<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF
SECURITIES PURSUANT TO SECTION 12(b) OR 12(g)
OF THE SECURITIES EXCHANGE ACT OF 1934
National Health Laboratories Holdings Inc.
----------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 13-3757370
----------------------- ---------------
(State of Incorporation or (I.R.S. Employer
Organization) Identification no.)
4225 Executive Square, Suite 805, La Jolla, California 92037
----------------------------------------------------------------
(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 upon securities and is to become effective
filing pursuant to General simultaneously with the effectiveness
Instruction A(c)(1) please check of a concurrent registration
the following box. [ ] 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:
Name of Each Exchange
Title of Each Class on which Each Class
to be so Registered is to be Registered
------------------- -------------------
Common Stock New York Stock
Purchase Warrants Exchange, Inc.
Securities to be registered pursuant to Section 12(g) of the Act: None.
<PAGE>
INFORMATION
Item 1. Description of Registrant's Securities to be Registered.
The securities to be registered are warrants (the "Warrants") to acquire
shares of common stock, par value $0.01 per share, of National Health
Laboratories Holdings Inc. (the "Registrant"). The Warrants are described in the
Registrant's Proxy Statement on Schedule 14A previously filed with the
Securities and Exchange Commission (the "Commission"). The Registrant hereby
incorporates by reference the description of the Warrants registered hereby set
forth under the caption "Summary--The Merger--Warrants" on page 7 and under the
caption "The Warrant Agreement" on pages 87 through 93 of the Proxy Statement
filed by the Registrant with the Commission on March 30, 1995.
The description of the Warrants and of the Warrant Agreement pursuant to
which the Warrants will be issued is qualified in its entirety by reference to
the Form of Warrant Agreement, a copy of which is attached hereto as Exhibit 1.
Item 2. Exhibits.
1 Form of Warrant Agreement to be entered into
between the Registrant and American Stock Transfer &
Trust Company, as Warrant Agent.
<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.
NATIONAL HEALTH LABORATORIES HOLDINGS, INC.
By: /s/ David C. Flaugh
---------------------------------------
Name: David C. Flaugh
Title: Senior Executive Vice President
and Chief Operating Officer;
Acting Chief Financial Officer
Dated: March 29, 1995
<PAGE>
INDEX TO EXHIBITS
Sequential
Exhibit Number Description Page Number
-------------- ----------- -----------
1 Form of Warrant 5
Agreement to be
entered into between
National Health
Laboratories Holdings Inc.
and American Stock Transfer
& Trust Company
<PAGE>
EXHIBIT 1
WARRANT AGREEMENT
DATED AS OF APRIL , 1995
BETWEEN
NATIONAL HEALTH LABORATORIES HOLDINGS INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY, AS WARRANT AGENT
<PAGE>
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
PAGE
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ARTICLE 1
DEFINITIONS
<C> <S> <C>
SECTION 1.1 Definitions............................................... II-1
ARTICLE 2
ISSUE, FORM, EXERCISE
SECTION 2.1 Amount Issued............................................. II-2
SECTION 2.2 Initial Issuance.......................................... II-2
SECTION 2.3 Form of Warrant Certificate............................... II-4
SECTION 2.4 Execution of Warrant Certificates......................... II-4
SECTION 2.5 Notice to Holders with Respect to Exercise and Redemption. II-4
SECTION 2.6 Exercise of Warrants...................................... II-4
SECTION 2.7 Redemption................................................ II-5
SECTION 2.8 Certain Action............................................ II-6
SECTION 2.9 No Voting Rights.......................................... II-6
SECTION 2.10 Warrant Shares to be Fully Paid and Nonassessable......... II-6
SECTION 2.11 No Fractional Warrants.................................... II-6
SECTION 2.12 No Fractional Warrant Shares.............................. II-7
ARTICLE 3
TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS, LISTING
SECTION 3.1 Ownership of Warrants..................................... II-7
SECTION 3.2 Registration and Countersignature......................... II-7
SECTION 3.3 Registration of Transfers and Exchanges................... II-7
SECTION 3.4 Cancellation of Warrants.................................. II-8
SECTION 3.5 Payments of Taxes......................................... II-8
SECTION 3.6 Mutilated or Missing Warrant Certificates................. II-8
SECTION 3.7 Governmental Approvals and Stock Exchange Listing......... II-8
SECTION 3.8 Transfer to Comply with the Securities Laws............... II-9
SECTION 3.9 Company Option to Repurchase Warrants..................... II-9
ARTICLE 4
ANTI-DILUTION PROVISIONS
SECTION 4.1 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants......................... II-9
Stock Dividends, Stock Splits, Combinations and Stock
SECTION 4.2 Reclassifications......................................... II-9
SECTION 4.3 Rights, Options and Warrants.............................. II-9
SECTION 4.4 Certain Distributions..................................... II-10
SECTION 4.5 Capital Reorganizations and Reclassifications............. II-10
SECTION 4.6 Consolidations, Mergers, Sales and Conveyances............ II-10
SECTION 4.7 Adjustment Rules.......................................... II-11
SECTION 4.8 Notice to Holders with Respect to Adjustments............. II-12
ARTICLE 5
WARRANT AGENT
SECTION 5.1 Appointment of Warrant Agent.............................. II-12
SECTION 5.2 Warrant Agent............................................. II-12
SECTION 5.3 Change of Warrant Agent................................... II-14
SECTION 5.4 Merger, Consolidation or Change of Name of Warrant Agent.. II-14
</TABLE>
II-i
<PAGE>
<TABLE>
<CAPTION>
PAGE
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ARTICLE 6
MISCELLANEOUS
<C> <S> <C>
SECTION 6.1 Notices..................................................... II-15
SECTION 6.2 Supplements and Amendments.................................. II-15
SECTION 6.3 Termination................................................. II-15
SECTION 6.4 Governing Law............................................... II-16
SECTION 6.5 Persons Benefiting.......................................... II-16
SECTION 6.6 Counterparts................................................ II-16
SECTION 6.7 Headings.................................................... II-16
</TABLE>
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(1) This Table of Contents is not a part of the Agreement.
II-ii
<PAGE>
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "AGREEMENT") is dated as of April , 1995
between National Health Laboratories Holdings Inc., a Delaware corporation (the
"COMPANY"), and American Stock Transfer & Trust Company as warrant agent (the
"WARRANT AGENT").
WHEREAS, as described in the succeeding two recitals, the Company proposes to
issue and deliver its warrant certificates (the "WARRANT CERTIFICATES")
evidencing Common Stock Purchase Warrants (the "WARRANTS") to purchase, under
certain circumstances, up to an aggregate of 23,000,000 shares (the "WARRANT
SHARES"), subject to adjustment, of its Common Stock (as defined below);
WHEREAS, the Company currently intends to declare a dividend to holders of
record of Common Stock as of April 21, 1995 (the "WARRANT DISTRIBUTION RECORD
DATE") of 0.16308 of a Warrant per share of Common Stock which dividend shall
be paid April 24, 1995 (the "WARRANT DISTRIBUTION");
WHEREAS, the Company intends to issue and sell on the terms and subject to
the conditions set forth in the Merger Agreement (as defined below) and herein
to Hoffmann-La Roche Inc. ("ROCHE") 8,325,000 Warrants (the "ROCHE WARRANTS")
for an aggregate purchase price of $51,048,900;
WHEREAS, each Warrant shall entitle the registered holder thereof, on the
terms and conditions hereof, to acquire from the Company one share of Common
Stock, subject to adjustment; and
WHEREAS, the Warrant Agent, at the request of the Company, has agreed to act
as the agent of the Company in connection with the issuance, registration,
transfer, exchange, exercise and conversion of Warrants.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on which
commercial banking institutions in New York City are authorized by law or
executive order to close.
"CLOSE OF BUSINESS" means 5:00 P.M. New York City time.
"CLOSING PRICE" means, with respect to the Warrants or shares of Common
Stock, for any day the last sale price, regular way, or, if no such sale takes
place on such day, the average of the closing bid and asked prices, regular
way, for such day, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the NYSE or, if the Warrants or shares of Common Stock, as the case
may be, are not listed or admitted to trading on such exchange, as reported on
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Warrants or shares of Common Stock, respectively, are listed or admitted to
trading, or if the Warrants or shares of Common Stock, as the case may be, are
not listed or admitted to trading on any national securities exchange, as
reported on NASDAQ/NMS or, if the Warrants or shares of Common Stock, as the
case may be, are not listed or admitted to trading on NASDAQ/NMS, as reported
on NASDAQ.
<PAGE>
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company.
"COMPANY" has the meaning set forth in the preamble to this Warrant Agreement
and its successors and assigns.
"EXERCISE PRICE" means the purchase price per share of Common Stock to be
paid upon the exercise of each Warrant in accordance with the terms hereof,
which price shall be $22.00 per share, subject to adjustment from time to time
pursuant to Article 4 hereof.
"EXPIRATION DATE" means April 28, 2000, or such other date as may be
determined pursuant to Section 2.7 hereof.
"FRACTIONAL WARRANT" has the meaning set forth in Section 2.11 hereof.
"FRACTIONAL WARRANT HOLDER" has the meaning set forth in Section 2.11 hereof.
"FRACTIONAL WARRANT PROCEEDS" has the meaning set forth in Section 2.11
hereof.
"FRACTIONAL WARRANT SHARE" has the meaning set forth in Section 2.12 hereof.
"FRACTIONAL WARRANT SHARE HOLDER" has the meaning set forth in Section 2.12
hereof.
"FRACTIONAL WARRANT SHARE PROCEEDS" has the meaning set forth in Section 2.12
hereof.
"HOLDER" means, at any time, a registered holder as shown in the Warrant
Register of a Warrant outstanding at such time.
"MARKET DISRUPTION EVENT" means one of the following events, circumstances or
causes: (i) the suspension of or an imposition of a material limitation on
trading in shares generally or (ii) any outbreak or escalation of hostilities
or other national or international calamity or crisis.
"MARKET PRICE" as at any date of determination means the average of the daily
Closing Prices of a share of Common Stock over the Valuation Period applicable
to such date of determination.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated as of
December 13, 1994, among the Company, HLR Holdings Inc., Roche Biomedical
Laboratories, Inc. and, for the purposes stated therein, Roche.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the NASD Automated Quotation System.
"NASDAQ/NMS" means the NASDAQ--National Market System or its successor.
"NHL STOCKHOLDER MEETING" shall have the meaning ascribed thereto in the
Merger Agreement.
"NYSE" means the New York Stock Exchange, Inc.
"PERSON" means an individual, a partnership, a corporation, a joint venture,
a trust, an incorporated or unincorporated organization, a government or any
department or agency thereof.
"REDEMPTION" has the meaning set forth in Section 2.7 hereof.
II-2
<PAGE>
"REDEMPTION AMOUNT" means, in respect of any Warrant, the amount equal to the
excess (if any) of the Market Price for the Valuation Period applicable to the
Expiration Date over the Exercise Price.
"ROCHE" has the meaning set forth in the recitals of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"TRADING DAY" means any day on which either the Warrants or shares of Common
Stock, as the case may be, are traded on the applicable securities exchange or
in the applicable securities market.
"TRANSFER AGENT" has the meaning set forth in Section 2.6(c) hereof.
"VALUATION PERIOD" for any computation of Market Price shall mean the 10
consecutive Trading Days (each, a "VALUATION DATE") commencing 15 Trading Days
and ending five Trading Days before the applicable date as of which the Market
Price is being determined.
"WARRANT AGENT" means the warrant agent named in the preamble of this
Agreement or the successor or successors of such Warrant Agent appointed in
accordance with the terms hereof.
"WARRANT AGENT OFFICE" means the office or agency maintained by the Warrant
Agent in New York, New York (or such other offices or agencies as may be
designated by the Warrant Agent) for the purpose of exchanging, transferring
and exercising the Warrants.
"WARRANT CERTIFICATE" has the meaning set forth in the recitals of this
Agreement.
"WARRANT DISTRIBUTION" has the meaning set forth in the recitals of this
Agreement
"WARRANT DISTRIBUTION RECORD DATE" has the meaning set forth in the recitals
hereof.
"WARRANT REGISTER" means the register maintained by the Warrant Agent in
which the issue, transfer and cancellation of the Warrants are registered.
"WARRANTS" has the meaning set forth in the recitals of this Agreement.
"WARRANT SHARE" has the meaning set forth in the recitals of this Agreement.
All references herein to "DAYS" shall mean calendar days unless otherwise
specified. All terms defined in this Agreement in the singular shall have a
comparable meaning in the plural and vice versa.
ARTICLE 2
ISSUE, FORM, EXERCISE
SECTION 2.1 AMOUNT ISSUED. Subject to the other provisions of this Agreement
(including Article 4), Warrants to purchase no more than 23,000,000 Warrant
Shares may be issued and delivered hereunder.
SECTION 2.2 INITIAL ISSUANCE. Warrant Certificates representing the Warrants
shall be initially issued by the Warrant Agent at the time, in the
denominations and to the Persons so directed by the Company. Upon the
declaration of the Warrant Distribution, the Company shall execute and deliver
to the Warrant Agent for countersignature Warrant Certificates representing a
number of Warrants equal to the product of (x) the number of outstanding shares
of Common Stock on the Warrant Distribution Record Date and (y) 0.16308. At or
prior to the Effective Time (as defined in the Merger Agreement) the Company
shall execute and deliver to the Warrant Agent for countersignature Warrant
Certificates representing the Roche Warrants.
II-3
<PAGE>
SECTION 2.3 FORM OF WARRANT CERTIFICATE. The Warrant Certificates shall be in
registered form only. The Warrant Certificates and the forms of election to
exercise Warrants and of assignment to be printed on the reverse side thereof
shall be in substantially the form set forth in Exhibit A hereto together with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Agreement, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Warrants,
as evidenced by their execution of the Warrants.
SECTION 2.4 EXECUTION OF WARRANT CERTIFICATES. (a) Warrant Certificates shall
be signed on behalf of the Company by the Chairman of its Board of Directors,
its Chief Executive Officer, its President, a Vice President or its Treasurer
and attested by its Secretary or Assistant Secretary, under its corporate seal.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the current or any future Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of such person shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
(b) If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
any such person was not such officer.
SECTION 2.5 NOTICE TO HOLDERS WITH RESPECT TO EXERCISE AND REDEMPTION. Not
earlier than 90 days nor later than 60 days prior to the Expiration Date, the
Company shall deliver to the Warrant Agent notice in writing, which notice
shall be irrevocable, stating whether or not it shall have elected to redeem
the Warrants on the Expiration Date in accordance with Section 2.7. Promptly
after receipt of the Company's notice, the Warrant Agent shall mail a notice to
all Holders at the addresses set forth on the Warrant Register to the effect
that (as applicable) each outstanding Warrant shall be redeemed for the
Redemption Amount on the Expiration Date or that such Warrants shall not be
redeemed and describing the exercise procedure set forth in Section 2.6 (which
notice shall include the statement that the Warrants will terminate and become
void as of the Close of Business on the Expiration Date and that failure by a
Holder to comply with the exercise procedures will result in the forfeiture of
such Holder's rights with respect to such Holder's Warrants).
SECTION 2.6 EXERCISE OF WARRANTS. (a) Subject to the provisions of this
Agreement, each Warrant shall be exercisable only prior to the Close of
Business on the Expiration Date and only if the Company shall not have duly
elected to effect a Redemption pursuant to Section 2.7. The Warrants shall
expire at and become null and void and have no value and no Person shall have
any rights thereto as of the Close of Business on the Expiration Date,
provided, however, that, notwithstanding such expiration, Holders that have
properly exercised Warrants in accordance with this Section 2.6 shall be
entitled to receive Warrant Shares with respect to such Holders' Warrants as
provided in subsection (b) unless the Company shall have elected to effect a
Redemption pursuant to Section 2.7, in which case each Holder shall be entitled
to received the Redemption Amount as described in Section 2.7.
(b) Subject to Section 2.7, for each Warrant held, the Holder thereof shall
have the right to purchase from the Company (and the Company shall issue and
sell to such Holder) one fully paid and non-assessable
II-4
<PAGE>
share of Common Stock at the Exercise Price (in each case subject to adjustment
as hereinafter provided) upon (i) surrender to the Warrant Agent, at a Warrant
Agent Office of the Warrant Certificate evidencing such Warrant, with the form
of election to exercise on the reverse thereof properly completed and signed by
the Holder or Holders thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney, and (ii) payment of the Exercise
Price for the number of Warrant Shares in respect of which such Warrant is
being exercised. Such surrender and payment (if applicable) may be made and
shall be accepted by the Warrant Agent at any time during the 45 day period
immediately preceding the Close of Business on the Expiration Date, but any
Warrants so surrendered shall not be deemed to be exercised until the
Expiration Date. Payment of the Exercise Price shall be made by a certified or
official bank check payable to the order of the Warrant Agent for the account
of the Company or by wire transfer of funds to an account designated by the
Company for such purpose. The Warrants evidenced by a Warrant Certificate shall
be exercisable, at the election of the Holder thereof, either in their entirety
or in part. Except as expressly provided to the contrary in Article 4, no
adjustments shall be made for any cash dividends or other cash distributions on
Warrant Shares issuable upon the exercise of a Warrant.
(c) Upon the surrender of each Warrant Certificate in accordance with
subsection (b) above and payment of the per share Exercise Price (and an amount
representing any transfer taxes payable with respect to the issuance of the
relevant Warrant Shares) immediately following the Expiration Date, the Company
shall issue and cause its transfer agent for the Common Stock ("TRANSFER
AGENT") to deliver with all reasonable dispatch to or upon the written order of
the Holder and in such name or names as such Holder may designate, a
certificate or certificates for the number of full Warrant Shares so purchased
upon the exercise of such Warrant or Warrants together with cash as provided in
Section 2.12 in respect of any Fractional Warrant Share (as defined below)
otherwise issuable upon such exercise. 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 Expiration Date; provided, however, that if, at such date, the transfer
books for the Warrant Shares 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
Holders shall be under no duty to deliver any certificates for such Warrant
Shares; provided further, however, that such transfer books, unless otherwise
required by law, shall not be closed at any one time for a period longer than
20 calendar days.
SECTION 2.7 REDEMPTION. (a) Notwithstanding Section 2.6, the Company shall
have the right to redeem all, but not less than all, of the Warrants on the
Expiration Date by payment to each Holder as of the Expiration Date in cash of
the Redemption Amount with respect to the Warrants held by such Holder as of
the Expiration Date (a "REDEMPTION"), but only if the Company shall have timely
delivered to the Warrant Agent the notice of its election to redeem the
Warrants referred to in Section 2.5. If the Company has elected to redeem the
Warrants as herein provided, at or immediately prior to the Expiration Date,
the Company shall cause to be transferred to the Warrant Agent an amount in
immediately available funds equal to the aggregate Redemption Amount for all
outstanding Warrants for payment by the Warrant Agent to the Holders as of the
Expiration Date in respect of the Warrants held as of the Expiration Date. If
the Company shall have duly elected to redeem the Warrants but the aggregate
Redemption Amount is zero or less than zero, no amount shall be required to be
paid by the Company in respect of the redemption of the Warrants but the
Warrants shall nonetheless be deemed to have been redeemed.
(b) If the Company has duly elected to redeem the Warrants and the Company
determines in its sole discretion that a Market Disruption Event has occurred
and is continuing on any day that but for the occurrence of a Market Disruption
Event would have been a Valuation Date with respect to the determination of the
Redemption Amount, then such day shall not be deemed to be a Valuation Date and
the Valuation Date shall instead be deemed to be the next Trading Day on which
the Company determines that no Market Disruption Event is continuing and the
Valuation Period shall be extended accordingly. If the Valuation Period shall
have been so extended, then the Expiration Date for purposes of the Redemption
shall be deemed to be the fifth Trading Day after the end of the Valuation
Period as so extended. In the event that the Company determines that a Market
Disruption Event has occurred, the Company shall give telephonic notice
(promptly confirmed in writing) of such event to the Warrant Agent.
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<PAGE>
SECTION 2.8 CERTAIN ACTION. Before taking any action that would cause an
adjustment pursuant to Article 4 reducing the Exercise Price below the then par
value (if any) of the Warrant Shares issuable upon exercise of the Warrants,
the Company will take any corporate action that may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares at the Exercise Price as so
adjusted.
SECTION 2.9 NO VOTING RIGHTS. Prior to the exercise of the Warrants and the
issuance of Warrant Shares in respect thereof, no Holder, as such, shall be
entitled to any rights of a stockholder of the Company including, without
limitation, the right to receive dividends or subscription rights, the right to
vote, to consent, to exercise any preemptive right, to receive any notice of
meetings of stockholders for the election of directors of the Company or any
other matter or to receive any notice of any proceedings of the Company, except
as may be specifically provided for herein.
SECTION 2.10 WARRANT SHARES TO BE FULLY PAID AND NONASSESSABLE. The Company
covenants that all Warrant Shares issued upon exercise of the Warrants will,
upon payment of the applicable Exercise Price, delivery of properly completed
forms of election to exercise and issuance of such Warrant Shares in accordance
with the terms of this Agreement, be fully paid and nonassessable and free from
all liens, charges and security interests created by or imposed upon the
Company with respect to the issuance and holding thereof. The Company shall no
less than 50 days prior to the Expiration Date (unless the Company shall have
elected to effect a Redemption pursuant to Section 2.7) at all times thereafter
until issuance of Warrant Shares in accordance herewith keep reserved out of
its authorized shares of Common Stock a number of shares of Common Stock
sufficient to provide for the exercise of all outstanding Warrants.
SECTION 2.11 NO FRACTIONAL WARRANTS. (a) No certificates or scrip
representing fractional Warrants shall be issued to any Holder in the Warrant
Distribution. As promptly as practicable following the Warrant Distribution
Record Date, the Warrant Agent shall determine with respect to each Person
entitled to receive Warrants pursuant to the Warrant Distribution the excess of
(x) the number of Warrants delivered to the Warrant Agent by the Company
pursuant to Section 2.2 with respect to each such Person over (y) the number of
whole Warrants to be distributed with respect to such Person (such excess
fraction of a Warrant being hereinafter referred to in connection with each
such Person as a "FRACTIONAL WARRANT"). As soon after the Warrant Distribution
Record Date as practicable, the Warrant Agent, as agent for Holders otherwise
entitled to receive Fractional Warrants (each, a "FRACTIONAL WARRANT HOLDER"),
shall aggregate and sell in normal transactions the Fractional Warrants for all
Fractional Warrant Holders at then available prices on the NYSE. Until the net
proceeds of such sale or sales (the "FRACTIONAL WARRANT PROCEEDS") have been
distributed to the Fractional Warrant Holders, the Warrant Agent shall hold the
Fractional Warrant Proceeds in trust for the Fractional Warrant Holders. The
Company shall pay, and deduct from the Fractional Warrant Proceeds, all
commissions, transfer taxes and other out-of-pocket transaction costs,
including the expenses and compensation of the Warrant Agent, incurred in
connection with such sale of the Fractional Warrants. The Warrant Agent shall
determine the portion of the net Fractional Warrant Proceeds to which each
Fractional Warrant Holder shall be entitled, if any, by multiplying the net
Fractional Warrant Proceeds amount by a fraction, the numerator of which is the
Fractional Warrant to which such Fractional Warrant Holder would otherwise be
entitled and the denominator of which is the aggregate Fractional Warrants to
which all Fractional Warrant Holders would otherwise be entitled. As soon as
practicable after the determination of the amount of Fractional Warrant
Proceeds, if any, to be paid in cash to each Fractional Warrant Holder in lieu
of any Fractional Warrants, the Warrant Agent shall make available such
amounts, without interest, to each such Fractional Warrant Holder.
(b) If Warrants are to be issued Holders pursuant to Section 4.7(h), the
Company and the Warrant Agent shall, prior to such issuance, establish a
procedure corresponding to the procedure described in subsection (a) above such
that Holders that would otherwise receive Fractional Warrants shall instead
receive the appropriate amount of the Fractional Warrant Proceeds thereof.
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<PAGE>
SECTION 2.12 NO FRACTIONAL WARRANT SHARES. Notwithstanding any adjustment
pursuant to Article 4 in the number of Warrant Shares purchasable upon the
exercise of a Warrant, no certificates or scrip representing fractional Warrant
Shares shall be issued upon exercise of a Warrant. As promptly as practicable
following the Expiration Date, if the Company shall not have elected to effect
a Redemption pursuant to Section 2.7, the Transfer Agent shall determine the
excess of (x) the number of Warrant Shares delivered to the Transfer Agent by
the Company with respect to each Holder pursuant to Section 2.6 over (y) the
aggregate number of whole Warrant Shares to be issued with respect to such
Holder (such excess being hereinafter referred to in connection with each such
Holder as the "FRACTIONAL WARRANT SHARE"). As soon after the Expiration Date as
practicable, the Transfer Agent, as agent for Holders otherwise entitled to
receive Fractional Warrant Shares (each, a "FRACTIONAL WARRANT SHARE HOLDER"),
unless the Company has elected to effect a Redemption pursuant to Section 2.7,
shall aggregate and sell in normal transactions the Fractional Warrant Shares
for all the Fractional Warrant Share Holders at then available prices on the
NYSE or on the principal United States securities exchange on which the Common
Stock is listed, if any, or on NASDAQ, if the Common Stock is quoted on NASDAQ.
Until the net proceeds of such sale or sales (the "FRACTIONAL WARRANT SHARE
PROCEEDS") have been distributed to such Holders, the Transfer Agent will hold
the Fractional Warrant Share Proceeds in trust for the Fractional Warrant Share
Holders. The Company shall pay, and deduct from the Fractional Warrant Share
Proceeds, all commissions, transfer taxes and other out-of-pocket transaction
costs, including the expenses and compensation of the Transfer Agent, incurred
in connection with such sale of the Fractional Warrant Shares. The Transfer
Agent shall determine the portion of the net Fractional Warrant Share Proceeds
to which each Fractional Warrant Share Holder shall be entitled, if any, by
multiplying the net Fractional Warrant Share Proceeds amount by a fraction, the
numerator of which is the Fractional Warrant Share to which such Fractional
Warrant Share Holder would otherwise be entitled and the denominator of which
is the aggregate amount of Fractional Warrant Shares to which all such
Fractional Warrant Share Holders would otherwise be entitled. As soon as
practicable after the determination of the amount of the net Fractional Warrant
Share Proceeds, if any, to be paid in cash to each such Fractional Warrant
Share Holder in lieu of its Fractional Warrant Share, the Transfer Agent shall
make available such amounts, without interest, to each such Fractional Warrant
Share Holder.
ARTICLE 3
TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS, LISTING
SECTION 3.1 OWNERSHIP OF WARRANTS. The Company and the Warrant Agent may deem
and treat any Holder as the absolute owner for all purposes, notwithstanding
any notation of ownership or other writing on the relevant Warrant Certificate
made by anyone, and shall not be affected by any notice to the contrary until
due presentation of such Warrant Certificate for registration and transfer as
provided in this Article 3.
SECTION 3.2 REGISTRATION AND COUNTERSIGNATURE. Warrant Certificates shall be
countersigned manually or by facsimile and dated the date of countersignature
by the Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Certificates shall be numbered and shall be
registered in the Warrant Register. The countersignature of the Warrant Agent
shall be that of a duly authorized employee of the Warrant Agent.
SECTION 3.3 REGISTRATION OF TRANSFERS AND EXCHANGES. (a) The Warrant Agent
shall from time to time register the transfer of any outstanding Warrant
Certificate in the Warrant Register, upon surrender of such Warrant
Certificate, duly endorsed, and accompanied by a written instrument or
instruments of transfer in a form satisfactory to the Warrant Agent, duly
signed by the Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (i) a bank or trust company, (ii) a broker or dealer that is a
member of the NASD or (iii) a member of a national securities exchange, and
funds sufficient to pay any transfer taxes payable with respect to such
transfer. Upon any such registration or transfer, a new Warrant Certificate
shall be issued to the transferee.
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(b) Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at a Warrant Agent
Office, or at the offices of any successor Warrant Agent as provided in Section
5.3 hereof, for another Warrant Certificate or other Warrant Certificates of
like tenor and representing in the aggregate a like number of Warrants.
(c) Notwithstanding paragraphs (a) and (b) above, the Warrant Agent shall not
be required to transfer or exchange any Warrant Certificate from and after the
105th day preceding the scheduled Expiration Date provided that if, in the
notice provided by the Company pursuant to Section 2.5, the Company shall not
have elected to redeem the Warrants, then the Warrant Agent shall permit
transfers or exchanges of Warrant Certificates from and after the mailing of
the notice to Holders referred to in Section 2.5 but shall not be required to
transfer or exchange any Warrant Certificate from and after the 15th day
preceding the Expiration Date.
SECTION 3.4 CANCELLATION OF WARRANTS. If the Company shall purchase or
otherwise acquire Warrants, the Company may deliver the Warrant Certificates
representing such Warrants to the Warrant Agent to be canceled by it and
retired. The Warrant Agent shall cancel all Warrant Certificates so
surrendered.
SECTION 3.5 PAYMENTS OF TAXES. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrants and of Warrant Shares
upon the exercise of Warrants; provided, 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 of any Warrant Certificates or any certificates for
Warrant Shares in a name other than the registered holder of a Warrant
Certificate surrendered upon the exercise of a Warrant, and the Company shall
not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
SECTION 3.6 MUTILATED OR MISSING WARRANT CERTIFICATES. (a) If (i) any
mutilated Warrant Certificate is surrendered to the Warrant Agent or (ii) the
Company and the Warrant Agent receive evidence to their satisfaction of the
destruction, loss or theft of any Warrant Certificate, and there is delivered
to the Company and the Warrant Agent such security or indemnity as may be
reasonably required by them to hold each of them harmless with respect thereto,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute and upon its written request the Warrant Agent shall countersign
and deliver, in exchange for any such mutilated Warrant Certificate or in lieu
of any such destroyed, lost or stolen Warrant Certificate, a new Warrant
Certificate of like tenor and for a like aggregate number of Warrants.
(b) Upon the issuance of any new Warrant Certificate under this Section 3.6
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and other
expenses (including the reasonable fees and expenses of the Warrant Agent and
of counsel to the Company) in connection therewith.
(c) Every new Warrant Certificate executed and delivered pursuant to this
Section 3.6 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not
the destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Warrant
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder.
SECTION 3.7 GOVERNMENTAL APPROVALS AND STOCK EXCHANGE LISTING. The Company
from time to time will use its best efforts (a) to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and to file such documents under federal and state securities acts
and laws, which may be or become requisite in connection with the issuance,
sale, transfer and delivery of the Warrant Certificates, the exercise of the
Warrants and the issuance, sale, transfer and delivery of the Warrant Shares
issued upon exercise of Warrants (including, without limitation, causing a
registration statement under
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the Securities Act in respect of the Warrant Shares to be filed and declared
effective but, subject to the Company's other contractual obligations, not
including maintaining an effective registration statement for purposes of
resale of Warrant Shares), provided, however, if any such permits, consents,
approvals or documents are not so obtained or effective, the Company will
immediately notify the Warrant Agent; (b) to have the Warrants listed on the
NYSE or on the principal United States securities exchange on which the Common
Stock is listed, if any, or quoted on NASDAQ if the Common Stock is so quoted;
and (c) immediately upon the issuance of Warrant Shares upon exercise of
Warrants, to have such Warrant Shares listed on the NYSE or on the principal
United States securities exchange or exchanges on which the Common Stock is
listed, if any, or quoted on NASDAQ if the Common Stock is so quoted. The
Company shall cause the Warrants to be delisted on the NYSE or cease to be
quoted, as the case may be, effective as of the Close of Business on the
Expiration Date. Notwithstanding anything in this Agreement to the contrary, in
no event shall a Holder be entitled to exercise a Warrant unless a registration
statement filed under the Securities Act in respect of the Warrant Shares is
then effective (unless in the opinion of counsel to the Company an exemption
from the registration requirements is available under the Securities Act at the
time of such exercise).
SECTION 3.8 TRANSFER TO COMPLY WITH THE SECURITIES LAWS. Neither the Warrants
nor any of the Warrant Shares, nor any interest in either, may be sold,
assigned, pledged, hypothecated, encumbered or in any other manner transferred
or disposed of, in whole or in part, except in compliance with applicable
United States federal and state securities laws and the terms and conditions
hereof and thereof.
SECTION 3.9 COMPANY OPTION TO REPURCHASE WARRANTS. The Company and its
subsidiaries shall have the option, in their sole discretion, at any time or
from time to time, to purchase Warrants (i) in the public market, (ii) by
tender or exchange offer available to all Holders at any price or (iii) in
private transactions at a price not more than ten percent (10%) over the Market
Price of the Warrants as of closing date of each such transaction respectively.
Warrants acquired by the Company or its subsidiaries shall be canceled and
shall not be available for reissuance or resale.
ARTICLE 4
ANTI-DILUTION PROVISIONS
SECTION 4.1 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES PURCHASABLE OR
NUMBER OF WARRANTS. The Exercise Price, the number of Warrant Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Article 4.
SECTION 4.2 STOCK DIVIDENDS, STOCK SPLITS, COMBINATIONS AND STOCK
RECLASSIFICATIONS. If the Company shall (i) pay a dividend on its shares of
capital stock (including Common Stock) 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 any shares of its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), in each case, other
than the Merger pursuant to the Merger Agreement, the number of Warrant Shares
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that each Holder shall be entitled upon exercise to receive the
kind and number of Warrant Shares or other securities of the Company which such
Holder would have owned or have been entitled to 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 Section 4.2 shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
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SECTION 4.3 RIGHTS, OPTIONS AND WARRANTS. If the Company shall issue any
rights, options or warrants to holders of its outstanding Common Stock (other
than pursuant hereto, pursuant to stock option plans or similar plans approved
by the Board of Directors of the Company or pursuant to the Merger Agreement),
without payment of additional consideration by such holders, entitling them
(for a period expiring within 45 days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share that is
lower than the Market Price per share of Common Stock at the record date
mentioned below, the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number of
Warrant Shares theretofore purchasable upon exercise of each Warrant by a
fraction, of which the numerator shall be (i) the number of shares of Common
Stock outstanding on the record date for the issuance of such rights, options
or warrants plus the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be (ii) the number
of shares of Common Stock outstanding on the record date for the issuance of
such rights, options or warrants plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered would
purchase at the Market Price per share of Common Stock at such record date.
Such adjustment shall be made whenever such rights, options or warrants are
issued, and shall become effective immediately on the date of issuance
retroactive to the record date for the determination of stockholders entitled
to receive such rights, options or warrants.
SECTION 4.4 CERTAIN DISTRIBUTIONS. If the Company shall distribute to all
holders of its shares of Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated earnings
or earned surplus and dividends or distributions referred to in Section 4.2) or
rights, options or warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock
(excluding those referred to in Section 4.3), then in each case the number of
Warrant Shares thereafter purchasable upon the exercise of each Warrant shall
be determined by multiplying the number of Warrant Shares theretofore
purchasable upon the exercise of each Warrant, by a fraction, of which the
numerator shall be (i) the then current Market Price per share of Common Stock
on the date of such distribution, and of which the denominator shall be (ii)
the then current Market Price per share of Common Stock on the date of such
distribution, less the then fair value (as determined in good faith by the
Board of Directors of the Company, whose determination shall be conclusive and
shall be evidenced by a resolution filed with the Warrant Agent) of the portion
of the assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants or convertible or exchangeable
securities applicable to one share of Common Stock. Such adjustment shall be
made whenever any such distribution is made, and shall become effective on the
date of distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
SECTION 4.5 CAPITAL REORGANIZATIONS AND STOCK RECLASSIFICATIONS. In the event
of any capital reorganization or any reclassification of the Common Stock
(except as provided in Section 4.2, 4.3, 4.4 or 4.6), any Holder of Warrants
upon exercise thereof shall be entitled to receive, in lieu of the Common Stock
to which such Holder would have become entitled upon exercise immediately prior
to such reorganization or reclassification, the shares (of any class or
classes) or other securities or property of the Company that such Holder would
have been entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if such Holder's Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Article 4
with respect to the rights and interests thereafter of the Holders (including
the allocation of the adjusted Exercise Price between or among shares of
classes of capital stock), to the end that this Article 4 (including the
adjustments of the number of shares of Common Stock or other securities
purchasable and the Exercise Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of the Warrants
for any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
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SECTION 4.6 CONSOLIDATIONS, MERGERS, SALES AND CONVEYANCES. 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 such holder 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 exception of any such agreement. Such agreement
shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 4. The provisions
of this Section 4.6 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 securities or property receivable upon exercise of Warrants or with
respect to the method employed and provided therein for any adjustments and
shall be entitled to rely upon the provisions contained in any such agreement.
SECTION 4.7 ADJUSTMENT RULES. (a) For the purposes of adjustments required by
Section 4.2 and Section 4.3, the shares of Common Stock that the holder of any
rights, options, warrants or convertible or exchangeable securities shall be
entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of sale, issuance or distribution of such securities
and the consideration, if any, received by the Company therefor shall be deemed
to be the consideration received by the Company for such securities, plus the
consideration or premiums stated in such securities to be paid for the shares
of Common Stock covered thereby.
(b) Except for adjustments required by Section 4.6, 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 Section 4.7(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 cent
and to the nearest one-hundredth of a share, as the case may be.
(c) Whenever the number of Warrant Shares purchasable upon the exercise of
each Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an
adjustment in the number of Warrant Shares as provided in Section 4.7(h)), 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, provided, however, that the Exercise
Price shall not be reduced below par unless the Company has taken action
pursuant to Section 2.8.
(d) For the purpose of this Article 4, 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. If at any time, as a result of an adjustment made pursuant to
Section 4.2 or Section 4.5 above, the holders of Warrants 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 with respect to 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
Section 4.2 through Section 4.5 and subsections (a), (b) and (c) of this
Section 4.7, inclusive, above, and the provisions of Sections 3.2, 3.5, 3.7 and
4.9, with respect to the Warrant Shares, shall apply on like terms to any such
other shares.
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(e) Except as provided in Sections 4.2, 4.3 and 4.4, no adjustment in respect
of any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
(f) 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 issuable
pursuant to this Agreement.
(g) Upon the expiration of any rights, options, warrants or conversion or
exchange privileges, if any thereof shall not have been exercised, the Exercise
Price and the number of Warrant Shares purchasable upon the exercise of each
Warrant shall, upon such expiration, be readjusted and shall thereafter be such
as it would have been had it been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (i) the only shares of
Common Stock so issued were the shares of Common Stock, if any, actually issued
or sold upon the exercise of such rights, options, warrants or conversions or
exchange rights and (ii) such shares of Common Stock, if any, were issued or
sold for the consideration actually received by the Company upon such exercise
plus the aggregate consideration, if any, actually received by the Company for
the issuance, sale or grant of all of such rights, options, warrants or
conversion or exchange rights whether or not exercised; provided, that no such
readjustment shall have the effect of increasing the Exercise Price or
decreasing the number of shares by an amount in excess of the amount of the
readjustment initially made in respect to the issuance, sale or grant of such
rights, options, warrants or conversion or exchange rights.
(h) The Company may elect, on or after the date of any adjustment required by
Section 4.2 through Section 4.5, to adjust the number of Warrants in
substitution for an adjustment in the number of Warrant Shares purchasable upon
the exercise of a Warrant. Each of the Warrants outstanding after such
adjustment of the number of Warrants shall be exercisable for the same number
of Warrant Shares as immediately prior to such adjustment. Each Warrant held of
record prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest hundredth) obtained by dividing
the Exercise Price in effect prior to adjustment of the Exercise Price by the
Exercise Price in effect after adjustment of the Exercise Price. The Company
shall notify the Holders in the same manner as provided in Section 4.8, of its
election to adjust the number of Warrants, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Exercise Price is adjusted or any
date thereafter. Upon each adjustment of the number of Warrants pursuant to
this Section 4.7(h) the Company shall, as promptly as practicable, cause to be
distributed to Holders as of such record date Warrant Certificates evidencing,
subject to Sections 2.8 and 2.11, the additional Warrants to which such holders
shall be entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Warrant Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Warrant Certificates evidencing all the Warrants to be issued,
executed and registered in the manner specified in Sections 3.2 and 3.3 (and
which may bear, at the option of the Company, the adjusted Exercise Price) and
shall be registered in the names of the Holders on the record date specified in
the notice.
SECTION 4.8 NOTICE TO HOLDERS WITH RESPECT TO ADJUSTMENTS. Not more than 30
days following the record date or effective date, as the case may be, of any
adjustment or readjustment pursuant to this Article 4, the Company shall
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal executive office and with the Warrant Agent, an officers' certificate
showing the adjusted number of Warrant Shares purchasable upon exercise of the
Warrants, the additional number of Warrants to be issued for each outstanding
Warrant or the adjusted Exercise Price, as the case may be, determined as
herein provided, setting forth in reasonable detail the facts requiring such
adjustment and the manner of computing such adjustment. Each such officers'
certificate shall be signed by the Chairman, President or Chief Financial
Officer of the Company and by the Secretary or any Assistant Secretary of the
Company. Each such officers' certificate shall be made available at the Warrant
Agent Office all reasonable times for inspection by the Holder or any Holder of
a Warrant and then upon written request of a Holder the Warrant Agent shall
mail a copy of such certificate by first-class mail to such Holder.
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ARTICLE 5
WARRANT AGENT
SECTION 5.1 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, upon the terms and conditions hereinafter set
forth.
SECTION 5.2 WARRANT AGENT. (a) The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the Holders, by their acceptance of the
Warrants, shall be bound:
(i) The statements contained herein and in the Warrant Certificates 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
describes the Warrant Agent or action taken or to be taken by it. Except as
herein otherwise provided, the Warrant Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Warrant
Certificates.
(ii) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or
in the Warrant Certificates to be complied with by the Company nor shall it
at any time be under any duty or responsibility to any Holder to make or
cause to be made any adjustment in the Exercise Price or in the number of
Warrant Shares issuable upon exercise of any Warrant (except as instructed
by the Company), or to determine whether any facts exist which may require
any such adjustments, or with respect to the nature or extent of or method
employed in making any such adjustments when made.
(iii) The Warrant Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and the Warrant Agent shall
incur no liability or responsibility to the Company or any holder of any
Warrant Certificate 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.
(iv) The Warrant Agent shall incur no 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 believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(v) The Company agrees promptly to pay the Warrant Agent the compensation
to be agreed upon with the Company for all services rendered by the Warrant
Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket
expenses (including attorneys' fees and expenses) incurred by the Warrant
Agent without negligence, bad faith or breach of this Agreement on its part
in connection with the services rendered by it hereunder. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against,
any loss, liability or expense (including reasonable attorneys' fees and
expenses) incurred without negligence, bad faith or breach of this
Agreement on the part of the Warrant Agent, arising out of or in connection
with its acting as such Warrant Agent hereunder, as well as the reasonable
costs and expenses of defending against any claim of liability in the
premises. The obligations of the Company under this Section 5.2 shall
survive the termination of this Agreement.
(vi) 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 registered holders of
Warrant Certificates shall furnish the Warrant Agent with reasonable
security and indemnity for any costs or expenses which may be incurred. 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 Warrant
Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and any
recovery or judgment shall be for the ratable benefit of the Holders, as
their respective rights or interests may appear.
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(vii) The Warrant Agent, and any stockholder, director, officer or
employee thereof, 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
they were not the Warrant Agent under this Agreement, or a stockholder,
director, officer or employee of the Warrant Agent, as the case may be.
Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(viii) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may do
or refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
(ix) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
(x) 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 Certificate (except its
countersignature thereof), nor shall the Warrant Agent by any act hereunder
be deemed to make any representation or warrant as to the authorization or
reservation of the Warrant Shares to be issued pursuant to this Agreement
or any Warrant Certificate or as to whether the Warrant Shares will when
issued be validly issued, fully paid and nonassessable or as to the
Exercise Price or the number of Warrant Shares issuable upon exercise of
any Warrant.
(xi) 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 Chief Executive Officer, the President, any
Vice President, the Treasurer, the Secretary or an Assistant Secretary 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 instruction of
any such officer or in good faith reliance upon any statement signed by any
one of such officers of the Company with respect to any fact or matter
(unless other evidence in respect thereof is herein specifically
prescribed) which may be deemed to be conclusively proved and established
by such signed statement.
SECTION 5.3 CHANGE OF WARRANT AGENT. If the Warrant Agent shall resign (such
resignation to become effective not earlier than 60 days after the giving of
written notice thereof to the Company and the Holders) or shall become
incapable of acting as Warrant Agent or if the Board of Directors of the
Company shall by resolution remove the Warrant Agent (such removal to become
effective not earlier than 30 days after the filing of a certified copy of such
resolution with the Warrant Agent and the giving of written notice of such
removal to the registered holders of Warrant Certificates), the Company shall
appoint a successor to the Warrant Agent. If the Company shall fail to make
such appointment within a period of 30 days after such removal or after it has
been so notified in writing of such resignation or incapacity by the Warrant
Agent, then any Holder may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
Warrant Agent, whether appointed by the Company or by such a court, shall be a
bank or trust company, in good standing, incorporated under the laws of any
state or of the United States of America. As soon as practicable after
appointment of the successor Warrant Agent, the Company shall cause written
notice of the change in the Warrant Agent to be given to each of the Holders at
such Holder's address appearing on the Warrant Register. 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. 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, at the expense of the Company, any further
assurance,
II-14
<PAGE>
conveyance, act or deed necessary for the purpose. Failure to give any notice
provided for in this Section 5.3 or any defect therein, shall not affect the
legality or validity of the removal of the Warrant Agent or the appointment of
a successor Warrant Agent, as the case may be.
SECTION 5.4 MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. (a) Any
corporation into which the Warrant Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to the shareholder services 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 5.3.
If at the time such successor to the Warrant Agent shall succeed under this
Agreement, any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent, and if at that time any of the
Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor Warrant Agent;
and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
(b) If at any time the name of the Warrant Agent shall be changed and at such
time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 NOTICES. (a) Except as otherwise provided in Section 6.1(b) any
notice, demand or delivery authorized by this Warrant Agreement shall be
sufficiently given or made when mailed if sent by first-class mail, postage
prepaid, addressed to any Holder of a Warrant at such Holder's address shown on
the Warrant Register and to the parties as follows:
If to the Company:
National Health Laboratories Holdings Inc.
4225 Executive Square
Suite 805
La Jolla, CA 92037
Attention: General Counsel
If to the Warrant Agent:
American Stock Transfer & Trust Company
6201 Fifteenth Avenue
Brooklyn, NY 11219
Attention: Joseph Wolf
or such other address as shall have been furnished to the party giving or
making such notice, demand or delivery.
(b) Any notice required to be given by the Company to the Holders shall be
made by mailing by registered mail, return receipt requested, to the Holders at
their respective addresses shown on the Warrant
II-15
<PAGE>
Register. The Company hereby irrevocably authorizes the Warrant Agent, in the
name and at the expense of the Company, to mail any such notice upon receipt
thereof from the Company. Any notice that is mailed in the manner herein
provided shall be presumed to have been duly given when mailed.
SECTION 6.2 SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may
from time to time supplement or amend this Agreement without the approval of
any Holders in order to cure any ambiguity, manifest error or other mistake in
this Agreement, or to correct or supplement any provision contained herein that
may be defective or inconsistent with any other provision herein, or to make
any other provisions in regard to matters or questions arising hereunder that
the Company and the Warrant Agent may deem necessary or desirable and that
shall not adversely affect, alter or change the interest of the Holders.
SECTION 6.3 TERMINATION. This Agreement shall terminate immediately after (i)
the Company has paid the Redemption Amount with respect to all Holders in the
case of a Redemption or (ii) all Warrant Shares in respect of properly
exercised Warrants have been issued in the case the Company does not elect to
effect a Redemption pursuant to Section 2.7, provided, that the provisions of
Section 5.2 shall survive such termination until such time that the obligations
contemplated thereunder have been performed.
SECTION 6.4 GOVERNING LAW. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
New York and for all purposes shall be governed by and construed in accordance
with the internal laws of such State.
SECTION 6.5 PERSONS BENEFITING. This Warrant Agreement shall be binding upon
and inure to the benefit of the Company and the Warrant Agent, and their
respective successors, assigns, beneficiaries, executors and administrators,
and the Holders of the Warrants. Nothing in this Warrant Agreement is intended
or shall be construed to confer upon any person, other than the Company, the
Warrant Agent and the Holders of the Warrants, any right, remedy or claim under
or by reason of this Warrant Agreement or any part hereof.
SECTION 6.6 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 such counterparts shall together constitute but one and the
same instrument.
SECTION 6.7 HEADINGS. The headings of sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to
be executed and delivered as of the day and year first above written.
NATIONAL HEALTH LABORATORIES
HOLDINGS INC.
By __________________________________
Title:
ATTEST:
-------------------------------------
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By __________________________________
Title:
ATTEST:
-------------------------------------
II-16
<PAGE>
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
VOID AFTER APRIL 28, 2000
CERTIFICATE NUMBER NUMBER OF WARRANTS
CUSIP
NATIONAL HEALTH LABORATORIES HOLDINGS INC.
WARRANTS TO ACQUIRE COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF
NATIONAL HEALTH LABORATORIES HOLDINGS INC.
This Warrant Certificate certifies that or registered assigns, is
the registered holder (the "HOLDER") of the number of warrants set forth above
(each, a "WARRANT") issued by National Health Laboratories Holdings Inc., a
Delaware corporation (the "COMPANY"), subject to the terms and conditions set
forth herein and in the Warrant Agreement referred to on the reverse side
hereof. Each Warrant entitles the Holder thereof to purchase from the Company
one fully paid and nonassessable share (a "WARRANT SHARES") of common stock,
$0.01 par value (the "COMMON STOCK"), of the Company at the initial exercise
price per share of $22.00 (the "EXERCISE PRICE"), payable in lawful money of
the United States of America, subject to adjustment as described below. The
Warrants evidenced by this Certificate expire at the Close of Business on April
28, 2000 (the "EXPIRATION DATE"), unless such date is extended at the option of
the Company as set forth in the Warrant Agreement referred to on the reverse
side hereof.
Subject to the terms and conditions set forth herein and in the Warrant
Agreement referred to on the reverse hereof, a Warrant may be exercised upon
proper surrender of this Warrant Certificate and payment of the aggregate
Exercise Price to American Stock Transfer & Trust Company (the "WARRANT AGENT")
at or such other of its offices notified to Warrant Holders (the
"WARRANT AGENT OFFICE").
The number of Warrants, Exercise Price and the number of Warrant Shares
purchasable upon exercise of a Warrant are subject to adjustment upon the
occurrence of certain events as set forth in Article 4 of the Warrant Agreement
referred to on the reverse side hereof.
Upon notice to the Warrant Agent in accordance with the Warrant Agreement,
the Company may at its sole option elect to redeem all but not less than all of
the Warrants on the Expiration Date by payment of an amount in cash in respect
of each Warrant equal to the Redemption Amount (as defined in the Warrant
Agreement). If the Company shall have duly elected to redeem the Warrants but
the aggregate Redemption Amount is zero or less than zero, no amount shall be
required to be paid by the Company in respect of the redemption of the Warrants
but the Warrants shall nonetheless be deemed to have been redeemed.
A Warrant may only be exercised prior to the Close of Business on the
Expiration Date and only if the Company shall not have elected to redeem the
Warrants (provided that the Warrant Agent will accept surrenders of Warrant
Certificates and payments of the Exercise Price in respect of Warrants to be
exercised during the 45-day period preceding the Expiration Date, but such
Warrants will not be deemed to have been exercised until the Expiration Date).
As of the Close of Business on the Expiration Date, the Warrants will become
wholly void and of no value.
This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT
CERTIFICATE SET FORTH ON THE REVERSE SIDE. SUCH FURTHER PROVISIONS SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
II-A-1
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by
its duly authorized officer, and the corporate seal hereunto affixed.
Dated:
NATIONAL HEALTH LABORATORIES
HOLDINGS INC.
By __________________________________
[Title]
[Corporate Seal of National Health
Laboratories Holdings Inc.]
ATTEST:
By __________________________________
Countersigned:
AMERICAN STOCK TRANSFER & TRUST
COMPANY, AS WARRANT AGENT
By __________________________________
II-A-2
<PAGE>
[FORM OF REVERSE OF WARRANT CERTIFICATE]
NATIONAL HEALTH LABORATORIES HOLDINGS INC.
THIS WARRANT CERTIFICATE IS ISSUED UNDER AND IN ACCORDANCE WITH A WARRANT
AGREEMENT, DATED AS OF APRIL , 1995 BETWEEN THE COMPANY AND THE WARRANT AGENT
(THE "WARRANT AGREEMENT"), AND IS SUBJECT TO THE TERMS AND CONDITIONS CONTAINED
IN THE WARRANT AGREEMENT. THE WARRANT AGREEMENT IS HEREBY INCORPORATED BY
REFERENCE IN AND MADE A PART OF THIS INSTRUMENT AND IS HEREBY REFERRED TO FOR A
DESCRIPTION OF THE RIGHTS, LIMITATION OF RIGHTS, OBLIGATIONS, DUTIES AND
IMMUNITIES THEREUNDER OF THE WARRANT AGENT, THE COMPANY AND THE HOLDERS. A COPY
OF THE WARRANT AGREEMENT MAY BE INSPECTED AT THE WARRANT AGENT OFFICE AND IS
AVAILABLE UPON WRITTEN REQUEST ADDRESSED TO THE WARRANT AGENT AT THE WARRANT
AGENT OFFICE. ALL TERMS USED HEREIN THAT ARE DEFINED IN THE WARRANT AGREEMENT
HAVE THE MEANINGS ASSIGNED TO THEM THEREIN.
Warrants may be exercised to purchase Warrant Shares from the Company on the
Expiration Date, at the Exercise Price set forth on the face hereof, subject to
adjustment as described in the Warrant Agreement, but only if the Company shall
not have elected to redeem the Warrants as described below. The registered
Holder of the Warrants evidenced by this Warrant Certificate may exercise such
Warrants by surrendering to the Warrant Agent the Warrant Certificate, with the
form of election to exercise set forth hereon properly completed and executed,
together with payment of the aggregate Exercise Price, in lawful money of the
United States of America, and any applicable transfer taxes, to the Warrant
Agent at the Warrant Agent Office. Although such surrender and payment will be
accepted during the 45-day period preceding the Expiration Date, Warrants will
not be deemed to have been exercised until the Expiration Date.
No adjustment shall be made for any cash dividends on any Warrant Shares
issuable upon exercise of this Warrant.
Upon notice to the Warrant Agent, the Company may at its sole option elect to
redeem all but not less than all Warrants on the Expiration Date by payment of
an amount in cash in respect of each Warrant equal to the Redemption Amount (as
defined in the Warrant Agreement). If the Company shall have duly elected to
redeem the Warrants but the aggregate Redemption Amount is zero or less than
zero, no amount shall be required to be paid by the Company in respect of the
redemption of the Warrants but the Warrants shall nonetheless be deemed to have
been redeemed.
Warrants shall expire at and become null and void and have no value and no
Person shall have any rights thereto as of the Close of Business on the
Expiration Date, provided, however, that, notwithstanding such expiration,
Holders that have properly exercised Warrants in accordance herewith and with
the Warrant Agreement shall be entitled to receive Warrant Shares with respect
to such Holders' Warrants unless the Company shall have elected to redeem the
Warrants as described below, in which case each Holder shall be entitled to
receive the Redemption Amount.
No certificates or scrip representing fractional Warrant Shares shall be
issued upon exercise of a Warrant. As promptly as practicable following the
Expiration Date, if the Company shall not have elected to redeem the Warrants,
the Company shall pay to each Holder otherwise entitled to receive fractional
Warrant Shares, if any, a cash amount in lieu of such fractional Warrant Shares
which shall be equal to the proceeds from the sale of such Holder's fractional
Warrant Shares, without interest thereon and after deduction of all
commissions, transfer taxes and other out-of-pocket transaction costs,
including the expenses and compensation of the Transfer Agent, incurred in
connection with such sale of the fractional Warrant Shares.
Warrant Certificates, when surrendered at the Warrant Agent Office thereof in
person or by a legal representative or attorney duly authorized in writing, may
be exchanged, in the manner and subject to the
II-A-3
<PAGE>
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing a Warrant to purchase in the aggregate a like number of
Warrant Shares.
A new Warrant Certificate or Warrant Certificates of like tenor and
evidencing a Warrant or Warrants to purchase in the aggregate a like number of
Warrant Shares shall be issued to a transferee designated by a Holder upon
surrender of a Warrant Certificate, duly endorsed, and accompanied by a written
instrument or instruments of transfer in a form satisfactory to the Warrant
Agent, duly signed by the Holder or Holders or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (i) a bank or trust company, (ii) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. or (iii) a
member of a national securities exchange, and funds sufficient to pay any
transfer taxes payable on such transfer.
Notwithstanding the foregoing, the Warrant Agent shall not be required to
transfer or exchange any Warrant Certificate from and after the 105th day
preceding the scheduled Expiration Date provided that if, in the notice
provided by the Company pursuant to Section 2.5 of the Warrant Agreement, the
Company shall not have elected to redeem the Warrants, then the Warrant Agent
shall permit transfers or exchanges of Warrant Certificates from and after the
mailing of the notice to Holders referred to in Section 2.5 of the Warrant
Agreement but shall not be required to transfer or exchange any Warrant
Certificate from and after the 15th day preceding the Expiration Date.
The Company and its subsidiaries shall have the option, in their sole
discretion, at any time or from time to time, to purchase Warrants (i) in the
public market, (ii) by tender or exchange offer available to all Holders at any
price or (iii) in private transactions at a price not more than ten percent
(10%) over the Market Price (as defined in the Warrant Agreement) of the
Warrants as of the closing date of each such transaction respectively. Warrants
acquired by the Company or its subsidiaries shall be canceled and shall not be
available for reissuance or resale.
The Company and the Warrant Agent may deem and treat the registered holder
hereof as the absolute owner of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone) for the purpose
of any exercise hereof and for all other purposes, and neither the Company nor
the Warrant Agent shall be affected by any notice to the contrary.
II-A-4
<PAGE>
FORM OF ELECTION TO EXERCISE
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
The undersigned hereby irrevocably elects to exercise the right represented
by this Warrant Certificate to receive shares of Common Stock and
herewith tenders payment for such shares to the order of in the
amount of $ in lawful money of the United States of America by certified
or official bank check or by wire transfer in accordance with the terms hereof
(which amount includes $ in payment of applicable transfer taxes, if
any.) The undersigned requests that a certificate for such shares be registered
in the name of whose address is and that such
shares be delivered to whose address is and that
such Warrant Certificate is delivered to whose address is
.
Dated: , 19 Signature: __________________________
Note: The above signature must
correspond with the name as written
upon the face of the Warrant
Certificate in every particular
without alteration or enlargement or
any change whatsoever.
Signature
Guaranteed: _________________________
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
UNIF GIFT MIN ACT- under Uniform Gift to Minors Act
(custodian) (partner) (citation)
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants and not as tenants
Additional abbreviations may also be used though not in the above list.
II-A-5
<PAGE>
FORM OF ASSIGNMENT
(TO BE EXECUTED BY REGISTERED HOLDER UPON ASSIGNMENT OF THE WARRANT)
FOR VALUE RECEIVED, the undersigned registered Holder hereby sells, assigns,
and transfers unto whose address is the
Warrants represented by this Warrant Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
attorney, to transfer the within Warrant Certificate on the books
of the Warrant Agent, with full power of substitution.
Dated: , 19 Signature: __________________________
Note: The above signature must
correspond with the name as written
upon the face of the Warrant
Certificate in every particular
without alteration or enlargement or
any change whatsoever.
Signature
Guaranteed: _________________________
II-A-6
