EXHIBIT 4.4
CUSIP: 529529 12 5 WARRANT NO. LW-__
[The following legend is to be inserted only upon issuance or transfer
of the warrant to an affiliate of the Company or upon receipt by the Warrant
Agent of documentation from the Company stating that the holder is believed to
be an affiliate of the Company:
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION. THIS WARRANT SHALL NOT BE TRANSFERRED OR PLEDGED EXCEPT IN
ACCORDANCE WITH SECTION 9 HEREOF.]
THIS WARRANT, AND THE NOTE ATTACHED HERETO, SHALL CONSTITUTE A UNIT.
THIS WARRANT WILL NOT BE DETACHABLE FROM THE NOTE UNTIL AUGUST 1, 2005, AND THIS
WARRANT AND THE NOTE WILL ONLY BE TRANSFERABLE AS A UNIT PRIOR TO THAT TIME. IF
THE NOTE IS REDEEMED BY THE COMPANY PRIOR TO AUGUST 1, 2005, THIS WARRANT WILL
REVERT TO THE COMPANY FOR NO FURTHER CONSIDERATION AND WILL BE CANCELED. THE
UNIT MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED,
MORTGAGED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 9 HEREOF.
LEXINGTON PRECISION CORPORATION
WARRANT TO PURCHASE COMMON STOCK
($3.50 Per Share*)
This certifies that, for value received, __________ (the "holder") is
entitled to subscribe for and purchase up to __________ shares* of fully paid
and nonassessable Common Stock of Lexington Precision Corporation, a Delaware
corporation (the "Company"), at the price specified in Section 2 (the "Warrant
Price"), subject to the provisions and upon the terms and conditions hereinafter
set forth.
This Warrant is issued under and in accordance with a Warrant Agent
Agreement dated as of December 18, 2003, between the Company and Wilmington
Trust Company, as Warrant Agent (the "Warrant Agent Agreement"), and is subject
to the terms and provisions contained in the Warrant Agent Agreement. By
acceptance of this Warrant the Holder hereof consents to all the terms and
provision contained in the Warrant Agent Agreement. A copy of the
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* Subject to adjustment from time to time pursuant to the provisions of
Section 5.
Warrant Agent Agreement may be obtained by the Holder of the Warrant upon
written request to the Warrant Agent.
As used herein, the term "Common Stock" shall mean the Company's
presently authorized Common Stock, par value $0.25 per share, as adjusted from
time to time in accordance with Section 5.
SECTION 1. TERM OF WARRANT. The purchase right represented by
this Warrant is exercisable, in whole or in part, at any time subsequent to 9:30
a.m., New York City Time, on or after August 1, 2005 (the "Detachment Date"),
and prior to 5:00 p.m., New York City Time, on August 1, 2009; provided,
however, that if the 12% Senior Subordinated Note of the Company (the "Note")
with which this Warrant comprises a Unit or the 13% Junior Subordinated Note of
the Company (the "Junior Note") with which this Warrant comprises a Junior Note
Unit issued in connection with an exchange offer (the "Exchange Offer") made
pursuant to the Company's Offering Circular Supplement dated September 18, 2003,
as amended or supplemented, is redeemed prior to the Detachment Date, this
Warrant shall revert to the Company for no further consideration.
SECTION 2. WARRANT PRICE. The Warrant Price is $3.50 per
share, as adjusted from time to time pursuant to the provisions of Section 5;
provided, however, that in no event shall the Warrant Price be less than the par
value of the Company's presently authorized Common Stock.
SECTION 3. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW
WARRANT.
(a) Subject to Section 1 and Section 8, the purchase
right represented by this Warrant may be exercised by the holder, in whole or in
part, by the surrender of this Warrant together with the Notice of Exercise and
the Investment Representation Statement, each completed and duly executed in the
form attached hereto as Exhibit A and Exhibit B, respectively, to the Company at
the principal office of the Warrant Agent and by the payment to the Warrant
Agent, for the account of the Company, by certified check or wire transfer of
federal or other immediately available funds, of an amount equal to the then
applicable Warrant Price per share multiplied by the number of shares then being
purchased.
(b) The Company and Warrant Agent agree that the shares
so purchased shall be deemed to be issued to the holder as the record owner of
such shares as of the close of business on the date on which this Warrant,
together with the completed and duly executed Notice of Exercise and the
Investment Representation Statement, shall have been surrendered and payment
made for such shares as aforesaid. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to the holder promptly thereafter and, unless this
Warrant has been fully exercised or expired, a new Warrant representing the
unexercised and unexpired portion of this Warrant, shall also be issued to the
holder promptly.
SECTION 4. STOCK FULLY PAID; RESERVATION OF SHARES. All shares
of Common Stock that may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance, be fully paid and nonassessable, and free
from all taxes, liens, and charges with respect
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to the issue thereof, other than restrictions upon transfer referred to herein
or required under applicable federal or state securities laws. During the period
within which the rights represented by this Warrant may be exercised, the
Company will, at all times, have authorized and reserved for the purpose of the
issuance upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Common Stock to provide for the exercise of
the rights represented by this Warrant.
SECTION 5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES.
The kind of securities purchasable upon the exercise of this Warrant, the
Warrant Price, and the number of shares purchasable upon exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events as follows:
(a) Reclassification, Consolidation, or Merger. In case
of any reclassification or change of outstanding securities of the class
issuable upon exercise of this Warrant (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 in case of any consolidation or
merger of the Company with or into another corporation, other than a merger with
another corporation in which the Company is the continuing corporation and that
does not result in any reclassification or change of outstanding securities
issuable upon exercise of this Warrant, or in case of any sale of all or
substantially all of the assets of the Company, the Company, or such successor
or purchasing corporation, as the case may be, and the Warrant Agent shall
execute a new Warrant, providing that the holder of this Warrant shall have the
right to exercise such new Warrant and procure upon such exercise, in lieu of
each share of Common Stock theretofore issuable upon exercise of this Warrant,
the kind and amount of shares of stock, other securities, money, and/or property
receivable upon such reclassification, change, consolidation, merger, or sale by
a holder of one share of Common Stock. Such new Warrant shall provide for
adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 5. The provisions of this Section 5(a)
shall similarly apply to successive reclassifications, changes, consolidations,
mergers, and sales.
(b) Subdivision or Combination of Shares. If, at any time
while this Warrant remains outstanding and unexpired, the Company shall
subdivide or combine its Common Stock, the Warrant Price shall be
proportionately decreased in the case of a subdivision or increased in the case
of a combination.
(c) Stock Dividends. If, at any time while this Warrant
remains outstanding and unexpired, the Company shall pay a dividend with respect
to Common Stock payable in, or make any other distribution to holders of Common
Stock (except any distribution specifically provided for in Section 5(a) or
Section 5(b)) of, additional shares of Common Stock, the Warrant Price shall be
adjusted, from and after the record date for the determination of stockholders
entitled to receive such dividend or distribution, to that price determined by
multiplying the Warrant Price in effect immediately prior to such record date by
a fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution and the number
of shares of Common Stock purchasable upon the exercise of the rights
represented by this Warrant shall be adjusted by dividing the number of shares
of Common Stock purchasable
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immediately prior to such record date by the same fraction. In the case of
issuance of shares of Common Stock as a dividend, the shares shall be deemed to
have been issued at the close of business on the dividend record date. If no
dividend record date is fixed, the day on which the Board of Directors of the
Company adopts the resolution authorizing the dividend shall be treated as the
dividend record date.
SECTION 6. NOTICE OF ADJUSTMENTS. Whenever the Warrant Price
shall be adjusted pursuant to Section 5, the Company shall prepare promptly a
certificate signed by its chief financial officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, the Warrant Price after giving
effect to such adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such certificate to be
mailed (by first class mail, postage prepaid) to the Warrant Agent and to the
holder at the addresses specified in Section 10(d), or at such other address as
may be provided to the Company in writing by the holder.
SECTION 7. FRACTIONAL SHARES. The Company shall not be
required to issue any fractional shares of Common Stock in connection with any
exercise hereunder. In the event the Company elects not to issue such fractional
shares, the Company shall make a cash payment in lieu of such fractional shares
upon the basis of the Warrant Price then in effect.
SECTION 8. COMPLIANCE WITH SECURITIES ACT. The holder, by
acceptance hereof, agrees that (a) the shares of Common Stock issuable upon
exercise hereof and, (b) this Warrant are being acquired solely for the holder's
own account and not as a nominee for any other party, for investment purposes
only, and that it will not offer, sell, assign, transfer, pledge, hypothecate,
mortgage, encumber, or otherwise dispose of any of the shares of Common Stock
issuable upon exercise hereof or, if the holder is an "affiliate" (as defined in
Rule 144(a) promulgated under the Securities Act of 1933, as amended (the
"Act")) of the Company, this Warrant except under circumstances that will not
result in a violation of the Act, or any applicable state securities laws. Upon
exercise of this Warrant, the holder shall, if requested by the Company or the
Warrant Agent, confirm in writing, in a form satisfactory to the Company and the
Warrant Agent, that the shares of Common Stock so purchased are being acquired
solely for the holder's own account and not as a nominee for any other party,
for investment, and not with a view toward distribution or resale in any
transaction that would be in violation of the Act or any applicable state
securities laws, subject, however, to the disposition of the holder's property
being at all times within their control. All shares of Common Stock issued upon
exercise of this Warrant (unless registered under the Act) shall be stamped or
imprinted with a legend substantially in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE. NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION
OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR RECEIPT OF
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A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION
STATING THAT SUCH REGISTRATION IS NOT REQUIRED. THIS SECURITY
AND ANY SECURITY RECEIVED UPON THE EXERCISE HEREOF SHALL NOT
BE TRANSFERRED OR PLEDGED EXCEPT IN ACCORDANCE WITH SECTION 9
OF A CERTAIN WARRANT ISSUED BY THE COMPANY AS OF DECEMBER 18,
2003.
SECTION 9. TRANSFER.
(a) The holder shall not offer, sell, assign, transfer,
pledge, hypothecate, mortgage, encumber, or otherwise dispose of (a) all or any
of the securities issuable upon exercise of this Warrant, or (b) if the holder
is an affiliate of the Company, this Warrant, except in compliance with
applicable federal and state securities laws (including the delivery by the
transferor and the transferee of investment representation letters and legal
opinions reasonably satisfactory to the Company and the Warrant Agent, if such
are requested by the Company or the Warrant Agent).
(b) Subject to compliance with the terms of Section 8 and
Section 9(a), this Warrant and all rights hereunder are transferable, in whole
or in part, at the office of the Warrant Agent by the holder in person or by its
duly authorized attorney, upon surrender of this Warrant properly endorsed;
provided, however, that prior to August 1, 2005, this Warrant shall only be
transferable together with the Note or Junior Note with which this Warrant
comprises a Unit or a Junior Note Unit, respectively issued in connection with
the Exchange Offer. Each taker and holder of this Warrant, by taking or holding
the same, consents and agrees that this Warrant, when endorsed in blank, shall
be deemed negotiable; provided, however, that the last holder of this Warrant,
as registered on the warrant register (the "Warrant Register") maintained by the
Warrant Agent, may be treated by the Company, the Warrant Agent, and all other
persons dealing with this Warrant as the absolute owner hereof for any purposes
and as the person entitled to exercise the rights represented by this Warrant,
any notice to the contrary notwithstanding, unless and until such holder seeks
to transfer registered ownership of this Warrant on the Warrant Register and
such transfer is effected.
SECTION 10. MISCELLANEOUS.
(a) No Rights as Stockholder. No holder of a Warrant
shall be entitled to vote or receive dividends on or be deemed for any other
purpose the holder of any Common Stock or any other securities of the Company
that may at any time be issuable upon the exercise hereof, nor shall anything
contained herein be construed to confer upon the holder of this Warrant, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights, or otherwise until this Warrant shall have
been exercised and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
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(b) Replacement. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of loss, theft, or destruction, upon delivery of
an indemnity agreement or bond reasonably satisfactory in form and amount to the
Company or, in the case of mutilation, upon surrender and cancellation of this
Warrant, the Company, at its expense, will execute and deliver, and the Warrant
Agent will countersign, in lieu of this Warrant, a new Warrant of like tenor.
(c) Notice of Capital Changes. In the event:
(i) The Company shall declare any dividend or
distribution payable to the holders of its Common Stock;
(ii) There shall be any capital reorganization or
reclassification of the capital stock of the Company, or any consolidation or
merger of the Company with, or sale of all or substantially all of its assets
to, another corporation or business organization; or
(iii) There shall be a voluntary or involuntary
dissolution, liquidation, or winding up of the Company; then, in any one or more
of said cases, the Company shall give the holder and the Warrant Agent written
notice, in the manner set forth in Section 10(d), of the date on which a record
shall be taken for such dividend or distribution or for determining stockholders
entitled to vote upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, or winding up and of the date on which
any such transaction shall take place, as the case may be. Such written notice
shall be given at least 20 days prior to the transaction in question and not
less than 10 days prior to the record date in respect thereof.
(d) Notices. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
registered or certified mail, postage prepaid, or otherwise delivered by hand or
by a nationally recognized overnight courier, as follows:
If to the Company:
Lexington Precision Corporation
767 Third AVE
New York, NY 10017
Attention: President
If to the holder:
at the address of the registered
holder then maintained on the Warrant
Register.
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If to the Warrant Agent:
(i) by registered or certified mail:
Wilmington Trust Company
DC-1615
Reorg Services
P.O. Box 8861
Wilmington, DE 19899-8861
Attention: Aubrey Rosa
(ii) by hand delivery or overnight courier:
Wilmington Trust Company
Reorg Services
1100 North Market ST
Rodney Square North
Wilmington, DE 19890-1615
Attention: Aubrey Rosa
All such notices (other than notices of exercise of this Warrant, which shall be
deemed to have been received only upon actual receipt thereof by the Warrant
Agent) and communications shall be deemed to have been received (i) in the case
of personal delivery, on the date of such delivery, (ii) in the case of a
nationally recognized overnight courier, on the next business day after the date
when sent, and (iii) in the case of mailing, on the third business day following
the date on which the piece of mail containing such communication has been
deposited in a regularly maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid.
(e) No Impairment. The Company will not, by amendment of
its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issuance or sale of securities, or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed hereunder by the Company, but
will at all times in good faith assist in the carrying out of all the provisions
in this Warrant.
(f) Governing Law. Except to the extent that the General
Corporation Law of the State of Delaware may govern this Warrant by virtue of
the fact that the Company is incorporated under the laws of the State of
Delaware, this Warrant shall be governed by and construed under the laws of the
State of New York without regard to its conflict of laws rules or principles.
(g) Countersignature. This Warrant shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Warrant
Agent.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: December __, 2003
LEXINGTON PRECISION CORPORATION
By:__________________________________
Name:________________________________
Title: ______________________________
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By:__________________________________
Name:________________________________
Title: ______________________________
COUNTERSIGNED:
WILMINGTON TRUST COMPANY
as Warrant Agent
By: ____________________________
Name: ___________________________
Title: __________________________
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Exhibit A to Warrant to Purchase Common Stock
NOTICE OF EXERCISE
TO: Lexington Precision Corporation
1. The undersigned hereby elects to purchase ________
shares of the Common Stock of Lexington Precision Corporation pursuant to the
terms of the attached Warrant, and tenders herewith payment of the purchase
price of such shares in full.
2. Please issue a certificate or certificates
representing said shares of Common Stock in the name of the undersigned or in
such other name as is specified below:
______________________
(Name)
______________________
______________________
(Address)
3. The undersigned represents that the aforesaid shares
of Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of
distributing or reselling such shares.
_____________________________ _____________________________
(Date) (Name of Warrant Holder)
By:__________________________
Title:_______________________
A-1
Exhibit B to Warrant to Purchase Common Stock
INVESTMENT REPRESENTATION STATEMENT
The undersigned hereby represents to Lexington Precision
Corporation (the "Company") and to Wilmington Trust Company, as Warrant Agent,
as follows:
The securities to be received upon the exercise of the Warrant
to which this Statement is an exhibit (the "Warrant") will be acquired for
investment for its own account, not as a nominee or agent, and not with a view
to the sale or distribution of any part thereof, and the undersigned has no
present intention of offering, selling, granting participation in, or otherwise
distributing the same in any transaction that would be in violation of
applicable federal or state securities laws, but subject to any requirement of
law that the disposition of its property shall at all times be within its
control. By executing this Statement, the undersigned further represents that it
does not have any contract, undertaking, agreement, or arrangement with any
person to offer, sell, transfer, grant participations in, or otherwise
distribute to such person or to any third person any securities issuable upon
exercise of the Warrant.
The undersigned acknowledges that the securities issuable upon
exercise of the Warrant at the time of issuance may not be registered under the
Securities Act of 1933, as amended (the "Act"), or any applicable state
securities laws on the ground that the issuance of such securities is exempt
pursuant to Section 4(2) of the Act and state law exemptions relating to offers
and sales not by means of a public offering, and that the Company's reliance on
such exemptions is predicated on the undersigned's representations set forth
herein. The undersigned represents that it is an "accredited investor" within
the meaning of Rule 501 of Regulation D under the Act as presently in effect or
a "qualified institutional buyer" within the meaning of Rule 144A under the Act
as presently in effect.
The undersigned agrees that in no event will it make a
disposition of any securities acquired upon the exercise of the Warrant unless
and until (a) it shall have notified the Company of the proposed disposition and
shall have furnished to the Company a statement of the circumstances surrounding
the proposed disposition, and (b) it shall have furnished the Company with an
opinion of counsel satisfactory to the Company to the effect that (i)
appropriate action necessary for compliance with the Act and any applicable
state securities laws has been taken and an exemption from the registration
requirements of the Act and such laws is available, and (ii) the proposed
transfer will not violate any of said laws.
The undersigned acknowledges that an investment in the Company
is highly speculative and represents that it is able to fend for itself in the
transactions contemplated by this Statement, that it has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of their investments, and that it has the ability to bear the
economic risks (including the risk of a total loss) of its investment. The
undersigned represents that it has had the opportunity to ask questions of the
Company concerning the Company's business and assets and to obtain any
additional information that it considered necessary to verify the accuracy of or
to amplify on the Company's disclosures, and that it has had all questions asked
by it satisfactorily answered by the Company.
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The undersigned acknowledges that the securities issuable upon
exercise of the Warrant must be held indefinitely unless subsequently registered
under the Act or an exemption from such registration is available. The
undersigned is aware of the provisions of Rule 144 promulgated under the Act
that permit limited resale of securities purchased in a private placement
subject to the satisfaction of certain conditions, including, among other
things, the existence of a public market for such securities, the availability
of certain current public information about the Company, the resale occurring
not less than one year after a party has purchased and paid for the securities,
the sale being executed through a "broker's transaction" or in transactions
directly with "market makers" (as provided by Rule 144(f)) and the number of
securities being sold during any three-month period not exceeding specified
limitations.
_________________________ __________________________________
(Date) (Name of Warrant Holder)
By:_______________________________
Title:____________________________
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