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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR
QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT IN COMPLIANCE
WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND THE REGISTRATION OR
QUALIFICATION REQUIREMENTS OF SUCH STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION.
WARRANT NO. LL-2 Originally Issued December 31, 1999,
Amended and Restated as of August 17, 2000
SIMULA, INC.
AMENDED AND RESTATED WARRANT
TO PURCHASE 850,000 SHARES OF COMMON STOCK
FOR VALUE RECEIVED, SIMULA, INC., an Arizona corporation (the
"COMPANY"), hereby certifies that LEVINE LEICHTMAN CAPITAL PARTNERS II, L.P., a
California limited partnership, or its successors or assigns (the "HOLDER"), is
entitled to purchase, on the terms and subject to the conditions contained
herein, 850,000 shares (the "WARRANT SHARES") of the Company's common stock,
$.01 par value per share ("COMMON STOCK"), at the exercise price of $1.6250 per
Warrant Share (the "WARRANT PURCHASE PRICE") at any time and from time to time
during the Exercise Period (as such term is defined below). The number of
Warrant Shares and the Warrant Purchase Price are subject to adjustment as
provided in SECTION 4.
This Warrant was originally issued on December 31, 1999 (the "ORIGINAL
ISSUE DATE"), as Warrant (No. LL-1) to Purchase 850,000 Shares of Common Stock,
in connection with the consummation of the transactions contemplated by the
Securities Purchase Agreement dated as of December 31, 1999 (as amended by a
First Amendment to Securities Purchase Agreement dated as of May 25, 2000, and
as further amended, supplemented or otherwise modified and in effect from time
to time, the "SECURITIES PURCHASE AGREEMENT"), by and between the Company and
certain of its Affiliates, on the one hand, and the Holder, on the other hand,
and has been amended and restated on the terms and conditions stated herein in
connection with the execution and delivery of a Second Amendment to Securities
Purchase Agreement dated as of August 17, 2000 (the "SECOND AMENDMENT"). All
references below to the Securities Purchase Agreement shall mean the Securities
Purchase Agreement as amended by the Second Amendment.
This Warrant is subject to the following terms and conditions:
1. DEFINITIONS. Unless otherwise indicated in this Warrant,
capitalized terms used and not otherwise defined in this Warrant have the
meanings set forth in the Securities Purchase Agreement. In addition, the
following capitalized terms have the following meanings:
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"COMMON STOCK" has the meaning set forth in the preamble.
"COMPANY" has the meaning set forth in the preamble.
"CONVERTIBLE SECURITIES" means, when used in this Agreement, any
securities or other obligations issued or issuable by the Company or any other
Person that are exercisable or exchangeable for, or convertible into, any
Capital Stock of the Company.
"CURRENT MARKET PRICE" per share of Common Stock means, as of any
specified date on which the Common Stock is publicly traded, the average of the
daily market prices of the Common Stock over the twenty (20) consecutive trading
days immediately preceding (and not including) such date. The 'daily market
price' for each such trading day shall be (i) the closing sales price on such
day on the NYSE or such other principal securities exchange on which the Common
Stock is then listed or admitted to trading or on Nasdaq, as applicable, (ii) if
no sale takes place on such day on any such securities exchange or system, the
average of the closing bid and asked prices, regular way, on such day for the
Common Stock as officially quoted on any such securities exchange or system,
(iii) if the Common Stock is not then listed or admitted to trading on any
securities exchange or system, the last reported sale price, regular way, on
such day for the Common Stock, or if no sale takes place on such day, the
average of the closing bid and asked prices for the Common Stock on such day, as
reported by Nasdaq or the National Quotation Bureau, and (iv) if the Common
Stock is not then listed or admitted to trading on any securities exchange and
if no such reported sale price or bid and asked prices are available, the
average of the reported high bid and low asked prices on such day, as reported
by a reputable quotation service, or a newspaper of general circulation in the
City of Los Angeles, State of California, customarily published on each Business
Day. If the daily market price cannot be determined for the twenty (20)
consecutive trading days immediately preceding such date in the manner specified
in the foregoing sentence, then the Common Stock shall not be deemed to be
publicly traded as of such date.
"DESIGNATED OFFICE" has the meaning set forth in Section 2.1.
"DOJ" has the meaning set forth in Section 3.
"EFFECTIVE DATE" means the Original Issue Date.
"EXCLUDED SECURITIES" means, collectively, (i) shares of capital stock
issued pursuant to a stock dividend or a stock split or other subdivision of
shares; (ii) Common Stock issued upon exercise of this Warrant; (iii) Common
Stock issued by the Company in any public offering registered under the
Securities Act, which offering results in net proceeds to the Company of at
least $10,000,000 and a price per share of Common Stock of not less than the
Warrant Purchase Price then in effect; and (iv) shares of Common Stock issued,
issuable or reserved for issuance to directors, officers and employees of the
Company or any other Company Party in connection with their services as
directors, officers or employees pursuant to any Options issued by the Company
pursuant to any Company Stock Plan which has been duly adopted and approved by
the shareholders of the Company and in existence on the Original Issue Date.
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"EXERCISE NOTICE" has the meaning set forth in Section 2.1.
"EXERCISE PERIOD" means the period commencing on the Effective Date and
ending on (and including) the Expiration Date.
"EXPIRATION DATE" means December 31, 2006.
"FAIR MARKET VALUE" with respect to the Warrant Shares means, as of any
specified date:
(i) if the Common Stock is publicly
traded on such date, the Current Market Price per share; or
(ii) if the Common Stock is not publicly
traded (or deemed not to be publicly traded) on such date, the fair
market value per share of Common Stock as determined by an independent
valuation of the Company, its Subsidiaries and their respective
businesses conducted by an investment banking firm of recognized
national standing selected by the mutual written agreement of the
Company and the Holder; PROVIDED, HOWEVER, that if the Company and the
Holder are unable to mutually agree on any such investment banking firm
within ten (10) days after the date upon which the right or obligation
to select an investment banking firm arises, each of the Holder and the
Company shall, within three (3) Business Days thereafter, select one
investment banking firm, and the two (2) selected firms shall, within
three (3) Business Days of their selection, select a third investment
banking firm which shall make the relevant determination (which
determination shall be final and binding) within ten (10) Business Days
of the submission of this matter to such third firm; and PROVIDED
FURTHER, HOWEVER, that, in determining the fair market value per share
of Common Stock, such investment banking firm shall not give effect or
take into account any "minority discount" but shall value the Company
in its entirety on an enterprise basis.
"FTC" has the meaning set forth in SECTION 3.
"HOLDER" has the meaning set forth in the preamble.
"HSR ACT" has the meaning set forth in SECTION 3.
"OPTIONS" means, when used in this Warrant, any warrants, options or
similar rights to subscribe for or purchase any Capital Stock of the Company,
including, without limitation, any options or similar rights issued or issuable
under any employee stock option plan, pension plan or other employee benefit
plan of the Company.
"OTHER PROPERTY" has the meaning set forth in SECTION 4.5.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder, all as the same shall
be in effect at the time.
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"SECURITIES PURCHASE AGREEMENT" has the meaning set forth in the
preamble of this Warrant.
"WARRANT PURCHASE PRICE" has the meaning set forth in the preamble of
this Warrant (as adjusted in accordance with the terms of this Warrant).
"WARRANT" means this Warrant, any amendment, restatement, supplement or
other modification of this Warrant, and any warrants issued upon transfer,
division or combination of, or in substitution for, this Warrant or any other
such warrant. All such Warrants shall at all times be identical as to terms and
conditions and date, except as to the number of Warrant Shares for which they
may be exercised.
"WARRANT SHARES" has the meaning set forth in the preamble.
2. EXERCISE.
2.1. EXERCISE; DELIVERY OF CERTIFICATES. Subject to the
provisions of Section 3, this Warrant may be exercised at the option of the
Holder, in whole or in part, at any time and from time to time during the
Exercise Period, by (a) delivering to the Company at its principal executive
office (the "DESIGNATED OFFICE") (i) a notice of exercise, in substantially the
form attached hereto (the "EXERCISE NOTICE"), duly completed and signed by the
Holder, and (ii) this Warrant, and (b) paying the Warrant Purchase Price
pursuant to SECTION 2.2 for the number of Warrant Shares being purchased. The
Warrant Shares being purchased under this Warrant will be deemed to have been
issued to the Holder, as the record owner of such Warrant Shares, as of the
close of business on the date on which payment therefor is made by the Holder
pursuant to SECTION 2.2. Stock certificates representing the Warrant Shares so
purchased shall be delivered to the Holder within three (3) Business Days after
this Warrant has been exercised (or, if applicable, after the conditions set
forth in SECTION 3 have been satisfied); PROVIDED, HOWEVER, that in the case of
a purchase of less than all of the Warrant Shares issuable upon exercise of this
Warrant, the Company shall cancel this Warrant and, within three (3) Business
Days after this Warrant has been surrendered, execute and deliver to the Holder
a new Warrant of like tenor representing the number of Warrant Shares that have
not been exercised. Each stock certificate representing the number of Warrant
Shares purchased or purchasable under this Warrant shall be registered in the
name of the Holder or, subject to compliance with Applicable Law, such other
name as shall be designated by the Holder.
2.2. PAYMENT OF WARRANT PRICE. Payment of the Warrant
Purchase Price may be made, at the option of the Holder, by (i) certified or
cashier's check, (ii) wire transfer, (iii) instructing the Company to withhold
and cancel a number of Warrant Shares then issuable upon exercise of this
Warrant with respect to which the excess of the Fair Market Value over the
Warrant Purchase Price for such canceled Warrant Shares is at least equal to the
Warrant Purchase Price for the shares being purchased, (iv) surrender to the
Company of shares of Common Stock previously acquired by the Holder with a Fair
Market Value equal to the Warrant Purchase Price for the shares then being
purchased or (v) any combination of the foregoing. The Company shall issue
fractional shares of Common Stock upon the exercise of this Warrant.
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3. ANTI-TRUST NOTIFICATION. If the Company or the Holder
determines, in its sole judgment upon the advice of counsel, that an exercise of
this Warrant pursuant to the terms hereof would be subject to the provisions of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
ACT"), the Company shall, within seven (7) Business Days after (a) receiving a
notice from the Holder of the applicability of the HSR Act or (b) after such a
determination by the Company, file with the United States Federal Trade
Commission (the "FTC") and the United States Department of Justice (the "DOJ")
the notification and report form and any supplemental information required to be
filed by it pursuant to the HSR Act in connection with the exercise of this
Warrant. Any such notification and report form and supplemental information will
be in full compliance with the requirements of the HSR Act. The Company will
furnish to the Holder promptly (but in no event more than three (3) Business
Days) such information and assistance as the Holder may reasonably request in
connection with the preparation of any filing or submission required to be filed
by the Holder under the HSR Act. The Company shall respond promptly after
receiving any inquiries or requests for additional information from the FTC or
the DOJ (and in no event more than five (5) Business Days after receipt of such
inquiry or request). The Company shall keep the Holder apprised periodically and
at the Holder's request of the status of any communications with, and any
inquiries or requests for additional information from, the FTC or the DOJ. The
Company shall bear all filing or other fees required to be paid by the Company
and the Holder (or the "ultimate parent entity" of the Holder, if any) under the
HSR Act or any other Applicable Law in connection with such filings and all
costs and expenses (including, without limitation, attorneys' fees and expenses)
incurred by the Company and the Holder in connection with the preparation of
such filings and responses to inquiries or requests. In the event that this
SECTION 3 is applicable to any exercise of this Warrant, the purchase by the
Holder of the Warrant Shares subject to the Exercise Notice, and the payment by
the Holder of the Warrant Purchase Price, shall be subject to the expiration or
earlier termination of the waiting period under the HSR Act.
4. ADJUSTMENTS TO THE NUMBER OF WARRANT SHARES AND TO THE WARRANT
PURCHASE PRICE. The number of Warrant Shares for which this Warrant is
exercisable and the Warrant Purchase Price shall be subject to adjustment from
time to time as set forth in this SECTION 4.
4.1. STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at
any time the Company:
(a) pays a dividend or makes any other
distribution with respect to its Common Stock in shares of Common Stock or
shares of any other class or series of Capital Stock,
(b) subdivides its outstanding shares of Common
Stock into a larger number of shares of Common Stock, or
(c) combines its outstanding shares of Common
Stock into a smaller number of shares of Common Stock,
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<PAGE>
then the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior to the record date for such dividend or distribution or the
effective date of such subdivision or combination, as the case may be, shall be
adjusted so that the Holder shall thereafter be entitled to receive upon
exercise of this Warrant the kind and number of shares of Common Stock that the
Holder would have owned or have been entitled to receive immediately after such
record date or effective date, as the case may be, had this Warrant been
exercised immediately prior to such record date or effective date. Any
adjustment made pursuant to this SECTION 4.1 shall become effective immediately
after the effective date of such event, but be retroactive to the record date,
if any, for such event.
Upon any adjustment to the number of Warrant Shares
purchasable upon the exercise of this Warrant as herein provided, the Warrant
Purchase Price per share shall be adjusted by multiplying the Warrant Purchase
Price immediately prior to such adjustment by a fraction, the numerator of which
shall be the number of Warrant Shares purchasable upon the exercise of this
Warrant immediately prior to such adjustment and the denominator of which shall
be the number of Warrant Shares so purchasable immediately thereafter.
4.2. ISSUANCE OF OPTIONS. If at any time the Company
issues (without payment of any consideration) to all holders of outstanding
Common Stock any Options, the Company shall also distribute such Options to the
Holder as if this Warrant had been exercised immediately prior to the effective
date of such issuance.
4.3. DISTRIBUTION OF ASSETS OR SECURITIES. If at any time
the Company makes a distribution to its stockholders (other than in connection
with the liquidation, dissolution or winding up of the Company) of any asset or
security other than those referred to in SECTIONS 4.1, 4.2 OR 4.5, the Warrant
Purchase Price shall be adjusted and shall be equal to the Warrant Purchase
Price in effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution,
MULTIPLIED by a fraction (which shall not be less than zero), the numerator of
which shall be the Fair Market Value per share of Common Stock on the date fixed
for such determination, LESS the then fair market value of the portion of the
assets, or the fair market value of the portion of the securities, as the case
may be, so distributed applicable to one share of Common Stock, and the
denominator of which shall be the Fair Market Value per share of Common Stock.
Such adjustment to the Warrant Purchase Price shall become effective immediately
prior to the opening of business on the day immediately following the date fixed
for the determination of stockholders entitled to receive such distribution.
Upon any adjustment in the Warrant Purchase Price as provided in this SECTION
4.3, the number of shares of Common Stock issuable upon the exercise of this
Warrant shall also be adjusted and shall be equal to the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to such
adjustment MULTIPLIED by a fraction, the numerator of which is the Warrant
Purchase Price in effect immediately prior to such adjustment and the
denominator of which is the Warrant Purchase Price as so adjusted.
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<PAGE>
4.4. ISSUANCE OF EQUITY SECURITIES AT LESS THAN FAIR
MARKET VALUE.
(a) If, at any time after the Original Issue
Date, the Company shall issue or sell (or, in accordance with SECTION 4.4(B),
shall be deemed to have issued or sold) any shares of Common Stock without
consideration or for a consideration per share that is less than the Fair Market
Value per share of Common Stock determined as of the date of such issuance or
sale, then, effective immediately upon such issuance or sale, the Warrant
Purchase Price shall be reduced (calculated to the nearest $.001 and without
regard to any other provisions hereof) to an amount equal to the product
obtained by multiplying (i) the Warrant Purchase Price in effect immediately
prior to such issuance or sale, by (ii) a fraction, the numerator of which shall
be the sum of (A) the product obtained by multiplying (1) the number of shares
of Common Stock outstanding (on a Fully Diluted Basis) immediately prior to such
issuance or sale by (2) the Fair Market Value per share of Common Stock as of
the date of such issuance or sale, PLUS (B) the cash consideration, if any,
received by the Company upon such issuance or sale, and the denominator of which
shall be the product obtained by multiplying (C) the number of shares of Common
Stock outstanding (on a Fully Diluted Basis) immediately after such sale or
issuance, by (D) the Fair Market Value per share of Common Stock as of the date
of such issuance or sale. Upon each such adjustment of the Warrant Purchase
Price hereunder, the number of Warrant Shares which may be obtained upon
exercise of this Warrant shall be increased to the number of shares determined
by multiplying (x) the number of Warrant Shares which could be obtained upon
exercise of such Warrant immediately prior to such adjustment by (y) a fraction,
the numerator of which shall be the Warrant Purchase Price in effect immediately
prior to such adjustment and the denominator of which shall be the Warrant
Purchase Price in effect immediately after such adjustment. Adjustments shall be
made successively whenever such an issuance or sale is made.
(b) For the purpose of determining the adjusted
Warrant Purchase Price under SECTION 4.4(a), the following shall be applicable:
(i) ISSUANCE OF OPTIONS. If the Company
in any manner issues or grants any Options or Convertible Securities
and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such
Convertible Securities is less than the Fair Market Value per share of
Common Stock determined as of the date of such issuance or grant of
such Options, then the total maximum number of shares of Common Stock
issuable upon the exercise of such Options (or upon conversion or
exchange of the total maximum amount of such Convertible Securities
issuable upon the exercise of such Options) shall be deemed to be
outstanding and to have been issued and sold by the Company for such
lower price per share. For purposes of this paragraph, the price per
share for which Common Stock is issuable upon exercise of Options or
upon conversion or exchange of Convertible Securities issuable upon
exercise of Options shall be determined by dividing (A) the total
amount, if any, received or receivable by the Company as consideration
for the issuing or granting of such Options, PLUS the minimum aggregate
amount of additional consideration payable to the Company upon the
exercise of all such Options, PLUS in the case of such Options which
relate to Convertible Securities, the minimum aggregate amount of
additional
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<PAGE>
consideration, if any, payable to the Company upon the issuance or sale
of such Convertible Securities and the conversion or exchange thereof,
by (B) the total maximum number of shares of Common Stock issuable upon
exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options.
(ii) ISSUANCE OF CONVERTIBLE SECURITIES.
If the Company in any manner issues or grants any Convertible
Securities having an exercise or conversion or exchange price per share
of Common Stock which is less than the Fair Market Value per share of
Common Stock determined as of the date of such issuance or sale, then
the maximum number of shares of Common Stock issuable upon the
conversion or exchange of such Convertible Securities shall be deemed
to be outstanding and to have been issued and sold by the Company for
such lower price per share. For purposes of this paragraph, the price
per share for which Common Stock is issuable upon conversion or
exchange of Convertible Securities is determined by dividing (A) the
total amount received by the Company as consideration for the issuance
or sale of such Convertible Securities, PLUS the minimum aggregate
amount of additional consideration, if any, payable to the Company upon
the conversion or exchange thereof, by (B) the total maximum number of
shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities.
(iii) CHANGE IN EQUITY PRICE OR
CONVERSION RATE. If the purchase price provided for in any Options, the
additional consideration, if any, payable upon the issuance, conversion
or exchange of any Convertible Securities or the rate at which any
Convertible Securities are convertible into or exchangeable for Common
Stock changes at any time, then the Warrant Purchase Price in effect at
the time of such change shall be readjusted to the Warrant Purchase
Price which would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed
purchase price, additional consideration or changed conversion rate, as
the case may be, at the time initially granted, issued or sold and the
number of Warrant Shares shall be correspondingly readjusted.
Notwithstanding the foregoing, no such readjustment shall be made to
the Warrant Purchase Price in connection with the following events: (A)
the reduction in the Conversion Price (as defined in the Statement
Pursuant to Section 10-602 of the Arizona Revised Statutes of the
Designations, Preferences, Rights and Privileges of the $7,500,000
Series A Convertible Preferred Stock Par Value $.05 Per Share of
Simula, Inc. as in effect on the date hereof) of the Series A Preferred
resulting solely and directly from the reduction of the market price of
the Common Stock during the period commencing on January 1, 2000,
through and including August 17, 2000; (B) any adjustment to the
Conversion Rate (as such term is defined in the 1997 Indenture) of the
8% Notes resulting solely and directly from (I) the reduction in the
Conversion Price as set forth in clause (A) above, (II) options granted
under the Company's 1994 Stock Option Plan and 1999 Incentive Option
Plan during the period commencing on January 1, 2000, and ending on
August 17, 2000, and (III) the repricing of the Warrant Purchase Price
to $1.6250 per Warrant Share pursuant to this Warrant.
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<PAGE>
(iv) CALCULATION OF CONSIDERATION
RECEIVED. If any Common Stock, Options or Convertible Securities are
issued or sold or deemed to have been issued or sold for cash, then the
consideration received therefor shall be deemed to be the net amount
received by the Company therefor. If any Common Stock, Options or
Convertible Securities are issued or sold for consideration other than
cash, then the amount of consideration received by the Company shall be
the fair value of such consideration determined in good faith by the
Board of Directors of the Company, subject to the Holder's rights under
SECTION 4.8(E).
(v) TREASURY SHARES. The number of
shares of Common Stock outstanding at any time does not include shares
owned or held by or for the account of the Company or any Subsidiary of
the Company, and the disposition of any shares so owned or held shall
be considered an issue or sale of Common Stock.
(vi) RECORD DATE. If the Company takes a
record of the holders of Common Stock for the purpose of entitling them
(A) to receive a dividend or other distribution payable in Common
Stock, Options or Convertible Securities or (B) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such
record date shall be deemed to be the date of the issuance or sale of
the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such distribution or the
date of the granting or such right of subscription or purchase, as the
case may be.
(c) No adjustment shall be made pursuant to this
SECTION 4.4 with respect to the issuance of Excluded Securities.
4.5. REORGANIZATION, RECLASSIFICATION, MERGER,
CONSOLIDATION OR DISPOSITION OF ASSETS. If at any time the Company reorganizes
its capital, reclassifies its capital stock, consolidates, merges or combines
with or into another Person (where the Company is not the surviving corporation
or where there is any change whatsoever in, or distribution with respect to, the
outstanding Common Stock), or the Company sells, transfers or otherwise disposes
of all or substantially all of its property, assets or business to another
Person, other than in a transaction provided for in SECTIONS 4.1, 4.2, 4.3, 4.4
OR 4.6, and, pursuant to the terms of such reorganization, reclassification,
consolidation, merger, combination, sale, transfer or other disposition of
assets, (i) shares of capital stock of the successor or acquiring Person or the
Company (if it is the surviving corporation) or (ii) any cash, shares of stock
or other securities or property of any nature whatsoever (including warrants or
other subscription or purchase rights) in addition to or in lieu of common stock
of the successor or acquiring Person or the Company ("OTHER PROPERTY") are to be
received by or distributed to the holders of Common Stock who are holders
immediately prior to such transaction, then the Holder shall have the right
thereafter to receive, upon exercise of this Warrant, the number of shares of
Common Stock, common stock of the successor or acquiring Person, and/or Other
Property which holder of the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such event would have owned or
received immediately after and as a result of such event. In such event, the
aggregate Warrant Purchase Price otherwise payable for the Warrant Shares
issuable upon exercise of this Warrant shall be allocated among such securities
and Other Property in
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proportion to the respective fair market values of such securities and Other
Property as determined in good faith by the Board of Directors of the Company,
subject to the Holder's rights under SECTION 4.8(E).
In case of any such event, the successor or acquiring Person
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Warrant to be performed and observed by the Company and all the obligations and
liabilities hereunder, subject to such modifications as the Holder may approve
in writing (and memorialized by resolutions of the Board of Directors of the
Company) in order to provide for adjustments of any shares of common stock of
such successor or acquiring Person for which this Warrant thus becomes
exercisable, which modifications shall be as equivalent as practicable to the
adjustments provided for in this SECTION 4.5. For purposes of this SECTION 4,
"common stock of the successor or acquiring Person" shall include stock or other
equity securities, or securities that are exercisable or exchangeable for or
convertible into equity securities, of such corporation, or other securities if
such Person is not a corporation, of any class that is not preferred as to
dividends or assets over any other class of stock of such corporation or Person
and that is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities that are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this SECTION 4.5 shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales, transfers and other
dispositions of assets.
4.6. DISSOLUTION, TOTAL LIQUIDATION OR WINDING-UP. If at
any time there is a voluntary or involuntary dissolution, total liquidation or
winding-up of the Company, other than as contemplated by SECTION 4.5, then the
Company shall cause to be mailed (by registered or certified mail, return
receipt requested, postage prepaid) to the Holder at the Holder's address as
shown on the Warrant register, at the earliest practicable time (and, in any
event, not less than thirty (30) calendar days before any date set for
definitive action) written notice of the date on which such dissolution,
liquidation or winding-up shall take place, as the case may be. Such notice
shall also specify the date as of which the record holders of shares of Common
Stock shall be entitled to exchange their shares for securities, money or other
property deliverable upon such dissolution, liquidation or winding-up, as the
case may be. On such date, the Holder shall be entitled to receive upon
surrender of this Warrant the cash or other property, LESS the Warrant Purchase
Price for this Warrant then in effect, that the Holder would have been entitled
to receive had this Warrant been exercised immediately prior to such
dissolution, liquidation or winding-up. Upon receipt of the cash or other
property, any and all rights of the Holder to exercise this Warrant shall
terminate in their entirety. If the cash or other property distributable in the
dissolution, liquidation or winding-up has a fair market value which is less
than the Warrant Purchase Price for this Warrant then in effect, this Warrant
shall terminate and be of no further force or effect upon the dissolution,
liquidation or winding-up.
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4.7. OTHER DILUTIVE EVENTS. If any event occurs as to
which the other provisions of this SECTION 4 are not strictly applicable but as
to which the failure to make any adjustment would not protect the purchase
rights represented by this Warrant in accordance with the intent and principles
hereof, then, in each such case, the Holder may appoint on behalf of the Company
an investment banking or accounting firm of recognized national standing which
shall give its opinion as to the adjustment, if any, on a basis consistent with
the intent and principles established herein, necessary to preserve the purchase
rights represented by this Warrant. Upon receipt of such opinion, the Company
will mail (by registered or certified mail, return receipt requested, postage
prepaid) a copy thereof to the Holder within three (3) Business Days and shall
make the adjustments described therein. If an adjustment is made pursuant to
this SECTION 4.7, the fees and expenses of such investment banking or accounting
firm shall be borne by the Company. If, however, no adjustment is made, the
Holder shall bear such fees and expenses.
4.8. OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS
SECTION. The following provisions shall be applicable to the adjustments
provided for pursuant to this SECTION 4:
(a) WHEN ADJUSTMENTS TO BE MADE. The adjustments
required by this SECTION 4 shall be made whenever and as often as any specified
event requiring such an adjustment shall occur. For the purpose of any such
adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence.
(b) RECORD DATE. If the Company fixes a record
date of the holders of Common Stock for the purpose of entitling them to (i)
receive a dividend or other distribution payable in shares of Common Stock or in
shares of any other class or series of capital stock or securities convertible
into or exchangeable for Common Stock or shares of any other class or series of
capital stock or (ii) subscribe for or purchase shares of Common Stock or such
other shares or securities, then all references in this SECTION 4 to the date of
the issuance or sale of such shares of Common Stock or such other shares or
securities shall be deemed to be references to that record date.
(c) WHEN ADJUSTMENT NOT REQUIRED. If the Company
fixes a record date of the holders of its Common Stock for the purpose of
entitling them to receive a dividend or distribution or subscription or purchase
rights to which the provisions of SECTION 4.1 would apply, but shall, thereafter
and before the distribution to stockholders, legally abandon its plan to pay or
deliver such dividend, distribution, subscription or purchase rights, then
thereafter no adjustment shall be required by reason of the taking of such
record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(d) NOTICE OF ADJUSTMENTS. Whenever the number
of shares of Common Stock for which this Warrant is exercisable or the Warrant
Purchase Price shall be adjusted or recalculated pursuant to this SECTION 4, the
Company shall, as soon as practicable but in no event more than five (5)
Business Days thereafter, prepare a certificate to be executed by the chief
financial officer of the Company setting forth, in reasonable detail, the event
requiring the adjustment or recalculation and the method by which such
adjustment or
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recalculation was calculated, specifying the number of shares of Common Stock
for which this Warrant is exercisable and (if such adjustment was made pursuant
to SECTION 4.5) describing the number and kind of any other shares of stock or
Other Property for which this Warrant is exercisable, and any related change in
the Warrant Purchase Price, after giving effect to such adjustment,
recalculation or change. The Company shall mail to the Holder (by registered or
certified mail, return receipt requested, postage prepaid) a signed copy of such
certificate prior to the end of the five (5) Business Day period referenced
above. The Company shall keep at the Designated Office copies of all such
certificates and cause them to be available for inspection at the Designated
Office during normal business hours by the Holder or any prospective transferee
of this Warrant designated by the Holder.
(e) CHALLENGE TO GOOD FAITH DETERMINATION.
Whenever the Board of Directors of the Company is required to make a
determination in good faith of the fair market value of this Warrant or the
Warrant Shares under this SECTION 4, such determination may be challenged or
disputed by the Holder. If the Holder wishes to challenge or dispute any such
fair market value determination, it shall furnish written notice to the Company
of its intention to challenge the same. If the Company and the Holder cannot
resolve the dispute between or among themselves, then such dispute shall be
submitted for final determination to an investment banking or accounting firm
pursuant to the valuation procedures set forth in clause (ii) under the
definition of Fair Market Value. The Company shall bear all fees, costs and
expenses incurred by the Company and the Holder in connection with the
determination of the Fair Market Value of this Warrant or the Warrant Shares,
and any challenge or dispute thereof, including, without limitation, all fees
and expenses of any investment banking, valuation or accounting firm(s) engaged
by the Company or the Holder and of attorneys in connection with such
calculation; PROVIDED, HOWEVER, that the Holder shall bear all such fees, costs
and expenses if, after the Holder challenges or disputes any fair market value
determination by the Board of Directors of the Company, the difference between
(a) the fair market value determined pursuant to the valuation procedures set
forth in clause (ii) under the definition of Fair Market Value and (b) the fair
market value determined by the Holder, is less than five percent (5.0%) of the
fair market value determined by the Board of Directors of the Company.
(f) INDEPENDENT APPLICATION. Except as otherwise
provided herein, all subsections of this SECTION 4 are intended to operate
independently of one another (but without duplication). If an event occurs that
requires the application of more than one subsection, all applicable subsections
shall be given independent effect without duplication.
(g) OTHER ANTI-DILUTION PROVISIONS. To the
extent that the initial Holder continues to hold this Warrant, in whole or in
part, at any time at which the Company takes any action which would have
resulted in an adjustment to the exercise price of, and the number of shares of
Common Stock issuable pursuant to, this Warrant (a "DILUTIVE ISSUANCE"), then,
to the extent that the initial Holder has exercised all or any portion of this
Warrant prior to such time, the Company shall immediately issue to the initial
Holder upon such Dilutive Issuance, without the payment of any further
consideration of any kind, such number of additional shares of Common Stock as
shall equal the difference between (i) the number of shares of Common Stock
issuable upon the exercise of this Warrant to the extent held unexercised by the
initial Holder at such time after giving effect
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to the adjustment thereto resulting from such Dilutive Issuance and (ii) the
number of shares of Common Stock which would have been issuable upon exercise of
this Warrant after giving effect to such Dilutive Issuance if this Warrant had
not been exercised in any part.
4.9. FIDUCIARY DUTIES OF COMPANY. The Company and its
directors shall owe the Holder the same fiduciary duties that the Company and
its directors would owe to any holder of Warrant Shares.
5. MISCELLANEOUS.
5.1. RESTRICTIVE LEGEND. This Warrant and, unless
registered under the Securities Act, any Warrant Shares issued upon exercise
hereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legends required under applicable state
securities laws):
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT IN COMPLIANCE WITH
THE REGISTRATION REQUIREMENTS OF SUCH ACT AND THE REGISTRATION
OR QUALIFICATION REQUIREMENTS OF SUCH STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION.
The legend shall be appropriately modified upon issuance of
certificates for shares of Common Stock.
Upon request of the holder of a Common Stock certificate, the
Company shall issue to that holder a new certificate free of the foregoing
legend, if, with such request, such holder provides the Company with an opinion
of counsel that is reasonably acceptable to the Company (PROVIDED that Irell &
Manella LLP shall be deemed to be acceptable to the Company) to the effect that
the securities evidenced by such certificate may be sold without restriction
under Rule 144 (or any other rule permitting resales of securities without
restriction) promulgated under the Securities Act.
5.2. HOLDER ENTITLED TO BENEFITS UNDER OTHER AGREEMENTS.
The Holder of this Warrant is entitled to certain rights, benefits and
privileges with respect to this Warrant and the Warrant Shares pursuant to the
terms of the Securities Purchase Agreement, the Registration Rights Agreement
(it being understood that the Warrant Shares constitute "Registrable Securities"
thereunder), the Investor Rights Agreement and certain other Investment
Documents.
5.3. OTHER COVENANTS. Without limiting the generality of
SECTION 5.2, the Company covenants and agrees that, as long as this Warrant
remains outstanding or any Warrant Shares are issuable with respect to this
Warrant, the Company will perform all of the following covenants for the express
benefit of the Holder: (a) the Warrant Shares shall,
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<PAGE>
upon issuance, be duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock; (b) each Holder shall, upon the exercise thereof in
accordance with the terms hereof, receive good and marketable title to the
Warrant Shares, free and clear of all voting and other trust arrangements to
which the Company is a party or by which it is bound, preemptive rights of any
stockholder, liens, encumbrances, equities and claims whatsoever, including, but
not limited to, all Taxes, Liens and other charges with respect to the issuance
thereof; (c) at all times prior to the Expiration Date, the Company shall have
reserved for issuance a sufficient number of authorized but unissued shares of
Common Stock, or other securities or property for which this Warrant may then be
exercisable, to permit this Warrant (or if this Warrant has been divided, all
outstanding Warrants) to be exercised in full; (d) the Company shall deliver to
the initial Holder, and each subsequent private placement Holder who executes a
confidentiality agreement in substantially the form of Section 13.10 of the
Securities Purchase Agreement, the information and reports described in Section
9.3 of the Securities Purchase Agreement as contemplated therein; (e) the
Company shall extend to the Holder the investment monitoring and other rights
set forth in the Investor Rights Agreement; and (f) the Company shall provide
each Holder with notice of all corporate actions in the same manner and to the
same extent as the shareholders of the Company; provided, however, that the
information to be provided by the Company under clauses (d) through (f) above is
expressly subject to the provisions of Section 13.10 of the Securities Purchase
Agreement.
5.4. ISSUE TAX. The issuance of shares of Common Stock
upon the exercise of this Warrant shall be made without charge to the Holder for
any issue tax in respect thereof.
5.5. CLOSING OF BOOKS. The Company will at no time close
its transfer books against the transfer of this Warrant or of any Warrant Shares
in any manner which interferes with the timely exercise hereof.
5.6. NO VOTING RIGHTS; LIMITATION OF LIABILITY. Except as
expressly set forth in this Warrant, nothing contained in this Warrant shall be
construed as conferring upon the Holder (a) the right to vote or consent as a
stockholder in respect of meetings of stockholders for the election of directors
of the Company or any other matter, (b) the right to receive dividends, except
as set forth in SECTION 4, or (c) any other rights as a stockholder of the
Company, except as set forth in SECTION 4 and in the Investor Rights Agreement.
No provisions hereof, in the absence of affirmative action by the Holder to
purchase shares of Common Stock, and no mere enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder for the
Warrant Purchase Price or as a shareholder of the Company, whether such
liability is asserted by the Company or by its creditors.
5.7. MODIFICATION AND WAIVER. This Warrant and any
provision hereof may be changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement is sought.
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<PAGE>
5.8. NOTICES. All notices, requests, demands and other
communications which are required or may be given under this Warrant shall be in
writing and shall be deemed to have been duly given if transmitted by telecopier
with receipt acknowledged, or upon delivery, if delivered personally or by
recognized commercial courier with receipt acknowledged, or upon the expiration
of seventy-two (72) hours after mailing, if mailed by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
(a) If to the Holder, at:
c/o Levine Leichtman Capital Partners, Inc.
335 North Maple Drive, Suite 240
Beverly Hills, CA 90210
Attention: Arthur E. Levine, President
Telephone: (310) 275-5335
Facsimile: (310) 275-1441
WITH A COPY TO:
Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
Attention: Mitchell S. Cohen, Esq.
Telephone: (310) 277-1010
Telecopier: (310) 203-7199
(b) If to any other Holder, at:
such Holder's address as shown on the books
of the Company.
(c) If to the Company, at:
Simula, Inc.
2700 North Central Avenue, Suite 1000
Phoenix, AZ 85004
Attention: Donald W. Townsend
Telephone: (602) 631-4005
Telecopier: (602) 631-9005
WITH A COPY TO:
Fennemore Craig
3003 North Central Avenue, Suite 2600
Phoenix, AZ 85012-2913
Attention: Robert J. Hackett, Esq.
Telephone: (602) 916-5336
Telecopier: (602) 916-5536
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<PAGE>
or at such other address or addresses as the Holder or the Company, as the case
may be, may specify by written notice given in accordance with this Section 5.8.
5.9. SUCCESSORS AND ASSIGNS. The Company may not assign
any of its rights, or delegate any of its obligations, under this Warrant
without the prior written consent of the Holder (which consent may be withheld
for any reason or no reason at all). Subject to the requirements of Applicable
Laws, the Holder may assign this Warrant, in whole or in part, at any time or
from time to time, without the consent of the Company. Each assignment of this
Warrant shall be registered on the books of the Company to be maintained for
such purpose upon surrender of this Warrant at the Designated Office, together
with appropriate instruments of assignment, duly completed and executed. Upon
such surrender, the Company shall, within three (3) Business Days of surrender,
at its own expense, execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees specified in such assignment and in the denominations
specified therein and this Warrant shall promptly be canceled. If any portion of
this Warrant is not being assigned, the Company shall, at its own expense,
within three (3) Business Days issue to the Holder a new Warrant evidencing the
portion not so assigned. If the Holder assigns this Warrant to one or more
Persons, any decisions that the Holder is entitled to make at any time hereunder
shall be made by the Holders holding more than fifty percent (50.0%) of the
aggregate number of Warrant Shares issuable upon exercise of all of the then
exercisable Warrants. The Company may require the Holder, as a condition to the
execution and delivery of any new Warrant in connection with an assignment of
this Warrant, to represent and warrant to the Company that such assignment
complies with applicable federal or state securities laws and to deliver an
opinion of its legal counsel to such effect.
This Warrant shall be binding upon and inure to the benefit of
the Company, the Holder and their respective successors and permitted assigns,
and shall include, with respect to the Company, any Person succeeding the
Company by merger, consolidation, combination or acquisition of all or
substantially all of the Company's assets, and in such case, except as expressly
provided herein and in the Securities Purchase Agreement, all of the obligations
of the Company hereunder shall survive such merger, consolidation, combination
or acquisition.
5.10. CAPTIONS; CONSTRUCTION AND INTERPRETATION. The
captions in this Warrant are for convenience of reference only, do not
constitute a part of this Agreement and are not to be considered in construing
or interpreting this Warrant. All section, preamble, recital, exhibit, schedule,
disclosure schedule, annex, clause and party references are to this Warrant
unless otherwise stated. No party, nor its counsel, shall be deemed the drafter
of this Warrant for purposes of construing the provisions of this Warrant, and
all provisions of this Warrant shall be construed in accordance with their fair
meaning, and not strictly for or against any party.
5.11. LOST WARRANT OR CERTIFICATES. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant or of a stock certificate evidencing Warrant
Shares and, in the case of any such loss, theft or destruction, upon receipt of
an indemnity reasonably satisfactory to the Company or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant or stock
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<PAGE>
certificate, the Company shall make and deliver to the Holder, within three (3)
Business Days of receipt by the Company of such documentation, a new Warrant or
stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant or stock certificate.
5.12. NO IMPAIRMENT. The Company shall not by any action,
including, without limitation, amending its charter documents or regulations or
through any reorganization, reclassification, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of the Holder against impairment. Without
limiting the generality of the foregoing, the Company will (i) not increase the
par value (if any) of any shares of Common Stock receivable upon the exercise of
this Warrant above the amount payable therefor upon such exercise immediately
prior to such increase in par value, (ii) take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock upon the exercise of this
Warrant, free and clear of all liens, encumbrances, equities and claims, and
(iii) use its best efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
The Company shall not be required to register the Warrant Shares under the
Securities Act except pursuant to the provisions of the Registration Rights
Agreement.
5.13. GOVERNING LAW. IN ALL RESPECTS, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS WARRANT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT
REGARD TO THE CHOICE OF LAW OR CONFLICTS OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
5.14. REMEDIES. If the Company fails to perform, comply
with or observe any covenant or agreement to be performed, complied with or
observed by it under this Warrant, the Holder may proceed to protect and enforce
its rights by suit in equity or action at law, whether for specific performance
of any term contained in this Warrant or for an injunction against the breach of
any such term or in aid of the exercise of any power granted in this Warrant or
to enforce any other legal or equitable right, or to take any one or more of
such actions. The Company hereby agrees that the Holder shall not be required or
otherwise obligated to, and hereby waives any right to demand that the Holder,
post any performance or other bond in connection with the enforcement of its
rights and remedies hereunder. The Company agrees to pay all fees, costs, and
expenses, including, without limitation, fees and expenses of attorneys,
accountants and other experts retained by the Holder, and all fees, costs and
expenses of appeals, incurred or expended by the Holder in connection with the
enforcement of this Warrant or the collection of any sums due hereunder, whether
or not suit is commenced. None of the rights, powers or remedies conferred under
this Warrant shall be mutually exclusive, and each right, power or remedy shall
be cumulative and in addition
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<PAGE>
to any other right, power or remedy whether conferred by this Warrant or now or
hereafter available at law, in equity, by statute or otherwise.
5.15. WAIVER OF JURY TRIAL. THE COMPANY AND THE HOLDER (BY
ACCEPTANCE HEREOF) HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT
OR OTHER PROCEEDING ARISING OUT OF, CONNECTED WITH OR RELATED TO THIS WARRANT OR
ANY OTHER INVESTMENT DOCUMENT, OR ANY CLAIM, CONTROVERSY OR DISPUTE ARISING OUT
OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, REGARDLESS OF
WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed and issued by its duly authorized representatives on the date first
above written.
SIMULA, INC., an Arizona corporation
By: /s/ Donald Townsend
----------------------------------------
Name: Donald W. Townsend
Title: President and CEO
By: /s/ James C. Dodd
----------------------------------------
Name: James C. Dodd
Title: Executive Vice President and CFO
ACKNOWLEDGED AND AGREED:
LEVINE LEICHTMAN CAPITAL PARTNERS
II, L.P., a California limited partnership
By: LLCP California Equity Partners II, L.P., a
California limited partnership, its General Partner
By: Levine Leichtman Capital Partners, Inc., a
California corporation, its General Partner
By: /s/ Arthur E. Levine
-----------------------------
Arthur E. Levine
President
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SIMULA, INC.
FORM OF EXERCISE SUBSCRIPTION
(To be signed only upon exercise of this Warrant)
Pursuant to Section 2.1 of that certain Warrant No. LL-2 to Purchase
850,000 Shares of Common Stock (the "Warrant"), the undersigned hereby
irrevocably elects to exercise the Warrant to purchase _______________ (_______)
shares of Common Stock for an aggregate Warrant Purchase Price of
__________________________ Dollars ($______).
[If the Holder has determined upon advice of counsel that compliance
with the HSR Act is required, include the following sentences: "The undersigned
has determined that this exercise is subject to the HSR Act and requests that
the Company file the requisite notification and report form with, and pay all
requisite filing fees to, the FTC and the DOJ as promptly as possible. The
purchase of the shares described above and the payment of the Warrant Purchase
Price are subject to the expiration or earlier termination of the waiting period
under the HSR Act."]
The Warrant Purchase Price to be paid as follows (check as applicable):
___ Certified or official bank check in the amount of
$_________;
___ Wire transfer in the amount of $_________;
___ Cancellation of _________________________ Warrant
Shares; or
___ Surrender of __________________ shares of Common
Stock.
The undersigned hereby requests that [if the Holder has determined upon
advice of counsel that compliance with the HSR Act is required, include the
following phrase: "upon the expiration or earlier termination of the waiting
period under the HSR Act"] a certificate(s) for the shares of Common Stock be
issued in the name of _________________________, and delivered to,
____________________, whose address is ____________________________________.
The undersigned hereby represents that it is acquiring such shares of
Common Stock for its own account for investment purposes only and not with a
view to or for sale in connection with any distribution thereof.
<TABLE>
<S> <C>
Dated: _______________ ___________________________________________________________
Name of the Holder (must conform precisely to
the name specified on the face of the Warrant)
___________________________________________________________
Signature of authorized representative of the Holder
___________________________________________________________
Print or type name of authorized representative
Social Security Number or Employer Tax
Identification Number of the Holder: ______________________
Address of the Holder: _______________________________
_______________________________
_______________________________
</TABLE>
