Exhibit No. 24/ AFGL International, Inc./ Form S-3
WARRANT TO
PURCHASE
120,000
SHARES
AFGL INTERNATIONAL, INC.
(a Nevada corporation)
WARRANT FOR THE PURCHASE OF
Common Stock, $0.01 Par Value Per Share
THIS WARRANT WILL BE VOID
AFTER 12:00 MIDNIGHT ON MAY 31, 2001
This certifies that, for value received, THE TAIL WIND FUND
LTD., or registered assigns, is entitled, at any time prior to
12:00 midnight Eastern time on May 31, 2001 (the "Expiration
Date"), to purchase from AFGL International, Inc., a Nevada
corporation, hereinafter referred to as the "Company," the number
of shares shown above (the "Warrant Shares") of common stock, par
value $0.01, of the Company (the "Common Stock") by surrendering
this warrant with the purchase form attached hereto, duly
executed, at the principal office of the Company in New York, New
York, and by paying in full and in lawful money of the United
States of America by cash or cashiers' check, the purchase price
of the Warrant Shares as to which this warrant is exercised, on
all the terms and conditions hereinafter set forth.
1. The purchase price at which the Warrant Shares are
purchasable (hereinafter referred to as the "Warrant Price") is
$4.25 per share.
2. On the exercise of all or any portion of this warrant in
the manner provided above, the person exercising the same shall
be deemed to have become a holder of record of Common Stock (or
of the other securities or properties to which he or it is
entitled on such exercise) for all purposes, and certificates for
the securities so purchased shall be delivered to the purchaser
within a reasonable time, but in no event longer than ten days
after the warrants shall have been exercised as set forth above.
If this warrant shall be exercised in respect to only a part of
the Warrant Shares covered hereby, the holder shall be entitled
to receive a similar warrant of like tenor and date covering the
number of Warrant Shares with respect to which this warrant shall
not have been exercised.
3. This warrant is exchangeable, on the surrender hereof by
the holder at the office of the Company, for new warrants of like
tenor and date representing in the aggregate the right to
subscribe for and purchase the number of Warrant Shares which may
be subscribed for and purchased hereunder.
4. The Company covenants and agrees that the Warrant Shares
which may be issued on the exercise of the rights represented by
this warrant will, on issuance, be fully paid and nonassessable,
and free from all taxes, liens, and charges with respect to the
issue thereof. The Company further covenants and agrees that
during the period within which the rights represented by this
warrant may be exercised, the Company will have authorized and
reserved a sufficient number of shares of Common Stock to provide
for the exercise of the rights represented by this warrant.
5. The Warrant Price and number of Warrant Shares
purchasable pursuant to this warrant may be subject to adjustment
from time to time as follows:
(a) If the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a
dividend in shares, the Warrant Price in effect immediately prior
to such record date shall be proportionately decreased, such
adjustment to become effective immediately after the opening of
business on the day following such record date.
(b) If the Company shall subdivide the outstanding shares
of Common Stock into a greater number of shares, combine the
outstanding shares of Common Stock into a smaller number of
shares, or issue by reclassification any of its shares, the
Warrant Price in effect immediately prior thereto shall be
adjusted so that the holder of the warrant thereafter surrendered
for exercise shall be entitled to receive, after the occurrence
of any of the events described, the number of Warrant Shares to
which the holder would have been entitled had such warrant been
exercised immediately prior to the occurrence of such event.
Such adjustment shall become effective immediately after the
opening of business on the day following the date on which such
subdivision, combination, or reclassification, as the case may
be, becomes effective.
(c) If any capital reorganization or reclassification of
the Company's Common Stock, or consolidation or merger of the
Company with another corporation or the sale of all or
substantially all of its assets to another corporation shall be
effected in such a way that holders of Common Stock shall be
entitled to receive stock, securities, or assets with respect to
or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger, or sale,
lawful adequate provisions shall be made whereby the holder of
this warrant shall thereafter have the right to acquire and
receive on exercise hereof such shares of stock, securities, or
assets as would have been issuable or payable (as part of the
reorganization, reclassification, consolidation, merger, or sale)
with respect to or in exchange for such number of outstanding
shares of the Company's Common Stock as would have been received
on exercise of this warrant immediately before such
reorganization, reclassification, consolidation, merger, or sale.
In any such case, appropriate provision shall be made with
respect to the rights and interests of the holder of this warrant
to the end that the provisions hereof shall thereafter be
applicable in relation to any shares of stock, securities, or
assets thereafter deliverable on the exercise of this warrant.
In the event of a merger or consolidation of the Company with or
into another corporation or the sale of all or substantially all
of its assets as a result of which a number of shares of common
stock of the surviving or purchasing corporation greater or less
than the number of shares of Common Stock of the Company
outstanding immediately prior to such merger, consolidation, or
purchase are issuable to holders of Common Stock of the Company,
then the Warrant Price in effect immediately prior to such
merger, consolidation, or purchase shall be adjusted in the same
manner as through there was a subdivision or combination of the
outstanding shares of Common Stock of the Company. The Company
will not effect any such consolidation, merger, or sale unless
prior to the consummation thereof the successor corporation
resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument mailed
or delivered to the holder hereof at its last address appearing
on the books of the Company, the obligation to deliver to such
holder such shares of stock, securities, or assets as, in
accordance with the foregoing provisions, such holder may be
entitled to acquire on exercise of this warrant.
(d) No fraction of a share shall be issued on exercise,
but, in lieu thereof, the Company, notwithstanding any other
provision hereof, may pay therefor in cash at the fair value of
any such fractional share at the time of exercise.
(e) Neither the purchase or other acquisition by the
Company of any shares of Common Stock nor the sale or other
disposition by the Company of any shares of Common Stock shall
affect any adjustment of the Warrant Price or be taken into
account in computing any subsequent adjustment of the Warrant
Price.
6. This warrant and the shares issuable on exercise of this
warrant (the "Warrant Shares"), are being sold in reliance on the
safe harbor from registration set forth in Regulation S
promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). Accordingly, The Tail Wind Fund Limited
("TWF") hereby represents, warrants, and agrees as follows.
(a) TWF is not a U.S. Person as that term is defined under
Regulation S promulgated under the Securities Act.
(b) TWF is outside of the United States as of the date of
the execution and delivery of this Agreement.
(c) TWF is purchasing this warrant for its own account and
not on behalf of or for the account of any U.S. Person, and TWF
is the sole beneficial owner of this warrant and has not
prearranged any sale with purchasers in the United States.
(d) TWF represents, warrants and covenants that all offers
and sales of this Warrant prior to the expiration of a period
commencing on the date hereof and ending forty days thereafter
shall only be made in compliance with the safe harbor contained
in Regulation S, pursuant to the registration provisions under
the Securities Act, or pursuant to an exemption from
registration, and all offers and sales after the expiration of
the forty-day period shall be made only pursuant to such safe
harbor or to such registration or to such exemption from
registration.
(e) During the forty-day period following the date hereof,
TWF represents, warrants, and covenants that neither TWF nor any
of its affiliates will, directly or indirectly, maintain any
short position in the securities of the Company.
7. Subject to the restrictions set forth in paragraph 6
above, this warrant is transferable at the offices of the
Company. On such transfer, every holder hereof agrees that the
Company may deem and treat the registered holder of this warrant
as the true and lawful owner thereof for all purposes, and the
Company shall not be affected by any notice to the contrary.
8. As used herein, the term "Common Stock" shall mean and
include the Company's Common Stock authorized on the date of the
original issue of this warrant, and shall also include any
capital stock of any class of the Company thereafter authorized
that 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 on the voluntary or involuntary
liquidation, dissolution, or winding up of the Company; provided,
that the Warrant Shares purchasable pursuant to this warrant
shall include only shares of the class designated in the
Company's articles of incorporation as Common Stock on the date
of the original issue of this warrant or, in the case of any
reorganization, reclassification, consolidation, merger, or sale
of assets of the character referred to in paragraph 5(c) hereof,
the stocks, securities, or assets provided for in such paragraph.
9. This agreement shall be construed under and be governed
by the laws of the state of Nevada.
10. Any notices required or permitted hereunder shall be
sufficiently given if delivered by hand or sent by registered or
certified mail, postage prepaid, addressed as follows:
If to The Tail Wind Fund, to:
The Tail Wind Fund Ltd.
c/o Mees Pierson Fund Services
18-20 North Quay
Douglas, Isle of Man IM1 4LE
with a copy to:
Samuel Krieger
Krieger & Prager
319 Fifth Avenue
New York, New York 10016
If to the Company, to:
AFGL International, Inc.
Attn: Barry S. Roseman, Chief Operating Officer
850 Third Avenue, 11th Floor
New York, New York 10022
or such other address as shall be furnished in writing by any
party to the other, and any such notice or communication shall be
deemed to have been given as of the date so delivered or three
days after being so deposited in the mails.
EFFECTIVE as of this 8th day of April, 1996.
AFGL INTERNATIONAL, INC.
By: /s/
Gary S. Goldstein,
President
THE TAIL WIND FUND LIMITED
By:
Duly Authorized Person
Form of Purchase
(to be signed only upon exercise of warrant)
TO: AFGL INTERNATIONAL, INC.
The undersigned, the owner of the attached warrant, hereby
irrevocable elects to exercise the purchase rights represented by
the warrant for, and to purchase thereunder, [number] shares of
common stock (the "Warrant Shares") of AFGL International, Inc.
("Company") and herewith makes payment of [$] therefor, and
requests that the certificate(s) for the Warrant Shares be
delivered to [name] at [address], and if such shall not be all of
the shares purchasable hereunder, that a new warrant of like
tenor for the balance of the shares purchasable under the
attached warrant be delivered to the undersigned. In connection
with such exercise, the undersigned represents, warrants, and
covenants as follows:
(a) The undersigned is not a U.S. Person as that term is
defined under Regulation S promulgated under the Securities Act.
(b) The undersigned is outside of the United States as of
the date of the execution and delivery of this exercise form.
(c) The undersigned is purchasing the Warrant Shares for
its own account and not on behalf of or for the account of any
U.S. Person, and the undersigned is the sole beneficial owner of
the Warrant Shares and has not prearranged any sale with
purchasers in the United States.
(d) The undersigned represents, warrants and covenants that
all offers and sales of the Warrant Shares shall only be made in
compliance with the safe harbor contained in Regulation S,
pursuant to the registration provisions under the Securities Act,
or pursuant to an exemption or safe harbor from registration.
(e) During the forty-day period following the date payment
of the purchase price for the Warrant Shares is made to the
Company, the undersigned represents, warrants, and covenants that
neither the undersigned nor any of its affiliates will, directly
or indirectly, maintain any short position in the securities of
the Company.
DATED this
Signature