EXHIBIT 4.3
WARRANT AGREEMENT
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AGREEMENT, dated as of August __, 1997, by and among CATALYTICA, INC., a
Delaware corporation (the "Corporation"), and CHASEMELLON SHAREHOLDER SERVICES,
L.L.P., a [New Jersey L.L.P.], as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H
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WHEREAS, the Corporation has declared a dividend in the form of a warrant
to be exercisable for a period of ninety days from the issuance thereof (the
"Initial Warrant Exercise Date"), to purchase one share of the Corporation's
Common Stock at $4.00 per share (the "Warrant Price") for every three shares of
Common Stock held by a stockholder on [__________, 1997]; and
WHEREAS, the Corporation has filed with the Securities Exchange Commission
a Registration Statement, No. _____ on Form S-3 ("Registration Statement") for
the registration, under the Securities Act of 1933, as amended, of among others,
the Warrants and the Common Stock issuable upon exercise of the Warrants; and
WHEREAS, the Corporation desires the Warrant Agent to act on behalf of the
Corporation, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, and exchange of the Warrants, the issuance of
certificates representing the Warrants, the exercise of the Warrants, and the
rights of the holders thereof; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Corporation and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Corporation, and to authorize the
execution and delivery of this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and for the purpose of defining the terms and provisions
of the Warrants and the certificates representing the Warrants and the
respective rights and obligations thereunder of the Corporation, the holders of
certificates representing the Warrants and the Warrant Agent, the Parties hereto
agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall have
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the following meanings, unless the context shall otherwise require:
(a) "Common Stock" shall mean the authorized 120,000,000 shares of $0.001
par value per share Common Stock of the Corporation.
(b) "Corporate Office" shall mean the office of the Warrant Agent (or its
successor) at which at any particular time its principal business shall be
administered, which office is located on the date hereof at [50 California
Street, 10th Floor, San Francisco, California].
(c) "Exercise Date" shall mean, as to any Warrant, the date on which the
Warrant Agent shall have received both (a) the Warrant Certificate representing
such Warrant, with the Election to Purchase Form thereon duly executed by the
Registered Holder thereof or his attorney duly authorized in writing, and (b)
payment in cash, by wire transfer or by official bank or certified check made
payable to the Warrant Agent, of an amount in lawful money of the United States
of America equal to the applicable Warrant Price.
(d) "Initial Warrant Exercise Date" shall mean, as to each Warrant,
__________, 1997.
(e) "Registered Holder" shall mean the person in whose name any
certificate representing a Warrant or Warrants shall be registered on the books
maintained by the Warrant Agent pursuant to Section 6.
(f) "Transfer Agent" shall mean ChaseMellon Shareholder Services, L.L.P.
as the Corporation's transfer agent, or its authorized successor, as such.
(g) "Warrant Expiration Date" shall mean 5:00 p.m. (Pacific time) on
November __, 1997; provided that if such date shall in the State of California
be a holiday or a day on which banks are authorized to close, then 5:00 pm.
(Pacific time) on the next following day which in the State of California is not
a holiday or a day on which banks are authorized to close. Upon notice to all
Registered Holders, the Corporation shall have the right to extend the Warrant
Expiration Date.
(h) "Warrant Price" shall mean the price to be paid upon exercise of each
Warrant in accordance with the terms hereof, which price shall be $4.00 during
the _____ day period commencing __________, 1997 and ending at 5:00 p.m. Pacific
Time on __________, 1997, subject to adjustment from time to time pursuant to
the provisions of Section 8 hereof, and subject to the Corporation's right to
reduce the Warrant Price upon notice to all Registered Holders.
SECTION 2. Warrants and Issuance of Warrant Certificates.
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(a) Each Warrant shall initially entitle the Registered Holder of the
Warrant Certificate representing such Warrant to purchase one share of Common
Stock upon the exercise thereof, in accordance with the terms hereof, subject to
modification and adjustment as provided in Section 8.
(b) From time to time, up to the Warrant Expiration Date, the Transfer
Agent shall countersign and deliver stock certificates in required whole number
denominations upon the exercise of Warrants in accordance with this Agreement.
(c) From time to time, up to the Warrant Expiration Date, the Warrant
Agent shall countersign and deliver Warrant Certificates in required whole
number denominations to the Persons entitled thereto in connection with any
transfer or exchange permitted under this Agreement; provided that no Warrant
Certificates shall be issued except (i) those initially issued hereunder, (ii)
those issued on or after the Initial Warrant Exercise Date, upon the exercise of
fewer than all
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Warrants represented by any Warrant Certificate, to evidence any unexercised
Warrants held by the exercising Registered Holder, (iii) those issued upon any
transfer or exchange pursuant to Section 6; (iv) those issued in replacement of
lost, stolen, destroyed or mutilated Warrant Certificates pursuant to Section 7;
and (v) at the option of the Corporation, in such form as may be approved by its
Board of Directors, to reflect any adjustment or change in the Warrant Price or
the number of shares of Common Stock purchasable upon exercise of the Warrants
made pursuant to Section 8 hereof.
SECTION 3. Form and Execution of Warrant Certificates.
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(a) The Warrant Certificates shall be substantially in the form annexed
hereto as Exhibit A and may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Corporation may deem
appropriate and as are not inconsistent with the provisions of this Agreement or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may be listed, or to conform to usage. The Warrant Certificates
shall be dated the date of issuance thereof (whether upon initial issuance,
transfer, exchange at in lieu of mutilated, lost, stolen, or destroyed Warrant
Certificates) and issued in registered form. Warrants shall be numbered
serially with the letter W on the Warrants.
(b) Warrant Certificates shall be executed on behalf of the Corporation by
its Chairman of the Board, President or any Vice President and by its Secretary
or an Assistant Secretary, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a facsimile of the
Corporation's seal. Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
In case any officer of the Corporation who shall have signed any of the Warrant
Certificates shall cease to be such officer of the Corporation before the date
of issuance of the Warrant Certificates or before countersignature by the
Warrant Agent and issue and delivery thereof, such Warrant Certificates may
nevertheless be countersigned by the Warrant Agent, issued and delivered with
the same force and effect as though the person who signed such Warrant
Certificates had not ceased to be such Officer of the Corporation. After
countersignature by the Warrant Agent, Warrant Certificates shall be delivered
by the Warrant Agent to the Registered Holder without further action by the
Corporation, except as otherwise provided by Section 4(a) hereof.
SECTION 4. Exercise.
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(a) Each Warrant may be exercised by the Registered Holder thereof at any
time on or after the Initial Warrant Exercise Date, but not after the Warrant
Expiration Date, upon the terms and subject to the conditions set forth herein
and in the applicable Warrant Certificate. A Warrant shall be deemed to have
been exercised immediately prior to the close of business on the Exercise Date
and the person entitled to receive the securities deliverable upon such exercise
shall be treated for all purposes as the holder upon exercise thereof as of the
close at business on the Exercise Date. As soon as practicable on or after the
Exercise Date the Warrant Agent shall deposit the proceeds
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received from the exercise of a Warrant and shall notify the Corporation in
writing of the exercise of such Warrant. Promptly following, and in any event
within five days after the date of such notice from the Warrant Agent, the
Warrant Agent, on behalf of the Corporation, shall cause to be issued and
delivered by the Transfer Agent, to the person or persons entitled to receive
the same, a certificate or certificates for the securities deliverable upon such
exercise, (plus a warrant Certificate for any remaining unexercised Warrants of
the Registered Holder) unless prior to the date of issuance of such certificates
the Corporation shall instruct the Warrant Agent to refrain from causing such
issuance of certificates pending clearance of checks received in payment of the
Warrant Price pursuant to such Warrants. Upon the exercise of any Warrant and
clearance of the funds received, the Warrant Agent shall promptly, and in no
event later than three business days following the day in which the funds clear,
remit the payment received for the Warrant to the Corporation or as the
Corporation may direct in writing.
SECTION 5. Reservation of Shares; Registration of Warrants; Listing of
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Securities Payment of Taxes; etc.
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(a) The Corporation covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue
upon exercise of Warrants, such number of shares of Common Stock as shall then
be issuable upon the exercise of all outstanding Warrants. The Corporation
covenants that all shares of Common Stock which shall be issuable upon exercise
of the Warrants shall, at the time of issuance and delivery against payment
therefor of the requisite Warrant Price, be duly and validly issued, fully paid,
nonassessable and free from all taxes liens and charges with respect to the
issue thereof (other than those which the Corporation shall promptly pay or
discharge) and that upon issuance such shares shall be listed on each national
securities exchange, if any, on which the other shares of outstanding Common
Stock of the Corporation are then listed.
(b) The Corporation covenants that if the issuance of any Warrants
hereunder require registration with, or approval of, any governmental authority
under any federal securities law before such Warrants may be validly delivered
upon such issuance, then the Corporation will in good faith and as expeditiously
as reasonably possible, endeavor to secure such registration or approval. The
Corporation will use reasonable efforts to obtain appropriate approvals or
registrations with respect to such Warrants under the "blue sky" securities laws
of those states with respect to which the Corporation obtained a qualification
in connection with its offering.
(c) The Corporation covenants that if any securities to be reserved for
the purpose of exercise of Warrants hereunder require registration with, or
approval of, any governmental authority under any federal securities law before
such securities may be validly issued or delivered upon such exercise, then the
Corporation will in good faith and as expeditiously as reasonably possible,
endeavor to secure such registration or approval. The Corporation will use
reasonable efforts to obtain appropriate approvals or registrations with respect
to such securities under the "blue sky" securities laws of those states with
respect to which the Corporation obtained a qualification in connection with its
offering. However, Warrants may not be exercised or sold by, or shares of
Common Stock issued to, any Registered Holder in any state in which such
exercise or sale would be unlawful.
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(d) The Corporation shall pay all documentary, stamp or similar taxes and
other governmental charges that may be imposed with respect to the issuance of
Warrants, or the issuance or delivery of any shares upon exercise of the
Warrants; provided, however, that if the shares of Common Stock are to be
delivered in a name other than the name of the Registered Holder of the Warrant
Certificate representing any Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Warrant
Agent the amount of transfer taxes or charges incident thereto, if any.
(e) The Warrant Agent is hereby irrevocably authorized to requisition the
Corporation's Transfer Agent from time to time for certificates representing
shares of Common Stock required upon exercise of the Warrants, and the
Corporation will authorize the Transfer Agent to comply with all such proper
requisitions. The Corporation will file with the Warrant Agent a statement
setting forth the name and address of the Transfer Agent of the Corporation for
shares of Common Stock issuable upon exercise of the Warrants, unless the
Warrant Agent and the Transfer Agent are the same entity.
SECTION 6. Exchange and Registration of Transfer.
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(a) Warrant Certificates may be exchanged for other Warrant Certificates
representing an equal aggregate number of Warrants of the same class or may be
transferred in whole or in part. Warrant Certificates to be exchanged shall be
surrendered to the Warrant Agent at its Corporate Office, and upon satisfaction
of the terms and provisions hereof, the Corporation shall execute and the
Warrant Agent shall countersign, issue and deliver in exchange therefor the
Warrant Certificate or Certificates which the Registered Holder making the
exchange shall be entitled to receive.
(b) The Warrant Agent shall keep at its office books in which, subject to
such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and the transfer thereof in accordance with its regular practice.
Upon due presentment for registration of transfer of any Warrant Certificate at
such office, the Corporation shall execute and the Warrant Agent shall issue and
deliver to the transferee or transferees a new Warrant Certificate or
Certificates representing an equal aggregate number of Warrants of the same
class.
(c) With respect to all Warrant Certificates presented for registration of
transfer, or for exchange or exercise, the subscription form on the reverse
thereof shall be duly endorsed, or be accompanied by a written instrument or
instruments of transfer and subscription, in form satisfactory to the
Corporation and the Warrant Agent, duly executed by the Registered Holder or his
attorney-in-fact duly authorized in writing.
(d) A service charge may be imposed by the Warrant Agent against a
Registered Holder for any exchange or registration of transfer of Warrant
Certificates. In addition, the Corporation may require payment by such holder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
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(e) All Warrant Certificates surrendered for exercise or for exchange in
case of mutilated Warrant Certificates shall be promptly canceled by the Warrant
Agent and thereafter retained by the Warrant Agent until termination of this
Agreement or resignation as Warrant Agent, or disposed of or destroyed, at the
direction of the Corporation.
(f) Prior to due presentment for registration of transfer thereof, the
Corporation and the Warrant Agent may deem and treat the Registered Holder of
any Warrant Certificate as the absolute owner thereof and of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made by anyone other than a duly authorized officer of the Corporation
or the Warrant Agent) for all purposes and shall not be affected by any notice
to the contrary.
SECTION 7. Loss or Mutilation. Upon receipt by the Corporation and the
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Warrant Agent of evidence satisfactory to them of the ownership of and loss,
theft, destruction or mutilation of any Warrant Certificate and (in case of
loss, theft or destruction) of indemnity satisfactory to them, and (in the case
of mutilation) upon surrender and cancellation thereof, the Corporation shall
execute and the Warrant Agent shall (in the absence of notice to the Corporation
and/or Warrant Agent that the Warrant Certificate has been acquired by a
bonafide purchaser) countersign and deliver to the Registered Holder in lieu
thereof a new Warrant Certificate of like tenor representing an equal aggregate
number of Warrants. Applicants for a substitute Warrant Certificate shall
comply with such other reasonable regulations, provide such reasonable
indemnification and pay such other reasonable charges as the Warrant Agent or
the Corporation may prescribe.
SECTION 8. Adjustment of Exercise Price and Number of Shares of Common
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Stock or Warrants.
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(a) Subject to the exceptions referred to in Section 8(g) below, in the
event the Corporation shall, at any time or from time to time after the date
hereof, issue any shares of Common Stock as a stock dividend to the holders of
Common Stock, or subdivide or combine the outstanding shares of Common Stock
into a greater or lesser number of shares (any such sale, issuance, subdivision
or combination being herein called a "Change of Shares"), then, and thereafter
upon each further Change of Shares, the applicable Warrant Price in effect
immediately prior to such Change of Shares shall be changed to a price
(including any applicable fraction of a cent) determined by multiplying the
Warrant Price in effect immediately prior thereto by a fraction, the numerator
of which shall be the sum of (a) the total number of shares of Common Stock
outstanding immediately prior to such Change of Shares and (b) the number of
shares of Common Stock which the aggregate consideration received by the
Corporation upon such sale, issuance, subdivision or combination (determined in
accordance with subsection (e) below) could have purchased at the then current
Warrant Price, and the denominator of which shall be the total number of shares
of Common Stock outstanding immediately after such Change of Shares.
Upon each adjustment of the applicable Warrant Price Pursuant to this
Section 8, the total number of shares of Common Stock purchasable upon the
exercise of each Warrant shall (subject to the provisions contained in Section
8(b) hereof) be such number of shares (calculated to the nearest hundredth)
purchasable at the applicable Warrant Price immediately prior to such adjustment
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multiplied by a fraction, the numerator of which shall be the applicable Warrant
Price in effect immediately prior to such adjustment and the denominator of
which shall be the applicable Warrant Price in effect immediately after such
adjustment.
(b) In case of any reclassification or capital reorganization of
outstanding shares of Common Stock, or in case of any consolidation or merger of
the Corporation with or into another corporation (other than a consolidation or
merger in which the Corporation is the continuing corporation and which does not
result in any reclassification or capital reorganization of outstanding shares
of Common Stock) , or in case of any sale or conveyance to another corporation
of the property of the Corporation as, or substantially as, an entirety (other
than a sale/leaseback, mortgage or other financing transaction) , the
Corporation shall cause effective provision to be made so that each holder of a
Warrant then outstanding shall, in substitution for all rights theretofore
represented by such Warrant, have the right thereafter, by exercising such
Warrant, to purchase the kind and number of shares of stock or other securities
or property (including cash) receivable upon such reclassification or capital
reorganization, consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock that might have been purchased upon exercise of
such Warrant, immediately prior to such reclassification or capital
reorganization, consolidation, merger, sale or conveyance. Any such provision
shall include provision for adjustments that shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 8. The
foregoing provisions shall similarly apply to successive reclassifications or
capital reorganizations of outstanding shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
(c) Irrespective of any adjustments or changes in the Warrant Price or the
number of shares of Common Stock purchasable upon exercise of the Warrants, the
Warrant Certificates theretofore and thereafter issued shall, unless the
Corporation shall exercise its option to issue new Warrant Certificates pursuant
to Section 2(c) hereof, continue to express the applicable Warrant Price per
share and the number of shares purchasable thereunder as were expressed in the
Warrant Certificates when the same were originally issued.
(d) After each adjustment of the Warrant Price pursuant to this Section 8,
the Corporation will promptly prepare a certificate signed by the Chairman or
President, and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, of the Corporation setting forth: (i) the applicable
Warrant Price as so adjusted, (ii) the number of shares of Common Stock
purchasable upon exercise of each Warrant after such adjustment, and, if the
Corporation shall have elected to adjust the number of Warrants, the number of
Warrants to which the registered holder of each warrant shall then be entitled,
and (iii) a brief statement of the facts accounting for such adjustment. The
Corporation will promptly file such certificate with the Warrant Agent and cause
a brief summary thereof to be sent by ordinary first class mail to each
Registered Holder of Warrants at his last address as it shall appear on the
registry books of the Warrant Agent. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect the validity thereof. The
affidavit of an officer of the Warrant Agent or the Secretary or an Assistant
Secretary of the Corporation that such notice has been mailed shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
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(e) For purposes of Section 8(a) and 8(b) hereof, the following provisions
(A) and (B) shall also be applicable;
(A) The number of shares of Common Stock outstanding at any given
time shall include shares of Common Stock owned or held by or for the account of
the Corporation and the sale or issuance of such treasury shares or the
distribution of any such treasury shares shall not be considered a Change of
Shares for purposes of said sections.
(B) No adjustment of the Warrant Price shall be made unless such
adjustment would require an increase or decrease of at least $.01 in such price;
provided that any adjustments which by reason of this clause (B) are not
required to be made shall be carried forward and shall be made at the time of
and together with the next subsequent adjustment which, together with any
adjustment(s) so carried forward, shall require an increase or decrease of at
least $.01 in the Warrant Price then in effect hereunder.
(f) As used in this Section 8, the term "Common Stock" shall mean and
include the Corporation's Common Stock authorized on the date of the original
issue of the Warrants and shall also include any capital stock of any class of
the Corporation thereafter authorized which shall not be limited to a fixed sum
or percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of the Corporation; provided, however, that the shares
issuable upon exercise of the Warrants shall include only shares of such class
designated in the Corporation's Certificate of Incorporation as Common Stock on
the date of the original issue of the Warrants or (i), in the case of any
reclassification, change, consolidation, merger, sale or conveyance of the
character referred to in Section 8(c) hereof, the stock, securities or property
provided for in such section or (ii), in the case of any reclassification or
change in the outstanding shares of Common Stock issuable upon exercise of the
Warrants as a result of a subdivision or combination or consisting of a change
in par value, or from par value to no par value, or from no par value to par
value, such shares of Common Stock as so reclassified or changed.
(g) Any determination as to whether an adjustment in the Warrant Price in
effect hereunder is required pursuant to Section 8, or as to the amount of any
such adjustment, if required, shall be binding upon the holders of the Warrants
and the Corporation if made in good faith by the Board of Directors of the
Corporation.
SECTION 9. Fractional Warrants and Fractional Shares.
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(a) If the number of shares of Common Stock purchasable upon the exercise
of each Warrant is adjusted pursuant to Section 8 hereof, the Corporation shall
nevertheless not be required to issue fractions of shares, upon exercise of the
Warrants or otherwise, or to distribute certificates that evidence fractional
shares or Warrants to purchase fractional shares. With respect to any fraction
of a share called for upon any exercise hereof, the Corporation shall pay to the
Registered Holder an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as follows:
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(1) If the Common Stock is listed on a National Securities Exchange
or admitted to unlisted trading privileges on such exchange or listed for
trading on the NASDAQ System, the current value shall be the last reported
sale price of the Common Stock on such exchange or system on the last
business day prior to the date of exercise of the Warrant or if no such
sale is made on such day, the average of the closing bid and asked prices
for such day on such exchange or system; or
(2) If Section 9(a)(1) does not apply, the current value shall be the
mean of the last reported bid and asked prices reported by the National
Quotation Bureau, Inc. on the last business day prior to the date of the
exercise of the Warrant; or
(3) If neither Section 9(a)(1) nor Section 9(a)(2) applies, the
current value shall be an amount determined in such reasonable manner as
may be prescribed by the Board of Directors of the Corporation.
SECTION 10. Warrant Holders Not Deemed Stockholders. No holder of
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Warrants shall, as such, be entitled to vote or to receive dividends or be
deemed the holder of Common Stock that may at any time be issuable upon exercise
of such Warrants for any purpose whatsoever, nor shall anything contained herein
be construed to confer upon the holder of Warrants, as such, any of the rights
of a stockholder of the Corporation or any right to vote for, or receive notice
as a stockholder in respect of, 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, issue or
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger or conveyance or otherwise) or any other matter, or
to receive notice of meetings, or to receive dividends or subscription rights,
until such Holder shall have exercised such Warrants and been issued shares of
Common Stock in accordance with the provisions hereof.
SECTION 11. Rights of Action. All rights of action with respect to this
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Agreement are vested in the respective Registered Holders of the Warrants, and
any Registered Holder of a Warrant, without consent of the Warrant Agent or of
the holder of any other Warrant, may, in his own behalf and for his own benefit,
enforce against the Corporation his right to exercise his Warrants for the
purchase of shares of Common Stock in the manner provided in the Warrant
Certificates and this Agreement.
SECTION 12. Agreement of Warrant Holders. Every holder of a Warrant, by
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his acceptance thereof, consents and agrees with the Corporation, the Warrant
Agent and every other holder of a Warrant that:
(a) The Warrants are transferable only on the registry books of the
Warrant Agent by the Registered Holder thereof in person or by his attorney duly
authorized in writing and only if the Warrant Certificates representing such
Warrants are surrendered the office of the Warrant Agent, duly endorsed or
accompanied a proper instrument of transfer satisfactory to the Warrant Agent
and the Corporation in their sole discretion, together with payment of any
applicable transfer taxes; and
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(b) The Corporation and the Warrant Agent may deem and treat the Person in
whose name the Warrant Certificate is registered as the holder and as the
absolute, true and lawful owner of the Warrants represented thereby for all
purposes, and neither the Corporation nor the Warrant Agent shall be affected by
any notice or knowledge to the contrary, except as otherwise expressly provided
in Section 7 hereof.
SECTION 13. Cancellation of Warrant Certificates. If the Corporation
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shall purchase or acquire any Warrant or Warrants, the Warrant Certificate or
Warrant Certificates evidencing the same shall thereupon be delivered to the
Warrant Agent and canceled by it and retired. The Warrant Agent shall also
cancel Warrant Certificates following exercise of any or all of the Warrants
represented thereby or delivered to it for transfer, split-up, combination or
exchange.
SECTION 14. Concerning the Warrant Agent. The Warrant Agent acts
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hereunder as agent and in a ministerial capacity for the Corporation, and its
duties shall be determined solely by the provisions hereof. The Warrant Agent
shall not, by issuing and delivering Warrant Certificates or by any other act
hereunder be deemed to make any representations as to the validity, value or
authorization of the Warrant Certificates or the Warrants represented thereby or
of any securities or other property delivered upon exercise of any Warrant or
whether any stock issued upon exercise of any Warrant is fully paid and
nonassessable.
The Warrant Agent shall not at any time be under any duty or responsibility
to any holder of Warrant Certificates to make or cause to be made any adjustment
of the Warrant Price provided in this Agreement, or to determine whether any
fact exists which may require any such adjustments, or with respect to the
nature or extent of any such adjustment, when made, or with respect to the
method employed in making the same. It shall not (i) be liable for any recital
or statement of facts contained herein or for any action taken, suffered or
omitted by it in reliance on any Warrant Certificate or other document of
instrument believed by it in good faith to be genuine and to have been signed or
presented by the proper party or parties, except for any action taken, suffered
or omitted by it due to its negligence, willful misconduct or bad faith (ii) be
responsible for any failure on the part of the Corporation to comply with any of
its covenants and obligations contained in this Agreement or in any Warrant
Certificate, or (iii) be liable for any act or omission in connection with this
Agreement except for its own negligence or willful misconduct.
The Warrant Agent may at any time consult with counsel satisfactory to it
and shall incur no liability or responsibility for any action taken, suffered or
omitted by it in good faith in accordance with the opinion or advice of such
counsel.
Any notice, statement, instruction, request, direction, order or demand of
the Corporation shall be sufficiently evidenced by an instrument signed by the
Chairman of the Board, President, any Vice President, its Secretary, or
Assistant Secretary, (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable for any action
taken, suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand believed by it to be genuine.
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The Corporation agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse it for its reasonable expenses
hereunder; it further agrees to indemnify the Warrant Agent and save it harmless
against any and all losses, expenses and liabilities, including judgments, costs
and counsel fees, for anything done or omitted by the Warrant Agent in the
execution of its duties and powers hereunder except losses, expenses and
liabilities arising as a result of the Warrant Agent's negligence, willful
misconduct or bad faith. In no case will the Warrant Agent be liable for
special, indirect, incidental or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights Agent
has been advised of the possibility of such loss or damage.
The Warrant Agent may resign its duties and be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of the
Warrant Agent's own negligence or wilful misconduct or bad faith), after giving
30 days, prior written notice to the Corporation. At least 15 days prior to the
date such resignation is to become effective, the Warrant Agent shall cause a
copy of such notice of resignation to be mailed to the Registered Holder of each
Warrant Certificate at the Corporation's expense. Upon such resignation, or any
inability of the Warrant Agent to act as such hereunder, the Corporation shall
appoint a new warrant agent in writing. If the Corporation shall fail to make
such appointment within a period of 15 days after it has been notified in
writing of such resignation by the resigning Warrant Agent, then the Registered
Holder of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a new warrant agent. Any new warrant agent,
whether appointed by the Corporation or by such a court shall be a bank or trust
company having a capital and surplus as shown by its last published report to
its stockholders, of not less than [$100,000,000], or a stock transfer company.
After acceptance in writing of such appointment by the new warrant agent is
received by the Corporation, such new warrant agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named herein as the Warrant Agent, without any further assurance, conveyance,
act or deed; but if for any reason it shall be necessary or expedient to execute
and deliver any further assurance, conveyance, act or deed, the same shall be
done at the expense of the Corporation and shall be legally and validly executed
and delivered by the resigning Warrant Agent. Not later than the effective date
of any such appointment the Corporation shall file notice thereof with the
resigning Warrant Agent and shall forthwith cause a copy of such notice to be
mailed to the Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new warrant agent may
be converted or merged or any corporation resulting from any consolidation to
which the Warrant Agent or any new warrant agent shall be a party or any
corporation succeeding to the trust business of the Warrant Agent shall be a
successor warrant agent under this Agreement without any further act, provided
that such corporation is eligible for appointment as successor to the warrant
Agent under the provisions of the preceding paragraph. Any such successor
warrant agent shall promptly cause notice of its succession as warrant agent to
be mailed to the Corporation and to the Registered Holder of each Warrant
Certificate.
The Warrant Agent, its subsidiaries and affiliates, and any of its or their
officers or directors, may buy and hold or sell Warrants or other securities of
the Corporation and otherwise deal with the
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Corporation in the same manner and to the same extent and with like effects as
though it were not Warrant Agent. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Corporation or for any other
legal entity.
SECTION 15. Modification of Agreement. The Warrant Agent and the
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Corporation may by supplemental agreement make any changes or corrections in
this Agreement (i) that they shall deem appropriate to cure any ambiguity or to
correct any defective or inconsistent provision or manifest mistake or error
herein contained; or (ii) that they may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Warrant Certificates
provided, however, that this Agreement shall not otherwise be modified,
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supplemented or altered in any respect except with the consent in writing of the
Registered Holders of Warrant Certificates representing not less than 50% of the
Warrants then outstanding; and provided, further, that no change in the number
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or nature of the securities purchasable upon the exercise of any Warrant, or the
Warrant Price therefor, or the acceleration of the Warrant Expiration Date,
shall be made without the consent in writing of the Registered Holder of the
Warrant Certificate representing such Warrant, other than such changes as are
specifically prescribed or permitted by this Agreement as originally executed.
SECTION 16. Notices. All notices, requests, consents and other
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communications hereunder shall be in writing and shall be deemed to have been
made when delivered or mailed first class registered or certified mail, postage
prepaid as follows: if to the Registered Holder of a Warrant Certificate, at the
address of such holder as shown on the registry books maintained by the Warrant
Agent; if to the Corporation, at 430 Ferguson Drive, Mountain View, California
94043 Attention: Secretary, or at such other address as may have been furnished
to the Warrant Agent in writing by the Corporation; if to the Warrant Agent, at
[50 California Street, 10th Floor, San Francisco, California 94111].
SECTION 17. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware, without
reference to principles of conflict of laws.
SECTION 18. Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of the Corporation and the Warrant Agent and their
respective successors and assigns, and the holders from time to time of Warrant
Certificates. Nothing in this Agreement is intended or shall be construed to
confer upon any other person any right, remedy or claim, in equity or at law, or
to impose upon any other person any duty, liability or obligation.
SECTION 19. Termination. This Agreement shall terminate at the close of
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business on the Expiration Date of all the Warrants or such earlier date upon
which all Warrants have been exercised, except that the Warrant Agent shall
account to the Corporation for cash held by it and the provisions of Section 14
hereof shall survive such termination.
SECTION 20. Counterparts. This Agreement may be executed in several
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counterparts, which taken together shall constitute a single document.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed as of the date first above written.
CATALYTICA, INC.
By:_____________________________________
Ricardo B. Levy, President
CHASEMELLON SHAREHOLDER
SERVICES, L.L.P.
By:_____________________________________
Authorized Officer
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