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EXHIBIT 4.5
WARRANT AGREEMENT
Dated as of December 30, 1997
Between
RAS WARRANT CO.,
as Issuer
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Warrant Agent
and joined by
SEVEN CIRCLE GAMING CORPORATION
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WARRANT AGREEMENT (the "Agreement"), dated as of December 30, 1997,
between RAS Warrant Co., a Nevada corporation (together with any successors and
assigns, the "Company"), and United States Trust Company of New York, a New York
banking corporation, as Warrant Agent (the "Warrant Agent"). Seven Circle Gaming
Corporation, a Nevada corporation ("SCGC"),hereby joins in this Agreement in its
capacity as the initial stockholder of the Company.
WHEREAS, The Resort at Summerlin, Limited Partnership, a Nevada limited
partnership (the "Partnership") proposes, among other things, to issue and sell
pursuant to a Purchase Agreement, dated as of December 22, 1997 (the "Purchase
Agreement"), among the Partnership, the Company and NatWest Capital Markets
Limited ("NatWest"), as Initial Purchaser, 100,000 Units (the "Units")
representing $100,000,000 principal amount of its 13% Senior Subordinated PIK
Notes due 2007 (the "Senior PIK Notes") and, at Initial Purchaser's election,
either (i) warrants (the "Partnership Warrants") to purchase limited partnership
interests (the "LP Partnership Interests") of the Partnership, or (ii) warrants
(the "Warrants") to purchase shares of common stock, without par value (the
"Common Stock" and the shares of Common Stock issuable upon exercise of the
Warrants being referred to herein as the "Warrant Shares"), of the Company;
WHEREAS, each Unit will represent $1,000 principal amount of Senior PIK
Notes and, in the case of the Partnership Warrants, one warrant to purchase one
LP Partnership Interest representing 0.00008% of the total partnership interests
of the Partnership outstanding on the date hereof or, in the case of the
Warrants, one warrant to purchase one share of Common Stock;
WHEREAS, the Partnership proposes to issue to the Company warrants (the
"Company LP Warrants") for the purchase of LP Partnership Interests with the
same terms as the Partnership Warrants in the same number as the number of
Warrants issued by Warrant Co.;
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the
Company and the Warrant Agent is willing to act in connection with the issuance,
division, transfer, exchange and exercise of Warrants as provided herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein, the Company and the Warrant Agent hereby agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Warrant Certificates. The Warrants will be initially issued
in registered form as physical Warrant certificates (the "Physical Warrants").
Any certificates (the "Warrant Certificates") evidencing the Physical Warrants
to be delivered pursuant to this Agreement shall be substantially in the form
set forth in Exhibit A attached hereto. Such Warrant Certificates shall
represent such of the outstanding Warrants as shall be specified therein and
each shall provide that it shall represent the aggregate amount of outstanding
Warrants from time to time endorsed thereon and that the aggregate amount of
outstanding Warrants represented thereby may from time to time be reduced or
increased, as appropriate. Any endorsement of a Warrant Certificate to reflect
the amount of any increase or decrease in the amount of outstanding Warrants
represented thereby shall be made by the Warrant Agent in accordance with
instructions given by the Holder thereof.
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SECTION 3. Execution of Warrant Certificates.
(a) Warrant Certificates shall be signed on behalf of the
Company by its President and a Vice President. Each such signature upon the
Warrant Certificates may be in the form of a facsimile signature of the present
or any future President or Vice President 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
President or Vice President notwithstanding the fact that at the time the
Warrant Certificates shall be countersigned and delivered or disposed of he
shall have ceased to hold such office.
(b) In case 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
Warrant Agreement any such person was not such officer.
(c) Warrant Certificates shall be dated the date of
countersignature by the Warrant Agent.
SECTION 4. Registration and Countersignature.
(a) The Warrants shall be numbered and shall be registered on
the books of the Company maintained at the principal office of the Warrant Agent
in the Borough of Manhattan, city of New York (the "Warrant Register") as they
are issued. Warrant Agent agrees to make the Warrant Register available for
inspection by agents or other representatives of the Nevada State Gaming Control
Board upon request during normal business hours.
(b) Warrant Certificates shall be manually countersigned by
the Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Agent shall, upon written instructions of the
President, a Vice President, or a Secretary or an Assistant Secretary of the
Company, initially countersign and deliver Warrants entitling the holders
thereof to purchase not more than an aggregate of 100,000 Warrant Shares and
shall thereafter countersign and deliver Warrants as otherwise provided in this
Agreement.
(c) The Company and the Warrant Agent may deem and treat the
registered holders (the "Holders") of the Warrant Certificates as the absolute
owners thereof (notwithstanding any notation of ownership or other writing
thereon made by anyone) for all purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
SECTION 5. Transfer and Exchange of Warrants.
(a) The Warrant Agent shall from time to time, subject to the
limitations of Section 6, register the transfer of any outstanding Warrants upon
the records to be maintained by it for that purpose, upon surrender thereof duly
endorsed or accompanied (if so required by it) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly executed
by the
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registered Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney.
(b) Subject to the terms of this Agreement, each Warrant
Certificate may be exchanged for another certificate or certificates entitling
the Holder thereof to purchase a like aggregate number of Warrant Shares as the
certificate or certificates surrendered then entitle each Holder to purchase.
Any Holder desiring to exchange a Warrant Certificate or Certificates shall make
such request in writing delivered to the Warrant Agent, and shall surrender,
duly endorsed or accompanied (if so required by the Warrant Agent) by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent,
the Warrant Certificate or Certificates to be so exchanged. The Warrant
Certificates may be exchanged at the option of the Holder thereof, when
surrendered at the office or agency of the Company maintained for such purpose,
which initially will be the corporate trust office of the Warrant Agent in New
York, New York.
(c) Upon registration of transfer or exchange, the Warrant
Agent shall countersign and deliver by certified mail a new Warrant Certificate
or Certificates to the persons entitled thereto. No service charge shall be made
for any exchange or registration of transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or other governmental charge that is imposed in connection with any such
exchange or registration of transfer.
(d) Notwithstanding any other provision of this Agreement, on
and after such time as the Company shall have been registered as a holding
company and licensed as a limited partner of the Partnership (the
"Registration") pursuant to the Nevada Act (hereinafter defined) by the Nevada
Gaming Commission (the "Nevada Commission") no Holder may sell, assign,
transfer, pledge or make any other disposition of a Warrant without the prior
approval of and licensure by the Nevada Commission unless the Company is then
registered by the Nevada Commission as a "publicly traded corporation" (a
"Registered Company"), as that term is defined in the Nevada Gaming Control Act
and the regulations promulgated thereunder (collectively, the "Nevada Act"), and
holds such exemptions from the Nevada Commission in connection with such
registration as shall be necessary to relieve Holder of such obligation to
obtain approval and licensure by the Nevada Commission (the "Exemptions"). The
Partnership shall promptly notify the Warrant Agent and each Holder in writing
in each instance in the event that it has (i) obtained the Registration, (ii)
become a Registered Company and (iii) obtained the Exemptions.
SECTION 6. Registration of Transfers and Exchanges (a) Transfer and
Exchange of Physical Warrants. When Physical Warrants are presented to the
Warrant Agent with a request:
(i) to register the transfer of the Physical
Warrants; or
(ii) to exchange such Physical Warrants for an equal
number of Physical Warrants of other authorized denominations or for
Partnership Warrants in the proportionate amount represented by such
Warrant, the Warrant Agent shall, subject to Section 5, register the
transfer or make the exchange as requested if the requirements under
this Agreement as set forth in this Section 6 for such transactions are
met; provided, however, that the Physical Warrants presented or
surrendered for registration of transfer or exchange;
(a) shall be duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the
Warrant Agent, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
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(b) in the case of Physical Warrants the offer and sale of
which have not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), such Physical Warrants shall be accompanied, in the sole
discretion of the Company, by the following additional information and
documents, as applicable:
(1) if such Physical Warrants are being delivered to
the Warrant Agent by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
substantially the form of Exhibit B hereto); or
(2) if such Physical Warrants are being transferred
to a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act (a "Qualified Institutional Buyer")) in accordance with Rule 144A
under the Securities Act, a certificate to that effect (in substantially the
form of Exhibit B hereto); or
(3) if such Physical Warrants are being transferred
to an institutional "accredited investor" (as defined in Rule 501 (a)(1), (2),
(3) or (7) under the Securities Act (an "Institutional Accredited Investor")),
delivery of a certification to that effect (in substantially the form of Exhibit
B hereto) and a Transferee Certificate for Institutional Accredited Investors in
substantially the form of Exhibit C hereto; or
(4) if such Physical Warrants are being transferred
in reliance on Regulation S under the Securities Act ("Regulation S"), delivery
of a certification to that effect (in substantially the form of Exhibit B
hereto) and a Transferee Certificate for Regulation S Transfers in substantially
the form of Exhibit D hereto and an opinion of counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance with the
Securities Act; or
(5) if such Physical Warrants are being transferred
in reliance on Rule 144 under the Securities Act, delivery of a certification to
that effect (in substantially the form of Exhibit B hereto) and an opinion of
counsel reasonably satisfactory to the Company to the effect that such transfer
is in compliance with the Securities Act; or
(6) if such Physical Warrants are being transferred
in reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the form of
Exhibit B hereto) and an opinion of counsel reasonably satisfactory to the
Company to the effect that such transfer is in compliance with the Securities
Act.
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(b) Legends.
(i) For so long as transfer of a Warrant is not permitted
without registration under the Securities Act, each Warrant Certificate
evidencing such Warrant (and all Warrants issued in exchange therefor or
substitution thereof) shall bear a legend substantially to the following effect:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER"(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"(AS DEFINED IN RULE 501
(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON, IS
NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON, AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT
IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) (TAKING
INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF
APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT TO SUCH
TRANSFER, ON THE DATE OF THE TRANSFER OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO RAS WARRANT CO. (THE
"ISSUER") OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE TRANSFER AGENT A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE WARRANT AGENT), AND IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE AMOUNT OF SECURITIES AT THE TIME OF TRANSFER OF LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE, BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER),
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (G) IN ACCORDANCE WITH ANOTHER
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EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER) AND IN EACH
CASE, IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902
OF REGULATION S UNDER THE SECURITIES ACT. THE WARRANT AGREEMENT
CONTAINS A PROVISION REQUIRING THE WARRANT AGENT TO REFUSE TO REGISTER
ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
(ii) On and after the date of issuance of the Registration to
the Company and until the Company has been registered as a Registered Company
and granted the Exemptions by the Nevada Commission, each Warrant Certificate
evidencing such Warrant (and all Warrants issued in exchange therefor or
substitution thereof) shall bear a legend substantially to the following effect:
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS
SECURITY IS INEFFECTIVE UNLESS APPROVED IN ADVANCE BY THE NEVADA GAMING
COMMISSION. IF AT ANY TIME SUCH COMMISSION FINDS THAT AN OWNER OF THIS
SECURITY IS UNSUITABLE TO CONTINUE TO HAVE AN INVOLVEMENT IN GAMING IN
NEVADA, SUCH OWNER MUST DISPOSE OF SUCH SECURITY AS PROVIDED BY THE
LAWS OF THE STATE OF NEVADA AND THE REGULATIONS OF THE NEVADA GAMING
COMMISSION THEREUNDER. SUCH LAWS AND REGULATIONS RESTRICT THE RIGHT
UNDER CERTAIN CIRCUMSTANCES: (A) TO PAY OR RECEIVE ANY DIVIDEND OR
INTEREST UPON ANY SUCH SECURITY, (B) TO EXERCISE, DIRECTLY OR THROUGH
ANY TRUSTEE OR NOMINEE, ANY VOTING RIGHT CONFERRED BY SUCH SECURITY, OR
(C) TO RECEIVE ANY REMUNERATION IN ANY FORM FROM THE CORPORATION, FOR
SERVICES RENDERED OR OTHERWISE.
(iii) Each certificate representing Warrant Shares (and all
shares of Common Stock issued in exchange therefor or substitution therefor)
shall bear a legend identical to the legend set forth in clauses (i) and (ii)
above.
(c) Obligations with Respect to Transfers and Exchanges of Physical
Warrants.
(i) To permit registrations of transfers and exchanges, the
Company shall execute, at the Warrant Agent's request, and the Warrant Agent
shall countersign Physical Warrants.
(ii) All Physical Warrants issued upon any registration,
transfer or exchange of Physical Warrants shall be the valid obligations of the
Company, entitled to the same benefits under this Agreement as the Physical
Warrants surrendered upon the registration of transfer or exchange.
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(iii) Prior to due presentment for registration of
transfer of any Warrant, the Warrant Agent and the Company may deem and
treat the person in whose name any Warrant is registered as the
absolute owner of such Warrant, and neither the Warrant Agent nor the
Company shall be affected by notice to the contrary.
SECTION 7. Separation of Warrants; Terms of Warrants; Exercise
of Warrants.
(a) The Senior PIK Notes and Warrants will be immediately
separated upon sale by the Initial Purchaser.
(b) Subject to the terms of this Agreement, each Holder shall
have the right, which may be exercised commencing on or after the date of
issuance and until 5:00 p.m., New York City time, on December 15, 2007 (the
"Expiration Date"), to receive from the Company upon the exercise of each
Warrant the number of fully paid and nonassessable Warrant Shares which the
Holder may at the time be entitled to receive on exercise of such Warrants and
payment of the Exercise Price (as hereinafter defined) then in effect for such
Warrant Shares. Each Warrant not exercised prior to the Expiration Date shall
become void and all rights thereunder and all rights in respect thereof under
this Agreement shall cease as of such time. No adjustments as to dividends will
be made upon exercise of the Warrants.
(c) The initial price at which one Warrant Share shall be
purchasable upon exercise of a Warrant (the "Exercise Price") shall be $.01,
subject to adjustment, provided, that in no event shall the Exercise Price be
less than $.01 per share. A Warrant may be exercised upon surrender at the
office or agency of the Company maintained for such purpose, which initially
will be the corporate trust office of the Warrant Agent in New York, New York,
of the certificate or certificates evidencing the Warrants to be exercised with
the form of election to purchase on the reverse thereof duly filled in and
signed, which signature shall be guaranteed by a participant in a recognized
Signature Guarantee Medallion Program, and upon payment to the Warrant Agent for
the account of the Company of the Exercise Price, as adjusted as herein
provided, for the number of Warrant Shares in respect to which such Warrants are
then exercised. Payment of the aggregate Exercise Price shall be made in cash or
by certified or official bank check to the order of the Company in immediately
available funds.
(d) Subject to the provisions of Section 6 hereof, upon such
surrender of Warrants and payment of the Exercise Price, the Company shall issue
and cause to be delivered with all reasonable dispatch to or upon the written
order of the Holder and in such name or names as the Holder may designate a
certificate or certificates for the number of Warrant Shares issuable upon the
exercise of such Warrants together with cash as provided in Section 13;
provided, however, that if any consolidation, merger or lease or sale of assets
is proposed to be effected by the Company as described in Subsection 12(j), or a
tender offer or an exchange offer for shares of Common Stock of the Company
shall be made, upon such surrender of Warrants and payment of the Exercise Price
as aforesaid, the Company shall, as soon as possible, but in any event not later
than two days, other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are not open for business ("Business Day")
thereafter, issue and cause to be delivered the number of Warrant Shares
issuable upon the exercise of such Warrants in the manner described in this
sentence together with cash as provided in Section 13. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
Warrant Shares as of the date of the surrender of such Warrants and payment of
the Exercise Price.
EACH WARRANT SHALL BE EXERCISABLE ONLY IN FULL, AND NOT IN PART.
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(e) All Warrant Certificates surrendered upon exercise of
Warrants shall be cancelled by the Warrant Agent. Such cancelled Warrant
Certificates shall then be disposed of by the Warrant Agent in a manner
consistent with the Warrant Agent's customary procedure for such disposal and in
a manner reasonably satisfactory to the Company. The Warrant Agent shall account
promptly to the Company with respect to Warrants exercised and concurrently pay
to the Company all monies received by the Warrant Agent for the purchase of the
Warrant Shares through the exercise of such Warrants.
(f) The Warrant Agent shall keep copies of this Agreement and
any notices given or received hereunder available for inspection by the holders
during normal business hours at its office. The Company shall supply the Warrant
Agent from time to time with such numbers of copies of this Agreement as the
Warrant Agent may request.
(g) Notwithstanding any other provision of this Agreement, on
and after such time as the Company has obtained the Registration or the
Partnership has obtained a nonrestricted gaming license issued by the Nevada
Commission, whichever first occurs, no Warrant may be exercised without the
prior approval of or licensure by the Nevada Commission unless the Company is
then registered by the Nevada Commission as a Registered Company and holds the
Exemptions. The Company shall promptly notify the Warrant Agent, in writing of
the date on which the Company has obtained the Registration or the Partnership
has obtained a nonrestricted gaining license issued by the Nevada Commission.
SECTION 8. Payment of Taxes. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrant Shares
upon the exercise of Warrants; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates, any certificates for Warrant
Shares in a name other than that of the registered Holder of a Warrant
Certificate surrendered upon the exercise of a Warrant, or the exchange of any
Warrant for a Partnership Warrant or Warrant Shares for Partnership Interests,
and the Company shall not be required to issue or deliver such Warrant
Certificates, Partnership Warrants or Partnership Interests 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 9. Mutilated or Missing Warrant Certificates. In case
any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed,
the Company may at its discretion issue and the Warrant Agent may countersign,
in exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity also satisfactory to them. Applicants for such
substitute Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the Warrant
Agent may prescribe.
SECTION 10. Reservation of Warrant Shares.
(a) The Company will at all times reserve and keep available,
free from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock or is authorized and issued Common Stock held in its treasury, for
the purpose of enabling it to satisfy an obligation to issue
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Warrant Shares upon exercise of Warrants, the maximum number of shares of Common
Stock which may then be deliverable upon the exercise of all outstanding
Warrants.
(b) The Company or, if appointed, the transfer agent for the
Common Stock (the "Transfer Agent") and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is hereby irrevocably authorized
to requisition from time to time from such Transfer Agent the stock certificates
required to honor outstanding Warrants upon exercise thereof in accordance with
the terms of this Agreement. The Company will supply such Transfer Agent with
duly executed certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in Section 13. The Company
will furnish such Transfer Agent a copy of all notices of adjustments and
certificates related thereto transmitted to each Holder pursuant to Section 14
hereof.
(c) The Company covenants that all Warrant Shares which may be
issued upon exercise of Warrants made in accordance with the terms of this
Agreement will, upon payment of the Exercise Price therefor and issue, be
validly authorized and issued, fully paid, nonassessable, free of preemptive
rights and free from all taxes, liens, charges and security interests with
respect to the issuance thereof. The Company will take no action to increase the
par value of the Common Stock to an amount in excess of the Exercise Price, and
the Company will not enter into any agreements inconsistent with the rights of
Holders hereunder. The Company will use its best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Agreement. The Company shall not take any action
reasonably within its control, including the hiring of a broker to solicit
exercises, which would render unavailable an exemption from registration under
the Securities Act which might otherwise be available with respect to the
issuance of Warrant Shares upon exercise of any Warrants.
SECTION 11. Certain Provisions Relating to Partnership
Warrants.
(a) The Company may issue additional Warrants from time to
time to any holder of a Partnership Warrant upon such Partnership Warrant
holder's delivery to the Company of the certificate or certificates evidencing
such Partnership Warrant, duly endorsed or accompanied (if so required by the
Warrant Agreement for the Partnership Warrants) by a written instrument or
instruments of transfer to the Company in form satisfactory to the Warrant Agent
for the Partnership Warrants, and duly executed as required by the Partnership
Warrant; provided that such Partnership Warrant holder shall certify to the
Company and the Warrant Agent for the Partnership Warrants that such transfer is
solely in exchange for a Corporate Warrant corresponding to the transferred
Partnership Warrant to be held by the Company. Upon satisfaction of the
foregoing conditions, the Company shall cause such transfer to be registered
with the Warrant Agent for the Partnership Warrants and shall obtain a Company
LP Warrant in exchange therefor.
(b) Upon any Holder's surrender of a Warrant Certificate for
transfer to the Company and request to hold the corresponding Partnership
Interest directly, the Company shall surrender such corresponding Company LP
Warrant to the Partnership for transfer to such Holder and, subject to Section
6, such Warrant transfer shall be registered in accordance with this Section 5
and the Holder's
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Warrant shall be cancelled; provided that such Holder shall certify to the
Company and Warrant Agent and to the Partnership and its warrant agent that such
transfer is solely for the purposes described in this Subsection 11(b).
(c) Upon the Company's receipt of a written request from
Holders of at least 25% of all Warrants outstanding as of the date of the
request, the Company will file a Form 10 pursuant to the Exchange Act with the
Securities and Exchange Commission and exercise its reasonable best efforts to
obtain the Registration and Exemptions, become a Registered Company, and upon
obtaining all of the foregoing, any Holder of Warrants may exercise its Warrants
as provided in Section 7 hereof.
(d) In the event that the Company receives notice of any
rights to which it may be entitled to exercise or obligations it must comply
with pursuant to the Partnership Warrants it holds, including, but not limited
to, such matters in respect of put or call events, registrations of securities
of the Partnership, or transfers of LP Partnership Interests, the Company shall,
on the same day such notice is received, notify each Holder and, if any action
shall be required of the Company as a holder of Partnership Warrants, and it
shall request instructions from each Holder regarding the actions to be taken by
the Company that may affect the pro rata share of Partnership Warrants
corresponding to the Holder's Warrant or Warrants (the "Instructions"). If the
Company does not receive Instructions from any Holder during the time period in
which the Instructions may be implemented, the Company will not act. In the
event the applicable transaction gives rise to any taxes, the Company shall
deduct from any distribution received by the Company the amount of all
applicable taxes to be paid by the Company arising out of or resulting from such
transaction. In any event, the Company shall exercise its rights as a holder of
Partnership Warrants in proportion to the Holders' pro rata interests in the
Common Stock issued or issuable upon exercise of the Warrants.
(e) In the event that the Company receives a distribution
from the Partnership on any LP Partnership Interests held by the Company, the
Company will promptly declare and pay a dividend on its Common Stock in an
amount equal to the distribution received from the Partnership less any amounts
required to enable the Company to pay any taxes imposed on the Company as a
result of such distribution and dividend, as determined by the Company's Board
of Directors in its sole discretion.
(f) Immediately after the due exercise of a Warrant by a
Holder and the payment of the Exercise Price in respect thereof, the Company
shall exercise one Partnership Warrant held by it with the proceeds of the
Exercise Price received by the Company in respect of the Warrant so exercised by
such Holder. A holder of Warrant Shares shall have the right to require the
Company to exchange the Warrant Shares held by such holder for all corresponding
LP Partnership Interests held by the Company by delivering to the Company the
certificate or certificates evidencing the Warrant Shares, duly endorsed or
accompanied by a duly executed written instrument or instruments of transfer in
form acceptable to the Company and a letter of instructions duly executed by
such Holder requesting such exchange. Upon receipt thereof, the Company shall
cause the requisite LP Partnership Interests to be transferred to such Holder
and registered in the transfer records of the Partnership in accordance with the
Partnership's partnership agreement. No service charge shall be imposed on any
Holder in respect of any such exchange of Warrant Shares for LP Partnership
Interests, but the Company may require payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that is imposed in connection
with any such exchange.
SECTION 12. Adjustment of Number of Warrant Shares Issuable.
The number of shares of Common Stock issuable upon the exercise of each Warrant
(the "Exercise Rate") is subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 11. The
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Exercise Rate shall initially be one. Upon the occurrence of any adjustment to
the exercise rate for the Partnership Warrants, the Company shall cause a
corresponding adjustment in the Exercise Rate hereunder.
(a) Adjustment for Change in Capital Stock. If the Company:
(1) pays a dividend or makes a distribution of its Common
Stock in shares of its Common Stock or other capital stock of the
Company other than a distribution related to;
(2) subdivides, combines or reclassifies its outstanding
shares of Common Stock; and
(3) makes a distribution to all holders of its Common Stock of
rights, warrants or options to purchase Common Stock of the Company at
a price per share less than the Current Market Value (as defined in
Section 12(e)) at the Time of Determination (as defined below);
then the Exercise Rate in effect immediately prior to such action shall be
proportionately adjusted so that the Holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of the
Company which he would have owned immediately following such action if such
Warrant had been exercised immediately prior to such action; provided, however,
that notwithstanding the foregoing, upon the occurrence of an event described in
any of paragraphs (1) and (3) above, which otherwise would have given rise to an
adjustment, no adjustment shall be made if the Company includes the Holders of
Warrants in such distribution pro rata to the number of shares of Common Stock
issued and outstanding (after giving effect to the Warrant Shares as if they
were issued and outstanding).
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution (the "Time of Determination") and
immediately after the effective date in the case of a subdivision, combination
or reclassification.
If after an adjustment a Holder of a Warrant upon exercise of it may
receive shares of two or more classes of capital stock of the Company, the Board
of Directors of the Company shall determine the allocation of the adjusted
Exercise Price between the classes of capital stock. After such allocation, the
exercise privilege and the Exercise Price of each class of capital stock shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Section.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) Adjustment for Certain Issuances of Common Stock. Subject
to Section 12(a), if the Company issues or sells shares of its Common Stock or
distributes any rights, options or warrants to all holders of its Common Stock
entitling them to purchase shares of Common Stock, or securities convertible
into or exchangeable for Common Stock (other than pursuant to the exercise of
the Warrants or issuance of Warrant Shares to a holder of LP Partnership
Interests solely to accommodate such holder's right to elect to hold Warrant
Shares corresponding to such underlying LP Partnership Interest in lieu of
holding such LP Partnership Interest directly), at a price per share less than
the Current Market Value at the Time of Determination, the Exercise Rate shall
be adjusted in accordance with the formula:
(0 + N)
------------
E(1) = E x 0 + (N x P)
-------
M
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where:
E(l) = the adjusted Exercise Rate.
E = the Exercise Rate immediately prior to the Time of
Determination of any such distribution.
0 = the number of Fully Diluted Shares (as defined in
Section 12(l)) outstanding on the Time of
Determination for any such issuance, sale or
distribution.
N = the number of additional shares of Common Stock
issued, sold or issuable upon exercise of such
rights, options or warrants.
P = the price received in the case of any issuance or
sale of Common Stock or exercise price per share of
such rights, options or warrants.
M = the Current Market Value per share of Common Stock on
the Time of Determination for any such issuance, sale
or distribution.
The adjustment shall be made successively whenever any such
rights, options or warrants are issued and shall become effective immediately
after the record date for the determination of stockholders entitled to receive
the rights, options or warrants. If at the end of the period during which any
such rights, options or warrants are exercisable, not all rights, options or
warrants shall have been exercised, the Warrant shall be immediately readjusted
to what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) Adjustments for Other Distribution. Subject to Section
12(a), if the Company distributes to all holders of its Common Stock (i) any
evidences of indebtedness of the Company (ii) any assets of the Company
(excluding cash dividends or other cash distributions or distributions from
current or retained earnings other than any Extraordinary Cash Dividend and
excluding transfers of Partnership Warrants pursuant to Section II hereof), or
(iii) any rights, options or warrants to acquire any of the foregoing or to
acquire any other securities of the Company, the Exercise Rate shall be adjusted
in accordance with the formula:
E(1) = E x M
-----
M - F
where:
E(1) = the adjusted Exercise Rate.
E = the Exercise Rate immediately prior to the Time of
Determination of such distribution.
M = the Current Market Value per share of Common Stock
on the record date mentioned below.
F = the fair market value on the record date mentioned
below of the indebtedness, assets, rights, options or
warrants distributable to one share of Common Stock.
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The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
If an adjustment is made pursuant to clause (iii) above of this subsection 12(c)
as a result of the issuance of rights, options or warrants are exercisable, not
all such rights, options or warrants shall have been exercised, the Warrant
shall be immediately readjusted as if "F" in the above formula was the fair
market value on the record date of the indebtedness or assets actually
distributed upon exercise of such rights, options or warrants divided by the
number of shares of Common Stock outstanding on the record date. Notwithstanding
the foregoing, provisions of this Subsection 12(c), (x) an event which would
otherwise give rise to an adjustment pursuant to this Subsection 12(c) shall not
give rise to such an adjustment if the Company includes the holders of the
Warrants in such distribution pro rata to the number of shares of Common Stock
issued and outstanding after giving effect to the Warrant Shares as if they were
issued and outstanding and (y) no adjustment shall be made pursuant to this
Section 12(c) with respect to cash dividends other than Extraordinary Cash
Dividends.
This Subsection 12(c) does not apply to rights, options or
warrants referred to in Subsection 12(b).
(d) Merger, Consolidation, Etc. If (x) the Company merges or
consolidates with, or sells all or substantially all of its property and assets
to, another person (other than an Affiliate of the Company) and consideration is
payable to holders of Common Stock in exchange for their Common Stock in
connection with such merger, consolidation or sale which consists solely of
cash, or (y) in the event of a dissolution, liquidation or winding up of the
Company, then the holders of Warrants shall be entitled to receive
distributions on the date of such event on an equal basis with holders of Common
Stock (or other securities issuable upon exercise of the Warrants) as if the
Warrants had been exercised immediately prior to such event, less the Exercise
Price. Upon receipt of such payment, if any, the rights of a holder shall
terminate and cease and his or her Warrants shall expire. In case of any such
merger, consolidation or sale of assets, the surviving or acquiring person and,
in the event of any dissolution, liquidation or winding of the Company, the
Company shall deposit promptly with the Warrant Agent the funds, if any,
necessary to pay the Holders of the Warrants. After receipt of such deposit from
such person or the Company and after receipt of surrendered Warrant
Certificates, the Warrant Agent shall make payment by delivering a check in such
amount as is appropriate (or, in the case of consideration other than cash, such
other consideration as is appropriate) to such person or persons as it may be
directed in writing by the holder surrendering such Warrants.
(e) Current Market Value. "Current Market Value" per share of
Common Stock or of any other security (herein collectively referred to as a
"Security") at any date shall be:
(i) if the Security is not registered under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (a) the value of the Security determined in good faith
by the Board of Directors of the Company and certified in a
board resolution, based on the most recently completed arm's
length transaction between the Company and a person other than
an Affiliate of the Company in which such determination is
necessary and the closing of which occurs on such date or
shall have occurred within the six months preceding such date,
(b) if no such transaction shall have occurred on such date or
within such six-month period, the value of the Security most
recently determined as of a date within the six months
preceding such date by an Independent Financial Expert or (c)
if neither clause (a) nor (b) is applicable, the value of the
Security determined as of such date by an Independent
Financial Expert, or
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(ii) if the Security is registered under the Exchange
Act, the average of the daily market prices for each business
day during the period commencing 15 Business Days before such
date and ending on the date one day prior to such date or, if
the Security has been registered under the Exchange Act for
less than 15 consecutive Business Days before such date, then
the average of the daily market prices for all of the Business
Days before such date for which daily market prices are
available. If the market price is not determinable for at
least 10 Business Days in such period, the Current Market
Value of the Security shall be determined as if the Security
was not registered under the Exchange Act.
The "market price" for any Security on each Business Day
means: (A) if such Security is listed or admitted to trading on any securities
exchange, the closing price, regular way, on such day on the principal exchange
on which such Security is traded, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day, (B) if such Security is
not then listed or admitted to trading on any securities exchange, the last
reported sale price on such day, or if there is no such last reported sale price
on such day, the average of the closing bid and the asked prices on such day,
as reported by a reputable quotation source designated by the Company, or (C)
if neither clause (A) nor (B) is applicable, the average of the reported high
bid and low asked prices on such day, as reported by a reputable quotation
service, or a newspaper of general circulation in the Borough of Manhattan, City
of New York, customarily published on each Business Day, designated by the
Company. If there are no such prices on a Business Day, then the market price
shall not be determinable for such Business Day.
"Independent Financial Expert" shall mean (a) NatWest (or any
successor) or (b) another nationally recognized investment banking firm, a
nationally recognized regional investment banking firm or a nationally
recognized accounting firm selected by the Company reasonably acceptable to the
Warrant Agent (i) that does not (and whose directors, officers, employees and
Affiliates do not) have a direct or indirect material financial interest in the
Company or the Partnership, (ii) that has not been, and, at the time it is
called upon to serve as an Independent Financial Expert under this Agreement is
not (and none of whose directors, officers, employees or Affiliates is) a
promoter, director or officer of the Company, (iii) that has not been retained
by the Company or the Partnership for any purpose, other than to perform an
equity valuation, within the preceding twelve months, and (iv) that, in the
reasonable judgment of the Board of Directors of the Company (certified by a
board resolution), is otherwise qualified to serve as an independent financial
advisor. Any such person may receive customary compensation and indemnification
by the Company for opinions or services it provides as an Independent Financial
Expert.
"Affiliate" shall mean, with respect to any person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such person. For the purposes of this definition,
"control" when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Extraordinary Cash Dividend" means cash dividends with
respect to the Common Stock the aggregate amount of which in any fiscal year
exceeds the lesser of (i) 15% of the net income of the Company for the fiscal
year immediately preceding the payment of such dividend or (ii) $1,000,000.
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(f) When De Minimis Adjustment May Be Deferred. No adjustment
in the Exercise Rate need be made unless the adjustment would require an
increase or decrease of at least .5% in the Exercise Rate. Notwithstanding the
foregoing, any adjustments that are not made shall be carried forward and taken
into account in any subsequent adjustment, provided that no such adjustment
shall be deferred beyond the date on which a Warrant is exercised. All
calculations under this Section 12 shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
(g) When No Adjustment Required. If an adjustment is made upon
the establishment of a record date for a distribution subject to Subsections
12(a), 12(b) or 12(c) hereof and such distribution is subsequently cancelled,
the Exercise Rate then in effect shall be readjusted, effective as of the date
when the Board of Directors determines to cancel such distribution, to that
which would have been in effect if such record date had not been fixed. To the
extent the Warrants become convertible into cash, no adjustment need be made
thereafter as to the amount of cash into which such Warrants are exercisable.
Interest will not accrue on the cash.
(h) Notice of Adjustment. Whenever the Exercise Rate or
Exercise Price is adjusted, the Company shall provide the notices required by
Section 14 hereof.
(i) Voluntary Reduction. The Company from time to time may
increase the Exercise Rate by any amount for any period of time (including,
without limitation, permanently) if the period is at least 20 Business Days. An
increase of the Exercise Rate under this Subsection (i) (other than a permanent
increase) does not change or adjust the Exercise Rate otherwise in effect for
purposes of Subsections 12(a), 12(b) or 12(c).
(j) When Issuance or Payment May Be Deferred. In any case in
which this Section 12 shall require that an adjustment in the Exercise Rate be
made effective as of a record date for a specified event, the Company may elect
to defer until the occurrence of such event (i) issuing to the Holder of any
Warrant exercised after such record date the Warrant Shares and other capital
stock of the Company, if any, issuable upon such exercise over and above the
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise on the basis of the Exercise Rate prior to such adjustment, and
(ii) paying to such Holder any amount in cash in lieu of a fractional share
pursuant to Section 13; provided, however, that the Company shall deliver to the
Warrant Agent and shall cause the Warrant Agent, on behalf of and at the expense
of the Company, to deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such additional Warrant
Shares, other capital stock and cash upon the occurrence of the event requiring
such adjustment.
(k) Reorganizations. In cash of any capital reorganization,
other than the cases referred to in Subsections 12(a), 12(b), 12(c) or 12(d), or
the consolidation or merger of the Company with or into another corporation
(other than a merger or consolidation in which the Company is the continuing
corporation and which does not result in any reclassification of the outstanding
shares of Common Stock into shares of other stock or other securities or
property), or the sale of the property of the Company as an entirety or
substantially as an entirety (collectively such actions being hereinafter
referred to as "Reorganizations"), there shall thereafter be deliverable upon
exercise of any Warrant (in lieu of the number of shares of Common Stock
theretofore deliverable) the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock that would
otherwise have been deliverable upon the exercise of such Warrant would have
been entitled upon such Reorganization if such Warrant had been exercised in
full immediately prior to such Reorganization. In case of any Reorganization,
appropriate adjustment, as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a duly adopted resolution
certified
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by the Company's Secretary or Assistant Secretary, shall be made in the
application of the provisions herein set forth with respect to the rights and
interests of Holders so that the provisions set forth herein shall thereafter be
applicable, as nearly as possible, in relation to any shares or other property
thereafter deliverable upon exercise of Warrants.
The Company shall not effect any such Reorganization unless
prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such Reorganization or
the corporation purchasing or leasing such assets or other appropriate
corporation or entity shall expressly assume, by a supplemental Warrant
Agreement or other acknowledgment executed and delivered to the Warrant Agent,
the obligation to deliver to the Warrant Agent and to cause the Warrant Agent to
deliver to each such Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
purchase, and all other obligations and liabilities under this Agreement.
The foregoing provisions of this Subsection 12(k) shall apply
to successive Reorganization transactions.
(l) Form of Warrants. Irrespective of any adjustments in 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.
(m) Miscellaneous. For purposes of this Section 12, the term
"Fully Diluted Shares" shall mean (i) the shares of Common Stock outstanding as
of a specified date, and (ii) shares of Common Stock into or for which rights,
options, warrants or other securities outstanding as of such date are
exercisable or convertible (other than the Warrants). In the event that at any
time, as a result of an adjustment made pursuant to this Section 12, the Holders
of Warrants shall become entitled to purchase any securities of the Company
other than, or in addition to, shares of Common Stock, thereafter the number or
amount of such other securities so purchasable upon exercise of each 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 Warrant
Shares contained in Subsections 12(a) through 12(l) inclusive, and the
provisions of Sections 7, 8, 10 and 13 with respect to the Warrant Shares or the
Common Stock shall apply on like terms to any such other securities.
SECTION 13. Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. The number of full
Warrant Shares which shall be issuable upon the exercise of a Warrant shall be
computed on the basis of the aggregate number of Warrant Shares purchasable on
exercise of the Warrant so presented. If any fraction of a Warrant Share would,
except for the provisions of this Section 13, be issuable on the exercise of any
Warrant, the Company shall pay an amount in cash equal to the Current Market
Value on the day immediately preceding the date the Warrant is presented for
exercise, multiplied by such fraction.
SECTION 14. Notices to Warrant Holders. Upon any adjustment pursuant to
Section 12 hereof, the Company shall give prompt written notice of such
adjustment to the Warrant Agent and shall cause the Warrant Agent, on behalf of
an at the expense of the Company, within 10 days after such adjustment, to mail
by first class mail, postage prepaid, to each Holder a notice of such
adjustment(s) and shall deliver to the Warrant Agent a certificate of the Chief
Financial Officer of the Company, accompanied by the report thereon by a firm of
independent public accountants selected by the Board of Directors of the Company
(who may be the regular accountants for the Company), setting forth in
reasonable detail
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(i) the number of Warrant Shares purchasable upon the exercise of each Warrant
and the Exercise Price of such Warrant after such adjustment(s), (ii) a brief
statement of the facts requiring such adjustment(s) and (iii) the computation by
which such adjustment(s) was made. Where appropriate, such notice may be given
in advance and included as a part of the notice required under the other
provisions of this Section 14.
In case:
(a) the Company shall authorize the issuance to all holders of
shares of Common Stock rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or
warrants; or
(b) the Company shall authorize the distribution to all
holders of shares of Common Stock of evidences of its indebtedness or
assets; or
(c) of any consolidation or merger to which the Company is a
part and for which approval of any shareholders of the Company is
required, or of the conveyance or transfer of the properties and assets
of the Company substantially as an entirety, or of any reclassification
or change of Common Stock issuable upon exercise of the Warrants (other
than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or
combination), or a tender offer or exchange offer for shares of Common
Stock; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) the Company proposes to take any action that would require
an adjustment to the Exercise Rate or the Exercise Price pursuant to
Section 12;
then the Company shall give prompt written notice to the Warrant Agent and shall
cause the Warrant Agent, on behalf of and at the expense of the Company to give
to each of the registered holders of the Warrant Certificates at his or its
address appearing on the Warrant register, at least 30 days (or 20 days in any
case specified in clauses (a) or (b) above) prior to the applicable record date
hereinafter specified, or the date of the event in the case of events for which
there is no record date, by first-class mail, postage prepaid, a written notice
stating (i) the day as of which the holders of record of shares of Common Stock
to be entitled to receive any rights, options, warrants or distribution are to
be determined, or (ii) the initial expiration date set forth in any tender offer
or exchange offer for shares of Common Stock, or (iii) the date on which any
such consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up. The failure by the Company or
the Warrant Agent to give such notice or any defect therein shall not affect the
legality or validity of any distribution, right, option, warrant, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding up, or the
vote upon any action.
The Company shall give prompt written notice to the Warrant Agent and
shall cause the Warrant Agent, on behalf of and at the expense of the Company to
give to each Holder written notice of any determination to make a distribution
to the holders of its Common Stock of any cash dividends, assets, debt
securities, preferred stock, or any rights or warrants to purchase debt
securities, preferred stock,
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assets or other securities (other than Common Stock, or rights, options, or
warrants to purchase Common Stock) of the Company, which notice shall state the
nature and amount of such planned dividend or distribution and the record date
therefor, and shall be received by the Holders at least 30 days prior to such
record date therefor.
Nothing contained in this Agreement or in any Warrant Certificate shall
be construed as conferring upon the Holders the right to vote or to consent or
to receive notice as shareholders in respect of the meetings of shareholders or
the election of Directors of the Company or any other matter, or any rights
whatsoever as shareholders of the Company.
SECTION 15. Notices to the Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any Holder to or on the Company shall be sufficiently given or made when
received at the office of the Company expressly designated by the Company as its
office for purposes of this Agreement (until the Warrant Agent is otherwise
notified in accordance with this Section 15 by the Company), as follows:
RAS Warrant Co.
1160 Town Center Drive
Suite 200
Las Vegas, Nevada 89134
Attention: John Tipton
Any notice pursuant to this Agreement to be given by the Company or by
any Holder(s) to the Warrant Agent shall be sufficiently given when received by
the Warrant Agent at the address appearing below (until the Company is otherwise
notified in accordance with this Section 15 by the Warrant Agent).
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust Administration
Facsimile: (212) 852-1626
SECTION 16. 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 of Warrants in order to cure any ambiguity or to correct
or supplement any provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant Agent
may deem necessary or desirable and which shall not in any way adversely affect
the interests of any holder of Warrants.
SECTION 17. Concerning the Warrant Agent. 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 Warrants, shall be bound:
(a) The statements contained herein and in the Warrant
Certificate shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or any action taken by it. The Warrant Agent assumes
no responsibility with respect to the distribution of the Warrants except as
herein otherwise provided.
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(b) The Warrant Agent shall not be responsible for and shall
incur no liability to the Company or any Holder for any failure of the Company
to comply with the covenants contained in this Agreement or in the Warrants to
be complied with by the Company.
(c) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
(through its employees), by or through its attorneys or agents (which shall not
include its employees) and shall not be responsible for the negligence or
misconduct of any agent appointed with due care.
(d) The Warrant Agent may consult at any time with legal
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 to any Holder
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the opinion or the advice of such counsel.
(e) Whenever in the performance of its duties under this
Agreement the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless such evidence in respect
thereof be herein specifically prescribed) may be deemed conclusively to be
proved and established by a certificate signed by the President, one of the Vice
Presidents, or the Secretary of the Company and delivered to the Warrant Agent;
and such certificate shall be full authorization to the Warrant Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(f) The Company agrees to pay the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the performance
of its duties under this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the performance of its duties under this
Agreement (including, without limitation, reasonable fees and expenses of
counsel), and to indemnify the Warrant Agent and its agents, employees,
directors, officers and affiliates and save it and them harmless against any and
all liabilities, losses and expenses, including, without limitation, judgments,
costs and counsel fees, for anything done or omitted by the Warrant Agent in the
performance of its duties under this Agreement, except as a result of the
Warrant Agent's negligence or bad faith.
(g) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more Holders shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the Holders, as their respective rights or interests may appear.
(h) The Warrant Agent and any stockholder, director, officer
or employee ("Related Parties") of the Warrant Agent may buy, sell or deal in
any of the Warrants or other securities of the Company or become pecuniarily
interested in any transactions in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely
as though it were not
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Warrant Agent under this Agreement or such director, officer or employee.
Nothing herein shall preclude the Warrant Agent or any Related Party from acting
in any other capacity for the Company or for any other legal entity including,
without limitation, acting as Transfer Agent or as a lender to the Company or an
affiliate thereof
(i) The Warrant Agent shall act hereunder solely as agent, and
its duties shall be determined solely by the provisions thereof. 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.
(j) The Warrant Agent will not incur any liability or
responsibility to the Company or to any Holder for any action taken in reliance
on any notice, resolution, waiver, consent, order, certificate or other paper,
document or instrument reasonably believed by it to be genuine and to have been
signed, sent or presented by the property party or parties.
(k) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant (except its countersignature thereof); nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Warrant
Shares (or other stock) to be issued pursuant to this Agreement or any Warrant,
or as to whether any Warrant Shares (or other stock) will, when issued, be
validly issued, fully paid and nonassessable, or as to the Exercise Price or the
number or amount of Warrant Shares or other securities or other property
issuable upon exercise of any Warrant.
(l) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the President, any Vice President or the 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 and without negligence in accordance with instructions of any such officer
or officers.
SECTION 18. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company 30
days' notice in writing. The Warrant Agent may be removed by like notice to the
Warrant Agent from the Company. If the Warrant Agent shall resign or be removed
or shall otherwise be incapable of acting, the Company shall appoint a successor
to the Warrant Agent. If the Company shall fail to make such appointment within
a period of 30 days after such removal or after it has been notified in writing
of such resignation or incapacity by the resigning or incapacitated Warrant
Agent or by any Holder (who shall with such notice submit his Warrant for
inspection by the Company), then any Holder may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to the Warrant Agent, either by the Company or by
such court, the duties of the Warrant Agent shall be carried out by the Company.
Any successor warrant agent, whether appointed by the Company or such a court,
shall be a bank or trust company in good standing, incorporated under the laws
of the United States of America or any State thereof or the District of Columbia
and having at the time of its appointment as warrant agent a combined capital
and surplus of at least $50,000,000. After appointment, the successor warrant
agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Warrant Agent without further act or deed;
but the former Warrant Agent shall deliver and transfer to the successor warrant
agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for such purpose. Failure
to file any notice provided for in this Section 18, however, or any defect
20
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therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor warrant agent, as the
case may be. In the event of such resignation or removal, the Company or the
successor warrant agent shall mail by first class mail, postage prepaid, to each
Holder, written notice of such removal or resignation and the name and address
of such successor warrant agent.
SECTION 19. Identify of Transfer Agent. Forthwith upon the appointment
of any Transfer Agent for the Common Stock, or any other shares of the Company's
capital stock issuable upon the exercise of the Warrants, the Company shall file
with the Warrant Agent a statement setting forth the name and address of such
Transfer Agent.
SECTION 20. Successors. All the covenants and provisions of this
Agreement by and for the benefit of the Company, the Warrant Agent or any holder
of Warrants shall bind and inure to the benefit of their respective successors
and assigns hereunder.
SECTION 21. Termination. This Agreement shall terminate on the
Expiration Date. Notwithstanding the foregoing, this Agreement will terminate on
any earlier date if all Warrants have been exercised or redeemed pursuant to
this Agreement.
SECTION 22. 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 shall be governed by and construed in accordance with the
laws of said State, without regard to the conflict of law rules thereof.
SECTION 23. Benefits of This Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent
and the registered holders of the Warrant Certificates.
SECTION 24. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
SECTION 25. Undertakings of SCGC. Seven Circle Gaming Corporation, a
Delaware corporation, as the initial sole shareholder of the Company, hereby
undertakes to cause the Company to perform all of its duties and obligations
under this Agreement and to maintain its corporate existence by causing the
Company to take all necessary actions in furtherance thereof, including without
limitation, causing shareholder and directors actions to be taken as
appropriate.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK AND IS FOLLOWED BY A
SINGLE SIGNATURE PAGE.]
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23
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed, as of the day and Year first above written.
RAS WARRANT CO.
By: /s/ Brian McMullan
Name: BRIAN MCMULLAN
Title: PRESIDENT
UNITED STATES TRUST COMPANY OF
NEW YORK, as Warrant Agent
By: /s/ Louis P. Young
Name: LOUIS P. YOUNG
Title: VICE PRESIDENT
JOINDER:
SEVEN CIRCLE GAMING CORPORATION
By: /s/ Brian McMullan
Name: BRIAN MCMULLAN
Title: PRESIDENT
22
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EXHIBIT A
[Form of Warrant Certificate]
[Face]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED, SOLD OR PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR A BENEFICIAL
INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER"(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"(AS DEFINED IN RULE
501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON, IS NOT
ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON, AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d)
UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT
WITH RESPECT TO SUCH TRANSFER, ON THE DATE OF THE TRANSFER OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO RAS WARRANT CO. (THE
"ISSUER") OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QIB IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE WARRANT AGENT), AND IF SUCH TRANSFER IS
IN RESPECT OF AN AGGREGATE AMOUNT OF SECURITIES AT THE TIME OF TRANSFER OF LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE, BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER), (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (G) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE ISSUER) AND IN EACH CASE, IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
25
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE WARRANT AGREEMENT CONTAINS A
PROVISION REQUIRING THE WARRANT AGENT TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
COMMENCING WITH THE DATE THE COMPANY IS REGISTERED AS A HOLDING COMPANY
AND LICENSED AS A LIMITED PARTNER OF THE PARTNERSHIP BY THE NEVADA GAMING
COMMISSION, AND THEREAFTER UNTIL THE COMPANY HAS BEEN REGISTERED AS A REGISTERED
COMPANY AND GRANTED THE EXEMPTIONS BY THE NEVADA GAMING COMMISSION, THE SALE,
ASSIGNMENT, TRANSFER, PLEDGE, OR OTHER DISPOSITION OF THIS SECURITY IS VOID
UNLESS APPROVED IN ADVANCE BY THE NEVADA GAMING COMMISSION. IF AT ANY TIME THE
NEVADA GAMING COMMISSION FINDS THAT AN OWNER OF THIS SECURITY IS UNSUITABLE TO
CONTINUE TO HAVE AN INVOLVEMENT IN GAMING IN NEVADA, SUCH OWNER MUST DISPOSE OF
SUCH SECURITY AS PROVIDED BY THE LAWS OF THE STATE OF NEVADA AND THE REGULATIONS
OF THE NEVADA GAMING COMMISSION THEREUNDER. SUCH LAWS AND REGULATIONS RESTRICT
THE RIGHT UNDER CERTAIN CIRCUMSTANCES: (A) TO PAY OR RECEIVE ANY DIVIDEND OR
INTEREST UPON ANY SUCH SECURITY, (B) TO EXERCISE, DIRECTLY OR THROUGH ANY
TRUSTEE OR NOMINEE, ANY VOTING RIGHT CONFERRED BY SUCH SECURITY, OR (C) TO
RECEIVE ANY REMUNERATION IN ANY FORM FROM THE COMPANY, FOR SERVICES RENDERED OR
OTHERWISE.
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EXERCISABLE ON OR AFTER THE DATE OF ISSUANCE
AND ON OR BEFORE DECEMBER 15, 2007
No. ___________
Warrant
CUSIP No.:
Warrant Certificate
RAS Warrant Co.
This Warrant Certificate certifies that , or registered
assigns, is the registered holder of one Warrant expiring December 15, 2007 (the
"Warrant") to purchase shares of common stock, no par value (the "Common
Stock"), of RAS Warrant Co., a Nevada corporation (the "Company"). The Warrant
initially entitles the holder upon exercise to receive from the Company on or
after the date hereof and on or before 5:00 p.m. New York City Time on December
15, 2007, one fully paid and nonassessable share of Common Stock (each a
"Warrant Share") at the initial exercise price (the "Exercise Price") of $.01
payable in lawful money of the United States of America upon surrender of this
Warrant Certificate and payment of the Exercise Price at the office or agency of
the Warrant Agent, but only subject to the conditions set forth herein and in
the Warrant Agreement referred to on the reverse hereof. The Exercise Price and
number of Warrant Shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events set forth in the Warrant
Agreement.
The Warrant may not be exercised after 5:00 p.m., New York City Time,
on December 15, 2007, and to the extent not exercised by such time the Warrant
shall become void.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed and construed in accordance
with the internal laws of the State of New York.
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IN WITNESS WHEREOF, RAS Warrant Co. has caused this Warrant Certificate
to be signed by its President and by its Vice President.
Dated:
RAS WARRANT CO.
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
Countersigned:
United States Trust Company of New York,
as Warrant Agent
By:
-----------------------------------------
Authorized Signature
4
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[Form of Warrant Certificate]
[Reverse]
The Warrant evidenced by this Warrant Certificate is part of a duly
authorized issue of Warrants expiring December 15, 2007, entitling the holders
on exercise to receive shares of voting Common Stock of the Company, and is
issued or to be issued pursuant to a Warrant Agreement dated as of December 30,
1997 (the "Warrant Agreement"), duly executed and delivered by the United States
Trust Company of New York, a banking corporation organized and existing under
the laws of the State of New York, as Warrant agent (the "Warrant Agent"). 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 (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants. A copy of the Warrant
Agreement may be obtained by the holder hereof upon written request to the
Company.
The Warrant may be exercised at any time on or after the date hereof
and on or before December 15, 2007, subject to extension as provided in the
Warrant Agreement. The holder of the Warrant evidenced by this Warrant
Certificate may exercise it by surrendering this Warrant Certificate, with the
form of election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price in cash at the office of the Warrant
Agent. The Warrant evidenced hereby shall be exercisable only in full, and not
in part. No adjustment shall be made for any dividends on any shares of Common
Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the number of Warrants set forth on the face hereof may, subject to
certain conditions, be adjusted. No fractions of a share of Common Stock will be
issued upon the exercise of any Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant Agreement.
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This Warrant Certificate, when surrendered at the office of the Warrant
Agent by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate Warrants to purchase the aggregate number of
shares of Common Stock to which the surrendered Warrant was entitled.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and representing in the aggregate the right
to purchase a like number of shares of Common Stock shall be issued to the
transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
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[Form of Election to Purchase]
(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 RAS Warrant Co. in
the amount of $_____ in accordance with the terms hereof. 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 __________.
Signature:
Date:
Signature Guarantee:
__________________________
(Signatures must be guarantee by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements will include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to purchase
Common Stock (the "Securities"), of
RAS Warrant Co.
This Certificate relates to __________ Securities held in the form of
Physical Warrants by __________ (the "Transferor").
The Transferor:*
/ / has requested that the Warrant Agent by written order to exchange
or register the transfer of a Physical Warrant or Physical Warrants.
/ / In connection with such request and in request of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Warrant Agreement relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 6 of such Warrant
Agreement, and that the transfer of these Securities does not require
registration under the Securities Act of 1933, as amended (the "Act") because*:
/ / Such Security is being acquired for the Transferor's own account,
without transfer.
/ / Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
/ / Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act.
/ / Such Security is being transferred in reliance on Regulation S
under the Act.
/ / Such Security is being transferred in reliance on Rule 144 under
the Act.
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/ / Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 or Regulation S under the Act to a person other than an
institutional "accredited investor."
___________________________________
(INSERT NAME OF TRANSFEROR)
By:________________________________
(Authorized Signature)
Date:
___________________________________
*Check applicable box.
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EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
[Date]
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Attention: Corporate Trust Administration
Re: RAS Warrant Co. (the "Company") Warrants to purchase
Common Stock (the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of Securities of the Company,
we confirm that:
1. We have received such information as we deem necessary in order to
make our investment decision.
2. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Warrant
Agreement and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Securities except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
3. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Securities, we will do so only (A) to the
Company or any subsidiary thereof, (B) inside the United States in accordance
with Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Warrant Agent a signed
letter substantially in the form hereof, (D) outside the United States in
accordance with Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available), or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing
Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
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4. We understand that, on any proposed resale of Securities, we will be
required to furnish the Warrant Agent and the Company, such certification, legal
opinions and other information as the Warrant Agent and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501 (a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for our account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
(Name of Transferor)
By: _______________________________
(Authorized Signatory)
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Form of Certificate to Be
Delivered in Connection
with Regulation S Transfers
[Date]
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Attention: Corporate Trust Administration
Re: RAS Warrant Co. (the "Company") Warrants to purchase
Common Stock (the "Securities")
Dear Sirs:
In connection with our proposed purchase of of the
Securities, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) neither (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
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(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby. Defined terms used herein without definition have
the respective meanings provided in Regulation S.
Very truly yours,
(Name of Transferor)
By:________________________________
(Authorized Signatory)