EXHIBIT 99(C)
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE,
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED
UNDER THAT ACT AND UNDER APPLICABLE STATE SECURITIES LAW OR REGISTRATION OF SUCH
SECURITIES UNDER THAT ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED AND AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER HAS BEEN DELIVERED TO SUCH EFFECT.
GENERAL AQUATICS, INC.
WARRANT TO PURCHASE COMMON STOCK
Dated as of _________, 1996
GENERAL AQUATICS, INC., a Delaware corporation (the "Company"), hereby
certifies that, for value received, ANTHONY INDUSTRIES, INC., a Delaware
corporation ("Anthony"), is entitled to purchase from the Company all or any
part of an aggregate of ________ shares (the "Warrant Shares") of the Company's
common stock ("Common Stock"), par value $.01 per share, at an exercise price
per Warrant Share of $________ (the "Exercise Price"), at any time or from time
to time following the occurrence of a Liquidity Event (as defined below) and on
or before 5:00 p.m., Los Angeles time, on _______________, 2001 (the "Expiration
Date"), subject to the following terms and conditions.
Section 1. Duration, Termination and Exercise of Warrants.
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(a) Exercisability. This Warrant shall be exercisable by the holder
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hereof at any time or from time to time on or following the occurrence of a
Liquidity Event and before the Expiration Date. At 5:00 p.m., Los Angeles time,
on the Expiration Date, to the extent not exercised, this Warrant shall be and
become void and of no value. "Liquidity Event" shall mean the occurrence of (i)
any Mandatory Exercise Event (as defined below), (ii) any of the events set
forth in paragraphs (iii), (v), (vi) and (vii) of Section 5(k), (iii) the
declaration or payment of any dividend or distribution on the Common Stock in
connection with, or of the proceeds from, the sale of any subsidiary or business
segment of the Company or the sale of any significant portion of the Company's
or any of its subsidiary's assets other than in the ordinary course of business,
and (iv) any distribution of assets by the Company to the holders of its Common
Stock by liquidating or partial liquidating dividend or by way of return of
capital, or other than as a dividend payable out of the earnings or any surplus
legally available for dividends or distributions under applicable law.
(b) Method of Exercise. Subject to Sections 7 and 8 hereof, upon (i)
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surrender of this Warrant, with the Form of Election to Purchase attached as
Annex B hereto (the "Form of Election to Purchase") duly filled in and signed,
to the Company at its office at 10951 West Los Angeles Avenue, Moorpark,
California 93021, Attention: President, or at such other address as the Company
may specify in writing to the then-holder of this Warrant and (ii) payment of
the Exercise Price, multiplied by the number of Warrants Shares for which this
Warrant is being exercised, the holder shall be deemed the owner of the Warrant
Shares for which this Warrant is being exercised and the Company shall promptly,
but in any event within ten days of its receipt of the Form of Election to
Purchase, together with this Warrant and receipt of payment of the Exercise
Price, issue and cause to be delivered to or upon the
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written order of the holder of this Warrant, and in such name or names as such
holder may designate, a certificate or certificates for the Warrant Shares
issued upon such exercise of this Warrant; provided, however, that in connection
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with the occurrence of a Mandatory Exercise Event or any of the events specified
in Section 5(k), if so requested by the holder of this Warrant, the Company
shall cause this Warrant to be exercised and the Warrant Shares to be delivered
simultaneously with the occurrence of such event and otherwise in a manner
designed to permit the holder of this Warrant to fully participate as a holder
of shares of Common Stock in the consideration to be received by the holders of
the Common Stock in connection with such event. The election of the holder of
this Warrant to exercise the Warrant in whole or in part may, in connection with
the occurrence of a Mandatory Exercise Event or any of the events specified in
Section 5(k), be conditioned upon the occurrence of such Mandatory Exercise
Event or such other event specified in Section 5(k).
(c) Payment of Exercise Price. In lieu of delivering all or any
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portion of the Exercise Price in cash, a holder may, at its option, submit Debt
Securities (as such term is defined in that certain Asset Purchase Agreement,
dated as of _______________________________ between the Company, Anthony and KDI
Sylvan Pools, Inc., a wholly owned subsidiary of the Company (the "Purchase
Agreement"), to the Company for cancellation, the principal amount of such Debt
Securities to be cancelled on a dollar-for-dollar basis with all or any portion
of the Exercise Price of the Warrant Shares being acquired. If any portion of
the principal amount of such Debt Securities remains outstanding after such
cancellation, the Company shall deliver to or upon such holder's order one or
more Debt Securities in a principal amount equal in the aggregate to such
remaining principal amount and each dated the later of the date of, or the date
to which interest has been paid on, the Debt Securities so submitted for
cancellation, and registered in such name or names as shall be specified by such
holder.
(d) Partial Exercise. This Warrant may be exercised in whole or in
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part. In the event of a partial exercise, the holder shall be entitled to
receive a new Warrant, in substantially the form of this Warrant, covering the
number of Warrant Shares in respect of which this Warrant shall not have been
exercised.
(e) Mandatory Exercise. This Warrant will be subject to
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mandatory exercise as follows:
(i) Concurrently with the occurrence of any of the Mandatory
Exercise Events specified in clauses (ii)-(iv) of Section 1(g) below, the
holder of this Warrant shall be required to exercise this Warrant in full;
provided, however, that such mandatory exercise shall only be required if
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as a result of such exercise, upon the occurrence of such Mandatory
Exercise Event, such holder receives cash consideration in excess of the
aggregate Exercise Price paid by such holder upon exercise of this Warrant.
(ii) Concurrently with the occurrence of the Mandatory Exercise
Event specified in clause (i) of Section 1(g) (an "IPO") and, from and
after the occurrence of such a Mandatory Exercise Event, concurrently with
any underwritten public offering of Common Stock pursuant to an effective
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") (a "Secondary Offering"), in which offering the holder of
this Warrant is permitted to participate, the holder shall be required to
exercise this Warrant for a number of Warrant Shares (up to a maximum of
the number of Warrant Shares issuable hereunder) such that the number of
Warrant Shares issuable upon such exercise is equal to the sum of (A) the
number of shares of Common Stock the holder is being permitted
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to sell in such public offering (and, subject to the proviso below, the
holder shall be required to sell such shares in such public offering), plus
(B) a number of shares of Common Stock sufficient such that upon the
consummation of such public offering and the sale of all shares being sold
therein, the number of shares of Common Stock from any source owned by
Anthony and its affiliates is equal to 19% of the then outstanding
shares of Common Stock of the Company; provided, however, that (x) in the
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case of an IPO, the holder shall only be required to sell shares of Common
Stock in such IPO if the per share sales price of the Common Stock in such
IPO exceeds the price to be paid for Warrant Shares upon exercise of this
Warrant, provided that regardless of the per share sales price of the
Common Stock, the holder shall be required to exercise this Warrant such
that the aggregate Common Stock ownership of Anthony and its affiliates is
increased to 19% of the then outstanding shares of Common Stock and (y) in
the case of a Secondary Offering, if the per share sales price of the
Common Stock in such Secondary Offering is less than the price to be paid
for Warrant Shares upon exercise of this Warrant, the holder shall neither
be required to sell shares of Common Stock in such Secondary Offering nor
be required to exercise this Warrant to increase the Common Stock ownership
of Anthony and its affiliates to 19% of the then outstanding shares of
Common Stock.
(iii) From and after the occurrence of the Mandatory Exercise
Event specified in clause (i) of Section 1(g), not later than ten (10) days
following any sale of shares of Common Stock by Anthony or any of its
affiliates to any unaffiliated third party, the holder of this Warrant
shall exercise this Warrant for a number of Warrant Shares sufficient such
that upon the completion of such exercise, the number of shares of Common
Stock from any source owned by Anthony and its affiliates is equal to 19%
of the then outstanding shares of Common Stock of the Company.
(iv) Notwithstanding the foregoing provisions of this Section
1(f), in no event shall Anthony or any affiliate or Anthony be required
pursuant to this Section 1(f) to exercise this Warrant in whole or in part
if as a result of such exercise, Anthony and its affiliates would own in
the aggregate in excess of 19% of the then outstanding shares of Common
Stock of the Company.
(f) Intentionally left blank.
(g) Mandatory Exercise Event. "Mandatory Exercise Event" shall
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mean any of the following events:
(i) the consummation of a firm commitment underwritten public
offering of Common Stock pursuant to an effective registration statement
under the Securities Act for the account of the Company at an aggregate
offering price in excess of $10,000,000;
(ii) a consolidation, merger, sale of all or substantially all of
the assets of the Company, reorganization or restructuring pursuant to
which the holders of outstanding shares of Common Stock are entitled to
receive, on a per share basis, cash consideration in an amount greater than
the Exercise Price;
(iii) a dissolution or liquidation of the Company in which the
holders of the outstanding shares of Common Stock are entitled to receive,
on a per share basis, cash consideration in an amount greater than the
Exercise Price; or
(iv) any other similar event pursuant to which the holders of the
outstanding shares of Common Stock are entitled to receive, on a per share
basis, cash consideration in an amount greater than the Exercise Price.
3
Section 2. Payment of Taxes. The Company shall pay all issuance and
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transfer taxes and charges that may be imposed on the Company or on this Warrant
or the Warrant Shares in respect of the issuance or delivery of the Certificates
for Warrant Shares or other securities in respect of the Warrant Shares upon the
exercise of this Warrant.
Section 3. Mutilated or Missing Warrant. If this Warrant shall be
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mutilated, lost, stolen or destroyed, upon request by the holder the Company
shall issue, in exchange for and upon cancellation of the mutilated Warrant, or
in substitution for the lost, stolen or destroyed Warrant, a new Warrant, in
substantially the form of this Warrant, of like tenor and exercisable for the
same number of Warrant Shares, but, in the case of loss, theft or destruction,
only upon receipt of a bond of indemnity reasonably satisfactory to the Company.
In case this Warrant is held by Anthony or any of its affiliates, Anthony's own
unsecured agreement of indemnity shall be deemed satisfactory to the Company.
Section 4. Reservation and Issuance of Warrant Shares.
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(a) The Company shall at all times have authorized, and reserve and
keep available, for the purpose of enabling it to satisfy any obligation to
issue Warrant Shares upon the exercise of this Warrant, the number of Warrant
Shares deliverable upon exercise of this Warrant. The Company shall take any
further corporate action which may be necessary in order that the Company may
validly and legally issue, at the Exercise Price, Warrant Shares that are fully-
paid and nonassessable.
(b) The Company covenants that all Warrant Shares will, upon issuance
in accordance with the terms of this Warrant, be (i) duly authorized, validly
issued, fully-paid and nonassessable and (ii) free from all taxes or other
governmental charges with respect to the issuance thereof (not including (y)
income taxes payable by the holder of this Warrant in respect of gains upon
exercise, and (z) transfer taxes, except as provided in Section 2 above) and
from all liens, charges and security interests created by the Company.
((c) To the extent that any exercise of Warrants is subject to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended and related
regulations (the "HSR Act"), the Company shall promptly upon the request of the
holder of this Warrant, cooperate with such holder in complying with the HSR
Act, including providing copies of relevant information regarding the Company
and, if required under the HSR Act, preparing and filing with the Federal Trade
Commission and the Department of Justice a Notification and Report Form pursuant
to the HSR Act.
Section 5. Adjustments.
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(a) Adjustments of Number of Warrant Shares and Exercise Price. The
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number of Warrant Shares issuable upon the exercise of this Warrant and the
Exercise Price for such Warrant Shares shall be subject to adjustment from time
to time as hereinafter provided. The number of Warrant Shares resulting from
such adjustment is sometimes hereinafter referred to as the "Adjusted Warrant
Share Amount".
(b) Dividends. In case the Company shall, at any time prior to the
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complete exercise of this Warrant, declare or pay to the holders of Common
Stock, a dividend payable in any kind of shares of stock or other securities of
the Company (other than Common Stock), or in property (other than cash), the
holder of this Warrant upon thereafter exercising
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the same as herein provided shall be entitled to receive for the Exercise Price,
in addition to the then applicable Adjusted Warrant Share Amount, such
additional share or shares of stock or scrip representing fractions of a share
or other securities or property as such holder would have received in the form
of such dividend if he had been the holder of record of that number of shares of
Common Stock reflected by the then applicable Adjusted Warrant Share Amount on
the record date for the determination of common stockholders entitled to receive
such dividend.
(c) Recapitalization or Combination of Common Stock. In case the
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Company shall, at any time prior to the exercise in full of this Warrant, effect
a recapitalization of such character that the shares of Common Stock covered
hereby shall be changed into or become exchangeable for a larger or smaller
number of shares (including any stock dividend, stock split or other issuance of
Common Stock without consideration), then thereafter, the number of shares of
Common Stock of the Company which the holder hereof shall be entitled to
purchase hereunder, shall be increased or decreased, as the case may be, in
direct proportion to the increase or decrease in the number of shares of Common
Stock of the Company, by reason of such recapitalization, and the Exercise Price
hereunder of such recapitalized Common Stock shall in the case of an increase in
the number of shares be proportionately reduced, and in the case of a decrease
in the number of shares be proportionately increased.
(d) Consolidation or Merger of Company. In case the Company shall, at
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any time prior to the exercise in full of this Warrant, consolidate or merge
with, or transfer its property as an entirety to, or substantially as an
entirety to, any affiliated person, the holder of this Warrant upon thereafter
exercising the same as herein provided shall be entitled to receive, for the
Exercise Price, that number of shares of stock or other securities or property
of such other person resulting from such consolidation or merger or transfer to
which each share of Common Stock issuable upon exercise of this Warrant would
have been entitled, upon such consolidation or merger or transfer, had such
holder exercised his right to purchase and had said shares of Common Stock been
issued and outstanding, and had such holder been the holder of record of such
shares of Common Stock at the time of such consolidation or merger or transfer.
(e) [Intentionally left blank.]
(f) Termination Upon Certain Events. In case of the dissolution,
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liquidation or winding-up of the Company, all rights under this Warrant shall
terminate on a date fixed by the Company, such date so fixed to be not earlier
than the date of such dissolution, liquidation or winding-up. In the case of
the consolidation or merger of the Company with, or the transfer of its property
in its entirety to, or substantially in its entirety to, any unaffiliated third
party, this Warrant shall terminate upon such merger, consolidation or transfer,
except to the extent required to be exercised in connection with such
consolidation, merger or transfer of payment pursuant to Section 1(e).
(g) Notice of Adjustment. Upon any adjustment of the Exercise Price
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and/or any increase or decrease in the Adjusted Warrant Share Amount, then, and
in each case, the Company, within 30 days thereafter, shall give written notice
thereof, by first class mail, postage prepaid, addressed to the holder of this
Warrant at the address of the holder as shown on the books of the Company which
notice shall state the adjusted Exercise Price and/or the increased or decreased
number of Warrant Shares purchasable upon the exercise of this Warrant, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
5
(h) Notices of Record Dates. Not less than twenty (20) days prior to
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such event, the Company shall notify the holder that (a) a record will be taken
for the purpose of determining the holders of the shares of Common Stock (or
other securities at the time deliverable on exercise of this Warrant) entitled
to dividends (other than cash dividends) or distributions, or (b) a record will
be taken for the purpose of determining the holders of the shares of Common
Stock (or other securities at the time deliverable on exercise of this Warrant)
entitled to notice of and to vote at the meeting of shareholders of which any
recapitalization, consolidation, merger, dissolution, liquidation, winding up or
sale shall be considered and acted upon, as the case may be.
(i) Adjustment With Respect to Subordinated Note. In case, while this
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Warrant remains in force, there shall be a reduction in the principal amount of
the Subordinated Note dated as of ________________________, 1995 and made by the
Company in favor of Anthony in the original principal amount of $_______ (the
"Subordinated Note") as a result of claims for indemnification asserted by the
Company against Anthony pursuant to the Purchase Agreement or pursuant to
Section 10.10 of the Purchase Agreement, the number of Warrant Shares issuable
upon exercise of this Warrant shall be decreased in direct proportion to the
decrease in the principal amount of the Subordinated Note and the Exercise Price
per Warrant Share shall remain unchanged.
(j) Intentionally left blank.
(k) Other Notices. In case at any time:
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(i) the Company shall declare or pay any cash dividend on the
Common Stock;
(ii) the Company shall declare or pay any dividend payable in
stock upon the Common Stock or make any distribution to the holders of the
Common Stock;
(iii) the Company shall offer for subscription pro rata to the
holders of the Common Stock any additional shares of stock of any class or
other rights;
(iv) the Company shall authorize the distribution to all holders
of the Common Stock of evidences of its indebtedness or assets;
(v) there shall be any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation or
merger of the Company with another person (other than a subsidiary of the
Company in which the Company is the surviving or continuing corporation and
no change occurs in the Common Stock of the Company), or sale of all or
substantially all of the Company's assets to, another person;
(vi) there shall be a voluntary or involuntary dissolution,
liquidation, bankruptcy, assignment for the benefit of creditors or winding
up of the Company;
(vii) the Company shall register any shares of Common Stock
pursuant to an effective Registration Statement under the Securities Act
for the account of the Company or any other person; or
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(viii) the Company proposes to take any other action or an event
occurs which would require an adjustment pursuant to paragraph (l) of this
Section 5;
then, in any one or more of such cases, the Company shall give written notice,
addressed to the holder of this Warrant at the address of such holder as shown
on the books of the Company, of (A) the date on which the books of the Company
shall close or a record shall be taken for any such dividend, distribution or
subscription rights, as the case may be, or (B) the date (or, if not then known,
a reasonable approximation thereof by the Company) on which any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, bankruptcy, assignment for the benefit of creditors, winding up or
other action, as the case may be, shall take place. Such notice shall also
specify (or, if not then known, reasonably approximate) the date as of which the
holders of Common Stock of record shall participate in any such dividend,
distribution or subscription rights, as the case may be, or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
any such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, bankruptcy, assignment for the benefit of creditors,
winding up, or other action, as the case may be. Such written notice shall also
state that the action in question or the record date is subject to the
effectiveness of a registration statement under the Securities Act or to a
favorable vote of security holders, if either is required. Such written notice
shall be given (1) at least 15 days prior to any event specified in any of
clauses (i), (ii), (iii), (iv), (v), (vii) or (viii) of this Section 5(k) and
at least five days prior to the date on which the books of the Company shall
close or a record shall be taken for such event, and (2) with respect to events
specified in clause (vi) of this Section 5(k), (x) at least (15) days prior to
a voluntary dissolution or liquidation of the Company or a voluntary bankruptcy,
assignment for the benefit of creditors or winding up of the Company, or (z)
promptly after an involuntary bankruptcy, assignment for the benefit of
creditors or winding up of the Company. The failure to give such written notice
required by this Section 5(k) or any defect therein shall not affect any vote
upon, or the taking of, any such action.
(l) Certain Events. If any event occurs as to which in the
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reasonable, good faith opinion of the Company, the other provisions of this
Section 5 are not strictly applicable but the lack of any adjustment would not
in the opinion of the Company fairly protect the purchase rights of the holder
of this Warrant in accordance with the basic intent and principles of such
provisions, or if strictly applicable would not fairly protect the purchase
rights of the holder of this Warrant in accordance with the basic intent and
principles of such provisions, then the Company shall, on a basis consistent
with the basic intent and principles established in the other provisions of this
Section 5, effect such adjustment as it reasonably and in good faith deems
necessary to preserve, without dilution, the exercise rights of the holder of
this Warrant.
(m) Prohibition of Certain Action. The Company shall not, by
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amendment of its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed under this
Warrant by the Company, but shall at all times in good faith assist in the
carrying out of all the provisions of this Section 5. Without limiting the
generality of the foregoing, the Company (a) shall not increase the par value of
any shares of Common Stock receivable upon the exercise of this Warrant to an
amount that is greater than the Exercise Price then in effect, (b) shall 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 and (c) shall not take any action which
7
results in any adjustment of the Adjusted Warrant Share Amount if such Adjusted
Warrant Share Amount issuable after the action would exceed the total number of
shares of Common Stock then authorized by the Company's certificate of
incorporation and available for the purpose of issue upon such exercise.
Section 6. No Stock Rights. No holder of this Warrant, as such,
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shall be entitled to vote or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise
hereof, nor shall anything contained herein be construed to confer upon the
holder of this Warrant, as such, the rights of a stockholder of the Company or
the right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, to exercise any preemptive right, to receive notice of
meetings or other actions affecting stockholders (except as provided herein), or
to receive dividends or subscription rights or otherwise, until the exercise of
this Warrant in accordance with its terms.
Section 7. Fractional Warrant Shares. In issuing Warrant Shares, the
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Company shall round fractional interests to the nearest whole Warrant Share.
Section 8. Absence of Registration. Neither this Warrant nor the
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Warrant Shares have been registered under the Securities Act. The holder of
this Warrant, by acceptance hereof, represents that such holder is acquiring
this Warrant for such holder's own account and not with a view to the
distribution thereof, and agrees not to sell, transfer, pledge or hypothecate
this Warrant or any Warrant Shares except in compliance with applicable Federal
and state securities laws.
Section 9. General Provisions.
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(a) Notices. All notices, requests, demands and other communications
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relating to this Warrant shall be in writing, including by telecopier, telex,
telegram or cable, addressed, if to the registered owner hereof, to it at the
address furnished by the registered owner to the Company, and if to the Company,
at its office at 10951 West Los Angeles Avenue, Moorpark, California 93021,
Attention: Chief Executive Officer, or to such other address as any party shall
notify the other party in writing, and shall be effective, in the case of
written notice by mail, three days after placement into the mails (first class,
postage prepaid), and in the case of notice by telex, telecopier, telegram or
cable, on the same day as sent.
(b) Binding Effect. This Warrant shall be binding upon and inure to
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the sole and exclusive benefit of the Company, its successors and assigns, and
the holder or holders from time to time of this Warrant and the Warrant Shares.
(c) Survival of Rights and Duties. This Warrant shall terminate and
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be of no further force and effect on the earlier of 5:00 p.m., Los Angeles time,
on the Expiration Date or the date on which all of the Warrants have been
exercised, except that the provisions of Sections 2, 4(b) and 8 of this Warrant
shall continue in full force and effect after such termination date.
(d) Governing Law. This Warrant shall be construed in accordance with
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and governed by the laws of the State of Delaware without regard to principles
of conflicts of laws.
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(e) Modification and Waiver. This Warrant and any term hereof may be
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changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized as of the date hereof.
GENERAL AQUATICS, INC.
By:
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Name:
-------------------------------------------
Title:
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9
ANNEX A
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, ________________________________ hereby sells,
assigns and transfers to the assignee set forth below all of right, title and
interest of the undersigned in and to the foregoing Warrant.
Social Security or
Name of Assignee Other Identifying Number Address
- ---------------- ------------------------ -------
Dated:
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(Signature)
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
A-1
ANNEX B
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FORM OF ELECTION TO PURCHASE
(To Be Executed by the Holder if the Holder Desires to Exercise All or Any
Portion of the foregoing Warrant)
To General Aquatics, Inc.:
The undersigned hereby elects to exercise the foregoing Warrant for,
and to purchase thereunder, Warrant Shares (as defined in such Warrant) issuable
upon exercise of such Warrant and payment by the Holder of the Exercise Price.
In connection with the occurrence of a Mandatory Exercise Event (as defined in
the Warrant) or any of the events specified in Section 5(k) of the Warrant, and
by the delivery to the Company of a request from the undersigned concurrently
with the delivery of this Form of Election to Purchase, the undersigned may
elect to condition the exercise of the Warrant upon the occurrence of such
Mandatory Exercise Event or such other event specified in Section 5(k).
The Holder hereby elects to pay the Exercise Price as follows:
A. the delivery of $_________ in cash or by certified bank check and
any applicable taxes, subject to Section 2 of the Warrant, payable by the
undersigned pursuant to the Warrant; and
B. the delivery of $______________ principal amount of Debt
Securities, $____________ of such principal amount to be cancelled in payment of
the Exercise Price.
The undersigned requests that certificates for such shares be issued
in the name of the following:
PLEASE PRINT NAME AND ADDRESS PLEASE INSERT SOCIAL SECURITY OR TAX
IDENTIFICATION NUMBER
- --------------------------------- -----------------------------------------
- ---------------------------------
- ---------------------------------
- -------------------------------------------------------------------------------
If such number of Warrant Shares shall not constitute all the Warrant
Shares issuable upon exercise of the foregoing Warrant, the undersigned requests
that a new Warrant for the Warrant Shares not so exercised be issued in the name
of and delivered to the following:
B-1
PLEASE PRINT NAME AND ADDRESS PLEASE INSERT SOCIAL SECURITY OR TAX
IDENTIFICATION NUMBER
- --------------------------------- -----------------------------------------
- ---------------------------------
- ---------------------------------
Capitalized terms used herein but not otherwise defined shall have the meanings
ascribed to them in the Warrant.
Dated:
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(Signature)
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
B-2