Exhibit 4.1
WARRANT AGREEMENT
WARRANT AGREEMENT (this "Agreement") dated as of December 13, 2002
between Vishay Intertechnology, Inc., a Delaware corporation (the "Company"),
and American Stock Transfer & Trust Co., a New York corporation, as warrant
agent (the "Warrant Agent").
WHEREAS, the Company and certain of the Initial Holders have entered
into that certain Share Sale and Purchase Agreement, of even date herewith (the
"Purchase Agreement"), by and among the parties thereto, pursuant to which,
among other things, the Company has agreed to issue to the Holders (i) Warrants
to purchase up to an aggregate of 7,000,000 shares of the Company's common
stock, par value $0.10 per share, as evidenced by warrant certificates in the
form attached hereto as Exhibit A (the "Class A Warrants") at the Class A
Exercise Price and (ii) Warrants to purchase up to an additional 1,823,529
shares of the Company's common stock, par value $0.10 per share, as evidenced by
warrant certificates in the form attached hereto as Exhibit B (the "Class B
Warrants") at the Class B Exercise Price.
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exercise, exchange and replacement of the certificates representing
the Warrants (as defined herein) (the "Warrant Certificates") and other matters
provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
terms, when capitalized, shall have the meanings assigned below:
"Affiliate" means, with respect to any Person, any entity which
controls such Person, any entity which such Person controls, or any entity
which is under common control with such Person.
"Business Day" means any day other than a Saturday, Sunday or legal
holiday on which the commercial banks in the City of New York, Borough of
Manhattan, are required or permitted by law to remain closed.
"Class A Warrants" has the meaning specified in the preamble.
"Class A Exercise Price" means US$20.00, as such price may be
modified from time to time in accordance with the provisions herein.
"Class B Warrants" has the meaning specified in the preamble.
"Class B Exercise Price" means US$30.30, as such price may be
modified from time to time in accordance with the provisions herein.
"Common Stock" means the common stock, par value $0.10 per share, of
the Company and any other security exchanged or substituted for such
common stock or into which such common stock is converted in any
recapitalization, reorganization, merger,
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consolidation, share exchange or other business combination transaction,
including any reclassification consisting of a change in par value or a
change from par value to no par value or vice versa.
"Daily Market Price" for any trading day means the volume-weighted
average of the per share selling prices on the New York Stock Exchange or
other principal United States securities exchange or inter-dealer
quotation system on which the relevant security is then listed or quoted
or, if there are no reported sales of the relevant equity security on such
trading day, the average of the high bid and low ask price for the
relevant equity security on the last trading day on which such sale was
reported or, if there are no high bid and low ask prices, the Daily Market
Price shall be the per share fair market value of the relevant equity
security as determined by an investment banking firm of national
reputation and standing selected by the Company and reasonably acceptable
to a Majority of the Warrant Holders (in which case, only a single
determination of value need be made by an investment banking firm,
notwithstanding any provision in the Agreement requiring an average over
more than one (1) trading day).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as the same
may be amended from time to time.
"Exercise Notice" has the meaning specified in Section 5.
"Exercise Price" means the Class A Exercise Price (with respect to
the Class A Warrants) or the Class B Exercise Price (with respect to the
Class B Warrants).
"Expiration Date" means 5:00 P.M. New York City time, December 13,
2012.
"Holder" means the Initial Holders and their successors and
permitted assigns who become holders of Warrants in a manner permitted
under this Agreement, in each case until the relevant person ceases to be
a Holder of Warrants in accordance with the provisions hereof.
"Initial Holder" means the persons to whom or for whose benefit
Warrants are issued under the terms of the Purchase Agreement and who are
listed on Schedule I hereto, in each case until the relevant person ceases
to be a Holder of Warrants in accordance with the provisions hereof. For
the avoidance of doubt, the definition of Initial Holder shall include
Phoenix Bermuda, an Affiliate of Phoenix.
"Issue Date" means the date of this Agreement, which is the date as
of which the Warrants are first being issued.
"Majority of the Warrant Holders" means, at any relevant time, the
Holders of Warrants that are exercisable for more than 50% of the Warrant
Shares for which all outstanding Warrants are exercisable at such time.
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"Person" means any individual, corporation, partnership, limited
liability company, trust, foundation, joint venture, association, joint
stock company, unincorporated organization, government agency, estate or
other entity of any nature.
"Phoenix" means Phoenix Acquisition Company S.ar.l., a
company organized under the laws of Luxembourg and an Initial
Holder.
"Phoenix Bermuda" means Phoenix Bermuda, LP, a Bermuda limited
partnership and an Affiliate of Phoenix.
"Purchase Agreement" has the meaning specified in the Preamble.
"Regulation S" means Regulation S under the Securities Act,
including any successor rule or regulation.
"Rule 144" means Rule 144 under the Securities Act, including any
successor rule or regulation.
"Rule 144A" means Rule 144A under the Securities Act, including any
successor rule or regulation.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder, as the same
may be amended from time to time.
"Transfer" means any disposition of any Warrants or of any interest
therein, which would constitute a "sale" within the meaning of the
Securities Act.
"Transfer Agent" has the meaning specified in Section 10.
"Transfer Document" has the meaning specified in Section 4.
"Warrants" means Class A Warrants or Class B Warrants, subject to
adjustment as specified in this Agreement.
"Warrant Agent" has the meaning specified in the preamble.
"Warrant Certificates" has the meaning specified in the preamble.
"Warrant Register" has the meaning specified in Section 3.
"Warrant Shares" means shares of Common Stock issuable or issued
upon exercise of the Warrants, which shall be subject to adjustment as
specified in this Agreement.
Where the reference "hereof," "hereby" or "herein" appears in this
Agreement, such reference shall be deemed to be a reference to this Agreement as
a whole. Whenever the
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words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." Words denoting
the singular include the plural, and vice versa, and references to it or its or
words denoting any gender shall include all genders.
SECTION 2. Warrant Certificates.
(a) Initial Issuance. Promptly following the execution of this
Agreement, the Company shall deliver to the Warrant Agent a list of the names of
the Initial Holders and the number and class of Warrants to which each Initial
Holder is entitled, totaling, in the aggregate, Warrants to issue 8,823,529
shares of Common Stock. The Company shall deliver to the Warrant Agent, along
with this Agreement, a sufficient number of duly executed Warrant Certificates.
The Warrant Agent is hereby authorized by the Company to promptly issue and
deliver (i) the Class A Warrants, as evidenced by warrant certificates in the
form attached hereto as Exhibit A, to purchase the number of shares of Common
Stock of the Company as set forth in the Purchase Agreement and (ii) the Class B
Warrants, as evidenced by warrant certificates in the form attached hereto as
Exhibit B, to purchase the number of shares of Common Stock of the Company as
set forth in the Purchase Agreement. The Warrant Certificates requested by the
Company shall be completed and countersigned by the Warrant Agent and promptly
delivered to the Company to be mailed or delivered to the Holders pursuant to
the terms hereof.
(b) Forms of Warrant Certificates. Each Warrant Certificate to be
delivered pursuant to the Purchase Agreement, and any additional Warrant
Certificate that may be issued upon partial exercise, replacement or transfer of
any Warrant, shall be in registered form only and shall be substantially in the
form set forth in Exhibit A hereto (if such Warrant is a Class A Warrant) or
Exhibit B (if such Warrant is a Class B Warrant) (including the form of election
and the form of assignment). A single Warrant Certificate may evidence the
issuance to a holder thereof of more than one Warrant; provided, however, that
Class A Warrants and Class B Warrants may not be evidenced together by the same
certificate. Warrants may be divided or combined with other Warrants owned by
the same Holder upon presentation at the office of the Warrant Agent, together
with a written notice specifying the denominations in which new Warrants are to
be issued, signed by the Holder thereof or its agent or attorney. As to any such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined.
(c) Execution of Warrant Certificates. Warrant Certificates shall be
signed on behalf of the Company by the Chairman or Vice Chairman of the Board or
its President or a Vice President and by its Secretary or an Assistant Secretary
under its corporate seal, and countersigned by an authorized officer of the
Warrant Agent. Each such signature upon the Warrant Certificates may be in the
form of a facsimile signature of the present or any future Chairman or Vice
Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates, and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman or Vice Chairman of the
Board, President, Vice President, Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Warrant Certificates shall be
delivered or disposed of he shall have ceased to hold such office. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
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In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been disposed of by the Company, such Warrant
Certificates nevertheless may be delivered or disposed of as though such person
had not ceased to be such officer of the Company; and any Warrant Certificate
may be signed on behalf of the Company by any person who, at the actual date of
the execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the execution
of this Warrant Agreement any such person was not such an officer.
(d) Rights Conferred. Each Class A Warrant shall evidence the right to
purchase one share of Common Stock at the Class A Exercise Price of $20.00
(subject to adjustment as described herein). Each Class B Warrant shall evidence
the right to purchase one share of Common Stock at the Class B Exercise Price of
$30.30 (subject to adjustment as described herein). Following the Expiration
Date, any Warrant not previously exercised shall be null and void.
SECTION 3. Warrant Register. The Warrant Agent shall number and
register the Warrant Certificates in a register (the "Warrant Register") as they
are issued. The Company may deem and treat such registered Holders of the
Warrant Certificates as the absolute owners thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for all
purposes, and shall not be affected by any notice to the contrary.
SECTION 4. Transfers.
(a) Restrictions on Transfer. Each Holder agrees that any proposed
Transfer of any Warrant may be effected only (1)(w) inside the United States (I)
to a person who the seller reasonably believes is a qualified institutional
buyer within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A, (II) in accordance with Rule 144 or (III) pursuant to another
exemption from the registration requirements of the Securities Act, (x) to the
Company, (y) outside the United States (I) to a non-U.S. person (within the
meaning of Regulation S) in a transaction meeting the requirements of Regulation
S or (II) pursuant to another exemption from the registration requirements of
the Securities Act or (z) pursuant to an effective registration statement and
(2) in each case, in accordance with the applicable securities laws of any state
of the United States or any other applicable jurisdiction. Each Holder agrees to
notify any purchaser of the resale restrictions set forth above.
(b) Requirements Prior to Transfer. Prior to any Transfer or proposed
Transfer of any restricted Warrants, the Holder thereof shall deliver written
notice, a form of which is attached hereto, to the Company and the Warrant Agent
of such holder's intention to effect such transfer. If the Transfer or proposed
Transfer is pursuant to clause (1)(w) or (1)(y) of the first sentence of the
preceding paragraph, then upon receipt of such notice, the Company may request
any or all of the following (each, a "Transfer Document") in a form reasonably
acceptable to the Company:
(i) an agreement by such transferee to the impression of the
restrictive investment legend set forth below on the Warrant;
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(ii) an agreement by such transferee, in form and substance
reasonably satisfactory to the Company, to be bound by the
provisions of this Section 4 relating to the transfer of such
Warrant; and
(iii) an opinion of counsel with expertise in securities law matters
reasonably satisfactory to the Company that such Transfer
complies with applicable securities laws.
If the Company requests any Transfer Document(s), it shall do so as
promptly as practicable following receipt of the Holder's notice of intention to
Transfer. The Company shall thereafter cause the Transfer to be recorded and a
certificate or other evidence of ownership in the name of the transferee to be
delivered as soon as practicable after it has received Transfer Documents
complying with the terms of this Section 4(b).
(c) Legend. The Holders agree that each Warrant Certificate shall bear
a legend to the following effect:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED, OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO A TRANSACTION THAT IS
EXEMPT FROM SUCH REGISTRATION.
The foregoing legend shall be in addition to any other legend required by law.
(d) Termination of Restrictions. The restrictions referenced in
Section 4(a), 4(b), and 4(c) of this Agreement, including the legend, shall
cease and terminate as to any particular Warrants or Warrant Certificates when
(x) such Warrants or Warrant Shares have been transferred in a transaction
pursuant to Rule 144 or a registration statement or (y) in the reasonable
opinion of counsel for the Company, such restriction is no longer required in
order to assure compliance with the Securities Act and applicable state
securities laws. Whenever such restrictions shall cease and terminate as to any
Warrants, the Holder of such Warrants shall be entitled to receive from the
Company, without expense (other than applicable transfer taxes, if any, if such
unlegended shares are being delivered and transferred to any person other than
the registered Holder thereof), new certificates for a like number of Warrants
not bearing the relevant legend(s) set forth in Section 4(c).
(e) Registration of Warrants. The Warrant Agent shall from time to
time register the Transfer of any outstanding Warrant Certificates in the
Warrant Register upon surrender thereof accompanied by a written instrument or
instruments of transfer in the form set forth herein, duly executed by the
registered Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of
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Transfer, the Warrant Agent shall issue a new Warrant Certificate to the
transferee(s), and the surrendered Warrant Certificate shall be canceled and
disposed of by the Warrant Agent. If less than all of the Warrants represented
by a Warrant Certificate are Transferred, the Warrant Agent shall issue to the
Holder a Warrant Certificate representing the remaining Warrants.
(f) Transfer from Phoenix to Phoenix Bermuda. Upon notice by Phoenix
to the Company that it intends to Transfer all or part of the Warrants that it
holds to Phoenix Bermuda, which the parties anticipate will take place within a
reasonably short period of time after the date of this Agreement, the Company
shall cause, as soon as practicable after it has received such notice, such
Transfer to be recorded and a certificate or other evidence of ownership in the
name of Phoenix Bermuda to be delivered to Phoenix Bermuda (or such other entity
as Phoenix Bermuda may direct). Such Transfer shall not be required to comply
with the terms of Section 4(b) above.
SECTION 5. Exercise of Warrants.
(a) Exercise. A Warrant may be exercised upon surrender to the Warrant
Agent (at its office designated for such purpose, the initial address of such
office being listed in Section 15 hereof) of the Warrant Certificate or
Certificates evidencing the Warrants to be exercised with the form of election
to purchase attached hereto (the "Exercise Notice") duly filled in and signed,
together with any documentation or opinion reasonably required by the Company or
the Warrant Agent specified in Section 5(b) below, and (except as provided in
Section 5(e)) upon payment to the Company of the applicable Exercise Price for
the number of Warrant Shares in respect of which such Warrants are then
exercised. Payment of such aggregate Exercise Price shall be made by wire
transfer to an account of the Company or by certified or official bank check to
the order of the Company. All Warrant Certificates surrendered upon exercise of
Warrants shall be canceled and disposed of by the Warrant Agent. Each Warrant
initially shall be exercisable for one share of Common Stock, subject to
adjustment as provided herein.
(b) Certain Conditions of Exercise. Unless the issuance of Warrant
Shares upon exercise of the Warrants shall have been registered under the
Securities Act, the Warrants may only be exercised pursuant to an exemption from
registration under the Securities Act (which in the case of non-U.S. persons may
be pursuant to Regulation S). As a condition of any proposed exercise of the
Warrants in these circumstances, if requested by the Company, the Holder shall
deliver to the Company (i) an agreement by the Holder (or any transferee of the
Holder if the Warrant Shares are to be issued in a name other than the name in
which the Warrant Certificate is registered), in form and substance reasonably
satisfactory to the Company, to the effect that the Warrant Shares may not be
transferred except pursuant to an exemption from registration under the
Securities Act and (ii) an opinion of counsel with expertise in securities law
matters reasonably satisfactory to the Company that such exercise complies with
applicable securities laws. In addition, the Holders agree that each certificate
representing the Warrant Shares shall bear a legend to the effect recited in
Section 4(c). If the Warrant Shares are issued without registration, they shall
be subject to the same restrictions and have the same rights with respect to
termination of restrictions as provided with respect to the Warrants under
Section 4.
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(c) Exercise in Whole or in Part. The Warrants represented by a
Warrant Certificate shall be exercisable, at the election of the Holder thereof,
either in full or from time to time in part and, in the event that a Warrant
Certificate is exercised in respect of fewer than all of the Warrants
represented thereby at any time prior to the date of expiration of the Warrants,
a new Warrant Certificate evidencing the remaining Warrant or Warrants will be
issued and delivered by the Warrant Agent pursuant to the provisions of this
Section and of Section 2 hereof.
(d) Issuance of Warrant Shares. Subject to the provisions of this
Agreement (including, but not limited to Section 5(e)), upon such surrender of
the Warrant Certificates and receipt of the Exercise Price, the Company shall
issue and cause to be delivered to or upon the written order of the Holder and,
subject to Section 5(b) above, in such name or names as the Warrant Holder may
designate, a certificate or certificates or other evidences of ownership for the
aggregate number of fully paid and nonassessable Warrant Shares issuable upon
the exercise of such Warrants together with payment of the applicable Exercise
Price. The stock certificate or certificates representing such Warrant Shares
shall be delivered in such denominations as may be specified in the Exercise
Notice received by the Company and shall be registered in the name of such
holder or in such other name or names as shall have been designated in the
Exercise Notice. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a Holder of record of such Warrant Shares as of the date of the surrender
of such Warrant Certificates and payment of the Exercise Price.
(e) Exercise in Connection with Certain Transfers. If a Holder or
Holders shall sell Warrant Shares in an underwritten offering, the Company shall
cooperate with the Holders and the underwriters for such offering so that the
Warrants may be exercised and the Warrant Shares delivered to the underwriters
for sale in the offering and, upon consummation of the offering, the
underwriters shall deliver the Exercise Price for the Warrants to the Company
out of the proceeds of the offering. If an Initial Holder (or any of its
Affiliates) shall arrange to sell Warrant Shares in a block trade, upon
reasonable notice to the Company, the Company shall cooperate with the Holder
(or such Affiliate) and the broker in the trade so that the Warrants may be
exercised and the Warrant Shares delivered to the broker and, upon consummation
of the trade, the broker shall deliver the Exercise Price for the Warrants to
the Company. "Block trade" for this purpose means the disposition at a single
time in a single transaction by one or more Initial Holders (or such Affiliates)
of not less than 1,000,000 Warrant Shares (or the equivalent thereof) in the
aggregate to one or more institutional investors or purchasers procured by a
broker on behalf of such Initial Holders (or such Affiliates). Such number of
Warrant Shares shall be subject to adjustment as provided for pursuant to
Section 11. "Institutional investor" means any insurance company, pension fund,
mutual fund, investment company, commercial bank or investment bank, or any
portfolio managed by any of the foregoing. The rights of an Initial Holder under
this paragraph shall not be assignable to any transferee of the Warrants other
than to its Affiliates.
SECTION 6. Specific Limitations on the Rights of Warrant Holders.
Prior to the exercise of the Warrants, except as may be specifically provided
for herein and, without prejudice to Section 11(b)(ii) hereof, (i) no Holder of
a Warrant Certificate, as such, shall be entitled to any of the rights of a
holder of Common Stock, including, without limitation, the right to vote at or
receive any notice of any meetings of stockholders; (ii) the consent of any such
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Holder shall not be required with respect to any action or proceeding of the
Company; (iii) no such Holder, by reason of the ownership or possession of a
Warrant or the Warrant Certificate representing the same, shall have any right
to receive any cash dividends, stock dividends, allotments or rights or other
distributions paid, allotted or distributed or distributable to the stockholders
of the Company prior to, or for which the relevant record date preceded, the
date of the exercise of such Warrant; and (iv) no such Holder shall have any
right not expressly conferred by the Warrant or Warrant Certificate held by such
Holder.
SECTION 7. Exercise Period; Expiration.
(a) Exercise Period. Each Warrant shall be exercisable at any time
during the period from and after (i) in the case of any Holder other than an
Initial Holder or an Affiliate of an Initial Holder, the Issue Date and (ii) in
the case of an Initial Holder or an Affiliate of an Initial Holder, the first
anniversary of the Issue Date, in each case, until its respective Expiration
Date.
(b) Expiration. Any Warrant not exercised prior to its respective
Expiration Date shall become void, and all rights thereunder and all rights in
respect thereof under this Agreement shall cease as of such time.
SECTION 8. Payment of Taxes. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided, however, 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 for registration of transfer or upon the exercise of a Warrant, and
the Company shall not be required to issue or deliver such Warrant Certificates
unless and 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
reasonable satisfaction of the Company that such tax has been paid.
SECTION 9. Mutilated or Missing Warrant Certificates. In case any of
the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Warrant Agent shall issue, in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of
Warrants, and may in its discretion require evidence reasonably satisfactory to
it of such loss, theft or destruction of such Warrant Certificate and indemnity
reasonably satisfactory to it. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may require.
SECTION 10. Covenants of the Company.
(a) Reservation of Warrant Shares. The Company will at all times
reserve and keep available, out of the aggregate of its authorized but unissued
shares of Common Stock or its authorized and issued shares of Common Stock held
in its treasury, for the purpose of enabling it to satisfy any obligation to
issue Warrant Shares upon exercise of Warrants, the
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maximum number of shares of Common Stock which may then be deliverable upon the
exercise of all outstanding Warrants. The Company or, if appointed, the transfer
agent for the Common 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 Warrants shall be authorized and directed at all times to reserve
such number of authorized shares as shall be required for such purpose. The
Company shall 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 Warrants. The Company will furnish such
Transfer Agent a copy of all notices of adjustments and certificates related
thereto, transmitted to each Holder.
(b) Due Issuance. Warrant Shares, when issued pursuant to the terms
and conditions hereof, shall be duly and validly issued and fully-paid and
non-assessable, and free from all liens, encumbrances and other charges thereon.
(c) Authorizations. Before taking any action which would result in an
adjustment in the number of shares of Common Stock, the Company shall obtain all
authorizations or exemptions thereof, or consents thereto, as may be required by
law, except where failure to do so would not result in a material adverse effect
on the rights of the Holders or the Company.
(d) Listing. The Company will list or cause to have quoted such Common
Stock issuable upon exchange of the Warrants on each securities exchange or such
other market on which the Common Stock is then listed or quoted.
SECTION 11. Adjustment of Number of Warrant Shares and Exercise Price.
The number of Warrant Shares issuable upon the exercise of each Warrant and its
Exercise Price are subject to adjustment from time to time upon the occurrence
of the events enumerated in this Section 11.
(a) Declaration of Stock Dividend, Splits, Reverse Splits or
Reclassification or Reorganization; Other Distributions
(i) In case the Company shall declare any dividend or other
distribution upon its outstanding shares of Common Stock payable in
Common Stock or shall subdivide its outstanding shares of Common Stock
into a greater number of shares, then the number of shares of Common
Stock which may thereafter be purchased upon the exercise of any
Warrant shall be increased in proportion to the increase in the number
of shares of Common Stock outstanding through such dividend, other
distribution, or subdivision and the Exercise Price per share shall be
decreased in such proportion such that the amount payable to the
Company upon the exercise of a Warrant shall be the same after such
adjustment as before such adjustment. In case the Company shall at any
time combine the outstanding shares of its Common Stock into a smaller
number of shares, the number of shares of Common Stock which may
thereafter be purchased upon the exercise of any Warrant shall be
decreased in proportion to the decrease in the number of shares of
Common Stock outstanding through such combination and the Exercise
Price per share shall be increased in such proportion such that the
amount payable to the Company upon the exercise of a Warrant shall be
the same after such adjustment as before such
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adjustment. The Company shall cause a notice to be mailed to each
Holder at least ten (10) Business Days prior to the applicable record
date for the activity covered by this Section 11(a)(i). The Company's
failure to give the notice required by this Section 11(a)(i) or any
defect therein shall not affect the validity of the activity covered
by this Section 11(a)(i). Notwithstanding the foregoing, nothing in
this paragraph will prejudice the rights of the Holders pursuant to
this Agreement.
(ii) In case the Company shall at any time (including in connection
with any merger, consolidation or sale of all or substantially all the
assets of the Company in which Section 11(d) hereof is not applicable)
(i) issue any evidence of indebtedness, shares of its stock or any
other securities to all holders of shares of Common Stock by
reclassification of its shares of Common Stock, (ii) distribute any
rights, options or warrants to purchase or subscribe for any evidence
of indebtedness, shares of its stock (other than distributions for
which adjustment may be made pursuant to Section 11(b) or Section
11(e)) or any other securities to all holders of shares of Common
Stock, (iii) distribute cash (other than regular quarterly or
semi-annual cash dividends) or other property to all holders of shares
of Common Stock, or (iv) issue by means of a capital reorganization
other securities of the Company in lieu of the Common Stock or in
addition to the Common Stock, then the Warrant shall be adjusted so
that the Warrant shall be exercisable into the kind and number of
shares or other securities of the Company or the successor entity or
cash or other property as that the Holder would have owned or have
been entitled to receive after the happening of the event described
above, had such Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. The
Company shall cause a notice to be mailed to each Holder at least ten
(10) Business Days prior to the applicable record date for the
activity covered by this Section 11(a)(ii). The Company's failure to
give the notice required by this Section 11(a)(ii) or any defect
therein shall not affect the validity of the activity covered by this
Section 11(a)(ii). Notwithstanding the foregoing, nothing in this
paragraph will prejudice the rights of the Holders pursuant to this
Agreement.
(iii) An adjustment made pursuant to this Section 11(a) shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) Adjustment for Rights Issuance.
(i) (A) In case the Company shall at any time distribute any rights,
options or warrants to all holders of Common Stock entitling them, for a period
expiring sixty (60) days or less after the date of determination of the
stockholders entitled to receive such rights (the "Record Date") (or any longer
period resulting from the extension of the exercise period which is announced
following the time that the rights, options or warrants are first issued) for
such distribution, to purchase or subscribe for shares of Common Stock at a
price per share less than ninety percent (90%) of the Daily Market Price of the
Common Stock on the Record Date, then the number of shares issuable upon
exercise of each Warrant immediately prior thereto shall be adjusted in
accordance with the formula:
N = No x (O + A)/ (O + (C/M))
11
where:
N = the adjusted number of Warrant Shares issuable upon exercise of
such Warrant.
No = the number of Warrant Shares issuable upon exercise of such
Warrant prior to such adjustment.
O = the number of shares outstanding immediately prior to the issuance
of such rights, options or warrants as referred to in this Section
11(b)(i)(A).
A = the maximum number of shares issuable pursuant to such rights,
options or warrants as referred to in this Section 11(b)(i)(A).
C = the aggregate consideration receivable by the Company for the
issuance of Common Stock upon exercise of such rights, options or
warrants as referred to in this Section 11(b)(i)(A).
M = the average of the Daily Market Prices of the Common Stock for the
ten (10) consecutive trading days immediately preceding the Record
Date.
Provided that, in no adjustment shall N be less than No.
(B) If any adjustment is made to increase the number of shares
issuable upon exercise of any Warrant pursuant to this Section 11(b), the
Exercise Price per share of such Warrant shall be correspondingly decreased,
such that the amount payable to the Company upon the exercise of a Warrant shall
be the same after such adjustment as before such adjustment. The adjustment
shall become effective immediately after the Record Date for the determination
of shareholders entitled to receive the rights, warrants or options to which
this Section 11(b) applies. If less than all of such rights, warrants or options
have been exercised when such rights, warrants or options expire, then the
number of shares issuable upon the exercise of each Warrant and corresponding
adjustment to the Exercise Price of each such Warrant shall promptly be
readjusted to the number of shares issuable upon the exercise of each Warrant
and the Exercise Price that would then be in effect had the adjustment upon the
issuance of such rights, warrants or options been made on the basis of the
actual number of shares of Common Stock issued upon the exercise of such rights,
warrants or options.
(ii) In case the Company shall at any time distribute any rights,
options or warrants to all holders of Common Stock entitling them, for a period
expiring more than sixty (60) days after the Record Date therefor (excluding any
rights, options or warrants originally issued with an exercise period of sixty
(60) days or less, which, by virtue of one or more extensions, expire more than
sixty (60) days after the Record Date therefor), to purchase or subscribe for
shares of Common Stock at a price per share less than ninety percent (90%) of
the Daily Market Price of the Common Stock as of such Record Date, then the
Company shall similarly distribute such rights, options or warrants to the
12
Holders on such Record Date (without any exercise of Warrants by Holders) as if
such Holders had exercised their Warrants immediately prior to the Record Date.
(c) Liquidation, Dissolution or Winding Up. Notwithstanding any
other provisions hereof, in the event of the liquidation, dissolution, or
winding up of the affairs of the Company (other than in connection with a
consolidation, merger or sale or conveyance of all or substantially all of its
assets or a Change or Spin-Off), the right to exercise this Warrant shall
terminate and expire at the close of business on the last full business day
before the earliest date fixed for the payment of any distributable amount on
the Common Stock. The Company shall cause a notice to be mailed to each Holder
at least ten (10) Business Days prior to the applicable record date for such
payment stating the date on which such liquidation, dissolution or winding up is
expected to become effective, and the date on which it is expected that holders
of record of shares of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property or assets (including cash)
deliverable upon such liquidation, dissolution or winding up, and that each
Holder may exercise outstanding Warrants during such ten (10) Business Day
period and, thereby, receive consideration in the liquidation on the same basis
as other previously outstanding shares of the same class as the shares acquired
upon exercise. The Company's failure to give notice required by this Section
11(c) or any defect therein shall not affect the validity of such liquidation,
dissolution or winding up. Notwithstanding the foregoing, nothing in this
paragraph will prejudice the rights of the Holders pursuant to this Agreement.
(d) Merger, Consolidation, Etc.
(i) In any event when (A) any person (the "Acquirer") directly or
indirectly acquires the Company in a transaction in which the Company
is merged with or into or consolidated with another person or (B) the
Company sells or conveys all or substantially all of its assets to
another person (unless, subsequent to such merger, consolidation or
other transaction, the Company is the surviving entity and has
reporting obligations under the Exchange Act as a result of having
common equity securities outstanding, in which case, this Section
shall not apply with respect to such merger, consolidation or other
transaction)(such merger, consolidation or other transaction referred
to hereinafter as a "Change"), then, upon exercise of each Warrant at
any time after the consummation of the Change but prior to the
Expiration Date, in lieu of the shares of the Company's Common Stock
(or other securities, cash, assets or other property) purchasable upon
the exercise of the Warrant prior to such Change, the Holder shall be
entitled to receive such shares of stock, securities, cash, assets or
any other property whatsoever (including warrants or other purchase or
subscription rights) which such Holder would have been entitled to
receive after the happening of such Change had such Warrant been
exercised immediately prior to such Change.
(ii) Notwithstanding the foregoing, but subject to the following
sentence, if a Holder of a Warrant so elects by giving written notice
thereof to the Company on or before the day immediately preceding the
date of the consummation of such Change, the Holder shall not be
required to make any payment upon exercise of the Warrant, and shall
be entitled to receive from the Company or the Acquirer (in lieu of
the adjustment provided for in Section 11(d)(i) above) a cash amount
equal to the Black-Scholes Value
13
of the Warrant (the "Cash-Out Option") upon surrender of the Warrant
Certificate representing such Warrant. The right of a Holder to elect
the Cash-Out Option shall not be available if
(A) the payment or offering of any Cash-Out Option would
(x) in the reasonable opinion of counsel to the
Company, prevent a Change from otherwise being
treated as a tax-free reorganization; or
(y) in the reasonable opinion of counsel or
accountants to the Company, prevent a Change from
being accounted for using a pooling of interests
accounting method or other similar accounting
method, if any, under US GAAP which would
otherwise be available; and
(B) the payment of the Cash-Out Option in the form of
securities of the Acquirer, as described below, would
not preserve such tax or accounting treatment.
If the payment of the Cash-Out Option in the form of Acquirer securities
issued to the Company's stockholders in the Change (the "Acquirer
Securities") would preserve the tax or accounting treatment of the
Change, the Holders shall have the right to elect the Cash-Out Option,
but only in the form of Acquirer Securities. In such case,
(1) the Cash-Out Option will be payable in the Acquirer
Securities; and
(2) the number of securities payable to the Holder on
exercise of the Cash-Out Option will equal (x) the dollar
amount of the Cash-Out Option divided by (y) the per share (or
other unit) fair market value of the securities in which the
Cash-Out Option is payable.
"Fair market value" for this purpose means the average Daily Market Price
of the securities of the Acquirer for the first ten (10) consecutive
trading days immediately preceding but not including the date of
effectiveness of the Change; provided, however, that if the securities of
the Acquirer are not listed or traded on an exchange or interdealer
quotation system, then the "fair market value" of such securities shall be
determined by an investment banking firm of national reputation and
standing selected by the Company and reasonably acceptable to a Majority
of the Warrant Holders. If the Holders of the Warrants do not have the
right to elect the Cash-Out Option provided in Section 11(d)(ii) herein,
the adjustment provided for in Section 11(d)(i) above shall apply.
(iii) Notwithstanding the foregoing, in the case of any such Change
where,
14
(A) the Acquirer is a company with reporting obligations under the
Exchange Act with respect to common equity securities (such common equity
securities being referred to herein as the "Acquirer Shares"), and
(B) the Acquirer is offering as consideration with respect to the
Change a combination of Acquirer Shares and cash or other consideration,
if a Holder of a Warrant so elects by giving written notice thereof to the
Company on or before the day immediately preceding the effective date of such
Change, then, in lieu of the adjustment to the Warrant provided under Section
11(d)(i), upon the consummation of the Change and surrender of the Certificate
representing the Warrant, the Holder shall receive (x) a warrant (an "Acquirer
Warrant") exercisable for Acquirer Shares, in an amount and for an exercise
price calculated as described below, and (y) a cash amount, calculated as
described below (the "Adjusted Cash-Out Option"). The terms of the Acquirer
Warrants shall be identical to the terms of the Warrants mutatis mutandis,
except that the exercise price and the number of securities issuable upon the
exercise of the Acquirer Warrants (subject to adjustment as provided therein)
shall be determined as provided below:
the Exercise Price of the Acquirer Warrants shall be calculated as
follows:
Ew = (Eo x (Pa/Pt)) where:
Ew = the adjusted Exercise Price of the Acquirer Warrants.
Eo = the Exercise Price of the Warrants immediately prior to such
adjustment.
Pt = the average of the Daily Market Prices of the Common Stock for the
ten (10) consecutive trading days immediately preceding the effective
date of the Change.
Pa = the fair market value per share of the Acquirer Shares. As used in
this formula, "fair market value" shall mean the average Daily Market
Price of the Acquirer Shares for the ten (10) consecutive trading
days immediately preceding the effective date of the Change.
The number of Acquirer Shares issuable upon exercise of an Acquirer
Warrant shall be calculated as follows:
N = a x No
where:
N = the number of shares issuable by the Acquirer upon exercise of the
Acquirer Warrant.
a = the number of Acquirer Shares delivered in the Change to holders of
Common Stock for each share of Common Stock.
15
No = the number of Warrant Shares issuable upon exercise of the original
Warrant in exchange for which the Acquirer Warrant was issued.
If the Holders of Common Stock may elect to receive in the Change Acquirer
Shares, cash or other consideration, or a combination of Acquirer Shares
and cash or other consideration as selected by the Holders (whether or not
subject to proration), then the number of Acquirer Shares delivered in the
Change for each share of Common Stock shall be determined, for purposes of
the preceding formula and the determination below of the amount of the
Adjusted Cash-Out Option, as follows:
a = Nas/Nts
where
Nas = the aggregate number of Acquirer Shares delivered in the Change to
holders of Common Stock. Nts = the total number of shares of Common
Stock outstanding immediately prior to the effectiveness of the
Change and exchanged for consideration in the Change.
The amount of the Adjusted Cash-Out Option for a Warrant shall be
calculated as follows:
AC = BSw x (1-((a x Pa) /C ))
where the symbols previously defined in this Section have their previously
defined meanings and:
AC = the amount of the Adjusted Cash-Out Option of the Warrant
BSw = the Black-Scholes Value of the Warrant, ignoring the effect of the
Change, as determined pursuant to (iv) below.
C = the total fair market value of the consideration delivered in the
Change to Holders of Common Stock for each share of Common Stock.
For purposes of determining this amount--
(A) the fair market value of the component of the
consideration consisting of Acquirer Shares shall equal
(x) the average Daily Market Price of the Acquirer
Shares for the first ten (10) consecutive trading days
immediately preceding the effective date of the Change
multiplied by (y) the number of Acquirer Shares
delivered in the Change for each share of Common Stock;
16
(B) the fair market value of any cash component shall be the
amount of the cash delivered in the Change for each
share of Common Stock; and
(C) the fair market value of any other consideration
delivered in the Change for each share of Common Stock
shall be as determined by an investment banking firm of
national reputation and standing selected by the Company
and reasonably acceptable to a Majority of the Warrant
Holders.
The right to make the election to receive Acquirer Shares and the Adjusted
Cash-Out Option as provided in this Section 11(d)(iii) shall be subject to
the same limitations as provided in Section 11(d)(ii)(A) and (B) above
regarding the right to elect the Cash-Out Option; provided, however, that
if the payment of the Adjusted Cash-Out Option in the form of Acquirer
Securities would preserve the tax or accounting treatment of the Change,
the election may be exercised with the Adjusted Cash-Out Option being paid
in Acquirer Securities as provided in clauses (1) and (2) of Section
11(d)(ii).
(iv) As used herein, "Black-Scholes Value" of the Warrants, shall be
determined on the basis of the Black-Scholes methodology by an investment
banking firm of national reputation and standing, selected by the Company
and reasonably acceptable to a Majority of the Warrant Holders; provided,
however, that no Black-Scholes Value of a Warrant shall exceed the Daily
Market Price of the Common Stock on the day immediately preceding the
Change. For purposes of applying the Black-Scholes methodology, (i) the
price per share of the Common Stock shall be deemed to be the average of
the Daily Market Prices for the ten (10) full trading days ending ten (10)
trading days prior to the first public announcement of the Change, and
(ii) the methodology shall be applied as if the relevant Change had not
occurred.
(v) The Company shall give written notice of any Change to each
Holder, in accordance with Section 15 hereof, at least ten (10) Business
Days prior to the effective date of the Change; provided, however, that if
either Section 11(d)(ii) or (iii) is applicable, one or more notices shall
be given to the Holders sufficiently in advance of the Change to allow for
selection of the investment banking firm referred to in the previous
paragraph and for notice to the Holders of the Black-Scholes Value at
least ten (10) Business Days prior to the effective date of the Change.
The Company's failure to give notice required by this Section 11(d) or any
defect therein shall not affect the validity of the Change covered by this
Section 11(d). However, if the Company fails to give notice, the
responsibilities of the Company with respect to this Section 11(d) shall
be assumed by the Acquirer and nothing in this paragraph will prejudice
the rights of the Holders pursuant to this Agreement.
(e) Spin-Off.
(i) In case the Company shall at any time pay a dividend or make a
distribution to all holders of its Common Stock consisting of the capital
stock of any class or series, or similar interests, of or relating to a
subsidiary or other business unit of the Company (such transaction, a
"Spin-Off"; such capital stock or other interests, the "Spin-
17
Off Shares"; and such subsidiary or business unit, the "Spin-Off
Company"), then each holder of a Warrant outstanding and unexercised on
the date of the Spin Off shall become entitled to a spin-off warrant
("Spin-Off Warrants") evidencing a right to purchase a number of shares of
capital stock of the Spin-Off Company that the Holder would have received
had the Holder exercised such Warrants immediately prior to the record
date for the Spin-Off (the "Spin-Off Record Date"); provided, however,
that in the event that the distribution of Spin-Off Shares to the Holders
would, in the reasonable opinion of counsel to the Company, (y) prevent
the tax-free nature of such Spin-Off or (z) require registration with the
SEC in circumstances where registration would not otherwise be required,
then at the election of the Company, either (y) the Holders shall not
receive Spin-Off Warrants pursuant to this Section 11(e)(i) and the
Warrants shall instead be adjusted pursuant to the terms of Section
11(e)(ii) or (z) the Holders shall receive Spin-Off Warrants as
contemplated above in this Section 11(e)(i). The terms of the Spin-Off
Warrants shall be identical to the terms of the Warrants mutatis mutandis,
except that the exercise price of a Spin-Off Warrant (subject to
adjustment as provided therein) shall be determined by the following
formula:
Es = Eo x Ps / (Pp+ (r x Ps))
where:
Es = the Exercise Price per Spin-Off Share of the Spin-Off Warrants.
Eo = the Exercise Price per share of Common Stock of the relevant
Warrant immediately prior to adjustment for the relevant Spin-Off.
Pp = the average of the Daily Market Prices of the Common Stock for the
ten (10) full consecutive trading days following the date on which
the Spin-Off is consummated.
r = the number of Spin-Off Shares (which may be one or a fraction less
than or greater than one) distributed pursuant to the Spin-Off in
respect of each share of Common Stock.
Ps = the fair market value per share of the Spin-Off Shares. As used in
this section, "fair market value" shall mean the average Daily
Market Price of the Spin-Off Shares for the first ten (10)
consecutive trading days following the date on which the Spin-Off
is consummated; provided, however, that if such distributed
securities do not begin trading within two trading days of the
consummation of such Spin-Off or do not trade for at least ten
(10) consecutive trading days within twenty (20) days after the
Spin-Off, then the "fair market value" of such distributed
securities shall be determined by an investment banking firm of
national reputation and standing selected by the Company and
reasonably acceptable to a Majority of the Warrant Holders on the
Spin-Off Record Date.
Following the Spin-Off, the Exercise Price of each Warrant
shall be adjusted in accordance with the following formula:
18
En = Eo x Pp / (Pp+ (r x Ps))
where:
En = the adjusted exercise price per share of Common Stock of the
Warrants.
(with the other symbols in such formula having the meanings specified in
the preceding formula).
(ii) In case the Company shall engage in a Spin-Off, and Section
11(e)(i) shall not be available to the Holders as a result of the
proviso in the first paragraph of Section 11(e)(i), then the Holders
shall not receive Spin-Off Warrants and instead the number of shares
issuable upon the exercise of each Warrant immediately prior thereto
shall be adjusted in accordance with the formula:
N = No x (Pp + (Ps x r))/Pp
where:
N = the adjusted number of Warrant Shares issuable upon exercise of
such Warrant.
No = the number of Warrant Shares issuable upon exercise of such
Warrant prior to such adjustment.
Pp = the average of the Daily Market Prices of the Common Stock for the
ten (10) full consecutive trading days following the date on which
the Spin-Off is consummated.
Ps = the average Daily Market Price of the Spin-Off Shares for the
first ten (10) full consecutive trading days following the date on
which the Spin-Off is consummated; provided, however, that if such
distributed securities do not begin trading within two trading
days of the consummation of such Spin-Off or do not trade for at
least ten (10) consecutive trading days within twenty (20) days
after the Spin-Off, then this quantity shall mean the "fair market
value" per share of the Spin-Off Shares as of the date the
Spin-Off is consummated, determined by an investment banking firm
of national reputation and standing selected by the Company and
acceptable to a Majority of the Warrant Holders on the Spin-Off
Record Date.
r = the number of Spin-Off Shares (which may be one or a fraction less
than or greater than one) distributed pursuant to the Spin-Off in
respect of each share of Common Stock.
If any adjustment is made to increase the number of Warrant
Shares issuable upon exercise of any Warrant pursuant to this Section
11(e)(ii), the Exercise Price per share of such Warrant shall be adjusted
in accordance with the following formula.
19
En = Eo x (No/N)
Where:
En = the adjusted exercise price per share of Common Stock of the
Warrants.
Eo = the Exercise Price per share of Common Stock of the relevant
Warrant immediately prior to adjustment for the relevant Spin-Off.
(with the other symbols in such formula having the meanings specified in
the preceding formula).
(iii) An adjustment made pursuant to Section 11(e)(ii) shall
become effective immediately after the determination of the adjusted
number of Warrant Shares issuable upon exercise of the Warrants,
retroactive to the date for the Spin-Off.
(iv) The Company shall give written notice of any Spin-Off, in
accordance with Section 15 hereof, at least ten (10) Business Days
prior to the Record Date therefor. The Company's failure to give notice
required by this Section 11(e)(iv) or any defect therein shall not
affect the validity of the Spin-Off covered by this Section 11(e).
Notwithstanding the foregoing, nothing in this paragraph will prejudice
the rights of the Holders pursuant to this Agreement.
(f) Good Faith Determination.
(i) Subject to the following clause (ii), any determination as to
whether an adjustment or limitation of exercise is required pursuant to
this Section 11 (and the amount of any adjustment) shall be binding
upon the Holders and the Company if made in good faith by the board of
directors of the Company.
(ii) If a Majority of the Warrant Holders shall object to any
determination of the board of directors of the Company within ten (10)
Business Days of receipt of notice of such determination, then such
determination shall be referred to a national independent accounting
firm in the United States (the "Accounting Firm") selected by the
Company and reasonably acceptable to a Majority of the Warrant Holders.
The determination of the adjustment made by the Accounting Firm shall
be strictly in accordance with the terms of this Agreement and shall be
binding upon the Holders and the Company. The Accounting Firm shall be
instructed to notify the Company and such Majority of the Warrant
Holders of its determination regarding the adjustment within fifteen
(15) Business Days of such referral.
(iii) Whenever this Agreement provides for the reasonable approval
or acceptance of a Majority of the Warrant Holders of any action or
determination, such approval or acceptance shall be deemed to be given
if a Majority of the Warrant Holders do not reasonably object to such
action or determination by written notice to the Company within ten
(10) Business Days of the date on which notice thereof is first given
20
to the Holders. No objection shall be deemed reasonable if the reasons
for such objection are not set forth in reasonable detail in the notice
of objection given to the Company as aforesaid.
(g) Notice of Adjustment. Whenever the number of shares of Common
Stock purchasable upon the exercise of the Warrants or the Exercise Price is
adjusted, the Company shall promptly file, in the custody of its Secretary or an
Assistant Secretary at its principal office and with the Warrant Agent, an
officer's certificate setting forth the number of shares of Common Stock
purchasable upon the exercise of the Warrants, the Exercise Price after such
adjustment, a statement, in reasonable detail, of the facts requiring such
adjustment and the computation by which such adjustment was made. Each such
officer's certificate shall be made available during regular business hours for
inspection by the Holders at the office of the Warrant Agent.
(h) No Change of Warrant Necessary. Irrespective of any adjustment in
the Exercise Price or in the number or kind of shares issuable upon exercise of
the Warrants, the Warrant Certificates may continue to express the same price
and number and kind of shares as are stated in the Warrant Certificates as
initially issued.
(i) Subsequent Adjustments. The adjustment provisions of this Section
11 shall be applied successively and from time to time as the circumstances
requiring such adjustments shall occur. If as a result of an adjustment made
pursuant to this Section 11 (except as otherwise specifically provided herein)
the Holder of any Warrants thereafter surrendered for conversion shall be
entitled to receive any securities other than shares of Common Stock, the number
and kind of the securities issuable upon exercise of the Warrants and the
Exercise Price therefor shall be subject to adjustment, from time to time, in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in this Section 11.
SECTION 12. Fractional Interests. The Company shall not be required to
issue fractional shares of Common Stock on the exercise of the Warrants. If any
fraction of a share of Common Stock would be issuable upon the exercise of the
Warrants (or any specified portion thereof), the Company shall pay an amount in
cash equal to the product of (x) such fraction and (y) the Daily Market Price of
the Common Stock on the trading day prior to the date the Warrant is exercised.
SECTION 13. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent as its agent to issue the Warrant Certificates, as set forth
herein, subject to resignation or replacement of the Warrant Agent as provided
herein. The Warrant Agent agrees to accept such appointment, subject to the
terms and conditions as set forth herein and to issue, transfer and exchange the
Warrant Certificates pursuant to the terms provided for herein and to notify the
Company to issue or cause to be issued the certificates or other evidence of
ownership representing the appropriate number of shares of Common Stock (or
other consideration) upon exercise of the Warrants.
SECTION 14. Duties of the Warrant Agent. The Warrant Agent acts
hereunder as agent and in a ministerial capacity for the Company, and its duties
shall be determined solely
21
by the provisions hereof. The Warrant Agent shall not by issuing and delivering
Warrant Certificates, or by any other act hereunder, be deemed to make any
representations (i) as to the validity, value or authorization of the Warrant
Certificates or the Warrants represented thereby or of any securities or other
property delivered upon exercise of any Warrant, or (ii) whether any stock
issued upon exercise of any Warrant is fully paid and nonassessable.
Without prejudice to any liability of any other party hereof, the
Warrant Agent shall not at any time be under any duty or responsibility to any
Holder of Warrant Certificates to make or cause to be made any adjustment of the
Warrant Price provided in this Agreement, or to determine whether any fact
exists that may require any such adjustment, or with respect to the nature or
extent of any such adjustment, when made, or with respect to the method employed
in making the same. The Warrant Agent shall not (i) be liable for any recital or
statement of facts contained herein or for any action taken, suffered or omitted
by it in reliance on any Warrant Certificate or other document or instrument
believed by it in good faith to be genuine and to have been signed or presented
by the proper party or parties, (ii) be responsible for any failure on the part
of the Company to comply with any of its covenants and obligations contained in
this Agreement or in any Warrant Certificate, or (iii) be liable for any act or
omission in connection with this Agreement except for its own gross negligence
or willful misconduct.
Any notice, statement, instruction, request, direction, order or
demand of the Company shall be sufficiently evidenced by an instrument signed by
the Company's Chairman or Vice Chairman of the Board, President, any Vice
President, its Secretary, or Assistant Secretary (unless other evidence in
respect thereof is herein specifically prescribed). Without prejudice to any
liability of any other party hereof, the Warrant Agent shall not be liable for
any action taken, suffered or omitted by it in accordance with such notice,
statement, instruction, request, direction, order or demand believed by it to be
genuine.
The Company agrees to pay the Warrant Agent reasonable compensation
for its services hereunder and to reimburse it for its reasonable expenses
hereunder and further agrees to indemnify the Warrant Agent and save it harmless
against any and all losses, expenses and liabilities, including judgments, costs
and counsel fees, for anything done or omitted by the Warrant Agent in the
execution of its duties and powers hereunder except losses, expenses and
liabilities arising as a result of the Warrant Agent's gross negligence or
willful misconduct.
The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own gross negligence or willful misconduct), after giving
thirty days' prior written notice to the Company. At least fifteen (15) days
prior to the date such resignation is to become effective, the Warrant Agent
shall cause a copy of such notice of resignation to be mailed to the Holder of
each Warrant Certificate at the Company's expense. Upon such resignation, or any
inability of the Warrant Agent to act as such hereunder, the Company shall
appoint a new warrant agent in writing. The Company shall have complete
discretion in the naming of a new warrant agent, who may be an affiliate,
subsidiary or department of the Company, or any person used by the Company as
transfer agent for the Common Stock. If the Company shall fail to make such
appointment within a period of thirty (30) days after it has been notified in
writing of such resignation by the resigning Warrant Agent, then the Holder of
any Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new warrant agent.
22
The Company may, upon notice to the Holders, remove and replace the
Warrant Agent if the Warrant Agent is the transfer agent for the Company's
Common Stock and the Warrant Agent ceases to be the transfer agent for the
Company's Common Stock for any reason.
After acceptance in writing of an appointment by a new warrant agent
is received by the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed. Any former warrant agent hereby agrees to cooperate with and deliver all
records and Warrant Certificates to the new warrant agent at the direction of
the new agent and the Company.
Any corporation into which the Warrant Agent or any new warrant agent
may be converted or merged or any corporation resulting from any consolidation
to which the Warrant Agent or any new warrant agent shall be a party or any
corporation succeeding to the trust business of the Warrant Agent shall be a
successor warrant agent under this Agreement without any further act. Any such
successor warrant agent shall promptly cause notice of its succession as warrant
agent to be mailed to the Company and to each Holder.
The Warrant Agent shall perform its duties with all due care and
attention. If for any period no person is acting as Warrant Agent, then the
Company shall discharge the obligations that would otherwise fall to be
discharged by the Warrant Agent during such period.
Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company.
SECTION 15. Notices. Any notice or demand authorized by this Agreement
to be given or made to or on the Company or the Warrant Agent shall be
sufficiently given or made when and if delivered by a recognized international
courier service or hand delivery, or by telecopier with copy sent by first class
or registered mail, postage prepaid, to the applicable address set forth below
(until the Holders are otherwise notified in accordance with this Section by the
Company):
If to the Company, then to:
Vishay Intertechnology, Inc.
ββ βββββββ βββββββ
βββββββ, ββ βββββ
Attn.: Chief Financial Officer
Telecopier No.: (βββ) βββ-ββββ
Confirm No.: (βββ) βββ-ββββ
23
If to the Warrant Agent, then to:
American Stock Transfer & Trust Co.,
ββ ββββββ ββββ
βββ ββββ, ββ βββββ
Attn.: Exchange Department
Telecopier No. βββ-βββ-ββββ
Confirm No. 718-921-8200
Any notice pursuant to this Agreement to be given to any Holder of any
Warrant Certificate shall be sufficiently given when and if delivered to such
Holder at the address appearing on the Warrant Register of the Company (until
the Company and the Warrant Agent are otherwise notified in accordance with this
Section by such Holder). Any such notice shall be delivered by overnight or hand
delivery, by telecopier with copy sent by first class mail, postage prepaid, or
by first class or registered mail, postage prepaid.
SECTION 16. Supplements and Amendments. The Company and the Warrant
Agent may from time to time amend or supplement this Agreement in good faith
without the approval of any Holders only 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. Any other amendment or supplement
to this Agreement shall require the written consent of a Majority of the Warrant
Holders.
SECTION 17. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of its successors and assigns hereunder; provided,
however, that any assignment by the Company shall not relieve the Company of any
of its obligations hereunder. This Agreement shall be binding upon and inure to
the benefit of the successors and registered assigns of the Initial Holder and
all subsequent Holders of Warrants.
SECTION 18. Governing Law. THIS AGREEMENT AND EACH 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 19. No Third Party Beneficiaries. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Warrant
Agent and the Holders of the Warrants or holders of Warrant Shares any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the
Holders of the Warrants and the holders of Warrant Shares.
SECTION 20. Notification of Delisting. Prior to the occurrence of a
Delisting Event, the Company will, at least ten (10) Business Days before the
occurrence thereof, notify each Holder of such event. Any notice will be in
writing and shall specify the date of such Delisting Event. For these purposes
"Delisting Event" means the common stock of the Company being delisted from the
principal United States national or regional securities exchange or national
quotation system on which the shares of common stock are then listed or traded.
24
SECTION 21. Headings. The descriptive headings of the several sections
and subsections of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meanings
or interpretation of this Agreement.
SECTION 22. Counterparts. This Agreement may be executed in
counterparts and all 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.
[Signature Page Follows.]
25
[Signature Page of Warrant Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
VISHAY INTERTECHNOLOGY, INC.
By: __________________________________
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST CO.
By: __________________________________
Name:
Title:
26
EXHIBIT A
[Form of Class A Warrant Certificate]
[Face]
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED
OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM SUCH REGISTRATION. ***
EXERCISABLE ON OR BEFORE 5:00 P.M. NEW YORK CITY TIME ON__________.
No. ____ _______ Warrants
Class A Warrant Certificate
Vishay Intertechnology, Inc.
This Warrant Certificate certifies that _______________, or
registered assigns, is the registered holder (the "Holder") of ___________ Class
A Warrants expiring ____________ (the "Warrants" or "Class A Warrants") to
purchase Common Stock, $0.10 par value per share (the "Common Stock"), of Vishay
Intertechnology, Inc., a Delaware corporation (the "Company"). Each Class A
Warrant entitles the Holder upon exercise to receive from the Company, on or
before 5:00 p.m. New York City Time on ______________ (the "Expiration Date"),
one fully paid and nonassessable share of Common Stock (a "Warrant Share") at
the initial exercise price (the "Exercise Price") of $20.00 per share (subject
to adjustment as provided herein), payable in lawful money of the United States
of America upon surrender of this Warrant Certificate at the office of the
Company designated for such purpose, but only subject to the conditions set
forth herein and in the Warrant Agreement, as defined below. Capitalized terms
not otherwise defined herein shall have the meaning ascribed to them in the
Warrant Agreement.
This Warrant Certificate and each Class A Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the Warrant Agreement (the "Warrant Agreement"), dated
December 13, 2002 by and between the Company and American Stock Transfer & Trust
Co. (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to
------------------------
*** This legend may be removed if the Warrants represented by this certificate
have been resold pursuant to an effective registration under the Securities Act.
27
for a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the Holders (the words "Holder" or
"Holders" meaning the registered holder or registered holders of the Warrants).
A copy of the Warrant Agreement may be obtained by the Holder from the Company
at ββ βββββββ βββββββ, βββββββ, ββββββββββββ βββββ-ββββ by a written request
from the Holder hereof and may be inspected by the Holder or his agent at the
principal office of the Warrant Agent.
This Class A Warrant shall be exercisable at any time during the
period from and after (i) in the case of any Holder other than the Initial
Holder of this Class A Warrant or an Affiliate of such Initial Holder, the Issue
Date and (ii) in the case of the Initial Holder of this Class A Warrant or an
Affiliate of such Initial Holder, the first anniversary of the Issue Date until
the Expiration Date.
The number of Warrant Shares issuable upon exercise of the Warrants
and the Exercise Price are subject to adjustment upon the occurrence of certain
events set forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City time on
the Expiration Date, and to the extent not exercised by such time, such Warrants
shall become void.
The Holder of Class A Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the Exercise Price in cash at the office of the Company
designated for such purpose. In the event that upon any exercise of Class A
Warrants evidenced hereby the number of Class A Warrants exercised shall be less
than the total number of Class A Warrants evidenced hereby, there shall be
issued to the Holder hereof or his assignee a new Warrant Certificate evidencing
the number of Class A Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain
events the number of Warrant Shares issuable upon exercise of each Warrant set
forth on the face hereof and the Exercise Price thereof shall be adjusted. No
fractions of a share of Common Stock will be issued upon the exercise of any
Class A Warrant, but the Company will pay the cash value thereof determined as
provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Company
by the registered Holder thereof in person or by its legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Class A Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Class A Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided in the Warrant
Agreement, without charge except for any tax or other governmental charge
imposed in connection therewith.
28
The Company may deem and treat the registered Holder(s) of this
Warrant Certificate as the absolute owner(s) thereof (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, and the Company shall not be affected by any notice to the
contrary. Neither the Class A Warrants nor this Warrant Certificate entitles any
Holder hereof to any rights of a stockholder of the Company.
29
IN WITNESS WHEREOF, Vishay Intertechnology, Inc. has caused this
Class A Warrant Certificate to be signed by its President and by its Secretary,
each by a facsimile of his signature, and has caused a facsimile of its
corporate seal to be affixed hereunto or implied hereon.
Dated: _______, 2002
By:_______________________
By:________________________
AMERICAN STOCK TRANSFER & TRUST CO.
By:
---------------------------------
Name:
Title:
30
ASSIGNMENT FORM
If you, the Holder, want to assign this Class A Warrant, fill in the
form below:
I or we assign and transfer this Class A Warrant to:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _________________________________________ agent to
transfer this Class A Warrant on the books of the Company. The agent may
substitute another to act for him.
Date:___________________________ Signed: ___________________________________
(Signed exactly as your name appears on the
other side of this Warrant)
In connection with any transfer of this Class A Warrant occurring
prior to the date of the declaration by the Securities and Exchange Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Class A
Warrant (which effectiveness shall not have been suspended or terminated at the
date of transfer) at all times when such securities are deemed to be "restricted
securities" within the meaning of the Securities Act, the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Class A Warrant is being transferred:
[Check One]
(1) [ ] to the Company or a subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) [ ] to an institutional "accredited investor" (as defined in Rule
501(a)(1),(2), (3) or (7) under the Securities Act); or
(4) [ ] outside the United States to a person who is not a "US person," in
compliance with Rule 904 of Regulation S under the Securities Act; or
(5) [ ] pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
1
(6) [ ] pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Company shall not be obligated to
register any of the Class A Warrants evidenced by this certificate in the name
of any person other than the registered Holder thereof. If box (3), (4), (5) or
(6) is checked, the Company may require, upon the terms described in the Warrant
Agreement, prior to registering any such transfer of the Warrant Certificate,
such legal opinions, certifications and other information as the Company
reasonably requests to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
Date:______________________________ Signed:_________________________________
(Sign exactly as your name appears on
the other side of this Warrant
Certificate)
2
ELECTION TO PURCHASE FORM
If you, the Holder, want to exercise the Class A Warrants represented by
this Certificate, fill in the form below.
I or we, the registered owner of the Class A Warrants represented by this
Certificate irrevocably exercise ________________________________ Class A
Warrants for the purchase of _________________________________ shares or other
securities or property
of Common Stock of Vishay Intertechnology, Inc., at the price and on the terms
and conditions specified in the Class A Warrants and request that certificates
for the shares of Common Stock hereby purchased (and any securities or other
property issuable or transferable upon such exercise) be issued in the name of
and delivered to:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of owner)
and, if such Class A Warrants shall not constitute all of the Class A Warrants
represented by this Certificate, that a new Class A Warrant Certificate of like
tenor and date for the balance of the Class A Warrants represented hereby be
delivered to the undersigned.
Number of Class A Warrants represented by this Certificate ________
Number of Class A Warrants being exercised ________
Balance ________
Date:____________________________ Signed:________________________________
(Signed exactly as your name appears on
this Warrant)
Note: Each certificate represents a certain number of Warrants. Each Warrant is
exercisable for one share, subject to adjustment (which may result in
exercisability for other securities on property).
1
EXHIBIT B
[Form of Class B Warrant Certificate]
[Face]
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED
OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM SUCH REGISTRATION. ***
EXERCISABLE ON OR BEFORE 5:00 P.M. NEW YORK CITY TIME ON _________.
No. ____ _______ Class B Warrants
Class B Warrant Certificate
Vishay Intertechnology, Inc.
This Warrant Certificate certifies that _______________, or
registered assigns, is the registered holder (the "Holder") of ___________ Class
B Warrants expiring ____________ (the "Warrants" or "Class B Warrants") to
purchase Common Stock, $0.10 par value per share (the "Common Stock"), of Vishay
Intertechnology, Inc., a Delaware corporation (the "Company"). Each Class B
Warrant entitles the Holder upon exercise to receive from the Company, on or
before 5:00 p.m. New York City Time on ______________ (the "Expiration Date"),
one fully paid and nonassessable share of Common Stock (a "Warrant Share") at
the initial exercise price (the "Exercise Price") of $30.30 per share (subject
to adjustment as provided herein), payable in lawful money of the United States
of America upon surrender of this Warrant Certificate at the office of the
Company designated for such purpose, but only subject to the conditions set
forth herein and in the Warrant Agreement, as defined below. Capitalized terms
not otherwise defined herein shall have the meaning ascribed to them in the
Warrant Agreement.
This Warrant Certificate and each Class B Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the Warrant Agreement (the "Warrant Agreement"), dated
13 December, 2002 by and between the Company and American Stock Transfer & Trust
Co. (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to
------------------------
*** This legend may be removed if the Warrants represented by this
certificate have been resold pursuant to an effective registration under
the Securities Act.
2
for a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the Holders (the words "Holder" or
"Holders" meaning the registered holder or registered holders of the Warrants).
A copy of the Warrant Agreement may be obtained by the Holder from the Company
at ββ βββββββ βββββββ, βββββββ, ββββββββββββ, βββββ-ββββ by a written request
from the Holder hereof and may be inspected by the Holder or his agent at the
principal office of the Warrant Agent.
This Class B Warrant shall be exercisable at any time during the
period from and after (i) in the case of any Holder other than the Initial
Holder of this Class B Warrant or an Affiliate of such Initial Holder, the Issue
Date and (ii) in the case of the Initial Holder of this Class B Warrant or an
Affiliate of such Initial Holder, the first anniversary of the Issue Date until
the Expiration Date.
The number of Warrant Shares issuable upon exercise of the Warrants
and the Exercise Price 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 the Expiration Date, and to the extent not exercised by such time, such
Class B Warrants shall become void.
The Holder of Class B Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the Exercise Price in cash at the office of the Company
designated for such purpose. In the event that upon any exercise of Class B
Warrants evidenced hereby the number of Class B Warrants exercised shall be less
than the total number of Class B Warrants evidenced hereby, there shall be
issued to the Holder hereof or his assignee a new Warrant Certificate evidencing
the number of Class B Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain
events the number of Warrant Shares issuable upon exercise of each Class B
Warrant set forth on the face hereof and the Exercise Price thereof shall be
adjusted. No fractions of a share of Common 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 Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Company
by the registered Holder thereof in person or by its legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or 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 Warrant
Certificate at the office of the Company, a new Warrant Certificate or 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
Warrant Certificate, subject to the limitations provided in the Warrant
3
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) of this
Warrant Certificate as the absolute owner(s) thereof (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, and the Company shall not be affected by any notice to the
contrary. Neither the Class B Warrants nor this Warrant Certificate entitles any
Holder hereof to any rights of a stockholder of the Company.
4
IN WITNESS WHEREOF, Vishay Intertechnology, Inc. has caused this
Class B Warrant Certificate to be signed by its President and by its Secretary,
each by a facsimile of his signature, and has caused a facsimile of its
corporate seal to be affixed hereunto or implied hereon.
Dated: _______, 2002
By:___________________________
By:___________________________
AMERICAN STOCK TRANSFER & TRUST CO.
By:
----------------------------------
Name:
Title:
5
ASSIGNMENT FORM
If you, the Holder, want to assign this Class B Warrant, fill in the
form below:
I or we assign and transfer this Class B Warrant to:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _________________________________________ agent to
transfer this Class B Warrant on the books of the Company. The agent may
substitute another to act for him.
Date:____________________________ Signed:_________________________________
(Signed exactly as your name appears on
the other side of this Warrant)
In connection with any transfer of this Class B Warrant occurring
prior to the date of the declaration by the Securities and Exchange Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Class B
Warrant (which effectiveness shall not have been suspended or terminated at the
date of transfer) at all times when such securities are deemed to be "restricted
securities" within the meaning of the Securities Act, the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Class B Warrant is being transferred:
[Check One]
(1) [ ] to the Company or a subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) [ ] to an institutional "accredited investor" (as defined in Rule
501(a)(1),(2), (3) or (7) under the Securities Act); or
(4) [ ] outside the United States to a person who is not a "US person," in
compliance with Rule 904 of Regulation S under the Securities Act;
or
(5) [ ] pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
1
(6) [ ] pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Company shall not be obligated to
register any of the Class B Warrants evidenced by this certificate in the name
of any person other than the registered Holder thereof. If box (3), (4), (5) or
(6) is checked, the Company may require, upon the terms described in the Warrant
Agreement, prior to registering any such transfer of the Warrant Certificate,
such legal opinions, certifications and other information as the Company
reasonably requests to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
Date:___________________________ Signed:____________________________________
(Sign exactly as your name appears on the
other side of this Warrant Certificate)
2
ELECTION TO PURCHASE FORM
If you, the Holder, want to exercise the Class B Warrants
represented by this Certificate, fill in the form below.
I or we, the registered owner of the Class B Warrants represented by this
Certificate irrevocably exercise ________________________________ Class B
Warrants for the purchase of _________________________________ shares or other
securities or property
of Common Stock of Vishay Intertechnology, Inc., at the price and on the terms
and conditions specified in the Class B Warrants and request that certificates
for the shares of Common Stock hereby purchased (and any securities or other
property issuable or transferable upon such exercise) be issued in the name of
and delivered to:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of owner)
and, if such Class B Warrants shall not constitute all of the Class B Warrants
represented by this Certificate, that a new Class B Warrant Certificate of like
tenor and date for the balance of the Class A Warrantes represented hereby be
delivered to the undersigned.
Number of Class B Warrants represented by this Certificate ________
Number of Class B Warrants being exercised ________
Balance ________
Date:_____________________________ Signed:__________________________________
(Signed exactly as your name appears on
this Warrant)
Note: Each certificate represents a certain number of Warrants. Each Warrant is
exercisable for one share, subject to adjustment (which may result in
exercisability for other securities on property).
1