Exhibit 4.3
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SOY ENVIRONMENTAL PRODUCTS, INC.
CLASS A WARRANT AGREEMENT
For the Issuance of Up to
900,000 Class A Warrants
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Exhibit 4.3
CLASS A WARRANT AGREEMENT
THIS CLASS A WARRANT AGREEMENT (the "Agreement") is made effective as
of the 3rd day of July, 1997, among SOY ENVIRONMENTAL PRODUCTS, INC., a Delaware
corporation (the "Company"), and FOX & COMPANY INVESTMENTS, INC. (the "Placement
Agent").
RECITALS:
A. The Company has entered into an agreement (the "Placement
Agreement") with the Placement Agent pursuant to which the Placement Agent has
agreed to assist the Company in the placement of up to 15 Units, each Unit
consisting of one $60,000 par value secured note and 60,000 Class A Warrants
("Warrants"), subject to the terms of the Placement Agreement (the "Offering").
B. Each Warrant entitles the holder to purchase one share of the
Company's Common Stock through September 30, 2000, subject to cancellation or
expiration of unexercised Warrants prior to such date upon certain events, as
set forth below.
C. The Company desires to provide for the form and provisions of the
Warrants, the terms upon which the Warrants shall be issued and exercised, and
the respective rights, limitation of rights, privileges and immunities of the
Company, and the registered holders of the Warrants.
D. All acts and things necessary to make the Warrants, when executed
and delivered on behalf of the Company as provided in this Agreement, the valid,
binding and legal obligations of the Company, and to authorize the execution and
delivery of this Agreement, have been done and performed.
AGREEMENT:
NOW, THEREFORE, it is hereby agreed as follows:
SECTION 1
ISSUE OF WARRANTS
1.1 Issuance of Definitive Warrants. On any closing under the Placement
Agreement (the "Warrant Date"), the Company will issue certificates, in
substantially the form attached as Exhibit A hereto ("Warrant Certificates"),
which are exchangeable for shares of the Company's common stock ("Common Stock")
only as provided in Article 2 hereof. Each Warrant evidences the right of the
registered holder thereof, subject to the terms and conditions hereof, to
subscribe for one share of Common Stock of the Company.
Exhibit 4.3
1.2 Execution and Delivery of Warrants. Each Warrant Certificate shall
be dated as of the Warrant Date and shall be signed on behalf of the Company by
the facsimile or manual signature of the President and Secretary. The Company
may adopt and use the facsimile or manual signature of any person who is such an
officer of the Company at the time of the execution of any Warrant Certificate,
irrespective of the date as of which the same is executed, or of any person now
or hereafter holding such office, notwithstanding the fact that at the time the
Warrant Certificate is issued such person has ceased to be an officer of the
Company. No Warrant shall be valid unless it shall have been signed and
delivered as provided in this Section 1.2.
SECTION 2
DURATION, EXERCISE AND REDEMPTION OF WARRANTS
2.1 Duration of Warrants and Terms of Exercise. Subject to earlier
exercise or cancellation as provided herein, each Warrant entitles the holder to
purchase one share of Common Stock or equivalent security of any successor to
the Company at a price of $1.00 per share (the "Purchase Price"), subject to
adjustment as provided herein, for a term, commencing on the Warrant Date and
ending September 30, 2000, (the "Exercise Period").
2.2 Exercise of Warrants. Warrants may be exercised by surrendering, at
the office of the Company, the Warrant Certificate evidencing such Warrants,
together with a subscription in the form set forth on the reverse side of the
Warrant Certificate, duly executed, and accompanied by the tender, in U.S.
dollars, of either federal funds or a certified check or bank cashier's check,
payable to the order of the Company for the applicable Purchase Price. The
Warrants may be exercised from time to time and at any time during the Exercise
Period, in minimum denominations of 100 shares. As soon as practicable after any
Warrants have been so exercised, the Company shall cause to be issued and
delivered to the holder, or upon the order of the registered holder of such
Warrants, in such name or names as may be directed by the holder, a certificate
or certificates for the number of full shares of Common Stock to which the
holder is entitled, and if such Warrant Certificate shall not have been
exercised in full, a new Warrant Certificate for the number of Warrants as to
which such Warrant Certificate shall not have been exercised. All Warrant
Certificates so surrendered shall be delivered to and cancelled by the Company.
2.3 Common Stock Issued Upon Exercise of Warrants. All shares of Common
Stock issued upon the exercise of Warrants shall be duly authorized, validly
issued and outstanding, fully-paid and nonassessable. Fractional shares of
Common Stock will not be issued upon exercise of a Warrant. With respect to any
fraction of a share called for upon any such exercise hereof, the Company shall
pay to the holder an amount in cash equal to such fraction multiplied by the
"Current Market Price Per Share," which on any date shall be determined as
follows:
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Exhibit 4.3
(a) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on any such exchange, the
Current Market Price Per Share shall be the average of the daily closing prices
for the 30 consecutive trading days commencing 35 trading days before such date.
If no sale is made on any trading day, the closing price shall be deemed to be
the average of the closing bid and asked prices for such day on such exchange;
or
(b) If the Common Stock is not listed or admitted to unlisted
trading privileges on any exchange, the Current Market Price Per Share shall be
the average of the 30 consecutive reported sale price (or prices, if applicable)
or the mean of the last reported bid and asked prices reported by the National
Association of Securities Dealers Automated Quotations System ("NASDAQ") or, if
not so quoted on NASDAQ, as quoted by the National Quotations Bureau, Inc., for
the 30 consecutive trading days commencing 35 days before such date; or
(c) If the Common Stock is not so listed or admitted to
unlisted trading privileges and prices are not reported on NASDAQ or the
National Quotations Bureau, Inc., the Current Market Price Per Share shall be
the fair market value of the Common Stock as determined by the Board of
Directors of the Company in good faith, whose determination shall be conclusive.
2.4 Record Date of Shares. Irrespective of the date of issue and
delivery of certificates for any Common Stock issuable upon the exercise of
Warrants, each person in whose name any such certificate is issued shall be
deemed to have become the holder of record of the shares represented thereby on
the date on which the Warrant Certificate surrendered in connection with the
subscription therefor was surrendered and payment of the Purchase Price was
tendered. No surrender of Warrant Certificates on any date when the stock
transfer books of the Company are closed, however, shall be effective to
constitute the person or persons entitled to receive shares upon such surrender
as the record holder of such shares on such date, but such person or persons
shall be constituted the record holder or holders of such shares at the close of
business on the next succeeding date on which the stock transfer books are
opened. Except as otherwise provided in Section 3.2, each person holding any
shares received upon exercise of Warrants shall be entitled to receive only
dividends or distributions payable to holders of record on or after the date on
which such person shall be deemed to have become the holder of record of such
shares.
2.5 Cancellation of Warrants. On 45 days' written notice the Company
may, at the option of the Company, cancel the Warrants if the closing bid price
as reported in the public markets for the Common Stock equals or exceeds $3.00
per share (the "Target Price") for 120 consecutive trading days in minimum daily
volumes of 2000 shares. Any cancellation shall also be subject to the following
conditions: (i) the Company must give, within 10 days after the end of the
particular 120 consecutive days upon which the cancellation is based ("Notice
Date"), a notice to each registered holder of Warrants stating the Company's
intention to cancel the Warrants and setting the date of such cancellation which
shall be a date not less than 45 days
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Exhibit 4.3
following the Notice Date (the "Cancellation Date"); and (ii) the Company must
permit each registered holder of any Warrants to exercise such Warrants through
the Cancellation Date as provided in Section 2.2 above. Notice of any
cancellation pursuant to this Section 2.5 shall be deemed given if mailed by
first class or certified mail on the date deposited in the United States Mail,
postage prepaid, addressed to the registered holder of Warrants to be cancelled
at the address as it appears on the books of the Company. Neither failure of
delivery of such notice nor defect therein or in the mailing thereof shall
affect the validity of the cancellation of any Warrants hereunder.
SECTION 3
ADJUSTMENT OF PURCHASE PRICE,
NUMBER OF SHARES OR NUMBER OF WARRANTS
3.1 General. The Purchase Price and the number of shares of Common
Stock covered by each Warrant and the number of Warrants outstanding are subject
to adjustment from time to time upon the occurrence of the events enumerated in
this Article 3.
3.2 Stock Dividends, Stock Splits, Combinations, Reclassification, etc.
In case the Company shall at any time after the date of this Agreement (a)
declare a dividend on the Common Stock payable in shares of Common Stock, (b)
subdivide the outstanding Common Stock into a larger number of shares, (c)
combine the outstanding Common Stock into a smaller number of shares, or (d)
issue any shares of its capital stock in connection with a reclassification of
the Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation), the
Purchase Price in effect at the time of the record date for such dividend or the
effective date of such subdivision, combination or reclassification, and/or the
number and kind of shares of stock issuable on such date shall be
proportionately adjusted so that the holder of any Warrant exercised after such
time shall be entitled, at no additional expense, to receive the aggregate
number and kind of shares of stock and Warrants which, if such Warrant had been
exercised immediately prior to such date, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
3.3 Distribution of Assets. If at any time after the date hereof the
Company shall make any distribution of its assets upon or with respect to its
Common Stock, as a liquidating or partial liquidating dividend (other than upon
a liquidation, dissolution or winding up of the Company as provided for in
Section 4.1, or other than as a dividend payable out of earnings or any surplus
legally available for dividends under the laws of Arizona), each registered
holder of any Warrant then outstanding shall, upon the exercise of such Warrant
after the record date for such distribution or, in the absence of a record date,
after the date of such distribution, receive in addition to the shares of Common
Stock to which the holder would otherwise be entitled hereunder, such assets
(or, at the option of the Company, a sum equal to the value
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Exhibit 4.3
thereof at the time of the distribution as determined by its Board of Directors
in its sole discretion) which would have been distributed to such registered
holder if the holder had exercised its Warrants immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
3.4 Consolidation, Merger and Sale of Assets. If, prior to the end of
the Exercise Period, the Company shall at any time consolidate with or merge
into another corporation, the holder of any Warrant will thereafter receive,
upon exercise thereof, in lieu of the shares of Common Stock of the Company
immediately theretofore issuable upon exercise of the rights then represented by
the Warrants, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares of the
Common Stock of the Company equal to the number of shares of such Common Stock
immediately theretofore issuable upon exercise of the Warrants, had such
consolidation or merger not taken place. The Company shall take such steps in
connection with such consolidation or merger as may be necessary to assure that
the provisions hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to any securities or property thereafter deliverable upon
the exercise of the Warrants. The Company or the successor corporation, as the
case may be, shall execute and deliver to the Placement Agent a supplemental
agreement so providing. The provisions of this Section 3.4 shall similarly apply
to successive mergers or consolidations. A sale of all or substantially all of
the assets of the Company for a consideration (apart from the assumption of
obligations) consisting primarily of securities, shall be deemed a consolidation
or merger for the foregoing purposes.
3.5 Dividends in Convertible Securities, Options, Rights or Warrants.
In case the Company shall issue stock, securities, rights, options, convertible
securities or warrants to all holders of the Common Stock entitling such holders
to subscribe for or purchase Common Stock or securities convertible into Common
Stock, each registered holder of any Warrant then outstanding shall, upon the
exercise of such Warrant after the record date for such distribution or, in the
absence of a record date, after the date of such distribution, receive in
addition to the shares of Common Stock to which the holder would otherwise be
entitled hereunder, such stock, securities, rights, options, convertible
securities or warrants which would have been distributed to such registered
holder if the holder had exercised its Warrants immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
3.6 Form of Warrant. The form of Warrant need not be changed because of
any change in the Purchase Price or the number of shares of Common Stock or
Warrants issuable upon exercise of the Warrants pursuant to this Article 3 and
Warrants issued after such change may state the same terms with respect to the
Purchase Price and number of shares of Common Stock and Warrants issuable
thereunder as stated in the Warrants initially issued pursuant to this
Agreement. The Company may at any time, in its sole discretion, make any change
in the form of Warrant that the Company may deem appropriate and that does not
affect the substance
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Exhibit 4.3
thereof in a manner inconsistent with this Agreement. Any Warrant thereafter
issued or countersigned, whether in exchange or substitution for an outstanding
Warrant or otherwise, may be in the form so changed.
3.7 Dividends. No registered holder of any Warrant shall, upon the
exercise thereof, be entitled to any dividend that may have accrued or which may
previously have been paid with respect to shares of stock issuable upon exercise
of the Warrants except as specifically provided in this Section 3.
3.8 Certification of Adjusted Purchase Price and Number of Shares and
Warrants Issuable. Whenever the Purchase Price and the number of shares of
Common Stock and Warrants issuable upon the exercise of each Warrant are
adjusted as provided in this Section 3, the Company shall (a) promptly prepare
an Officer's Certificate setting forth the Purchase Price as so adjusted, the
number of shares of Common Stock and Warrants issuable upon the exercise of each
Warrant as so adjusted and/or the number of Warrants as so adjusted and a brief
statement of the facts accounting for such adjustment, (b) promptly file with
the Placement Agent and with each transfer agent for the Common Stock a copy of
such certificate and (c) mail a brief summary thereof to each registered holder
of Warrants in accordance with Section 8.1. The term "Officer's Certificate" in
this Agreement shall mean a certificate or instrument signed by one of the
following: the Chief Executive Officer, the President, a Vice President, the
Treasurer or the Secretary of the Company.
SECTION 4
OTHER PROVISIONS FOR PROTECTION OF WARRANT HOLDERS
4.1 Liquidation of the Company. In the event of the liquidation,
dissolution or winding up of the Company, a notice thereof shall be filed by the
Company with the Placement Agent and each transfer agent for the Common Stock
(if the transfer agent is a person other than the Company) at least 30 days
before the record date (which date shall be specified in such notice) for
determining holders of the Common Stock entitled to receive any distribution
upon such liquidation, dissolution or winding up. Such notice shall also specify
the date on which the right to exercise Warrants shall expire, as provided in
Section 2.1. A copy of such notice shall be published once in an Authorized
Newspaper in Phoenix, Arizona, not more than 30 nor less than 20 days from such
record date. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of the liquidation, dissolution or winding up,
or of any distribution in connection therewith. The term "Authorized Newspaper"
when used with reference to the publication of a notice provided for in this
Agreement shall mean a newspaper printed in the English language and customarily
published on each business day (whether or not published on Saturdays, Sundays
or legal holidays) and of general circulation.
4.2 Reservation of Shares. The Company shall reserve and keep available
out of its authorized but unissued Common Stock such number thereof as shall
from time to time be
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Exhibit 4.3
sufficient to permit the exercise of all outstanding Warrants. If at any time
the number of authorized but unissued shares of Common Stock shall not be
sufficient for such purposes, the Company will take such corporate action as
may, in the opinion of its counsel be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
4.3 No Rights as Stockholder Conferred by Warrants. The Warrants shall
not entitle the registered holders thereof to any of the rights, either at law
or in equity, of a stockholder of the Company.
4.4 Lost, Stolen, Mutilated or Destroyed Warrants. If any Warrant
becomes lost stolen, mutilated or destroyed, the Company may, on such terms as
to indemnify or otherwise as may be reasonably required to save it harmless,
issue a new Warrant of the denomination, tenor and date as the Warrant so lost
stolen mutilated or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Company whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by any person.
4.5 Enforcement of Warrant Rights. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Warrants.
Any registered holder of any Warrant may in its own behalf and for its own
benefit enforce, and may institute and maintain any suit action or proceeding
against the Company suitable to enforce, or otherwise in respect of, the
holder's right to exercise its Warrant for the purchase of stock in the manner
provided in the Warrant and in this Agreement.
SECTION 5
REGISTRATION OF WARRANTS
AND
LOCK-UP
5.1 Shelf Registration.
(a) The Company shall use its best efforts to cause to be
filed with the Securities and Exchange Commission (the "Commission") no later
than three months after the final closing under the Offering, a shelf
registration statement on an appropriate form under Rule 415 under the
Securities Act of 1933, as amended ("Securities Act"), or any similar rule that
may be adopted by the Commission, providing for the sale by the Warrant holders
of the Warrants and the Common Stock issuable upon exercise of the Warrants (the
"Registrable Securities"). The Company shall use its best efforts to have such
shelf registration statement declared effective by the Commission as soon as
practicable after such filing. The Company agrees to use its reasonable best
efforts to keep the shelf registration statement effective for at least two
years after its effective date (and to take any and all other actions reasonably
necessary in order to permit public resale of the Warrants covered by such shelf
registration statement in
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Exhibit 4.3
accordance with this Agreement) throughout the Exercise Period. The Company
further agrees, if necessary, to supplement or amend the shelf registration
statement, if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such shelf registration statement
or by the Securities Act or by any other rules and regulations thereunder for
shelf registration, and the Company agrees to furnish notice thereof to the
holders of the Warrants.
(b) The Company shall pay all Registration Expenses (as
defined in Section 5.4 hereof) in connection with the registration pursuant to
Section 5.1.
5.2 Conditions Relating to Registration and Offer of Registrable
Securities.
(a) Subject to paragraph (b) of this Section 5.2, the
registration rights of the holders pursuant to this Agreement and the ability to
offer and sell Registrable Securities pursuant to the shelf registration
statement are subject to the following conditions and limitations, and each
holder agrees with the Company that:
(i) If the Company determines in its good faith
judgment that the filing of the shelf registration statement under
Section 5.1 hereof or the use of any prospectus would require the
disclosure of important information which the Company has a bona fide
business purpose for preserving as confidential or the disclosure of
which would impede the Company's ability to consummate a significant
transaction, upon written notice of such determination by the Company,
the rights of the holders to offer, sell or distribute any securities
pursuant to the shelf registration statement or to require the Company
to take action with respect to the registration or sale of any
securities pursuant to the shelf registration statement (including any
action contemplated by Section 5.3 hereof) will for up to sixty days in
any twelve month period be suspended until the date upon which the
Company notifies the holders in writing that suspension of such rights
for the grounds set forth in this Section 5.2(a)(i) is no longer
necessary.
(ii) If all reports required to be filed by the
Company pursuant to the Securities Exchange Act of 1934, as amended
("Exchange Act") have not been filed by the required date without
regard to any extension, or if consummation of any business combination
by the Company has occurred or is probable for purposes of Rule 3-05 or
Article 11 of Regulation S-X under the Securities Act, upon written
notice thereof by the Company to the holders, the rights of the holders
to offer, sell or distribute any securities pursuant to the shelf
registration statement or to require the Company to take action with
respect to the registration or sale of any securities pursuant to the
shelf registration statement (including any action contemplated by
Section 5.3 hereof) will for up to sixty days in any twelve month
period be suspended until the date upon which the Company has filed
such reports or obtained the financial information required by Rule
3-05 or Article 11 of Regulation S-X to be included in the shelf
registration statement.
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Exhibit 4.3
(iii) In the case of the registration of any
underwritten primary equity offering initiated by the Company (other
than any registration by the Company on Form S-8, or a successor or
substantially similar form, of (A) an employee stock option, stock
purchase or compensation plan or of securities issued or issuable
pursuant to any such plan, or (B) a dividend reinvestment plan), each
holder agrees, if requested in writing by the managing underwriter or
underwriters administering such offering, not to effect any offer, sale
or distribution of securities (or any option or right to acquire
securities) during the period commencing on the 10th day prior to the
effective date of the registration statement covering such underwritten
primary equity offering and ending on the date specified by such
managing underwriter in such written request to such holder, which
period may be of a duration of ninety days or more.
(iv) In the event that the Company plans to
repurchase or bid for securities of the Company in the open market, on
a private solicited basis or otherwise, and the Company determines, in
its reasonable good faith judgment and based upon the advice of counsel
to the Company (which counsel shall be experienced in securities laws
matters), that any such repurchase or bid may not, under Rule 10b-6
under the Exchange Act, or any successor or similar rule ("Rule
10b-6"), be commenced or consummated due to the existence or the
possible commencement of a "distribution" (within the meaning of Rule
10b-6) as a result of any offers or sales by holders of any Registrable
Securities, as the case may be, under any registration statement filed
pursuant to this Agreement, the Company shall be entitled, for a period
of ninety days or more, to request that holders of Registrable
Securities, to suspend or postpone such distribution pursuant to such
registration statement (a "10b-6 Election"). The Company shall, as
promptly as practicable, give such holder or holders written notice of
such 10b-6 Election, stating the basis for the Company's determination.
As promptly as practicable following the determination by the Company
that the holders or holders may commence or recommence their
distribution pursuant to the registration statement without causing the
Company to be in violation of Rule 10b-6, the Company shall give such
holder or holders written notice of such determination.
(b) Notwithstanding the provisions of Section 5.2(a) above,
the aggregate number of days (whether or not consecutive) during which the
Company may delay the effectiveness of the shelf registration statement or
prevent offerings, sales or distribution by the holders thereunder pursuant to
Section 5.2(a) shall in no event exceed one hundred eighty days during any
12-month period.
(c) The Company may require each selling holder of Registrable
Securities, as a condition to the inclusion of the Registrable Securities of
such selling holder in the shelf registration statement or in any offering
thereunder, as the case may be, to furnish to the Company such information
regarding the holder and the distribution of such securities as the Company may
from time to time reasonably request (which request shall be confirmed in
writing
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Exhibit 4.3
if requested by the Company) in order to comply with applicable law and such
other information as may be legally required in connection with such
registration or offering, and the holder shall promptly provide such information
and a written consent to the inclusion of such information in the registration
statement or any prospectus or supplement thereto; provided that the failure of
any holder to provide such information to the Company shall not in any way
affect the obligations of the Company hereunder with respect to any other
holder.
5.3 Shelf Registration Procedures. In connection with the obligations
of the Company with respect to the shelf registration statement pursuant to
Section 5.1(a) hereof and, to the extent applicable, Section 5.1(b) hereof, and
subject to Section 5.2 hereof, the Company shall:
(a) (i) prepare and file with the Commission a shelf
registration statement on the appropriate form under the Securities Act, (A)
which form shall be selected by the Company and shall be available for the sale
of the Registrable Securities in accordance with the intended method or methods
of distribution by the selling holders thereof (provided that the Company shall
not be required to use any form other than Form ▇-▇, ▇-▇, ▇-▇, ▇▇-▇ or SB-2 as
applicable or any successor form and shall not be required to file more than one
shelf registration statement with the Commission) and (B) which shelf
registration statement shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all
financial statements required by the Commission to be so included or
incorporated by reference, further provided that subject to the registration
statement and prospectus being in compliance with the requirements of the
Securities Act and the Exchange Act (including all rules and regulations of the
Commission thereunder), the Company has the sole discretion to determine the
form, substance and presentation of any financial or other information included
in any registration statement or prospectus, and whether such information should
be included in such registration statement or prospectus; and (ii) use its best
efforts to cause such shelf registration statement to become effective and
remain effective in accordance with Section 5.1 hereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the shelf registration statement as may be
necessary to keep such shelf registration statement effective for the applicable
period; and cause each prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act;
(c) in the event that any federal law or regulation binding on
the Company and adopted after the date hereof so requires (and would also so
require if the Registrable Securities were being offered in a primary offering
by the Company rather than by the holders), use its best efforts to cause such
Registrable Securities to be registered with or approved by such other federal
governmental agencies or authorities in the United States, if any, as may be
required by virtue of the business and operations of the Company to enable the
selling holders to consummate the disposition of such Registrable Securities;
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Exhibit 4.3
(d) furnish to each holder of Registrable Securities and to
each managing underwriter of an underwritten offering of Registrable Securities
pursuant to Section 4(1) of the Securities Act, if any, without charge, as many
copies of each prospectus, including each preliminary prospectus, and any
amendment or supplement thereto as such holder or underwriter may reasonably
request, in order to facilitate the public sale or other disposition of the
Registrable Securities;
(e) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions as any holder of Registrable Securities of such class
covered by the shelf registration statement shall, on 20 days prior written
notice, reasonably request in writing. Such notice to be sent at any time prior
to the applicable registration statement being declared effective by the
Commission. The Company shall maintain such registration or qualification in
effect during the applicable period provided in Section 5.1(a) hereof; provided,
however, that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 5(e); (ii) subject itself to taxation in any such
jurisdiction; (iii) make any change to its Articles or Incorporation or Bylaws;
or (iv) become subject to general service of process in any jurisdiction where
it is not then so subject;
(f) notify each holder of Registrable Securities as promptly
as practicable after becoming aware thereof and (if requested by any such
holder) confirm such notice in writing (i) when the shelf registration statement
has become effective and when any post-effective amendments and supplements
thereto become effective; (ii) of any request by the Commission or any state
securities authority for amendments and supplements to the shelf registration
statement and any prospectus or for additional information relating to the
Registrable Securities or the shelf registration or qualification thereof after
the registration statement has become effective; (iii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of the shelf registration statement or the initiation of any
proceedings for that purpose; (iv) if the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the Registrable Securities cease to
be true and correct in any material respect prior to the closing date specified
in such agreement (provided such notice shall be given only to holders which are
parties to the agreements pursuant to which such representations and warranties
are made), or if the Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and (v) of
the happening of any event during the period (other than any suspension period
referred to in Section 5.2(a)) during which the shelf registration statement is
required hereunder to be effective as a result of which the shelf registration
statement or any prospectus would contain an untrue statement of material fact
or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances in which they were made, not misleading;
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Exhibit 4.3
(g) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the shelf registration statement or the
qualification of the Registrable Securities for sale in any jurisdiction as
promptly as practicable;
(h) furnish to each holder of Registrable Securities, without
charge, at least one conformed copy of the shelf registration statement and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested in writing);
(i) cooperate with the holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the shelf registration statement
and not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the selling holders
may reasonably request (in each case, provided such certificates are requested
in writing at least three business days prior to any delivery thereof);
(j) upon the occurrence of any event contemplated by Section
5.3(f)(v) hereof, use its best efforts as promptly as practicable to prepare and
file with the Commission a supplement or post-effective amendment to the shelf
registration statement or the related prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the shelf registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act;
(l) use its best efforts to (i) cause all Registrable
Securities to be listed or quoted on any securities exchange or quotation system
on which the Company's outstanding Common Stock is then listed or quoted; and
(m) obtain a CUSIP number for all Registrable Securities not
later than the effective date of the shelf registration statement.
Each holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5.3(f)(v) hereof, such
holder will forthwith discontinue disposition of Registrable Securities pursuant
to the Registration Statement covering such
12
Exhibit 4.3
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5.3(j) hereof, or
until it is advised in writing by the Company that the use of such prospectus
may be resumed and, if so directed by the Company, such holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice; provided,
however, that the Company shall use its best efforts to promptly prepare and
provide to the holders a supplemented or amended prospectus contemplated by such
Section 5.3(j) hereof. In the event the Company shall give any such notice, the
period during which such Registration Statement shall be maintained effective
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 5.3(f)(v) hereof to
including the date when each holder of Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 5.3(j) hereof.
5.4 Registration Expenses.
(a) The Company will bear all reasonable expenses incident to
the performance of or compliance with its obligations under this Agreement,
including, without limitations, all registration and filing fees, all fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of one firm of counsel for the holders and any
underwriters in connection with blue sky qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of the
officers and employees of the Company performing legal or accounting duties),
and reasonable fees and disbursement of counsel for the Company and its
independent certified public accountants (including the reasonable expenses of
any special audit or comfort letters required by or incident to such
performance), securities acts liability insurance (if the company elects to
obtain such insurance), the reasonable fees and expenses of any special experts
retained by the Company in connection with such registration, reasonable fees
and expenses of any other persons retained by the Company and the fees and
expenses associated with any required filing with the National Association of
Securities Dealers, Inc. ("NASD") (all such expenses being herein called
"Registration Expenses"). Notwithstanding the foregoing, the Company is not
required to pay any fees or expenses of holders, underwriters, the holder's or
any underwriter's counsel (other than the blue sky counsel referred to above) or
accountant or any other advisers, including any transfer taxes, underwriting,
brokerage and other discounts and commissions and finders' and similar fees
payable in the respect of Registrable Securities.
(b) Each holder shall pay all costs and expenses incurred by
such holder (including all transfer taxes, underwriting, brokerage and other
discounts and commissions and
13
Exhibit 4.3
finders' and similar fees payable in respect of Registrable Securities). To the
extent that any Registration Expenses are incurred, assumed or paid by any
holder or any placement or sales agent therefor or underwriter thereof with the
Company's prior written consent, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid within a
reasonable time after receipt of a written request therefor. Any Registration
Expenses submitted by any holder, placement or sales agent or underwriter or on
behalf of any such person for payment by the Company shall be itemized in detail
and contain clear and accurate receipts of all expenditures made by such
parties.
5.5 Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless each
holder and each "person," if any, that controls such holder within the meaning
of Section 15 of the Securities Act for, from and against any and all loss,
liability, claim, damage and expense (including attorneys' fees) to the extent
resulting from any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act (or any amendment thereto),
including all documents incorporated therein by reference, or from the omission
or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statement therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as any such misstatement or omission or alleged misstatement or omission
is made therein in reliance upon and in conformity with information furnished to
the Company by such holder in writing expressly for use in a Registration
Statement (or any amendment thereto) or any prospectus (or any amendment or
supplement thereto) relating to the Registrable Securities. As used in this
Section 5.5(a), the term "holder" shall include its officers, directors and
agents.
(b) Each holder agrees to indemnify and hold harmless the
Company, its directors and officers and each "person," if any, who controls the
Company within the meaning of Section 15 of the Securities Act to the same
extent as the foregoing indemnity from the Company to such holder, but only with
respect to information furnished in writing by such holder or on such holder's
behalf expressly for use in any Registration Statement (or any amendment
thereto) or any prospectus (or any amendment or supplement thereto) relating to
the Registrable Securities, or any amendment or supplement thereto; provided
that the obligations or any holder to indemnify the Company and the other
persons referred to above shall be limited to the proceeds received by such
holder from the sale of such Registrable Securities pursuant to such
Registration Statement.
14
Exhibit 4.3
(c) If any action or proceeding (including any governmental
investigation) shall be brought or asserted against any person entitled to
indemnification hereunder, the indemnified party shall give prompt written
notice to the indemnifying party, and the indemnifying party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the indemnified party, and shall assume the payment of all expenses in
connection with such defense. The indemnified party or any controlling person of
such indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of the indemnified party or such
controlling person unless (i) the indemnifying party shall have agreed to pay
such fees and expenses; or (ii) the indemnifying party shall have failed to
assume the defense for such action or proceeding and to employ counsel
reasonably satisfactory to the indemnified party in any such action or
proceeding; or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the indemnified party or such
controlling person and the indemnifying party, and such indemnified party or
such controlling person shall have been advised by counsel that counsel employed
by the indemnifying party would, under applicable professional standards, have a
conflict in representing both the indemnifying party and the indemnified party
or such controlling person, in which case, if such indemnified person or such
controlling person notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
or proceeding of separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, and shall not be liable for the reasonable fees and expenses
of more than one separate firm of attorneys (together with appropriate local
counsel) at any time for such indemnified party and such controlling persons,
which firm shall be designated, if the holders (or their controlling persons)
are the indemnified parties, in writing by the holders of a majority of the
outstanding Registrable Securities owned by holders who are then entitled to
such indemnity in connection with such action or proceeding and if the Company
is the indemnified party, by the Company. No party shall be liable for any
settlement of any such action or proceeding effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent, or if there is a final judgment for the plaintiff in any such
action or proceeding, the indemnifying party agrees to indemnify and hold
harmless such indemnified party and such controlling person from and against any
loss or liability (to the extent stated above) by reason of such settlement or
judgment.
(d) (i) If the indemnification provided for in this Section
5.5 is unavailable to an indemnified party hereunder in respect of any losses,
claims, damages, liabilities or expenses, then each such indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnified party and the indemnifying party
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the indemnified party
15
Exhibit 4.3
and the indemnifying party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 5.5(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, expenses, liabilities, or
judgements referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5.5(d), no holder shall be required to contribute any amount in excess
of the amount by which the total price at which the Registrable Securities of
such selling holder were offered to the public pursuant to such Registration
Statement exceeds the amount of any damages which such selling holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person found guilty by a court of
competent jurisdiction of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not found guilty by a court of competent jurisdiction of such
fraudulent misrepresentation.
(e) Neither the Company nor the holders shall have any
obligation under this Agreement (other than as set forth in this Section 5.5) to
provide the other with indemnification or contribution in respect of any losses,
claims, damages, liabilities or expenses referred to in this Section 5.5;
provided, however, that the provisions of this Section 5.5 shall not relieve an
indemnifying party from liability which it may have to an indemnified party
other than with respect to the matters referred to in this Section 5.5.
5.6 Commission Filings.
The Company covenants that it will file the reports required
to be filed by it under the Exchange Act and the rules and regulations adopted
by the Commission thereunder in a timely manner as determined by applicable
rules and interpretations under the Exchange Act. Upon the written request of
any holder of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements.
5.7 Lock-up Agreement. Prior to the registration statement related to
the Registerable Securities being declared effective, the holders of
Registerable Securities shall not offer, sell dispose of, transfer or otherwise
reduce market risk with respect to such Registerable Securities, without the
prior consent of the Company and except for any transfer by operation of law.
The
16
Exhibit 4.3
foregoing notwithstanding, the percentage of Registerable Securities shall be
released from the above restrictions at the time periods as follows:
Time Cumulative Percentage Transferable
---- ----------------------------------
Effective Date of Registration 25%
Three Months After Effective Date 50%
Six Months After Effective Date 75%
Nine Months After Effective Date 100%
The above percentages apply to all securities of holder acquired in the
Offering. The Company shall place appropriate legends on the certificates
representing the Registerable Securities and instructions with its transfer
agent specifying that the Registerable Securities are subject to the restriction
on transfer as set forth above.
SECTION 6
TRANSFER AND OWNERSHIP OF WARRANTS
6.1 Negotiability and Ownership. Warrants issued hereunder shall be
registered and transferable only by transfer on the books of the Company.
Presentations may be made and notices and demands may be served at the office of
the Company.
6.2 Warrant Register. The Company shall cause to be kept a register or
registers in which, subject to such reasonable regulations as the Company may
prescribe, the Company shall register transfer of Warrants as herein provided.
Upon surrender for transfer of any Warrant, the Company shall sign, authenticate
and deliver in the name of the transferee or transferees a new Warrant
Certificate for a like amount of Warrants.
6.3 Exchange of Warrants. On and after the Warrant Date and prior to
the end of the Exercise Period, Warrant Certificates may be surrendered at the
office of the Company for exchange, and, upon cancellation thereof, there shall
be issued and delivered in exchange therefor, one or more new Warrant
Certificates, as requested by the registered holder of the cancelled Warrant
Certificate, for the same aggregate number of shares of Warrants evidenced by
the Warrant Certificate so cancelled. In case of any exchange pursuant to this
Section 6 or a transfer of a Warrant Certificate, the Company may make a charge
for reimbursement of any stamp or other tax or governmental charge required to
be paid in connection therewith, but no other charge shall be made to the
Warrant holder for any transfer or issue of new Warrant Certificate in case of
any such exchange.
17
Exhibit 4.3
6.4 Restrictions on Transferability.
(a) The Warrants and the Common Stock issuable upon exercise
of a Warrant (the "Exercise Shares") shall not be transferable except upon the
conditions hereinafter specified, which conditions are intended to ensure
compliance with the provisions of the Securities Act and any applicable state
securities laws, in respect of the transfer of any Warrant or of any Exercise
Shares.
(b) Each Warrant Certificate initially issued under this
Agreement and each Warrant Certificate issued in exchange therefor shall bear on
the face thereof a legend substantially as follows:
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY BE OFFERED OR SOLD ONLY IF REGISTERED UNDER
APPLICABLE SECURITIES LAWS OR IF AN EXEMPTION THEREFROM IS AVAILABLE.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF ARE TRANSFERABLE ONLY UPON THE CONDITIONS SPECIFIED IN THE
WARRANT AGREEMENT REFERRED TO HEREIN. A COPY OF THE WARRANT AGREEMENT
WILL BE PROVIDED TO THE REGISTERED HOLDER THEREOF UPON REQUEST TO THE
COMPANY.
(c) Each certificate for Exercise Shares initially issued upon
the exercise of any Warrant and each certificate for shares of Exercise Shares
issued to a subsequent transferee of such certificate shall, unless otherwise
permitted by the provisions of Section 6.4(d), bear on the fact thereof a legend
substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE OFFERED
OR SOLD ONLY IF REGISTERED UNDER APPLICABLE SECURITIES LAW OR PURSUANT
TO AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY STATING THAT SUCH
REGISTRATION IS NOT REQUIRED. THE TRANSFER OF SUCH SHARES IS SUBJECT TO
CERTAIN CONDITIONS. THE PROVISIONS OF WHICH WILL BE PROVIDED TO THE
REGISTERED HOLDER HEREOF UPON REQUEST BY THE COMPANY, AND NO TRANSFER
OF SUCH SHARES SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED.
(d) In the event that a registration statement covering any
Warrant or Exercise Shares shall become effective under the Securities Act and
under any applicable state securities laws or in the event that the Company
shall receive an opinion of its counsel that, in the opinion
18
Exhibit 4.3
or such counsel, such legend is not, or is no longer, necessary or required with
respect to such shares (including, without limitation, because of the
availability of the exemption afforded by Rule 144 of the general rules and
regulations of the Commission), the Company shall or shall instruct its transfer
agents and registrars to, remove such legend from the certificates evidencing
such Warrant or Exercise Shares or issue new certificates without such legend in
lieu thereof. Upon the written request of the holder of any Warrants or Exercise
Shares, the Company covenants and agrees forthwith to request its counsel to
render an opinion with respect to the matters covered by this paragraph and to
bear all expenses in connection with such opinion of its counsel.
(e) The holder of each Warrant or any Exercise Shares, by
acceptance thereof, agrees to give prior written notice to the Company of such
holders intention to transfer such Warrant or such Exercise Shares (or any
portion thereof), describing briefly the manner and circumstances of the
proposed transfer, together with an opinion of counsel to the effect that the
proposed transfer may be effected without registration or qualification under
any federal or state law. Unless the Company shall have received an opinion from
counsel to the Company (which opinion shall be obtained by the Company not more
than ten days after notice of a proposed transfer) that the proposed transfer
may not be effected without registration or qualification under federal or state
law, such holder shall be entitled to transfer such Warrant or such Exercise
Shares, all in accordance with the terms of the notice delivered by such holder
to the Company. All fees and expenses of counsel for the Company in connection
with the rendition or the opinion provided for in this Section 6.4(e) shall be
paid by the Company.
(f) If in the opinion of either counsel referred to in Section
6.4(e) a proposed transfer of a Warrant or Exercise Shares requested by the
holder thereof may not be effected without registration or qualification under
applicable federal or state law, the Company shall promptly give written notice
to the holder who proposed to transfer the Warrant or Exercise Shares (or any
portion thereof) that the holder shall not consummate the proposed transfer and
the reasons therefor. No Warrant or Exercise Shares (or any portion thereof) for
which a transfer has been proposed pursuant to Section 6.4(e) may be transferred
in the manner proposed if registration thereof under the Securities Act would be
required in the opinion of either counsel mentioned above.
6.5 Agreement of Warrant Holders. Every holder of a Warrant
Certificate, by accepting the same, consents and agrees with the Company and
with all other Warrant holders that: (a) the Warrants are transferrable only as
permitted by Section 6.01 above; (b) the Warrants are transferable only on the
registry books of the Company as herein provided; and (c) the Company may deem
and treat the person in whose name the Warrant Certificate is registered as the
absolute owner thereof and of the Warrants evidenced thereby for all purposes
whatsoever, and the Company shall not be affected by any notice to the contrary,
whether such notice be in the form of notations on the Warrant Certificates or
otherwise.
19
Exhibit 4.3
SECTION 7
MODIFICATION
7.1 Modification of Agreement. The Placement Agent may, without the
consent or concurrence of the registered holders of the Warrants by supplemental
agreement or otherwise, concur with the Company in making any changes or
corrections in these presents as to which it shall have been advised by counsel
(who may but need not also be counsel for the Company) that the same are not
prejudicial to the rights of the Warrant holders as indicated by the general
sense or intent of the original language and are required for the purpose of
curing or correcting the inconsistent provision or clerical omission or mistake
or manifest error herein contained or as otherwise provided in Section 7.2
below.
7.2 Consolidation of Warrant Classes.
(a) At any time and from time to time after the final Warrant
Date, the Company may consolidate the Warrants with any other class of warrants
of the Company outstanding provided at the time of such consolidation the
rights, limitation of rights, privileges and immunities of the holders of
Warrants as set forth in this Agreement are not altered and the rights,
limitations of rights, privileges and immunities of the class or classes of
Warrants which the Warrants may be consolidated with are substantially similar
to the rights, limitations or rights, privileges and immunities of the Warrants.
(b) Upon determination by the Company to consolidate any other
class of Warrants and as provided in Section 7.2(a), the Company shall give
notice thereof to the Placement Agent and provide the modification to this
Agreement as necessary to effectuate the consolidation and the Placement Agent
may enter into and execute such agreements to so modify this Agreement as
provided in Section 7.1 above.
SECTION 8
CERTAIN DEFINITIONS AND OTHER MATTERS
8.1 Notice of Proposed Actions. In case the Company shall propose (a)
to pay any dividend payable in stock of any class or to make any other
distribution to the holders of its Common Stock (other than a cash dividend), or
(b) to offer to the holders of its Common Stock rights or warrants to subscribe
for or to purchase any additional shares of Common Stock, or (c) to effect any
stock dividend, stock split, combination or reclassification of its Common
Stock, or (d) to effect any distribution of assets or capital reorganization,
merger, consolidation or sale, transfer or other disposition of all or
substantially all of its assets or business, or (e) to effect the liquidation,
dissolution or winding-up of the Company, or (f) to effect any other transaction
which would, upon consummation, result in a change in the Purchase Price of the
Warrants or the number of shares of Common Stock issuable upon exercise of the
Warrants
20
Exhibit 4.3
pursuant to Sections 2 and 3 hereof, the Company shall give notice to each
holder of a Warrant in accordance with Section 8.02 of such proposed action,
which shall specify the date on which a record is to be taken for purposes of
such proposed transaction. Such notice shall be given not later than 15 days
prior to the record date for determining the holders of Common Stock for
purposes of such action or, if no record date is required, not later than 15
days prior to the date of the taking of such proposed action.
8.2 Notices. Any notice or demand authorized by this Agreement to be
given or made by the Placement Agent or by the holder of any Warrant Certificate
to or upon the Company shall be sent by first class mail, postage prepaid,
addressed (until another address or notice of address change is filed in writing
by the Company with the Placement Agent) and received by the noticed party as
follows:
Soy Environmental Products, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or demand authorized by this Agreement to be given or made by the
Company or by the holder of any Warrant Certificate to or on the Placement Agent
shall be deemed given or made if sent by first class mail, postage prepaid,
addressed (until another address is filed in writing by the Placement Agent with
the Company) and received by the noticed party as follows:
Fox & Company Investment, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices or demands authorized by this Agreement to be given or made by the
Company or the Placement Agent to the holder of any Warrant Certificate shall be
deemed given or made if sent first class mail, postage prepaid, addressed to
such holder at the address of such holder as shown on the registry books of the
Company.
8.3 Payment of Taxes. The Company will from time to time promptly pay
or make provision for the payment of any and all taxes and charges which may
hereafter be imposed by the laws of the United States or of any state or any
local governmental unit thereof and which shall be payable with respect to the
issuance or delivery to or upon the order of the registered holders of the
Warrants (upon the exercise of the right to subscribe) of Common Stock of the
Company pursuant to the terms of such Warrants and of this Agreement, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.4 Applicable Law. The validity, interpretation and performance of
this Agreement and the validity and interpretation of the Warrants shall be
governed by the laws of the State of Arizona.
21
Exhibit 4.3
8.5 Copies of Agreement. A copy of this Agreement shall be provided to
any registered holder of a Warrant or Exercise Shares upon written request
thereof to the Company. A copy of this Agreement shall also be available at all
reasonable times at the office of the Company for examination by the registered
holder of any Warrant. Any such registered holder may be required to submit his
Warrant for inspection before being entitled to receive a copy of this Agreement
or to make such examination.
IN WITNESS WHEREOF, this Agreement shall been duly executed by the
parties hereto under their respective corporate seals, as of the date first
above written.
SOY ENVIRONMENTAL PRODUCTS, INC.
a Delaware corporation
By /s/ ▇▇▇▇ ▇. ▇▇▇
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇, Chief Executive Officer
FOX & COMPANY INVESTMENTS, INC.,
an Arizona corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
22
Exhibit 4.3
EXHIBIT A
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE OFFERED OR SOLD ONLY IF REGISTERED UNDER APPLICABLE SECURITIES LAWS OR IF AN
EXEMPTION THEREFROM IS AVAILABLE. THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE HEREOF ARE TRANSFERABLE ONLY UPON THE CONDITIONS
SPECIFIED IN THE WARRANT AGREEMENT REFERRED TO HEREIN. A COPY OF THE WARRANT
AGREEMENT WILL BE PROVIDED TO THE REGISTERED HOLDER THEREOF UPON REQUEST TO THE
COMPANY.
SOY ENVIRONMENTAL PRODUCTS, INC.
CLASS A WARRANT CERTIFICATE
No. AW-__ Warrants to Purchase
__________ Shares
THIS IS TO CERTIFY that, _______________________________ or registered
assigns, is the registered holder ("Holder") of the number of Class A Warrants
("Warrants") set forth above, each of which entitles the holder to purchase,
subject to the terms and conditions set forth in the Warrant Agreement, dated
__________________, 1997 (the "Warrant Agreement"), and as hereinafter set
forth, fully paid and non-assessable shares of the common stock ("Common
Stock"), of Soy Environmental Products, Inc., a Delaware corporation (the
"Company"), or equivalent security of any successor thereto at a purchase price
of $1.00, as adjusted, for a term commencing on the date hereof and ending
September 30, 2000, and to receive one or more certificates for the Common Stock
or equivalent securities so purchased, upon satisfaction of one or more
conditions precedent set forth herein and presentation and surrender to the
Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or
such other place as specified by the Company with the form of subscription duly
executed, and accompanied by payment of the purchase price of each share
purchased, in U.S. dollars, either in cash or by certified check or bank
cashier's check, payable to the order of the Company. Notwithstanding the
foregoing, the Warrants may, upon certain events, expire or be cancelled on a
date prior to September 30, 2000, as set forth in the Warrant Agreement.
Warrants are exercisable in minimum denominations of 100 shares. Fractional
shares of the Company's Common Stock will not be issued upon the exercise of the
Warrants.
The Company covenants and agrees that all shares of Common Stock
delivered upon the exercise of these Warrants will, upon delivery, be fully paid
and non-assessable. The Warrants
A-1
Exhibit 4.3
shall not be exercisable in any jurisdiction where exercise would be unlawful.
The Company will use its best efforts to qualify the shares that may be
purchased upon exercise of these Warrants for sale in all jurisdictions where
holders of the Warrants reside. However, the Company shall not be required to
honor the exercise of the Warrants if, in the opinion of the Board of Directors,
upon advice of counsel, the sale of securities upon exercise of the Warrants
would be unlawful.
The number of shares of Common Stock, or other equivalent equity
security, issuable upon the exercise of these Warrants and the purchase price
shall be subject to adjustment from time to time, in certain events, as set
forth in the Warrant Agreement, including certain sales of additional stock,
stock options, convertible securities, distribution of stock dividends, stock
splits, reclassifications or mergers.
The Company agrees at all times to reserve or hold available, or cause
to reserve or hold available, a sufficient number or shares of its Common Stock,
or other equivalent equity security, to cover the number of shares, or other
equivalent equity security, issuable upon the exercise of these and all other
Warrants of like tenor then outstanding.
This Warrant Certificate does not entitle the holder hereof, either at
law or in equity, to and voting rights or other rights as a shareholder of the
Company, or to any other rights whatsoever except the rights expressly herein
set forth, and no dividend shall be payable or accrue in respect of these
Warrants or the interest represented hereby, or the shares that may be purchased
upon exercise hereof until or unless, and except to the extent that, these
Warrants shall be duly exercised.
This Warrant Certificate is exchangeable at any time prior to
expiration upon the surrender hereof by the registered holder to the Company for
one or more new Warrant Certificates of like tenor and date representing in the
aggregate the right to purchase the number of shares that may be purchased upon
exercise hereof, each of such new Warrant Certificates to represent the right to
purchase such number of shares as may be designated by the registered holder at
the time of such surrender. The Warrants and the shares of Common Stock issuable
upon exercise of the Warrants are subject to restriction on transferability as
described in the Warrant Agreement.
The Company may deem and treat the registered holder of this Warrant
Certificate at any time as the absolute owner hereof and of the Warrants covered
hereby for all purposes and shall not be affected by any notice to the contrary.
The Warrants evidenced by this Warrant Certificate are subject to the
terms of the Warrant Agreement which is available upon request by the registered
holder of this Certificate or Company or at the office of the Company. The
Warrant Agreement is incorporated herein by reference and made a part hereof and
reference is hereby made to the Warrant Agreement
A-2
Exhibit 4.3
for a full description of the rights, limitations of rights, obligations, duties
and immunities hereunder of the Company and the holders of the Warrants.
This Warrant Certificate shall not be valid or obligatory for any
purpose unless signed by the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be executed by its duly authorized officers, and the corporate seal hereunto
affixed.
SOY ENVIRONMENTAL PRODUCTS, INC.
By_____________________________________
Its____________________________________
A-3
Exhibit 4.3
[FORM OF REVERSE SIDE OF CERTIFICATE]
ASSIGNMENT FORM
To assign this Warrant, fill in the form below:
I or we assign and transfer this Warrant to: (Insert Assignee's Social Security
or Tax Identification No.)
________________________________________________________________________________
________________________________________________________________________________
(Pen or type assignee's name, address and zip code)
and irrevocably appoint __________________________________ as agent to transfer
this Warrant on the books of the Company. The agent may substitute another to
act for him.
Date:_________________ Your Signature:_________________________________________
(Sign exactly as your name appears on the
other side of this Warrant Certificate)
Signature Guarantee:____________________________________________________________
By__________________________________________
The signature should be guaranteed by an eligible guarantor institution (a bank,
stockbroker, savings and loan association or credit union with membership in an
approved signature guarantee medallion program) pursuant to Rule 17Ad-15 of the
Securities Exchange Act of 1934.
A-4
Exhibit 4.3
SUBSCRIPTION
(To be completed and signed only upon an exercise
of the Warrants in whole or in part)
TO: SOY ENVIRONMENTAL PRODUCTS, INC.
The undersigned, the holder of the attached Warrants, hereby
irrevocably elects to exercise the purchase right represented by the Warrants
for, and to purchase thereunder, shares of Common Stock (as such terms are
defined in the Warrant Agreement dated ___________, 1997, from Soy Environmental
Products, Inc. (or other securities or property), and herewith makes payment of
$_________ therefor in cash or by certified or official bank check. The
undersigned hereby requests that the Certificate(s) for such securities be
issued in the name(s) and delivered to the address(es) as follows:
Name:___________________________________________________________________________
Address:________________________________________________________________________
Deliver to:_____________________________________________________________________
Address:________________________________________________________________________
If the foregoing Subscription evidences an exercise of the Warrants to
purchase fewer than all of the shares of Common Stock (or other securities or
property) to which the undersigned is entitled under such Warrants, please issue
new Warrants, of like tenor, for the remaining Warrants (or other securities or
property) in the name(s), and deliver the same to the address(es), as follows:
Name:___________________________________________________________________________
Address:________________________________________________________________________
DATED:_______________, 19__.
_____________________________________________
(Name of Holder)
_____________________________________________
(Signature of Holder or Authorized Signatory)
_____________________________________________
(Social Security or Taxpayer Identification
Number of Holder)
A-5