<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 8-A
GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant to Section 12(b) or (g) of
The Securities Exchange Act of 1934
BRISTOL TECHNOLOGY SYSTEMS, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 58-2235556
- -------------------------------------- ---------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
18201 Von Karman, Suite 305
Irvine, California 92612
- --------------------------------------- ---------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (714) 475-0800
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
Class A Redeemable Common Stock Purchase Warrants
- --------------------------------------------------------------------------------
(Title of Class)
<PAGE> 2
Item 1. Description of Registrant's Securities to be Registered.
This registration statement relates to the registration with
the Securities and Exchange Commission of shares of Common Stock, par value
$.001 (the "Common Stock) and the Class A Redeemable Common Stock Purchase
Warrants (the "Warrants") of Bristol Technology Systems, Inc., a Delaware
corporation (the "Registrant"). The description of the Common Stock and the
Warrants to be registered hereunder is set forth under the caption "Description
of Securities" of the Registrant's prospectus dated September 12, 1996 (the
"Prospectus"), included in its Registration Statement on Form SB-2 (No.
333-5570-LA) filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, as such Registration Statement was amended
by Amendment No. 1 dated October 22, 1996, and Amendment No. 2 dated October
24, 1996, incorporated herein by reference.
Item 2. Exhibits
1 Form of Common Stock Certificate.
2 Form of Class A Redeemable Common Stock Purchase Warrant.
3 Amended and Restated Certificate of Incorporation.
4 Bylaws.
5 Warrant Agreement.
2
<PAGE> 3
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Date: October 25, 1996 BRISTOL TECHNOLOGY SYSTEMS, INC.
By: /s/ RICHARD H. WALKER
--------------------------------
Richard H. Walker
President and Chief
Executive Officer
3
<PAGE> 4
EXHIBIT INDEX
Exhibit Page
1. Form of Common Stock Certificate.
2. Form of Class A Redeemable Common Stock Purchase Warrant.
3. Amended and Restated Certificate of Incorporation.
4. Bylaws.
5. Warrant Agreement.
4
<PAGE> 1
Exhibit 1
NUMBER SHARES
BT BRISTOL TECHNOLOGY SYSTEMS, INC.
INCORPORATED UNDER THE LAWS SEE REVERSE FOR CERTAIN DEFINITIONS
OF THE STATE OF DELAWARE CUSIP 110202 10 8
This Certifies that
is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK, $0.001 PAR VALUE, OF
BRISTOL TECHNOLOGY SYSTEMS, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated:
CHAIRMAN AND SECRETARY PRESIDENT AND CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
BY AUTHORIZED SIGNATURE
<PAGE> 2
The Corporation shall furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Corporation or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Such requests shall be made to
the Corporation's Secretary at the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- .............Custodian.............
(Cust) (Minor)
under Uniform Gifts to Minors
Act................................
(State)
UNIF TRF MIN ACT -- ......Custodian (until age .......)
(Cust)
............under Uniform Transfers
(Minor)
to Minors Act......................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,INCLUDING ZIP CODE, OF ASSIGNEE)
_______________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________ Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated _________________________________
X _____________________________________
X _____________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By ____________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM) PURSUANT TO S.E.C. RULE 17Ad-15
<PAGE> 1
Exhibit 2
[Form of Class A Redeemable Common Stock Purchase Warrant Certificate]
[Face]
No. _____ Warrants
Warrant Certificate
BRISTOL TECHNOLOGY SYSTEMS, INC.
This Warrant Certificate certifies that ______________, or
registered assigns, is the registered holder of Warrants expiring __________,
2002 (the "Warrants") to purchase Common Stock, $.001 par value (the "Common
Stock"), of Bristol Technology Systems, Inc., a Delaware corporation (the
"Company"). Each Warrant entitles the holder upon exercise to receive from the
Company on or before 5:00 p.m. New York City Time on __________, 2002, one fully
paid and nonassessable share of Common Stock (a "Warrant Share") at the initial
exercise price (the "Warrant Price") of $6.00 payable in lawful money of the
United States of America upon surrender to the Company at the office of the
Warrant Agent of this Warrant Certificate and payment to the Company of the
Warrant Price at the office of the Warrant Agent, but only subject to the
conditions set forth herein and in the Warrant Agreement referred to on the
reverse hereof.
The Warrant Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
The Warrant may be exercised commencing at the opening of
business, New York City Time on __________, 1997 and terminating at 5:00 p.m.,
New York City Time on __________, 2002, and to the extent not exercised by such
time such Warrants shall become void.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Company, as such term is used in the Warrant Agreement.
IN WITNESS WHEREOF, Bristol Technology Systems, Inc. has
caused this Warrant Certificate to be signed by its President and by its
Secretary, each by a facsimile of his signature, and has caused a facsimile of
its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
-----------------
BRISTOL TECHNOLOGY SYSTEMS, INC.
By
-----------------------------
President
By
-----------------------------
Secretary
<PAGE> 2
[Form of Class A Redeemable Common Stock Purchase Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring __________, 2002, entitling the
holder on exercise to receive shares of Common Stock, $.001 par value, of the
Company (the "Common Stock"), and are issued or to be issued pursuant to a
Warrant Agreement dated as of ___________, 1996 (the "Warrant Agreement"), duly
executed and delivered by the Company and American Stock Transfer & Trust
Company (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the Warrants. A
copy of the Warrant Agreement may be obtained by the holder hereof upon written
request to the Warrant Agent.
Warrants may be exercised commencing at the opening of
business New York City Time on __________, 1997 and terminating at 5:00 p.m.,
New York City Time, on __________, 2002. The holder of Warrants evidenced by
this Warrant Certificate may exercise them by surrendering this Warrant
Certificate, with the form of election to purchase set forth hereon properly
completed and executed, together with payment of the Warrant Price in cash or by
certified check or bank draft payable to the order of the Company at the office
of the Warrant Agent. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Common Stock
issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of
certain events the Warrant Price set forth on the face hereof may, subject to
certain conditions, be adjusted. If the Warrant Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the
Company by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate
or Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided in the Warrant
Agreement, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
<PAGE> 3
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _________ shares of Common
Stock and herewith tenders payment for such shares to the order of Bristol
Technology Systems, Inc. in the amount of $_____ in accordance with the terms
hereof.
The undersigned requests that a certificate for such shares be
registered in the name of _______________________________, whose address is
____________________________________________________________ and that such
shares be delivered to ____________________________ whose address is _________
______________________________________________________________________________
______________________________________________________________________________
If said number of shares is less than all of the shares of Common Stock
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered in the name of
________________________, whose address is ___________________________________,
and that such Warrant Certificate be delivered to ____________________________,
whose address is ________________________________.
Signature:
---------------------------------
Date:
--------------------------
Signature Guaranteed:
---------------------
<PAGE> 1
Exhibit 3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BRISTOL TECHNOLOGY SYSTEMS, INC.
Bristol Technology Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware (hereinafter referred to as the
"Corporation") hereby certifies as follows:
1. The undersigned is the duly elected, qualified and acting President
of the Corporation.
2. Pursuant to a meeting of the Board of Directors of the Corporation,
resolutions were adopted setting forth a proposed amendment of the Certificate
of Incorporation of the Corporation. The resolution setting forth the proposed
amendment is as follows:
"RESOLVED, that the Certificate of Incorporation be amended by changing
Article IV thereof so that, as amended, Article IV shall read in its
entirety as follows:
ARTICLE IV
----------
The total authorized stock of the Corporation shall be 24,000,000
shares, consisting of 20,000,000 shares of common stock having a par
value of $0.001 per share ("Common Stock") and 4,000,000 shares of
preferred stock having a par value of $0.001 per share ("Preferred
Stock"). Authority is hereby expressly granted to the Board of Directors
of the Corporation to authorize the issuance of one or more series of
Preferred Stock, and with respect to each such series to fix by
resolution or resolutions providing for the issuance of such series the
number of shares of such series, the voting powers, designations,
preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof,
including without limitation the dividend rights, dividend rate, terms
of redemption (including sinking fund provisions), redemption price or
prices, conversion rights, transfer and ownership restrictions and
liquidation preferences, that are permitted by the General Corporation
Law of Delaware in respect of any class or classes of stock or any
series of any class of stock of the Corporation, without further action
or vote by the Corporation's shareholders.
Upon the amendment of this Article IV to read as hereinabove set forth,
each 1.88768286927797000 outstanding shares of Common Stock is combined
on a pro rata basis into one (1) share of Common Stock and cash in lieu
of a fractional share.
<PAGE> 2
3. That in lieu of a meeting and vote of stockholders, the majority of
stockholders of the Corporation have given written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
4. That the above amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, this Corporation has caused this Certificate of
Amendment of Certificate of Incorporation to be signed by its President, this
21st day of October, 1996.
BRISTOL TECHNOLOGY SYSTEMS, INC.,
a Delaware corporation
By /s/ Richard H. Walker
---------------------------------
Richard H. Walker
President
2
<PAGE> 3
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 09/16/1996
960268094 - 2607996
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BRISTOL TECHNOLOGY SYSTEMS, INC.
The undersigned, being the President of Bristol Technology Systems,
Inc. (the "Corporation"), hereby certifies as follows:
1. (a) The Certificate of Incorporation of the Corporation is hereby
amended to change the number of shares authorized to "24,000,000" consisting of
"20,000,000" shares of common stock having a par value of "$0.001" per share
and "4,000,000" shares of preferred stock having a par value of "$0.001" per
share.
(b) To effect the foregoing, Article IV of said Certificate of
Incorporation is amended and restated to read in its entirety as follows:
"ARTICLE IV
The total authorized stock of the Corporation shall be
24,000,000 shares, consisting of 20,000,000 shares of common stock
having a par value of $0.001 per share ("Common Stock") and 4,000,000
shares of preferred stock having a par value of $0.001 per share
("Preferred Stock"). Authority is hereby expressly granted to the Board
of Directors of the Corporation to authorize the issuance of one or
more series of Preferred Stock, and with respect to each such series to
fix by resolution or resolutions providing for the issuance of such
series the number of shares of such series, the voting powers,
designations, preferences and relative, participating, optional or
other special
<PAGE> 4
rights, and the qualifications, limitations or restrictions
thereof, including without limitation the dividend rights,
dividend rate, terms of redemption (including sinking fund
provisions), redemption price or prices, conversion rights,
transfer and ownership restrictions and liquidation
preferences, that are permitted by the General Corporation
Law of Delaware in respect of any class or classes of stock or
any series of any class of stock of the Corporation, without
further action or vote by the Corporation's shareholders."
2. This amendment has been duly adopted by the unanimous written
consent of the board of directors of the Corporation and the written consent of
the holders of a majority of the outstanding capital stock of the Corporation
in accordance with the provisions of Sections 242, 228 and 141(f) of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
16th day of September, 1996.
/s/ Richard H. Walker
---------------------------------
Richard H. Walker, President
<PAGE> 5
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BRISTOL TECHNOLOGY SYSTEMS, INC.
The undersigned, being the President of Bristol Technology Systems,
Inc. (the "Corporation"), hereby certifies as follows:
1. (a) The Certificate of Incorporation of the Corporation is
hereby amended to change the number of shares authorized to "20,000,000" and to
change the par value of said shares to "$.001".
(b) To effect the foregoing, Article IV of said Certificate
of Incorporation is amended to read in its entirety as follows:
"ARTICLE IV
The capital stock authorized, the par value thereof, and the
characteristics of such stock shall be as follows:
<TABLE>
<CAPTION>
Number of Shares Par Value Class of
Authorized Per Share Stock
---------------- --------- --------
<S> <C>
20,000,000 $0.001 Common"
</TABLE>
2. This amendment has been duly adopted by the unanimous written
consent of the board of directors of the Corporation and the written consent of
the holders of all of the outstanding capital stock of the Corporation in
<PAGE> 6
accordance with the provisions of Sections 242, 228 and 141(f) of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
21st day of June, 1996.
/s/ Richard H. Walker
--------------------------------
Richard H. Walker, President
<PAGE> 7
CERTIFICATE OF INCORPORATION
OF
BRISTOL TECHNOLOGY SYSTEMS, INC.
ARTICLE I
The name of the corporation is BRISTOL TECHNOLOGY SYSTEMS, INC.,
hereinafter called the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle and
the name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose for which the Corporation is formed is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
ARTICLE IV
The capital stock authorized, the par value thereof, and the
characteristics of such stock shall be as follows:
Number of Shares Par Value Class of
Authorized Per Share Stock
---------------- --------- --------
3,000 $0.01 Common
ARTICLE V
The name of the Incorporator is A. Jeffry Robinson and the address of
the Incorporator is 1221 Brickell Avenue, Miami, Florida 33131.
ARTICLE VI
The Board of Directors of the Corporation shall consist of at least one
director, with the exact number to be fixed from time to time in the manner
provided in the Corporation's Bylaws.
<PAGE> 8
ARTICLE VII
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. It is the intent that this provision be interpreted to provide the
maximum protection against liability afforded to directors under the Delaware
General Corporation Law in existence either now or hereafter.
ARTICLE VIII
This Corporation shall indemnify and shall advance expenses on behalf
of its officers and directors to the fullest extent permitted by law in
existence either now or hereafter.
ARTICLE IX
The directors of the Corporation shall have the power to adopt, amend
or repeal the bylaws of the Corporation.
IN WITNESS WHEREOF, the undersigned, being the incorporator named
above, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, has signed this Certificate of
Incorporation this 2nd day of April, 1996.
/s/ A. Jeffry Robinson
--------------------------------
A. Jeffry Robinson, Incorporator
<PAGE> 1
EXHIBIT 4
BYLAWS
OF
BRISTOL TECHNOLOGY SYSTEMS, INC.,
A DELAWARE CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I - OFFICES................................................................................ 1
Section 1.1 Registered Office........................................................... 1
Section 1.2 Other Offices............................................................... 1
ARTICLE II - MEETINGS OF STOCKHOLDERS.............................................................. 1
Section 2.1 Place of Meetings........................................................... 1
Section 2.2 Annual Meeting of Stockholders.............................................. 1
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof............................... 1
Section 2.4 Voting...................................................................... 2
Section 2.5 Proxies..................................................................... 2
Section 2.6 Special Meetings............................................................ 2
Section 2.7 Notice of Stockholder's Meetings............................................ 2
Section 2.8 Stockholder Proposals....................................................... 2
Section 2.9 Maintenance and Inspection of Stockholder List.............................. 3
ARTICLE III - DIRECTORS............................................................................ 4
Section 3.1 Number, Election and Tenure................................................. 4
Section 3.2 Vacancies................................................................... 4
Section 3.3 Notification of Nomination.................................................. 4
Section 3.4 Powers...................................................................... 5
Section 3.5 Directors' Meetings......................................................... 5
Section 3.6 Regular Meetings............................................................ 6
Section 3.7 Special Meetings............................................................ 6
Section 3.8 Quorum...................................................................... 6
Section 3.9 Action Without Meeting...................................................... 6
Section 3.10 Telephonic Meetings......................................................... 6
Section 3.11 Committees of Directors..................................................... 6
Section 3.12 Minutes of Committee Meetings............................................... 7
Section 3.13 Compensation of Directors................................................... 7
Section 3.14 Indemnification............................................................. 7
ARTICLE IV - OFFICERS.............................................................................. 9
Section 4.1 Officers.................................................................... 9
Section 4.2 Election of Officers........................................................ 10
Section 4.3 Subordinate Officers........................................................ 10
Section 4.4 Compensation of Officers.................................................... 10
Section 4.5 Term of Office; Removal and Vacancies....................................... 10
Section 4.6 Chairman of the Board....................................................... 10
Section 4.7 President................................................................... 10
Section 4.8 Vice President.............................................................. 10
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS (Cont'd)
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 4.9 Secretary................................................................... 11
Section 4.10 Assistant Secretaries....................................................... 11
Section 4.11 Chief Financial Officer..................................................... 11
Section 4.12 Assistant Treasurer......................................................... 11
ARTICLE V - AFFILIATED TRANSACTIONS AND INTERESTED DIRECTORS....................................... 12
Section 5.1 Affiliated Transactions..................................................... 12
Section 5.2 Interested Directors........................................................ 12
ARTICLE VI - CERTIFICATES OF STOCK................................................................. 12
Section 6.1 Certificates................................................................ 12
Section 6.2 Signatures on Certificates.................................................. 13
Section 6.3 Statement of Stock Rights, Preferences, Privileges.......................... 13
Section 6.4 Lost Certificates........................................................... 13
Section 6.5 Transfers of Stock.......................................................... 13
Section 6.6 Fixing Record Date.......................................................... 13
Section 6.7 Registered Stockholders..................................................... 14
ARTICLE VII - GENERAL PROVISIONS................................................................... 14
Section 7.1 Dividends................................................................... 14
Section 7.2 Payment of Dividends........................................................ 14
Section 7.3 Checks...................................................................... 14
Section 7.4 Fiscal Year................................................................. 14
Section 7.5 Corporate Seal.............................................................. 14
Section 7.6 Manner of Giving Notice..................................................... 14
Section 7.7 Waiver of Notice............................................................ 15
Section 7.8 Annual Statement............................................................ 15
ARTICLE VIII - AMENDMENTS.......................................................................... 15
Section 8.1 Amendment by Directors or Stockholders...................................... 15
</TABLE>
ii
<PAGE> 4
BYLAWS
OF
BRISTOL TECHNOLOGY SYSTEMS, INC.,
A DELAWARE CORPORATION
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office shall be
in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.2 Other Offices. The corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Meetings of stockholders shall
be held at any place within or without the State of Delaware designated by the
Board of Directors. In the absence of any such designation, stockholders'
meetings shall be held at the principal executive office of the corporation.
Section 2.2 Annual Meeting of Stockholders. The annual meeting
of stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof. A
majority of the stock issued and outstanding and entitled to vote at any meeting
of stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been
1
<PAGE> 5
transacted at the meeting as originally notified. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote thereat and to the Pacific Stock
Exchange, if the corporation is then listed thereon.
Section 2.4 Voting. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes, or the Certificate of Incorporation, or these Bylaws, a different vote
is required in which case such express provision shall govern and control the
decision of such question.
Section 2.5 Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the corporation on the record date set by the Board of
Directors as provided in Article VI, Section 6.6 hereof. All elections shall be
had and all questions decided by a plurality vote.
Section 2.6 Special Meetings. Special meetings of the
stockholders, for any purpose, or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the President
and shall be called by the President or the Secretary at the request in writing
of a majority of the Board of Directors, the Chairman or any Co-Chairman of the
Board of Directors and shall be held at such place, on such date, and at such
time as shall be fixed by the person or persons calling the meeting, but such
special meetings may not be called by any other person or persons. Such request
shall state the purpose or purposes of the proposed meeting. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated
in the notice.
Section 2.7 Notice of Stockholder's Meetings. Whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which notice shall state the place,
date and hour of the meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. The written notice of any meeting
shall be given to each stockholder entitled to vote at such meeting and to the
Pacific Stock Exchange, if the corporation is then listed thereon, not less
than ten nor more than sixty days before the date of the meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the Pacific Stock Exchange or the stockholder at his address as it
appears on the records of the corporation.
Section 2.8 Stockholder Proposals. At an annual meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the annual meeting (a)
by, or at the direction of, a majority of the directors,
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or (b) by any stockholder of the corporation who complies with the notice
procedures set forth in this Section 2.8. For a proposal to be properly brought
before an annual meeting by a stockholder, the stockholder must be given timely
notice thereof in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than 60 days prior to
the scheduled annual meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that if less
than 70 days' notice or prior public disclosure of the date of the scheduled
annual meeting is given or made, notice by the stockholder, to be timely, must
be so delivered or received not later than the close of business on the tenth
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the corporation's books, of the stockholder proposing
such business and any other stockholders known by such stockholder to be
supporting such proposal, (c) the class and number of shares of the
corporation's stock which are beneficially owned by the stockholder on the date
of such stockholder notice and by any other stockholders known by such
stockholder to be supporting such proposal on the date of such stockholder
notice, and (d) any financial interest of the stockholder in such proposal.
The presiding officer of the annual meeting shall determine
and declare at the annual meeting whether the stockholder proposal was made in
accordance with the terms of this Section 2.8. If the presiding officer
determines that a stockholder proposal was not made in accordance with the terms
of this Section 2.8, he shall so declare at the annual meeting and any such
proposal shall not be acted upon at the annual meeting.
This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees of the Board of Directors, but, in connection with such reports,
no new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
Section 2.9 Maintenance and Inspection of Stockholder List.
The officer who has charge of the stock ledger of the corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
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ARTICLE III
DIRECTORS
Section 3.1 Number, Election and Tenure. The authorized number
of directors which shall constitute the Board shall not be less than four (4)
nor more than seven (7). The exact number shall be determined from time to time
by resolution of the Board. Until otherwise determined by such resolution, the
Board shall consist of four (4) persons. Directors shall be elected at the
annual meeting of stockholders and each director shall serve until such person's
successor is elected and qualified or until such person's death, retirement,
resignation or removal. The directors need not be stockholders. Subject to the
rights, if any, of the holders of shares of Preferred Stock then outstanding, if
any, any and all directors of the corporation may be removed from office by the
stockholders only for cause and only by the affirmative vote of at least
sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of Common
Stock of the corporation at any annual or special meeting of stockholders of the
corporation, the notice of which shall state that the removal of a director or
directors is among the purposes of the meeting.
Section 3.2 Vacancies. Vacancies on the Board of Directors by
reason of death, resignation, retirement, disqualification, removal from office,
or otherwise, and newly created directorships resulting from any increase in the
authorized number of directors shall be filled solely by the affirmative vote of
a majority of the remaining directors then in office, even though less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and qualified, unless sooner displaced. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
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Section 3.3 Notification of Nomination. Subject to the rights,
if any, of the holders of shares of Preferred Stock then outstanding, if any,
only persons who are nominated in accordance with the following procedures shall
be eligible for election as directors. Nominations of persons for election to
the Board of Directors of the corporation may be made at a meeting of
stockholders by or at the direction of the Board of Directors, by any nominating
committee or person appointed by the Board, or by any stockholder of the
corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 3.3. Such
nominations, other than those made by or at the direction of the Board or by any
nominating committee or person appointed by the Board, shall be made pursuant to
timely notice in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than 60 days prior to
the scheduled annual meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that if less
than 70 days' notice or prior public disclosure of the date of the scheduled
annual meeting is given or made, notice by the stockholder, to be timely, must
be so delivered or received not later than the close of business on the tenth
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. A stockholder's notice to the Secretary shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal number of shares of capital stock of the corporation
which are beneficially owned by the person and (iii) any other information
relating to the person that is required to be disclosed in solicitations for
proxies for election of directors pursuant to Rule 14a under the Securities
Exchange Act of 1934, as amended; and (b) as to the stockholder giving the
notice (i) the name and address, as they appear on the corporation's books, of
the stockholder and (ii) the class and number of shares of the corporation's
stock which are beneficially owned by the stockholder on the date of such
stockholder notice. The corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as director of the
corporation.
The presiding officer of the annual meeting shall determine
and declare at the annual meeting whether the nomination was made in accordance
with the terms of this Section 3.3. If the presiding officer determines that a
nomination was not made in accordance with the terms of this Section 3.3, he
shall so declare at the annual meeting and any such defective nomination shall
be disregarded.
Section 3.4 Powers. The property and business of the
corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these Bylaws expressly
conferred upon them, the Board may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
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Section 3.5 Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the corporation
outside of the State of Delaware.
Section 3.6 Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board.
Section 3.7 Special Meetings. Special meetings of the Board of
Directors may be called by the President on forty-eight hours' notice to each
director, either personally or by mail or by telegram; special meetings shall be
called by the President or the Secretary in like manner and on like notice on
the written request of two directors unless the Board consists of only one
director; in which case special meetings shall be called by the President or
Secretary in like manner or on like notice on the written request of the sole
director.
Section 3.8 Quorum. At all meetings of the Board of Directors
a majority of the authorized number of directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the vote
of a majority of the directors present at any meeting at which there is a
quorum, shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these Bylaws. If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. If only one director is authorized, such sole director shall
constitute a quorum.
Section 3.9 Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee.
Section 3.10 Telephonic Meetings. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 3.11 Committees of Directors. The Board of Directors
may, by resolution passed by a majority of the whole Board, designate one or
more committees, each such committee to consist of one or more of the directors
of the corporation. The Board shall, however, maintain an audit committee
consisting of a majority of independent directors. The Board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any
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meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the Bylaws of the corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 3.12 Minutes of Committee Meetings. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
Section 3.13 Compensation of Directors. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
Section 3.14 Indemnification.
(a) The corporation shall indemnify any
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, limited liability company,
trust or other enterprise, against all expense, liability and loss (including
attorneys' fees), judgments, fines, ERISA excise taxes and amounts paid or to be
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
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(b) The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, limited liability
company, trust or other enterprise against expenses, liability and loss
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer,
employee or agent of the corporation shall be successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in paragraphs
(a) and (b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a)
and (b) (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (a) and (b).
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the manner provided in paragraph (d) upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation as authorized in this Section 3.14.
(f) The indemnification provided by this
Section 3.14 shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
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(g) The Board of Directors may authorize, by
a vote of a majority of a quorum of the Board of Directors, the corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of this Section 3.14.
(h) For the purposes of this Section 3.14,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
limited liability company, trust or other enterprise, shall stand in the same
position under the provisions of this Section with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include service as a director, officer, employee or agent of
the corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
ARTICLE IV
OFFICERS
Section 4.1 Officers. The officers of this corporation shall
be chosen by the Board of Directors and shall include a Chairman of the Board, a
President, a Secretary, and a Chief Financial Officer. The corporation may also
have at the discretion of the Board of Directors such other officers as are
desired, including one or more Vice Presidents, one or more Assistant
Secretaries and Assistant Treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 4.3 hereof. In the event
there are two or more Vice Presidents, then one or more may be designated as
Executive Vice President, Senior Vice President, or other similar or dissimilar
title. At the time of the election of officers, the directors may by resolution
determine the order of their rank. Any number of offices may be
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held by the same person, unless the Certificate of Incorporation or these Bylaws
otherwise provide.
Section 4.2 Election of Officers. The Board of Directors, at
its first meeting after each annual meeting of stockholders, shall choose the
officers of the corporation.
Section 4.3 Subordinate Officers. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board.
Section 4.4 Compensation of Officers. The salaries of all
officers and agents of the corporation shall be fixed by the Board of Directors.
Section 4.5 Term of Office; Removal and Vacancies. The
officers of the corporation shall hold office until their successors are chosen
and qualify in their stead. Any officer elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. If the office of any officer or officers becomes vacant
for any reason, the vacancy shall be filled by the Board of Directors.
Section 4.6 Chairman of the Board. The Chairman of the Board,
if such an officer be elected, shall, if present, preside at all meetings of the
Board of Directors and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed by
these Bylaws. If there is no President, the Chairman of the Board shall in
addition be the Chief Executive Officer of the corporation and shall have the
powers and duties prescribed in Section 4.7 of this Article IV.
Section 4.7 President. Subject to such supervisory powers, if
any, as may be given by the Board of Directors to the Chairman of the Board, if
there be such an officer, the President shall be the Chief Executive Officer of
the corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the business and officers of
the corporation. He shall preside at all meetings of the stockholders and, in
the absence of the Chairman of the Board, or if there be none, at all meetings
of the Board of Directors. He shall be an ex-officio member of all committees
and shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these Bylaws.
Section 4.8 Vice President. In the absence or disability of
the President, the Vice Presidents in order of their rank as fixed by the Board
of Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
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Section 4.9 Secretary. The Secretary shall attend all sessions
of the Board of Directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose;
and shall perform like duties for the standing committees when required by the
Board of Directors. He shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or these Bylaws. He shall
keep in safe custody the seal of the corporation, and when authorized by the
Board, affix the same to any instrument requiring it, and when so affixed it
shall be attested by his signature or by the signature of an Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 4.10 Assistant Secretaries. The Assistant Secretary,
or if there be more than one, the Assistant Secretaries in the order determined
by the Board of Directors, or if there be no such determination, the Assistant
Secretary designated by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 4.11 Chief Financial Officer. The Chief Financial
Officer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the corporation and shall deposit all moneys, and other valuable effects in
the name and to the credit of the corporation, in such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of all
his transactions as Chief Financial Officer and of the financial condition of
the corporation. If required by the Board of Directors, he shall give the
corporation a bond, in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors, for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 4.12 Assistant Treasurer. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors, or if there be no such determination, the
Assistant Treasurer designated by the Board of Directors, shall, in the absence
or disability of the Chief Financial Officer, perform the duties and exercise
the powers of the Chief Financial Officer and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
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ARTICLE V
AFFILIATED TRANSACTIONS AND INTERESTED DIRECTORS
Section 5.1 Affiliated Transactions. No contract or
transaction between the corporation and one or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers and directors or officers have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or
committee thereof that authorizes the contract or transaction or solely because
his, her or their votes are counted for such purpose, if:
(a) The material facts as to his or her relationship
or interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board or Directors or committee
in good faith authorizes the contract or transaction by the affirmative vote of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(b) The material facts as to his or her relationship
or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith and by the vote of the stockholders; or
(c) The contract or transaction is fair as to the
Company as of the time it is authorized, approved or ratified by the Board of
Directors, a committee thereof, or the stockholders.
The audit committee, or a comparable body, shall review potential conflict of
interest situations.
Section 5.2 Determining Quorum. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board
of Directors or of a committee thereof which authorizes the contract or
transaction.
ARTICLE VI
CERTIFICATES OF STOCK
Section 6.1 Certificates. Every holder of stock of the
corporation shall be entitled to have a certificate signed by, or in the name of
the corporation by, the Chairman or Vice Chairman of the Board of Directors, or
the President or a Vice President, and by the Secretary or an Assistant
Secretary, or the Chief Financial Officer or an Assistant Treasurer of the
corporation, certifying the number of shares represented by the certificate
owned by such stockholder in the corporation.
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Section 6.2 Signatures on Certificates. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent, or registrar at
the date of issue.
Section 6.3 Statement of Stock Rights, Preferences,
Privileges. If the corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 6.4 Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 6.5 Transfers of Stock. Upon surrender to the
corporation, or the transfer agent of the corporation, of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 6.6 Fixing Record Date. In order that the corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of the stockholders, or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than
13
<PAGE> 17
sixty days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 6.7 Registered Stockholders. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 7.2 Payment of Dividends. Before payment of any
dividend there may be set aside out of any funds of the corporation available
for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive to
the interests of the corporation, and the directors may abolish any such
reserve.
Section 7.3 Checks. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 7.4 Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the Board of Directors.
Section 7.5 Corporate Seal. The corporate seal shall have
inscribed thereon the name of the corporation, the year of its organization and
the words "Corporate Seal, Delaware". Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7.6 Manner of Giving Notice. Whenever, under the
provisions of the statutes or of the Certificate of Incorporation or of these
Bylaws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
14
<PAGE> 18
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 7.7 Waiver of Notice. Whenever any notice is required
to be given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed to be equivalent.
Section 7.8 Annual Statement. The Board of Directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendment by Directors or Stockholders. The Board
of Directors is expressly empowered to adopt, amend or repeal bylaws of the
corporation, without the approval of the stockholders. Any adoption, amendment
or repeal of bylaws of the corporation by the Board of Directors shall require
the approval of a majority of the total number of authorized directors (whether
or not there exist any vacancies in previously authorized directorships at the
time any resolution providing for adoption, amendment or repeal is presented to
the Board). The stockholders shall also have power to adopt, amend or repeal the
bylaws of the corporation. In addition to any vote of the holders of any class
or series of stock of this corporation required by law or by the Certificate of
Incorporation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the outstanding shares of Common Stock of the
corporation shall be required to adopt, amend or repeal any provisions of the
bylaws of the corporation.
///
///
///
///
///
15
<PAGE> 19
CERTIFICATE OF SECRETARY
OF
BRISTOL TECHNOLOGY SYSTEMS, INC.,
A DELAWARE CORPORATION
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Bristol
Technology Systems, Inc., a Delaware corporation; and
(2) That the foregoing bylaws, comprising fifteen (15) pages,
constitute the bylaws of said corporation as duly adopted by Unanimous Written
Consent of the Board of Directors of said corporation as of October 20, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this
20th day of October, 1996.
/s/ Paul Spindler
---------------------------------
Paul Spindler
Chairman of the Board, Executive Vice
President and Secretary
<PAGE> 1
EXHIBIT 5
---------
FORM OF WARRANT AGREEMENT
<PAGE> 2
---------------------------------------
Bristol Technology Systems, Inc.
and
American Stock Transfer & Trust Company
-------------------------------
Warrant Agreement
-------------------------------
Dated as of ____________ __, 1996
---------------------------------------
<PAGE> 3
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Appointment of Warrant Agent. . . . . . . . . . . . . . . . . . 1
Section 2. Form of Warrant. . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Countersignature and Registration. . . . . . . . . . . . . . . . 1
Section 4. Transfers and Exchanges. . . . . . . . . . . . . . . . . . . . . 2
Section 5. Exercise of Warrants. . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . 3
Section 8. Reservation of Common Stock. . . . . . . . . . . . . . . . . . . 4
Section 9. Warrant Price. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 10. Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 11. Fractional Interest. . . . . . . . . . . . . . . . . . . . . . 8
Section 13. Disposition of Proceeds on Exercise of Warrants. . . . . . . . 10
Section 14. Merger or Consolidation or Change of Name of Warrant Agent. . . 10
Section 15. Reorganization of the Company. . . . . . . . . . . . . . . . . 10
Section 16. When Issuance or Payment May Be Deferred. . . . . . . . . . . . 11
Section 17. Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 18. Duties of Warrant Agent. . . . . . . . . . . . . . . . . . . . 12
Section 19. Change of Warrant Agent. . . . . . . . . . . . . . . . . . . . 14
Section 20. Identity of Transfer Agent. . . . . . . . . . . . . . . . . . . 15
Section 21. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 22. No Stockholder Rights. . . . . . . . . . . . . . . . . . . . . 15
Section 23. Supplements and Amendments. . . . . . . . . . . . . . . . . . . 15
Section 24. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 25. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 26. Benefits of This Agreement. . . . . . . . . . . . . . . . . . . 16
Section 27. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 16
EXHIBIT A - (Form of Common Stock Purchase Warrant, including election to
Purchase and Assignment) . . . . . . . . . . . . . . . . . . . . . . A-1
</TABLE>
i
<PAGE> 4
WARRANT AGREEMENT dated as of ____________ __, 1996, between Bristol
Technology Systems, Inc., 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 an aggregate of
625,000 Redeemable Class A Common Stock Purchase Warrants, each Warrant
entitling the registered holder thereof to purchase one share of Common Stock
(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 certificates evidencing the Warrants (the "Warrant Certificates")
and the form of election to purchase shares to be printed on the reverse
thereof shall be substantially as set forth in Exhibit "A" attached hereto.
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 of the Board, 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 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
1
<PAGE> 5
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. The Warrant Agent shall deem and treat the
registered holder(s) of the Warrant Certificates as the absolute owner(s)
thereof.
Section 4. Transfers and Exchanges.
------------------------
The Warrant Agent shall from time to time register the transfer of any
outstanding Warrant Certificate 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 in form satisfactory to
the Warrant Agent, duly executed by the registered holder(s) thereof or by the
duly appointed legal representative thereof or by a duly authorized attorney.
Upon any such registration of transfer, a new Warrant Certificate shall be
issued to the transferee(s) and the surrendered Warrant Certificate shall be
cancelled by the Warrant Agent. Warrant Certificates so cancelled shall be
delivered by the Warrant Agent to the Company from time to time upon request.
Warrant Certificates may be exchanged at the option of the holder thereof, when
surrendered at the office of the Warrant Agent, for another Warrant
Certificate, or other Warrant Certificate of different denominations, of like
tenor and representing in the aggregate the right to purchase a like number of
shares of Common Stock. Warrant Certificates surrendered for exchange shall be
cancelled by the Warrant Agent and delivered to the Company from time to time
upon request.
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 ___________ __, 1997 and terminating at 5:00
p.m., New York City time, on __________ __, 2002 (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 which the holder may at the time be entitled to receive,
upon surrender to the Company at the office of the Warrant Agent of the Warrant
Certificates evidencing 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 certified check or bank draft payable, in United States
dollars, to the order of the Company. No adjustment shall be made for any
dividends on any shares of Common Stock issuable upon exercise of any warrant
of the Company outstanding on the date hereof. 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. 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
2
<PAGE> 6
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; 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 Certificate evidencing the remaining 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 Warrant Certificates 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
initial 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 Warrant Certificates 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 Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent 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 Certificate
and, in the case of a lost, stolen or destroyed Warrant Certificate, indemnity,
if requested, also satisfactory to them. Applicants for such substitute
Warrant Certificate shall also comply with such other reasonable regulations
and pay such reasonable charges as the Company or the Warrant Agent may
prescribe.
3
<PAGE> 7
Section 8. Reservation of Common Stock.
----------------------------
There has been reserved, and the Company shall at all times keep
reserved, free from preemptive rights, out of the authorized and unissued
shares of Common Stock, or its authorized and issued Common Stock held in its
Treasury, a number of shares sufficient to satisfy any obligation to issue
shares of Common Stock upon the exercise of 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 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. 333-5570-LA) 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 cancelled by the Warrant Agent and shall
thereafter be delivered to the Company, and such cancelled 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 $6.00 per share. The Warrant Price is subject to
adjustment, as provided in Section 10 hereof.
Section 10. Adjustments.
------------
Any and all of the shares of the Common Stock of the Company which may
be acquired by a Warrant holder or his registered assigns as a result of the
exercise, in whole or in part, of this Warrant, shall be subject to the
antidilution adjustments set forth below. It is expressly understood that the
Warrant Price set forth below (before giving effect to any adjustments) shall
mean $6.00 per share of Common Stock.
4
<PAGE> 8
(a) In case the Company shall (i) declare a dividend on its Common
Stock in shares of its capital stock, (ii) subdivide its outstanding Common
Stock into a greater number of shares, (iii) combine its outstanding Common
Stock into a smaller number of shares, or (iv) issue any shares by
reclassification of its Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation), the Warrant Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
warrantholder shall be entitled to receive the kind and aggregate number of
shares of Common Stock which it would have owned or would have been entitled to
receive after the happening of any of the events described above on any record
date with respect thereto, if this Warrant had been exercised immediately prior
to such time such dividend, subdivision, combination or reclassification
occurred. Such adjustment shall be made successively whenever any event listed
above shall occur. If after an adjustment a holder of a Warrant upon exercise
of it may receive shares of two or more classes of capital stock of the
Company, the Company shall determine the allocation of the adjusted Warrant
Price between the classes of capital stock. After such allocation, the
exercise privilege and the Warrant Price of each class of capital stock shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Section.
(b) In case the Company shall fix a record date for the issuance
of rights or warrants to the holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the current Warrant Price on such record date, the Warrant Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Warrant Price in effect immediately prior to such record date by a fraction, of
which the numerator shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of Common Stock which
the aggregate offering price of the total number of shares of Common Stock so
offered would purchase at the current Warrant Price, and of which the
denominator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares of Common Stock offered for subscription
or purchase. Such adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights or warrants are not so issued,
or, if issued, not exercised by any of the holders of Common Stock, the Warrant
Price shall again be adjusted to be the Warrant Price which would then be in
effect if such record date had not been fixed or to reflect the non-exercise of
such warrants or rights, as the case may be.
(c) In case the Company shall fix a record date for the making of
a distribution to the holders of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of its indebtedness or
assets (other than cash dividends out of earned surplus) or subscription rights
or warrants (excluding those referred to in paragraph (b) above), then in each
such case the Warrant Price in effect after such record date shall be
determined by multiplying the Warrant Price in effect immediately prior to such
record date by a fraction, of which the numerator shall be the total number of
outstanding shares of Common Stock multiplied by the current Warrant Price,
less the fair market value (as determined in good faith by the Company's Board
of Directors, whose determination shall be conclusive) of the portion of the
assets or evidences of indebtedness to be distributed or of such subscription
rights or warrants, and of which the
5
<PAGE> 9
denominator shall be the total number of outstanding shares of Common Stock on
such record date multiplied by the current Warrant Price. Such adjustment
shall be made successively whenever such a record date is fixed and shall
become effective immediately after the record date for the determination of
stockholders entitled to receive the distribution.
(d) In case the Company shall issue shares of its Common Stock,
excluding shares issued (i) in any of the transactions described in paragraph
(a) above, (ii) upon conversion or exchange of securities convertible into or
exchangeable for Common Stock, (iii) upon exercise of options granted under the
Company's stock option plans, if such shares would otherwise be included in
this paragraph (d), (iv) upon exercise of the Warrants, (v) in connection with
the Company's initial public offering, (vi) upon exercise of rights or warrants
issued to the holders of the Common Stock, (vii) upon the issuance of Common
Stock in connection with a bona fide public offering pursuant to a firm
commitment underwriting or (viii) upon the issuance of Common Stock in
connection with the acquisition of the stock or assets of third party business
entities in bona fide transactions, and (ix) upon the issuance of Common Stock
in a bona fide private placement through a placement agent which is a member
firm of the National Association of Securities Dealers, Inc., but only if no
adjustment is required pursuant to this Section 10 (without regard to paragraph
(i) of this Section 10) with respect to the transaction giving rise to such
rights for a consideration per share less than the current Warrant Price on the
date the Company fixes the offering price of such additional shares, the
Warrant Price shall be adjusted immediately thereafter so that it shall equal
the price determined by multiplying the Warrant Price in effect immediately
prior thereto by a fraction, of which the numerator shall be the total number
of shares of Common Stock outstanding immediately prior to the issuance of such
additional shares plus the number of shares of Common Stock which the aggregate
consideration received (determined as provided in paragraph (g) below) for the
issuance of such additional shares would purchase at the current Warrant Price,
and of which the denominator shall be the number of shares of Common Stock
outstanding immediately after the issuance of such additional shares. Such
adjustment shall be made successively whenever such an issuance is made, and
shall become effective immediately after such issuance.
(e) In case the Company shall issue any securities convertible
into or exchangeable for its Common Stock (excluding securities issued in
transactions described in paragraphs (b) and (c) above or any of the
exclusionary clauses (i) through (ix) of paragraph (d) above) for a
consideration per share of Common Stock initially deliverable upon conversion
or exchange of such securities (determined as provided in paragraph (g) below)
less than the current Warrant Price in effect immediately prior to the issuance
of such securities, the Warrant Price shall be adjusted immediately thereafter
so that it shall equal the price determined by multiplying the Warrant Price in
effect immediately prior thereto by a fraction, of which the numerator shall be
the number of shares of Common Stock outstanding immediately prior to the
issuance of such securities plus the number of shares of Common Stock which the
aggregate consideration received (determined as provided in paragraph (g)
below) for such securities would purchase at the current Warrant Price, and of
which the denominator shall be the number of shares of Common Stock outstanding
immediately prior to such issuance plus the maximum number of shares of Common
Stock of the Company deliverable upon conversion of or in exchange for such
securities at the initial conversion or exchange price or rate. Such
adjustment shall be
6
<PAGE> 10
made successively whenever such an issuance is made, and shall become effective
immediately after such issuance.
(f) Whenever the Warrant Price payable upon exercise of this
Warrant is adjusted pursuant to paragraphs (a), (b), (c), (d) or (e) above, the
number of shares of Common Stock purchasable upon exercise of this Warrant
shall simultaneously be adjusted by multiplying the number of shares of Common
Stock initially issuable upon exercise of this Warrant by the Warrant Price in
effect on the date immediately preceding such event and dividing the product so
obtained by the Warrant Price, as adjusted.
(g) For purposes of any computation respecting consideration
received pursuant to paragraphs (d) and (e) above, the following shall apply:
(i) in the case of the issuance of shares of Common Stock
for cash, the consideration shall be the amount of
such cash, provided that in no case shall any
deduction be made for any commissions, discounts or
other expenses incurred by the Company for any
underwriting of the issue or otherwise in connection
therewith;
(ii) in the case of the issuance of shares of Common Stock
for a consideration in whole or in part other than
cash, the consideration other than cash shall be
deemed to be the fair market value thereof as
determined in good faith by the Board of Directors of
the Company (irrespective of the accounting treatment
thereof), whose determination shall be conclusive;
and
(iii) in the case of the issuance of securities convertible
into or exchangeable for shares of Common Stock, the
aggregate consideration received therefor shall be
deemed to be the consideration received by the
Company for the issuance of such securities plus the
additional minimum consideration, if any, to be
received by the Company upon the conversion or
exchange thereof (the consideration in each case to
be determined in the same manner as provided in
clauses (i) and (ii) of this paragraph (g)).
(h) No adjustment in the Warrant Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price, provided, however, that any adjustments which by reason of this
paragraph (h) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
10 shall be made to the nearest cent or to the nearest one-tenth of a share, as
the case may be. Anything in this Section 10 to the contrary notwithstanding,
the Company shall be entitled, but shall not be required, to make such changes
in the Warrant Price, in addition to those required by this Section 10, as it,
in its discretion, shall determine to be advisable in order that any share,
7
<PAGE> 11
dividend, subdivision of Common Stock, distribution of rights or warrants to
purchase Common Stock or distribution of evidences of indebtedness or other
assets (other than distributions of cash) hereafter made by the Company to the
holders of its Common Stock shall not result in any tax to the holders of its
Common Stock or securities convertible into Common Stock.
(i) Whenever the Warrant Price is adjusted, as herein provided,
the Company will promptly prepare a certificate signed by the President and
Chief Financial Officer of the Company setting forth (i) the Warrant Price as
so adjusted, (ii) the number of shares of Common Stock or other securities
purchasable upon exercise of the Warrant after such adjustment, and (iii) a
brief statement of the facts accounting for such adjustment. The Company will
promptly file such certificate with its Warrant Agent, if any has been
appointed, and cause a brief summary thereof to be sent by ordinary first class
mail to the warrantholder, at his last address as it shall appear in the
Warrant Register. The affidavit of an officer of the Warrant Agent or the
Secretary or an Assistant Secretary of the Company that such notice has been
mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. The Company may retain a firm of independent public
accountants of recognized standing selected by the Board of Directors (who may
be the regular accountants employed by the Company) to make any computation
required by this Section 10, and a certificate signed by such firm shall be
conclusive evidence of the correctness of such adjustment.
(j) No adjustment need be made for a transaction referred to in
subsections (a), (b), (c), (d) or (e) of this Section 10 if warrantholders are
to participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and
notice on which holders of Common Stock participate in the transaction. No
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest. No adjustment need be
made for a change in the par value or no par value of the Common Stock. To the
extent the Warrants become convertible into cash, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash.
(k) 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 shares of Common Stock purchasable on exercise
Warrants so presented. If any fraction of a share would, except for the
provisions of this Section 11, be issuable upon exercise of a Warrant, the
Company shall pay an amount
8
<PAGE> 12
in cash equal to the Warrant Price on the day immediately preceding the date
the Warrant is presented for exercise, multiplied by such fraction.
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, 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 of 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
(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
or 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.
9
<PAGE> 13
(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.
------
(a) 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 18 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.
(b) 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 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. Reorganization of the Company.
------------------------------
If the Company consolidates or merges with or into, or transfers or
leases all or substantially all its assets to, any person, upon consummation of
such transaction the Warrants shall automatically become exercisable for the
kind and amount of securities, cash or other assets which the holder of a
Warrant would have owned immediately after the consolidation, merger, transfer
or lease if the holder had exercised the Warrant immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the corporation
10
<PAGE> 14
formed by or surviving any such consolidation or merger if other than the
Company, or the person to which such sale or conveyance shall have been made,
shall enter into a supplemental Warrant Agreement so providing and further
providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in Section 10 hereof. The successor
Company shall mail to Warrant holders a notice describing the supplemental
Warrant Agreement or the primary exchange on which the Common Stock is traded.
If the issuer of securities deliverable upon exercise of Warrants under the
supplemental Warrant Agreement is an affiliate of the formed, surviving,
transferee or lessee corporation, that issuer shall join in the supplemental
Warrant Agreement. If this subsection 15 applies, subsections (a), (b), (c),
(d) and (e) of Section 10 do not apply.
Section 16. When Issuance or Payment May Be Deferred.
-----------------------------------------
In any case in which Section 10 hereof shall require that an
adjustment in the Warrant Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event (i) issuing to the holder of any Warrant exercised after such record date
the shares of Common Stock or other capital stock of the Company, if any,
issuable upon such exercise on the basis of the Warrant Price and (ii) paying
to such holder any amount in cash in lieu of a fractional share pursuant to
section 12; provided, however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holder's right to
receive such additional shares of Common Stock, other capital stock and cash
upon the occurrence of the event requiring such adjustment.
Section 17. Redemption.
-----------
(a) Commencing fifteen (15) months after the date of the issuance
of this Warrant and on not less than thirty (30) days notice, the Warrants may
be redeemed, at the option of the Company, at a redemption price of $.01 per
Warrant, provided the Market Price of the Common Stock receivable upon exercise
of the Warrant shall have exceeded $10.00 per share (the "Target Price"),
subject to adjustment as set forth in Section 17(f) below. "Market price" for
the purpose of this Section 17 shall mean the closing bid prices for twenty
(20) consecutive trading days, ending on the third day prior to the date of the
notice of redemption of the Common Stock, as reported by the National
Association of Securities Dealers, Inc.'s Automated Quotation System
("NASDAQ").
(b) In the event the conditions set forth in subparagraph 17(a)
are met, and the Company shall desire to exercise its right so to redeem the
Warrants, it shall mail a notice of redemption to the holders of the Warrants
to be redeemed, first class, postage prepaid, not later than the twentieth day
before the date fixed for redemption, at his/her last address as shall appear
on the records of the Company. Any notice mailed in the manner provided herein
shall be conclusively presumed to have been duly given whether or not the
holder receives such notice.
(c) The notice of redemption shall specify the (i) redemption
price, (ii) the date fixed for redemption, (iii) the place where the Warrant
Certificates shall be delivered and the redemption price paid, and (iv) that
the right to exercise the Warrant shall terminate at
11
<PAGE> 15
5:00 p.m. (New York time) on the business day immediately proceeding the date
fixed for redemption. The date fixed for redemption of the Warrants shall be
the Redemption Date. 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 (a) to whom notice was not mailed; or (b)
whose notice was defective. An affidavit of the Secretary of 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.
(d) Except as provided herein, any right to exercise a Warrant
shall terminate at 5:00 p.m. (New York time) on the business day immediately
proceeding the Redemption Date. On and after the Redemption Date. On and
after the Redemption Date, the Warrantholders shall have no further rights
except to receive, upon surrender of the Warrant, the redemption price.
(e) 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 or on behalf of the holder thereof of one or
more 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
each such Warrant. 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.
(f) If the shares of the Company's Common Stock are subdivided or
combined into a greater or smaller number of shares of Common Stock, the Target
Price shall be proportionately adjusted by the ratio which the total number of
shares of Common Stock outstanding immediately prior to such event bears to the
total number of shares of Common Stock to be outstanding immediately after such
event.
Section 18. 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 and 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
12
<PAGE> 16
to the Company or to any 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 of 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
13
<PAGE> 17
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 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 19. 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 cancelled 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 20. 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.
14
<PAGE> 18
Section 21. 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 prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent) as
follows:
Bristol Technology Systems, Inc.
18201 Von Karman, Suite 305
Irvine, California 92612
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
40 Wall Street
New York, New York 10005
Section 22. No Stockholder Rights.
----------------------
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the
right to vote or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as stockholders of the Company.
Section 23. 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 24. 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.
15
<PAGE> 19
Section 25. 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 law principles thereof.
Section 26. 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.
Section 27. 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.
BRISTOL TECHNOLOGY SYSTEMS, INC.
By: ________________________________
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: ________________________________
16
<PAGE> 20
[Form of Class A Redeemable Common Stock Purchase Warrant Certificate]
[Face]
No. _____ Warrants
Warrant Certificate
BRISTOL TECHNOLOGY SYSTEMS, INC.
This Warrant Certificate certifies that ______________, or
registered assigns, is the registered holder of Warrants expiring __________,
2002 (the "Warrants") to purchase Common Stock, $.001 par value (the "Common
Stock"), of Bristol Technology Systems, Inc., a Delaware corporation (the
"Company"). Each Warrant entitles the holder upon exercise to receive from the
Company on or before 5:00 p.m. New York City Time on __________, 2002, one
fully paid and nonassessable share of Common Stock (a "Warrant Share") at the
initial exercise price (the "Warrant Price") of $6.00 payable in lawful money
of the United States of America upon surrender to the Company at the office of
the Warrant Agent of this Warrant Certificate and payment to the Company of the
Warrant Price at the office of the Warrant Agent, but only subject to the
conditions set forth herein and in the Warrant Agreement referred to on the
reverse hereof.
The Warrant Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
The Warrant may be exercised commencing at the opening of
business, New York City Time on __________, 1997 and terminating at 5:00 p.m.,
New York City Time on __________, 2002, and to the extent not exercised by such
time such Warrants shall become void.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Company, as such term is used in the Warrant Agreement.
IN WITNESS WHEREOF, Bristol Technology Systems, Inc. has
caused this Warrant Certificate to be signed by its President and by its
Secretary, each by a facsimile of
A-1
<PAGE> 21
his signature, and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
Dated:
BRISTOL TECHNOLOGY SYSTEMS, INC.
By
----------------------------
President
By
----------------------------
Secretary
A-2
<PAGE> 22
[Form of Class A Redeemable Common Stock Purchase Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring __________, 2002, entitling the
holder on exercise to receive shares of Common Stock, $.001 par value, of the
Company (the "Common Stock"), and are issued or to be issued pursuant to a
Warrant Agreement dated as of October __, 1996 (the "Warrant Agreement"), duly
executed and delivered by the Company and American Stock Transfer & Trust
Company (the "Warrant Agent"), which Warrant Agreement is hereby incorporated
by reference in and made a part of this instrument and is hereby referred to
for a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the Warrants.
A copy of the Warrant Agreement may be obtained by the holder hereof upon
written request to the Warrant Agent.
Warrants may be exercised commencing at the opening of
business New York City Time on __________, 1997 and terminating at 5:00 p.m.,
New York City Time, on __________, 2002. The holder of Warrants evidenced by
this Warrant Certificate may exercise them by surrendering this Warrant
Certificate, with the form of election to purchase set forth hereon properly
completed and executed, together with payment of the Warrant Price in cash or
by certified check or bank draft payable to the order of the Company at the
office of the Warrant Agent. In the event that upon any exercise of Warrants
evidenced hereby the number of Warrants exercised shall be less than the total
number of Warrants evidenced hereby, there shall be issued to the holder hereof
or his assignee a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Common Stock
issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of
certain events the Warrant Price set forth on the face hereof may, subject to
certain conditions, be adjusted. If the Warrant Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the
Company by the registered holder thereof in person or by legal representative
or attorney duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, but without
payment of any service charge, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
A-3
<PAGE> 23
Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge except for any tax or other governmental
charge imposed in connection therewith.
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
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<PAGE> 24
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive __________ shares of
Common Stock and herewith tenders payment for such shares to the order of
Bristol Technology Systems, Inc. in the amount of $______ in accordance with
the terms hereof.
The undersigned requests that a certificate for such shares be
registered in the name of __________________________, whose address is ________
__________________________________________ and that such shares be delivered to
______________________________ whose address is _______________________________
_______________________________________________________________________________.
If said number of shares is less than all of the shares of
Common Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be registered in
the name of ________________________________________, whose address is ________
______________________________________, and that such Warrant Certificate be
delivered to __________________________________________________________________
___________________________, whose address is _________________________________
_______________________________________________________________________________.
Signature:
Date:
Signature Guaranteed:
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