Exhibit 4(f)
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EuroWeb International Corp.
and
American Stock Transfer & Trust Company
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Warrant Agreement
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Dated as of _____________, 1998
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TABLE OF CONTENTS
PAGE
PARTIES...................................................... 1
RECITALS..................................................... 1
Sec. 1. Appointment of Warrant Agent....................... 1
Sec. 2. Form of Warrant.................................... 1
Sec. 3. Countersignature and Registration................... 1
Sec. 4. Transfers and Exchanges............................. 2
Sec. 5. Exercise of Warrants................................ 2
Sec. 6. Payment of Taxes.................................... 3
Sec. 7. Mutilated or Missing Warrants....................... 3
Sec. 8. Reservation of Common Stock......................... 3
Sec. 9. Warrant Price....................................... 4
Sec. 10. Adjustments......................................... 4
Sec. 11. Fractional Interest................................. 8
Sec. 12. Notices to Warrantholders........................... 8
Sec. 13. Disposition of Proceeds on Exercise of Warrants..... 9
Sec. 14. Merger or Consolidation or Change of Name of
Warrant Agent..................................... 9
Sec. 15 Redemption.......................................... 10
Sec. 16. Duties of Warrant Agent............................. 10
Sec. 17. Change of Warrant Agent............................. 12
Sec. 18. Identity of Transfer Agent.......................... 12
Sec. 19. Notices............................................. 12
Sec. 20. Supplements and Amendments.......................... 13
Sec. 21. Successors.......................................... 13
Sec. 22. Governing Law....................................... 13
Sec. 23. Benefits of this Agreement.......................... 13
Sec. 24. Counterparts........................................ 14
TESTIMONIUM................................................... 14
SIGNATURES.................................................... 14
EXHIBIT A - (Form of Common Stock Purchase Warrant, prior to
Separation Date, including Election to Purchase
and Assignment)
EXHIBIT B - (Form of Common Stock Purchase Warrant, after
Separation Date, including Election to
Purchase and Assignment)
WARRANT AGREEMENT dated as of ________________, 1998, between EuroWeb
International Corp., a Delaware corporation, (hereinafter called the "Company")
and American Stock Transfer & Trust Company, as warrant agent (hereinafter
called the "Warrant Agent"); and
WHEREAS, the Company proposes to issue and sell up to 1,250,000 Common
Stock Purchase Warrants, each Warrant entitling the registered holder thereof to
purchase one share of Common Stock of the Company, (the "Warrants"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. APPOINTMENT OF WARRANT AGENT.
The Company hereby appoints the Warrant Agent to act as Agent for the
Company in accordance with the instructions hereinafter set forth in this
Agreement and the Warrant Agent hereby accepts such appointment.
Section 2. FORM OF WARRANT.
The Warrants are to be initially issued as components of Units, each
Unit consisting of one share of Preferred Stock and one Warrant, and the shares
of Preferred Stock and the Warrants will not be separable, and the Warrants will
not be exercisable or redeemable, prior to _________________, 1999 or such
earlier date after _______________, 1998 as designated by ▇.▇. ▇▇▇▇▇▇▇ & Co.,
Inc. (herein referred to as the "Separation Date"). Until the Separation Date,
the Warrants shall be evidenced by Unit certificates in the form annexed hereto
as Exhibit A, and after the Separation Date, the Warrants may be represented by
such certificates or by certificates in the form annexed hereto as Exhibit B.
The per share warrant price and the number of shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events, all as hereinafter provided. The Warrants shall be executed on
behalf of the Company by the manual or facsimile signature of the present or any
future Chairman, President or Vice President of the Company, attested by the
manual or facsimile signature of the present or any future Secretary or
Assistant Secretary of the Company.
Warrants shall be dated as of the date of issuance by the Warrant Agent
either upon initial issuance or upon transfer or exchange.
Section 3. COUNTERSIGNATURE AND REGISTRATION.
The Warrant Agent shall maintain books for the transfer and
registration of the Warrants. Upon the initial issuance of the Warrants, the
Warrant Agent shall issue and register the Warrants in the names of the
respective holders thereof. The Warrants shall be countersigned manually or by
facsimile by the Warrant Agent (or by any successor to the Warrant Agent then
acting as warrant agent under this Agreement) and shall not be valid for any
purpose unless so countersigned. Warrants may be so
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countersigned, however, by the Warrant Agent (or by its successor as warrant
agent) and be delivered by the Warrant Agent, notwithstanding that the persons
whose manual or facsimile signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at the time of such
countersignature or delivery, provided such persons were proper officers of the
Company at the time of such original signing.
Section 4. TRANSFERS AND EXCHANGES.
The Warrants cannot be transferred separately from the Preferred Stock
with which they are to be issued prior to the Separation Date. The Warrant Agent
shall transfer, from time to time after the Separation Date, any outstanding
Warrants upon the books to be maintained by the Warrant Agent for that purpose,
upon surrender thereof for transfer properly endorsed or accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
shall be issued to the transferee and the surrendered Warrant shall be canceled
by the Warrant Agent. Warrants so canceled shall be delivered by the Warrant
Agent to the Company from time to time upon request. Warrants may be exchanged
at the option of the holder thereof, when surrendered at the office of the
Warrant Agent, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of shares of Common Stock.
Section 5. EXERCISE OF WARRANTS.
Subject to the provisions of this Agreement, each registered holder of
Warrants shall have the right, which may be exercised commencing at the opening
of business New York City time on the Separation Date and terminating at 5:00
p.m., New York City time, on _____________, 2003 (the "Expiration Date"), to
purchase from the Company (and the Company shall issue and sell to such
registered holder of Warrants) the number of fully paid and non-assessable
shares of Common Stock specified in such Warrants, upon surrender to the Company
at the office of the Warrant Agent of such Warrants, with the form of election
to purchase on the reverse thereof duly filled in and executed, and upon payment
to the Company of the Warrant Price, determined in accordance with the
provisions of Sections 9 and 10 of this Agreement, for the number of shares in
respect of which such Warrants are then exercised. Payment of such Warrant Price
shall be made in cash or by check, bank draft or postal or express money order
payable, in United States dollars, to the order of the Company in New York
Clearing House funds. No adjustment shall be made for any dividends on any
shares of Common Stock issuable upon exercise of a Warrant. Subject to Section
6, upon such surrender of the Warrants and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch, upon the written order of the registered holder of such Warrants, and
in such name or names as such registered holder may designate, a certificate or
certificates for the number of full shares of Common Stock so purchased upon the
exercise of such Warrants. No fractional shares of Common Stock will be issued;
any fraction of a share issuable upon exercise shall be purchased in accordance
with section 11. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a holder of record of such shares as of the date of the surrender of such
Warrants and payment of the Warrant Price as aforesaid; provided, however, that
if, at the date of surrender of such Warrants and payment of such Warrant Price,
the transfer books for the shares of Common Stock or other class of stock
purchasable upon the exercise of such Warrants shall be closed, the certificates
for the shares in respect to which such Warrants are then exercised shall be
deemed to have been issued as of the date on which such books shall be opened
(whether before, on or after the Expiration Date) and until such date the
Company shall be under no duty to deliver any certificate for such shares;
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provided, further, however, that such transfer books, unless otherwise required
by law or by applicable rule of any national securities exchange, shall not be
closed at any one time for a period longer than 20 days. The rights of purchase
represented by the Warrants shall be exercisable, at the election of the
registered holders thereof, either as an entirety or from time to time for part
only of the shares specified therein and, in the event that any Warrant is
exercised in respect of fewer than all of the shares specified therein at any
time prior to the Expiration Date, a new Warrant or Warrants will be issued to
such registered holder for the remaining number of shares specified in the
Warrant so surrendered, and the Warrant Agent is hereby irrevocably authorized
to countersign and to deliver the required new Warrants pursuant to the
provisions of this Section and of Section 3 of this Agreement; and the Company,
whenever requested by the Warrant Agent, will supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such purpose. After the
respective Expiration Dates of the Warrants any such Warrants which have not
been exercised shall be void.
Section 6. PAYMENT OF TAXES.
The Company will pay any documentary stamp taxes attributable to the
issuance of Common Stock upon the exercise of the Warrants by the registered
holder thereof; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect to any transfer of a Warrant or
in respect to any transfer involved in the issue or delivery of any certificates
for shares of Common Stock in a name other than that of the registered holder of
Warrants in respect of which such shares are issued, and in such case neither
the Company nor the Warrant Agent shall be required to issue or deliver any
certificate for shares of Common Stock or any Warrant until the person
requesting the same has paid to the Company or Warrant Agent the amount of such
tax or has established to the Company's and to the Warrant Agent's satisfaction
that such tax has been paid.
Section 7. MUTILATED OR MISSING WARRANTS.
In case any of the Warrants shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue, and the Warrant Agent shall
then countersign and deliver, in exchange and substitution for and upon
cancellation of the mutilated Warrant, or in lieu of and substitution for the
Warrant lost, stolen or destroyed, a new Warrant of like tenor and representing
an equivalent right or interest, but only upon receipt of evidence satisfactory
to the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant and, in the case of a lost, stolen or destroyed Warrant, indemnity, if
requested, also satisfactory to them. Applicants for such substitute Warrants
shall also comply with such other reasonable regulations and pay such reasonable
charges as the Company or the Warrant Agent may prescribe.
Section 8. RESERVATION OF COMMON STOCK.
There has been reserved, and the Company shall at all times keep
reserved, out of the authorized and unissued shares of Common Stock, a number of
shares sufficient to provide for the exercise of the rights of purchase
represented by the Warrants; and the Transfer Agent for the shares of Common
Stock and every subsequent transfer agent for any shares of the Company's
capital stock issuable upon the exercise of any of the rights of purchase
aforesaid are hereby irrevocably authorized and directed at all times to reserve
such number of authorized and unissued shares as shall be requisite for such
purpose. The Company agrees that all shares of Common Stock issued upon exercise
of the Warrants shall be, at the time of delivery of the certificates for such
shares of Common Stock, duly authorized, validly issued and
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outstanding, fully paid and non-assessable and listed on any national securities
exchange upon which the other shares of Common Stock are then listed. So long as
any unexpired Warrants remain outstanding, the Company will file such
post-effective amendments to the Registration Statement (File No.________) filed
pursuant to the Securities Act of 1933 with respect to the Warrants (or such
other registration statements or post-effective amendments or supplements) as
may be necessary to permit it to deliver to each person exercising a Warrant, a
Prospectus meeting the requirements of such Act and otherwise complying
therewith, and will deliver such a Prospectus to each such person. The Company
will keep a copy of this Agreement on file with the Transfer Agent for the
shares of Common Stock and with every subsequent transfer agent for any shares
of the Company's capital stock issuable upon the exercise of the rights of
purchase represented by the Warrants. The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent stock
certificates required to honor outstanding Warrants. The Company will supply
such Transfer Agent with duly executed stock certificates for such purpose. All
Warrants surrendered in the exercise of the rights thereby evidenced shall be
canceled by the Warrant Agent and shall thereafter be delivered to the Company,
and such canceled Warrants shall constitute sufficient evidence of the number of
shares of Common Stock which have been issued upon the exercise of such
Warrants. Promptly after the Expiration Date, the Warrant Agent shall certify to
the Company as to the total aggregate amount of Warrants then outstanding, and
thereafter no shares of Common Stock shall be subject to reservation in respect
of such Warrants which shall have expired.
Section 9. WARRANT PRICE.
The Warrant Price at which Common Stock shall be purchasable pursuant
to the Warrants shall be $_____ per share. The Warrant Price is subject to
adjustment, as provided in Section 10 hereof.
Section 10. ADJUSTMENTS.
Subject and pursuant to the provisions of this Section 10, the Warrant
Price and number of shares of Common Stock subject to the Warrants shall be
subject to adjustment from time to time as follows:
(a) If the Company shall issue or sell either any of its shares of
Common Stock or any rights, options, warrants or obligations or securities
containing the right to subscribe for or purchase any shares of Common Stock
("Options") or exchangeable for or convertible into shares of Common Stock
("Convertible Securities"), at a price per share, as determined pursuant to
Section 10(b) herein, less than the Warrant Price of the Warrants then in effect
on the date of such sale or issuance, then the number of shares of Common Stock
thereafter purchasable upon exercise of each Warrant shall be determined by
multiplying the number of shares of Common Stock theretofore purchasable upon
exercise of the Warrant by a fraction, (x) the numerator of which shall be the
number of shares of Common Stock outstanding immediately following the issuance
of such shares of Common Stock, Options or Convertible Securities plus the
number of shares of Common Stock obtainable upon the exercise of the Options and
the conversion or exchange of the Convertible Securities and (y) the denominator
of which shall be the number of shares of Common Stock outstanding immediately
preceding the issuance of such shares of Common Stock, Options, or Convertible
Securities plus the number of shares of Common Stock which the aggregate consid
eration received by the Company upon such issuance would purchase on such date
at the Warrant Price then in effect.
(b) The following provisions, in addition to other provisions of this
Section 10, shall be applicable in determining any adjustment under Section
10(a).
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(1) If the Company shall at any time after the date hereof
issue any Options or Convertible Securities, the following provisions shall
apply in making any adjustment pursuant to this Section 10:
(i) The price per share for which Common Stock is
issuable upon the exercise of the Options or upon conversion or exchange of the
Convertible Securities shall be determined by dividing (A) the total amount, if
any, received or receivable by the Company as consideration for the issuance of
such Options or Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the exercise of
such Options or the conversion or exchange of such Convertible Securities, by
(B) the aggregate maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon the conversion or exchange of such Convertible
Securities.
(ii) In determining the price per share for which
Common Stock is issuable upon exercise of the Options or conversion or exchange
of the Convertible Securities as set forth in Section 10(b) (1) (i) and in
computing any adjustment pursuant to Section 10(a), (A) the aggregate maximum
number of shares of Common Stock issuable upon the exercise of such Options or
the conversion or exchange of such Convertible Securities shall be considered to
be outstanding at the time such Options or Convertible Securities were issued
and to have been issued for such price per share as determined pursuant to
Section 10(b)(1) (i), and (B) consideration for the issuance of such Options or
Convertible Securities and the amount of additional consideration payable to the
Company upon exercise of such Options or upon the conversation or exchange of
such Convertible Securities shall be determined in the same manner as the
consideration received upon the issuance or sale of shares of Common Stock as
provided in paragraph 10(b) (1) and 10(b) (2).
(iii) On the expiration of such Options or the
termination of any right to convert
or exchange any Convertible Securities, the number of shares of Common Stock
issuable upon exercise of the Warrants shall forthwith be readjusted to such
number of shares of Common Stock as would have been obtained had the adjustments
made upon the issuance of such Options or Convertible Securities been made upon
the basis of the delivery of only that number of shares of Common Stock actually
delivered and the consideration actually paid upon the exercise of such Options
or upon conversion or exchange of such Convertible Securities.
(iv) If the minimum purchase price per share of
Common Stock provided for in any Option or the rate at which any Convertible
Securities are convertible into or exchangeable for Common Stock shall change or
a different purchase price or rate shall become effective at any time or from
time to time (other than pursuant to any antidilution provision of such Options
or Convertible Securities), then, upon such change becoming effective the number
of shares of Common Stock subject to the Warrants shall forthwith be increased
or decreased to such number of shares as would have been obtained had the
adjustments made upon the granting or issuance of such Options or Convertible
Securities been made upon the basis of (A) the issuance of the number of shares
of Common Stock theretofore actually delivered upon the exercise of such Options
or upon the conversion or exchange of such Convertible Securities, and the total
consideration received therefor, and (B) the granting or issuance at the time of
such change of any such Options or Convertible Securities then still outstanding
for the consideration, if any, received by the Company therefor and to be
received on the basis of such changed price or rate of exchange or conversion.
(2) Except as otherwise specifically provided herein, the date
of issuance or sale of shares of Common Stock shall be deemed to be the date the
Company is legally obligated to issue such shares of Common Stock, or pursuant
to paragraph 10(b)(1), the date the Company is legally obligated to issue any
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"Option" or "Convertible Security". If at any time the Company shall take a
record date for the purpose of determining the holders of Common Stock entitled
(A) to receive a dividend or other distribution payable in Common Stock or in
Options or Convertible Securities, or (B) to subscribe for or purchase Common
Stock, Options or Convertible Securities, then such record date shall be deemed
to be the date of issue or sale of the shares of Common Stock, Options or
Convertible Securities deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the granting of
such right of subscription or purchase, as the case may be.
(3) The number of shares of Common Stock outstanding at any
given time shall not include treasury shares and the issue or sale of any such
treasury shares shall be considered an issue or sale of Common Stock for the
purposes of this Section 10.
(4) Notwithstanding any provision herein to the contrary, no
adjustment to the Warrant Price or in the number of Common Shares subject to the
Warrants shall be made pursuant to paragraph 10(a) upon:
(i) the issuance or sale of shares of Common Stock
pursuant to the exercise of the Warrants or upon the exercise of Options or
conversion or exchange of Convertible Securities hereafter issued for which an
adjustment has been made pursuant to the provisions of Section 10 hereof;
(ii) the increase in the number of shares of Common
Stock subject to any Warrant, Option or Convertible Security referred to in
subsections 10(b)(4)(i) hereof pursuant to antidilution provisions of such
Warrant, Option or Convertible Security;
(iii) the sale or issuance of shares for a
consideration consisting, wholly or partly, of other than cash; or
(iv) the issuance or sale of Common Stock for assets
or acquisitions, to key employees or advisors of the Company or pursuant to any
stock options outstanding, or any stock option plan that is in effect, on the
date hereof.
(c) If the Company shall at any time issue any shares of Common Stock
as a stock dividend to the holders of its Common Stock or subdivide its
outstanding shares of Common Stock by recapitalization, reclassification or
split-up thereof, the number of shares of Common Stock subject to the Warrants
immedi ately prior to such subdivision shall be proportionately increased, and
if the Company shall at any time combine the outstanding shares of Common Stock
by recapitalization, reclassification or combination thereof, the number of
shares of Common Stock subject to the Warrants immediately prior to such
combination shall be proportionately decreased. Any such adjustment and any
adjustment to the Warrant Price pursuant to Section 10(f) shall become effective
at the close of business on the record date for such subdivision or combination.
(d) If the Company after the date hereof shall distribute to all of the
holders of its shares of Common Stock any securities or other assets (other than
shares of Common Stock as to which an adjustment is made pursuant to Section 10
hereof or a distribution made as a dividend payable out of earnings or out of
any earned surplus legally available for dividends under the laws of the
jurisdiction of incorporation of the Company), the Company shall make such
equitable adjustment in the Warrant Price in effect immediately prior to the
record date of such distribution as may be necessary to preserve to the
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holders of the Warrants rights substantially proportionate to those enjoyed
hereunder by such holders immediately prior to the happening of such
distribution. Any such adjustment shall become effective as of the day following
the record date for such distribution.
(e) No adjustment in the number of shares of Common Stock issuable upon
the exercise of the Warrants shall be required under Section 10 unless such
adjustment would require an increase or decrease in such number of shares of at
least 2% of the then adjusted number of shares of Common Stock issuable upon the
exercise of the Warrants; provided, however, that any adjustments which by
reason of the foregoing are not required at the time to be made shall be carried
forward and taken into account and included in determining the amount of any
subsequent adjustment; and provided further, however, that in case the Company
shall at any time subdivide or combine the outstanding shares of its Common
Stock said percentage shall forthwith be proportionately increased in the case
of a combination or deceased in the case of a subdivision of shares of its
Common Stock so as to appropriately reflect the same. If the Company shall make
a record of the holders of its shares of Common Stock for the purpose of
entitling them to receive any distribution and shall thereafter and before the
distribution legally abandon its plan to pay or deliver such dividend or
distribution, then no adjustment in the number of shares of Common Stock subject
to the Warrants shall be required by reason of the taking of such record.
(f) Whenever the number of shares of Common Stock purchasable upon the
exercise of the Warrants is adjusted, as provided in Section 10, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise of
the Warrants immediately prior to such adjustment, and (y) the denominator of
which shall be the number of shares of Common Stock so purchasable immediately
thereafter.
(g) In case of any reclassification of the outstanding shares of Common
Stock, other than a change covered by Section 10(c) hereof or which solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or capital
reorganization of the outstanding shares of Common Stock), or in the case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, the holders of the Warrants shall have the right thereafter (until
the Expiration Date or until thirty (30) days after notice is given pursuant to
Section 12 if the Company is to be dissolved) to receive upon the exercise
thereof, for the same aggregate Warrant Price payable hereunder immediately
prior to such event, the kind and amount of shares of stock or other securities
or property receivable upon such reclassification, capital reorganization,
merger or consolidation, or upon the dissolution following any sale or other
transfer, by a holder of the number of shares of Common Stock of the Company
obtainable upon exercise of the Warrants immediately prior to such event; and if
any reclassification also results in a change in shares of Common Stock covered
by Section 10(c), then such adjustment shall be made pursuant to both Section
10(c) and this Section 10(g). The provisions of this Section 10(g) shall
similarly apply to successive reclassifications, or capital reorganizations,
mergers or consolidations, sales or other transfers.
If the Company after the date hereof shall take any action affecting
the shares of its Common Stock, other than action described in this Section 10,
which, in the good faith opinion of the Board of Directors of the Company, would
materially affect the rights of the holder of the Warrants, then the Warrant
Price and the numbers of shares of Common Stock obtainable upon exercise of the
Warrants shall
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be adjusted in such manner, if any, and at such time as the Board of Directors
of the Company, in good faith, may determine to be equitable in the
circumstances.
(h) The form of Warrants need not be changed because of any change
pursuant to this Section, and Warrants issued after such change may state the
same Warrant Price and the same number of shares as is stated in such Warrants
initially issued pursuant to this agreement. However, the Company may at any
time in its sole discretion (which shall be conclusive) make any change in the
form of Warrants that the Company may deem appropriate and that does not affect
the substance thereof; and any Warrant thereafter issued or countersigned,
whether in exchange or substitution for an outstanding Warrant or otherwise, may
be in the form as so changed.
Section 11. FRACTIONAL INTEREST.
The Company shall not be required to issue fractions of shares of
Common Stock on the exercise of the Warrants. If more than one Warrant shall be
surrendered for exercise at one time by the same holder, the number of full
shares which shall be issuable upon exercise thereof shall be computed on the
basis of the aggregate number of Warrants so exercised. If a fraction of a share
is issuable upon exercise of a Warrant, the Company shall purchase such fraction
based upon the then current market value of the Common Stock.
Section 12. NOTICES TO WARRANTHOLDERS.
(a) Upon any adjustment of the Warrant Price and the number of shares
issuable on exercise of a Warrant, then and in each such case the Company shall
give written notice thereof to the Warrant Agent and to ▇.▇. ▇▇▇▇▇▇▇ & Co.,
Inc., which notice shall state the Warrant Price resulting from such adjustment
and the increase or decrease, if any, in the number of shares purchasable at
such price upon the exercise of a Warrant, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is based.
The Company shall also publish such notice once in an Authorized Newspaper. For
the purposes of this Agreement, an Authorized Newspaper shall mean a newspaper
customarily published on each business day, in one or more morning editions or
one or more evening editions, or both (and whether or not it shall be published
in Saturday and Sunday editions or on holidays), printed in the English language
and of general circulation in the City of New York, State of New York. Failure
to give or publish such notice, or any defect therein, shall not affect the
legality or validity of the subject adjustments.
(b) In case at any time:
(1) the Company shall pay any dividends payable in stock upon
its Common Stock or make any distribution (other than regular cash dividends) to
the holders of its Common Stock;
(2) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or other
rights;
(3) there shall be any capital reorganization or
reclassification (other than a reclassification involving merely the subdivision
or combination of outstanding Common Stock) or merger or consolidation of the
Company with, or sale of all or substantially all of its assets to, another
corporation; or
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(4) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company;
then, in any one or more of such cases, the Company shall give written notice
and publish the same in the manner set forth in this Section 12 hereinabove.
Such notice shall also specify the date as of which the holders of Common Stock
of record shall participate in such dividend, distribution, or subscription
rights, or shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or winding up, as the
case may be. Such notice shall be given and published at least twenty (20) days
prior to the action in question and not less than twenty (20) days prior to the
record date or the date on which the Company's transfer books are closed in
respect thereof. Failure to give or publish such notice, or any defect therein,
shall not affect the legality or validity of any of the matters set forth in
this section 12 inclusive.
(c) The Company shall cause copies of all financial statements and
reports, proxy statements and other documents as it shall send to its
stockholders to be sent by first-class mail of the United States Postal Service,
postage prepaid, on the date of mailing to such stockholders, to each registered
holder of Warrants at his address appearing on the Warrant register as of the
record date for the determination of the stockholders entitled to such
documents.
Section 13. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS.
(a) The Warrant Agent shall promptly forward to the Company all monies
received by the Warrant Agent for the purchase of shares of Common Stock through
the exercise of Warrants.
(b) The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours.
Section 14. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
WARRANT AGENT.
Any corporation or company which may succeed to the business of the
Warrant Agent by any merger or consolidation or otherwise to which the Warrant
Agent shall be a party, or any corporation or company succeeding to the
corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Warrant Agent under
the provisions of Section 17 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrants shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrants so countersigned; and in case
at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent shall countersign such Warrants in its own name;
and in all such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrants so countersigned; and in case at that time any of the
Warrants shall have been countersigned, the Warrant Agent may countersign such
Warrants either
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in its prior name or in its changed name; and in all such cases such Warrants
shall have the full force provided in the Warrants and in this Agreement.
Section 15. REDEMPTION.
(a) Subject to notice as hereinafter set forth, the Warrants may be
redeemed at the option of the Company beginning two months after the Separation
Date at a redemption price of $____ per Warrant (the "Redemption Price"),
provided that the closing sale price, or if none, the closing bid price, of the
Common Stock issuable upon exercise the Warrants as reported by any stock
exchange on which the Common Stock is listed or by NASDAQ, exceeds $____ per
share on at least 20 days of the 30 consecutive trading days ending within 15
days of the date of mailing of notice of redemption.
(b) Not less than 30 days nor more than 60 days prior to the date fixed
for any redemption of Warrants, the Company shall mail a notice specifying the
time and place thereof and the Redemption Price to the registered holders of the
Warrants called for redemption at their respective addresses as shown on the
books of the Warrant Agent. No failure to mail such notice nor any defect
therein or in the mailing thereof shall affect the validity of the proceedings
for such redemption except as to a holder (i) to whom the Company has failed to
mail such notice or (ii) whose notice was defective. An affidavit of the Warrant
Agent or of the Secretary or an Assistant Secretary of the Company that notice
of redemption has been mailed shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
(c) From and after the date specified for redemption, the Company
shall, at the place specified in the notice of redemption, upon presentation and
surrender to the Company by the holder of Warrants to be redeemed, deliver or
cause to be delivered to or upon the written order of such holder a sum in cash
equal to the Redemption Price of such Warrants. From and after the date fixed
for redemption and upon the deposit or setting aside by the Company of a sum
sufficient to redeem all the Warrants called for redemption, such Warrants shall
expire and become void and all rights hereunder and under the Warrant
certificates. except the right to receive payment of the Redemption Price, shall
cease.
Section 16. DUTIES OF WARRANT AGENT.
The Warrant Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements of fact and recitals contained herein and in the
Warrants shall be taken as statements of the Company; and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrants
except as herein expressly provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or to any
10
holder of any Warrant in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of such
counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant for any action taken in reliance on any
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the Warrant
Agent's negligence, willful misconduct or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expenses unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery or judgment shall be for the ratable benefit
of the registered holders of the Warrants, as their respective rights or
interests may appear.
(g) The Warrant Agent and any stockholder, director, officer, partner
or employee of the Warrant Agent may buy, sell or deal in the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not the Warrant Agent under
this Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent and not in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own negligence, willful misconduct or bad faith.
(i) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Warrant Agent shall not be answerable
or accountable for any act, default, neglect or misconduct of any such attorneys
or agents or for any loss to the Company resulting from such neglect or
misconduct, provided reasonable care had been exercised in the selection and
continued employment thereof.
(j) Any request, direction, election, order or demand of the Company
shall be sufficiently evidenced by an instrument signed in the name of the
Company by its President or Vice President or its
11
Secretary or an Assistant Secretary or its Treasurer or an Assistant Treasurer
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Warrant
Agent by a copy thereof certified by the Secretary or an Assistant Secretary of
the Company.
Section 17. CHANGE OF WARRANT AGENT.
The Warrant Agent may resign and be discharged from its duties under
this Agreement by giving to the Company notice in writing, and to the holders of
the Warrants notice by mailing such notice to the holders at their addresses
appearing on the Warrant register, of such resignation, specifying a date when
such resignation shall take effect. The Warrant Agent may be removed by like
notice to the Warrant Agent from the Company and by like mailing of notice to
the holders of Warrants. If the Warrant Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall appoint a
successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the registered holder of a Warrant (who shall,
with such notice, submit his Warrant for inspection by the Company), then the
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Any
successor warrant agent, whether appointed by the Company or by such a court,
shall be a bank or trust company, in good standing, incorporated under the laws
of any state in the United States of America. After appointment, the successor
warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor warrant agent all canceled Warrants, records and property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to file or mail any
notice provided for in this Section, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor warrant agent, as the case may be.
Section 18. IDENTITY OF TRANSFER AGENT.
Forthwith upon the appointment of any Transfer Agent for the shares of
Common Stock or of any subsequent transfer agent for shares of Common Stock or
other shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by the Warrants, the Company shall file with the
Warrant Agent a statement setting forth the name and address of such Transfer
Agent.
Section 19. NOTICES.
Any notice pursuant to this Agreement to be given or made by the
Warrant Agent or by the registered holder of any Warrant to or on the Company
shall be sufficiently given or made if sent by first-class mail of the United
State Postal Service, postage prepaid, addressed (until another address is filed
in writing by the Company with the Warrant Agent) as follows:
EuroWeb International Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Any notice pursuant to this Agreement to be given or made by the
Company or by the registered holder of any Warrant to or on the Warrant Agent
shall be sufficiently given or made if sent by first-class mail of the United
States Postal Service, postage prepaid, addressed (until another address is
filed in writing by the Warrant Agent with the Company) as follows:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Any notice pursuant to this Agreement to be given or made by the
Company or by the Warrant Agent to or on ▇.▇. ▇▇▇▇▇▇▇ & Co., Inc. shall be
sufficiently given or made if sent by first-class mail of the United States
Postal Service, postage prepaid, addressed (until another address is filed in
writing by ▇.▇. ▇▇▇▇▇▇▇ & Co., Inc. with the Company and the Warrant Agent) as
follows:
▇.▇. ▇▇▇▇▇▇▇ & Co., Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Section 20. SUPPLEMENTS AND AMENDMENTS.
The Company and the Warrant Agent may from time to time supplement or
amend this Agreement in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provision herein, or to make any other provision in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which shall not be inconsistent with the provisions
of the Warrants and which shall not adversely affect the interest of the holders
of Warrants.
Section 21. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 22. GOVERNING LAW.
This Agreement and each Warrant 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 applicable
to agreements and instruments made and to be performed entirely in such state
without giving effect to the conflicts of laws principles thereof.
Section 23. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent and the registered holders
of the Warrants any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the registered holders of the Warrants.
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Section 24. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
EUROWEB INTERNATIONAL CORP.
By________________________________
AMERICAN STOCK TRANSFER & TRUST COMPANY
By________________________________
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