Exhibit 99.03
AMENDED WARRANT
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No sale, offer to sell or transfer
of the securities represented by this
certificate or any interest therein
shall be made unless a registration
statement under the Securities Act of
1933, as amended, with respect to such
transaction is then in effect, or the
issuer has received an opinion of
counsel satisfactory to it that such
transfer does not require registration
under that Act.
This warrant will be void after 5:00 p.m. New York time on March 31, 1997.
AMENDED NON-REDEEMABLE COMMON STOCK PURCHASE WARRANT
To subscribe for the Purchase of up to 400,000 Shares of Common Stock of
EASTCO INDUSTRIAL SAFETY CORP.
(Transferability Restricted as Provided in Paragraphs 7 and 8 Below)
THIS CERTIFIES THAT, for value received, the Holder hereof or his
registered assigns, is entitled to subscribe for and purchase from Eastco
Industrial Safety Corp., incorporated under the laws of the State of New York
(the "Company"), up to 400,000 fully paid and non-assessable shares of Common
Stock, at the "Warrant Price" and during the period hereinafter set forth,
subject, however, to the provisions and upon the terms and conditions
hereinafter set forth.
1. DEFINITIONS. As used herein:
1.1 "Common Stock" or "Common Shares" shall refer to the Company's
common stock, $.12 par value per share.
1.2 "Holder" shall refer to the registered holder of
this Warrant.
1.3 "Warrant Price" shall refer to the amount required to purchase
a share of Common Stock and shall be $2.00 which is subject
to adjustment pursuant to Section 3 hereof.
2. EXERCISE OF WARRANT.
2.1 Exercisability. The purchase rights represented by this
Warrant may be exercised by the Holder, in whole or in part, at any time and
from time to time, during the period commencing on the date hereof (the
"Commencement Date") until 5:00 p.m. New York Time on March 31, 1997 (the
"Expiration Date"), by the presentation of this Warrant, with the purchase
form attached duly executed, at the Company's office (or such office or agency
of the Company as it may designate in writing to the Holder hereof by notice
pursuant to Section 9 hereof), and upon payment by the Holder to the Company
in cash, by certified check or bank draft, or wire transfer of immediately
available funds of the Warrant Price for such Common shares. The Company
agrees that the Holder hereof shall be deemed on the date on which this
Warrant shall have been presented and payment made for such Common Shares as
aforesaid whether or not the Company or its transfer agent is open for
business. Certificates for the Common Shares so purchased shall be delivered
to the Holder hereof with a reasonable time, not exceeding fifteen (15) days,
after the rights represented by this Warrant shall have been so exercised. If
this Warrant shall be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation deliver a new Warrant evidencing
the rights of the Holder hereof to purchase the balance of the Common Shares
which such Holder is entitled to purchase under the terms and conditions
hereunder.
3. ANTIDILUTION PROVISIONS. Any and all of the shares of the Common stock
of the Company which may be acquired by the Holder or his registered assigns
as a result of the exercise, in whole or in part, of this Warrant, shall be
subject to the antidilution adjustments set forth below.
A. In case the Company shall (i) declare a dividend on its Common
Stock in shares of its capital stock, (ii) subdivide its outstanding
Common stock, (iii) combine its
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outstanding Common Stock into a smaller number of shares, or (iv) issue
any shares by reclassification of its Common Stock (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), the Warrant Price in effect
at the time of the record date for such dividend or of the effective
date of such subdivision, combination or reclassification shall be
proportionally adjusted so that the Holder shall be entitled to receive
the kind and aggregate number of shares of Common Stock which it would
have owned or would have been entitled to receive after the happening of
any of the events described above on any record date with respect
thereto, if this Warrant had been exercised immediately prior to such
time such dividend, subdivision, combination or reclassification
occurred. Such adjustment shall be made successively whenever any event
listed above shall occur.
B. In case the Company shall fix a record date for the issuance of
rights of warrants to the holders of its Common Stock entitling them
(for a period expiring within 45 days after such record date) to
subscribe for or purchase shares of Common stock at a price per share
less than the current Warrant Price on such record date, the Warrant
Price shall be adjusted so that the same shall equal the price
determined by multiplying the Warrant Price in effect immediately prior
to such record date by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on such record date plus
the number of additional shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so offered
would purchase at the current Warrant Price, and of which the
denominator shall be the number of shares of Common Stock outstanding on
Stock offered for subscription or purchase. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event
that such rights or warrants are not so issued, the Warrant Price shall
again be adjusted to be the Warrant Price which would then be in effect
if such record date has not been fixed.
C. In case the Company shall fix a record date for the making of a
distribution to the holders of its Common Stock (including any such
distribution made in connection
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with a consolidation or merger in which the Company is the continuing
corporation) of evidences of its indebtedness or assets (other than cash
dividends out of earned surplus) or subscription rights or warrants
(excluding those referred to in Paragraph B above), then in each such
case the Warrant Price in effect after such record date shall be
determined by multiplying the Warrant Price in effect immediately prior
to such record date by a fraction, of which the numerator shall be the
total number of outstanding shares of Common Stock multiplied by the
current Warrant Price, less the fair market value (as determined in good
faith by the Company's Board of Directors, whose determination shall be
conclusive) of the portion of the assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants, and of
which the denominator shall be the total number of outstanding shares of
Common Stock on such record date multiplied by the current Warrant
Price. Such adjustment shall be made successively whenever such a record
date is fixed.
D. In case the Company shall issue shares of its Common Stock,
excluding shares issued (i) in any of the transactions described in
Paragraph A above, (ii) upon conversion or exchange of securities
convertible into or exchangeable for Common Stock, (iii) upon exercise
of options granted under the Company's Stock Option Plans, as amended to
date, if such shares would otherwise be included in this Paragraph D, or
(iv) upon exercise of rights or warrants issued to the holders of the
Common Stock, but only if no adjustment is required pursuant to this
Section 3 (without regard to Paragraph I of this Section 3) with respect
to the transaction giving rise to such rights for a consideration per
share less than the current Warrant Price on the date the Company fixes
the offering price of such additional shares, the Warrant Price shall be
adjusted immediately thereafter so that it shall equal the price
determined by multiplying the Warrant Price in effect immediately prior
thereto by a fraction, of which the numerator shall be the total number
of shares of Common Stock outstanding immediately prior to the issuance
of such additional shares plus the number of shares of Common Stock
which the aggregate consideration received (determined as provided in
Paragraph G below) for the issuance of such additional
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shares would purchase at the current Warrant Price, and of which the
denominator shall be the number of shares of Common Stock outstanding
immediately after the issuance of such additional shares. Such
adjustment shall be made successively whenever such an issuance is made.
E. In case the Company shall issue any securities convertible into
or exchangeable for its Common Stock (excluding securities issued in
transactions described in Paragraphs B and C above for a consideration
per share of Common Stock initially deliverable upon conversion or
exchange of such securities (determined as provided in Paragraph G
below) less than the current Warrant Price in effect immediately prior
to the issuance of such securities, the Warrant Price shall be adjusted
immediately thereafter so that it shall equal the price determined by
multiplying the Warrant Price in effect immediately prior thereto by a
fraction, of which the numerator shall be the number of shares of Common
Stock outstanding immediately prior to the issuance of such securities
plus the number of shares of Common Stock which the aggregate
consideration received (determined as provided in Paragraph G below) for
such securities would purchase at the current Warrant Price, and of
which the denominator shall be the number of shares of Common Stock
outstanding immediately prior to such issuance plus the maximum number
of shares of Common Stock of the Company deliverable upon conversion of
or in exchange for such securities at the initial conversion or exchange
price or rate. Such adjustment shall be made successively whenever such
an issuance is made.
F. Whenever the Warrant Price payable upon exercise of this Warrant
is adjusted pursuant to Paragraphs A, B, C, D or E above, the number of
shares of shares of Common Stock purchasable upon exercise of this
Warrant shall simultaneously be adjusted by multiplying the number of
shares of Common Stock initially issuable upon exercise of this Warrant
by the Warrant Price in effect on the date immediately preceding such
event and dividing the product so obtained by the Warrant Price, as
adjusted.
G. For purposes of any computation respecting consideration received
pursuant to Paragraphs D and E above, the following shall apply:
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(i) in the case of the issuance of shares of
Common Stock for cash, the consideration shall be
the amount of such cash, provided that in no case
shall any deduction be made for any commissions,
discounts or other expenses incurred by the
Company for any underwriting of the issue or
otherwise in connection therewith;
(ii) in the case of the issuance of shares of
Common Stock for a consideration in whole or in
part other than cash, the consideration other than
cash, shall be deemed to be the fair market value
thereof as determined in good faith by the Board
of Directors of the Company (irrespective of the
accounting treatment thereof), whose determination
shall be conclusive; and
(iii) in the case of the issuance of
securities convertible into or exchangeable for
shares of Common Stock, the aggregate
consideration received therefor shall be deemed to
be the consideration received by the Company for
the issuance of such securities plus the
additional minimum consideration, if any, to be
received by the Company upon the conversion or
exchange thereof (the consideration in each case
to be determined in the same manner as provided in
clauses (i) and (ii) of this Paragraph G).
H. No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least five
($0.05) cents in such price, provided, however, that any adjustments
which by reason of this Paragraph H are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 3 shall be made to the nearest cent or
to the nearest one-thousandth of a share, as the case may be. Anything
in this Section 3 to the contrary notwithstanding, to make such changes
in the Warrant Price, in addition to those required by this Section 3,
as it, in its discre-
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tion, shall determine to be advisable in order that any share dividend,
subdivision of Common Stock, distribution of rights or warrants to purchase
Common Stock or distribution of evidences of indebtedness or other assets
(other than distribution of cash) hereafter made by the Company to the
holders of its Common Stock shall not result in any tax to the holders of
its Common Stock or securities convertible into Common Stock.
I. Whenever the Warrant Price is adjusted, as herein provided, the
Company will promptly prepare a certificate signed by the President and
Chief Financial Officer of the Company setting forth (i) the Warrant
Price as so adjusted, (ii) the number of shares of Common Stock or other
securities purchasable upon exercise of this Warrant after such
adjustment, and (iii) a brief statement of the facts accounting for such
adjustment. The Company will promptly file such certificate with the
Warrant Agent and cause a brief summary thereof to be sent by ordinary
first class mail to the Holder, at his last address as it shall appear
in the Warrant Register. The affidavit of an officer of the Warrant
Agent or the Secretary of the Company that such notice has been mailed
shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. The Company may retain a firm of independent public
accountants of recognized standing selected by the Board of Directors
(who may be the regular accountants employed by the Company) to make any
computation required by this Section 3, and a certificate signed by such
firm shall be conclusive evidence of the correctness of such adjustment.
J. In the event that at any time, as a result of an adjustment made
pursuant to Paragraph A above, the Holder thereafter shall become
entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise
of this Warrant 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 Common Stock contained in Paragraphs A to
H, inclusive, above.
4. EXCHANGE OF WARRANTS. Subject to the provisions of Section 7 hereof, (i)
this Warrant is exchangeable at the option of
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the Holder at the aforesaid office of the Company for other Warrants of
different denominations entitling the Holder thereof to purchase in the
aggregate the same number of Common Shares as are purchasable hereunder; and
(ii) this Warrant may be divided or combined with other Warrants which carry
the same rights, in either case, upon presentation hereof at the aforesaid
office of the Company together with a written notice, signed by the Holder
hereof, specifying the names and denominations in which new Warrants are to be
issued, and the payment of any transfer tax due in connection herewith.
5. COVENANTS BY THE COMPANY. The Company covenants and agrees that:
5.1 During the period within which the rights represented by this
Warrant may be exercised, the Company shall, at all times, reserve and keep
available out of its authorized capital stock, solely for the purposes of
issuance upon exercise of this Warrant, such number of its Common Shares as
shall be issuable upon the exercise of this Warrant; and if at any time the
number of authorized Common Shares shall not be sufficient to effect the
exercise of this Warrant included therein, the Company will take such
corporate action as may be necessary to increase its authorized by unissued
Common Shares to such number of shares as shall be sufficient for such
purpose; the Company shall have analogous obligations with respect to any
other securities or property issuable upon exercise of this Warrant.
5.2 All Common Shares which may be issued upon exercise of the
rights represented by this Warrant included herein will upon issuance be
validly issued, fully paid, non-assessable and free from all taxes, liens and
charges with respect to the issuance thereof.
5.3 All original issue taxes payable in respect to the issuance of
Common Shares upon the exercise of the rights represented by this Warrant
shall be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the transfer of
this Warrant.
6. NO RIGHTS AS A SHAREHOLDER. Until exercised, this Warrant shall not
entitle the Holder hereof to any voting rights or any other rights as a
shareholder of the Company.
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7. RESTRICTIONS ON TRANSFERABILITY. This Warrant and the Common Stock
issuable hereunder shall not be sold, transferred, assigned or hypothecated
except in conformity with the applicable provisions of the Securities Act of
1933, as then in force )the "Act"), or any similar Federal statue then in
force, and all applicable "Blue Sky" laws. This Warrant and the Common Stock
issuable hereunder may not be issued, sold, transferred, assigned or
hypothecated unless and until there has been compliance, in the opinion of
counsel to the Company, with all legal requirements applicable to the sale,
transfer, assignment or hypothecation of such shares. In connection with any
such issuance, sale, transfer, assignment or hypothecation, the Holder, if
requested by the Company, shall give assurances satisfactory to counsel to the
Company that the Common Shares are being acquired for investment and not with
a view to resale or distribution thereof, and such other assurances as the
Company may deem desirable to assure compliance with all applicable legal
requirements, including but no limited to compliance with the Act.
8. LEGEND. This Warrant and the shares of Common Stock to be issued upon
exercise of this Warrant shall not be registered under the Act. All
certificates representing Common Stock issued upon exercise of this Warrant
shall bear a restrictive legend containing the following language:
NO SALE, OFFER TO SELL OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE MADE UNLESS A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, WITH RESPECT TO SUCH TRANSACTION
IS THEN IN EFFECT, OR THE ISSUER HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH
SALE, OFFER TO SELL OR TRANSFER DOES NOT REQUIRE
REGISTRATION UNDER THAT ACT.
9. REGISTRATION AND INDEMNIFICATION RIGHTS. The Company hereby covenants
to register this Warrant, and all of the shares which may be acquired as a
result of any exercise hereunder, at the Company's own expense, concurrently
with any registration or qualification of its Common Stock or the securities
(except on a Form S-8 or similar registration statement) in a manner
appropriate
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to permit the distribution of this Warrant and such shares at anytime within
seven (7) years of June 29, 1993. In connection with any offering by the
Holder, the Company agrees to enter into an agreement with the Holder, and any
person acting on behalf of the Holder, to indemnify the Holder and such
persons from any liability arising from any material misstatements or
omissions made by the Company in such Registration Statement. The Company
further covenants to use its best-efforts to keep such Registration Statement
in effect for the then balance of the life of this Warrant.
10. SUBSEQUENT HOLDERS. Every holder hereof, by accepting the same,
agrees with any subsequent holder hereof and with the Company that this
Warrant and all rights hereunder are issued and shall be held subject to all
of the terms, conditions, limitation and provisions set forth in this Warrant,
and further agrees that the Company and its transfer agent may deem and treat
the registered holder of this Warrant as the absolute owner hereof for all
purposes and shall not be affected by any notice to the contrary.
11. AMENDMENT TO FIRST NON-REDEEMABLE COMMON STOCK PURCHASE WARRANT. This
Amended Warrant amends the terms and provisions of the First Non-Redeemable
Common Stock Purchase Warrant, dated June 29, 1993, issued by the Company to
Scorpio Partners L.P.
12. NOTICES. All notices required hereunder shall be given by first-class
mail, postage prepaid, if given by the Holder, addressed to the Company at 130
West 10th Street, Huntington Station, New York 11746 or such other address as
the Company may designate in writing to the Holder; and if given by the
Company, addressed to the Holder at the address of the Holder shown on the
books of the Company.
13. GOVERNING LAW. The validity, construction and enforcement of this
Warrant shall be governed in all respects by the laws of the State of New
York, without giving effect to any principles of conflicts of laws thereunder,
and jurisdiction is hereby vested in the courts of said State in the event of
the institution of any legal action under this Warrant.
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IN WITNESS WHEREOF, EASTCO INDUSTRIAL SAFETY CORP. has caused this
Warrant to be amended, signed by its duly authorized officers under its
corporate seal, and to be dated as of January 31, 1994.
EASTCO INDUSTRIAL SAFETY CORP.
BY: /s/ Alan E. Densen
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ALAN E. DENSEN, President
Attest:
/s/ Anthony P. Towell
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Secretary
(Corporate Seal)
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PURCHASE FORM
To Be Executed
Upon Exercise of Warrant
The undersigned hereby exercises the right to purchase
_________________________ shares of Common Stock, evidenced by the within
Warrant, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full. The undersigned requests that
certificates for such shares and warrants shall be issued in the name set
forth below.
Date: ,19
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Signature
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Print Name of Signatory
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Name to whom certificates are to
be issued if different from above
Address:
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Social Security No.
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or other identifying number:
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If said number of shares and warrants shall not be all the shares and
warrants purchasable under the within Warrant, the undersigned requests that a
new Warrant for the unexercised portion shall be registered in the name of:
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Please Print
Address:
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Social Security No.
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or other identifying number:
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Signature
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