EXHIBIT 4.9
AMENDED AND RESTATED
WARRANT AGREEMENT
THIS AMENDED AND RESTATED WARRANT AGREEMENT, dated as of June 8, 2001
(this "Agreement") is entered into between DRS TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and MELLON INVESTOR SERVICES LLC, a
New Jersey limited liability company ("Warrant Agent").
W I T N E S S E T H:
WHEREAS, NAI Technologies, Inc. ("NAI") entered into a Warrant
Agreement dated as of August 26, 1996 (the "Original Warrant Agreement")
with American Stock Transfer & Trust Company (the "Original Warrant Agent")
contemporaneously with the effectiveness of a registration statement filed
by NAI covering, among, other matters, the public offer and sale of
warrants (the "NAI Warrants") to purchase up to approximately 4,119,700
shares of common stock, par value $.10 per share, of NAI (the "NAI Common
Stock") which were being sold from time to time by the holders thereof,
each NAI Warrant representing the right to purchase from NAI one (1) share
of NAI Common Stock at the purchase price of $2.50 per share, subject to
adjustment, until the expiration of the NAI Warrant on February 15, 2002;
and
WHEREAS, pursuant to the merger (the "Merger") of DRS Merger Sub,
Inc., a wholly-owned subsidiary of the Company, with and into NAI, with NAI
being the surviving corporation and wholly-owned subsidiary of the Company,
(i) each issued and outstanding NAI Warrant was converted to a warrant
(collectively, the "Warrants") to purchase shares of the common stock, par
value $.01 per share, of the Company (the "Common Stock") at a conversion
ratio of 0.25 share of Common Stock to one share of NAI Common Stock at a
purchase price of $10.00 per share, subject to adjustment (the "Purchase
Price"), and (ii) the Company assumed the obligations of NAI under the
Warrant Agreement; and
WHEREAS, in connection with the Merger, NAI, the Original Warrant
Agent and Continental Stock Transfer & Trust Company ("Continental")
entered into an Amendment to the Original Warrant Agreement dated as of
February 18, 1999 (as the Original Warrant Agreement was so amended, the
"Warrant Agreement") pursuant to which the Original Warrant Agent was
discharged of its duties under the Original Warrant Agreement and
Continental was appointed a successor warrant agent pursuant to Section 12
of the Original Warrant Agreement; and
WHEREAS, the Company has discharged Continental as successor warrant
agent pursuant to Section 12 of the Warrant Agreement; and
WHEREAS, the Company desires to appoint Warrant Agent, and Warrant
Agent desires to be appointed, as successor warrant agent pursuant to
Section 12 of the Warrant Agreement; and
WHEREAS, the Company desires to amend and restate the Warrant
Agreement and to appoint Warrant Agent to act on behalf of the Company, and
Warrant Agent is willing so to act, in connection with the issuance,
transfer, exchange, and replacement of the certificates evidencing the
Warrants (the "Warrant Certificates") and the exercise of the Warrants, and
to act as depository for the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
Mellon Investor Services LLC to act as agent for the Company in accordance
with the terms and conditions contained (i) hereinafter in this Agreement
and (ii) in the Warrant Certificate substantially in the form of the draft
attached hereto as Exhibit A and made a part hereof, and Mellon Investor
Services LLC hereby accepts such appointment. Warrant Agent is hereby
vested with the same powers, rights, duties and responsibilities as if it
had been originally named as Warrant Agent and Warrant Agent accepts and
assumes such powers, rights, duties and responsibilities. The Company may
from time to time appoint such Co-Warrant Agents as it may deem necessary
or desirable.
Section 2. Form of Warrant Certificate
The Warrant Certificates (and the terms and conditions of the Warrant
to be printed on the reverse thereof) shall be substantially in the form of
the draft attached hereto as Exhibit A and may have such letters, numbers,
or other marks of identification or designation and such legends,
summaries, or endorsements printed, lithographed, or engraved thereon as
the Company may deem appropriate (which does not materially change or
affect the rights, duties and obligations of the Warrant Agent) and as are
not inconsistent with the provisions of this Warrant Agreement, or as may
be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange. The
Warrant Certificate sets forth the rights of the holders of the Warrant
Certificate.
Section 3. Countersignature and Registration
The Warrant Certificates shall be executed on behalf of the Company by
its Chairman of the Board, its President, or any Vice President, by
facsimile signature, and have affixed thereto a facsimile of the Company's
seal which shall be attested by the Secretary or an Assistant Secretary of
the Company by facsimile signature. The Warrant Certificates shall be
manually counter-signed by Warrant Agent and shall not be valid for any
purpose unless so counter-signed. In case any officer of the Company who
has signed any of the Warrant Certificates ceases to be such officer of the
Company before countersignature by the Warrant Agent and issuance and
delivery by the Company, such Warrant Certificates, nevertheless, may be
counter-signed by Warrant Agent, issued, and delivered with the same force
and effect as though the person who signed such Warrant Certificates had
not ceased to be such officer of the Company.
Warrant Agent shall keep, or cause to be kept, at its designated
office, books for registration and transfer of the Warrant Certificates
issued hereunder. Such books shall show the names and address of the
respective holders of the Warrant Certificates, the
number of Warrants evidenced on its face by each of the Warrant
Certificates, and the date of each of the Warrant Certificates.
Section 4. Transfer, Split-Up, Combination, and Exchange of Warrant
Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
A. Subject to the provisions of Section l(c) of the Warrant
Certificate, any Warrant Certificate, with or without other Warrant
Certificates, may be transferred, split up, combined, or exchanged for
another Warrant Certificate or Warrant Certificates in accordance with
Sections 1 and 4 of the Warrant Certificate.
B. Upon receipt by the Company and Warrant Agent of evidence
reasonably satisfactory to each of the Company and Warrant Agent of the
loss, theft, destruction, or mutilation of a Warrant Certificate, and in
case of loss, theft, destruction, or mutilation, of indemnity reasonably
satisfactory to the Company and the Warrant Agent and, in the case of
mutilation, upon surrender and cancellation thereof, Warrant Agent will
execute and deliver a new Warrant Certificate in accordance with Section 7
of the Warrant Certificate.
Section 5. Subsequent Issue of Warrant Certificates.
No Warrant Certificates may be issued except (a) Warrant Certificates
issued in accordance with Section 4.A hereof and (b) Warrant Certificates
issued in accordance with Section 4.B hereof.
Section 6. Exchange, Transfer or Assignment of Warrant Certificates
Fees.
The Company covenants and agrees that it will pay when due and payable
any and all governmental taxes (excluding income taxes) and charges which
may be payable in respect of the issuance or delivery of the Warrant
Certificates or of any shares of Common Stock upon the exercise of Warrants
in accordance with Section 4 of the Warrant Certificate. The Company shall
not, however, be required to pay any tax which may be payable in respect of
any transfer involved in the transfer or delivery of Warrant Certificates,
or the issuance or delivery of certificates for shares of Common Stock in a
name other than that of the registered holder of the Warrant Certificate
evidencing Warrants surrendered for exercise, or to issue or deliver any
certificates for shares of Common Stock upon the exercise of any Warrants,
until any such tax has been paid (any such tax being payable by the holder
of such Warrant Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 7. Right of Action.
All rights of action in respect of this Agreement are vested in the
respective registered holders of the Warrant Certificates; and any
registered holder of any Warrant Certificate, without the consent of
Warrant Agent or of the holder of any other Warrant Certificate, may, in
such holder's own behalf and for such holder's own benefit, enforce, and
may institute and maintain any suit action, or proceeding against the
Company to
enforce, or otherwise in respect of, such holder's right to exercise the
Warrants evidenced by such Warrant Certificate in the manner provided in such
Warrant Certificate.
Section 8. Registration and Transfer of Warrant Certificates.
The Company agrees that:
A. The Warrants are transferable only on the registry books of Warrant
Agent upon surrender of the Warrant Certificates at the designated office
of Warrant Agent and only as provided in Section 4 of the Warrant
Certificate; and
B. Warrant Agent may deem and treat the person in whose name the
Warrant Certificate is registered as the absolute owner thereof and of the
Warrants evidenced thereby (notwithstanding any notations of ownership or
writing on the Warrant Agent) for all purposes whatsoever, and neither the
Company nor Warrant Agent shall be affected by any notice to the contrary.
Section 9. Concerning Warrant Agent.
The Company agrees to pay to Warrant Agent the fees set forth in
Schedule I hereto for all services rendered by Warrant Agent in the
execution and administration of this Agreement, to reimburse Warrant Agent
for all reasonable expenses (including reasonable counsel fees),
disbursements, taxes and governmental charges and other charges of any kind
and nature incurred by Warrant Agent in the preparation, execution,
delivery, amendment and administration of this Agreement and to indemnify
Warrant Agent and save it harmless against any and all liabilities,
including judgments, costs, losses, damages, fines, penalties, claims,
demands, settlements and reasonable counsel fees, for any action taken,
suffered or omitted to be taken by Warrant Agent in connection with the
execution and administration of this Agreement except as a result of the
Warrant Agent's gross negligence, willful misconduct or bad faith (each as
finally determined by a court of competent jurisdiction). The foregoing
indemnities in this paragraph shall survive termination or removal of the
Warrant Agent or termination of this Agreement. The reasonable costs and
expenses incurred in enforcing this right of indemnification shall be paid
by the Company. Any liability of Warrant Agent under this Agreement to the
Company will be limited to the amount of fees paid by the Company to
Warrant Agent.
Section 10. Merger or Consolidation or Change of Name of Warrant
Agent.
Any entity into which Warrant Agent or any successor Warrant Agent may
be merged or with which it may be consolidated, or any entity resulting
from any merger or consolidation to which Warrant Agent or any successor
Warrant Agent is a party, or any entity succeeding to the business of
Warrant Agent or any successor Warrant Agent, shall be the successor to the
Warrant Agent under this Agreement without the execution or filing of any
amendment or any further act on the part of any of the parties hereto,
provided that such entity would be eligible for appointment as a successor
Warrant Agent under the provisions of Section 12. In case at the time such
successor Warrant Agent succeeds to the agent created by this Agreement,
any of the Warrant Certificates have been counter-signed but not delivered,
any such successor Warrant Agent may adopt the countersignature of the
predecessor Warrant Agent and deliver such Warrant Certificates so
counter-signed; and in case at that time any of the Warrant Certificates
have not been countersigned, Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the
name of the successor Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates
and in this Agreement.
In case at any time the name of Warrant Agent is changed and at such
time any of the Warrant Certificates have been counter-signed but not
delivered, Warrant Agent may adopt the countersignature under its prior
name and deliver Warrant Certificates so counter-signed; and in case at
that time any of the Warrant Certificates have not been counter-signed,
Warrant Agent may countersign such Warrant Certificates either in its prior
name or in its changed name; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates
and in this Agreement.
Section 11. Duties of Warrant Agent.
Warrant Agent undertakes only the duties and obligations expressly
imposed by this Agreement upon the following terms and conditions, by all
of which the Company and the holders of Warrant Certificates, by their
acceptance thereof, shall be bound:
A. Warrant Agent may consult with legal counsel for the Company, and
the advice or opinion of such counsel shall be full and complete
authorization and protection to Warrant Agent as to any action taken,
suffered or omitted by it in good faith and in accordance with such advice
or opinion.
B. Whenever in the performance of its duties under this Agreement
Warrant Agent deems it necessary or desirable that any fact or matter be
provided or established by the Company prior to taking, suffering or
omitting to take any action hereunder such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by
the Chairman of the Board, the President, or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary
of the Company, and delivered to Warrant Agent; and such certification
shall be full authorization to Warrant Agent for any action taken, suffered
or omitted in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
C. Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
Warrant Certificates (except its countersignature thereof) or be required
to verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
D. Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature thereof)
or the genuineness of any endorsed document of assignment or other document
believed by it to be genuine; nor shall it be responsible for the
adjustment of the Purchase Price or the making of any change in the number
of shares of Common Stock required under the provisions of the Warrant or
responsible for the manner, method, or amount of any such change or the
ascertaining of the existence of facts that would require any such
adjustment or change (except with respect to the exercise of Warrants
evidenced by Warrant Certificates after actual notice of any adjustment of
the Purchase Price); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of
any securities to be issued pursuant to this Agreement or any Warrant
Certificate or as to whether any securities will, when issued, be validly
authorized and issued, fully paid, and nonassessable.
E. The Company agrees that it shall perform, execute, acknowledge, and
deliver or cause to be performed, executed, acknowledged, and delivered all
such further and other acts, instruments, and assurances as may reasonably
be required by Warrant Agent for the carrying out or performing by Warrant
Agent of the provisions of this Agreement.
F. Warrant Agent is hereby authorized, protected and directed to
accept instruments with respect to the performance of its duties hereunder
from the Chairman of the Board, the President, a Vice President, the
Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer
of the Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith in accordance
with instructions received from any such officer.
G. Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees.
H. Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of a Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument reasonably believed by it to be genuine
and to have been signed, sent or presented by the proper party or parties
except for Warrant Agent's own gross negligence, willful misconduct or bad
faith (each as finally determined by a court of competent jurisdiction).
I. Warrant Agent and any stockholder, affiliate, director, officer or
employee of Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Warrant Agent under this Agreement. Nothing herein
shall preclude Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
J. Warrant Agent shall act hereunder solely as agent for the Company
and in a ministerial capacity, and its duties shall be determined solely by
the provisions hereof. Warrant Agent shall not be liable for any action
taken, suffered or omitted to be taken in connection with this Agreement
except for its own gross negligence, willful misconduct or bad faith (each
as finally determined by a court of competent jurisdiction).
Notwithstanding anything herein to the contrary, in no event shall Warrant
Agent be liable for special, indirect, punitive, incidental or
consequential loss or damage of any kind whatsoever (including, but not
limited to, lost profits) even if Warrant Agent has been advised of the
likelihood of such loss or damage.
L. No provision of this Warrant Agreement shall require Warrant Agent
to expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties herewith or in the exercise of its
rights hereunder if it believes that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to
it.
Section 12. Change of Warrant Agents.
Warrant Agent may resign and be effectively discharged from its duties
under this Agreement upon thirty days' notice in writing mailed to the
Company by registered or certified mail, and to the holder of the Warrants
by first-class mail. The Company may remove Warrant Agent or any successor
Warrant Agent upon thirty days' notice in writing mailed to Warrant Agent
or a successor Warrant Agent, as the case may be, and to each transfer
agent of the Common Stock, by first class mail. If the Warrant Agent
resigns, is removed, or becomes otherwise incapable of acting, the Company
shall appoint a successor Warrant Agent. If the Company fails to make such
appointment within a period of thirty (30) days after such removal or after
it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the holder of a Warrant (who
shall, with such notice, submit his, her, or its Warrant Certificate for
inspection by the Company), then the Company, the Warrant Agent or the
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a new Warrant Agent. Any successor
Warrant Agent, whether appointed by the Company or by such a court, shall
be an entity organized and doing business, or a partnership or association
formed, under the laws of the United States or of the State of New York in
good standing, having an office in New York City, New York, which has at
the time of its appointment as Warrant Agent a combined capital and surplus
of at least Ten Million Dollars ($10,000,000). After appointment, the
successor Warrant Agent shall be vested with the same powers, rights,
duties, and responsibilities as if it had been originally named as Warrant
Agent without further act or deed; and, upon payment in full of amounts
owed to the predecessor Warrant Agent, the predecessor Warrant Agent shall
deliver and transfer to the successor Warrant Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act, or deed necessary for that purpose. Not later than the
effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Warrant Agent and
each transfer agent of the Common Stock, and mail a notice thereof in
writing to the registered holders of the Warrants. Failure to give any
notice provided for in this Section "12," however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of
Warrant Agent or the appointment of the successor Warrant Agent, as the
case may be.
A. Notices or demands authorized by this Agreement to be given or made
by Warrant Agent or by the holder of any Warrant Certificate to or on the
Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing by
the Company with Warrant Agent) as follows:
DRS Technologies, Inc.
▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Subject to the provisions of the Warrant Certificate, any notice or
demand authorized by this Agreement to be given or made by the Company or
by the holder of any Warrant to or on Warrant Agent shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by Warrant Agent with the
Company) as follows:
Mellon Investor Services LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Relationship Management
Notices or demands authorized by this Agreement to be given or made by
the Company or Warrant Agent to the holder of any Warrant shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the
registry books of the Company. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given
whether or not the registered holder received the notice.
Section 13. Modification of Agreement.
Warrant Agent may, without the consent or concurrence of the holders
of the Warrants, by supplemental agreement or otherwise, join with the
Company in making any change to, or correction in, this Agreement that they
shall have been advised by counsel (who may be counsel for the Company):
(1) are required to cure any ambiguity or to correct any defective or
inconsistent provision or clerical omission or mistake or manifest error
herein contained; or (2) add to the covenants and agreements of the Company
in this Agreement further covenants and agreements thereafter to be
observed, or surrender any right reserved to or conferred upon the Company
in this Agreement; and (3) in either case, do not adversely affect, alter,
or change the rights, privileges, or immunities of the holders of the
Warrant Certificates or Warrant Agent.
Section 14. Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Company or Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 15. Benefits of this Agreement.
Nothing expressed in this Agreement and nothing that may be implied
from any of the provisions hereof is intended, or shall be construed, to
confer upon, or give to, any person or corporation other than the Company,
Warrant Agent, and the holders of the Warrants any right, remedy, or claim
under or by reason of this Agreement or of any covenant, condition,
stipulation, promise, or agreement hereof; and all covenants, conditions,
stipulations, promises, and agreements in this Agreement contained herein
shall be for the sole and exclusive benefit of the Company and Warrant
Agent and their respective successors and of the holders of the Warrants.
Section 16. 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 governed by and construed in accordance with the
laws of such State.
Section 17. Descriptive Heading.
Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
Section 18. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall constitute an original and all of which together shall
constitute one single document.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Warrant Agreement to be duly executed as of the date first written
above.
DRS TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive V.P., CFO
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (SEAL)
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MELLON INVESTOR SERVICES LLC, as
Warrant Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Relationship Manager
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (SEAL)
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EXHIBIT A
No. B-____ _______ Shares
DRS TECHNOLOGIES, INC.
WARRANT TO PURCHASE COMMON STOCK
VOID AFTER 5:30 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE
THIS WARRANT AND ANY SHARES ISSUED UPON THE EXERCISE OF THIS WARRANT ARE SUBJECT
TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 2 OF THIS WARRANT.
FOR VALUE RECEIVED, DRS TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), hereby agrees to sell upon the terms and on the conditions
hereinafter set forth, but no later than 5:30 p.m., New York City time, on the
Expiration Date (as hereinafter defined) to __________________________, or
registered assigns (the "Holder"), under the terms as hereinafter set forth,
______________________________ (______) fully paid and non-assessable shares of
the Company's Common Stock, par value $.01 per share (the "Warrant Stock"), at a
purchase price per share of Ten Dollars ($10.00) (the "Warrant Price"), pursuant
to this warrant (this "Warrant"). The number of shares of Warrant Stock to be so
issued and the Warrant Price are subject to adjustment in certain events as
hereinafter set forth. The term "Common Stock" shall mean, when used herein,
unless the context otherwise requires, the stock and other securities and
property at the time receivable upon the exercise of this Warrant.
This Warrant is one of a series of the Company's Warrants to purchase
Common Stock (collectively, the "Warrants"), issued pursuant to that certain
Agreement and Plan of Merger, dated as of August 26, 1998, by and among the
Company, NAI Technologies, Inc. and DRS Merger Sub, Inc. (the "Agreement").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings attributed to such terms in the Agreement.
1. Exercise of Warrant.
(a) The Holder may exercise this Warrant according to its terms by
surrendering this Warrant to the Company at the address set forth in Section 10,
the subscription form attached hereto having then been duly executed by the
Holder, accompanied by cash, certified check or bank draft in payment of the
purchase price, in lawful money of the United States of America, for the number
of shares of the Warrant Stock specified in the subscription form, or as
otherwise provided in this Warrant prior to 5:30 p.m., New York City time, on
February 15, 2002 (the "Expiration Date").
(b) This Warrant may be exercised in whole or in part so long as any
exercise in part hereof would not involve the issuance of factional shares of
Warrant
Stock. If exercised in part, the Company shall deliver to the Holder a new
Warrant, identical in form, in the name of the Holder, evidencing the right to
purchase the number of shares of Warrant Stock as to which this Warrant has not
been exercised, which new Warrant shall be signed by the Chairman and Chief
Executive Officer or the President and the Secretary or the Assistant Secretary
of the Company. The term Warrant as used herein shall include any subsequent
Warrant issued as provided herein.
(c) No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of this Warrant. The Company shall pay cash in lieu
of fractions with respect to the Warrants based upon the fair market value of
such fractional shares of Common Stock (which shall be the closing price of such
shares on the exchange or market on which the Common Stock is then traded) at
the time of exercise of this Warrant.
(d) In the event of any exercise of the rights represented by this
Warrant, a certificate or certificates for the Warrant Stock so purchased,
registered in the name of the Holder, shall be delivered to the Holder within a
reasonable time after such rights shall have been so exercised. The person or
entity in whose name any certificate for the Warrant Stock is issued upon
exercise of the rights represented by this Warrant shall for all purposes be
deemed to have become the holder of record of such shares immediately prior to
the close of business on the date on which the Warrant was surrendered and
payment of the Warrant Price and any applicable taxes was made, irrespective of
the date of delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of such shares at
the opening of business on the next succeeding date on which the stock transfer
books are open. Except as provided in Section 4 hereof, the Company shall pay
any and all documentary stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of shares of Common Stock on exercise of this
Warrant.
2. Disposition of Warrant Stock and Warrant. If, at the time of issuance
of the shares issuable upon exercise of this Warrant, no registration statement
is in effect with respect to such shares under applicable provisions of the
Securities Act of 1933, as amended (the "Act"), the Company may at its election
require that any stock certificate delivered to the Holder of a surrendered
Warrant bear legends reading substantially as follows:
"TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE WARRANT
PURSUANT TO WHICH THESE SHARES WERE PURCHASED FROM THE
COMPANY. COPIES OF THOSE RESTRICTIONS ARE ON FILE AT THE
PRINCIPAL OFFICES OF THE COMPANY, AND NO TRANSFER OF SUCH
SHARES OR OF THIS CERTIFICATE, OR OF ANY SHARES OR OTHER
2
SECURITIES (OR CERTIFICATES THEREFOR) ISSUED IN EXCHANGE FOR
OR IN RESPECT OF SUCH SHARES, SHALL BE EFFECTIVE UNLESS AND
UNTIL THE TERMS AND CONDITIONS THEREIN SET FORTH SHALL HAVE
BEEN COMPLIED WITH."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT."
In addition, so long as the foregoing legend may remain on any stock certificate
delivered to the Holder, the Company may maintain appropriate "stop transfer"
orders with respect to such certificates and the shares represented thereby on
its books and records and with those to whom it may delegate registrar and
transfer functions.
3. Reservation of Shares. The Company hereby agrees that at all times
there shall be reserved for issuance upon the exercise of this Warrant such
number of shares of its Common Stock as shall be required for issuance upon
exercise of this Warrant. The Company further agrees that all shares which may
be issued upon the exercise of the rights represented by this Warrant will be
duly authorized and will, upon issuance and against payment of the exercise
price, be validly issued, fully paid and non-assessable, free from all taxes,
Liens, charges and preemptive rights with respect to the issuance thereof, other
than taxes, if any, in respect of any transfer occurring contemporaneously with
such issuance and other than transfer restrictions imposed by federal and state
securities laws.
4. Exchange, Transfer, Assignment or Loss of Warrant. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations, entitling the
Holder or Holders thereof to purchase in the aggregate the same number of shares
of Common Stock purchasable hereunder. Upon surrender of this Warrant to the
Company or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants that carry the same rights upon presentation hereof at the
office of the Company or at the office of its stock transfer agent, if any,
together with a written notice
3
specifying the names and denominations in which new Warrants are to be issued
and signed by the Holder hereof.
5. Capital Adjustments. This Warrant is subject to the following further
provisions:
(a) Recapitalization, Reclassification and Succession. If any
recapitalization of the Company or reclassification of its Common Stock or any
merger or consolidation of the Company into or with a corporation or other
business entity, or the sale or transfer of all or substantially all of the
Company's assets or of any successor corporation's assets to any other
corporation or business entity (any such corporation or other business entity
being included within the meaning of the term "successor corporation") shall be
effected, at any time while this Warrant remains outstanding and unexpired,
then, as a condition of such recapitalization, reclassification, merger,
consolidation, sale or transfer, lawful and adequate provision shall be made
whereby the Holder of this Warrant thereafter shall have the right to receive
upon the exercise hereof as provided in Section 1 and in lieu of the shares of
Common Stock immediately theretofore issuable upon the exercise of this Warrant,
such shares of capital stock, securities or other property as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
Common Stock equal to the number of shares of Common Stock immediately
theretofore issuable upon the exercise of this Warrant had such
recapitalization, reclassification, merger, consolidation, sale or transfer not
taken place, and in each such case, the terms of this Warrant shall be
applicable to the shares of stock or other securities or property receivable
upon the exercise of this Warrant after such consummation.
(b) Subdivision or Combination of Shares. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Common Stock, the number of shares of Warrant Stock purchasable upon
exercise of this Warrant and the Warrant Price shall be proportionately
adjusted.
(c) Stock Dividends and Distributions. If the Company at any time while
this Warrant is outstanding and unexpired shall issue or pay the holders of its
Common Stock, or take a record of the holders of its Common Stock for the
purpose of entitling them to receive, a dividend payable in, or other
distribution of, Common Stock, then (i) the Warrant Price shall be adjusted in
accordance with Section 5(e) and (ii) the number of shares of Warrant Stock
purchasable upon exercise of this Warrant shall be adjusted to the number of
shares of Common Stock that Holder would have owned immediately following such
action had this Warrant been exercised immediately prior thereto.
(d) Stock and Rights Offering to Stockholders. If at any time after the
date of issuance of this Warrant, the Company shall issue or sell, or fix a
record date for the purposes of entitling holders of its Common Stock to
receive, (i) Common Stock or (ii) rights, options or warrants entitling the
holders thereof to subscribe for or purchase Common Stock (or securities
convertible or exchangeable into or exercisable for Common Stock), in any such
case, at a price per share (or having a conversion, exchange
4
or exercise price per share) that is less than the closing price per share of
the Company's Common Stock on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed or
traded on any such exchange, on the National Market System (the "National Market
System") of the National Association of Securities Dealers Automated Quotations
System ("Nasdaq"), or if not listed or traded on any such exchange or system,
the average of the bid and asked price per share on Nasdaq or, if such
quotations are not available, the fair market value per share of the Company's
Common Stock as reasonably determined by the Board of Directors of the Company
(the "Closing Price") on the date of such issuance or sale or on such record
date then, immediately after the date of such issuance or sale or on such record
date, (x) the Warrant Price shall be adjusted in accordance with Section 5(e),
and (y) the number of shares of Warrant Stock purchasable upon exercise of this
Warrant shall be adjusted to that number determined by multiplying the number of
shares of Warrant Stock purchasable upon exercise of this Warrant immediately
before the date of such issuance or sale or such record date by a fraction, the
denominator of which will be the number of shares of Common Stock outstanding on
such date plus the number of shares of Common Stock that the aggregate offering
price of the total number of shares so offered for subscription or purchase (or
the aggregate initial conversion price, exchange price or exercise price of the
convertible securities or exchangeable securities or rights, options or
warrants, as the case may be, so offered) would purchase at such Closing Price,
and the numerator of which will be the number of shares of Common Stock
outstanding on such date plus the number of additional shares of Common Stock
offered for subscription or purchase (or into which the convertible or
exchangeable securities or rights, options or warrants so offered are initially
convertible or exchangeable or exercisable, as the case may be).
If the Company shall at any time after the date of issuance of
this Warrant distribute to all holders of its Common Stock any shares of capital
stock of the Company (other than Common Stock) or evidences of its Indebtedness
or assets (excluding cash dividends or distributions paid from retained earnings
or current year's or prior year's earnings of the Company) or rights or warrants
to subscribe for or purchase any of its securities (excluding those referred to
in the immediately preceding paragraph) (any of the foregoing being hereinafter
in this paragraph called the "Securities"), then in each such case, the Company
shall reserve shares or other units of such securities for distribution to the
Holder upon exercise of this Warrant so that, in addition to the shares of the
Common Stock to which such Holder is entitled, such Holder will receive upon
such exercise the amount and kind of such Securities which such Holder would
have received if the Holder had, immediately prior to the record date for the
distribution of the Securities, exercised this Warrant.
(e) Warrant Price Adjustment. Whenever the number of shares of Warrant
Stock purchasable upon exercise of this Warrant is adjusted, as herein provided,
the Warrant Price payable upon the exercise of this Warrant shall be adjusted to
that price determined by multiplying the Warrant Price immediately prior to such
adjustment by a fraction (i) the numerator of which shall be the number of
shares of Warrant Stock purchasable upon exercise of this Warrant immediately
prior to such adjustment, and (ii)
5
the denominator of which shall be the number of shares of Warrant Stock
purchasable upon exercise of this Warrant immediately thereafter.
(f) Certain Shares Excluded. The number of shares of Common Stock
outstanding at any given time for purposes of the adjustments set forth in this
Section 5 shall exclude any shares then directly or indirectly held in the
treasury of the Company.
(g) Deferral and Cumulation of De Minimis Adjustments. The Company
shall not be required to make any adjustment pursuant to this Section 5 if the
amount of such adjustment would be less than one percent (1%) of the Warrant
Price in effect immediately before the event that would otherwise have given
rise to such adjustment. In such case, however, any adjustment that would
otherwise have been required to be made shall be made at the time of and
together with the next subsequent adjustment which, together with any adjustment
or adjustments so carried forward, shall amount to not less than one percent
(1%) of the Warrant Price in effect immediately before the event giving rise to
such next subsequent adjustment.
(h) Duration of Adjustment. Following each computation or readjustment
as provided in this Section 5, the new adjusted Warrant Price and number of
shares of Warrant Stock purchasable upon exercise of this Warrant shall remain
in effect until a further computation or readjustment thereof is required.
6. Notice to Holders.
(a) Notice of Record Date. In case:
(i) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable
upon the exercise of this Warrant) for the purpose of
entitling them to receive any dividend (other than a cash
dividend payable out of earned surplus of the Company) or
other distribution, or any right to subscribe for or
purchase any shares of stock of any class or any other
securities, or to receive any other right;
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation with or merger of the Company into another
corporation, or any conveyance of all or substantially all
of the assets of the Company to another corporation; or
(iii) of any voluntary dissolution, liquidation or winding-up of
the Company;
then, and in each such case, the Company will mail or cause to be mailed to the
Holder hereof at the time outstanding a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance,
6
dissolution, liquidation or winding-up is to take place, and the time, if any,
is to be fixed, as of which the holders of record of Common Stock (or such stock
or securities at the time receivable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance, dissolution
or winding-up. Such notice shall be mailed at least thirty (30) days prior to
the record date therein specified, or if no record date shall have been
specified therein, at least thirty (30) days prior to such specified date.
(b) Certificate of Adjustment. Whenever any adjustment shall be made
pursuant to Section 5 hereof, the Company shall promptly make a certificate
signed by its Chairman and Chief Executive Officer, its President or a Vice
President and by its Treasurer or Assistant Treasurer or its Secretary or
Assistant Secretary, setting forth in reasonable detail the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated and the Warrant Price and number of shares of Warrant Stock
purchasable upon exercise of this Warrant after giving effect to such
adjustment, and shall promptly cause copies of such certificates to be mailed
(by first class mail, postage prepaid) to the Holder of this Warrant.
7. Loss, Theft, Destruction or Mutilation. Upon receipt by the Company of
evidence satisfactory to it, in the exercise of its reasonable discretion, of
the ownership and the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Company and, in the case of mutilation, upon surrender and
cancellation thereof, the Company will execute and deliver in lieu thereof,
without expense to the Holder, a new Warrant of like tenor dated the date
hereof.
8. Warrant Holder Not a Stockholder. The Holder of this Warrant, as
such, shall not be entitled by reason of this Warrant to any rights whatsoever
as a stockholder of the Company.
9. Definitions. As used herein, unless the context otherwise requires, the
following terms have the respective meanings:
(a) "GAAP": United States generally accepted accounting principles,
consistently applied.
(b) "Indebtedness": at any time and with any respect to any Person,
(i) all indebtedness of such Person for borrowed money, (ii) all indebtedness of
such Person for the deferred purchase price of property or services (other than
property, including inventory, and services purchased, and expense accruals and
deferred compensation items arising, in the ordinary course of business,
provided that the same shall not be overdue (i.e., the earlier of ninety (90)
days from the invoice date or the date the obligee commences an action to
recover such amounts), or if overdue, are being contested in good faith and by
appropriate proceedings), (iii) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments (other than performance,
surety and appeal bonds arising in the ordinary course of business), (iv) all
indebtedness of such
7
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (v) all
obligations of such Person under leases which have been or should be, in
accordance with GAAP, recorded as capital leases, to the extent required to be
so recorded, (vi) all reimbursement, payment or similar obligations of such
Person, contingent or otherwise, under acceptance, letter of credit or similar
facilities, (vii) all Indebtedness referred to in clauses (i) through (vi) above
guaranteed directly or indirectly by such Person including without limitation
through any agreement (A) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (B) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss in
respect of such Indebtedness, (C) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (D) otherwise to assure a creditor against loss in respect of such
Indebtedness, and (viii) all Indebtedness referred to in clauses (i) through
(vii) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness.
(c) "Lien": any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind whatsoever.
(d) "Person": any natural person, corporation, division of a
corporation, partnership, limited liability company, trust, joint venture,
association, company, estate, unincorporated organization or government or any
agency or political subdivision thereof.
(e) "Subsidiaries": with respect to any Person, any corporation,
association or other business entity (whether now existing or hereafter
organized) of which at least a majority of the securities or other ownership
interests having ordinary voting power for the election of directors is, at the
time as of which any determination is being made, owned or controlled by such
Person or one or more subsidiaries of such Person.
10. Notices. Any notice required or contemplated by this Warrant shall be
deemed to have been duly given if transmitted by registered or certified mail,
return receipt requested, to the Company at ▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: President, or to the Holder at the name and address set forth
in the Warrant Register maintained by the Company.
11. Choice of Law. THIS WARRANT IS ISSUED UNDER AND SHALL FOR ALL PURPOSES
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
8
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed on its behalf, in its corporate name and by its duly authorized officer,
as of this _____ day of _____________ 1999.
DRS TECHNOLOGIES, INC.
By:
-----------------------------------
Name:
Title:
SUBSCRIPTION FORM
The undersigned, the Holder of the attached Warrant, hereby irrevocably
elects to exercise purchase rights represented by such Warrant for, and to
purchase thereunder, the following number of shares of Common Stock of DRS
TECHNOLOGIES, INC.:
Number of Shares Purchase Price Per Share
---------------- ------------------------
The undersigned herewith makes payment of $_____________ therefor, and
requests that certificates for such shares (and any warrants or other property
issuable upon such exercise) be issued in the name of and delivered to
______________________ whose address is
__________________________________________________________
_______________________________________ (social security or taxpayer
identification number ________________) and, if such shares shall not include
all of the shares issuable under such warrant, that a new warrant of like tenor
and date for the balance of the shares issuable thereunder be delivered to the
undersigned.
HOLDER:
------------------------
Signature
------------------------
Signature, if jointly held
------------------------
Date
ASSIGNMENT FORM
FOR VALUE RECEIVED, _____________________________________________ hereby sells,
assigns and transfers unto
Name____________________________________________________________________________
(Please typewrite or print in block letters)
Social Security or Taxpayer Identification Number_______________________________
the right to purchase shares of Common Stock of DRS TECHNOLOGIES, INC., a
Delaware corporation, represented by this Warrant to the extent of shares as to
which such right is exercisable and does hereby irrevocably constitute and
appoint _________________________________, Attorney, to transfer the same on the
books of the Company with full power of substitution in the premises.
DATED:__________________
--------------------------
Signature
--------------------------
Signature, if jointly held
Witness:
---------------------
SCHEDULE I
Mellon Investor Services LLC
Schedule of Fees
as
Warrant Agent for DRS Technologies, Inc.
================================================================================
I. Acceptance Fee (One time fee) $2,500.00
II. Reviewing Warrant Agent Agreement and appointment
documents By Appraisal
III. Annual fee for acting as Warrant Agent $2,500.00
IV. Conversion of Warrants (per item) $100.00
(includes the receipt of warrants and necessary funds,
cancellation of warrant, issuance of new security and
wiring of funds to issuer)
V. Special Services (Mailing of materials to holders), Minimum $250.00
Mechanically affixing labels to envelopes or enclosures, each $.03
Mechanically inserting enclosures into envelopes (letter
size), each $.05