Exhibit 4.2
NBI, INC.
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (THIS "AGREEMENT"), DATED AS OF _________ __, 1998,
IS BETWEEN NBI, INC., A DELAWARE CORPORATION (THE "COMPANY") AND
__________________, AS WARRANT AGENT.
R E C I T A L S:
- - - - - - - -
WHEREAS, THE COMPANY PROPOSES TO ISSUE AND DELIVER WARRANT CERTIFICATES
(THE "WARRANT CERTIFICATES") EVIDENCING WARRANTS (THE "WARRANTS") TO ACQUIRE
COMMON STOCK OF THE COMPANY ('COMMON STOCK"), IN CONNECTION WITH AN OFFERING BY
THE COMPANY OF UP TO 1,000,000 UNITS (THE "UNITS") EACH CONSISTING OF (a) ONE
SHARE OF SERIES A CUMULATIVE PREFERRED STOCK AND (b) TWO COMMON STOCK PURCHASE
WARRANTS, EACH OF WHICH ENTITLES THE HOLDERS THEREOF TO PURCHASE ONE SHARE OF
COMMON STOCK. THE UNITS HAVE BEEN ISSUED AND SOLD IN A PUBLIC OFFERING PURSUANT
TO A REGISTRATION STATEMENT ON FORM SB-2, AS FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION ON SEPTEMBER __, 1998, AMENDED ON ____________, AND DECLARED
EFFECTIVE ON __________, 1998 (THE "REGISTRATION STATEMENT"), AND A PROSPECTUS
DATED ____________, 1998, FILED AS A PART OF SUCH REGISTRATION STATEMENT
(REFERENCES TO WHICH SHALL BE DEEMED TO INCLUDE ANY AND ALL SUPPLEMENTS AND
AMENDMENTS THERE TO, WHICH PROSPECTUS IS REFERRED TO HEREIN AS THE
"PROSPECTUS"). CERTAIN OF THE TERMS OF THE WARRANTS ARE DESCRIBED IN THE
WARRANT CERTIFICATES. THIS AGREEMENT DESCRIBES CERTAIN ADDITIONAL TERMS
APPLICABLE TO THE WARRANTS.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND FOR THE PURPOSE OF
DEFINING THE TERMS AND PROVISIONS OF THE WARRANTS AND THE RESPECTIVE RIGHTS AND
OBLIGATIONS THEREUNDER OF THE COMPANY, THE WARRANT AGENT (AS HEREINAFTER
DEFINED) AND THE RECORD HOLDERS FROM TIME TO TIME OF THE WARRANTS, THE COMPANY
AND THE WARRANT AGENT HEREBY AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN DEFINITIONS. AS USED IN THIS AGREEMENT, THE
FOLLOWING TERMS SHALL HAVE THE FOLLOWING RESPECTIVE MEANINGS:
"ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY SIMILAR FEDERAL
STATUTE ENACTED HEREAFTER, AND THE RULES AND REGULATIONS OF THE SEC THEREUNDER,
ALL AS THE SAME SHALL BE IN EFFECT FROM TIME TO TIME.
"AFFILIATE" OF ANY PERSON MEANS ANY PERSON DIRECTLY OR INDIRECTLY
CONTROLLING OR CONTROLLED BY OR UNDER DIRECT OR INDIRECT COMMON CONTROL WITH
SUCH PERSON. FOR PURPOSES OF
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THIS DEFINITION, "CONTROL," WHEN USED WITH RESPECT TO ANY PERSON MEANS THE POWER
TO DIRECT THE MANAGEMENT AND POLICIES OF SUCH PERSON, DIRECTLY OR INDIRECTLY,
WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES, BY CONTRACT OR OTHERWISE,
AND THE TERMS "CONTROLLING" AND "CONTROLLED" HAVE MEANINGS CORRELATIVE TO THE
FOREGOING.
"COMMON STOCK" MEANS THE COMMON STOCK, $.01 PAR VALUE, OF THE COMPANY,
AND ANY OTHER CAPITAL STOCK OF THE COMPANY INTO WHICH SUCH COMMON STOCK MAY
BE CONVERTED OR RECLASSIFIED OR THAT MAY BE ISSUED IN RESPECT OF, IN EXCHANGE
FOR OR IN SUBSTITUTION FOR, SUCH COMMON STOCK BY REASON OF ANY STOCK SPLITS,
STOCK DIVIDENDS, DISTRIBUTIONS, MERGERS, CONSOLIDATIONS OR OTHER LIKE EVENTS.
"COMPANY" MEANS NBI, INC., A DELAWARE CORPORATION.
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
"HOLDER" OR "HOLDERS" MEANS EACH REGISTERED HOLDER OF A WARRANT CERTIFICATE
AND EACH HOLDER OF COMMON STOCK ISSUED PURSUANT TO A WARRANT CERTIFICATE.
"PERSON" MEANS ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, JOINT VENTURE,
ASSOCIATION, JOINT-STOCK COMPANY, TRUST, UNINCORPORATED ORGANIZATION OR
GOVERNMENT OR ANY AGENCY OR POLITICAL SUBDIVISION THEREOF.
"PURCHASE PRICE" MEANS THE EXERCISE PRICE OF EACH WARRANT, DESIGNATED AS
$1.20 PER SHARE OF COMMON STOCK, SUBJECT TO ADJUSTMENT AS PROVIDED IN ARTICLE IV
HEREOF.
"TRANSFER AGENT" MEANS _________________________, ______________, OR ANY
DULY APPOINTED SUCCESSOR TRANSFER AGENT FOR THE COMMON STOCK.
"WARRANT AGENT" MEANS ____________________________, __________________, OR
THE SUCCESSOR OR SUCCESSORS OF SUCH INITIAL WARRANT AGENT APPOINTED IN
ACCORDANCE WITH THE TERMS HEREOF.
"WARRANT HOLDERS" MEANS ALL OF THE HOLDERS OF WARRANTS CERTIFICATES ISSUED
UNDER THIS AGREEMENT.
"WARRANT STOCK" MEANS THE SHARES OF COMMON STOCK, ISSUABLE OR ISSUED UPON
THE EXERCISE OF THE WARRANTS.
SECTION 1.2. CERTAIN OTHER DEFINED TERMS:
"PROSPECTUS" PREAMBLE
"UNITS" PREAMBLE
"WARRANT CERTIFICATES" PREAMBLE
"WARRANTS" PREAMBLE
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ARTICLE II
ORIGINAL ISSUE OF WARRANTS
SECTION 2.1. FORM OF WARRANT CERTIFICATES. THE WARRANT CERTIFICATES SHALL
BE ISSUED IN REGISTERED FORM ONLY AND SUBSTANTIALLY IN THE FORM ATTACHED HERETO
AS EXHIBIT A, SHALL BE DATED THE DATE OF COUNTERSIGNATURE THEREOF BY THE WARRANT
AGENT (WHETHER UPON INITIAL ISSUANCE, REGISTRATION OF TRANSFER, EXCHANGE OR
REPLACEMENT) AND SHALL BEAR THE LEGEND SET FORTH IN EXHIBIT A, TOGETHER WITH
SUCH OTHER LEGENDS AND ENDORSEMENTS TYPED, STAMPED, PRINTED, LITHOGRAPHED OR
ENGRAVED THEREON AS THE COMPANY 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 PURSUANT THERETO OR WITH ANY RULE OR
REGULATION OF ANY SECURITIES EXCHANGE ON WHICH THE WARRANTS MAY BE LISTED, OR TO
CONFORM TO CUSTOMARY USAGE.
PENDING THE PREPARATION OF DEFINITIVE WARRANT CERTIFICATES, TEMPORARY
WARRANT CERTIFICATES MAY BE ISSUED, WHICH MAY BE PRINTED, LITHOGRAPHED,
TYPEWRITTEN, MIMEOGRAPHED OR OTHERWISE PRODUCED, AND WHICH WILL BE SUBSTANTIALLY
OF THE TENOR OF THE DEFINITIVE WARRANT CERTIFICATES IN LIEU OF WHICH THEY ARE
ISSUED.
IF TEMPORARY WARRANT CERTIFICATES ARE ISSUED, THE COMPANY WILL CAUSE
DEFINITIVE WARRANT CERTIFICATES TO BE PREPARED WITHOUT UNREASONABLE DELAY.
AFTER THE PREPARATION OF DEFINITIVE WARRANT CERTIFICATES, THE TEMPORARY WARRANT
CERTIFICATES SHALL BE EXCHANGEABLE FOR DEFINITIVE WARRANT CERTIFICATES UPON
SURRENDER OF THE TEMPORARY WARRANT CERTIFICATES TO THE WARRANT AGENT, WITHOUT
CHARGE TO THE HOLDER. UNTIL SO EXCHANGED THE TEMPORARY WARRANT CERTIFICATES
SHALL IN ALL RESPECTS BE ENTITLED TO THE SAME BENEFITS UNDER THIS AGREEMENT AS
DEFINITIVE WARRANT CERTIFICATES.
SECTION 2.2. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. THE WARRANT
CERTIFICATES SHALL BE EXECUTED ON BEHALF OF THE COMPANY BY ITS CHAIRMAN,
PRESIDENT, CHIEF EXECUTIVE OFFICER, CHIEF FINANCIAL OFFICER OR ANY VICE
PRESIDENT, EITHER MANUALLY OR BY FACSIMILE SIGNATURE PRINTED THEREON. THE
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 COMPANY WHOSE SIGNATURE SHALL HAVE BEEN PLACED UPON ANY OF THE WARRANT
CERTIFICATES SHALL CEASE TO BE THE CHAIRMAN, PRESIDENT, CHIEF EXECUTIVE OFFICER,
CHIEF FINANCIAL OFFICER OR A VICE PRESIDENT OF THE COMPANY BEFORE
COUNTERSIGNATURE BY THE WARRANT AGENT AND ISSUE AND DELIVERY THEREOF, SUCH
WARRANT CERTIFICATES MAY, NEVERTHELESS, BE COUNTERSIGNED BY THE WARRANT AGENT
AND ISSUED AND DELIVERED WITH THE SAME FORCE AND EFFECT AS THOUGH SUCH PERSON
HAD NOT CEASED TO BE SUCH OFFICER OF THE COMPANY.
ARTICLE III
CERTAIN TERMS OF EXERCISE OF WARRANTS
SECTION 3.1. METHOD OF EXERCISE. IN ORDER TO EXERCISE A WARRANT OR TO
SELL A WARRANT TO THE COMPANY, THE HOLDER THEREOF MUST SURRENDER THE WARRANT
CERTIFICATE EVIDENCING SUCH WARRANT TO THE COMPANY, WITH ONE OF THE FORMS ON THE
REVERSE OF OR ATTACHED
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TO THE WARRANT CERTIFICATE DULY EXECUTED, TOGETHER WITH PAYMENT IN CASH OR CHECK
PAYABLE TO THE COMPANY FOR THE FULL AMOUNT OF THE EXERCISE PRICE.
IF FEWER THAN ALL OF THE WARRANTS REPRESENTED BY A WARRANT CERTIFICATE ARE
SURRENDERED, SUCH WARRANT CERTIFICATE SHALL BE SURRENDERED AND, SUBJECT TO THE
PROVISIONS OF ARTICLE V, A NEW WARRANT CERTIFICATE OF THE SAME TENOR AND FOR THE
NUMBER OF WARRANTS THAT WERE NOT SURRENDERED SHALL BE SIGNED BY THE COMPANY.
THE WARRANT AGENT SHALL COUNTERSIGN THE NEW WARRANT CERTIFICATE, REGISTER IT IN
SUCH NAME OR NAMES AS MAY BE DIRECTED IN WRITING BY THE HOLDER AND DELIVER THE
NEW WARRANT CERTIFICATE TO THE PERSON OR PERSONS ENTITLED TO RECEIVE THE SAME.
UPON SURRENDER OF A WARRANT CERTIFICATE AND PAYMENT OF THE PURCHASE PRICE
IN CONFORMITY WITH THE FOREGOING PROVISIONS, THE COMPANY SHALL CAUSE THE
TRANSFER AGENT TO ISSUE TO THE HOLDER OF SUCH WARRANT CERTIFICATE APPROPRIATE
EVIDENCE OF OWNERSHIP OF ANY SHARES OF WARRANT STOCK OR OTHER SECURITIES OR
PROPERTY (INCLUDING ANY MONEY) TO WHICH THE HOLDER IS ENTITLED, REGISTERED OR
OTHERWISE PLACED IN, OR PAYABLE TO THE ORDER OF, SUCH NAME OR NAMES AS MAY BE
DIRECTED IN WRITING BY THE HOLDER, AND SHALL DELIVER SUCH EVIDENCE OF OWNERSHIP
AND ANY OTHER SECURITIES OR PROPERTY (INCLUDING ANY MONEY) TO THE PERSON OR
PERSONS ENTITLED TO RECEIVE THE SAME, TOGETHER WITH AN AMOUNT IN CASH IN LIEU OF
ANY FRACTION OF A SHARE AS PROVIDED IN SECTION 4.4.
ARTICLE IV
ADJUSTMENTS
SECTION 4.1. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES OF COMMON
STOCK. THE NUMBER AND KIND OF SHARES PURCHASABLE UPON THE EXERCISE OF WARRANTS
AND THE PURCHASE PRICE SHALL BE SUBJECT TO ADJUSTMENT FROM TIME TO TIME AS
FOLLOWS:
(a) STOCK SPLITS, COMBINATIONS, ETC. IN CASE THE COMPANY SHALL HEREAFTER
(i) PAY A DIVIDEND OR MAKE A DISTRIBUTION ON ITS COMMON STOCK IN SHARES OF ITS
CAPITAL STOCK (WHETHER SHARES OF COMMON STOCK OR OF CAPITAL STOCK OF ANY OTHER
CLASS), (ii) SUBDIVIDE ITS OUTSTANDING SHARES OF COMMON STOCK, (iii) COMBINE ITS
OUTSTANDING SHARES OF COMMON STOCK INTO A SMALLER NUMBER OF SHARES, OR (iv)
ISSUE BY RECLASSIFICATION OF ITS SHARES OF COMMON STOCK ANY SHARES OF CAPITAL
STOCK OF THE COMPANY, THE PURCHASE PRICE AND NUMBER OF SHARES OF COMMON STOCK
UNDERLYING THE WARRANT (IF APPLICABLE) IN EFFECT IMMEDIATELY PRIOR TO SUCH
ACTION SHALL BE ADJUSTED SO THAT THE HOLDER OF ANY WARRANT THEREAFTER EXERCISED
SHALL BE ENTITLED TO RECEIVE THE NUMBER OF SHARES OF CAPITAL STOCK OF THE
COMPANY WHICH SUCH HOLDER WOULD HAVE OWNED IMMEDIATELY FOLLOWING SUCH ACTION HAD
SUCH WARRANT BEEN EXERCISED IMMEDIATELY PRIOR THERETO. AN ADJUSTMENT MADE
PURSUANT TO THIS PARAGRAPH SHALL BECOME EFFECTIVE IMMEDIATELY AFTER THE RECORD
DATE IN THE CASE OF A DIVIDEND AND SHALL BECOME EFFECTIVE IMMEDIATELY AFTER THE
EFFECTIVE DATE IN THE CASE OF A SUBDIVISION, COMBINATION OR RECLASSIFICATION.
IF, AS A RESULT OF AN ADJUSTMENT MADE PURSUANT TO THIS PARAGRAPH, THE HOLDER OF
ANY WARRANT THEREAFTER EXERCISED SHALL BECOME ENTITLED TO RECEIVE SHARES OF TWO
OR MORE CLASSES OF CAPITAL STOCK OF THE COMPANY, THE BOARD OF DIRECTORS (WHOSE
DETERMINATION SHALL BE CONCLUSIVE) SHALL DETERMINE THE ALLOCATION OF THE
ADJUSTED PURCHASE PRICE BETWEEN OR AMONG SHARES OF SUCH CLASSES OF CAPITAL
STOCK.
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(b) RECLASSIFICATION, COMBINATIONS, MERGERS, ETC. IN CASE OF ANY
RECLASSIFICATION OR CHANGE OF OUTSTANDING SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANTS (OTHER THAN AS SET FORTH IN PARAGRAPH (a) ABOVE AND
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 IN WHICH THE COMPANY IS THE CONTINUING
CORPORATION AND WHICH DOES NOT RESULT IN ANY RECLASSIFICATION OR CHANGE OF THE
THEN OUTSTANDING SHARES OF COMMON STOCK OR OTHER CAPITAL STOCK ISSUABLE UPON
EXERCISE OF THE WARRANTS (OTHER THAN A CHANGE IN PAR VALUE, OR FROM PAR VALUE TO
NO PAR VALUE, OR FROM NO PAR VALUE TO PAR VALUE OR AS A RESULT OF A SUBDIVISION
OR COMBINATION)) OR IN CASE OF ANY SALE OR CONVEYANCE TO ANOTHER CORPORATION OF
THE PROPERTY OF THE COMPANY AS AN ENTIRETY OR SUBSTANTIALLY AS AN ENTIRETY,
THEN, AS A CONDITION OF SUCH RECLASSIFICATION, CHANGE, CONSOLIDATION, MERGER,
SALE OR CONVEYANCE, THE COMPANY OR SUCH A SUCCESSOR OR PURCHASING CORPORATION,
AS THE CASE MAY BE, SHALL FORTHWITH MAKE LAWFUL AND ADEQUATE PROVISION WHEREBY
THE HOLDER OF SUCH WARRANT THEN OUTSTANDING SHALL HAVE THE RIGHT THEREAFTER TO
RECEIVE ON EXERCISE OF SUCH WARRANT THE KIND AND AMOUNT OF SHARES OF STOCK AND
OTHER SECURITIES AND PROPERTY RECEIVABLE UPON SUCH RECLASSIFICATION, CHANGE,
CONSOLIDATION, MERGER, SALE OR CONVEYANCE BY A HOLDER OF THE NUMBER OF SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF SUCH WARRANT IMMEDIATELY PRIOR TO SUCH
RECLASSIFICATION, CHANGE, CONSOLIDATION, MERGER, SALE OR CONVEYANCE. SUCH
PROVISIONS SHALL INCLUDE PROVISION FOR ADJUSTMENTS WHICH SHALL BE AS NEARLY
EQUIVALENT AS MAY BE PRACTICABLE TO THE ADJUSTMENTS PROVIDED FOR IN THIS ARTICLE
IV. THE ABOVE PROVISIONS OF THIS PARAGRAPH (b) SHALL SIMILARLY APPLY TO
SUCCESSIVE RECLASSIFICATIONS AND CHANGES OF SHARES OF COMMON STOCK AND TO
SUCCESSIVE CONSOLIDATIONS, MERGERS, SALES OR CONVEYANCES. THIS PROVISION SHALL
NOT LIMIT THE RIGHTS OF THE HOLDERS AS SPECIFIED IN THE WARRANT CERTIFICATE TO
EXERCISE THE WARRANTS PRIOR TO ANY OF THE EVENTS DESCRIBED HEREIN.
(c) OTHER ADJUSTMENTS. IN THE EVENT THAT AT ANY TIME, AS A RESULT OF AN
ADJUSTMENT MADE PURSUANT TO THIS ARTICLE IV, THE HOLDERS SHALL BECOME ENTITLED
TO RECEIVE ANY SECURITIES OF THE COMPANY OTHER THAN SHARES OF COMMON STOCK,
THEREAFTER THE NUMBER OF SUCH OTHER SECURITIES SO RECEIVABLE UPON EXERCISE OF
THE WARRANTS AND THE PURCHASE PRICE APPLICABLE TO SUCH EXERCISE SHALL BE SUBJECT
TO ADJUSTMENT FROM TIME TO TIME IN A MANNER AND ON TERMS AS NEARLY EQUIVALENT AS
PRACTICABLE TO THE PROVISIONS WITH RESPECT TO THE SHARES OF COMMON STOCK
CONTAINED IN THIS ARTICLE IV.
SECTION 4.2. NOTICE OF ADJUSTMENT. WHENEVER THE NUMBER OF SHARES OF
COMMON STOCK OR OTHER STOCK OR PROPERTY ISSUABLE UPON THE EXERCISE OF EACH
WARRANT OR THE PURCHASE PRICE IS ADJUSTED, AS HEREIN PROVIDED, THE COMPANY SHALL
CAUSE THE WARRANT AGENT PROMPTLY TO MAIL BY FIRST CLASS MAIL, POSTAGE PREPAID,
TO EACH HOLDER NOTICE OF SUCH ADJUSTMENT OR ADJUSTMENTS AND SHALL DELIVER TO THE
WARRANT AGENT A CERTIFICATE OF A FIRM OF INDEPENDENT PUBLIC ACCOUNTANTS SELECTED
BY THE BOARD OF DIRECTORS OF THE COMPANY (WHO MAY BE THE REGULAR ACCOUNTANTS
EMPLOYED BY THE COMPANY) SETTING FORTH THE NUMBER OF SHARES OF COMMON STOCK OR
OTHER STOCK OR PROPERTY ISSUABLE UPON THE EXERCISE OF EACH WARRANT OR THE
PURCHASE PRICE AFTER SUCH ADJUSTMENT, SETTING FORTH A BRIEF STATEMENT OF THE
FACTS REQUIRING SUCH ADJUSTMENT AND SETTING FORTH THE COMPUTATION BY WHICH SUCH
ADJUSTMENT WAS MADE. THE WARRANT AGENT SHALL BE ENTITLED TO RELY ON SUCH
CERTIFICATE AND SHALL BE UNDER NO DUTY OR RESPONSIBILITY WITH RESPECT TO ANY
SUCH CERTIFICATE, EXCEPT TO EXHIBIT THE SAME FROM TIME TO TIME TO ANY HOLDER
DESIRING AN INSPECTION THEREOF DURING REASONABLE BUSINESS HOURS. THE WARRANT
AGENT SHALL NOT
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AT ANY TIME BE UNDER ANY DUTY OR RESPONSIBILITY TO ANY HOLDERS TO DETERMINE
WHETHER ANY FACTS EXIST THAT MAY REQUIRE ANY ADJUSTMENT OF THE NUMBER OF SHARES
OF COMMON STOCK OR OTHER STOCK OR PROPERTY ISSUABLE ON EXERCISE OF THE WARRANTS
OR THE PURCHASE PRICE, OR WITH RESPECT TO THE NATURE OR EXTENT OF ANY SUCH
ADJUSTMENT WHEN MADE, OR WITH RESPECT TO THE METHOD EMPLOYED IN MAKING SUCH
ADJUSTMENT OR THE VALIDITY OR VALUE (OF THE KIND OR AMOUNT) OF ANY SHARES OF
COMMON STOCK OR OTHER STOCK OR PROPERTY WHICH MAY BE ISSUABLE ON EXERCISE OF THE
WARRANTS. THE WARRANT AGENT SHALL NOT BE RESPONSIBLE FOR ANY FAILURE OF THE
COMPANY TO MAKE ANY CASH PAYMENT OR TO ISSUE, TRANSFER OR DELIVER ANY SHARES OF
COMMON STOCK OR STOCK CERTIFICATES OR OTHER COMMON STOCK OR PROPERTY UPON THE
EXERCISE OF ANY WARRANT.
SECTION 4.3. STATEMENT ON WARRANTS. IRRESPECTIVE OF ANY ADJUSTMENT IN
THE NUMBER OR KIND OF SHARES ISSUABLE UPON THE EXERCISE OF THE WARRANTS OR THE
PURCHASE PRICE, WARRANTS THERETOFORE OR THEREAFTER ISSUED MAY CONTINUE TO
EXPRESS THE SAME NUMBER AND KIND OF SHARES AS ARE STATED IN THE WARRANTS
INITIALLY ISSUABLE PURSUANT TO THIS AGREEMENT.
SECTION 4.4. FRACTIONAL INTEREST. THE COMPANY SHALL NOT BE REQUIRED TO
ISSUE FRACTIONAL SHARES OF COMMON STOCK ON THE EXERCISE OF WARRANTS. IF MORE
THAN ONE WARRANT SHALL BE PRESENTED FOR EXERCISE IN FULL AT THE SAME TIME BY THE
SAME HOLDER, THE NUMBER OF FULL SHARES OF COMMON STOCK WHICH SHALL BE ISSUABLE
UPON SUCH EXERCISE SHALL BE COMPUTED ON THE BASIS OF THE AGGREGATE NUMBER OF
SHARES OF COMMON STOCK ACQUIRABLE ON EXERCISE OF THE WARRANTS SO PRESENTED. IF
ANY FRACTION OF A SHARE OF COMMON STOCK WOULD, EXCEPT FOR THE PROVISIONS OF THIS
SECTION, BE ISSUABLE ON THE EXERCISE OF ANY WARRANT (OR SPECIFIED PORTION
THEREOF), THE COMPANY SHALL DIRECT ITS TRANSFER AGENT TO PAY AN AMOUNT IN CASH
CALCULATED BY IT TO EQUAL THE THEN CURRENT MARKET VALUE PER SHARE MULTIPLIED BY
SUCH FRACTION COMPUTED TO THE NEAREST WHOLE CENT. THE HOLDERS, BY THEIR
ACCEPTANCE OF THE WARRANT CERTIFICATES, EXPRESSLY WAIVE ANY AND ALL RIGHTS TO
RECEIVE ANY FRACTION OF A SHARE OF COMMON STOCK OR A STOCK CERTIFICATE
REPRESENTING A FRACTION OF A SHARE OF COMMON STOCK.
ARTICLE V
WARRANT TRANSFER BOOKS
SECTION 5.1. WARRANT TRANSFER BOOKS. THE WARRANT CERTIFICATES SHALL BE
ISSUED IN REGISTERED FORM ONLY. THE COMPANY SHALL CAUSE TO BE KEPT AT THE
OFFICE OF THE WARRANT AGENT A REGISTER IN WHICH, SUBJECT TO SUCH REASONABLE
REGULATIONS AS IT MAY PRESCRIBE, THE COMPANY SHALL PROVIDE FOR THE REGISTRATION
OF WARRANT CERTIFICATES AND OF TRANSFERS OR EXCHANGES OF WARRANT CERTIFICATES BY
THE WARRANT AGENT AS HEREIN PROVIDED.
AT THE OPTION OF THE HOLDER THEREOF AND EXCEPT AS PROVIDED HEREIN, WARRANT
CERTIFICATES MAY BE EXCHANGED AT SUCH OFFICE UPON PAYMENT OF THE CHARGES
HEREINAFTER PROVIDED. WHENEVER ANY WARRANT CERTIFICATES ARE SO SURRENDERED FOR
EXCHANGE, THE COMPANY SHALL EXECUTE, AND THE WARRANT AGENT SHALL COUNTERSIGN AND
DELIVER, THE WARRANT CERTIFICATES THAT THE HOLDER MAKING THE EXCHANGE IS
ENTITLED TO RECEIVE.
ALL WARRANT CERTIFICATES ISSUED UPON ANY REGISTRATION OF TRANSFER OR
EXCHANGE OF WARRANT CERTIFICATES SHALL BE THE VALID OBLIGATIONS OF THE COMPANY,
EVIDENCING THE SAME
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OBLIGATIONS, AND ENTITLED TO THE SAME BENEFITS UNDER THIS AGREEMENT, AS THE
WARRANT CERTIFICATES SURRENDERED FOR SUCH REGISTRATION OF TRANSFER OR EXCHANGE.
EVERY WARRANT CERTIFICATE SURRENDERED FOR REGISTRATION OF TRANSFER OR
EXCHANGE SHALL (IF SO REQUIRED BY THE COMPANY OR THE WARRANT AGENT) BE DULY
ENDORSED, OR BE ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER IN FORM
SATISFACTORY TO THE COMPANY AND THE WARRANT AGENT, DULY EXECUTED BY THE HOLDER
THEREOF OR HIS ATTORNEY DULY AUTHORIZED IN WRITING.
NO SERVICE CHARGE SHALL BE REQUIRED OF A HOLDER FOR ANY REGISTRATION OF
TRANSFER OR EXCHANGE OF WARRANT CERTIFICATES. THE COMPANY MAY REQUIRE PAYMENT
OF A SUM SUFFICIENT TO COVER ANY TAX OR OTHER GOVERNMENTAL CHARGE THAT MAY BE
IMPOSED IN CONNECTION WITH ANY REGISTRATION OF TRANSFER OR EXCHANGE OF WARRANT
CERTIFICATES.
ANY WARRANT CERTIFICATE WHEN DULY ENDORSED IN BLANK SHALL BE DEEMED
NEGOTIABLE. THE HOLDER OF ANY WARRANT CERTIFICATE DULY ENDORSED IN BLANK MAY BE
TREATED BY THE COMPANY, THE WARRANT AGENT AND ALL OTHER PERSONS DEALING
THEREWITH AS THE ABSOLUTE OWNER THEREOF FOR ANY PURPOSE AND AS THE PERSON
ENTITLED TO EXERCISE THE RIGHTS REPRESENTED THEREBY, OR TO THE TRANSFER THEREOF
ON THE REGISTER OF THE COMPANY MAINTAINED BY THE WARRANT AGENT, ANY NOTICE TO
THE CONTRARY NOTWITHSTANDING; BUT UNTIL SUCH TRANSFER ON SUCH REGISTER, THE
COMPANY AND THE WARRANT AGENT MAY TREAT THE REGISTERED HOLDER THEREOF AS THE
OWNER FOR ALL PURPOSES.
ARTICLE VI
WARRANT HOLDERS
SECTION 6.1. NO VOTING RIGHTS. PRIOR TO THE EXERCISE OF THE WARRANTS,
NO HOLDER OF A WARRANT CERTIFICATE, AS SUCH, SHALL BE ENTITLED TO ANY RIGHTS OF
A STOCKHOLDER OF THE COMPANY, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
RECEIVE DIVIDENDS OR SUBSCRIPTION RIGHTS, THE RIGHT TO VOTE, TO CONSENT, TO
EXERCISE ANY PREEMPTIVE RIGHT, TO RECEIVE ANY NOTICE OF MEETINGS OF STOCKHOLDERS
FOR THE ELECTION OF DIRECTORS OF THE COMPANY OR ANY OTHER MATTER OR TO RECEIVE
ANY NOTICE OF ANY PROCEEDINGS OF THE COMPANY, EXCEPT AS MAY BE SPECIFICALLY
PROVIDED FOR HEREIN.
SECTION 6.2. RIGHT OF ACTION. ALL RIGHTS OF ACTION IN RESPECT OF THIS
AGREEMENT ARE VESTED IN THE HOLDERS OF THE WARRANTS, AND ANY HOLDER OF ANY
WARRANT, WITHOUT THE CONSENT OF THE WARRANT AGENT OR THE HOLDER OF ANY OTHER
WARRANT, MAY, ON SUCH HOLDER'S OWN BEHALF AND FOR SUCH HOLDER'S OWN BENEFIT,
ENFORCE, AND MAY INSTITUTE AND MAINTAIN ANY SUIT, ACTION OR PROCEEDING AGAINST
THE COMPANY SUITABLE TO ENFORCE, OR OTHERWISE IN RESPECT OF, SUCH HOLDER'S
RIGHTS HEREUNDER, INCLUDING THE RIGHT TO EXERCISE, EXCHANGE OR SURRENDER FOR
PURCHASE SUCH HOLDER'S WARRANTS IN THE MANNER PROVIDED IN THIS AGREEMENT.
ARTICLE VII
WARRANT AGENT
SECTION 7.1. NATURE OF DUTIES AND RESPONSIBILITIES ASSUMED. THE COMPANY
HEREBY APPOINTS THE WARRANT AGENT TO ACT AS AGENT OF THE COMPANY AS SET FORTH IN
THIS
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AGREEMENT. THE WARRANT AGENT HEREBY ACCEPTS THE APPOINTMENT AS AGENT OF THE
COMPANY AND AGREES TO PERFORM THAT AGENCY UPON THE TERMS AND CONDITIONS HEREIN
SET FORTH, BY ALL OF WHICH THE COMPANY AND THE HOLDERS OF WARRANTS, BY THEIR
ACCEPTANCE THEREOF, SHALL BE BOUND. THE WARRANT AGENT SHALL NOT BY
COUNTERSIGNING WARRANT CERTIFICATES OR BY ANY OTHER ACT HEREUNDER BE DEEMED TO
MAKE ANY REPRESENTATION AS TO VALIDITY OR AUTHORIZATION OF THE WARRANTS OR THE
WARRANT CERTIFICATES (EXCEPT AS TO ITS COUNTERSIGNATURE THEREON) OR OF ANY
SECURITIES OR OTHER PROPERTY DELIVERED UPON EXERCISE OR TENDER OF ANY WARRANT,
OR AS TO THE NUMBER OF KIND OR AMOUNT OF STOCK OR OTHER SECURITIES OR OTHER
PROPERTY DELIVERABLE UPON EXERCISE OF ANY WARRANT OR THE CORRECTNESS OF THE
REPRESENTATIONS OF THE COMPANY MADE IN SUCH CERTIFICATES THAT THE WARRANT AGENT
RECEIVES. THE WARRANT AGENT SHALL NOT HAVE ANY DUTY TO CALCULATE OR DETERMINE
ANY ADJUSTMENTS WITH RESPECT TO THE PURCHASE PRICE OR THE KIND AND AMOUNT OF
SHARES OR OTHER SECURITIES OR ANY PROPERTY RECEIVABLE BY HOLDERS UPON THE
EXERCISE OR TENDER OF WARRANTS REQUIRED FROM TIME TO TIME, AND THE WARRANT AGENT
SHALL HAVE NO DUTY OR RESPONSIBILITY IN DETERMINING THE ACCURACY OR CORRECTNESS
OF ANY SUCH CALCULATION. THE WARRANT AGENT SHALL NOT (a) BE LIABLE FOR ANY
RECITAL OR STATEMENT OF FACT CONTAINED HEREIN OR IN THE WARRANT CERTIFICATES OR
FOR ANY ACTION TAKEN, SUFFERED OR OMITTED BY IT IN GOOD FAITH IN THE BELIEF THAT
ANY WARRANT CERTIFICATE OR ANY OTHER DOCUMENT OR ANY SIGNATURE IS GENUINE OR
PROPERLY AUTHORIZED, (b) BE RESPONSIBLE FOR ANY FAILURE ON THE PART OF THE
COMPANY TO COMPLY WITH ANY OF ITS COVENANTS AND OBLIGATIONS CONTAINED IN THIS
AGREEMENT OR IN THE WARRANT CERTIFICATES, (c) BE LIABLE FOR ANY ACT OR OMISSION
IN CONNECTION WITH THIS AGREEMENT EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, OR (d) HAVE ANY RESPONSIBILITY TO DETERMINE WHETHER A TRANSFER OF A
WARRANT COMPLIES WITH FEDERAL OR STATE SECURITIES LAWS. THE WARRANT AGENT IS
HEREBY AUTHORIZED TO ACCEPT INSTRUCTIONS WITH RESPECT TO THE PERFORMANCE OF ITS
DUTIES HEREUNDER FROM THE CHIEF EXECUTIVE OFFICER, THE PRESIDENT, ANY VICE
PRESIDENT, THE CHIEF FINANCIAL OFFICER, THE TREASURER OR THE SECRETARY OF THE
COMPANY (AS IDENTIFIED IN A CERTIFICATE SIGNED BY THE SECRETARY OF THE COMPANY)
AND TO APPLY TO ANY SUCH OFFICER FOR INSTRUCTIONS (WHICH INSTRUCTIONS WILL BE
PROMPTLY GIVEN IN WRITING WHEN REQUESTED) AND THE WARRANT AGENT SHALL NOT BE
LIABLE FOR ANY ACTION TAKEN OR SUFFERED TO BE TAKEN BY IT IN GOOD FAITH IN
ACCORDANCE WITH THE INSTRUCTIONS OF ANY SUCH OFFICER, EXCEPT FOR ITS OWN
NEGLIGENCE OR WILLFUL MISCONDUCT, BUT IN ITS DISCRETION THE WARRANT AGENT MAY IN
LIEU THEREOF ACCEPT OTHER EVIDENCE OF SUCH OR MAY REQUIRE SUCH FURTHER OR
ADDITIONAL EVIDENCE AS IT MAY DEEM REASONABLE.
THE WARRANT AGENT MAY EXECUTE AND EXERCISE ANY OF THE RIGHTS AND POWERS
HEREBY VESTED IN IT OR PERFORM ANY DUTY HEREUNDER EITHER ITSELF OR BY OR THROUGH
ITS ATTORNEYS, AGENTS, EMPLOYEES OR SELECTED FIRMS WHICH ARE LICENSED SECURITIES
BROKER-DEALERS, PROVIDED REASONABLE CARE HAS BEEN EXERCISED IN THE SELECTION AND
IN THE CONTINUED EMPLOYMENT OF ANY SUCH ATTORNEY, AGENT OR EMPLOYEE. THE
WARRANT AGENT SHALL NOT BE UNDER ANY OBLIGATION OR DUTY TO INSTITUTE, APPEAR IN
OR DEFEND ANY ACTION, SUIT OR LEGAL PROCEEDING IN RESPECT HEREOF, UNLESS FIRST
INDEMNIFIED TO ITS SATISFACTION, BUT THIS PROVISION SHALL NOT AFFECT THE POWER
OF THE WARRANT AGENT TO TAKE SUCH ACTION AS THE WARRANT AGENT MAY CONSIDER
PROPER, WHETHER WITH OR WITHOUT SUCH INDEMNITY. THE WARRANT AGENT SHALL
PROMPTLY NOTIFY THE COMPANY IN WRITING OF ANY CLAIM MADE OR ACTION, SUIT OR
PROCEEDING INSTITUTED AGAINST OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
THE COMPANY WILL PERFORM, EXECUTE, ACKNOWLEDGE AND DELIVER OR CAUSE TO BE
PERFORMED, EXECUTED, ACKNOWLEDGED AND DELIVERED ALL SUCH FURTHER ACTS,
INSTRUMENTS AND ASSURANCES AS MAY
8
REASONABLY BE REQUIRED BY THE WARRANT AGENT IN ORDER TO ENABLE IT TO CARRY OUT
OR PERFORM ITS DUTIES UNDER THIS AGREEMENT.
THE WARRANT AGENT SHALL ACT SOLELY AS AGENT OF THE COMPANY HEREUNDER. THE
WARRANT AGENT SHALL NOT BE LIABLE EXCEPT FOR THE FAILURE TO PERFORM SUCH DUTIES
AS ARE SPECIFICALLY SET FORTH HEREIN, AND NO IMPLIED COVENANTS OR OBLIGATIONS
SHALL BE READ INTO THIS AGREEMENT AGAINST THE WARRANT AGENT, WHOSE DUTIES AND
OBLIGATIONS SHALL BE DETERMINED SOLELY BY THE EXPRESS PROVISIONS HEREOF.
SECTION 7.2. RIGHT TO CONSULT COUNSEL. THE WARRANT AGENT MAY AT ANY TIME
CONSULT WITH LEGAL COUNSEL SATISFACTORY TO IT (WHO MAY BE LEGAL COUNSEL FOR THE
COMPANY), AND THE WARRANT AGENT SHALL INCUR NO LIABILITY OR RESPONSIBILITY TO
THE COMPANY OR TO ANY HOLDER FOR ANY ACTION TAKEN, SUFFERED OR OMITTED BY IT IN
GOOD FAITH IN ACCORDANCE WITH THE OPINION OR ADVICE OF SUCH COUNSEL.
SECTION 7.3. COMPENSATION AND REIMBURSEMENT. THE COMPANY AGREES TO PAY
TO THE WARRANT AGENT FROM TIME TO TIME COMPENSATION FOR ALL SERVICES RENDERED BY
IT HEREUNDER AS THE COMPANY AND THE WARRANT AGENT MAY AGREE FROM TIME TO TIME,
AND TO REIMBURSE THE WARRANT AGENT FOR REASONABLE EXPENSES AND DISBURSEMENTS
INCURRED IN CONNECTION WITH THE EXECUTION AND ADMINISTRATION OF THIS AGREEMENT,
AND FURTHER AGREES TO INDEMNITY THE WARRANT AGENT FOR, AND HOLD IT HARMLESS
AGAINST, ANY LOSS, LIABILITY OR EXPENSES INCURRED WITHOUT NEGLIGENCE, BAD FAITH
OR WILLFUL MISCONDUCT ON ITS PART, ARISING OUT OF OR IN CONNECTION WITH THE
ACCEPTANCE AND ADMINISTRATION OF THIS AGREEMENT, INCLUDING THE COSTS AND
EXPENSES OF DEFENDING ITSELF AGAINST ANY CLAIM OR LIABILITY IN CONNECTION WITH
THE EXERCISE OR PERFORMANCE OF ANY OF ITS POWERS OR DUTIES HEREUNDER.
SECTION 7.4. WARRANT AGENT MAY HOLD COMPANY SECURITIES. THE WARRANT
AGENT AND ANY STOCKHOLDER, DIRECTOR, OFFICER OR EMPLOYEE OF THE WARRANT AGENT
MAY BUY, SELL OR DEAL IN ANY OF THE WARRANTS OR OTHER SECURITIES OF THE COMPANY
OR ITS AFFILIATES OR BECOME PECUNIARILY INTERESTED IN TRANSACTIONS IN WHICH THE
COMPANY OR ITS AFFILIATES MAY BE INTERESTED, OR CONTRACT WITH OR LEND MONEY TO
THE COMPANY OR ITS AFFILIATES OR OTHERWISE ACT AS FULLY AND FREELY AS THOUGH IT
WERE NOT THE WARRANT AGENT UNDER THIS AGREEMENT. NOTHING HEREIN SHALL PRECLUDE
THE WARRANT AGENT FROM ACTING IN ANY OTHER CAPACITY FOR THE COMPANY OR FOR ANY
OTHER PERSON.
SECTION 7.5. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) NO
RESIGNATION OR REMOVAL OF THE WARRANT AGENT AND NO APPOINTMENT OF A SUCCESSOR
WARRANT AGENT SHALL BECOME EFFECTIVE UNTIL THE ACCEPTANCE OF APPOINTMENT BY THE
SUCCESSOR WARRANT AGENT AS PROVIDED HEREIN. THE WARRANT AGENT MAY RESIGN ITS
DUTIES AND BE DISCHARGED FROM ALL FURTHER DUTIES AND LIABILITY HEREUNDER (EXCEPT
LIABILITY ARISING AS A RESULT OF THE WARRANT AGENT'S OWN NEGLIGENCE OR WILLFUL
MISCONDUCT) AFTER GIVING AT LEAST 30 DAYS' PRIOR WRITTEN NOTICE TO THE COMPANY.
IN THE EVENT THAT THE WARRANT AGENT DOES NOT CURE A BREACH OF ITS DUTIES OR
OBLIGATIONS HEREUNDER WITHIN TEN DAYS OF THE COMPANY'S WRITTEN NOTICE OF SUCH
BREACH, THE COMPANY MAY REMOVE THE WARRANT AGENT UPON WRITTEN NOTICE, AND THE
WARRANT AGENT SHALL THEREUPON IN LIKE MANNER BE DISCHARGED FROM ALL FURTHER
DUTIES AND LIABILITIES HEREUNDER, EXCEPT AS AFORESAID. THE WARRANT AGENT SHALL,
AT THE COMPANY'S EXPENSE, CAUSE TO BE MAILED (BY FIRST CLASS MAIL, POSTAGE
PREPAID) TO EACH HOLDER OF A WARRANT AT HIS LAST ADDRESS AS SHOWN
9
ON THE REGISTER OF THE COMPANY MAINTAINED BY THE WARRANT AGENT A COPY OF SAID
NOTICE OF RESIGNATION OR NOTICE OF REMOVAL, AS THE CASE MAY BE. UPON SUCH
RESIGNATION OR REMOVAL, THE COMPANY SHALL APPOINT IN WRITING A NEW WARRANT
AGENT. IF THE COMPANY SHALL FAIL TO MAKE SUCH APPOINTMENT WITHIN A PERIOD OF 30
DAYS AFTER IT HAS BEEN NOTIFIED IN WRITING OF SUCH RESIGNATION BY THE RESIGNING
WARRANT AGENT OR AFTER SUCH REMOVAL, THEN THE RESIGNING WARRANT AGENT OR THE
HOLDER OF ANY WARRANT MAY APPLY TO ANY COURT OF COMPETENT JURISDICTION FOR THE
APPOINTMENT OF A NEW WARRANT AGENT. ANY NEW WARRANT AGENT, WHETHER APPOINTED BY
THE COMPANY OR BY SUCH A COURT, SHALL BE A CORPORATION DOING BUSINESS UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF, IN GOOD STANDING AND HAVING A
COMBINED CAPITAL AND SURPLUS OF NOT LESS THAN $50,000,000. THE COMBINED CAPITAL
AND SURPLUS OF ANY SUCH NEW WARRANT AGENT SHALL BE DEEMED TO BE THE COMBINED
CAPITAL AND SURPLUS AS SET FORTH IN THE MOST RECENT ANNUAL REPORT OF ITS
CONDITION PUBLISHED BY SUCH WARRANT AGENT PRIOR TO ITS APPOINTMENT, PROVIDED
THAT SUCH REPORTS ARE PUBLISHED AT LEAST ANNUALLY PURSUANT TO LAW OR TO THE
REQUIREMENTS OF A FEDERAL OR STATE SUPERVISING OR EXAMINING AUTHORITY. AFTER
ACCEPTANCE IN WRITING OF SUCH APPOINTMENT BY THE NEW WARRANT AGENT, IT 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 COMPANY AND SHALL BE LEGALLY
AND VALIDLY EXECUTED AND DELIVERED BY THE RESIGNING OR REMOVED WARRANT AGENT.
NOT LATER THAN THE EFFECTIVE DATE OF ANY SUCH APPOINTMENT, THE COMPANY SHALL
GIVE NOTICE THEREOF TO THE RESIGNING OR REMOVED WARRANT AGENT. FAILURE TO GIVE
ANY NOTICE PROVIDED FOR IN THIS SECTION, HOWEVER, OR ANY DEFECT THEREIN, SHALL
NOT AFFECT THE LEGALITY OR VALIDITY OF THE RESIGNATION OF THE WARRANT AGENT OR
THE APPOINTMENT OF A NEW WARRANT AGENT, AS THE CASE MAY BE.
(b) ANY CORPORATION INTO WHICH THE WARRANT AGENT OR ANY NEW WARRANT AGENT
MAY BE 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 TO
WHICH THE WARRANT AGENT TRANSFERS SUBSTANTIALLY ALL OF ITS CORPORATE TRUST OR
SHAREHOLDER SERIES BUSINESS SHALL BE A SUCCESSOR WARRANT AGENT UNDER THIS
AGREEMENT WITHOUT ANY FURTHER ACT, PROVIDED THAT SUCH CORPORATION (i) WOULD BE
ELIGIBLE FOR APPOINTMENT AS SUCCESSOR TO THE WARRANT AGENT UNDER THE PROVISIONS
OF SECTION 7.5(a) OR (ii) IS A WHOLLY-OWNED SUBSIDIARY OF THE WARRANT AGENT.
ANY SUCH SUCCESSOR WARRANT AGENT SHALL PROMPTLY CAUSE NOTICE OF ITS SUCCESSION
AS WARRANT AGENT TO BE MAILED (BY FIRST CLASS MAIL, POSTAGE PREPAID) TO EACH
HOLDER AT SUCH HOLDER'S LAST ADDRESS AS SHOWN ON THE REGISTER MAINTAINED BY THE
WARRANT AGENT PURSUANT TO SECTION 5.1.
ARTICLE VIII
COVENANTS OF THE COMPANY
SECTION 8.1. RESERVATION OF COMMON STOCK FOR ISSUANCE ON EXERCISE OF
WARRANTS; LISTING. THE COMPANY COVENANTS THAT IT WILL AT ALL TIMES RESERVE AND
KEEP AVAILABLE, FREE FROM PREEMPTIVE RIGHTS, OUT OF ITS AUTHORIZED BUT UNISSUED
COMMON STOCK, SOLELY FOR THE PURPOSE OF ISSUANCE UPON EXERCISE OF WARRANTS AS
HEREIN PROVIDED, SUCH NUMBER OF SHARES OF COMMON STOCK AS SHALL THEN BE ISSUABLE
UPON THE EXERCISE OF ALL OUTSTANDING WARRANTS. THE COMPANY COVENANTS THAT ALL
SHARES OF COMMON STOCK WHICH SHALL BE SO ISSUABLE SHALL, UPON SUCH ISSUANCE, BE
DULY AND VALIDLY ISSUED AND FULLY PAID AND NONASSESSABLE, AND THAT UPON ISSUANCE
10
SUCH SHARES SHALL BE LISTED ON EACH NATIONAL SECURITIES EXCHANGE (INCLUDING
NASDAQ/NMS), IF ANY, ON WHICH ANY OTHER SHARES OF OUTSTANDING COMMON STOCK OF
THE COMPANY ARE THEN LISTED.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. MONEY AND OTHER PROPERTY DEPOSITED WITH THE WARRANT AGENT.
ANY MONEYS, SECURITIES OR OTHER PROPERTY WHICH AT ANY TIME SHALL BE DEPOSITED BY
THE COMPANY OR ON ITS BEHALF WITH THE WARRANT AGENT PURSUANT TO THIS AGREEMENT
SHALL BE AND ARE HEREBY ASSIGNED, TRANSFERRED AND SET OVER TO THE WARRANT AGENT
IN TRUST FOR THE PURPOSE FOR WHICH SUCH MONEYS, SECURITIES OR OTHER PROPERTY
SHALL HAVE BEEN DEPOSITED; BUT SUCH MONEYS, SECURITIES OR OTHER PROPERTY NEED
NOT BE SEGREGATED FROM OTHER FUNDS, SECURITIES OR OTHER PROPERTY EXCEPT TO THE
EXTENT REQUIRED BY LAW. THE WARRANT AGENT SHALL DISTRIBUTE ANY MONEY DEPOSITED
WITH IT FOR PAYMENT AND DISTRIBUTION TO THE HOLDERS BY MAILING BY FIRST-CLASS
MAIL A CHECK IN SUCH AMOUNT AS IS APPROPRIATE, TO EACH SUCH HOLDER AT THE
ADDRESS SHOWN ON THE WARRANT REGISTER MAINTAINED PURSUANT TO SECTION 5.1, OR AS
IT MAY BE OTHERWISE DIRECTED IN WRITING BY SUCH HOLDER, UPON SURRENDER OF SUCH
HOLDER'S WARRANTS. ANY MONEY OR OTHER PROPERTY DEPOSITED WITH THE WARRANT AGENT
FOR PAYMENT AND DISTRIBUTION TO THE HOLDERS THAT REMAINS UNCLAIMED FOR TWO
YEARS, LESS ONE DAY, AFTER THE DATE THE MONEY WAS DEPOSITED WITH THE WARRANT
AGENT SHALL BE PAID TO THE COMPANY UPON ITS REQUEST THEREFOR.
SECTION 10.2. PAYMENT OF TAXES. THE COMPANY WILL PAY ALL TAXES AND OTHER
GOVERNMENTAL CHARGES THAT MAY BE IMPOSED ON THE COMPANY OR ON THE WARRANTS OR ON
ANY SECURITIES DELIVERABLE UPON EXERCISE OF WARRANTS WITH RESPECT THERETO,
PROVIDED THAT THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY TAXES PAYABLE BY ANY
HOLDER OF WARRANTS. THE COMPANY WILL NOT BE REQUIRED, HOWEVER, TO PAY ANY TAX
OR OTHER CHARGE IMPOSED IN CONNECTION WITH ANY TRANSFER INVOLVED IN THE ISSUE OF
ANY CERTIFICATE FOR SHARES OF COMMON STOCK OR OTHER SECURITIES UNDERLYING THE
WARRANTS OR PAYMENT OF CASH OR OTHER SECURITIES UNDERLYING THE WARRANTS OR
PAYMENT OF CASH OR OTHER PROPERTY TO ANY PERSON OTHER THAN THE HOLDER OF A
WARRANT CERTIFICATE SURRENDERED UPON THE EXERCISE THEREOF AND IN CASE OF SUCH
TRANSFER OR PAYMENT, THE WARRANT AGENT AND THE COMPANY SHALL NOT BE REQUIRED TO
ISSUE ANY STOCK CERTIFICATE OR SECURITY OR PAY ANY CASH OR DISTRIBUTE ANY
PROPERTY UNTIL SUCH TAX OR CHARGE HAS BEEN PAID OR IT HAS BEEN ESTABLISHED TO
THE WARRANT AGENT'S AND THE COMPANY'S SATISFACTION THAT NO SUCH TAX OR OTHER
CHARGE IS DUE.
SECTION 10.3. SURRENDER OF CERTIFICATES. ANY WARRANT CERTIFICATE
SURRENDERED FOR EXERCISE OR PURCHASED OR OTHERWISE ACQUIRED BY THE COMPANY
SHALL, IF SURRENDERED TO THE COMPANY, BE DELIVERED TO THE WARRANT AGENT, AND ALL
WARRANT CERTIFICATES SURRENDERED OR SO DELIVERED TO THE WARRANT AGENT SHALL
PROMPTLY BE CANCELED BY SUCH WARRANT AGENT AND SHALL NOT BE REISSUED BY THE
COMPANY. THE WARRANT AGENT SHALL DESTROY SUCH CANCELED WARRANT CERTIFICATES AND
DELIVER ITS CERTIFICATE OF DESTRUCTION TO THE COMPANY UNLESS THE COMPANY SHALL
OTHERWISE DIRECT.
11
SECTION 10.4. MUTILATED, DESTROYED, LOST AND STOLEN WARRANT CERTIFICATES.
IF (a) ANY MUTILATED WARRANT CERTIFICATE IS SURRENDERED TO THE WARRANT AGENT OR
(b) THE COMPANY AND THE WARRANT AGENT RECEIVE EVIDENCE TO THEIR SATISFACTION OF
THE DESTRUCTION, LOSS OR THEFT OF ANY WARRANT CERTIFICATE, AND THERE IS
DELIVERED TO THE COMPANY AND THE WARRANT AGENT SUCH SECURITY OR INDEMNITY AS MAY
BE REASONABLY REQUIRED BY THEM TO SAVE EACH OF THEM HARMLESS, THEN, IN THE
ABSENCE OF NOTICE TO THE COMPANY OR THE WARRANT AGENT THAT SUCH WARRANT
CERTIFICATE HAS BEEN ACQUIRED BY A BONA FIDE PURCHASER, THE COMPANY SHALL
EXECUTE AND UPON ITS WRITTEN REQUEST THE WARRANT AGENT SHALL COUNTERSIGN AND
DELIVER, IN EXCHANGE FOR ANY SUCH MUTILATED WARRANT CERTIFICATE OR IN LIEU OF
ANY SUCH DESTROYED, LOST OR STOLEN WARRANT CERTIFICATE, A NEW WARRANT
CERTIFICATE OF LIKE TENOR AND FOR A LIKE AGGREGATE NUMBER OF WARRANTS.
UPON THE ISSUANCE OF ANY NEW WARRANT CERTIFICATE UNDER THIS SECTION 10.4,
THE COMPANY MAY REQUIRE THE PAYMENT OF A SUM SUFFICIENT TO COVER ANY TAX OR
OTHER GOVERNMENTAL CHARGE THAT MAY BE IMPOSED IN RELATION THERETO AND OTHER
EXPENSES (INCLUDING THE REASONABLE FEES AND EXPENSES OF THE WARRANT AGENT AND OF
COUNSEL TO THE COMPANY IN CONNECTION THEREWITH).
EVERY NEW WARRANT CERTIFICATE EXECUTED AND DELIVERED PURSUANT TO THIS
SECTION 10.4 IN LIEU OF ANY DESTROYED, LOST OR STOLEN WARRANT CERTIFICATE SHALL
CONSTITUTE AN ORIGINAL CONTRACTUAL OBLIGATION OF THE COMPANY, WHETHER OR NOT THE
DESTROYED, LOST OR STOLEN WARRANT CERTIFICATE SHALL BE AT ANY TIME ENFORCEABLE
BY ANYONE, AND SHALL BE ENTITLED TO THE BENEFITS OF THIS AGREEMENT EQUALLY AND
PROPORTIONATELY WITH ANY AND ALL OTHER WARRANT CERTIFICATES DULY EXECUTED AND
DELIVERED HEREUNDER.
THE PROVISIONS OF THIS SECTION 10.4 ARE EXCLUSIVE AND SHALL PRECLUDE (TO
THE EXTENT LAWFUL) ALL OTHER RIGHTS OR REMEDIES WITH RESPECT TO THE REPLACEMENT
OF MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES.
SECTION 10.5. MISCELLANEOUS RIGHTS. THE RIGHTS OF HOLDERS UPON THE
OCCURRENCE OF THE EVENTS SET FORTH IN THIS AGREEMENT ARE CUMULATIVE. IF MORE
THAN ONE SUCH EVENT SHALL OCCUR AND THE PERIODS FOLLOWING THE OCCURRENCE OF SUCH
EVENTS AND PRIOR TO THE CLOSING OF THE TRANSACTIONS THAT ARE THE SUBJECT OF SUCH
EVENTS OVERLAP, EACH HOLDER MAY EXERCISE SUCH RIGHTS ARISING THEREFROM AS SUCH
HOLDER MAY ELECT WITHOUT ANY CONDITION IMPOSED UPON SUCH EXERCISE NOT CONTAINED
IN THIS AGREEMENT.
NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES INVOLVED IN ANY PROPOSED
TRANSACTIONS THAT IS THE SUBJECT OF SUCH AN EVENT SHALL HAVE ANY OBLIGATION TO
THE HOLDERS TO CONSUMMATE ANY SUCH PROPOSED TRANSACTION ONCE AN AGREEMENT OR
AGREEMENT IN PRINCIPLE OR DECISION TO PROCEED WITH RESPECT THERETO IS REACHED,
WHETHER ON THE TERMS FIRST PROPOSED OR AS REVISED, OR TO INCLUDE ANY HOLDER IN,
OR APPRISE ANY HOLDER OF, ANY NEGOTIATIONS OR DISCUSSIONS CONCERNING ANY SUCH
PROPOSED TRANSACTION AMONG THE PROSPECTIVE PARTIES THERETO, EXCEPT AS EXPRESSLY
PROVIDED HEREIN.
SECTION 10.6. NOTICES. (a) EXCEPT AS OTHERWISE PROVIDED IN SECTION
10.6(b), ANY NOTICE, DEMAND OR DELIVERY AUTHORIZED BY THIS AGREEMENT SHALL BE
SUFFICIENTLY GIVEN OR MADE WHEN MAILED IF SENT BY FIRST-CLASS MAIL, POSTAGE
PREPAID, ADDRESSED TO ANY HOLDER OF A WARRANT
12
AT SUCH HOLDER'S ADDRESS SHOWN ON THE REGISTER MAINTAINED BY THE WARRANT AGENT
PURSUANT TO SECTION 5.1 AND TO THE PARTIES AS FOLLOWS:
IF TO THE COMPANY: NBI, INC.
1880 INDUSTRIAL CIRCLE, SUITE F
LONGMONT, COLORADO 80501
ATTENTION: JAY H. LUSTIG, CHIEF EXECUTIVE OFFICER
IF TO THE WARRANT AGENT:
OR SUCH ADDRESS AS SHALL HAVE BEEN FURNISHED TO THE PARTY GIVEN OR MAKING SUCH
NOTICE, DEMAND OR DELIVERY.
(b) ANY NOTICE REQUIRED TO BE GIVEN BY THE COMPANY TO THE HOLDERS SHALL BE
MADE BY MAILING BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, TO THE HOLDERS AT
THEIR RESPECTIVE ADDRESSES SHOWN ON THE REGISTER OF THE COMPANY MAINTAINED BY
THE WARRANT AGENT. THE COMPANY HEREBY IRREVOCABLY AUTHORIZES THE WARRANT AGENT,
IN THE NAME AND AT THE EXPENSE OF THE COMPANY, TO MAIL ANY SUCH NOTICE UPON
RECEIPT THEREOF FROM THE COMPANY. ANY NOTICE THAT IS MAILED IN THE MANNER
HEREIN PROVIDED SHALL BE PRESUMED TO HAVE BEEN DULY GIVEN WHEN MAILED.
SECTION 10.7. PERSONS BENEFITING. THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE COMPANY AND THE WARRANT AGENT, AND THEIR
RESPECTIVE SUCCESSORS, ASSIGNS, BENEFICIARIES, EXECUTORS AND ADMINISTRATORS, AND
THE HOLDERS FROM TIME TO TIME OF THE WARRANTS. NOTHING IN THIS AGREEMENT IS
INTENDED OR SHALL BE CONSTRUED TO CONFER UPON ANY PERSON, OTHER THAN THE
COMPANY, THE WARRANT AGENT AND THE HOLDERS OF THE WARRANTS, ANY RIGHT, REMEDY OR
CLAIM UNDER OR BY REASON OF THIS AGREEMENT OR ANY PART HEREOF.
SECTION 10.8. COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH
TOGETHER CONSTITUTE ONE AND THE SAME INSTRUMENT.
SECTION 10.9. AMENDMENTS. THE COMPANY MAY, WITHOUT THE CONSENT OF THE
HOLDERS OF THE WARRANTS, BY SUPPLEMENTAL AGREEMENT OR OTHERWISE, MAKE ANY
CHANGES OR CORRECTIONS IN THIS AGREEMENT THAT IT SHALL HAVE BEEN ADVISED BY
COUNSEL (a) ARE REQUIRED TO CURE ANY AMBIGUITY OR TO CORRECT OR SUPPLEMENT ANY
PROVISION HEREIN WHICH MAY BE DEFECTIVE OR INCONSISTENT WITH ANY OTHER PROVISION
HEREIN OR (b) ADD TO THE COVENANTS AND AGREEMENTS OF THE COMPANY FOR THE BENEFIT
OF THE HOLDERS, OR SURRENDER ANY RIGHTS OR POWER RESERVED TO OR CONFERRED UPON
THE COMPANY IN THIS AGREEMENT; PROVIDED THAT, IN THE CASE OF (a) OR (b), SUCH
CHANGES OR CORRECTIONS SHALL NOT ADVERSELY AFFECT THE INTERESTS OF THE HOLDERS
IN ANY MATERIAL RESPECT. THE WARRANT AGENT SHALL AT THE REQUEST OF THE COMPANY
AND WITHOUT NEED OF INDEPENDENT INQUIRY AS TO WHETHER SUCH SUPPLEMENTAL
AGREEMENT IS PERMITTED BY THE TERMS OF THIS SECTION 10.9 JOIN WITH THE COMPANY
IN THE EXECUTION AND DELIVERY OF ANY SUCH
13
SUPPLEMENTAL AGREEMENTS, UNLESS IT AFFECTS THE WARRANT AGENT'S OWN RIGHTS,
DUTIES OR IMMUNITIES HEREUNDER IN WHICH CASE SUCH PARTY MAY, BUT SHALL NOT BE
REQUIRED TO, JOIN IN SUCH EXECUTION AND DELIVERY.
SECTION 10.10. TERMINATION. THIS AGREEMENT (OTHER THAN THE COMPANY'S
OBLIGATIONS WITH RESPECT TO WARRANTS PREVIOUSLY EXERCISED OR SURRENDERED FOR
PURCHASE UNDER ARTICLE III, AND WITH RESPECT TO INDEMNIFICATION UNDER SECTION
7.3) SHALL TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT ON THE EXPIRATION
DATE.
SECTION 10.11. APPLICABLE LAW. THIS AGREEMENT AND EACH WARRANT ISSUED
HEREUNDER AND ALL RIGHTS ARISING HEREUNDER SHALL BE GOVERNED BY THE LAW OF THE
STATE OF DELAWARE APPLICABLE TO CONTRACTS AND INSTRUMENTS EXECUTED AND TO BE
PERFORMED ENTIRELY IN SUCH STATE.
SECTION 10.12. HEADINGS. THE DESCRIPTIVE HEADINGS OF THE SEVERAL SECTIONS
OF THIS AGREEMENT ARE INSERTED FOR CONVENIENCE AND SHALL NOT CONTROL OR AFFECT
THE MEANING OR CONSTRUCTION OF ANY OF THE PROVISIONS HEREOF.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE
DULY EXECUTED, AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
NBI, INC.
A DELAWARE CORPORATION
BY:_____________________________
NAME:___________________________
TITLE:___________________________
_________________________________
AS WARRANT AGENT
BY:_____________________________
NAME:___________________________
TITLE:___________________________
14
EXHIBIT A
NBI, INC.
COMMON STOCK PURCHASE WARRANT
DATED: __________ ___, 1998
_______________
Holder: _____________________ Warrant No:______
Number of Warrants: ______________
_______________
THIS CERTIFIES THAT Holder is the owner of the number of Warrants set forth
above of NBI, Inc., a Delaware corporation (hereinafter called the "Company").
Each Warrant entitles the registered holder (the "Holder") to purchase one share
(collectively, "Warrant Shares") of Common Stock of the Company ("Common Stock")
at an exercise price per share of $1.20 (the "Purchase Price"), at any time
during the period commencing on the date of issuance hereof until 2:00 p.m.,
Mountain Standard Time, on December 31, 2004 (the "Expiration Date"). This
Warrant is issued in connection with an offering by the Company of up to
1,000,000 Units, each consisting of (a) ONE SHARE OF SERIES A CUMULATIVE
PREFERRED STOCK AND (b) TWO COMMON STOCK PURCHASE WARRANTS, EACH OF WHICH
ENTITLES THE HOLDERS THEREOF TO PURCHASE ONE SHARE OF COMMON STOCK. THE UNITS
HAVE BEEN ISSUED AND SOLD IN A PUBLIC OFFERING PURSUANT TO A REGISTRATION
STATEMENT ON FORM SB-2, AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
SEPTEMBER __, 1998, AMENDED ON ____________, AND DECLARED EFFECTIVE ON
__________, 1998 (THE "REGISTRATION STATEMENT"), AND A PROSPECTUS DATED
____________, 1998, FILED AS A PART OF SUCH REGISTRATION STATEMENT (REFERENCES
TO WHICH SHALL BE DEEMED TO INCLUDE ANY AND ALL SUPPLEMENTS AND AMENDMENTS THERE
TO, WHICH PROSPECTUS IS REFERRED TO HEREIN AS THE "PROSPECTUS").
The Purchase Price and number of shares of Common Stock of the Corporation
purchasable upon exercise of each Warrant evidenced hereby shall be subject to
adjustment from time to time as set forth in the Warrant Agreement (the "Warrant
Agreement"), dated as of __________, 1998, by and between the Corporation and
__________________, as Warrant Agent (the "Warrant Agent"). To the extent of
any inconsistencies between this Warrant and the Warrant Agreement, the Warrant
Agreement shall control.
The Warrants evidenced hereby are issued under and subject to the terms and
provisions contained in the Warrant Agreement, to all of which the Warrantholder
by acceptance hereof
consents. A copy of the Warrant Agreement is on file at the corporate office of
the Corporation.
The Warrants evidenced hereby may be exercised in whole or in part by
presentation of this Warrant Certificate with the Purchase Form attached hereto
duly executed (with a signature guarantee as provided hereon) and simultaneous
payment of the Purchase Price at the principal office of the Corporation.
Payment of such price shall be made in cash, by certified or official bank check
or any combination thereof.
Upon any partial exercise of the Warrants evidenced hereby, there shall be
signed and issued to the Warrantholder a new Warrant Certificate in respect of
the shares of Warrant Stock as to which the Warrants evidenced hereby shall not
have been exercised. These Warrants may be exchanged at the office of the
Warrant Agent by surrender of this Warrant Certificate properly endorsed for one
or more new Warrants of the same aggregate number of shares of Warrant Stock as
evidenced by the Warrant or Warrants exchanged. No fractional securities shall
be issued upon the exercise of rights to purchase hereunder, but the Corporation
shall pay the cash value of any fraction upon the exercise of one or more
Warrants. These Warrants are transferable at the office of the Warrant Agent in
the manner and subject to the limitations set forth in the Warrant Agreement.
This Warrant Certificate does not entitle any Warrantholder to any of the
rights of a stockholder of the Corporation.
NBI, INC.
By: ____________________________
Name:
Title:
Dated: _____________ __, 1998
ATTEST: [Seal]
_____________________________
Name:
Title:
NBI, INC.
COMMON STOCK PURCHASE WARRANT
PURCHASE FORM
NBI, INC. (the "Corporation")
1880 Industrial Circle, Suite F
Longmont, Colorado 80501
Attention: Marjorie Cogan
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
_________ shares of common stock of NBI, Inc. (the "Corporation") (the "Warrant
Stock") provided for therein, and requests that certificates for the Warrant
Stock be issued in the name of:
_____________________________________________________________________
(Please print or Type Name, Address and Social Security Number)
_____________________________________________________________________
_____________________________________________________________________
and, if said number of shares of Warrant Stock shall not be all the Warrant
Stock purchasable hereunder, that a new Warrant Certificate for the balance of
the Warrant Stock purchasable under the within Warrant Certificate be registered
in the name of the undersigned Warrantholder or his assignee as below indicated
and delivered to the address stated below.
Dated:_________________
Name of Warrantholder
or Assignee: _________________________
(Please Print)
Address: _________________________
_________________________
Signature: _________________________
Note: The above signature must correspond with the name as it appears upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, unless these Warrants have been assigned.
Signature Guaranteed:_____________________________
(Signature must be guaranteed by a bank, trust company or savings and loan
association, having an office or correspondent in the United States or by a
member firm of a registered securities exchange or the National Association of
Securities Dealers, Inc.)
ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
right to purchase ______________ shares of Warrant Stock represented by the
within Warrant Certificate unto, and requests that a certificate for such
Warrant be issued in the name of:
_____________________________________________________________________
(Name and Address of Assignee Must be Printed or Typewritten)
_____________________________________________________________________
_____________________________________________________________________
hereby irrevocably constituting and appointing _______________ as attorney to
transfer said Warrants on the books of the Corporation, with full power of
substitution in the premises and, if said number of shares of Warrant Stock
shall not be all of the Warrant Stock purchasable under the within Warrant
Certificate, that a new Warrant Certificate for the balance of the Warrant Stock
purchasable under the within Warrant Certificate be registered in the name of
the undersigned Warrantholder and delivered to such Warrantholder's address as
then set forth on the Corporation's books.
Dated:_______________ ____________________________
Signature of Registered Holder
Note: The above signature must correspond with the name as it appears upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed:_____________________________
(Signature must be guaranteed by a bank, trust company or savings and loan
association having an office or correspondent in the United States or by a
member firm of a registered securities exchange or the National Association of
Securities Dealers, Inc.)