they would have
been entitled to receive at the time of such distribution as if the
Warrants had been exercised immediately prior to such distribution. At the
time of any such distribution, the Company shall make appropriate reserves
to ensure the timely performance of the provisions of this subsection or an
adjustment to the Exercise Price, which shall be effective as of the day
following the record date for such distribution.
8.4 Adjustment in Number of Securities.
----------------------------------
Upon each adjustment of the Exercise Price pursuant to the provisions
of this Section 8, the number of securities issuable upon the exercise of
each Warrant and/or Underlying Warrant shall be adjusted to the nearest
full amount by multiplying a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of securities issuable
upon exercise of the Warrants and/or the Underlying Warrants immediately
prior to such adjustment and dividing the product so obtained by the
adjusted Exercise Price.
8.5 No Adjustment of Exercise Price in Certain Cases.
------------------------------------------------
No adjustment of the Exercise Price shall be made if the amount of
said adjustment shall be less than 5 cents ($.05) per Share, provided,
however, that in such case any adjustment that would otherwise be required
then 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 so carried forward, shall amount to at least 5 cents ($.05) per
Share.
8.6 Accountant's Certificate of Adjustment.
--------------------------------------
In each case of an adjustment or readjustment of the Exercise Price or
the number of any securities issuable upon exercise of the Warrants and/or
Underlying Warrants, the Company, at its expense, shall cause independent
certified public accountants of recognized standing selected by the Company
(who may be the independent certified public accountants then auditing the
books of the Company) to compute such adjustment or readjustment in
accordance herewith and prepare a certificate showing such adjustment or
readjustment, and shall mail such certificate, by first class mail, postage
prepaid, to any Holder(s) of the Warrants and/or Underlying Warrants at the
Holder(s) address as shown on the Company's books.
14
The certificate shall set forth such adjustment or readjustment, showing in
detail the facts upon which such adjustment or readjustment is based
including, but not limited to, a statement of (i) the Exercise Price at the
time in effect, and (ii) the number of additional or fewer securities and
the type and amount, if any, of other property which at the time would be
receivable upon exercise of the Warrants and/or Underlying Warrants.
8.7 Adjustment of Underlying Warrant Exercise Price.
-----------------------------------------------
With respect to any of the Underlying Warrants whether or not the
Underlying Warrants have been exercised (or are exercisable) and whether or
not the Underlying Warrants are issued and outstanding, the Underlying
Warrant exercise price and the number of shares of Common Stock underlying
such Underlying Warrants shall be automatically adjusted in accordance with
the Warrant Agreement between the Company and the Company's transfer agent,
upon occurrence of any of the events relating to adjustments described
therein. Thereafter, the Underlying Warrants shall be exercisable at such
adjusted Underlying Warrant exercise price for such adjusted number of
underlying shares of Common Stock or other securities, properties or
rights.
9. Exchange and Replacement of Warrant Certificates.
------------------------------------------------
Each Warrant Certificate is exchangeable without expense, upon the
surrender thereof by the registered Holder at the principal executive
office of the Company, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of
securities in such denominations as shall be designated by the Holder
thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate,
and, in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation
of the Warrants, if mutilated, the Company will make and deliver a new
Warrant Certificate of like tenor, in lieu thereof.
10. Elimination of Fractional Interest.
----------------------------------
The Company shall not be required to issue certificates representing
fractions of shares of Common Stock upon the exercise of the Warrants
and/or Underlying Warrants, nor shall it be required to issue script or pay
cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests may be eliminated, at the Company's option,
by rounding any fraction up to the nearest whole number of shares of Common
Stock or other securities, properties or rights, or in lieu thereof
15
paying cash equal to such fractional interest multiplied by the current
value of a share of Common Stock.
11. Reservation, Validity and Listing.
---------------------------------
The Company covenants and agrees that during the exercise period, the
Company shall at all times reserve and keep available out of its authorized
shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrants and the Underlying Warrants, such number of shares
of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise under this Warrant Certificate. The Company
covenants and agrees that, upon exercise of the Warrants and/or the
Underlying Warrants, and payment of the Exercise Price therefor, all shares
of Common Stock and other securities issuable upon such exercise shall be
duly authorized, validly issued, fully paid, non-assessable and not subject
to the preemptive rights of any stockholder. As long as the Warrants
and/or Underlying Warrants shall be outstanding, the Company shall use its
best efforts to cause all shares of Common Stock issuable upon the exercise
of the Warrants and the Underlying Warrants to be listed and quoted
(subject to official notice of issuance) on all securities exchanges and
systems on which the Common Stock and/or the Public Warrants are then
listed and/or quoted, including Nasdaq.
12. Notices to Warrant Holders.
--------------------------
Nothing contained in this Agreement shall be construed as conferring
upon the Holders of the Warrants and/or Underlying Warrants the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other matter,
or as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrants and/or
Underlying Warrants and their exercise, any of the following events shall
occur:
(a) the Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital
stock of the Company, or any option, right or warrant to subscribe
therefor; or
(c) a dissolution, liquidation or winding up of the
16
Company (other than in connection with a consolidation or merger) or
a sale of all or substantially all of its property, assets and
business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written
notice of such event at least fifteen (15) days prior to the date fixed as
a record date of the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale.
Such notices shall specify such record date or the date of closing the
transfer books, as the case may be. Failure to give such notice or any
defect therein shall not affect the validity of any action taken in
connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription
rights, options or warrants, or any proposed dissolution, liquidation,
winding up or sale.
13. Underlying Warrants.
-------------------
The form of the certificate representing the Underlying Warrants (and
the form of election to purchase shares of Common Stock upon the exercise
of the Underlying Warrants and the form of assignment printed on the
reverse thereof) shall be substantially as set forth in the exhibits to the
Warrant Agreement. Subject to the terms of this Agreement, one (1)
Underlying Warrant shall evidence the right to initially purchase one (1)
fully-paid and non-assessable share of Common Stock at an initial purchase
price of $8.80 during the five (5) year period commencing on the Effective
Date of the Registration Statement, at which time the Underlying Warrants,
unless the exercise period has been extended, shall expire. The exercise
price of the Underlying Warrants and the number of shares of Common Stock
issuable upon the exercise of the Underlying Warrants are subject to
adjustment, whether or not the Warrants have been exercised and the
Underlying Warrants have been issued, in the manner and upon the occurrence
of the events set forth in the Warrant Agreement, which is hereby
incorporated herein by reference and made a part hereof as if set forth in
its entirety herein. Subject to the provisions of this Agreement and upon
issuance of the Underlying Warrants, each registered holder of such
Underlying Warrant shall have the right to purchase from the Company (and
the Company shall issue to such registered holders) up to the number of
fully-paid and non-assessable shares of Common Stock (subject to adjustment
as provided in the Warrant Agreement) set forth in such Warrant
Certificate, free and clear of all preemptive rights of stockholders,
provided that such registered Holder complies with the terms governing
exercise of the Underlying Warrant set forth in the Warrant Agreement, and
pays the applicable exercise price, determined in accordance with the terms
of the Warrant Agreement. Upon exercise of the Underlying Warrants, the
17
Company shall forthwith issue to the registered Holder of any such
Underlying Warrant in his name or in such name as may be directed by him,
certificates for the number of shares of Common Stock so purchased. Except
as otherwise provided herein and in this Agreement, the Underlying Warrants
shall be governed in all respects by the terms of the Warrant Agreement.
The Underlying Warrants shall be transferrable in the manner provided in
the Warrant Agreement, and upon any such transfer, a new Underlying Warrant
certificate shall be issued promptly to the transferee. The Company
covenants to send to each Holder, irrespective of whether or not the
Warrants have been exercised, any and all notices required by the Warrant
Agreement to be sent to holders of Underlying Warrants.
14. Notices.
-------
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly given when sent
(i) by facsimile; AND (ii)delivered personally or by overnight courier or
mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of any of the Registrable
Securities, to the address of such Holder as shown on the books of the
Company; or
(b) If to the Company, to the address set forth below or to such
other address as the Company may designate by notice to the Holders.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Berenbaum, Weinshienk & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
15. Entire Agreement: Modification.
------------------------------
This Agreement (and the Underwriting Agreement and Warrant Agreement
to the extent applicable) contain the entire understanding between the
parties hereto with respect to the
18
subject matter hereof, and the terms and provisions of this Agreement may
not be modified, waived or amended except in a writing executed by the
Company and the Holders of at least a majority of Registrable Securities
(based on underlying numbers of shares of Common Stock). Notice of any
modification, waiver or amendment shall be promptly provided to any Holder
not consenting to such modification, waiver or amendment.
16. Successors.
----------
All the covenants and provisions of this Agreement shall be binding
upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
17. Termination.
-----------
This Agreement shall terminate at the earlier of (i) the public sale
of all of the Registrable Securities; or (ii) at the close of business on
________, 2007. Notwithstanding the foregoing, the indemnification
provisions of Section 7 shall survive such termination.
18. Governing Law; Submission to Jurisdiction.
-----------------------------------------
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Florida and for
all purposes shall be construed in accordance with the laws of said State
without giving effect to the rules of said State governing the conflicts of
laws. The Company, the Underwriter and the Holders hereby agree that any
action, proceeding or claim arising out of, or relating in any way to, this
Agreement shall be brought and enforced in a federal or state court of
competent jurisdiction with venue only in the Fifteenth Judicial Circuit
Court in and for Palm Beach County, Florida or the United States District
Court for the Southern District of Florida, West Palm Beach Division, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company, the Underwriter and the Holders hereby irrevocably
waive any objection to such exclusive jurisdiction or inconvenient forum.
A party to this Agreement named as a Defendant in any action brought in
connection with this Agreement in any court outside of the above named
designated county or district shall have the right to have the venue of
said action changed to the above designated county or district or, if
necessary, have the case dismissed, requiring the other party to refile
such action in an appropriate court in the above designated county or
federal district.
19. Severability.
------------
If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provision of this Agreement.
19
20. Captions.
--------
The caption headings of the Sections of this Agreement are for
convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive
effect.
21. Benefits of this Agreement.
--------------------------
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and the Underwriter and any other
registered Holder(s) of the Warrant Certificates or Registrable Securities
any legal or equitable right, remedy or claim under this Agreement; and
this Agreement shall be for the sole and exclusive benefit of the Company
and the Underwriter and any other Holder(s) of the Warrant Certificates or
Registrable Securities.
22. Counterparts.
------------
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
BY:____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
Attest:
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC.
By:______________________________________
▇▇▇▇▇▇ ▇▇▇▇, President
20
n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY
SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR
(iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY
SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M, EASTERN TIME ON ___________, 2005
NO. W-_____
__________ Common Stock __________ Warrant
Underwriter Underwriter
Warrants Warrants
or
__________ Underlying
Warrants
This Warrant Certificate certifies that _______________, or registered
assigns, is the registered holder of __________ Common Stock Underwriter
Warrants and/or __________ Warrant Underwriter Warrants and/or __________
Underlying Warrants of n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company"). Each
Common Stock Underwriter Warrant permits the Holder hereof to purchase
initially, at any time from ________, 2000 ("Purchase Date") until 5:30
p.m. Eastern Time on _______, 2005 ("Expiration Date"), one (1) share of
the Company's Common Stock at the initial exercise price, subject to
adjustment in certain events (the "Exercise Price"), of $8.00 per
share (160% of the public offering price). Each Warrant Underwriter
Warrant permits the Holder hereof to purchase initially, at any time from
the Purchase Date until five (5) years from the Purchase Date, one (1)
Underlying Warrant at the Exercise Price of $.20 per Underlying Warrant.
Each Underlying Warrant permits the Holder thereof to purchase, at any time
from the Purchase Date until five (5) years from the Purchase Date, one
(1) share of the Company's Common Stock at the Exercise Price of $8.80 per
share.
21
Any exercise of Common Stock Underwriter Warrants and/or Warrant
Underwriter Warrants and/or Underlying Warrants shall be effected by
surrender of this Warrant Certificate and payment of the Exercise Price at
an office or agency of the Company, but subject to the conditions set forth
herein and in the Underwriter's Warrant Agreement dated as of _______,
2000, between the Company and ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc. (the
"Underwriter's Warrant Agreement"). Payment of the Exercise Price shall be
made by wire transfer to the account of the Company or by certified check
or official bank check in New York Clearing House funds payable to the
order of the Company in the event there is no cashless exercise pursuant to
Section 3.1(ii) of the Underwriter's Warrant Agreement. The Common Stock
Underwriter Warrants, the Warrant Underwriter Warrants, and the Underlying
Warrants are collectively referred to as "Warrants".
No Warrant may be exercised after 5:30 p.m., Eastern Time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Underwriter's Warrant
Agreement, which Underwriter's Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to
for a description of the rights, limitation or rights, obligations, duties
and immunities thereunder of the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Underwriter's Warrant Agreement provides that upon the occurrence
of certain events, the Exercise Price and the type and/or number of the
Company's securities issuable thereupon may, subject to certain conditions,
be adjusted. In such event, the Company will, at the request of the
holder, issue a new Warrant Certificate evidencing the adjustment in the
Exercise Price and the number and/or type of securities issuable upon the
exercise of the Warrants; provided, however, that the failure of the
Company to issue such new Warrant Certificates shall not in any way change,
alter, or otherwise impair, the rights of the holder as set forth in the
Underwriter's Warrant Agreement.
Upon due presentment for registration or transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Underwriter's Warrant Agreement, without any charge
except for any tax or other governmental charge imposed in connection with
such transfer.
22
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of
any exercise hereof, and of any distribution to the holder(s) hereof, and
for all other purposes, and the Company shall not be affected by any notice
to the contrary.
All terms used in this Warrant Certificate which are defined in the
Underwriter's Warrant Agreement shall have the meanings assigned to them in
the Underwriter's Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated as of _______, 2000
n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
BY:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
Attest:
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
23
EXHIBIT "A"
FORM OF SUBSCRIPTION (CASH EXERCISE)
------------------------------------
(To be signed only upon exercise of Warrant)
TO: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned, the Holder of Warrant Certificate number _____ (the
"Warrant"), representing __________ Common Stock Underwriter Warrants
and/or __________ Warrant Underwriter Warrants and/or __________ Underlying
Warrants of n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company"), which Warrant
Certificate is being delivered herewith, hereby irrevocably elects to
exercise the purchase right provided by the Warrant Certificate for, and to
purchase thereunder, __________ Shares and/or __________ Underlying
Warrants of the Company, and herewith makes payment of $__________
therefor, and requests that the certificates for such securities be issued
in the name of, and delivered to, ___________________________________,
whose address is ______________________________________________________
_______________________________________________________________________,
all in accordance with the Underwriter's Warrant Agreement and the Warrant
Certificate.
Dated: ____________________
_____________________________________
(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant Certificate)
_____________________________________
_____________________________________
(Address)
_____________________________________
(Social Security Number or Tax
Identification Number)
24
EXHIBIT "B"
FORM OF SUBSCRIPTION (CASHLESS EXERCISE)
----------------------------------------
TO: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned, the Holder of Warrant Certificate number _____ (the
"Warrant"), representing ___________ Common Stock Underwriter Warrants
and/or ___________ Underlying Warrants of n-Gen ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the
"Company"), which Warrant is being delivered herewith, hereby irrevocably
elects the cashless exercise of the purchase right provided by the
Underwriter's Warrant Agreement and the Warrant Certificate for, and to
purchase thereunder, Shares of the Company in accordance with the formula
provided at Section three (3) of the Underwriter's Warrant Agreement. The
undersigned requests that the certificates for such Shares be issued in the
name of, and delivered to, _________________________________, whose address
is, ___________________________________________________________________
_______________________________________________________________________,
all in accordance with the Warrant Certificate.
Dated: _____________________
_____________________________________
(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant Certificate)
_____________________________________
_____________________________________
(Address)
_____________________________________
(Social Security Number or Tax
Identification Number)
25
(FORM OF ASSIGNMENT)
(To be exercised by the registered holder if such
holder desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED __________________________________________________
hereby sells, assigns and transfers unto
(Print name and address of transferee)
this Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint _________
___________________________________ Attorney, to transfer the within
Warrant Certificate on the books of the within-named Company, with full
power of substitution.
Dated: Signature:
________________________ _____________________________________
(Signature must conform in all respects
to name of holder as specified on the
fact of the Warrant Certificate)
_____________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
26