<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM 8-A/A
(Amendment No.1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
LEC TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2990598
(State of Incorporation (IRS Employer
or Organization) Indentification Number)
6540 South Pecos Road, Suite 103 Las Vegas, Nevada 89120
(Address of principal executive offices) (zip code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective securities and is to become
upon filing pursuant to General effective simultaneously with
Instruction A(c)(1) please check the effectiveness of a
the following [ ] concurrent registration
statement under the Securities
Act of 1933 pursuant to General
Instruction A(c)(2) please
check the following box.[ ]
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:
Class C Common Stock Purchase Warrants
Class D Common Stock Purchase Warrants
<PAGE>
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
LEC Technologies, Inc. (the "Company" or "Registrant")
has issued and outstanding Class C Common Stock Purchase Warrants
(the "Class C Warrants"), to purchase up to an aggregate of
2,319,993 shares of the Company's common stock, $0.01 par value per
share (the "Common Stock") and Class D Common Stock Purchase
Warrants (the "Class D Warrants" and, together with the Class C
Warrants, the "Common Stock Purchase Warrants"), to purchase up to
an aggregate of 2,319,993 shares of Common Stock. On March 3,
1998, the Company and American Stock Transfer and Trust Company
(the "Transfer Agent") entered to an Amended and Restated Warrant
Agency Agreement (the "Amended and Restated Warrant Agency
Agreement") in order to reflect the reduced exercise price and the
extended expiration date of the Common Stock Purchase Warrants and
in order to make certain clarifying amendments which have not
adversely affected the interest of the registered holders of the
Common Stock Purchase Warrants.
The following description of certain matters relating to
the Common Stock Purchase Warrants is a summary and is qualified in
its entirety by the provisions of the Amended and Restated Warrant
Agency Agreement, which is incorporated by reference herein and is
filed as an exhibit hereto. See "Item 2. Exhibits."
The Class C Common Stock Purchase Warrants and
The Class D Common Stock Purchase Warrants
Each Common Stock Purchase Warrant entitles the holder
thereof to purchase one share of Common Stock at an exercise price
of $1.25 per share (the "Exercise Price"). The Common Stock
Purchase Warrants are currently exercisable and expire on April 30,
1999. The Exercise Price and the number of shares issuable upon
exercise of the Common Stock Purchase Warrants are subject to
automatic adjustment upon the occurrence of certain events,
including the issuance of Common Stock as a dividend on shares of
Common Stock, subdivisions or combinations of the Common Stock or
similar events. Except as stated in the preceding sentence, the
Common Stock Purchase Warrants do not contain provisions protecting
against dilution resulting from the sale of additional shares of
Common Stock for less than either the Exercise Price or the current
market price of the Company's securities.
In certain cases, the sale of securities by the Company
upon exercise of any Common Stock Purchase Warrants could violate
the securities laws of the United States, certain states thereof of
other jurisdictions. The Company may, in its sole discretion,
cause a registration statement with respect to such securities to
be filed with the Securities Exchange Commission under the
Securities Act of 1933, as amended, to cause such registration to
continue to be effective during the term of the Common Stock
Purchase Warrants and to take such other actions under the laws of<PAGE>
<PAGE>
various states as may be required to cause the sale of securities
upon exercise of any Common Stock Purchase Warrants to be lawful.
However, the Company will not honor the exercise of any Common
Stock Purchase Warrants if, in the opinion of counsel, the sale of
securities upon such exercise would not be lawful. Hence, no
Common Stock Purchase Warrants may be exercised in the absence of
an effective registration statement covering the sale of the shares
underlying such Common Stock Purchase Warrants or an exemption from
registration thereof.
The Company has instructed the Transfer Agent to reserve
from the Company's authorized but unissued shares a sufficient
number of shares of Common Stock for issuance upon exercise of the
Common Stock Purchase Warrants. During the period in which a
Common Stock Purchase Warrant is exercisable, exercise of such
Common Stock Purchase Warrant may be effected by delivery of the
Common Stock Purchase Warrant, duly endorsed for exercise and
accompanied by payment of the Exercise Price and any applicable
taxes or governmental charges, to the Warrant Agent. The shares of
Common Stock issuable upon exercise of the Common Stock Purchase
Warrants will be, when issued in accordance with the terms of the
Amended and Restated Warrant Agency Agreement and the Common Stock
Purchase Warrants, fully paid and nonassessable.
For the life of the Common Stock Purchase Warrants, the
holders thereof have the opportunity to profit from a rise in the
market for the Common Stock, with a resulting dilution in the
interest of all other stockholders of the Company. So long as the
Common Stock Purchase Warrants are outstanding, the terms on which
the Company could obtain additional capital may be adversely
affected. The holders of such Common Stock Purchase Warrants might
be expected to exercise them at a time when the Company could, in
all likelihood, be able to obtain any needed capital by a new
offering of securities on terms more favorable than those provided
for by such Common Stock Purchase Warrants.
The holders of the Common Stock Purchase Warrants have no
rights as stockholders of the Company until their Common Stock
Purchase Warrants are duly exercised.
<PAGE>
<PAGE>
Item 2. Exhibits.
Filed herewith are the following exhibits to the Registrant's
Form 8-A/A.
Exhibit
Number Description
4.0* Specimen Certificate of Common Stock.
4.1 Form of Class C Warrant Certificate.
4.2 Form of Class D Warrant Certificate.
4.3 Form of Amended and Restated of Warrant Agency Agreement
dated as March 3, 1998, between the Company and American
Stock Transfer & Trust Company, as Warrant Agent.
* Incorporated by reference to the Registrant's Registration
Statement on Form S-2, Registration Number 33-64246, as filed with
the Securities and Exchange Commission on June 10, 1993.
<PAGE>
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly caused
this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
LEC TECHNOLOGIES, INC.
/s/ Michael F. Daniels
---------------------------
By: Michael F. Daniels
Title: President & Chief
Executive Officer
DATED: March 3, 1998
114578<PAGE>
<PAGE>
EXHIBIT 4.1 TO FORM 8A/A
Warrants
CLASS C COMMON STOCK PURCHASE WARRANTS
LEC TECHNOLOGIES, INC.
Incorporated Under the Laws of the State of Delaware
THIS CERTIFIES THAT, for value received, , the
registered holder hereof or registered assigns (the "Holder"), is
entitled to purchase from LEC TECHNOLOGIES, INC. , a Delaware
corporation (the "Company"), commencing on September 1, 1996 and
until the close of business on April 30, 1999, at the purchase
price of $1.25 (the "Exercise Price") the number of shares of
Common Stock of the Company (the "Common Stock"), which is equal to
the number of Warrants set forth above. The number of shares
purchasable upon exercise of this Warrant and the Exercise Price
per share shall be subject to adjustment from time to time as set
forth in the Amended and Restated Warrant Agency Agreement dated as
of March 3, 1998 by and between the Company and American Stock
Transfer & Trust Company (the "Warrant Agency Agreement") executed
in connection herewith, and these Warrants are subject to
repurchase by the Company on the terms and conditions contained in
such Warrant Agency Agreement.
This Warrant may be exercised in whole or in part by
presentation of this Warrant with the Purchase Form on the reverse
side hereof duly executed and simultaneous payment of the Exercise
Price (subject to adjustment) at the principal office of American
Stock Transfer & Trust Company (the "Warrant Agent") in New York,
New York. Payment of such price shall be made at the option of the
Holder hereof in cash or by check.
This Warrant is one of a duly authorized issue of
Warrants evidencing the right to purchase an aggregate of up to
2,319,993 shares of Common Stock and is issued under and in
accordance with the Warrant Agency Agreement and is subject to the
terms and provisions contained in the Warrant Agency Agreement, to
all of which the Holder of this Warrant by acceptance hereof
consents. A copy of the Warrant Agency Agreement may be obtained
for inspection by the Holder hereof upon written request to the
Warrant Agent.<PAGE>
<PAGE>
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder hereof a new Warrant in
respect of the shares of Common Stock as to which this Warrant
shall not have been exercised. This Warrant may be exchanged at
the office of the Warrant Agent by surrender of this Warrant
properly endorsed either separately or in combination with one or
more other Warrants for one or more new Warrants entitling the
Holder thereof to purchase the same aggregate number of shares as
were purchasable on exercise of the Warrant or Warrants exchanged.
No fractional shares will be issued upon the exercise of this
Warrant, but the Company shall pay the cash value of any fraction
upon the exercise of one or more Warrants. This Warrant is
transferable at the office of the Warrant Agent in New York, New
York, in the manner and subject to the limitations set forth in the
Warrant Agency Agreement.
The Holder hereof may be treated by the Company, the
Warrant Agent and all other persons dealing with this Warrant as
the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books,
the Company may treat the Holder hereof as the owner for all
purposes.
This Warrant does not entitle any Holder hereof to any of
the rights of a shareholder of the Company.
Unless and until so surrendered, this certificate shall
not be deemed for all purposes (subject to the further provisions
of this paragraph) to evidence the ownership of the whole number of
shares of Common Stock into which the Warrants evidenced hereby
have been so converted. Unless and until this certificate shall be
so surrendered, dividends or distributions payable to holders of
record of shares of Common Stock shall not be paid to the holder of
this certificate.
<PAGE>
<PAGE>
This Warrant shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant
Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST COMPANY, Warrant Agent
By:
- ---------------------------------
LEC TECHNOLOGIES, INC.
By:
------------------------------
President
Attest:
------------------------------
<PAGE>
<PAGE>
LEC TECHNOLOGIES, INC.
Purchase Form
Mailing Address:
- -------------------------- -----------------------
- -------------------------- -----------------------
- -------------------------- -----------------------
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for, and to
purchase thereunder, shares of the stock provided for therein, and
requests that certificates for such shares to be issued in the name
of:
- ----------------------------------------------------------------
(Please Print Name, Address and Social Security No.)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
and, if said number of shares shall not be all the shares
purchasable thereunder, that a new Warrant Certificate for the
balance remaining of the shares purchasable under the within
Warrant Certificate registered in the name of the undersigned
Warrantholder or his Assignee as below indicated and delivered to
the address stated below:
DATED: , 199_
Name of Warrantholder or
Assignee
- -----------------------------------------------------------------
(Please Print)
Address:
- -----------------------------------------------------------------
Signature:
- -----------------------------------------------------------------
Signature Guaranteed: NOTE: The above signature must
correspond with the name as written
upon the face of this Warrant
Certificate in every particular,
without alteration or enlargement
or any change whatever, unless this
Warrant has been assigned.<PAGE>
<PAGE>
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto (Name and Address of
Assignee Must Be Printed or Typewritten) the within Warrant, hereby
irrevocably constituting and appointing Attorney
to transfer said Warrant on the books of the Company, with full
power of substitution in the premises.
DATED: , 199_
--------------------------
Signature of Registered Holder
Signature Guaranteed: NOTE: The above signature must
correspond with the name as
written on the face of this
Warrant Certificate in every
particular, without alteration
or enlargement or any change
whatever.
<PAGE>
<PAGE>
EXHIBIT 4.2 TO FORM 8A/A
Warrants
CLASS D COMMON STOCK PURCHASE WARRANTS
LEC TECHNOLOGIES, INC.
Incorporated Under the Laws of the State of Delaware
THIS CERTIFIES THAT, for value received, , the
registered holder hereof or registered assigns (the "Holder"), is
entitled to purchase from LEC TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), commencing September 1, 1996 and until
the close of business on April 30, 1999, at the purchase price of
$1.25 (the "Exercise Price") the number of shares of Common Stock
of the Company (the "Common Stock"), which is equal to the number
of Warrants set forth above. The number of shares purchasable upon
exercise of this Warrant and the Exercise Price per share shall be
subject to adjustment from time to time as set forth in the Amended
and Restated Warrant Agency Agreement dated as of March 3, 1998 by
and between the Company and American Stock Transfer & Trust Company
(the "Warrant Agency Agreement") executed in connection herewith,
and these Warrants are subject to repurchase by the Company on the
terms and conditions contained in such Warrant Agency Agreement.
This Warrant may be exercised in whole or in part by
presentation of this Warrant with the Purchase Form on the reverse
side hereof duly executed and simultaneous payment of the Exercise
Price (subject to adjustment) at the principal office of American
Stock Transfer & Trust Company (the "Warrant Agent") in New York,
New York. Payment of such price shall be made at the option of the
Holder hereof in cash or by check.
This Warrant is one of a duly authorized issue of
Warrants evidencing the right to purchase an aggregate of up to
2,319,993 shares of Common Stock and is issued under and in
accordance with the Warrant Agency Agreement and is subject to the
terms and provisions contained in the Warrant Agency Agreement, to
all of which the Holder of this Warrant by acceptance hereof
consents. A copy of the Warrant Agency Agreement may be obtained
for inspection by the Holder hereof upon written request to the
Warrant Agent.
<PAGE>
<PAGE>
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder hereof a new Warrant in
respect of the shares of Common Stock as to which this Warrant
shall not have been exercised. This Warrant may be exchanged at
the office of the Warrant Agent by surrender of this Warrant
properly endorsed either separately or in combination with one or
more other Warrants for one or more new Warrants entitling the
Holder thereof to purchase the same aggregate number of shares as
were purchasable on exercise of the Warrant or Warrants exchanged.
No fractional shares will be issued upon the exercise of this
Warrant, but the Company shall pay the cash value of any fraction
upon the exercise of one or more Warrants. This Warrant is
transferable at the office of the Warrant Agent in New York, New
York, in the manner and subject to the limitations set forth in the
Warrant Agency Agreement.
The Holder hereof may be treated by the Company, the
Warrant Agent and all other persons dealing with this Warrant as
the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books,
the Company may treat the Holder hereof as the owner for all
purposes.
This Warrant does not entitle any Holder hereof to any of
the rights of a shareholder of the Company.
Unless and until so surrendered, this certificate shall
not be deemed for all purposes (subject to the further provisions
of this paragraph) to evidence the ownership of the whole number of
shares of Common Stock into which the Warrants evidenced hereby
have been so converted. Unless and until this certificate shall be
so surrendered, dividends or distributions payable to holders of
record of shares of Common Stock shall not be paid to the holder of
this certificate.
<PAGE>
<PAGE>
This Warrant shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant
Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST COMPANY, Warrant Agent
By:
- ----------------------------------
LEC TECHNOLOGIES, INC.
By:
------------------------------
President
Attest:
------------------------------
<PAGE>
<PAGE>
LEC TECHNOLOGIES, INC.
Purchase Form
Mailing Address:
- ----------------------- -------------------------
- ----------------------- -------------------------
- ----------------------- -------------------------
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for, and to
purchase thereunder, shares of the stock provided for therein, and
requests that certificates for such shares to be issued in the name
of:
- -----------------------------------------------------------------
(Please Print Name, Address and Social Security No.)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
and, if said number of shares shall not be all the shares
purchasable thereunder, that a new Warrant Certificate for the
balance remaining of the shares purchasable under the within
Warrant Certificate registered in the name of the undersigned
Warrantholder or his Assignee as below indicated and delivered to
the address stated below:
DATED: , 199_
Name of Warrantholder or
Assignee
- -----------------------------------------------------------------
(Please Print)
Address:
- -----------------------------------------------------------------
Signature:
- -----------------------------------------------------------------
Signature Guaranteed: NOTE: The above signature must
correspond with the name as written
upon the face of this Warrant
Certificate in every particular,
without alteration or enlargement
or any change whatever, unless this
Warrant has been assigned.
<PAGE>
<PAGE>
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto (Name and Address of
Assignee Must Be Printed or Typewritten) the within Warrant, hereby
irrevocably constituting and appointing Attorney
to transfer said Warrant on the books of the Company, with full
power of substitution in the premises.
DATED: , 199_
------------------------------
Signature of Registered Holder
Signature Guaranteed: NOTE: The above signature must
correspond with the name as
written on the face of this
Warrant Certificate in every
particular, without alteration
or enlargement or any change
whatever.
114578<PAGE>
<PAGE> EXECUTION COPY
EXHIBIT 4.3 TO FORM 8A/A
AMENDED AND RESTATED
WARRANT AGENCY AGREEMENT
AMENDED AND RESTATED WARRANT AGENCY AGREEMENT dated as of
March 3, 1998 between LEC TECHNOLOGIES, INC. a Delaware corporation
(the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, as
Warrant Agent (the "Warrant Agent").
WHEREAS, the Company and the Warrant Agent entered into
a Warrant Agency Agreement dated as of April 30, 1996, as amended
by an Amendment to Warrant Agency Agreement dated as of October 30,
1996 (collectively the "Original Warrant Agency Agreement);
WHEREAS, the Company has issued (i) Class C Common Stock
Purchase Warrants, as hereinafter described (the "Class C
Warrants"), to purchase up to an aggregate of 2,319,993 shares of
its Common Stock, $0.01 par value per share (the "Common Stock")
and (ii) Class D Common Stock Purchase Warrants, as hereinafter
described (the "Class D Warrants"), to purchase up to an aggregate
of 2,319,993 shares of its Common Stock (the Class C Warrants
together with the Class D Warrants, are hereinafter referred to as
the "Warrants"), to purchase up to an aggregate total for both
Class C Warrants and Class D Warrants of 4,639,986 shares of the
Common Stock (the shares of Common Stock issuable on exercise of
the Warrants being referred to herein as the "Warrant Shares"), in
connection with the issuance (the "Issuance") by the Company, of
the Warrants;
WHEREAS, the Company, by action of its Board of Directors
on September 19, 1997, pursuant to Section 10.6 of the Original
Warrant Agency Agreement (i) reduced the exercise price of (x) the
Class C Warrants from $1.625 to $1.25 and (y) the Class D Warrants
from $1.75 to $1.25 and (ii) extended the expiration date of the
Class C Warrants and the Class D Warrants to April 30, 1999;
WHEREAS, the Company wishes to amend and restate in its
entirety the Original Warrant Agency Agreement in order to (i)
reflect the reduced exercise price and the extended expiration date
of the Warrants and (ii) make certain clarifying amendments which
shall not adversely affect the interest of the Holders (as
hereinafter defined); and
WHEREAS, the Company wishes the Warrant Agent to continue
to act on behalf of the Company in connection with the issuance,
division, transfer, exchange and exercise of the Warrants and the
Warrant Agent is willing to act as such.
<PAGE>
<PAGE>
NOW, THEREFORE, in consideration of the premises and for
the purpose of defining the terms and provisions of the Warrants
and the respective rights and obligations thereunder of the Company
and the registered owners of the Warrants (the "Holders"), the
Company and the Warrant Agent hereby 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 in this Agreement set
forth, and the Warrant Agent hereby accepts such appointment.
Section 2. Form of Warrant.
2.1 Registration. The Warrants shall be numbered and
shall be registered in a Warrant Register as they are issued. The
Company and the Warrant Agent shall be entitled to treat the Holder
of any Warrant as the owner in fact thereof for all purposes and
shall not be bound to recognize any equitable or other claim to or
interest in such Warrant on the part of any other person, and shall
not be liable for any registration of transfer of the Warrants
which are registered or to be registered in the name of a fiduciary
or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in
requesting such registration of transfer, or with such knowledge of
such facts that its participation therein amounts to bad faith.
2.2 Form of Warrant. The text of the Warrants and of
the Purchase Form shall be substantially as set forth in Exhibits A
and B attached hereto. The Exercise Price (as defined in and
determined in accordance with the provisions of Sections 9 and 10
hereof) per Warrant Share and the number of Warrant Shares issuable
upon exercise of each Warrant 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 its Chairman
of the Board, or its President, under its corporate seal reproduced
thereon, attested by its Secretary or an Assistant Secretary. The
signature of any such officers on the Warrants may be manual or
facsimile.
Warrants bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or
any one of them shall have ceased to hold such offices prior to the
delivery of such Warrants or did not hold such offices on the date
of this Agreement.
Warrants shall be dated as of the date of counter-
signature thereof by the Warrant Agent (as provided below) either
upon initial issuance or upon division, exchange, substitution or
transfer.<PAGE>
<PAGE>
Section 3. Countersignature of Warrants. The Warrants shall
be countersigned by the Warrant Agent (or 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.
The Warrants may be countersigned, however, by the Warrant Agent
(or by its successor as warrant agent hereunder) and may be
delivered by the Warrant Agent, notwithstanding that the persons
whose manual or facsimile signatures appear thereon as proper
officers of the Company shall have ceased to be such proper
officers at the time of such countersignature, issuance or
delivery. The Warrant Agent shall, upon written instructions of
the Chairman of the Board, the President, or the Secretary or the
Assistant Secretary of the Company, countersign, issue and deliver
the Warrants entitling the Holders thereof to purchase the Warrant
Shares and shall countersign and deliver the Warrants as otherwise
provided in this Agreement.
Section 4. Exchange of Warrant Certificates. Each Warrant
certificate may be exchanged for another certificate or
certificates entitling the Holder thereof to purchase a like
aggregate number of Warrant Shares as the certificate or
certificates surrendered then entitle such holder to purchase. Any
Holder desiring to exchange a Warrant certificate or certificates
shall make such request in writing delivered to the Warrant Agent,
and shall surrender, properly endorsed, the certificate or
certificates to be so exchanged. Thereupon, the Warrant Agent
shall countersign and deliver to the person entitled thereto a new
Warrant certificate or certificates, as the case may be, as so
requested.
Section 5. Terms of Warrants; Exercise of Warrants.
5.1 Terms of Warrants. Subject to the terms of this
Agreement, (i) each Holder of a Class C Warrant shall have the
right, which may be exercised commencing September 1, 1996 and
until the close of business on April 30, 1999 (the "Expiration
Date") to purchase from the Company the number of fully paid and
nonassessable Warrant Shares which the Holder may at the time be
entitled to purchase on exercise of such Class C Warrants and (ii)
each Holder of a Class D Warrant shall have the right, which may be
exercised commencing September 1, 1996 and until the close of
business on the Expiration Date to purchase from the Company the
number of fully paid and nonassessable Warrant Shares which the
Holder may at the time be entitled to purchase on exercise of such
Class D Warrants.
5.2 Exercise of Warrants. A Warrant may be exercised
upon surrender to the Company, at the principal office of the
Warrant Agent in New York, New York, of the certificate or
certificates evidencing the Warrants to be exercised, together with
the form of election to purchase on the reverse thereof duly<PAGE>
<PAGE>
filled in and signed, and upon payment to the Warrant Agent, for
the account of the Company, of the Exercise Price (as defined in
and determined in accordance with the provisions of Sections 9 and
10 hereof), for the number of Warrant Shares in respect of which
such Warrants are then exercised. Payment of the aggregate
Exercise Price shall be made in cash or by check.
Subject to Section 6 hereof, upon such surrender of the
Warrants and payment of the Exercise Price as aforesaid, the
Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate or
certificates for the number of full Warrant Shares so purchased
upon the exercise of such Warrants, together with such cash as
provided in Section 11 hereof. Such certificate or certificates
shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record
of such Warrant Shares as of the date of the surrender of such
Warrants and payment of the Exercise Price, as aforesaid; provided,
however, that if, at the date of surrender of such Warrants and
payment of such Exercise Price, the transfer books for the Warrant
Shares or other class of stock purchasable upon the exercise of
such Warrants shall be closed, the certificates for the Warrant
Shares in respect of which such Warrants are then exercised shall
be issuable as of the date on which such books shall next be opened
and until such date the Company shall be under no duty to deliver
any certificate for such Warrant Shares; provided further, however,
that the transfer of books or record, unless otherwise required by
law, 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 Holders thereof, either in
full or from time to time in part and, in the event that a
certificate evidencing the Warrants is exercised in respect of less
than all of the Warrant Shares purchasable on such exercise at any
time prior to the date of expiration of the Warrants, a new
certificate evidencing the remaining Warrant or Warrants will be
issued, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrant certificate or
certificates pursuant to the provisions of this Section 5 and of
Section 3 hereof and the Company, whenever required by the Warrant
Agent, will supply the Warrant certificates duly exercised on
behalf of the Company for such purpose.
In certain cases, the sale of securities by the Company
upon exercise of the Warrants could violate the securities laws of
the United States, certain states or other jurisdictions. Neither
the Company nor the Warrant Agent will be required to honor the
exercise of the Warrants if, in the opinion of counsel, the sale of
securities upon such exercise would be unlawful.
<PAGE>
<PAGE>
Section 6. Payment of Taxes. The Company will pay all
documentary stamp taxes, if any, attributable to the initial
issuance of the Warrant Shares upon the exercise of the Warrants;
provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any Warrants or certificates
for Warrant Shares in a name other than that of the Holder of the
Warrants in respect of which such Warrant Shares are issued.
Section 7. Mutilated or Missing Warrants. In case of any of
the certificates evidencing the Warrants shall be mutilated, lost,
stolen or destroyed, the Company may in its discretion issue, and
the Warrant Agent shall 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 indemnity, if requested, also satisfactory to them.
An applicant for such substitute Warrant certificate shall also
comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may
prescribe.
Section 8. Reservation of Warrant Shares; Purchase of
Warrants.
8.1 Reservation of Warrant Shares. There have been
reserved, and the Company shall at all times keep reserved, out of
its authorized Common Stock, a number of shares of Common Stock
sufficient to provide for the exercise of the rights of purchase
represented by the outstanding Warrants. American Stock Transfer
& Trust Company, the transfer agent (the "Transfer Agent") for the
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, will be irrevocably authorized
and directed at all times to reserve such number of authorized
shares as shall be requisite for such purpose. The Company will
keep a copy of this Agreement on file with the Transfer Agent for
the 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 Transfer
Agent is hereby irrevocably authorized to requisition from time to
time from the Company the stock certificates required to honor
outstanding Warrants upon exercise thereof in accordance with the
terms of this Agreement. The Company will supply such Transfer
Agent with duly executed stock certificates for such purposes and
will provide or otherwise make available any cash which may be
payable
<PAGE>
<PAGE>
as provided in Section 11 hereof. All Warrants surrendered in
exercise of the rights thereby evidenced shall be canceled by the
Warrant Agent and shall thereafter be delivered to the Company.
8.2 Purchase of Warrants by the Company. The Company
shall have the right, except as limited by law, other agreement or
herein, to purchase or otherwise acquire the Warrants at such
times, in such manner and for such consideration as it may deem
appropriate.
8.3 Cancellation of Warrants. In the event the Company
shall purchase or otherwise acquire the Warrants, the same shall
thereupon be delivered to the Warrant Agent and be canceled by it
and retired. The Warrant Agent shall cancel any Warrant
surrendered for exchange, substitution, transfer or exercise in
whole or in part.
Section 9. Exercise Price.
9.1 Class C Exercise Price. The price per share at which
Warrant Shares shall be purchasable upon exercise of the Class C
Warrants (the "Class C Exercise Price") shall be $1.25, subject to
adjustment pursuant to Section 10 hereof.
9.2 Class D Exercise Price. The price per share at which
Warrant Shares shall be purchasable upon exercise of the Class D
Warrants (the "Class D Exercise Price") shall be $1.25, subject to
adjustment pursuant to Section 10 hereof.
Section 10. Adjustment of Exercise Price and Number of
Warrant Shares and Extension for Expiration Date. The number and
kind of securities purchasable upon the exercise of each Warrant
and the Exercise Price shall be subject to adjustment from time to
time upon the happening of certain events, as hereinafter defined.
10.1 Mechanical Adjustments. The number of Warrant
Shares purchasable upon the exercise of each Warrant and the
Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company, the
number of the Warrant Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the
Holder of each Warrant shall be entitled to receive the kind and
number of Warrant Shares or other securities of the Company which
he would have owned or have been entitled to
<PAGE>
<PAGE>
receive after the happening of any of the events described above,
had such Warrant been exercised immediately prior to the happening
of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent in
the number of Warrant Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of
this paragraph (b) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations shall be made to the nearest one-thousandth of a
share.
(c) Whenever the number of Warrant Shares purchasable
upon the exercise of each Warrant is adjusted, as herein provided,
the Exercise Price payable upon exercise of each Warrant shall be
adjusted by multiplying such Exercise Price immediately prior to
such adjustment by a fraction, of which the numerator shall be the
number of Warrant Shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment, and of which the
denominator shall be the number of Warrant Shares so purchasable
immediately thereafter.
(d) For the purpose of this Section 10.1, the term
"shares of Common Stock" shall mean (i) the class of stock
designated as the Common Stock of the Company at the date of this
Agreement, or (ii) any other class of stock resulting from
successive changes or reclassification of such shares consisting
solely of changes in par value, or from par value to no par value,
or from no par value to par value. In the event that, at any time,
as a result of an adjustment made pursuant to paragraph (a) above,
the Holders shall become entitled to purchase any shares of the
Company other than shares of Common Stock, thereafter, the number
of such other shares so purchasable upon exercise of each Warrant
and the Exercise Price of such shares shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
Warrant Shares contained in paragraph (a) above, and the provisions
of this Agreement with respect to the Warrant Shares, shall apply
on like terms to any such other shares.
10.2 Notice of Adjustment. Whenever the number of
Warrant Shares purchasable upon the exercise of each Warrant or the
Exercise Price of such Warrant Shares is adjusted, as herein
provided, the Company shall cause the Warrant Agent promptly to
mail by first class mail, postage prepaid, to each Holder of notice
of such adjustment or adjustments and shall deliver to the<PAGE>
<PAGE>
Warrant Agent a certificate of a firm of independent public
accountants selected by the Board of Directors of the Company (who
may be the regular accountants employed by the Company) setting
forth the number of Warrant Shares purchasable upon the exercise of
each Warrant and the Exercise Price of such Warrant Shares after
such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by
which such adjustment was made. Such certificate shall be
conclusive of the correctness of such adjustment. The Warrant
Agent shall be entitled to rely on such certificate and shall be
under no duty or responsibility with respect to any such
certificate, except to exhibit the same, from time to time, to any
Holder desiring an inspection thereof during reasonable business
hours. The Warrant Agent shall not at any time be under any duty
or responsibility to any Holders to determine whether any facts
exist which may require any adjustment of the Exercise Price or the
number of Warrant Shares or other stock or property purchasable on
exercise thereof, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed
in making such adjustment.
10.3 No Adjustment for Dividends. Except as provided in
Section 10, no adjustment in respect of any dividends shall be made
during the term of a Warrant or upon the exercise of a Warrant.
10.4 Preservation of Purchase Rights Upon
Reclassification, Consolidation, etc. In case of any consolidation
of the Company with or merger of the Company into another
corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the
Warrant Agent an agreement that each Holder shall have the right
thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of each Warrant the
kind and amount of shares and other securities and property which
he would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale or conveyance had
such Warrant been exercised immediately prior to such action. The
Company shall mail by first class mail, postage prepaid, to each
holder, notice of the execution of any such agreement. Such
agreement shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustment provided for in
this Section 10. The provisions of this Section 10.4 shall
similarly apply to successive consolidations, mergers, sales or
conveyances. The Warrant Agent shall be under no duty or
responsibility to determine the correctness of any provisions
contained in any such agreement relating either to the kind or
amount of shares of stock or other<PAGE>
<PAGE>
securities or property receivable upon exercise of Warrants or with
respect to the method employed and provided therein for any
adjustments.
10.5 Statement on Warrants. Irrespective of any
adjustments in the Exercise Price or the number or kind of shares
purchasable upon the exercise of the Warrants, Warrants theretofore
or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially
number pursuant to this Agreement.
10.6 Reduction of Exercise Price, Extension of
Expiration Date and Acceleration of Exercise. The Company is
hereby authorized to reduce the Exercise Price and/or extend the
Expiration Date of each class of Warrants by resolution of its
Board of Directors. The reduction of the Exercise Price may, but
is not required to be, for a period expiring prior to the
Expiration Date (that is, the Company may reduce the Exercise Price
for a limited period of time after which it may readjust upward,
but no higher than the initial Exercise Price). In addition, the
Company, in its discretion and at the request of a Holder, may
accelerate the date upon which such Holder's Warrants may be
exercised.
Section 11. Fractional Interests. The Company shall not be
required to issue fractional Warrant Shares on the exercise of the
Warrants. If more than one Warrant shall be presented to exercise
in full at the same time by the same Holder, the number of full
Warrant Shares which shall be issuable upon the exercise thereof
shall be computed on the basis of the aggregate number of Warrant
Shares purchasable on exercise of the Warrants so presented. If
any fraction of a Warrant Share would, except for the provisions of
this Section 11, be issuable on the exercise of any Warrant (or
specified portion thereof), the Company shall pay an amount in cash
equal to the then current Exercise Price per Warrant Share,
multiplied by such fraction.
Section 12. No Rights as Shareholders; Notices to Holders.
Nothing contained in this Agreement or in any of the Warrants shall
be construed as conferring upon the Holders or their transferees
the right to vote or to receive dividends or to consent to or
receive notice as shareholders in respect of any meeting of
shareholders for the election of director of the Company or any
other matter, or any rights whatsoever as shareholders of the
Company. If, however, at any time prior to exercise of the
Warrants, any of the following events shall occur:
(a) the Company shall declare any dividend payable in
any securities upon its shares of Common Stock or make any
distribution (other than a cash dividend on a dividend payable in
additional shares of Common Stock) to the holders of its shares of
Common Stock; or <PAGE>
<PAGE>
(b) the Company shall offer to the holders of its shares
of Common Stock any additional shares of Common Stock or securities
convertible into shares of Common Stock or any right to subscribe
thereto; or
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger, or
sale of all or substantially all of its property, assets and
business as an entirety) shall be proposed;
then in any one or more of said events, the Company shall give
notice in writing of such event to the Warrant Agent and the
Holders as provided in Section 18 hereof.
Section 13. Disposition of Proceeds on Exercise of Warrants;
Inspection of Warrant Agency Agreement. The Warrant Agent shall
account promptly to the Company with respect to the Warrants
exercised and concurrently pay to the Company all monies received
by the Warrant Agent for the purchase of the Warrant Shares through
the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and
any notices given or received hereunder available for inspection by
the Holders during normal business hours at its principal office in
New York, New York. The Company shall supply the Warrant Agent,
from time to time, with such numbers of copies of this Agreement as
the Warrant Agent may request.
Section 14. Merger or Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent may be
merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Warrant
Agent shall be a party, or any corporation 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 16 hereof. 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 the case at that time any of the
Warrant shall not have been countersigned, any successor to the
Warrant Agent may countersign
such Warrants either in the name of the predecessor Warrant Agent
or in the name of the successor Warrant Agent; and in all such
cases Warrants shall have the full force provided in the Warrants
and in this Agreement.
<PAGE>
<PAGE>
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 deliver, the Warrant Agent may adopt the
countersignatures under its prior name and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall
not 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 full force provided in the
Warrants and in this Agreement.
Section 15. Concerning the Warrant Agent. The Warrant Agent
undertakes the duties and obligation imposed by this Agreement upon
the following terms and conditions, by all of which the Company and
the Holders, by their acceptance of Warrants, shall be bound:
15.1 Correctness of Statements. The statements
contained herein and in the Warrants shall be taken as statements
of the Company and the Warrant Agent assumes no responsibility for
the correctness of any of the same except such as describe the
Warrant Agent or action taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrants
except as herein otherwise provided.
15.2 Breach of Covenants. The Warrant Agent shall not
be responsible for any failure of the Company to comply with the
covenants contained in this Agreement or in the Warrants to be
complied with by the Company.
15.3 Performance of Duties. 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 (which shall not include its employees) and
shall not be responsible for the misconduct of any agent appointed
with due care.
15.4 Reliance on Counsel. The Warrant Agent may consult
at any time with legal counsel satisfactory to it (who may be
counsel to the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or to any Holder 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.
15.5 Proof of Actions Taken. Whenever in the
performance of its duties under this Agreement the Warrant Agent
shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be
deemed conclusively to be proved and established by a certificate
signed by the Chairman of the Board, the President, a Vice <PAGE>
<PAGE>
President, the Treasurer or the Secretary or Assistant Secretary of
the Company and delivered to the Warrant Agent; and such
certificate shall be full authorization to the Warrant Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
15.6 Compensation. The Company agrees to pay the
Warrant Agent reasonable compensation for all services rendered by
the Warrant Agent in the performance of its duties under 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 performance of its duties
under this Agreement, and to indemnify the Warrant Agent and hold
it harmless against any and all liabilities, including judgments,
costs and counsel fees, for anything done or omitted by the Warrant
Agent in the performance of its duties under this Agreement except
as a result or the Warrant Agent's negligence or bad faith.
15.7 Legal Proceedings. 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 expense
unless the Company or one or more Holders shall furnish the Warrant
Agent with reasonable security and indemnity for any cost 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 Holders, as their
respective rights or interests may appear.
15.8 Other Transactions in Securities of Company. The
Warrant Agent, any stockholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Warrants, or
other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and
freely as though it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or
for any other legal entity.
15.9 Liability of Warrant Agent. The Warrant Agent
shall act hereunder solely as agent, 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<PAGE>
<PAGE>
doing in connection with this Agreement except for its own
negligence or bad faith.
15.10 Reliance on Documents. The Warrant Agent will not
incur any liability or responsibility to the Company or to any
Holder for any action taken in reliance on any notice, resolution,
waiver, consent, order, certificate, or other paper, document or
instrument reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
15.11 Validity of Agreement. The Warrant Agent shall
not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due
execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant (except its countersignature
thereof); nor shall the Warrant Agent by any act hereunder be
deemed to make any representation or warranty as to the
authorization or reservation of any Warrant Shares (or other stock)
to be issued pursuant to this Agreement or any Warrant, or as to
whether any Warrant Shares (or other stock) will, when issued, be
validly issued, fully paid and nonassessable, or as to the Exercise
Price or the number or amount of Warrant Shares or other securities
or other property issuable upon exercise of any Warrant.
15.12 Instructions from the Company. The Warrant Agent
is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from the
Chairman of the Board, the President, a Vice President, the
Secretary or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties,
and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with the instructions of
any such officer or officers.
Section 16. Change of Warrant Agent. The Warrant Agent may
resign and be discharged from its duties under this Agreement by
giving to the Company thirty (30) days' notice in writing. The
Warrant Agent may be removed by like notice to the Warrant Agent
from the Company. 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
thirty (30) days after such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any Holder (who shall with such
notice submit his Warrant for inspection by the Company), then any
Holder 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 such a court,
shall be a bank or trust company, in good standing,<PAGE>
<PAGE>
incorporated under the laws of the United States of America or any
state thereof or the District of Columbia and having at the time of
its appointment as warrant agent a combined capital and surplus of
at least $2,000,000. After appointment, the successor warrant
agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant
Agent without further act or deed; but the former Warrant Agent
shall deliver and transfer to the successor warrant agent any
property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the
purpose. Failure to file any notice provided for in this Section
16, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Warrant Agent or
the appointment to the successor warrant agent, as the case may be.
In the event of such resignation or removal, the successor warrant
agent shall mail, first class, to each Holder, written notice of
such successor warrant agent.
Section 17. Identity of Transfer Agent. Forthwith upon the
appointment of any subsequent transfer agent for the Common Stock,
or any other shares of the Company's capital stock issuable upon
the exercise of the Warrants, the Company will file with the
Warrant Agent a statement setting forth the name and address of
such subsequent transfer agent.
Section 18. Notices. Any notices pursuant to this Agreement
by the Company or by any Holder to the Warrant Agent, or by the
Warrant Agent or by any Holder to the Company, shall be in writing
and shall be mailed first class, postage prepaid, or delivered (a)
to the Company, at its offices at 6540 South Pecos Road, Suite 103,
Las Vegas, Nevada 89120, with copies to Werbel & Carnelutti, a
Professional Corporation, 711 Fifth Avenue, New York, New York
10022, Attention: Stephen M. Davis, Esq.; or (b) to the Warrant
Agent, American Stock Transfer & Trust Company, 40 Wall Street, New
York, New York 10005. Each party hereto may from time to time
change the address to which notices to it are to be delivered or
mailed hereunder by notice in writing to the other party.
Any notice mailed pursuant to this Agreement by the
Company or the Warrant Agent to the Holders shall be in writing and
shall be mailed first class, postage prepaid, or delivered to such
Holders at their respective addresses on the books of the Warrant
Agent.
Section 19. Supplements and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this
Agreement, without the approval of any Holder in order to cure any
ambiguity or error or to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provision herein or in the registration statement pertaining
to the Warrants, or to make any other provisions in<PAGE>
<PAGE>
regard to matters or questions arising hereunder which the Company
and the Warrant Agent may deem necessary or desirable and which
shall not adversely affect the interest of the Holders.
Section 20. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 21. Merger or Consolidation of the Company. The
Company will not merge or consolidate with or into any other
corporation unless the corporation resulting from such merger or
consolidation (if not the Company) shall expressly assume, by
supplemental agreement satisfactory in form to the Warrant Agent
and executed and delivered to the Warrant Agent, the due and
punctual performance and observance of each and every covenant and
condition of this Agreement to be performed and observed by the
Company.
Section 22. Applicable Law. This Agreement and each Warrant
issued hereunder shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to
principles of conflict of laws. The Company hereby agrees to
accept service of process by notice given to it pursuant to the
provisions of Section 18.
Section 23. Benefits of this Agreement. Nothing in this
Agreement shall be construed or give any person or corporation
other than the Company, the Warrant Agent, and the Holders any
legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the Holders.
Section 24. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
Section 25. Captions. The captions of the Sections of this
Agreement have been inserted for convenience only and shall have no
substantive effect.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restated Warrant Agency Agreement to be duly
executed, all as of the day and year first above written.
LEC TECHNOLOGIES, INC.
By: /s/ Michael F. Daniels
-------------------------------
Name: Michael F. Daniels
Title: Chief Executive Officer
and President
[CORPORATE SEAL]
Attest:
- -----------------------------------
AMERICAN STOCK TRANSFER
& TRUST COMPANY, as Warrant Agent
By: /s/ Herbert J. Lemmer
---------------------------------
Name: Herbert J. Lemmer
Title: Vice President
[CORPORATE SEAL]
Attest:
/s/ Susan Silber
- -----------------------------
114405<PAGE>
<PAGE>
EXHIBIT A
Warrants
CLASS C COMMON STOCK PURCHASE WARRANTS
LEC TECHNOLOGIES, INC.
Incorporated Under the Laws of the State of Delaware
THIS CERTIFIES THAT, for value received, , the
registered holder hereof or registered assigns (the "Holder"), is
entitled to purchase from LEC TECHNOLOGIES, INC. , a Delaware
corporation (the "Company"), commencing on September 1, 1996 and
until the close of business on April 30, 1999, at the purchase
price of $1.25 (the "Exercise Price") the number of shares of
Common Stock of the Company (the "Common Stock"), which is equal to
the number of Warrants set forth above. The number of shares
purchasable upon exercise of this Warrant and the Exercise Price
per share shall be subject to adjustment from time to time as set
forth in the Amended and Restated Warrant Agency Agreement dated as
of March 3, 1998 by and between the Company and American Stock
Transfer & Trust Company (the "Warrant Agency Agreement") executed
in connection herewith, and these Warrants are subject to
repurchase by the Company on the terms and conditions contained in
such Warrant Agency Agreement.
This Warrant may be exercised in whole or in part by
presentation of this Warrant with the Purchase Form on the reverse
side hereof duly executed and simultaneous payment of the Exercise
Price (subject to adjustment) at the principal office of American
Stock Transfer & Trust Company (the "Warrant Agent") in New York,
New York. Payment of such price shall be made at the option of the
Holder hereof in cash or by check.
This Warrant is one of a duly authorized issue of
Warrants evidencing the right to purchase an aggregate of up to
2,319,993 shares of Common Stock and is issued under and in
accordance with the Warrant Agency Agreement and is subject to the
terms and provisions contained in the Warrant Agency Agreement, to
all of which the Holder of this Warrant by acceptance hereof
consents. A copy of the Warrant Agency Agreement may be obtained
for inspection by the Holder hereof upon written request to the
Warrant Agent.<PAGE>
<PAGE>
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder hereof a new Warrant in
respect of the shares of Common Stock as to which this Warrant
shall not have been exercised. This Warrant may be exchanged at
the office of the Warrant Agent by surrender of this Warrant
properly endorsed either separately or in combination with one or
more other Warrants for one or more new Warrants entitling the
Holder thereof to purchase the same aggregate number of shares as
were purchasable on exercise of the Warrant or Warrants exchanged.
No fractional shares will be issued upon the exercise of this
Warrant, but the Company shall pay the cash value of any fraction
upon the exercise of one or more Warrants. This Warrant is
transferable at the office of the Warrant Agent in New York, New
York, in the manner and subject to the limitations set forth in the
Warrant Agency Agreement.
The Holder hereof may be treated by the Company, the
Warrant Agent and all other persons dealing with this Warrant as
the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books,
the Company may treat the Holder hereof as the owner for all
purposes.
This Warrant does not entitle any Holder hereof to any of
the rights of a shareholder of the Company.
Unless and until so surrendered, this certificate shall
not be deemed for all purposes (subject to the further provisions
of this paragraph) to evidence the ownership of the whole number of
shares of Common Stock into which the Warrants evidenced hereby
have been so converted. Unless and until this certificate shall be
so surrendered, dividends or distributions payable to holders of
record of shares of Common Stock shall not be paid to the holder of
this certificate.
<PAGE>
<PAGE>
This Warrant shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant
Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST COMPANY, Warrant Agent
By:
- ---------------------------------
LEC TECHNOLOGIES, INC.
By:
------------------------------
President
Attest:
------------------------------
<PAGE>
<PAGE>
LEC TECHNOLOGIES, INC.
Purchase Form
Mailing Address:
- -------------------------- -----------------------
- -------------------------- -----------------------
- -------------------------- -----------------------
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for, and to
purchase thereunder, shares of the stock provided for therein, and
requests that certificates for such shares to be issued in the name
of:
- ----------------------------------------------------------------
(Please Print Name, Address and Social Security No.)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
and, if said number of shares shall not be all the shares
purchasable thereunder, that a new Warrant Certificate for the
balance remaining of the shares purchasable under the within
Warrant Certificate registered in the name of the undersigned
Warrantholder or his Assignee as below indicated and delivered to
the address stated below:
DATED: , 199_
Name of Warrantholder or
Assignee
- -----------------------------------------------------------------
(Please Print)
Address:
- -----------------------------------------------------------------
Signature:
- -----------------------------------------------------------------
Signature Guaranteed: NOTE: The above signature must
correspond with the name as written
upon the face of this Warrant
Certificate in every particular,
without alteration or enlargement
or any change whatever, unless this
Warrant has been assigned.<PAGE>
<PAGE>
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto (Name and Address of
Assignee Must Be Printed or Typewritten) the within Warrant, hereby
irrevocably constituting and appointing Attorney
to transfer said Warrant on the books of the Company, with full
power of substitution in the premises.
DATED: , 199_
--------------------------
Signature of Registered Holder
Signature Guaranteed: NOTE: The above signature must
correspond with the name as
written on the face of this
Warrant Certificate in every
particular, without alteration
or enlargement or any change
whatever.
<PAGE>
<PAGE>
EXHIBIT B
Warrants
CLASS D COMMON STOCK PURCHASE WARRANTS
LEC TECHNOLOGIES, INC.
Incorporated Under the Laws of the State of Delaware
THIS CERTIFIES THAT, for value received, , the
registered holder hereof or registered assigns (the "Holder"), is
entitled to purchase from LEC TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), commencing September 1, 1996 and until
the close of business on April 30, 1999, at the purchase price of
$1.25 (the "Exercise Price") the number of shares of Common Stock
of the Company (the "Common Stock"), which is equal to the number
of Warrants set forth above. The number of shares purchasable upon
exercise of this Warrant and the Exercise Price per share shall be
subject to adjustment from time to time as set forth in the Amended
and Restated Warrant Agency Agreement dated as of March 3, 1998 by
and between the Company and American Stock Transfer & Trust Company
(the "Warrant Agency Agreement") executed in connection herewith,
and these Warrants are subject to repurchase by the Company on the
terms and conditions contained in such Warrant Agency Agreement.
This Warrant may be exercised in whole or in part by
presentation of this Warrant with the Purchase Form on the reverse
side hereof duly executed and simultaneous payment of the Exercise
Price (subject to adjustment) at the principal office of American
Stock Transfer & Trust Company (the "Warrant Agent") in New York,
New York. Payment of such price shall be made at the option of the
Holder hereof in cash or by check.
This Warrant is one of a duly authorized issue of
Warrants evidencing the right to purchase an aggregate of up to
2,319,993 shares of Common Stock and is issued under and in
accordance with the Warrant Agency Agreement and is subject to the
terms and provisions contained in the Warrant Agency Agreement, to
all of which the Holder of this Warrant by acceptance hereof
consents. A copy of the Warrant Agency Agreement may be obtained
for inspection by the Holder hereof upon written request to the
Warrant Agent.
<PAGE>
<PAGE>
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder hereof a new Warrant in
respect of the shares of Common Stock as to which this Warrant
shall not have been exercised. This Warrant may be exchanged at
the office of the Warrant Agent by surrender of this Warrant
properly endorsed either separately or in combination with one or
more other Warrants for one or more new Warrants entitling the
Holder thereof to purchase the same aggregate number of shares as
were purchasable on exercise of the Warrant or Warrants exchanged.
No fractional shares will be issued upon the exercise of this
Warrant, but the Company shall pay the cash value of any fraction
upon the exercise of one or more Warrants. This Warrant is
transferable at the office of the Warrant Agent in New York, New
York, in the manner and subject to the limitations set forth in the
Warrant Agency Agreement.
The Holder hereof may be treated by the Company, the
Warrant Agent and all other persons dealing with this Warrant as
the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books,
the Company may treat the Holder hereof as the owner for all
purposes.
This Warrant does not entitle any Holder hereof to any of
the rights of a shareholder of the Company.
Unless and until so surrendered, this certificate shall
not be deemed for all purposes (subject to the further provisions
of this paragraph) to evidence the ownership of the whole number of
shares of Common Stock into which the Warrants evidenced hereby
have been so converted. Unless and until this certificate shall be
so surrendered, dividends or distributions payable to holders of
record of shares of Common Stock shall not be paid to the holder of
this certificate.
<PAGE>
<PAGE>
This Warrant shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant
Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST COMPANY, Warrant Agent
By:
- ----------------------------------
LEC TECHNOLOGIES, INC.
By:
------------------------------
President
Attest:
------------------------------
<PAGE>
<PAGE>
LEC TECHNOLOGIES, INC.
Purchase Form
Mailing Address:
- ----------------------- -------------------------
- ----------------------- -------------------------
- ----------------------- -------------------------
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for, and to
purchase thereunder, shares of the stock provided for therein, and
requests that certificates for such shares to be issued in the name
of:
- -----------------------------------------------------------------
(Please Print Name, Address and Social Security No.)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
and, if said number of shares shall not be all the shares
purchasable thereunder, that a new Warrant Certificate for the
balance remaining of the shares purchasable under the within
Warrant Certificate registered in the name of the undersigned
Warrantholder or his Assignee as below indicated and delivered to
the address stated below:
DATED: , 199_
Name of Warrantholder or
Assignee
- -----------------------------------------------------------------
(Please Print)
Address:
- -----------------------------------------------------------------
Signature:
- -----------------------------------------------------------------
Signature Guaranteed: NOTE: The above signature must
correspond with the name as written
upon the face of this Warrant
Certificate in every particular,
without alteration or enlargement
or any change whatever, unless this
Warrant has been assigned.
<PAGE>
<PAGE>
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto (Name and Address of
Assignee Must Be Printed or Typewritten) the within Warrant, hereby
irrevocably constituting and appointing Attorney
to transfer said Warrant on the books of the Company, with full
power of substitution in the premises.
DATED: , 199_
------------------------------
Signature of Registered Holder
Signature Guaranteed: NOTE: The above signature must
correspond with the name as
written on the face of this
Warrant Certificate in every
particular, without alteration
or enlargement or any change
whatever.
114578
