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SPECTRAN CORPORATION
EXHIBIT 10.106
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY AND SUBJECT TO A
CONVERSION AGREEMENT AMONG SPECTRAN CORPORATION, ALLEN & COMPANY INCORPORATED,
RICHARD A.M.C. JOHNSON AND PATRICK E. BRAKE DATED AS OF NOVEMBER 8, 1990 AND ON
FILE AT THE OFFICES OF THE COMPANY.
Void after August 14, 1999 Right to Purchase 150,000 Shares of Common Stock
(subject to adjustment) of SpecTran Corporation
SPECTRAN CORPORATION
COMMON STOCK PURCHASE WARRANT
SPECTRAN CORPORATION (the "Company"), a Delaware corporation, hereby certifies
that, for value received, ALLEN & COMPANY INCORPORATED, or assigns, is entitled,
subject to the terms set forth below, to purchase from the Company at any time
on or from time to time after August 14, 1990 and before 5:00 P.M., New York
City time, on August 14, 1999, 150,000 fully paid and non-assessable shares of
Common Stock of the Company, at the price per share (the "Purchase Price") of
$2.00. The number and character of such shares of Common Stock and the Purchase
Price are subject to adjustment as provided herein.
This Common Stock Purchase Warrant (the "Warrant") is issued to Allen &
Company Incorporated as of November 8, 1990 and evidencing the right to purchase
an aggregate of not more than 150,000 shares of Common Stock of the Company,
subject to adjustment as provided herein. These are the remaining shares from a
Warrant to purchase 350,000 shares which was exercised, in part, for 200,000
shares, on February 18, 1997. 150,000 of these shares was originally subject to
a warrant issued August 14, 1981 and another 100,000 of these shares was
originally subject to a warrant issued August 14, 1986; both warrants were
amended and incorporated into this Warrant in accordance with the Conversion
Agreement (defined below).
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" includes any corporation which shall succeed to or
assume the obligations of the Company hereunder.
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SPECTRAN CORPORATION
(b) The term "Common Stock" includes all stock of any class or classes
(however designated) of the Company, authorized upon the Original
Issue Date or thereafter, the holders of which shall have the right,
without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the
payment of dividends and distributions on any shares entitled to
preference, and the holders of which shall ordinarily, in the absence
of contingencies, be entitled to vote for the election of a majority
of directors of the Company (even though the right so to vote has been
suspended by the happening of such a contingency).
(c) "Conversion Agreement" shall mean the Conversion Agreement among
SpecTran Corporation, Allen & Company Incorporated ("Allen"), Richard
A.M.C. Johnson ("Johnson"), 145 La Vereda Road, Santa Barbara,
California 93108, and Patrick E. Brake ("Brake"), 711 Fifth Avenue,
New York, New York 10022, dated as of November 8, 1990.
(d) The "Original Issue Date" is November 8, 1990, the date as of which
the Warrants were first issued.
(e) The term "Other Securities" refers to any stock other than Common
Stock) and other securities of the Company or any other person
(corporate or otherwise) which the holders of the warrants at any time
shall be entitled to receive, or shall have received, upon the
exercise of the Warrants, in lieu of or in addition to Common Stock,
or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities
pursuant to section 7 or otherwise.
(f) The terms "registered" and "registration" refer to a registration
effected by filing a registration statement in compliance with the
Securities Act, to permit the disposition of Common Stock (or Other
Securities) issued or issuable upon the exercise of Warrants, and any
post-effective amendment and supplements filed or required to be filed
to permit any such disposition.
(g) The term "Securities Act" means the Securities Act of 1933 as the same
shall be in effect at the time.
(h) The term "Warrants" shall mean, collectively, the warrant held by
Allen to purchase 350,000 shares of Common Stock (individually, the
"Allen Warrant"), the warrant held by Johnson to purchase 30,000
shares of Common Stock (individually, the "Johnson Warrant"), and the
warrant held by Brake to purchase 20,000 shares of Common Stock
(individually, the "Brake Warrant"). The term "Warrant" shall mean the
warrant evidenced by this document.
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SPECTRAN CORPORATION
1. Registration, etc.
1.1 In the event that the Company proposes, at any time within the
four year period commencing one year from the Original Issue Date, to file a
registration statement (including a registration statement to be filed under
subparagraph 1.2 hereof) on a general form of registration under the Securities
Act and relating to securities issued or to be issued by it, or if the Company
has filed such a registration statement and proposes to file a post-effective
amendment thereto within the four year period described in the first clause of
this sentence, then it shall give written notice of such proposal to Allen. If,
within thirty (30) days after the giving of such notice, Allen shall request in
writing that all or any of such Common Stock or Other Securities issued or
issuable upon exercise of the Warrants be included in such proposed
registration, the Company will, at its own expense, also register such
securities as shall have been requested by Allen in writing; provided, however,
that:
(a) the record owners of such securities shall deliver to the Company a
statement in writing from the beneficial owners of such securities
that they bona fide intend to sell, transfer or otherwise dispose of
such securities;
(b) the Company shall not be required to include any of such securities
if, by reason of such inclusion, the Company shall be required to
prepare and file a registration statement on a form promulgated by the
Securities and Exchange Commission substantially differed from that
which the Company otherwise would use;
(c) such record and/or beneficial owners shall cooperate with the Company
in the preparation of registration statement to the extent required to
furnish information concerning such owners therein; and
(d) if any underwriter or managing agent is purchasing or arranging for
the sale of the securities then being offered by the Company under
such registration statement, then such record and/or beneficial owners
(i) shall agree to have the securities being so registered sold to or
by such underwriter or managing agent on terms substantially
equivalent to the terms at which the Company is selling the securities
so registered, or (ii) shall delay the sale of such securities for the
30 day period commencing with the effective date of the registration
statement, provided that, if such owner elects, alternative (i) and if
the underwriter or managing agent shall in good faith object to the
sale at that time of such securities, then the sale of such securities
may be delayed for a period not to exceed 90 days from the effective
date of such registration statement.
1.2 After one year from the Original Issue Date, but prior to the
expiration of four years from the date thereof, the Company will, upon the
written request of Allen, prepare and file as promptly as is reasonably possible
upon being furnished with the requisite information
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for such purpose, and use its reasonable best efforts to make effective, at the
expense of the registered owners of Warrants and/or shares of Common Stock
issued upon the exercise of the Warrants which are the subject of Allen's
request, a registration statement (but only two) covering such Common Stock or
Other Securities issued or issuable upon exercise of such Warrants requested to
be sold by Allen.
1.3 In connection with the filing of a registration statement pursuant
to subsections 1.1 or 1.2 of this section 1, the Company shall:
(a) notify Allen as to the filing thereof and of all amendments thereto
filed prior to the effective date of said registration statement;
(b) notify Allen promptly after it shall have received notice thereof, of
the time when the registration statement becomes effective or any
supplement to any prospectus forming a part of the registration
statement has been filed;
(c) prepare and file any necessary amendment or supplement to such
registration statement or prospectus as may be necessary to comply
with section 10(a)(3) of the Securities Act or advisable in connection
with the proposed distribution of the securities by the owners
thereof;
(d) use its reasonable best efforts to qualify the shares of Common Stock
or Other Securities being so registered for sale under the securities
or blue sky laws of not more than eight states as Allen may designate
in writing and to register or obtain the approval of any federal or
state authority which may be required in connection with the proposed
distribution, except, in each case, in jurisdictions in which the
Company must either qualify to do business or file a general consent
to service of process as a condition to the qualification of such
securities;
(e) notify Allen of any stop order suspending the effectiveness of the
registration statement and use its reasonable best efforts to remove
such stop order;
(f) undertake to keep said registration statement and prospectus effective
for a period of nine months after such shares of Common Stock first
become free to be sold under such registration statement;
(g) furnish to Allen as soon as available, copies of any such registration
statement and each preliminary or final prospectus and any supplement
or amendment required to be prepared pursuant to the foregoing
provisions of this paragraph 1, all in such quantities as Allen may
from
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SPECTRAN CORPORATION
time to time reasonably request. The Company shall furnish to Allen
without cost one set of the Exhibits to such registration statement.
1.4 The record owners of the shares of Common Stock or Other
Securities being so registered agree to pay all of the underwriting discounts
and commissions, transfer taxes, registration fees and their own counsel fees
with respect to the securities owned by them and being registered. The Company
agrees that the costs and expenses which it is obligated to pay in connection
with a registration statement to be filed pursuant to subsection 1.1 above, and
the record owners agree that the costs and expenses which they are obligated to
pay in connection with a registration statement to be filed pursuant to
subsection 1.2 above, include, but are not limited to, the fees and expenses of
counsel for the Company, the fees and expenses of its accountants and all other
costs and expenses incident to the preparation, printing and filing under the
Securities Act of any such registration statement, each prospectus and all
amendments and supplements thereto, the costs incurred in connection with the
qualification of such securities for sale in not more than eight states,
including fees and disbursements of counsel for the Company, and the costs of
supplying a reasonable number of copies of the registration statement, each
preliminary prospectus, final prospectus and any supplements or amendments
thereto to Allen.
1.5 The Company agrees to enter into an appropriate cross-indemnity
agreement with any underwriter (as defined in the Securities Act) for such
record owners in connection with the filing of a registration statement pursuant
to subsections 1.1 or 1.2 hereof.
1.6 In the event that the Company shall file any registration
statement including therein all or any part of shares of Common Stock or Other
Securities issued or issuable upon exercise of the Warrants, the Company and
each record and/or beneficial owner of such securities shall enter into an
appropriate cross-indemnity agreement whereby each such owner shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the registration statement and each person, if any, who controls the
Company within the meaning of the Securities Act against any losses, claims,
damages or liabilities (or actions in respect thereof) arising out of or based
upon any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with written information furnished or required
to be furnished by such owner or such controlling person expressly for use in
such registration statement.
2. Sale or Exercise Without Registration. If, at the time of any exercise,
transfer or surrender for exchange of a Warrant or of Common Stock (or Other
Securities) previously issued upon the exercise of Warrants, such Warrant or
Common Stock (or Other Securities) shall not be registered under the Securities
Act, the Company may require, as a condition or allowing such exercise, transfer
or exchange, that the owner or transferee of such Warrant or Common Stock (or
Other Securities), as the case may be, furnish to the Company a satisfactory
opinion of counsel to the effect that such exercise, transfer or exchange may be
made without registration under the Securities Act, provided that the
disposition thereof shall at all times be within the
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SPECTRAN CORPORATION
control of such owner or transferee, as the case may be, and provided further
that nothing contained in this section 2 shall relieve the Company from
complying with any request for registration pursuant to section 1 hereof. Allen
or its assigns, Johnson or his assigns, and Brake or his assigns, as the case
may be, in each case as the first holder of his or its Warrant represents to the
Company that he or it is acquiring the Warrant for investment and not with a
view to the distribution thereof.
3. Right of First Refusal. The Allen Warrant and Common Stock (or Other
Securities) previously issued upon the exercise of the Allen Warrant shall be
subject to the right of first refusal and other procedures contained in Section
3. of the Conversion Agreement.
4. Exercise of Warrant; Partial Exercise.
4.1 Exercise in Full. Subject to the provisions hereof, this Warrant
may be exercised in full by the holder thereof by surrender of the Warrant, with
the form of subscription at the end hereof duly executed by such holder, to the
Company at its principal office in Sturbridge, Mass., accompanied by payment, in
cash or by certified or official bank check payable to the order of the Company,
in the amount obtained by multiplying the number of shares of Common Stock
called for on the face of the Warrant (without giving effect to any adjustment
therein) by the Purchase Price.
4.2 Partial Exercise. Subject to the provisions hereof, this Warrant
may be exercised in part by surrender of the Warrant in the manner and at the
place provided in subsection 4.1 except that the amount payable by the holder
upon any partial exercise shall be the amount obtained by multiplying (a) the
number of shares of Common Stock (without giving effect to any adjustment
therein) designated by the holder in the subscription at the end hereof by (b)
the Purchase Price. Upon any such partial exercise, the Company at its expense
will forthwith issue and deliver to or upon the order of the holder thereof a
new warrant or warrants of like tenor, in the name of the holder thereof or as
such holder (upon payment by such holder of any applicable transfer taxes) may
request, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock equal (without giving effect to any adjustment therein)
to the number of such shares called for on the face of the partially exercised
warrant minus the number of such shares designated by the holder in the
subscription at the end hereof.
4.3 Company to Reaffirm Obligations. The Company will, at the time of
any exercise of this Warrant, upon the request of the holder thereof,
acknowledge in writing its continuing obligation to afford to such holder any
rights (including, without limitation, any right to registration of the shares
of Common Stock or Other Securities issued upon such exercise) to which such
holder shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant, provided that if the holder of this Warrant shall
fail to make any such request, such failure shall not affect the continuing
obligation of the Company to afford such holder any such rights.
5. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within 10 days thereafter, the
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SPECTRAN CORPORATION
Company at its expense (including the payment by it of any applicable issue
taxes) will cause to be issued in the name of and delivered to the holder
hereof, or as such holder (upon payment by such holder of any applicable
transfer taxes) may direct, a certificate or certificates for the number of
fully paid and non-assessable shares of Common Stock (or Other Securities) to
which such holder shall be entitled upon such exercise, plus, in lieu of any
fractional share to which such holder would otherwise be entitled, cash equal to
such fraction multiplied by the then current market value of one full share,
together with any other stock or other securities and property (including cash,
where applicable) to which such holder is entitled upon such exercise pursuant
to section 6 or otherwise.
6. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc.In case at any time or from time to time after the
Original Issue Date the holders of Common Stock (or Other Securities) shall have
received, or (on or after the record date fixed for the determination of
stockholders eligible to receive) shall have become entitled to receive, without
payment therefor
(a) other or additional stock or other securities or property (other than
cash) by way of dividend, or
(b) any cash paid or payable (including, without limitation, by way of
dividend), except out of earned surplus of the Company, or
(c) other or additional (or less) stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
then, and in each such case the holder of this Warrant, upon the exercise hereof
as provided in section 4, shall be entitled to receive the amount of stock and
other securities and property (including cash in the case referred to in
subdivisions (b) and (c) of this section 6) which such holder would hold on the
date of such exercise if on the Original Issue Date it had been the holder of
record of the number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the Original Issue Date to
and including the date of such exercise, retained such shares and all such other
or additional (or less) stock and other securities and property (including cash
in the cases referred to in subdivisions (b) and (c) of this section 6)
receivable by it as aforesaid during such period, giving effect to all
adjustments called for during such period by section 7 and 8 hereof.
7. Reorganization, Consolidation, Merger, etc.
7.1 General. In case the Company after the Original Issue Date shall
(a) effect a reorganization, (b) consolidate with or merge into any other
person, or (c) transfer all or substantially all of its properties or assets to
any other person under any plan or arrangement contemplating the dissolution of
the Company within 24 months from the date of such transfer, then, in each such
case, the holder of this Warrant, upon the exercise hereof as provided in
section 4 at any time after the consummation of such dissolution, as the case
may be, shall be entitled to receive (and the Company shall be entitled to
deliver), in lieu of the Common Stock
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SPECTRAN CORPORATION
(or Other Securities) issuable upon such exercise prior to such consummation or
such effective date, the stock and other securities and property (including
cash) to which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided in section 6 and 8 hereof.
The Company agrees that in the event that it effects a consolidation with
or merger into any other person, it shall be a condition of such consolidation
or merger that the resulting entity agree to register all shares or other shares
or other securities under the Securities Act of 1933 so that all persons
receiving shares in the consolidation or merger shall be free to sell said
shares pursuant to an effective registration statement immediately after the
consolidation or merger.
7.2 Warrant to Continue in Full Force and Effect. Upon any
reorganization, consolidation, merger or transfer (and any dissolution following
any transfer) pursuant to section 7.1 this Warrant shall continue in full force
and effect and the terms hereof shall be applicable to the shares of stock and
other securities and property receivable upon the exercise of this Warrant after
the consummation of such reorganization, consolidation, merger, transfer or
dissolution, as the case may be, and shall be binding upon the issuer of any
such stock or other securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of the
Company, whether or not such person shall have expressly assumed the terms of
this Warrant.
8. Other Adjustments.
8.1 General. In any case to which sections 6 and 8 hereof are not
applicable, where the Company shall issue or sell shares of its Common Stock
after the Original Issue Date, other than shares issued or sold in connection
with options or rights granted pursuant to the Company's Incentive Stock Option
Plan (or any similar plan it might adopt), without consideration or for a
consideration per share less than the Purchase Price in effect pursuant to the
terms of this Warrant at the time of issuance or sale of such additional shares,
except where such shares are issued or sold pursuant to the exercise of any
warrant or option or issued prior to the date of this Warrant, then the Purchase
Price in effect hereunder shall simultaneously with such issuance or sale be
reduced to a price determined by dividing (1) an amount equal to (a) the total
number of shares of Common Stock outstanding immediately prior to such issuance
or sale multiplied by the Purchase Price in effect hereunder at the time of such
issuance or sale, plus (b) the consideration, if any, received by the Company
upon such issuance or sale by (2) the total number of shares of Common Stock
outstanding immediately after issuance or sale of such additional shares.
8.2 Convertible Securities. In case the Company shall issue or sell
any securities convertible into Common Stock of the Company ("Convertible
Securities") after the date hereof, other than shares issued or sold in
connection with options or rights granted pursuant to the Company's Incentive
Stock Option Plan (or any similar plan it might adopt), there shall be
determined the price per share for which Common Stock is issuable upon the
conversion or exchange thereof, such determination to be made by dividing (a)
the total amount
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SPECTRAN CORPORATION
received or receivable by the Company as consideration, if any, payable to the
Company upon the conversion or exchange thereof, by (b) the maximum number of
shares of Common Stock of the Company issuable upon the conversion or exchange
of all of such Convertible Securities.
If the price per share so determined shall be less than the applicable
Purchase Price per share, then such issue or sale shall be deemed to be an issue
or sale for cash (as of the date of issue or sale of such Convertible
Securities) of such maximum number of shares of Common Stock at the price per
share so determined, provided that, if such Convertible Securities shall by
their terms provide for an increase or increases, with the passage of time, in
the amount of additional consideration, if any, to the Company, or in the rate
of exchange, upon the conversion or exchange thereof, the adjusted purchase
price per share shall, forthwith upon any such increase becoming effective, be
readjusted to reflect the same, and provided further, that upon the expiration
of such rights of conversion or exchange of such Convertible Securities, if any
thereof shall not have been exercised, the adjusted Purchase Price per share
shall forthwith be readjusted and thereafter be the price which it would have
been had an adjustment been made on the basis that the only shares of Common
Stock so issued or sold were issued or sold upon the conversion or exchange of
such Convertible securities, and that they were issued or sold for the
consideration actually received by the Company upon such conversion or exchange,
plus the consideration, if any, actually received by the Company for the issue
or sale of all of such Convertible Securities which shall have been converted or
exchanged.
8.3 Rights and Options. In case the Company shall grant any rights or
options, other than options or rights granted pursuant to the Company's
Incentive Stock Option Plan (or any similar plan it might adopt), to subscribe
for, purchase or otherwise acquire Common Stock, there shall be determined the
price per share for which Common Stock is issuable upon the exercise of such
rights or options, such determination to be made by dividing (a) the total
amount, if any, received or receivable by the Company as consideration for the
granting of such rights or options, plus the minimum aggregate amount of
additional consideration payable to the Company upon the exercise of such rights
or options, by (b) the maximum number of shares of Common Stock of the Company
issuable upon the exercise of such rights or options.
If the price per share so determined shall be less than the applicable
Purchase Price per share, then the granting of such rights or options shall be
deemed to be an issue or sale for cash (as of the date of the granting of such
rights or options) of such maximum number of shares of Common Stock at the price
per share so determined, provided that, if such rights or options shall by their
terms provide for an increase or increases, with the passage of time, in the
amount of additional consideration payable to the Company upon the exercise
thereof, the adjusted purchase price per share shall, forthwith upon any such
increase becoming effective, be readjusted to reflect the same, and provided,
further, that upon the expiration of such rights or options, if any thereof
shall not have been exercised, the adjusted Purchase Price per share shall
forthwith be readjusted and thereafter be the price which it would have been had
an adjustment been made on the basis that the only shares of Common Stock so
issued or sold were those issued or sold upon the exercise of such rights or
options and that they were issued or sold for the consideration
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actually received by the Company upon such exercise, plus the consideration, if
any, actually received by the Company for the granting of all such right or
options, whether or not exercised.
9. Further Assurances. The Company will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of stock upon the exercise of all Warrants
from time to time outstanding.
10. Accountant's Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock (or Other Securities)
issuable upon the exercise of the Warrants, the Company at its expense will
promptly cause the Company's regularly retained auditor to compute such
adjustment or readjustment in accordance with the terms of the Warrants and
prepare a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based, and the
number of shares of Common Stock outstanding or deemed to be outstanding. The
Company will forthwith mail a copy of each such certificate to each holder of a
Warrant.
11. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend payable
out of earned surplus of the Company) or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of
stock of any class or any other securities or property, or to receive
any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer
of all or substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other person,
or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company, or
(d) any proposed issue or grant by the Company of any shares of stock of
any class or any other securities, or any right or option to subscribe
for, purchase or otherwise acquire any shares of stock of any class or
any other securities (other than (i) in connection with the Company's
Incentive Stock Option Plan (or any similar plan it might adopt), or
(ii) the issue of Common Stock on the exercise of the Warrants), then
and in each such event the Company will mail or cause to be mailed to
each holder of a Warrant a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such
dividend, distribution or right, (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to
take
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place, and the time, if any, as of which the holder of record of
Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for securities or other
property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution,
liquidation or winding-up, and (iii) the amount and character of any
stock or other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue
or grant is to be offered or made. Such notice shall be mailed at
least 20 days prior to the date therein specified.
12. Reservation of Stock, etc. Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery upon the exercise of the Warrants, all shares of Common Stock (or Other
Securities) from time to time issuable upon the exercise of the Warrants.
13. Listing on Securities Exchanges; Registration. If the Company at any
time shall list any Common Stock on any national securities exchange and shall
register such Common Stock under the Securities Exchange Act of 1934 (as then in
effect, or any similar statue then in effect), the Company will, at its expense,
simultaneously list on such exchange, upon official notice of issuance upon the
exercise of the Warrants, and maintain such listing of all shares of Common
Stock from time to time issuable upon the exercise of the Warrants; and the
Company will so list on any national securities exchange, will so register and
will maintain such listing of all shares of Common Stock from time to time
issuable upon the exercise of the Warrants; and the Company will so list on any
national securities exchange, will so register and will maintain such listing
of, any Other Securities if and at the time that any securities of like class or
similar type shall be listed on such national securities exchange by the
Company.
14. Exchange of Warrants. Subject to the provisions of paragraph 2 hereof,
upon surrender for exchange of any Warrant, properly endorsed, to the Company,
the Company at its own expense will issue and deliver to or upon the order of
the holder thereof a new warrant or warrants of like tenor, in the name of such
holder or as such holder (upon payment by such holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face or faces thereof for the
number of shares of common Stock called for on the face or faces of the warrant
or warrants so surrendered.
15. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction of mutilation of any
Warrant and, in the case of any such loss, theft or destruction, upon delivery
of an indemnity agreement reasonably satisfactory in form and amount to the
Company or, in the case of any such mutilation, upon surrender and cancellation
of such Warrant, the Company at its expense will execute and deliver, in lieu
thereof, a new warrant of like tenor.
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16. Warrant Agent. The Company may, by written notice to each holder of a
Warrant, appoint an agent having an office in New York, New York, for the
purpose of issuing Common Stock (or Other Securities) upon the exercise of the
Warrants pursuant to section 4, exchanging Warrants pursuant to section 14, and
replacing Warrants pursuant to section 15, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be, shall
be made at such office by such agent.
17. Remedies. The Company stipulates that the remedies at law of the holder
of this Warrant in the event of any default or threatened default by the Company
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or by
an injunction against a violation of any of the terms hereof or otherwise.
18. Negotiability, etc. This Warrant is issued upon the following terms, to
all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) subject to the provisions hereof, title to this Warrant may be
transferred by endorsement (by the holder hereof executing the form of
assignment at the end hereof) and delivery in the same manner as in
the case of a negotiable instrument transferable by endorsement and
delivery;
(b) subject to the foregoing, any person in possession of this Warrant
properly endorsed is authorized to represent himself as absolute owner
hereof and is empowered to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for
value; each prior taker or owner waives and renounces all of his
equities or rights in this Warrant in favor of each such bona fide
purchaser and each such bona fide purchaser shall acquire absolute
title hereto and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the contrary.
19. Notices, etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such addresses as may have been furnished to
the Company in writing by such holder, or, until and address is so furnished, to
and at the address of the last holder of this Warrant who has so furnished an
address to the Company.
20. Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant is being delivered in the State of New York and shall be
construed and enforced in accordance with
13
SPECTRAN CORPORATION
and governed by the laws of such State. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
21. Extended Expiration. The right to exercise this Warrant shall expire at
5:00 P.M., New York City time, on August 14, 1999, provided, however, that if
the holders of Warrants issued hereunder have, in accordance with the terms
hereof, requested a registration statement pursuant to subsection 1.2 hereof and
such registration statement has not become effective prior to the expiration
date of the right to exercise this Warrant, then the right to exercise this
Warrant shall be extended and shall expire 30 days after the effective date of
such registration statement.
22. Assignability. This Warrant is fully assignable at any time.
Dated:
SPECTRAN CORPORATION
By__________________________
[Corporate Seal]
Attest:
___________________________
Secretary
14
SPECTRAN CORPORATION
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: SPECTRAN CORPORATION
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, * shares of Voting Common Stock of SpecTran
Corporation, and herewith makes payment of $ thereof, and requests that the
certificates for such shares be issued in the name of, and delivered to,
, whose address is
Dated:
_________________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
_________________________________________________
(Address)
- --------
* Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which
the Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment
provisions of the Warrant, may be deliverable upon exercise.
15
SPECTRAN CORPORATION
FORM OF ASSIGNMENT
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and
transfers unto the right represented by the within warrant to purchase ** shares
of Voting Common Stock of SpecTran Corporation which the within warrant relates,
and appoints Attorney to transfer such right on the books of SpecTran
Corporation with full power of substitution in the premises. The warrant being
transferred hereby is one of an aggregate of 350,000 Common Stock Purchase
warrants issued by SpecTran Corporation to Allen & Company Incorporated as of
November 8, 1990.
Dated:
_________________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
_________________________________________________
(Address)
- --------
** Signature guaranteed by a Bank or Trust Company having its principal
office in New York City or by a Member Firm of the New York or American
Stock Exchange.