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EXHIBIT 4.6
VERIDIEN CORPORATION
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY
WARRANT AGREEMENT
REGARDING WARRANTS TO PURCHASE
COMMON STOCK
OF
VERIDIEN CORPORATION
SERIES 2
Dated as of October 19, 1995
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TABLE OF CONTENTS
RECITALS Page
Section 1 Appointment of Warrant Agent 3
Section 2 Form of Warrant 3
Section 3 Countersignature and Registration 3
Section 4 Transfers and Exchanges 4
Section 5 Exercise of Warrants 4
Section 6 Mutilated or Missing Warrants 5
Section 7 Reservation of Shares of Common Stock 5
Section 8 Warrant Price 6
Section 9 Adjustments 6
Section 10 Fractional Interest 12
Section 11 Notices to Warrant Holders 13
Section 12 Registration Rights 13
Section 13 Indemnity 15
Section 14 Disposition of Proceeds on Exercise of Warrants 16
Section 15 Restrictions on Transfer 16
Section 16 Investment Representation 17
Section 17 Merger or Consolidation or Change of Name of Warrant Agent 18
Section 18 Duties of Warrant Agent 18
Section 19 Change of Warrant Agent 20
Section 20 Identity of Transfer Agent 20
Section 21 Notices 20
Section 22 Supplements and Amendments 21
Section 23 Successors 21
Section 24 Interpretation 21
Section 25 Benefits of This Agreement 21
Section 26 Counterparts 21
EXHIBIT A (Forms of Warrants, Election to
Purchase and Assignment)
This Table of Contents does not constitute a part of this Agreement or have any
bearing upon the interpretation of any of its terms and provisions.
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SERIES 2 WARRANT AGREEMENT dated as of the 19TH day of October, 1995,
by and between VERIDIEN CORPORATION, a Delaware corporation (hereinafter called
the "Company") and AMERICAN STOCK TRANSFER AND TRUST COMPANY as warrant agent
(hereinafter called the "Warrant Agent").
WITNESSETH:
WHEREAS, the Company proposes to issue to Dunvegan Mortgage
Corporation, or its assigns, Warrants (the "Warrant" or the "Warrants") to
purchase up to 32,875,089 shares of the Common Stock, $0.001 par value of the
Company (the "Common Stock") pursuant to the terms of that certain Loan and
Security Agreement of even date herewith between the Company and Dunvegan
Mortgage Corporation:
WHEREAS, each Warrant entitles the holder thereof to purchase one (1)
share of Common Stock for a price of $0.001 per share (the "Warrant Price") up
to and including 5:00 p.m. E.S.T. on November 18, 2000, the "Expiration Date".
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 exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT
The Company hereby appoints the Warrant Agent to act as warrant agent
for the Company in accordance with the instructions hereinafter in this
Agreement set forth, and the Warrant Agent hereby accepts such appointment.
SECTION 2. FORM OF WARRANT
The Warrant Certificates shall be issued in registered form only and
the text of the Warrants and of the subscription form and assignment to be
printed on the reverse thereof shall be substantially as set forth in Exhibit
"A" attached hereto. The per share warrant price and the number of shares of
Common Stock issuable upon exercise of the Warrants are subject to adjustments
upon the occurrence of certain events, all as hereinafter provided. The Warrants
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future President or Vice President of the Company, under
its corporate seal, affixed or in facsimile, attested by the manual or facsimile
signature of the present or any future Secretary or Assistant Secretary of the
Company.
Warrants shall be dated as of the date of issuance by the Warrant Agent
either upon initial issuance or upon transfer or exchange.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION
The Warrant Agent shall maintain books for the transfer and
registration of Warrants. Upon the initial issuance of the Warrants, the Warrant
Agent shall issue and register the Warrants in the names of the respective
holders thereof. The Warrants shall be countersigned manually or by facsimile by
the Warrant Agent (or by any successor to the Warrant Agent then acting as
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warrant agent under this Agreement) and shall not be valid for any purpose
unless so countersigned. Warrants may be so countersigned, however, by the
Warrant Agent (or by its successor as warrant agent) and be delivered by the
Warrant Agent, notwithstanding that the persons whose manual or facsimile
signatures appear thereon as proper officers of the Company shall have ceased to
be such officers at the time of such countersignature or delivery.
SECTION 4. TRANSFERS AND EXCHANGES
The Warrant Agent shall maintain books for the transfer and
registration of the Warrant Certificates. The Warrant Certificates shall be
numbered and shall be registered in a warrant register (the "Warrant Register")
as they are issued. The Warrant Agent shall transfer, from time to time, any
outstanding Warrants upon the books to be maintained by the Warrant Agent for
the purpose, upon surrender thereof for transfer properly endorsed with the form
of assignment on the reverse of the certificate duly completed and signed, or
accompanied by appropriate instructions for transfer together with any
applicable transfer taxes or duties. Upon any such transfer, a new Warrant shall
be issued to the transferee and the surrendered Warrant shall be canceled by the
Warrant Agent. Warrants so canceled shall be delivered by the Warrant Agent to
the Company from time to time upon request. The Company and the Warrant Agent
shall be entitled to treat the registered holders as the owners, in fact, of the
Warrants (notwithstanding any notice to the contrary) for all purposes and shall
not be bound to recognize any equitable or other claim to or interest in such
Warrant Certificates on the part of any other person and shall not be liable for
any registration of transfer of Warrant Certificates which are registered or to
be registered in the name of a fiduciary or nominee of a fiduciary unless made
with the actual knowledge that a fiduciary or nominee is committing a breach of
trust in requesting such registration or transfer, or with knowledge of such
facts that its participation therein amounts to bad faith.
SECTION 5. EXERCISE OF WARRANTS
Subject to the provisions of this Agreement, each registered holder of
the Warrants shall have the right which may be exercised commencing upon the
date of the closing effecting the issuance of such Warrants, and which shall
terminate at 5:00 p.m. E.S.T. on November 18, 2000 (the Expiration Date") to
purchase from the Company (and the Company shall issue and sell to such
registered holder of Warrants) the number of fully paid and non-assessable
shares of Common Stock specified in such Warrants, upon surrender to the Company
at the office of the Warrant Agent in New York City, New York of such Warrants,
with the subscription form on the reverse thereof duly completed and signed and
upon payment to the Company of the Warrant Price in United States currency, as
defined in Section 8 hereof, determined in accordance with the provisions of
Section 9 of this Agreement, for the number of shares of Common Stock in respect
of which such Warrants are then exercised. Payment of such Warrant Price
together with any applicable transfer taxes or duties shall be made in cash or
by certified check or bank draft payable to the order of the Company. Subject to
the terms hereof, no adjustment shall be made for any cash dividends on any
Common Shares issuable upon exercise of a Warrant. Upon such surrender of
Warrants and payment of the Warrant Price as aforesaid, the Company shall issue
and cause to be delivered with all reasonable dispatch to or upon the written
order of the registered holder of such Warrants and in such name or names as
such registered holder may designate, a certificate or certificates for the
number of full shares of Common Stock so purchased upon the exercise of such
Warrants. Such certificate or certificates shall be deemed to have been issued
and any person so designated to be named therein shall be deemed to have become
a holder of record of such shares of Common Stock as of the date of the
surrender of such Warrants and payment of the Warrant Price as aforesaid;
provided, however, that if, at the date of surrender of such Warrants and
payment of such Warrant Price, the transfer books for the
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shares of Common Stock or other class of stock purchasable upon the exercise of
such Warrants shall be closed, the certificates for the shares of Common Stock
in respect to which such Warrants are then exercised shall be issuable as of the
next date on which such books shall be opened, and until such date, the Company
shall be under no duty to deliver any certificate for such shares of Common
Stock; provided, further, however, that the transfer books aforesaid, unless
otherwise required by law or by applicable rule of any national securities
exchange, shall not be closed at any one time for a period longer than twenty
(20) days. All shares of Common Stock issued upon exercise of the Warrant shall
be validly issued as fully paid and non-assessable. The rights of purchase
represented by the Warrants shall be exercisable, at the election of the
registered holders thereof, either entirely or from time to time for a portion
or all the shares of Common Stock specified therein and, in the event that any
Warrant is exercised in respect of less than all of the shares of Common Stock
specified therein at any time prior to the date of expiration of the Warrant, a
new Warrant will be issued to such registered holder for the remaining full
number of shares of Common Stock specified in the Warrant so surrendered, and
the Warrant Agent is hereby irrevocably authorized to countersign and to deliver
by first-class mail within ten (10) days of the exercise of the warrants, the
required new Warrant pursuant to the provisions of this Section and of Section 3
of this Agreement and the Company, whenever requested by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purposes. In no event shall a fraction of a Warrant he issued or
exercised. After the Expiration Date, any unexercised Warrants will be void and
all rights of registered holders shall cease.
In lieu of cash the holder of any Warrants may tender as the exercise
price of such Warrants the promissory notes of the Company issued pursuant to
the Loan and Security Agreement of even date herewith.
Provided that the Company has issued all of the Warrants contemplated
in this Warrant Agreement, then in the event of a default by Dunvegan Mortgage
Corporation under the terms of the Loan and Security Agreement between Dunvegan
Mortgage Corporation and the Company, and the Company not being in default
thereunder, fifty (50%) of the Warrants then outstanding shall expire within one
year from the date of the notice of such default by the Company to Dunvegan.
SECTION 6. MUTILATED OR MISSING WARRANT
In case any of the Warrants shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue and the Warrant Agent shall
countersign and deliver in exchange and substitution for and upon cancellation
of the mutilated Warrant, or in lieu of and substitution for the Warrant lost,
stolen or destroyed, a new Warrant of like tenor and representing an equivalent
right or interest, but only upon receipt of evidence satisfactory to the Company
and the warrant Agent of such loss, theft or destruction of such Warrant and
indemnity, if requested, also satisfactory to them. Applicants for such
substitute Warrants shall also comply with such other reasonable regulations and
pay such reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 7. RESERVATION OF SHARES OF COMMON STOCK
There have been reserved, and the Company shall at all times keep
reserved out of the authorized and unissued shares of Common Stock, a number of
shares of Common Stock sufficient to provide for the exercise of the rights of
purchase represented by the Warrants, and the Warrant Agent as transfer agent
for the Common Stock and every subsequent transfer agent
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for any shares of the Company's capital stock issuable upon the exercise of any
of the rights of purchase aforesaid are hereby irrevocably authorized and
directed at all times to reserve such number of authorized and unissued shares
of Common Stock as shall be requisite for such purpose. The Company agrees that
all shares of Common Stock issued upon exercise of the Warrants shall be, at the
time of delivery of the certificates for such shares of Common Stock, validly
issued and outstanding as fully paid and non-assessable and eligible for
inclusion on NASDAQ, and/or listed on any national securities exchange upon
which the other shares of Common Stock are then listed on, and/or eligible for
inclusion on NASDAQ prior to the date that the Warrants shall be exercisable as
provided in Section 5 hereof.
The Company will keep a copy of this Agreement on file with the Warrant
Agent as transfer agent for the Common Stock and with every subsequent transfer
agent for any shares of the Company's capital stock issuable upon the exercise
of the rights of purchase represented by the Warrants. The Warrant Agent is
hereby irrevocably authorized to requisition from time to time from such
Transfer Agent stock certificates required to honor outstanding Warrants. The
Company will supply such Transfer Agent with duly executed stock certificates
for such purpose and will itself provide or otherwise make available any cash
which may be issuable only if so provided in Section 11 of this Agreement. All
Warrants surrendered in the exercise of the rights thereby evidenced shall be
canceled by the Warrant Agent and shall thereafter be delivered to the Company,
and such canceled Warrants shall constitute sufficient evidence of the number of
shares of Common Stock which have been issued upon the exercise of such
Warrants. Promptly after the date of expiration of the Warrants, the Warrant
Agent shall certify to the Company the total aggregate amount of Warrants then
outstanding, and thereafter no shares of Common Stock shall be subject to
reservation in respect to such Warrants which shall have expired.
SECTION 8. WARRANT PRICE
The "Warrant Price" at which shares of Common Stock shall be
purchasable pursuant to the Warrants shall be $0.001 per share until 5:00 p.m.
E.S.T. on November 18, 2000 "Expiration Date", subject to the adjustments set
forth below.
SECTION 9. ADJUSTMENTS
Subject and pursuant to the provisions of this Section, the Warrant
Price and number of shares of Common Stock subject to these Warrants shall be
subject to adjustment from time to time only as set forth hereinafter:
A. Adjustment of Warrant Price and Number of Shares of Common Stock
Purchasable Upon Exercise
The Warrant Price and the number of Shares of Common Stock purchasable
upon exercise shall be subject to adjustment from time to time in the cases and
in the manner provided as follows:
1. If and whenever at any time after the date hereof and prior to
the Expiration Date the Company shall:
(a) issue shares of Common Stock or securities
exchangeable for or convertible into shares of Common Stock to all or
substantially all the holders of the shares of Common Stock as a stock
dividend (other than as a dividend paid in the ordinary course);
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(b) make a distribution on its outstanding shares of
Common Stock payable in shares of Common Stock or securities
exchangeable for or convertible into shares of Common Stock (other than
as a dividend paid in the ordinary course);
(c) subdivide its outstanding shares of Common Stock into
a greater number of shares; or
(d) consolidate its outstanding shares of Common Stock
into a smaller number of shares;
each of such events in the above clauses (a), (b), (c) and (d) being called a
"Common Share Reorganization", then the Warrant Price shall be adjusted as of
the effective date or record date, as the case may be, at which the holders of
shares of Common Stock are determined for the purpose of the Common Share
Reorganization by multiplying the Warrant Price in effect immediately prior to
such effective date or record date by a fraction,
(i) the numerator of which shall be the number of shares
of Common Stock outstanding on such effective date or record
date before giving effect to such Common Share Reorganization;
and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding as of the effective date or
record date giving effect to such Common share Reorganization
(including, in the case where securities exchangeable for or
convertible into shares of Common Stock are distributed, the
number of shares of Common Stock that would have been
outstanding had such securities been exchanged for or
converted into shares of Common Stock on such effective date
or record date).
2. If and whenever at any time after the date hereof and prior to
the Expiration Date the Company shall issue or sell any shares of Common Stock
(other than the issuance or sales referred to in Section 9.B) including shares
held in the Company's treasury and shares of Common Stock issued upon the
exercise of any options, rights or warrants to subscribe for shares of Common
Stock and shares of Common Stock issued upon the direct or indirect conversion
or exchange of securities for shares of Common Stock, for a consideration per
share less than the Current Market Price, as defined below, in effect
immediately prior to the issuance or sale of such shares, or without
consideration, such event being called a "Common Share Issuance", then the
Warrant Price shall be adjusted as of the effective date by multiplying the
Warrant Price in effect immediately prior to such effective date by a fraction,
(i) the numerator of which is an amount equal to the sum
of (X) the total number of shares of Common Stock outstanding
immediately prior to such issuance or sale, multiplied by the
Current Market Price in effect immediately prior to such
issuance or sale, plus (Y) the aggregate of the amount of all
consideration, if any, received by the Company upon such
issuance or sale, and
(ii) the denominator of which is the Current Market Price
in effect immediately prior to such issuance or sale
multiplied by the total number of shares of Common Stock
outstanding immediately after such issuance or sale;
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provided, however, that in no event shall the Warrant Price be adjusted pursuant
to this computation to an amount in excess of the Warrant Price in effect
immediately prior to such computation, except in the case of a combination of
outstanding shares of Common Stock as provided by Section 9.A(1)(d).
3. If and whenever at any time after the date hereof and prior to
the Expiration Date, the Company shall fix a record date for the issue of
rights, options or warrants to all or substantially all of the holders of shares
of Common Stock pursuant to which such holders are entitled, during a period
expiring not more than forty-five (45) days after the record date for such issue
(the "Rights Period"), to subscribe for or purchase shares of Common Stock or
securities exchangeable for or convertible into shares of Common Stock at a
price per share to the holder (or at an exchange or conversion price per share
during the Rights Period to the holder in the case of securities exchangeable
for or convertible into shares of Common Stock) of less than 95% of the Current
Market Price, as defined below, for the shares of Common Stock on such record
date (any of such events being called a "Rights Offering") then, in such event,
the Holders of Warrants on the effective date of such rights offering, shall be
entitled to receive, and shall accept for the same aggregate consideration,
rights to subscribe for or purchase shares of Common Stock or securities
exchangeable for or convertible into shares of Common Stock, which such holder
would have entitled to receive as a result of such rights offering, if, on the
effective date thereof, the Warrant holder had been the registered holder of the
number of shares of Common Stock to which such holder was theretofore entitled
upon exercise. Any Warrant holder who shall have exercised his right to purchase
shares of Common Stock during the period beginning immediately after the record
date for a Rights Offering and ending on the last day of the Rights Period
therefor shall be treated as if such holder were the registered holder of the
shares of Common Stock on the record date for such rights offering.
4. If and whenever at any time after the date hereof and prior to
the Expiration Date, the Company shall fix a record date for the issue or the
distribution to all or substantially all the holders of the shares of Common
Stock of (i) securities of the Company other than shares of Common Stock, (ii)
rights, options or warrants to acquire shares of Common Stock or securities
exchangeable for or convertible into shares of Common Stock, (iii) evidences of
indebtedness, or (iv) any property or other assets, and if such issuance or
distribution does not constitute a dividend paid in the ordinary course, a
Common Share Reorganization or a Rights Offering (any of such non-excluded
events being herein called a "Special Distribution), then in such event the
Warrant holder shall be entitled to receive, and shall accept for the same
aggregate consideration the securities, evidences of indebtedness or other
property which such holder would have been entitled to receive as a result of
such Special Distribution if, on the effective date thereof, the Warrant holder
had been the registered holder of the number of shares of Common Stock to which
such holder was theretofore entitled upon exercise.
5. If and whenever at any time after the date hereof and prior to
the Expiration Date there shall be a reclassification of shares of Common Stock
at any time outstanding or change of the shares of Common Stock into other
shares or into other securities (other than a Common Share Reorganization), or a
consolidation, amalgamation, arrangement or merger of the Company with or into
another corporation or other entity, other than a consolidation, amalgamation,
arrangement or merger which does not result in any reclassification of the
outstanding shares of Common Stock or a change of the shares of Common Stock (or
other shares), or a transfer of the undertaking or assets of the Company as an
entirety or substantially as an entirety to another corporation or other entity
(any of such events being herein called a "Capital Reorganization"), any Warrant
holder who exercises his right to purchase shares of Common Stock pursuant to
Warrants then held after the effective date of such Capital Reorganization shall
be entitled to
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receive, and shall accept for the same aggregate consideration in lieu of the
number of shares of Common Stock to which such holder was theretofore entitled
upon such exercise the aggregate number of shares, other securities or other
property which such holder would have been entitled to receive as a result of
such Capital Reorganization if, on the effective date thereof, the Warrant
holder had been the registered holder of the number of shares of Common Stock to
which such holder was theretofore entitled upon exercise.
6. If and whenever at any time after the date hereof and prior to
the Expiration Date:
(a) a Common Share Reorganization shall occur; or
(b) the Company shall fix a record date for the issue or
distribution to all or substantially all of the holders of the shares
of Common Stock or securities exchangeable for or convertible into
shares of Common Stock, or rights, options or warrants entitling the
holders thereof to subscribe for or purchase shares of Common Stock or
securities exchangeable for or convertible into shares of Common Stock;
and any such event results in an adjustment in the Warrant Price pursuant to the
provisions of this Section, the number of shares of Common Stock purchasable
pursuant to each Warrant shall be adjusted contemporaneously with the adjustment
in the Warrant Price by multiplying the number of shares of Common Stock
heretofore purchasable on the exercise thereof by a fraction, the numerator of
which shall be the Warrant Price in effect immediately prior to such adjustment,
and the denominator of which shall be the Warrant Price resulting from such
adjustment.
B. Rules Regarding Calculation of Adjustment of Warrant Price and of
Shares of Common Stock Purchasable Upon Exercise
For the purposes of Section 9.A:
1. The adjustments provided for in Section 9.A are cumulative,
and shall, for the purpose of adjustments to the Warrant Price, be computed to
the nearest one-tenth of one cent and shall be made successively whenever an
event referred to above shall occur, subject to the following subsections of
this Section 9.B.
2. No adjustment in the Warrant Price shall be required unless
such adjustment would result in a change of at least $.02 in the prevailing
Warrant Price; no adjustment shall be made in the number of shares of Common
Stock issuable upon exercise of a Warrant unless it would result in a change of
at least one-half of a share, provided, however, that any adjustment which,
except for the provisions of this Section would otherwise have been required to
be made shall be carried forward and taken into account in any subsequent
adjustment.
3. No adjustment in the Warrant Price or in the number of shares
of Common Stock purchasable upon exercise of Warrants shall be made in respect
of any event described in Section 9.A if Warrant holders are entitled to
participate in such events on the same terms mutatis mutandis as if Warrant
holders had exercised their rights prior to or on the effective date or record
date of such event.
4. No adjustment in the Warrant Price shall be made pursuant to
Section 9.A with respect of the issue from time to time of shares of Common
Stock issuable on exercise of the Warrants or in respect of the issue from time
to time of cash dividends paid in the ordinary course
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to holders of shares of Common Stock who exercise an option or election to
receive substantially equivalent dividends in shares of Common Stock in lieu of
receiving a cash dividend, and any such issue shall be deemed not to be a Common
Share Reorganization.
5. No adjustment in the Warrant Price shall be made pursuant to
Section 9.A with respect to the issue from time to time of options, or shares of
Common Stock upon the exercise thereof, to officers, directors or employees of
the Company pursuant to the Company's Incentive Stock Option Plan.
6. No adjustment in the Warrant Price shall be made pursuant to
Section 9.A with respect to the issue or sale of shares of Common Stock upon the
exercise of options, rights or warrants, or upon the conversation or exchange of
convertible or exchangeable securities, in any case where (1) the Warrant Price
was adjusted at the time of issue of such options, rights or warrants, or
convertible or exchangeable securities, or (2) which are outstanding as of the
date hereof.
7. If a dispute shall at any time arise with respect to
adjustments provided for in Section 9.A, such dispute shall be conclusively
determined by the Company's auditors, or if they are unable or unwilling to act,
by such other firm or independent certified public accountants as may be
selected by the Company and each such determination shall be binding upon the
Company, the Warrant Agent and the Warrant holders; such auditors or accountants
shall be provided access to all necessary records of the Company. In the event
that any such determination is made, the Company shall deliver a certificate to
the Warrant Agent describing such determination.
8. If after the date of this Agreement the Company shall take any
action affecting the shares of Common Stock, other than action described in
Section 9.A, which in the opinion of the board of directors of the Company would
materially affect the rights of Warrant holders, the Warrant Price or the number
of shares of Common Stock purchasable upon exercise shall be adjusted in such
manner, if any, or at such time, by action by the directors, in their sole
discretion as they may determine to be equitable in the circumstances. Failure
of the taking of action by the directors so as to provide for an adjustment on
or prior to the effective date of any action by the Company affecting the shares
of Common Stock shall be conclusive evidence that the directors have determined
that it is equitable to make no adjustment in the circumstances.
9. If the Company shall set a record date to determine the
holders of the shares of Common Stock entitled to receive any dividend,
distribution, subscription and/or purchase rights and shall, thereafter and
before the distribution to such holders of any such dividend, distribution,
subscription and/or purchase rights, abandon its plan to pay or deliver such
dividend, distribution, subscription and/or purchase rights, then no adjustment
in the Warrant Price or the number of shares of Common Stock purchasable upon
exercise of any Warrant shall be required by reason of the setting of such
record date.
10. "Current Market Price" of the shares of Common Stock at any
date means the price per share equal to the average closing price of the shares
of Common Stock on NASDAQ, or if the shares of Common Stock were not then listed
on NASDAQ, on such stock exchange on which the shares are listed as may be
selected by the Company for such purpose or, if not listed on any stock
exchange, the mid point between the bid and ask prices in the over-the-counter
market, during a period of thirty (30) consecutive trading days commencing not
later than forty-five (45) trading days before such date.
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11. In the absence of a resolution of the directors fixing a
record date for a Special Distribution or Rights offering, the Company shall be
deemed to have selected the date on which the Special Distribution or Rights
Offering is effected as a record date.
12. As a condition precedent to the taking of any action which
would require any adjustment in any of the subscription rights pursuant to any
of the Warrants, including the Warrant Price and the number or class of
securities which are to be received upon the exercise thereof, the Company shall
take any corporate action which may, in the opinion of counsel, be necessary in
order that the Company may validly and legally issue as fully paid and
non-assessable all the securities which the holders of such Warrants are
entitled to receive on the full exercise thereof in accordance with the
provisions thereof.
C. Postponement of Subscription
In any case in which this Section shall require that an adjustment
shall be effective immediately after a record date for an event referred to
herein, the Company may defer, until the occurrence of such an event:
(a) issuing to the, holder of any Warrant exercised after such
record date and before the occurrence of such event, the additional shares of
Common Stock issuable upon such exercise by reason of the adjustment required by
such event; and
(b) delivering to such holder any distributions declared with
respect to such additional shares of Common Stock after such exercise date and
before such event;
provided, however, that the Company shall deliver to such holder an appropriate
instrument evidencing such holder's right, upon the occurrence of the event
giving rise to the adjustment, to an adjustment in the Warrant Price or the
number of shares of Common Stock purchasable on the exercise of any Warrant and
to such distribution declared with respect to any additional shares of Common
Stock purchasable on the exercise of any Warrant.
D. Notice of Adjustment of Warrant Price and Number of Shares of Common
Stock Purchasable Upon Exercise
1. At least twenty-one (21) days prior to the effective date or
record date, as the case may be, of any event which requires or is likely to
require adjustment in any provision of the subscription rights pursuant to any
of the Warrants, including the Warrant Price and the number of shares of Common
Stock which are purchasable upon exercise thereof, the Company shall:
(a) file with the Warrant Agent a certificate of the
Company specifying the particulars of such event and, if determinable,
the required adjustment and the computation of such adjustment; and
(b) give notice to the Warrant holders of the particulars
of such event and, if determinable, the required adjustment.
2. In case any adjustment for which a notice in Section 9.D(1)
has been given is not then determinable, the Company shall promptly after such
adjustment is determinable:
(a) file with the Warrant Agent a computation of such
adjustment; and
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(b) give notice to the Warrant holders of the adjustment.
E. Sum Payable on Exercise of Warrant to the Company to Remain Constant
On the effective date of any new Warrant Price the number of shares as
to which any Warrant may be exercised shall be increased or decreased so that
the total sum payable to the Company on the exercise of such Warrant shall
remain constant.
F. Form of Warrant
The form of Warrant need not be changed because of any change pursuant
to this Section, and Warrants issued after such change may state the same
Warrant Price and the same number of shares as is stated in the Warrants
initially issued pursuant to this Agreement. However, the Company may at any
time in its sole discretion (which shall be conclusive) make any change in the
form of Warrant that the Company may deem appropriate and that does not affect
the substance thereof; and any Warrant thereafter issued or countersigned,
whether in exchange or substitution for an outstanding Warrant or otherwise, may
be in the form as so changed.
G. Miscellaneous Provisions Relating to Adjustments in Respect of the
Warrants
Upon any adjustment of the Warrant Price, the Company may elect to
adjust the number of Warrants outstanding in lieu of any adjustment in the
number of shares issuable upon exercise of a Warrant as provided in this
Section. Each Warrant outstanding, following an adjustment pursuant to this
subsection (G), shall entitle the holder thereof to purchase one (1) share of
Common Stock at the Warrant Price, as adjusted pursuant to this Section. Upon
any adjustment of the number of Warrants outstanding pursuant to this subsection
(G), each Warrant outstanding immediately prior to such adjustment shall be
changed to the number of Warrants determined by dividing (i) the Warrant Price
in effect immediately prior to such adjustment by (ii) the Warrant Price in
effect immediately after such adjustment. Upon any election by the Company to
make an adjustment pursuant to this subsection (G), the Warrant Agent must be
notified in the manner set forth herein, and such notice must indicate the
record date for the adjustment and, if known, the amount of such adjustment.
Such record date may be the date on which the Warrant Price is adjusted or any
day thereafter, provided, however, to that the notice to the Warrant Agent must
be given at least ten (10) days prior to the record date for an adjustment
pursuant to this subsection (G). Upon any adjustment hereunder, the Company
shall promptly cause to be distributed to the registered holders of Warrants on
the record date (as determined in the manner set forth above) certificates
evidencing the additional Warrants to which such holders shall be entitled as a
result of such adjustment or, at the option of the Company, new certificates
evidencing all of the Warrants to which such holders shall be entitled following
such adjustment, provided, however, that the Company may require the surrender
and cancellation of the certificates evidencing the Warrants held by such
holders prior to such adjustment. Any new certificates issued shall be in the
form of the Warrant specified in Section 2 of this Agreement, subject to
modification as provided in this Section.
SECTION 10. FRACTIONAL INTEREST
The Company shall not be required to issue fractions of a share of
Common Stock on the exercise of Warrants nor shall the Company be required to
purchase any such fractions.
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SECTION 11. NOTICES TO WARRANT HOLDERS
A. Upon any adjustment of the Warrant Price and the number of
shares of securities or other property issuable upon exercise of a Warrant after
such adjustment, then and in each such case the Company shall give written
notice thereof to the Warrant Agent, which notice shall state the Warrant Price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of a Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of the subject adjustments.
B. If at any time prior to the termination of the Warrants:
(i) the Company shall pay any dividends payable in stock
upon its Common Stock or make any distribution (other than regular cash
dividends) to the holders of its Common Stock;
(ii) the Company shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any
class or other rights;
(iii) there shall be any Capital Reorganization or
Reclassification of the Capital Stock of the Company, or consolidation
or merger of the Company with, or sale of all or substantially all of
its assets to, another corporation; or
(iv) there shall be voluntary or involuntary dissolution,
liquidation, or winding up of the business affairs of the Company;
then, in any one or more of such cases, the Company shall give written notice
and publish the same in the manner set forth in Section 11 of the date on which
(i) the books of the Company shall close or a record shall be taken for such
dividend, distribution, or subscription rights, or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up shall take place or commence, as the case may be. Such notice shall
also specify the date as of which the holders or Common Stock or record shall
participate in such dividend, distribution, or subscription rights or shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, or winding up, as the case may be. Such notice
shall be given and published at least twenty (20) days prior to the record date
or the date on which the Company's transfer books are closed in respect thereof.
Failure to give or publish such notice, or any defect therein, shall not affect
the legality or validity of any of the matters set forth in this Section.
C. The Company may, in its discretion, cause copies of all
financial statements and reports, proxy or information statements and other
documents as it shall send to its stockholders to be sent by first-class mail,
postage prepaid, on the date of mailing to such stockholders, to each registered
holder of Warrants at his address appearing on the Warrant Register as of the
record date for the determination of the stockholders entitled to such
documents.
SECTION 12. REGISTRATION RIGHTS
The Company agrees that:
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A. (i) At any time during the first year following the date of
this Warrant; or (ii) At any time during the period commencing one year from the
date of this Warrant until the expiration date; or (iii) in the event of the
exercise of this Warrant, then at any time for a period of two years following
the date of such exercise, and provided that the Holder is not eligible to
utilize Rule 144 under the Act, if the holders of at least 50% of the then
outstanding Warrants, and/or shares of Common Stock, if the Warrants have been
exercised, request that the Company file, under the Act, a post-effective
amendment to a prior registration statement, or if a post-effective amendment is
not available, a registration statement under the Act covering not less than 50%
of the shares issuable upon exercise of the Warrants and not previously sold, it
will:
i. promptly notify the Holder of this Warrant, each
Holder of shares issued pursuant to any Warrants, and each Holder of
any Warrant, that such registration statement will be filed and that
the shares which are then held, and/or may be acquired upon the
exercise of the Warrants, by the Holder and such Holders, will be
included in such post-effective amendment or registration statement at
such Holders' request;
ii. cause such post-effective amendment or registration
statement to cover all shares which it has been requested to include;
iii. use its best efforts to cause such post-effective
amendment or registration statement to become effective as soon as
practicable under the Act; and
iv. take all other action necessary under any federal or
state law or regulation of any governmental authority to permit all
shares which it has been so requested to include in such post-effective
amendment or registration statement to be sold or otherwise disposed
of, and will maintain such compliance with each such federal and state
law and regulation of any governmental authority for the period
necessary for the Holder and such holders to effect the proposed sale
or other disposition of the shares so registered. The Company shall be
required to effect a registration or qualification pursuant to this
Section on only one occasion.
B. Prior to the expiration of this Warrant or for a period of two
years following the exercise of this Warrant, provided Rule 144 under the Act is
not available to such Holder or Holders for the sale of the shares, the Company
shall advise the Holder, whether the Holder has exercised the Warrant and holds
Common Stock, or whether the Holder still holds the Warrant, by written notice
at least four weeks prior to filing any registration statement or post-effective
amendment thereto under the Act covering any securities of the Company (except a
registration statement on Form S-8), for its own account or for the account of
others, and will, upon the request of any Holder, include in such post-effective
amendment or registration statement, such information as may be required to
permit a public offering of the Common Stock issuable upon exercise of the
Warrants (the "Shares"). The Company shall supply prospectuses and such other
documents as the Holder may request in order to facilitate the public sale or
other disposition of the Shares, use its best efforts to register and qualify
the Shares for sale in such states as such Holder designates, and do any and all
other acts and things which may be necessary or desirable to enable such Holders
to consummate the public sale or other disposition of the Shares, and furnish
indemnification in the manner provided in Section 13 hereof. The Holder shall
furnish information and indemnification as set forth in Section 13, except that
the maximum amount which may be recovered from the Holder shall be limited to
the amount of proceeds received by the Holder from the sale of the Shares.
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C. The Company shall comply with the requirements of this section
at its own expense, excluding Underwriter's commissions, charges of Holder's
counsel and Underwriter's expense allowance attributable to the Holder's Shares,
which expenses shall be paid by the Holder. In no event, however, shall the
Company be required to file a post-effective amendment or a registration
statement more than once with respect to the same shares of Common Stock.
D. In the event the Company intends to file a new registration
statement with respect to an underwritten public offering, the Company shall
notify the underwriter of the exercise of registration rights by the Holder. The
underwriter, in its sole discretion, may elect to include the Shares in the
underwritten public offering, provided the Holder agrees to pay the
underwriter's discount and commissions and underwriter's expense allowance
attributable to the Holder's Shares and to indemnify the underwriter in
accordance with Section 13 hereof. In the event the underwriter elects not to
include the Holder's Shares in the underwritten public offering, then and only
in that event, the Company agrees to file a separate registration statement as
soon as practicable following the close of the underwritten public offering
covering the Holder's Shares.
SECTION 13. INDEMNITY
A. Whenever, pursuant to Section 12 a registration statement
relating to any Warrant issued hereunder or any shares issuable upon the
exercise of the Warrants issued hereunder is filed under the Act, amended or
supplemented, the Company will indemnify and hold harmless each holder of the
Shares covered by such registration statement, amendment or supplement, and each
person, if any, who controls (within the meaning of the Act) the Holder, and
each underwriter (within the meaning of the Act) of such securities and each
person, if any, who controls (within the meaning of the Act) any such
underwriter, against any losses, claims, damages or liabilities, joint or
several, to which the Holder, any such controlling person or any such
underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of any
material fact contained in any such registration statement or any preliminary
prospectus or final prospectus constituting a part thereof or any amendment or
supplement thereto; arise out of or are based upon the omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse the Holder and each such
controlling person and underwriter for any legal or other expenses reasonably
incurred by the Holder or such controlling person or underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in said registration statement, said preliminary
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished by such Holder or any other holder, for use
in the preparation of such documents.
B. The Holder will indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed such registration
statement and such amendments and supplements thereto, each person, if any, who
controls the Company (within the meaning of the Act) against any losses, claims,
damages or liabilities to which the Company or any director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any such registration statement or any
preliminary prospectus or final prospectus constituting a part thereof or any
amendment or supplement thereto, or arise out of or are based upon the omission
to state
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therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse the Company and each such
director, officer or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Holder will not be liable in any such case unless any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in said registration
statement, said preliminary prospectus or said amendment or supplement in
reliance upon and in conformity with written information furnished by such
Holder, for use in the preparation of such documents.
C. Promptly after receipt by an indemnified party under US
Section 13 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying
party, give the indemnifying party notice of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 13.
D. In any case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 13 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than reasonable
costs of investigation.
SECTION 14. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS
A. The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and shall forward to the Company all monies
received by the Warrant Agent for the purchase of shares of Common Stock through
the exercise of such Warrants.
B. The Warrant Agent shall keep copies of this Agreement
available for inspection by holders of Warrants during normal business hours at
its offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
SECTION 15. RESTRICTIONS ON TRANSFER
The Warrant Certificates issued pursuant to this Agreement are freely
transferable provided that all Warrant Certificates issued hereunder are subject
to the investment representations contained in Section 16 hereof and the
restrictions in this Section 15. Any Holder of a Warrant Certificate issued
pursuant to this Agreement of Common Shares issued upon exercise of a Warrant
Certificate ("Restricted Securities") shall, prior to any transfer or
disposition or attempted transfer or disposition of any such Restricted
Securities, give written notice to the Company of such Holder's intention to
effect such transfer or disposition or attempted transfer or disposition of any
Restricted Securities, give written notice to the Company of such Holder's
intention to effect such transfer or disposition and shall deliver to the
Company an opinion of legal counsel, (reasonably suitable to the Company) that
the proposed transfer or disposition of the Restricted Securities may be
effected without registration thereof under the Securities Act of 1933, as
amended (the "1933 Act"), and without taking any similar action under
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any other applicable securities laws, in which case such Holder shall be
entitled to transfer or dispose of the Restricted Securities in accordance with
the terms of the notice delivered by such Holder to the Company; provided,
however, that such transfer shall be permitted only if, prior thereto, the
proposed transferee enters into an agreement with the Company restricting the
transfer of such Restricted Securities in accordance with, and agreeing to
assume the obligations under and receive the benefits of the terms of this
Warrant Agreement as "Holder", unless, in the opinion of both counsel for the
Holder and for the Company, such agreement is not necessary. Each certificate
evidencing the Restricted Securities so transferred or disposed of (and each
certificate evidencing any untransferred or non-disposed of Restricted
Securities) shall bear the appropriate restrictive legend set forth in Section
16 hereof unless in the opinion of both such counsel such legend is not
required.
SECTION 16. INVESTMENT REPRESENTATION
Any Holder, by his acceptance of a Warrant Certificate or Common Shares
obtained upon exercise of a Warrant Certificate, represents and warrants to the
Company that he is acquiring the Warrant Certificate and the Common Shares
purchased upon exercise of the Warrant Certificate by him for his own account
and not with a view to the distribution thereof within the meaning of the 1933
Act. Each such Holder must represent to the Company that he understands that he
must bear the economic risk of his investment in the Company for an indefinite
period of time because the Warrant Certificate and the Common Shares issuable
upon exercise of the Warrant Certificate have not been registered under the 1933
Act and therefore cannot be offered for sale or sold unless they are registered
under the 1933 Act or an exemption from such registration is available. Each
Warrant Certificate shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THIS WARRANT CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "ACT") OR ANY STATE SECURITIES LAWS. THIS WARRANT
CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION. THE TRANSFER OF THIS
WARRANT CERTIFICATE IS ALSO SUBJECT TO THE CONDITIONS SPECIFIED IN
SECTION 16 OF THE WARRANT AGREEMENT. NO TRANSFER OF THIS WARRANT
CERTIFICATE SHALL BE VALID OR EFFECTIVE UNTIL THE CONDITIONS SPECIFIED
IN SECTION 16 OF THE WARRANT AGREEMENT HAVE BEEN FULFILLED."
The Common Shares issued upon exercise of any Warrant Certificate shall
be stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OR 1933 (THE "ACT") OR ANY STATE SECURITIES
LAWS. THESE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION."
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SECTION 17. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT
Any corporation or company which may succeed to the business of the
Warrant Agent by any merger of consolidation or otherwise to which the Warrant
Agent shall be a party, or any corporation or company succeeding to the
corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Warrant Agent under
the provisions of Section 17 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrants shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrants so countersigned; and in case
at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in the name
of the predecessor Warrant Agent or in the name of the successor Warrant Agent;
and in all such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement.
In the event the name of the Warrant Agent shall be changed and at such
time any of the Warrants shall have been countersigned but not delivered, the
Warrant Agent may adopt the countersignature under its prior name and deliver
Warrants so countersigned, and in case at that time any of the Warrants shall
not have been countersigned, the Warrant Agent may countersign such Warrants
either in its prior name or in its changed name; and in all such cases such
Warrants shall have the full force provided in the Warrants and in this
Agreement.
SECTION 18. DUTIES OF WARRANT AGENT
The Warrant Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Warrants, by their acceptance thereof, shall be bound.
A. The statements of fact and recitals contained herein and in
the Warrants shall be taken as statements of the Company, and the Warrant Agent
shall not assume responsibility for the correctness of any of the same except
such as describe the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the distribution of the
Warrants except as herein expressly provided.
B. The Warrant Agent shall not be responsible for any failure of
the Company to comply with any of the covenants contained in this Agreement or
in the Warrants to be complied with by the Company.
C. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder in
respect to any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel.
D. The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant for any action taken in reliance
on any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed and
sent or presented by the proper party or parties.
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E. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted to be done by
the Warrant Agent in the execution of this Agreement except as a result of the
Warrant Agent's negligence, willful misconduct, or bad faith.
F. The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceedings or to take any other action likely to
involve expenses unless the Company or one or more registered holders shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any security or indemnity. All rights of action
under this Agreement or under any of the Warrants may be enforced by the Warrant
Agent on its own behalf or on behalf of the holder, without the possession of
any of the Warrants or production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of
judgment shall be for the ratable benefit of the holders of the Warrants, as
their respective rights or interests may appear.
G. The Warrant Agent and any stockholder, director, officer,
partner or employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or lend
money to or otherwise act as fully and freely as though it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
H. The Warrant Agent shall act hereunder solely as agent and not
in a ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own negligence, willful misconduct or bad faith.
I. The Warrant Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from such
neglect or misconduct, provided reasonable care had been exercised in the
selection and continued engagement thereof.
J. Any request, direction, election, order or demand of the
Company shall be sufficiently evidenced by an instrument signed in the name of
the Company by its President or Vice President or its Secretary or an Assistant
Secretary or its Treasurer or Assistant Treasurer (unless other evidence in
respect thereof be herein specifically prescribed); any resolution of the board
of directors may be evidenced to the Warrant Agent by a copy thereof certified
by the Secretary or an Assistant Secretary of the Company.
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SECTION 19. CHANGE OF WARRANT AGENT
The Warrant Agent may resign and be discharged from its duties under
this Agreement by giving to the Company notice in writing, and to the holders of
the Warrants notice by mailing such notice to holders at their addresses
appearing on the Warrant Register, of such resignation, specifying a date when
such resignation shall take effect. The Warrant Agent may be removed by like
notice to the Warrant Agent from the Company and by like mailing of notice to
the holders of the Warrants. If the Warrant Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall appoint a
successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after such removal or after it
has been notified in writing of such resignation or incapacity by the resigning
or incapacitated Warrant Agent or by the registered holder of a Warrant (who
shall, with such notice, submit his Warrant for inspection by the Company), then
the registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Any
successor warrant agent, whether appointed by the Company or by such a court,
shall be a bank or trust company, in good standing, incorporated under the laws
of the State of New York or any other state in the United States of America.
After appointment the successor warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor warrant agent all canceled Warrants,
records and property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for such purpose.
Failure to file or mail any notice provided for in this Section, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Warrant Agent or the appointment of the successor warrant agent,
as the case may be.
SECTION 20. IDENTITY OF TRANSFER AGENT
Forthwith upon the appointment of any Transfer Agent for the shares of
Common Stock or any subsequent transfer agent for shares of Common Stock of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants, the Company will file with the Warrant Agent a
statement setting forth the name and address of such Transfer Agent.
SECTION 21. NOTICES
Any notice pursuant to this Agreement to be given or made by the
Warrant Agent or by the registered holder of any Warrant to or on the Company
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Warrant Agent) as follows:
Veridien Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman and CEO
Any notice pursuant to this Agreement to be given or made by the
Company or by the registered holder of any Warrant to or on the Warrant Agent
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company) as follows:
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American Stock Transfer and Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SECTION 22. SUPPLEMENTS AND AMENDMENTS
The Company and the Warrant Agent may from time to time supplement or
amend this Agreement without the approval of any holders of Warrants in order to
cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not be inconsistent with the provisions of the Warrants and which
shall not adversely affect the interests of the holders of Warrants.
SECTION 23. SUCCESSORS
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
SECTION 24. INTERPRETATION
This Agreement and each Warrant issued hereunder shall be deemed to be
a contract made under the laws of the state of Delaware and for all purposes
shall be construed in accordance with the laws of said state.
SECTION 25. BENEFITS OF THIS AGREEMENT
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent and the registered holders
of the Warrants any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the registered holders of the Warrants.
SECTION 26. 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 all
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
VERIDIEN CORPORATION
By:
Title: C.E.O.
AMERICAN STOCK TRANSFER AND TRUST COMPANY
By:
Title:
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