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Exhibit 4.2
Right to Purchase 36,086* Shares of Convertible
Non-Voting Common Stock of Cryenco Sciences, Inc.
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. FURTHERMORE, THIS WARRANT MAY BE SOLD OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN SECTION 21 OF THE AGREEMENT
REFERRED TO HEREINAFTER, A COMPLETE AND CORRECT COPY OF WHICH IS AVAILABLE FOR
INSPECTION AT THE PRINCIPAL OFFICE OF CRYENCO SCIENCES, INC. AND WILL BE
FURNISHED WITHOUT CHARGE TO THE HOLDER OF THIS WARRANT UPON WRITTEN REQUEST.
Cryenco Sciences, Inc.
Common Stock Purchase Warrant
Cryenco Sciences, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, Chemical Bank, a New York banking
corporation, as agent and as a lender, ("Chemical"), or its transferees,
successors and assigns, is entitled, subject to terms set forth below, to
purchase from the Company at any time or from time to time after the date
hereof and prior to the expiration hereof pursuant to Section 2.4 hereof,
36,086* fully paid and non-assessable shares of Convertible Non-Voting Common
Stock (as defined in Section 12 hereof), at an initial purchase price per
share of $6.18834* (such price per share as adjusted from time to time as
provided herein is referred to herein as the "Exercise Price"). The number and
character of such shares of Common Stock and the Exercise Price are subject to
adjustment as provided herein.
This Warrant is issued pursuant to that certain letter agreement dated
as of August 31, 1993, among the Company, Cryenco, Inc. and Chemical, amending
the Credit Agreement dated as of August 30, 1991, as amended (the "Credit
Agreement") among Cryenco, Inc., the lenders named therein (the "Lenders") and
Chemical, as agent for the Lenders, copies of which are on file at the
principal office of the Company. The holder of this Warrant shall be entitled
to all of the benefits and shall be subject to all of the obligations of the
Warrant Agreement dated as of August 30, 1991, as amended (the "Agreement"),
among the Company (as the surviving corporation in the merger of Cryenco
Holdings, Inc. with and into Gulf and Mississippi Corporation), Cryenco, Inc.
(as the surviving corporation in the merger of Cryogenic
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* As adjusted to reflect the antidilution adjustments triggered by the Company's
Private Placement and related transactions with International Capital
Partners, Inc. which occurred in December 1994, January 1995 and June 1995.
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Energy Company with and into CEC Acquisition Corp.) and Chemical, relating to
the Warrants (as such term is defined in the Agreement) as provided therein as
amended to date.
I. DEFINITIONS.
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Terms defined in the Agreement and not otherwise defined herein shall
have the meanings assigned thereto in the Agreement. Certain terms used in this
Warrant are specifically defined in Section 12 hereof.
2. EXERCISE OF WARRANT.
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2.1 IN GENERAL. This Warrant may be exercised in whole or in part by the
holder hereof at any time or from time to time prior to its expiration by
surrender of this Warrant, with the form of subscription at the end hereof duly
executed by such holder, to the Company at its principal office, accompanied by
payment, by certified or official bank check payable to the order of the Company
or by wire transfer to its account in the amount obtained by multiplying the
number of shares of Common Stock for which this Warrant is then being exercised
by the Exercise Price then in effect; PROVIDED, HOWEVER, that the holder hereof
shall have the right, at its election, in lieu of delivering the Exercise Price
in cash, to instruct the Company in the form of subscription to retain, in
payment of the Exercise Price, a number of shares of Common Stock (the "Payment
Shares") equal to the quotient of (i) the aggregate Exercise Price of the shares
as to which this Warrant is then being exercised divided by (ii) the "Average
Closing Price" as of the date of exercise and to deduct the number of Payment
Shares from the shares to be delivered to the holder hereof. "Average Closing
Price" means, as of any date, (x) if shares of Voting Common Stock are listed on
a national securities exchange, the average of the closing sales prices therefor
on the largest securities exchange on which such shares are traded on the last
ten (10) trading days before such date, (y) if such shares are listed on the
NASDAQ National Market System but not on any national securities exchange, the
average of the closing sales prices therefor on the NASDAQ National Market
System on the last ten (10) trading days before such date or (z) if such shares
are not listed on either a national securities exchange or the NASDAQ National
Market System, the average of the sales prices therefor on the last twenty (20)
trading days before such date. In the event the Warrant is not exercised in
full, the Company, at its expense, will forthwith issue and deliver to or upon
the order of the holder hereof a new Warrant or Warrants of like tenor, in the
name of the holder hereof or as such holder (upon payment by such holder of any
applicable transfer taxes) may request, calling in the aggregate on the face or
faces thereof for the number of shares of Common Stock equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the number of such shares (without giving effect to
any adjustment therein) for which this Warrant shall have been exercised.
2.2 Intentionally Omitted.
2.3 CONFLICT WITH OTHER LAWS. Any other provisions hereof to the
contrary notwithstanding, no Bank Affiliate shall be entitled to exercise the
right under this Warrant to
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purchase any share or shares of Common Stock if, under any law or under any
regulation, rule or other requirement of any governmental authority at any
time applicable to such Bank Affiliate, (a) as a result of such purchase, such
Bank Affiliate would own, control or have power to vote a greater quantity of
securities of any kind than the Bank Affiliate shall be permitted to own,
control or have power to vote or (b) such purchase would not be permitted. For
purposes of this Section 2.3, a written certification of the Bank Affiliate
exercising the Warrant, delivered upon surrender of the Warrant pursuant to
the Agreement, to the effect that the Bank Affiliate is legally entitled to
exercise its right under this Warrant to purchase securities and that such
purchase will not violate the prohibitions set forth in the preceding
sentence, shall be conclusive and binding upon the Company and shall obligate
the Company to deliver certificates representing the shares of Common Stock so
purchased in accordance with the other provisions hereof and shall relieve the
Company of any liability under this Section 2.3.
2.4 TERMINATION OF THE WARRANT. This Warrant shall terminate upon the
earlier to occur of (i) August 29, 2003 and (ii) the exercise in full.
3. REGISTRATION RIGHTS.
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The holder of this Warrant has the right to cause the Company to
register shares of Warrant Stock, and any shares issued upon exercise hereof,
under the Securities Act and any blue sky or securities laws of any
jurisdictions within the United States at the time and in the manner specified
in the Registration Rights Agreement.
4. DELIVERY OF STOCK CERTIFICATES ON EXERCISE.
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As soon as practicable after the exercise of this Warrant in full or
in part, any in any event within twenty (20) days thereafter, the Company at
its expense (including the payment by or of any applicable issue taxes) will
cause to be issued in the name of and delivered to the holder hereof, or as
such holder (upon payment by such holder of any applicable transfer taxes) may
direct, a certificate or certificates for the number of fully paid and
non-assessable shares of Common Stock (or Other Securities) which such holder
shall be entitled to receive on such exercise, together with any other stock
or other securities and property (other than cash) which such holder is
entitled to receive upon exercise.
5. ADJUSTMENT FOR DIVIDEND, DISTRIBUTION AND RECLASSIFICATIONS.
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In case at any time or from time to time the holders of Common Stock
shall have received or (on or after the record date fixed for the
determination of shareholders eligible to receive) shall have become entitled
to receive, without payment therefor:
(a) other or additional stock or other certificates or property (other
than cash) by way of dividend; or
(b) other or additional stock or other securities or property (other
than cash) by
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way of spin-off, split-up, reclassification, recapitalization, combination of
shares or similar corporate restructuring;
OTHER THAN additional shares of Common Stock issued in a stock split or other
reclassification, recapitalization or similar corporate restructuring of the
Company's Common Stock (adjustment in respect of which are provided for in
Section 7.1 hereof), then and in each such case the holder of this Warrant, on
the exercise hereof as provided in Section 2 hereof, shall be entitled to
receive the amount of stock and other securities and property (other than
cash) which such holder would have received prior to, or would have held on
the date of, such exercise if on the date hereof he had been the holder of
record of the number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and all such other
or additional stock and other securities and property (other than cash)
receivable by such holder as aforesaid during such period, giving effect to
all further adjustments called for during such period by Sections 6 and 7
hereof. The Company hereby agrees that it will at all times reserve and keep
available for such holder, solely for delivery upon the exercise of this
Warrant, any distribution to which such holder is entitled under this Section
5.
6. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
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6.1 CERTAIN ADJUSTMENTS. In case at any time or from time to time, the
Company shall (i) effect a capital reorganization, reclassification or
recapitalization, (ii) consolidate with or merge into any other Person or
(iii) transfer all or substantially all of its properties or assets to any
other Person under any plan or arrangement contemplating the dissolution of
the Company, then in each such case, the holder of this Warrant, on the
exercise hereof as provided in Section 2 hereof at any time after the
consummation of such reorganization, reclassification, recapitalization,
consolidation, merger or transfer, or the effective date of such dissolution,
as the case may be, shall receive, in lieu of the Common Stock (or Other
Securities) issuable on such exercise prior to such consummation or effective
date, the stock and other securities and property (including cash) to which
such holder would have been entitled upon such consummation or in connection
with such dissolution, as the case may be, if such holder had so exercised
this Warrant immediately prior thereto, all subject to further adjustment
thereafter as provided in Section 5 and 7 hereof.
6.2 CONTINUATION OF TERMS. Upon any reorganization, reclassification,
recapitalization, consolidation, merger or transfer referred to in this
Section 6, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and Other Securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, reclassification, recapitalization, consolidation or
merger, as the case may be, and shall be binding upon the issuer of any such
stock or Other Securities, including, in the case of any such transfer, the
Person acquiring all or substantially all of the properties or assets of the
Company, whether or not such Person shall have expressly assumed the terms of
this Warrant as provided in Section 8 hereof.
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7. ADJUSTMENTS FOR ISSUANCE OF COMMON STOCK
AND AMOUNT OF OUTSTANDING COMMON STOCK.
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7.1 IN GENERAL. If at any time there shall occur any stock split,
stock dividend, reverse stock split or other subdivision, reclassification,
recapitalization, recombination of shares or similar corporate restructuring
of the Company's Common Stock, any rights offering by the Company to its
existing stockholders or any issuance by the Company of Additional Shares of
Common Stock upon the exercise of Convertible Securities (each as defined in
Section 7.2 hereof) granted before the consummation of the G&M Merger, other
than any such shares issued upon the exercise of options granted to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ before August 30, 1991 (each, a "Stock Event"), then the number of
shares of Common Stock to be received by the holder of this Warrant shall be
appropriately adjusted such that the proportion of the number of shares
issuable hereunder to the total number of outstanding shares of the Company
(calculated on a Fully-Diluted Basis) prior to such Stock Event is equal to
the proportion of the number of outstanding shares of the Company after such
Stock Event (calculated on a Fully-Diluted Basis). No adjustment to the
Exercise Price shall be made in connection with any adjustment of the number
of shares of Common Stock receivable upon exercise of this Warrant, except
that the Exercise Price shall be proportionately increased or decreased upon
the occurrence of any event provided for in this Section 7.1 so that the
aggregate Exercise Price for all shares of Common Stock covered hereby shall
remain unchanged.
7.2 ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK. If at any time the
Company shall issue or sell (i) any Additional Shares of Common Stock in
exchange for consideration in an amount per Additional Share of Common Stock
less than the Fair Market Value Per Share of Common Stock at the time the
Additional Shares of Common Stock are issued or sold or (ii) any Convertible
Securities having an exercise price or Conversion Price in an amount per share
of Common Stock less than the Fair Market Value Per Share of Common Stock at
the time of such issuance or sale, then the number of shares of Common Stock
for which this Warrant is exercisable shall be adjusted to equal the product
obtained by multiplying the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such issuance or sale by a
fraction (a) the numerator of which shall be the number of shares of Common
Stock outstanding immediately after such issuance or sale (assuming the
conversion or exercise of all such Convertible Securities) and (b) the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issuance or sale plus either (x) the number of
shares which the aggregate offering price of the total number of such
Additional Shares of Common Stock would purchase at the then Fair Market Value
Per Share or (y) the number of shares of Common Stock which could be purchased
if the exercise price of such Convertible Security or the Conversion Price of
such Convertible Security (as applicable) were set at the then Fair Market
Value Per Share. Thereupon, the Exercise Price shall be correspondingly
reduced so that the aggregate Exercise Price for all shares of Common Stock
covered hereby shall remain unchanged. No adjustments shall be made upon the
exercise or conversion of Convertible Securities. For purposes of this
paragraph, (i) the term "Additional Shares of Common Stock" means any shares
of Common Stock issued by the Company after the Closing Date other than
Warrant Stock or stock issuable upon the exercise of options granted
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to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, before August 30, 1991, (ii) the term "Convertible
Securities" means all options, warrants or securities exercisable for, all
rights to subscribe for, and all securities which are convertible into to
exchangeable for, Common Stock and (iii) the term "Conversion Price" means, with
respect to any Convertible Security, the price paid for such Convertible
Security divided by the number of shares of Common Stock into which such
Convertible Security is convertible on the date of issuance of such Convertible
Security.
8. NO DILUTION OR IMPAIRMENT.
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The Company will not, by amendment of its Certificate of Incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the holder of this Warrant hereunder. Without limiting
the generality of the foregoing, the Company (i) will not increase the par value
of any shares of stock receivable on the exercise of the Warrant above the
amount payable therefor on such exercise, (ii) will take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and non-assessable shares of stock on the exercise of the
Warrant from time to time outstanding, (iii) will not issue any capital stock of
any class which is preferred as to dividends or as to the distribution of assets
upon voluntary or involuntary dissolution, liquidation or winding up, unless the
rights of the holders thereof shall be limited to a fixed sum or percentage of
par value in respect of participation in dividends and in any such distribution
of assets and (iv) will not transfer all or substantially all of its properties
and assets to any other entity (corporate or otherwise), or consolidate with or
merge into any other entity or permit any such entity to consolidate with or
merge into the Company (if the Company is not the surviving entity), unless such
other entity shall expressly assume in writing and will be bound by all the
terms of this Warrant and the Agreement. If any event occurs as to which the
provisions of Sections 5, 6 or 7 hereof are strictly applicable and the
application thereof would not, in the good faith judgment of the Board of
Directors of the Company, fairly protect the purchase rights of the Warrants in
accordance with the essential intent and principles of such provisions, then
such Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of such Board, to protect such purchase
rights as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Exercise Price or decreasing the number of shares of Common
Stock subject to purchase upon exercise of this Warrant. Nothing contained in
this Warrant shall prohibit the Company from issuing or selling securities in
the future.
9. ACCOUNTANTS' CERTIFICATE AS TO ADJUSTMENTS.
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In each case of any event that may require any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable on the
exercise of this Warrant, the Company at its expense will promptly prepare a
certificate setting forth such adjustment or readjustment and showing, in
detail, the facts upon which any such adjustment or readjustment
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is based, including a statement of (i) the number of shares of the Company's
Common Stock then outstanding on a Fully-Diluted Basis, and (ii) the number of
shares of Common Stock (or Other Securities) to be received upon exercise of
this Warrant (A) immediately prior to such adjustment or readjustment and (B) as
adjusted and readjusted (if required by Section 7) on account thereof. The
Company will forthwith mail a copy of each such certificate to each holder of a
Warrant and will, on the written request at any time of any holder of a Warrant,
furnish to such holder a like certificate setting forth the calculations used to
determine such adjustment or readjustment. At its option, the holder of a
Warrant may confirm the adjustment noted on the certificate by causing such
adjustment to be computed by an independent certified public accountant at the
expense of the Company. The cost of any such confirmation shall be borne (x) by
the Company, if the computation of such independent certified public accountant
indicates that the adjustment noted on the Company's certificate was in any
respect incorrect to the detriment of the holders, and (y) otherwise, by the
holder requesting such confirmation.
10. NOTICES OF RECORD DATE.
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In the event of:
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution (including, without
limitation, any distribution that may arise as a result of a spin-off,
split-up, reclassification, recapitalization, combination of shares or similar
corporate restructuring), or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or property,
or to receive any other right;
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or any
consolidation or merger of the Company with or into any other Person;
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(d) any proposed issuance or grant by the Company of any shares
of stock of any class or any other securities, or any right or option to
subscribe for, purchase or otherwise acquire any shares of stock of any class
or any other securities (other than the issuance of Common Stock on the
exercise of this Warrant),
then, and in each such event, the Company will mail or cause to be mailed to
the holder of this Warrant a notice specifying (i) the date on which any such
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,
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place and the time, if any, to be fixed, as of which the
holders of record of Common Stock (or
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Other Securities) shall be entitled to exchange their shares of Common Stock
(or Other Securities) for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least twenty (20) days
prior to the date specified in such notice on which any such action is to be
taken.
11. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT.
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The Company will at all times reserve and keep available, solely for
issuance and delivery on the exercise of the Warrant, a number of shares of
Convertible Non-Voting Common Stock equal to the total number of shares of
Convertible Non-Voting Common Stock from time to time issuable upon exercise of
this Warrant and the number of Other Securities which at any time may be
issuable hereunder, and, from time to time, will take all steps necessary to
amend its Certificate of Incorporation to provide sufficient reserves of shares
of Common Stock issuable upon exercise of the Warrant and upon the conversion
of shares of one class of Common Stock into shares of the other class of Common
Stock, as provided in its Certificate of Incorporation.
12. DEFINED TERMS.
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As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
12.1 The term BANK AFFILIATE means any Person that is a bank holding
company or a subsidiary of a bank holding company as defined in the Bank
Holding Company Act of 1956, as amended, or other applicable banking laws of
the United States and the rules and regulations promulgated thereunder.
12.2 The term COMPANY means Cryenco Sciences, Inc., the surviving
corporation of the merger of CHI into G&M, and any corporation which shall
succeed to or assume the obligations of the Company hereunder.
12.3 The term COMMON STOCK means (i) the Company's Voting Common
Stock, $.01 par value (the "Voting Common Stock"), (ii) the Company's
Convertible Non-Voting Common Stock, $.01 par value (the "Convertible
Non-Voting Common Stock"), (iii) any other capital stock of any class or
classes (however designated) of the Company the holders of which shall have the
right, without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the payment of
dividends and distributions on any shares entitled to preference and (iv) any
other securities into which or for which any of the securities described in
clauses (i), (ii) or (iii) above have been converted, exchanged or combined
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
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12.4 The term OTHER SECURITIES means any sLock (other than Common
Stock) and other securities of the Company or any other entity (corporate or
otherwise) which (i) the holder of this Warrant at any time shall be entitled to
receive, or shall have received, on the exercise of this Warrant, in lieu of or
in addition to Common Stock, or (ii) at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities, in each case pursuant to Section 5 or 6 hereof.
13. REMEDIES.
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The Company stipulates that the remedies at law of the holder of this
Warrant in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
14. NOTICES.
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All notices and other communications provided for or permitted
hereunder shall be made in writing (including facsimile transmission or other
similar writing) as follows: if to Chemical, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (telecopier no.: (212)
688-3859), with a copy to ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ & Handler, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. (telecopier
no.: (▇▇▇) ▇▇▇-▇▇▇▇); if to a subsequent holder of this Warrant, to it at such
address as may have been furnished to the Company in writing by such holder or,
until any such holder furnishes to the Company an address, then to, and at the
address of, the last holder of this Warrant who has so furnished an address to
the Company; and if to the Company, to it c/o Charterhouse Group International,
Inc. at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
President (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇) with a copy to Shack & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇); and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 14.
All such notices shall be deemed to have been duly given: (i) if
delivered personally, upon actual delivery, (ii) if delivered by mail, one
Business Day after deposited in the United States mail, overnight express mail,
return receipt requested, postage prepaid, or one Business Day after delivery
to a nationally recognized overnight express mail or courier service, or (iii)
if sent by facsimile transmission (or other similar writing), upon receipt of
telephonic or written confirmation thereof.
15. PUBLIC FILINGS. NASDAO QUALIFICATIONS; AND MISCELLANEOUS.
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15.1 PUBLIC FILINGS AND NASDAO QUALIFICATION. For so long as (i) this
Warrant is outstanding or (ii) the Shares of Warrant Stock issuable upon the
exercise of this Warrant are outstanding and have not been registered or
transferred in reliance upon Rule 144 or Rule 144A,
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in each case as amended from time to time under the Securities Act, or any
successor provisions relating to the resale of restricted securities without
registration under Section 5 of the Securities Act, the Company agrees to use
its best efforts (A) to file timely (whether or not it shall then be required
to do so) such information, documents and reports as the Commission may require
or prescribe under Section 13 or 15(d) (whichever is applicable) of the
Exchange Act, (B) promptly upon request, to furnish to any holder of this
Warrant or the Warrant Stock a copy of the most recent annual, current or
quarterly report of the Company and such other information which is provided to
all stockholders of the Company generally, (C) to file such other information,
documents and reports as shall be required of it hereafter by the Commission as
a condition to the availability of Rule 144 or 144A, in each case as may be
amended from time to time, under the Securities Act, or any successor (but not
additional) provisions relating to the resale of restricted securities without
registration under Section 5 of the Securities Act, and (D) to maintain the
quotation of its Common Stock on the National Association of Securities
Dealers, Inc. Automated Quotation System (bid and asked) including, without
limitation, using its best efforts to keep effective the registration to its
Common Stock under Section 12 of the Exchange Act and to make timely payment of
all applicable fees.
15.2 MISCELLANEOUS. In case any provision of this Warrant shall be
invalid, illegal or unenforceable, or partially invalid, illegal or
unenforceable, the provision shall be enforced to the extent, if any, that it
may legally be enforced and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by a statement in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought. This Warrant shall be
governed by and construed in accordance with the domestic substantive laws (and
not the conflict of law rules) of the State of New York. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer and attested by its Secretary.
Dated as of November 24, 1993
CRYENCO SCIENCES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
11
12
FORM OF SUBSCRIPTION
(To be signed only on exercise
of Common Stock Purchase Warrant)
To: Cryenco Sciences, Inc.
The undersigned, the Holder of the within Common Stock Purchase
Warrant, hereby irrevocably elects to exercise this Common Stock Purchase
Warrant for, and to purchase thereunder, _____ shares of Convertible Non-Voting
Common Stock of Cryenco Sciences, Inc. and herewith [makes payment of $_____
therefor] [instructs you herein, in payment of the Exercise Price, to deduct
____ shares of Convertible Non-Voting Common Stock and to deliver the net
number of shares, being ___ shares of Convertible Non-Voting Common Stock], and
requests that the certificates for such shares be issued in the name of, and
delivered to _________________ whose address is
__________________________________________.
Dated:
__________________________________________
(Signature must conform in all respects to
name of ▇▇▇▇▇▇ as specified on the face of
the Warrant)
__________________________________________
(Address)
13
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto __ the right represented by the within Warrant to purchase ___
shares of ______ Common Stock of Cryenco Sciences, Inc., a Delaware
corporation, to which the within Warrant relates, and appoints _________,
attorney to transfer such right on the books of Cryenco Sciences, Inc., with
full power of substitution in the premises.
[Name of Assignor]
Dated: ____________ By: ____________________________________
Title: ______________________
Address: ______________________
Signed in the presence of:
________________________