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EXHIBIT 4.7
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▇'▇▇▇▇▇▇▇▇ INDUSTRIES HOLDINGS, INC.
Class B Warrant to Purchase
39,273 Shares of Series B Junior Preferred Stock
Amended and Restated Class B Warrant Agreement
Dated as of November 30, 1999
Amended and Restated as of January 31, 2000
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AMENDED AND RESTATED CLASS B WARRANT AGREEMENT (this
"AGREEMENT"), dated as of January 31, 2000 between ▇'▇▇▇▇▇▇▇▇ Industries
Holdings Inc., a Delaware corporation (the "COMPANY"), and BancBoston
Investments, Inc., a Massachusetts corporation ("HOLDER").
WHEREAS, on November 30, 1999, the Company issued a Class B
warrant (the "Original Warrant") to initially purchase an aggregate of 39,273
shares of Series B Junior Preferred Stock, par value $0.01 per share, of the
Company pursuant to a Warrant Agreement dated as of November 30, 1999 (the
"Original Warrant Agreement") between the Company and Bruckmann, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Co., II, L.P. (the "Original Holder"), in connection with the
purchase by the Original Holder of $15,000,000 principal amount in 12% Senior
Notes due 2009 of the Company pursuant to the Securities Purchase Agreement
dated as of November 30, 1999 between the Company and the Original Holder;
WHEREAS, pursuant to an Assignment Agreement dated as of the
date hereof (the "Assignment Agreement") between the Original Holder and the
Holder, on the date hereof the Original Holder is selling to the Holder, and the
Holder is purchasing from the Original Holder, the Original Warrant;
WHEREAS, it is a condition to the closing of the Assignment
Agreement that the Company amend and restate the Original Agreement in the form
of this Agreement;
WHEREAS, the Company now desires to amend and restate the
Original Agreement in the form of this Agreement; and
WHEREAS, the Company will issue a Class B warrant (the
"WARRANT") to initially purchase an aggregate of 39,273 shares of Series B
Junior Preferred Stock, par value $0.01 per share (the "PREFERRED STOCK"), of
the Company (the Preferred Stock issuable on exercise of the Warrants being
referred to herein as the "WARRANT SHARES"), in connection with Holder's
purchase of $15,000,000 principal amount in 12% Senior Notes DUE 2009 (the
"SENIOR NOTES") of the Company pursuant to the Assignment Agreement and the
Amended and Restated Securities Purchase Agreement dated the date hereof between
the Company and Holder.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto agree as follows:
SECTION 1 CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such specified Person, whether
through the ownership of voting securities, by agreement or otherwise;
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provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
"BUSINESS DAY" means any day other than a Legal Holiday.
"COVERED HOLDER" means each holder of Warrants or Non-Public
Warrant Shares.
"DESIGNATED HOLDER" shall mean any Person or Persons holding
in the aggregate more than 50% of the aggregate Warrants and Warrant Shares then
outstanding.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"HOLDER" is defined in the recitals hereto.
"NONPUBLIC WARRANT SHARES" shall mean Warrant Shares that have
not been sold to the public (or pursuant to Rule 144, Rule 144A or Regulation S
under the Securities Act) and bear the legend set forth in Section 6 of the
Stockholders Agreement.
"ORIGINAL HOLDER" is defined in the recitals hereto.
"OWNERSHIP PERCENTAGE" for any Covered Holder means the
percentage calculated by dividing (i) the sum of (A) the number of shares of
Common Stock held by such holder plus (B) the number of shares of Common Stock
then issuable to such holder upon the exercise of all outstanding options and
warrants and the conversion of all outstanding convertible securities held by
such holder, by (ii) the total number of shares of Common Stock then outstanding
on a fully diluted basis.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business.
"PRIVATE PLACEMENT AND TRANSFER RESTRICTION LEGEND" means the
legend set forth in Section 2.2(b) to be placed on all Warrants issued under
this Warrant Agreement except where otherwise permitted by the provisions of
this Warrant Agreement.
"PUBLIC EQUITY OFFERING" shall mean an underwritten offering
of Common Stock pursuant to a registration statement that has been declared
effective by the Commission pursuant to the Securities Act (other than a
registration statement on Form S-8 or otherwise relating to equity securities
issuable under any employee benefit plan of the Company).
"PUT COMMENCEMENT DATE" shall mean each of the following dates
occurring prior to an IPO: the date on which the holders of the Warrants and
Nonpublic Warrant Shares receive the audited financial statements of the Company
and its Subsidiaries required to be delivered pursuant to the Amended and
Restated Securities Purchase Agreement dated the date hereof between the Company
and the Holder for the Company's fiscal year ended June 30, 2005 and for each of
the Company's fiscal years thereafter.
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"PUT PERIOD" shall mean, collectively, each period commencing
on a Put Commencement Date and ending on the earliest of (a) the date that is 60
days after such Put Commencement Date, (b) the Expiration Date and (c) the date
of the IPO.
"REGISTRATION RIGHTS AGREEMENT" means the registration rights
agreement, dated as of November 30, 1999, by and among the Company, the Original
Holder and the other parties thereto.
"RULE 144" means Rule 144 promulgated under the Securities
Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR CREDIT AGREEMENT" means the Credit Agreement dated as
of November 30, 1999 among ▇'▇▇▇▇▇▇▇▇ Industries, Inc., the Company, ▇▇▇▇▇▇
Commercial Paper Inc., as Arranger, syndication agent and administrative agent,
and the other entities from time to time parties thereto providing for revolving
credit borrowings and term loans, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded,
restructured, replaced or refinanced from time to time including increases in
principal amount (whether the same are provided by the original lenders under
such Senior Credit Agreement or a successor agent or other lenders).
"STOCKHOLDERS' AGREEMENT" means the stockholders' agreement,
dated as of November 30, 1999, by and among the Company, the Original Holder and
other parties thereto.
SECTION 2 ISSUANCE OF WARRANTS; WARRANT CERTIFICATES.
2.1 FORM AND DATING.
The Warrant shall be substantially in the form of Exhibit A
hereto (the "WARRANT CERTIFICATE"). The Warrant may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Warrant shall be
dated the date hereof.
The terms and provisions contained in the Warrants shall
constitute, and are hereby expressly made, a part of this Warrant Agreement. The
Company and the Holder, by their execution and delivery of this Warrant
Agreement, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of the Warrant conflicts with the express
provisions of this Warrant Agreement, the provisions of this Warrant Agreement
shall govern and be controlling.
2.2 TRANSFER AND EXCHANGE.
(a) Subject to the transfer conditions referred to in the
legends endorsed on the Warrant, the Warrant and all rights thereunder are
transferable, in whole or in part, without charge to the registered holder, upon
surrender of the Warrant with a properly executed Assignment (in the form of
Exhibit B hereto) at the principal office of the Company.
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(b) Legend.
The following legend shall appear on the face of all the
Warrants issued under this Warrant Agreement unless specifically stated
otherwise in the applicable provisions of this Warrant Agreement.
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF
ANY, REQUIRED UNDER THE WARRANT AGREEMENT PURSUANT TO WHICH THIS SECURITY IS
ISSUED) AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER
OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PURCHASER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE. THIS WARRANT AND THE WARRANT SHARES
UNDERLYING THIS WARRANT ARE ALSO SUBJECT TO CERTAIN TRANSFER AND OTHER
RESTRICTIONS CONTAINED IN A STOCKHOLDERS' AGREEMENT AND A REGISTRATION RIGHTS
AGREEMENT, EACH DATED NOVEMBER 30, 1999. COPIES OF THE STOCKHOLDERS AND
REGISTRATION RIGHTS AGREEMENTS MAY BE OBTAINED BY THE HOLDER HEREOF UPON WRITTEN
REQUEST TO THE COMPANY."
2.3 REPLACEMENT WARRANTS.
If a mutilated Warrant is surrendered to the Company and the
Company receives evidence to its satisfaction of the destruction, loss or theft
of the Warrant, the Company shall issue a replacement Warrant. If required by
the Company, an indemnity bond must be supplied by the Holder that is sufficient
in the reasonable judgment of the Company to protect the Company from any loss
that it may suffer if a Warrant is replaced. The Company may charge for its
expenses in replacing a Warrant.
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Every replacement Warrant is an additional warrant of the
Company and shall be entitled to all of the benefits of this Warrant Agreement
equally and proportionately with all other Warrants duly issued hereunder.
SECTION 3 TERMS OF THE WARRANT; EXERCISE OF THE WARRANT.
3.0.1 Subject to the terms of this Agreement, each Warrant
holder shall have the right, which may be exercised during the period commencing
the date hereof and until 5:00 p.m., New York City time on October 15, 2009 (the
"EXERCISE PERIOD"), to receive from the Company the number of fully paid and
nonassessable Warrant Shares which the holder may at the time be entitled to
receive on exercise of such Warrants and payment of the exercise price (the
"EXERCISE PRICE") either by (i) a bank or certified check payable to the Company
in an amount equal to the product of the Exercise Price multiplied by the number
of shares of Warrant Shares being purchased upon such exercise (the "AGGREGATE
EXERCISE PRICE"), (ii) the surrender to the Company of securities of the Company
or its subsidiaries having a "Market Value" equal to the Aggregate Exercise
Price of the Warrant Shares being purchased upon such exercise (provided that
the "MARKET VALUE" of any preferred stock shall be deemed to be equal to the
aggregate liquidation value thereof plus all accrued and unpaid dividends
thereon) or (iii) a written notice to the Company that the Holder is exercising
the Warrant (or a portion thereof) and authorizing the Company to withhold from
issuance a number of Warrant Shares issuable upon such exercise of the Warrant
which when multiplied by the Market Value of the Warrant Shares is equal to the
Aggregate Exercise Price (and such withheld shares shall no longer be issuable
under this Warrant). Each Warrant not exercised prior to 5:00 p.m., New York
City time, on October 15, 2009 (the "EXPIRATION DATE") shall become void and all
rights thereunder and all rights in respect thereof under this Agreement shall
cease as of such time. No adjustments as to dividends will be made upon exercise
of the Warrants.
3.0.2 In order to exercise all or any of the Warrants
represented by the Warrant Certificate, the Holder must surrender for exercise
the Warrant Certificate to the Company together with the form of election to
purchase on the reverse thereof duly filled in and signed, and upon payment to
the Company of the Exercise Price, which is set forth in the form of Warrant
Certificate attached hereto as Exhibit A, as adjusted as herein provided, for
the number of Warrant Shares in respect of which such Warrants are then
exercised.
3.0.3 Subject to the provisions of Section 5 hereof, upon
compliance with clause (b) above, the Company shall deliver or cause to be
delivered with all reasonable dispatch, to or upon the written order of the
Holder and in such name or names as the Holder may designate, a certificate or
certificates for the number of whole Warrant Shares issuable upon the exercise
of such Warrants or other securities or property to which such holder is
entitled hereunder, together with cash as provided in Section 9 hereof; provided
that if any consolidation, merger or lease or sale of assets is proposed to be
effected by the Company as described in Section 8(f) hereof, or a tender offer
or an exchange offer for shares of Common Stock shall be made, upon such
surrender of Warrants and payment of the Exercise Price as aforesaid, the
Company shall, as soon as possible, but in any event not later than two business
days thereafter, deliver or cause to be delivered the full number of Warrant
Shares issuable upon the exercise of such Warrants in the manner described in
this sentence or other securities or property to which such holder is entitled
hereunder, together with cash as provided in Section 9 hereof. Such certificate
or certificates shall be deemed to have been issued and any person so designated
to be named
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therein shall be deemed to have become a holder of record of such Warrant Shares
as of the date of the surrender of such Warrants and payment of the Exercise
Price.
3.0.4 The Warrants shall be exercisable, at the election of
the Holder, either in full or from time to time in part. If less than all the
Warrants represented by the Warrant Certificate are exercised, the Warrant
Certificate shall be surrendered and a new Warrant Certificate of the same tenor
and for the number of Warrants which were not exercised shall be executed by the
Company, registered in such name or names as may be directed in writing by the
Holder, and the Company shall deliver the new Warrant Certificate to the Person
or Persons entitled to receive the same.
3.0.5 All Warrant Certificates surrendered upon exercise of
Warrants shall be canceled by the Company.
3.0.6 The Company shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the Holder
during normal business hours at its office.
SECTION 4 PUT.
4.0.1 Put Option. At the written request of any Designated
Holder which shall be irrevocable (each, a "Put Notice") made during any Put
Period requesting the Company to purchase all Warrants and/or Nonpublic Warrant
Shares held by such Designated Holder, the Company shall promptly give written
notice of such request to all other holders of Warrants and/or Nonpublic Warrant
Shares notifying such holders of the inclusion of all their Warrants and
Nonpublic Warrant Shares in such Put Notice and purchase all the Warrants and/or
Nonpublic Warrant Shares specified in such Put Notice and held by any other
holder of Warrants and/or Nonpublic Warrant Shares other than the Designated
Holder who gave such Put Notice (the "Put Option"). Except as set forth in
Section 4(e), the Put Option may be exercised on no more than one occasion. The
aggregate purchase price payable by the Company to all selling holders upon any
exercise of the Put Option shall be the product of (A) the aggregate number of
Warrants and Nonpublic Warrant Shares and (B) the Put Price (as defined below)
(such aggregate amount being the "Aggregate Put Amount"). The Aggregate Put
Amount shall be apportioned to each selling holder hereunder in accordance with
the aggregate number of the Warrants and Nonpublic Warrant Shares of such
holder. The portion of the Aggregate Put Amount payable to each holder shall be
reduced by an amount equal to the product of (1) the number of Warrants of such
holder and (2) the Exercise Price that would have been payable had each such
Warrant been exercised.
4.0.2 The Put Price shall be the liquidation value of each
Warrant Share being purchased and each Warrant Share issuable upon exercise of
each Warrant being purchased plus all accrued and unpaid dividends thereon.
4.0.3 The Company shall purchase the Warrants and Nonpublic
Warrant Shares to be sold by each selling holder on a date designated in writing
by the Company to each holder (the "PUT CLOSING DATE"). The Put Closing Date
shall be no later than 90 days after the determination of the Put Price in
connection with such exercise of the Put Option.
4.0.4 On the Put Closing Date, each selling holder shall
surrender its Warrants and Nonpublic Warrant Shares to the Company without any
representation or warranty (other than that such holder has (i) good and valid
title thereto free and clear of liens, claims, encumbrances and restrictions of
any kind created by such holder and (ii) the power and authority to surrender
such Warrants and
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Nonpublic Warrant Shares), against payment therefor by (at the option of such
holder), (1) wire transfer to an account in a bank located in the United States
designated by such holder for such purpose or (2) a certified or official bank
check drawn on a member of the New York Clearing House payable to the order of
such holder.
4.0.5 In the event that the Company is prohibited by the terms
of the Senior Credit Agreement or the terms of the ▇'▇▇▇▇▇▇▇▇ Industries, Inc.
13 3/8% Senior Subordinated Notes due 2009 from repurchasing the Warrants or the
Nonpublic Warrant Shares for cash, the Company shall pay the Aggregate Put
Amount by issuing to the holders promissory notes in the initial aggregate
principal amount of the Aggregate Put Amount. Such notes shall bear interest at
the greater of (i) Fleet Boston's Base Rate plus 500 basis points and (ii) 12%
per annum, payable semi-annually in arrears in cash or in kind at the Company's
option. Such notes will rank pari pasu with, amortize at the same rate and times
as, and be entitled to all of the covenants, rights and benefits of, the Senior
Notes under the Amended and Restated Securities Purchase Agreement dated as of
the date hereof, between the Company and the Holder.
SECTION 5 PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes attributable
to the initial issuance of Warrant Shares upon the exercise of the Warrant;
provided that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue of any Warrant
Certificates or any certificates for Warrant Shares in a name other than that of
the registered holder of a Warrant Certificate surrendered upon the exercise of
a Warrant, and the Company shall not be required to issue or deliver such
Warrant 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.
SECTION 6 RESERVATION OF WARRANT SHARES.
6.0.1 The Company will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued Preferred Stock or its authorized and issued Preferred Stock held
in its treasury, for the purpose of enabling it to satisfy any obligation to
issue Warrant Shares upon exercise of the Warrant, the maximum number of shares
of Preferred Stock which may then be deliverable upon the exercise of all
outstanding Warrants.
6.0.2 The Company or, if appointed, the transfer agent for the
Preferred Stock (the "TRANSFER AGENT") and every subsequent transfer agent for
any shares of the Company's capital stock issuable upon the exercise of any of
the rights of purchase aforesaid will be irrevocably authorized and directed at
all times to reserve such number of authorized shares as shall be required for
such purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent 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 Company will supply such Transfer Agent with
duly executed certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in Section 9 hereof. The
Company will furnish such Transfer Agent a copy of all notices of adjustments,
and certificates related thereto, transmitted to each holder pursuant to Section
10 hereof.
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6.0.3 Before taking any action which would cause an adjustment
pursuant to Section 8 hereof to reduce the Exercise Price below the then par
value (if any) of the Warrant Shares, the Company will take any corporate action
which may, in the opinion of its counsel (which may be counsel employed by the
Company), be necessary in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares at the Exercise Price as so
adjusted.
6.0.4 The Company covenants that all Warrant Shares which may
be issued upon exercise of Warrants will, upon issue, be fully paid,
nonassessable, free of preemptive rights and free from all taxes, liens, charges
and security interests with respect to the issuance thereof.
SECTION 7 OBTAINING STOCK EXCHANGE LISTINGS.
The Company will from time to time take all action which may
be necessary so that the Warrant Shares, immediately upon their issuance upon
the exercise of the Warrant, will be listed on the principal securities
exchanges, automated quotation systems or other markets within the United States
of America, if any, on which other shares of Preferred Stock are then listed, if
any.
SECTION 8 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
ISSUABLE.
The Exercise Price and the number of Warrant Shares issuable
upon the exercise of the Warrant are subject to adjustment from time to time
upon the occurrence of the events enumerated in this Section 8.
8.0.1 Adjustment for Change in Capital Stock.
If the Company (i) pays a dividend or makes a distribution on
its Preferred Stock in shares of its Preferred Stock, (ii) subdivides its
outstanding shares of Preferred Stock into a greater number of shares, (iii)
combines its outstanding shares of Preferred Stock into a smaller number of
shares, (iv) makes a distribution on its Preferred Stock in shares of its
capital stock other than Preferred Stock or (v) issues by reclassification of
its Preferred Stock any shares of its capital stock, then the Exercise Price in
effect immediately prior to such action shall be proportionately adjusted so
that the holder of any Warrant thereafter exercised may receive the aggregate
number and kind of shares of capital stock of the Company which he would have
owned immediately following such action if such Warrant had been exercised
immediately prior to such action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, after an adjustment, a holder of a Warrant upon exercise of it may receive
shares of two or more classes of capital stock of the Company, the Company shall
determine, in good faith, the allocation of the adjusted Exercise Price between
the classes of capital stock. After such allocation, the exercise privilege and
the Exercise Price of each class of capital stock shall thereafter be subject to
adjustment on terms comparable to those applicable to Preferred Stock in this
Section 8. Such adjustment shall be made successively whenever any event listed
above shall occur.
If the Company distributes to all holders of its Preferred
Stock any of its assets (including cash), debt securities, preferred stock or
any rights or warrants to purchase debt securities, preferred stock, assets
(including cash) or other securities of the Company, the assets, securities,
rights, or warrants
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to which the holder of any Warrant would have been entitled immediately
following such distribution if such Warrant had been exercised immediately prior
to such distribution, shall be placed in escrow prior to such distribution, in
an account to be established with an Agent for the holders of Warrants. Such
assets, securities, rights, or warrants are to be released to the holder of such
Warrant upon exercise of such Warrant pursuant to the terms of this Warrant.
Such adjustment, or deposit into escrow, shall be made
successively whenever any event listed above shall occur.
8.0.2 When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the
adjustment would require an increase or decrease of at least 1% in the Exercise
Price. Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 8
shall be made to the nearest one-one thousandth of a cent or to the nearest
one-one thousandth of a share, as the case may be, it being understood that no
such rounding shall be made under subsection (j).
8.0.3 When No Adjustment Required.
No adjustment need be made for a transaction referred to
Section 8(a) or (f) hereof, if the Holder is to participate (without being
required to exercise its Warrants) in the transaction on a basis and with notice
that the Board of Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Preferred Stock participate in the
transaction. No adjustment need be made for (i) rights to purchase Preferred
Stock pursuant to a Company plan for reinvestment of dividends or interest or
(ii) a change in the par value or no par value of the Preferred Stock. To the
extent the Warrants become convertible into cash, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash.
8.0.4 Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall
provide the notices required by Section 10 hereof.
8.0.5 Notice of Certain Transactions.
If (i) the Company takes any action that would require an
adjustment in the Exercise Price pursuant to Section 8(a) hereof and if the
Company does not arrange for the Holder to participate pursuant to Section 8(c)
hereof, (ii) the Company takes any action that would require a supplemental
Warrant Agreement pursuant to Section 8(f) hereof or (iii) there is a
liquidation or dissolution of the Company, then the Company shall mail to the
Holder a notice stating the proposed record date for a dividend or distribution
or the proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The Company
shall mail the notice at least 15 days before such date. Failure to mail the
notice or any defect in it shall not affect the validity of the transaction.
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8.0.6 Reorganization of Company.
Immediately after the date hereof, if the Company consolidates
or merges with or into, or transfers or leases all or substantially all its
assets to, any person, upon consummation of such transaction the Warrants shall
automatically become exercisable for the kind and amount of securities, cash or
other assets which the holder of a Warrant would have owned immediately after
the consolidation, merger, transfer or lease if the holder had exercised the
Warrant immediately before the effective date of the transaction. Concurrently
with the consummation of such transaction, the corporation formed by or
surviving any such consolidation or merger if other than the Company, or the
person to which such sale or conveyance shall have been made, shall enter into
(i) a supplemental Warrant Agreement so providing and further providing for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Section 8(f) and (ii) a supplement to the
Registration Rights Agreement providing for the assumption of the Company's
obligations thereunder. The successor Company shall mail to Warrant holders a
notice describing the supplemental Warrant Agreement and Registration Rights
Agreement. If the issuer of securities deliverable upon exercise of Warrants
under the supplemental Warrant Agreement is an Affiliate of the formed,
surviving, transferee or lessee corporation, that issuer shall join in the
supplemental Warrant Agreement and Registration Rights Agreement. If this
Section 8(f) applies, Sections 8(a) does not apply.
8.0.7 Company Determination Final.
Any determination that the Company or the Board of Directors
must make pursuant to Section 8(a), (b) or (c) hereof is conclusive.
8.0.8 When Issuance or Payment May Be Deferred.
In any case in which this Section 8 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event (i) issuing to the Holder exercised after such record date the Warrant
Shares and other capital stock of the Company, if any, issuable upon such
exercise over and above the Warrant Shares and other capital stock of the
Company, if any, issuable upon such exercise on the basis of the Exercise Price
and (ii) paying to Holder any amount in cash in lieu of a fractional share
pursuant to Section 9 hereof; provided that the Company shall deliver to Holder
a due ▇▇▇▇ or other appropriate instrument evidencing Holder's right to receive
such additional Warrant Shares, other capital stock and cash upon the occurrence
of the event requiring such adjustment.
8.0.9 Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this
Section 8 each Warrant outstanding prior to the making of the adjustment in the
Exercise Price shall thereafter evidence the right to receive upon payment of
the adjusted Exercise Price that number of shares of Preferred Stock (calculated
to the nearest hundredth) obtained from the following formula:
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N' = N x E
----
E'
where:
N' = the adjusted number of Warrant Shares
issuable upon exercise of a Warrant by
payment of the adjusted Exercise Price.
N = the number or Warrant Shares previously
issuable upon exercise of a Warrant by
payment of the Exercise Price prior to
adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
8.0.10 Form of Warrants.
Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 9 FRACTIONAL INTERESTS.
The Company shall not be required to issue fractional Warrant
Shares on the exercise of Warrants. If more than one Warrant shall be presented
for exercise in full at the same time by the same holder, the number of full
Warrant Shares which shall be issuable upon the exercise thereof shall be
computed on the basis of the aggregate number of Warrant Shares purchasable on
exercise of the Warrants so presented. If any fraction of a Warrant Share would,
except for the provisions of this Section 9, be issuable on the exercise of any
Warrant (or specified portion thereof), the Company shall pay an amount in cash
equal to the Fair Value per Warrant Share, as determined on the day immediately
preceding the date the Warrant is presented for exercise, multiplied by such
fraction, computed to the nearest whole U.S. cent.
SECTION 10 NOTICES TO WARRANT HOLDERS.
10.0.1 Upon any adjustment of the Exercise Price pursuant to
Section 8 hereof, the Company shall promptly thereafter (i) cause to be prepared
a certificate of a firm of independent public accountants of recognized standing
selected by the Board of Directors of the Company (who may be the regular
auditors of the Company) setting forth the Exercise Price after such adjustment
and setting forth in reasonable detail the method of calculation and the facts
upon which such calculations are based and setting forth the number of Warrant
Shares (or portion thereof) issuable after such adjustment in the Exercise
Price, upon exercise of a Warrant and payment of the adjusted Exercise Price,
which certificate shall be conclusive evidence of the correctness of the matters
set forth therein, and (ii) cause to be given to each of the holders of Warrants
at such holder's address as it appears in the records of the Company (unless
otherwise indicated by any such holder) written notice of such adjustments by
first-class mail,
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postage prepaid. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 10.
10.0.2 In case:
(a) the Company shall authorize the issuance to all
holders of shares of Preferred Stock of rights, options or warrants to
subscribe for or purchase shares of Preferred Stock or of any other
subscription rights or warrants;
(b) the Company shall authorize the distribution to
all holders of shares of Preferred Stock of evidences of its
indebtedness or assets (other than dividends or cash distributions paid
out of consolidated current or retained earnings as shown on the books
of the Company prepared in accordance with generally accepted
accounting principles or dividends payable in shares of Preferred Stock
or distributions referred to in Section 10(a) hereof);
(c) of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or of the conveyance or transfer of the properties
and assets of the Company substantially as an entirety, or of any
reclassification or change of Preferred Stock issuable upon exercise of
the Warrants (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for
shares of Preferred Stock;
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company proposes to take any action (other
than actions of the character described in Section 8(a) hereof) which
would require an adjustment of the Exercise Price pursuant to Section 8
hereof;
then the Company shall cause to be given to each of the registered holders of
Warrants at such holder's address as it appears in the records of the Company
(unless otherwise indicated by any such holder), at least 20 days (or 10 days in
any case specified in clauses (i) or (ii) above) prior to the applicable record
date hereinafter specified, or promptly in the case of events for which there is
no record date, by first-class mail, postage prepaid, a written notice stating
(x) the date as of which the holders of record of shares of Preferred Stock to
be entitled to receive any such rights, options, warrants or distribution are to
be determined, (y) the initial expiration date set forth in any tender offer or
exchange offer for shares of Preferred Stock, or (z) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, and the date as of which it
is expected that holders of record of shares of Preferred Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up. The failure to give the notice
required by this Section 10 or any defect therein shall not affect the legality
or validity of any distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up, or the vote upon
any action; or
(f) Nothing contained in this Agreement or in any of
the Warrant Certificates shall be construed as conferring upon the holders of
Warrants the right to vote or to consent or to receive
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notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter, or any rights
whatsoever as stockholders of the Company.
SECTION 11 REPORTS.
(a) The Company agrees with Holder, for so long as any
Warrants or Warrant Shares remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of Holder, to such Holder or beneficial owner of
Warrants or Warrant Shares in connection with any sale thereof and any
prospective purchaser of such Warrants or Warrant Shares designated by such
Holder or beneficial owner, the information required by Rule 144(A)(d)(4) under
the Securities Act in order to permit resales of such Warrants or Warrant Shares
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Warrants or Warrant Shares pursuant to Rule 144A.
SECTION 12 NOTICES TO COMPANY.
Any notice or demand authorized by this Agreement to be given
or made by the registered holder of any Warrant to or on the Company shall be
sufficiently given or made when received if deposited in the mail, first class
or registered, postage prepaid, addressed (until another address is filed in
writing by the Company) as follows:
▇'▇▇▇▇▇▇▇▇ Industries Holdings, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, Esq.
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
International Financial Centre
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇
Telecopier No.: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
SECTION 13 FURTHER AGREEMENTS.
(a) Stock Issuances Offering.
The Company agrees that it shall not issue any shares of its
preferred stock to any of its Affiliates without first receiving an opinion from
an investment bank of nationally recognized standing that the terms of such
issuance are fair; provided that the Company may issue such shares with the
prior consent of a majority of the outstanding warrants to purchase shares of
Preferred Stock. The Company shall not permit any of its subsidiaries to
publicly offer any shares of capital stock.
-13-
15
(b) Investment Company.
The Company agrees that it shall not, and shall not permit any
of its subsidiaries, to take any action that would subject it to the
requirements of the Investment Company Act of 1940.
SECTION 14 SUPPLEMENTS AND AMENDMENTS.
The Company 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 may deem necessary or desirable and which shall not in any way adversely
affect the interests of the holders of Warrants. Any amendment or supplement to
this Agreement that has an adverse effect on the interests of the holders of
Warrants shall require the written consent of the holders of Warrants
exercisable into a majority of the Warrant Shares. The consent of each holder of
Warrants affected shall be required for any amendment pursuant to which the
Exercise Price would be increased or the number of Warrant Shares purchasable
upon exercise of Warrants would be decreased (other than pursuant to adjustments
provided in this Agreement) or which would affect any holder of Warrants in a
manner different from any other holder of Warrants.
SECTION 15 SUCCESSORS.
All the covenants and provisions of this Agreement by or for
the benefit of the Company or Holder shall bind and inure to the benefit of
their respective successors and assigns hereunder.
SECTION 16 TERMINATION.
This Agreement shall terminate at 5:00 p.m., New York City
time on October 15, 2009. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date if all Warrants have been exercised.
SECTION 17 GOVERNING LAW.
This Agreement and the Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of New York
and for all purposes shall be construed in accordance with the internal laws of
said State.
SECTION 18 BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any
Person other than the Company and the registered holders of 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 and the registered
holders of Warrants.
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SECTION 19 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.
SECTION 20 PREEMPTIVE RIGHTS.
(a) Except for the issuance of Common Stock (or securities
convertible into or containing options or rights to acquire shares of Common
Stock) (i) pursuant to a Public Equity Offering, (ii) as consideration for the
acquisition of assets or stock of another Person, (iii) pursuant to the exercise
of warrants to purchase capital stock of the Company outstanding as of November
30, 1999, (iv) pursuant to the terms of any capital stock or stock option issued
to an employee, director or consultant of the Company (or its subsidiaries), (v)
pursuant to a dividend or distribution made in respect of the Common Stock or
Preferred Stock, (vi) pursuant to the terms of any debt financing or (vii)
pursuant to which the Designated Holders have waived their rights to purchase
any securities pursuant to this Section 20, if the Company authorizes the
issuance and sale of any shares of any class of capital stock or any securities
convertible into or containing options or rights to acquire any shares of any
class of capital stock (such issuance and sale, a "Covered Offering" and the
securities proposed to be issued and sold thereunder, the "Offered Securities"),
the Company will first offer to sell to each Covered Holder a quantity of the
Offered Securities calculated by multiplying (x) the total number of Offered
Securities by (y) such holder's Ownership Percentage. Each Covered Holder will
be entitled to purchase such portion of the Offered Securities pursuant to the
terms and conditions set forth in paragraph (b) below.
(b) At least 20 days prior to the consummation of any Covered
Offering, the Company shall deliver a written notice (the "Sale Notice") to each
Covered Holder specifying in reasonable detail (i) the quantities and classes of
Offered Securities, (ii) the proposed offering price, (iii) the proposed date,
time and location of the closing of the Covered Offering, and (iv) such other
information necessary for such holder to calculate the number of Offered
Securities that it is entitled to purchase under this Section 20. The Covered
Holders may make an irrevocable election to purchase all or part of such
securities, upon the same terms and conditions and at the same time and place as
described in the Sale Notice, by delivering a written notice of such election to
the Company within 10 days after the Sale Notice has been delivered by the
Company. Any such election notice shall specify the quantity of Offered
Securities that the electing Covered Holder is entitled to purchase under this
Section 20. If any Covered Holder elects to purchase Offered Securities pursuant
to this Section 20 on the terms and conditions specified in the Sale Notice, the
sale of such securities shall be consummated, together with the sale of any
Offered Securities not elected to be purchased under this Section 20, at the
time and place of the closing of the Covered Offering specified in the Sale
Notice or at such other time (not later than 10 days after the time specified in
the Sale Notice) and place as the Company may decide and communicate to the
electing Covered Holders not less than 2 days prior to such closing. If no
Covered Holder elects to purchase Offered Securities pursuant to this Section
20, the Company shall be free to sell the Offered Securities within 90 days
after the expiration of the offering period described above on terms and
conditions no more favorable to the purchasers thereof, in the aggregate, than
set forth in the Sale Notice. Any Offered Securities offered or sold by the
Company after such 90 day period must be reoffered to the Covered Holders
pursuant to this Section 20.
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(c) Notwithstanding the foregoing provisions of this Section
20, in the event that, in connection with any issuance and sale of securities of
the Company, a Covered Holder elects to purchase securities of the Company
pursuant to the exercise of any rights of such Covered Holder under Section 20
of the Company's Amended and Restated Class B Warrant Agreement dated as of
November 30, 1999 relating to a Class B Warrant to purchase 93,273 shares of
Common Stock of the Company, such Covered Holder shall not be entitled to
purchase securities of the Company pursuant to Section 20 of this Agreement with
respect to such issuance and sale; provided, that the foregoing provisions of
this clause (c) shall not apply with respect to any other Covered Holder.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
▇'▇▇▇▇▇▇▇▇ INDUSTRIES HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
and Chief Financial Officer
BANCBOSTON INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director of BancBoston Investments, Inc.
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EXHIBIT A
[Form of Class B Warrant Certificate]
[Face]
Private Placement and Transfer Restriction Legend: Each
Warrant shall bear the Private Placement Legend and Transfer Restriction Legend
on the face thereof:
No. ___________ ___Warrants
Class B Warrant Certificate
▇'▇▇▇▇▇▇▇▇ INDUSTRIES HOLDINGS, INC.
This Class B Warrant Certificate certifies that BancBoston
Investments, Inc. is the registered holder of Warrants expiring October 15, 2009
(the "Warrants") to purchase series B junior preferred stock, par value $0.01
(the "Preferred Stock"), of ▇'▇▇▇▇▇▇▇▇ Industries Holdings, Inc., a Delaware
corporation (the "Company"). Each Class B Warrant entitles the registered holder
upon exercise at any time from 9:00 a.m. November 30, 1999 (the "Exercise Date")
until 5:00 p.m. New York City Time on October 15, 2009 to receive from the
Company 0.3927 fully paid and nonassessable shares of Preferred Stock (the
"Warrant Shares") at the initial exercise price (the "Exercise Price") of $0.01
per share payable upon surrender of this Warrant Certificate and payment of the
Exercise Price at the offices of the Company, but only subject to the conditions
set forth herein and in the Warrant Agreement referred to on the reverse hereof.
The Exercise Price and number of Warrant Shares issuable upon exercise of the
Class B Warrant are subject to adjustment upon the occurrence of certain events
set forth in the Warrant Agreement.
No Class B Warrant may be exercised after 5:00 p.m., New York
City Time on October 15, 2009, and to the extent not exercised by such time such
Warrants shall become void.
Reference is hereby made to the further provisions of this
Class B Warrant Certificate set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
This Warrant Certificate shall be governed by and construed in
accordance with the internal laws of the State of New York.
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IN WITNESS WHEREOF, ▇'▇▇▇▇▇▇▇▇ Industries Holdings, Inc. has
caused this Class B Warrant Certificate to be signed below.
DATED: January 31, 2000
▇'▇▇▇▇▇▇▇▇ INDUSTRIES HOLDINGS, INC.
By: --------------------------------
- Name:
Title:
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[Reverse of Class B Warrant Certificate]
The Class B Warrants evidenced by this Class B Warrant
Certificate are issued pursuant to an Amended and Restated Class B Warrant
Agreement dated as of January ___, 2000 (the "Class B Warrant Agreement"), duly
executed and delivered by the Company to BancBoston Investments, Inc. which
Class B 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 of 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 Class B Warrant. A copy of the Class B
Warrant Agreement may be obtained by the holder hereof upon written request to
the Company.
Class B Warrants may be exercised at any time on or after
November 30, 1999 and on or before 5:00 p.m. New York City time on October 15,
2009; provided that holders shall be able to exercise their Class B Warrants
only if a registration statement relating to the Warrant Shares is then in
effect, or the exercise of such Class B Warrants is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and such securities are qualified for sale or exempt from qualification under
the applicable securities laws of the states in which the various holders of the
Class B Warrants or other persons to whom it is proposed that the Warrant Shares
be issued on exercise of the Class B Warrants reside. In order to exercise all
or any of the Class B Warrants represented by this Warrant Certificate, the
holder must deliver to the Company as its address set forth in Section 12 of the
Class B Warrant Agreement this Class B Warrant Certificate and the form of
election to purchase on the reverse hereof duly filled in and signed, and upon
payment to the Company of the Exercise Price, as adjusted as provided in the
Class B Warrant Agreement, for the number of Warrant Shares in respect of which
such Class B Warrants are then exercised. No adjustment shall be made for any
dividends on any Common Stock issuable upon exercise of this Class B Warrant.
The Class B Warrant Agreement provides that upon the
occurrence of certain events the Exercise Price set forth on the face hereof
may, subject to certain conditions, be adjusted. If the Exercise Price is
adjusted, the Class B Warrant Agreement provides that the number of shares of
Preferred Stock issuable upon the exercise of each Class B Warrant shall be
adjusted. No fractions of a share of Preferred Stock will be issued upon the
exercise of any Class B Warrant, but the Company will pay the cash value thereof
determined as provided in the Class B Warrant Agreement.
The Company has agreed pursuant to a Registration Rights
Agreement dated as of November 30, 1999 (the "Registration Rights Agreement") to
provide the holders of the Warrants with certain demand and piggy-back
registration rights with respect to the Preferred Stock purchasable upon
exercise of such Warrants, as set forth in the Registration Rights Agreement. A
copy of the Registration Rights Agreement may be obtained by the holder hereof
upon written request to the Company.
The Class B Warrants and the shares of Preferred Stock
underlying the Warrants are subject to certain restrictions or transfer and
other restrictions set forth in a Stockholders Agreement, dated November 30,
1999. Copies of the Stockholders Agreement may be obtained by the holder hereof,
upon written request to the Company.
Class B Warrant Certificates, when surrendered at the office
of the Company by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in the
manner and subject to the limitations provided in the Class B Warrant Agreement,
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but without payment of any service charge, for another Class B Warrant
Certificate or Class B Warrant Certificates of like tenor evidencing in the
aggregate a like number of Class B Warrants.
Upon due presentation for registration of transfer of this
Class B Warrant Certificate at the office of the Company a new Class B Warrant
Certificate or Class B Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Class B Warrants shall be issued to the transferee(s)
in exchange for this Class B Warrant Certificate, subject to the limitations
provided in the Class B Warrant Agreement, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Company may deem and treat the registered holder(s)
thereof as the absolute owner(s) of this Class B Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, the Company shall not be affected
by any notice to the contrary. Neither the Class B Warrants nor this Class B
Warrant Certificate entitles any holder hereof to any rights of a stockholder of
the Company.
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[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Class B Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Class B Warrant Certificate, to receive _____________
shares of Preferred Stock and herewith tenders payment for such shares to the
order of ▇'▇▇▇▇▇▇▇▇ INDUSTRIES HOLDINGS, INC., in the amount of the Aggregate
Exercise Price in accordance with the terms hereof. The undersigned requests
that a certificate for such shares be registered in the name of _______________,
whose address is __________________ and that such shares be delivered to
___________, whose address is ____________________________. If said number of
shares is less than all of the shares of Preferred Stock purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of such shares be registered in the name of
______________________, whose address is ____________________, and that such
Warrant Certificate be delivered to whose address is ___________________.
----------------------------------------
Signature
Date:
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EXHIBIT B
ASSIGNMENT
FOR VALUE RECEIVED, _________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Class B Warrant (Certificate No. W______) with respect to the number of shares
of the Preferred Stock covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
Dated: Signature _____________________
_____________________
Witness _____________________
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