General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 21± 87K
2: EX-1 Underwriting Agreement 61± 255K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 29± 120K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 34± 121K
5: EX-4 Instrument Defining the Rights of Security Holders 10± 35K
EX-2 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Exhibit Table of Contents
Exhibit 2
CONFORMED COPY
WARRANT AGREEMENT
dated as of April 10, 1995
between
National Health Laboratories Holdings Inc.
and
American Stock Transfer & Trust
Company, as Warrant Agent
TABLE OF CONTENTS(1)
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions................................................ 4
ARTICLE 2
ISSUE, FORM, EXERCISE
SECTION 2.1 Amount Issued.............................................. 7
SECTION 2.2 Initial Issuance........................................... 7
SECTION 2.3 Form of Warrant Certificate................................ 7
SECTION 2.4 Execution of Warrant Certificates.......................... 7
SECTION 2.5 Notice to Holders with Respect to Exercise and Redemption.. 8
SECTION 2.6 Exercise of Warrants....................................... 8
SECTION 2.7 Redemption................................................. 9
SECTION 2.8 Certain Action............................................. 9
SECTION 2.9 No Voting Rights........................................... 9
SECTION 2.10 Warrant Shares to be Fully Paid and Nonassessable.......... 10
SECTION 2.11 No Fractional Warrants..................................... 10
SECTION 2.12 No Fractional Warrant Shares............................... 10
ARTICLE 3
TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS, LISTING
SECTION 3.1 Ownership of Warrants....................................... 11
SECTION 3.2 Registration and Countersignature........................... 11
SECTION 3.3 Registration of Transfers and Exchanges..................... 11
SECTION 3.4 Cancellation of Warrants.................................... 12
SECTION 3.5 Payments of Taxes........................................... 12
SECTION 3.6 Mutilated or Missing Warrant Certificates................... 12
SECTION 3.7 Governmental Approvals and Stock Exchange Listing........... 12
SECTION 3.8 Transfer to Comply with the Securities Laws................. 13
SECTION 3.9 Company Option to Repurchase Warrants....................... 13
ARTICLE 4
ANTI-DILUTION PROVISIONS
SECTION 4.1 Adjustment of Exercise Price and Number of Shares Purchasable
or Number of Warrants...................................... 13
SECTION 4.2 Stock Dividends, Stock Splits, Combinations and Stock
Reclassifications.......................................... 13
SECTION 4.3 Rights, Options and Warrants................................ 14
SECTION 4.4 Certain Distributions....................................... 14
SECTION 4.5 Capital Reorganizations and Reclassifications............... 14
SECTION 4.6 Consolidations, Mergers, Sales and Conveyances.............. 15
SECTION 4.7 Adjustment Rules............................................ 15
SECTION 4.8 Notice to Holders with Respect to Adjustments............... 17
ARTICLE 5
WARRANT AGENT
SECTION 5.1 Appointment of Warrant Agent................................ 17
SECTION 5.2 Warrant Agent............................................... 17
SECTION 5.3 Change of Warrant Agent..................................... 19
SECTION 5.4 Merger, Consolidation or Change of Name of Warrant Agent.... 19
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Notices......................................................20
SECTION 6.2 Supplements and Amendments.................................. 20
SECTION 6.3 Termination................................................. 21
SECTION 6.4 Governing Law............................................... 21
SECTION 6.5 Persons Benefiting.......................................... 21
SECTION 6.6 Counterparts................................................ 21
SECTION 6.7 Headings.................................................... 21
_________________
(1) This Table of Contents is not a part of the Agreement.
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement") is dated as of April
10, 1995 between National Health Laboratories Holdings Inc., a Delaware
corporation (the "Company"), and American Stock Transfer & Trust Company as
warrant agent (the "Warrant Agent").
WHEREAS, as described in the succeeding two recitals, the
Company proposes to issue and deliver its warrant certificates (the "Warrant
Certificates") evidencing Common Stock Purchase Warrants (the "Warrants") to
purchase, under certain circumstances, up to an aggregate of 23,000,000 shares
(the "Warrant Shares"), subject to adjustment, of its Common Stock (as defined
below);
WHEREAS, the Company currently intends to declare a dividend to
holders of record of Common Stock as of April 21, 1995 (the "Warrant
Distribution Record Date") of 0.16308 of a Warrant per share of Common Stock
which dividend shall be paid April 28, 1995 (the "Warrant Distribution");
WHEREAS, the Company intends to issue and sell on the terms and
subject to the conditions set forth in the Merger Agreement (as defined below)
and herein to Hoffmann-La Roche Inc. ("Roche") 8,325,000 Warrants (the "Roche
Warrants") for an aggregate purchase price of $51,048,900;
WHEREAS, each Warrant shall entitle the registered holder
thereof, on the terms and conditions hereof, to acquire from the Company one
share of Common Stock, subject to adjustment; and
WHEREAS, the Warrant Agent, at the request of the Company, has
agreed to act as the agent of the Company in connection with the issuance,
registration, transfer, exchange, exercise and conversion of Warrants.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized
by law or executive order to close.
"Close of Business" means 5:00 P.M. New York City time.
"Closing Price" means, with respect to the Warrants or shares
of Common Stock, for any day the last sale price, regular way, or, if no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, for such day, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the NYSE or, if the Warrants or shares of Common Stock,
as the case may be, are not listed or admitted to trading on such exchange, as
reported on the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the Warrants or shares of Common Stock, respectively, are listed or
admitted to trading, or if the Warrants or shares of Common Stock, as the case
may be, are not listed or admitted to trading on any national securities
exchange, as reported on NASDAQ/NMS or, if the Warrants or shares of Common
Stock, as the case may be, are not listed or admitted to trading on
NASDAQ/NMS, as reported on NASDAQ.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Company" has the meaning set forth in the preamble to this
Warrant Agreement and its successors and assigns.
"Exercise Price" means the purchase price per share of Common
Stock to be paid upon the exercise of each Warrant in accordance with the
terms hereof, which price shall be $22.00 per share, subject to adjustment
from time to time pursuant to Article 4 hereof.
"Expiration Date" means April 28, 2000, or such other date as
may be determined pursuant to Section 2.7 hereof.
"Fractional Warrant" has the meaning set forth in Section 2.11
hereof.
"Fractional Warrant Holder" has the meaning set forth in
Section 2.11 hereof.
"Fractional Warrant Proceeds" has the meaning set forth in
Section 2.11 hereof.
"Fractional Warrant Share" has the meaning set forth in Section
2.12 hereof.
"Fractional Warrant Share Holder" has the meaning set forth in
Section 2.12 hereof.
"Fractional Warrant Share Proceeds" has the meaning set forth
in Section 2.12 hereof.
"Holder" means, at any time, a registered holder as shown in
the Warrant Register of a Warrant outstanding at such time.
"Market Disruption Event" means one of the following events,
circumstances or causes: (i) the suspension of or an imposition of a material
limitation on trading in shares generally or (ii) any outbreak or escalation
of hostilities or other national or international calamity or crisis.
"Market Price" as at any date of determination means the
average of the daily Closing Prices of a share of Common Stock over the
Valuation Period applicable to such date of determination.
"Merger Agreement" means the Agreement and Plan of Merger dated
as of December 13, 1994, among the Company, HLR Holdings Inc., Roche
Biomedical Laboratories, Inc. and, for the purposes stated therein, Roche.
"NASD" means the National Association of Securities Dealers,
Inc.
"NASDAQ" means the NASD Automated Quotation System.
"NASDAQ/NMS" means the NASDAQ--National Market System or its
successor.
"NHL Stockholder Meeting" shall have the meaning ascribed
thereto in the Merger Agreement.
"NYSE" means the New York Stock Exchange, Inc.
"Person" means an individual, a partnership, a corporation, a
joint venture, a trust, an incorporated or unincorporated organization, a
government or any department or agency thereof.
"Redemption" has the meaning set forth in Section 2.7 hereof.
"Redemption Amount" means, in respect of any Warrant, the
amount equal to the excess (if any) of the Market Price for the Valuation
Period applicable to the Expiration Date over the Exercise Price.
"Roche" has the meaning set forth in the recitals of this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Trading Day" means any day on which either the Warrants or
shares of Common Stock, as the case may be, are traded on the applicable
securities exchange or in the applicable securities market.
"Transfer Agent" has the meaning set forth in Section 2.6(c)
hereof.
"Valuation Period" for any computation of Market Price shall
mean the 10 consecutive Trading Days (each, a "Valuation Date") commencing 15
Trading Days and ending five Trading Days before the applicable date as of
which the Market Price is being determined.
"Warrant Agent" means the warrant agent named in the preamble
of this Agreement or the successor or successors of such Warrant Agent
appointed in accordance with the terms hereof.
"Warrant Agent Office" means the office or agency maintained by
the Warrant Agent in New York, New York (or such other offices or agencies as
may be designated by the Warrant Agent) for the purpose of exchanging,
transferring and exercising the Warrants.
"Warrant Certificate" has the meaning set forth in the recitals
of this Agreement.
"Warrant Distribution" has the meaning set forth in the
recitals of this Agreement
"Warrant Distribution Record Date" has the meaning set forth in
the recitals hereof.
"Warrant Register" means the register maintained by the Warrant
Agent in which the issue, transfer and cancellation of the Warrants are
registered.
"Warrants" has the meaning set forth in the recitals of this
Agreement.
"Warrant Share" has the meaning set forth in the recitals of
this Agreement.
All references herein to "days" shall mean calendar days unless
otherwise specified. All terms defined in this Agreement in the singular
shall have a comparable meaning in the plural and vice versa.
ARTICLE 2
ISSUE, FORM, EXERCISE
SECTION 2.1 Amount Issued. Subject to the other provisions of
this Agreement (including Article 4), Warrants to purchase no more than
23,000,000 Warrant Shares may be issued and delivered hereunder.
SECTION 2.2 Initial Issuance. Warrant Certificates
representing the Warrants shall be initially issued by the Warrant Agent at
the time, in the denominations and to the Persons so directed by the Company.
Upon the declaration of the Warrant Distribution, the Company shall execute
and deliver to the Warrant Agent for countersignature Warrant Certificates
representing a number of Warrants equal to the product of (x) the number of
outstanding shares of Common Stock on the Warrant Distribution Record Date and
(y) 0.16308. At or prior to the Effective Time (as defined in the Merger
Agreement) the Company shall execute and deliver to the Warrant Agent for
countersignature Warrant Certificates representing the Roche Warrants.
SECTION 2.3 Form of Warrant Certificate. The Warrant shall be
in registered form only. The Warrant Certificates and the forms of election
to exercise Warrants and of assignment to be printed on the reverse side
thereof shall be in substantially the form set forth in Exhibit A hereto
together with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 2.4 Execution of Warrant Certificates. (a) Warrant
Certificates shall be signed on behalf of the Company by the Chairman of its
Board of Directors, its Chief Executive Officer, its President, a Vice
President or its Treasurer and attested by its Secretary or Assistant
Secretary, under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the current or any
future Chairman of the Board, Chief Executive Officer, President, Vice
President, Treasurer, Secretary or Assistant Secretary and may be imprinted or
otherwise reproduced on the Warrant Certificates and for that purpose the
Company may adopt and use the facsimile signature of any person who shall have
been Chairman of the Board, Chief Executive Officer, President, Vice
President, Treasurer, Secretary or Assistant Secretary, notwithstanding the
fact that at the time the Warrant Certificates shall be countersigned and
delivered or disposed of such person shall have ceased to hold such office.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
(b) If any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not
ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by any person who, at the actual date of the
execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the
execution of this Agreement any such person was not such officer.
SECTION 2.5 Notice to Holders with Respect to Exercise and
Redemption. Not earlier than 90 days nor later than 60 days prior to the
Expiration Date, the Company shall deliver to the Warrant Agent notice in
writing, which notice shall be irrevocable, stating whether or not it shall
have elected to redeem the Warrants on the Expiration Date in accordance with
Section 2.7 Promptly after receipt of the Company's notice, the Warrant Agent
shall mail a notice to all Holders at the addresses set forth on the Warrant
Register to the effect that (as applicable) each outstanding Warrant shall be
redeemed for the Redemption Amount on the Expiration Date or that such
Warrants shall not be redeemed and describing the exercise procedure set forth
in Section 2.6 (which notice shall include the statement that the Warrants
will terminate and become void as of the Close of Business on the Expiration
Date and that failure by a Holder to comply with the exercise procedures will
result in the forfeiture of such Holder's rights with respect to such Holder's
Warrants).
SECTION 2.6 Exercise of Warrants. (a) Subject to the
provisions of this Agreement, each Warrant shall be exercisable only prior to
the Close of Business on the Expiration Date and only if the Company shall not
have duly elected to effect a Redemption pursuant to Section 2.7. The Warrants
shall expire at and become null and void and have no value and no Person shall
have any rights thereto as of the Close of Business on the Expiration Date,
provided, however, that, notwithstanding such expiration, Holders that have
properly exercised Warrants in accordance with this Section 2.6 shall be
entitled to receive Warrant Shares with respect to such Holders' Warrants as
provided in subsection (b) unless the Company shall have elected to effect a
Redemption pursuant to Section 2.7, in which case each Holder shall be
entitled to received the Redemption Amount as described in Section 2.7.
(b) Subject to Section 2.7, for each Warrant held, the Holder
thereof shall have the right to purchase from the Company (and the Company
shall issue and sell to such Holder) one fully paid and non-assessable share
of Common Stock at the Exercise Price (in each case subject to adjustment as
hereinafter provided) upon (i) surrender to the Warrant Agent, at a Warrant
Agent Office of the Warrant Certificate evidencing such Warrant, with the form
of election to exercise on the reverse thereof properly completed and signed
by the Holder or Holders thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney, and (ii) payment of the Exercise
Price for the number of Warrant Shares in respect of which such Warrant is
being exercised. Such surrender and payment (if applicable) may be made and
shall be accepted by the Warrant Agent at any time during the 45 day period
immediately preceding the Close of Business on the Expiration Date, but any
Warrants so surrendered shall not be deemed to be exercised until the
Expiration Date. Payment of the Exercise Price shall be made by a certified
or official bank check payable to the order of the Warrant Agent for the
account of the Company or by wire transfer of funds to an account designated
by the Company for such purpose. The Warrants evidenced by a Warrant
Certificate shall be exercisable, at the election of the Holder thereof,
either in their entirety or in part. Except as expressly provided to the
contrary in Article 4, no adjustments shall be made for any cash dividends or
other cash distributions on Warrant Shares issuable upon the exercise of a
Warrant.
(c) Upon the surrender of each Warrant Certificate in
accordance with subsection (b) above and payment of the per share Exercise
Price (and an amount representing any transfer taxes payable with respect to
the issuance of the relevant Warrant Shares) immediately following the
Expiration Date, the Company shall issue and cause its transfer agent for the
Common Stock ("Transfer Agent") to deliver with all reasonable dispatch to or
upon the written order of the Holder and in such name or names as such Holder
may designate, a certificate or certificates for the number of full Warrant
Shares so purchased upon the exercise of such Warrant or Warrants together
with cash as provided in Section 2.12 in respect of any Fractional Warrant
Share (as defined below) otherwise issuable upon such exercise. Such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the Expiration Date; provided, however,
that if, at such date, the transfer books for the Warrant Shares shall be
closed, the certificates for the Warrant Shares in respect of which such
Warrants are then exercised shall be issuable as of the date on which such
books shall next be opened and until such date Holders shall be under no duty
to deliver any certificates for such Warrant Shares; provided further,
however, that such transfer books, unless otherwise required by law, shall not
be closed at any one time for a period longer than 20 calendar days.
SECTION 2.7 Redemption. (a) Notwithstanding Section 2.6, the
Company shall have the right to redeem all, but not less than all, of the
Warrants on the Expiration Date by payment to each Holder as of the Expiration
Date in cash of the Redemption Amount with respect to the Warrants held by
such Holder as of the Expiration Date (a "Redemption"), but only if the
Company shall have timely delivered to the Warrant Agent the notice of its
election to redeem the Warrants referred to in Section 2.5. If the Company
has elected to redeem the Warrants as herein provided, at or immediately prior
to the Expiration Date, the Company shall cause to be transferred to the
Warrant Agent an amount in immediately available funds equal to the aggregate
Redemption Amount for all outstanding Warrants for payment by the Warrant
Agent to the Holders as of the Expiration Date in respect of the Warrants held
as of the Expiration Date. If the Company shall have duly elected to redeem
the Warrants but the aggregate Redemption Amount is zero or less than zero, no
amount shall be required to be paid by the Company in respect of the
redemption of the Warrants but the Warrants shall nonetheless be deemed to
have been redeemed.
(b) If the Company has duly elected to redeem the Warrants
and the Company determines in its sole discretion that a Market Disruption
Event has occurred and is continuing on any day that but for the occurrence
of a Market Disruption Event would have been a Valuation Date with respect
to the determination of the Redemption Amount, then such day shall not be
deemed to be a Valuation Date and the Valuation Date shall instead be
deemed to be the next Trading Day on which the Company determines that no
Market Disruption Event is continuing and the Valuation Period shall be
extended accordingly. If the Valuation Period shall have been so extended,
then the Expiration Date for purposes of the Redemption shall be deemed to
be the fifth Trading Day after the end of the Valuation Period as so
extended. In the event that the Company determines that a Market
Disruption Event has occurred, the Company shall give telephonic notice
(promptly confirmed in writing) of such event to the Warrant Agent.
SECTION 2.8 Certain Action. Before taking any action that
would cause an adjustment pursuant to Article 4 reducing the Exercise Price
below the then par value (if any) of the Warrant Shares issuable upon exercise
of the Warrants, the Company will take any corporate action that may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares at the Exercise
Price as so adjusted.
SECTION 2.9 No Voting Rights. Prior to the exercise of the
Warrants and the issuance of Warrant Shares in respect thereof, no Holder, 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 2.10 Warrant Shares to be Fully Paid and Nonassessable.
The Company covenants that all Warrant Shares issued upon exercise of the
Warrants will, upon payment of the applicable Exercise Price, delivery of
properly completed forms of election to exercise and issuance of such Warrant
Shares in accordance with the terms of this Agreement, be fully paid and
nonassessable and free from all liens, charges and security interests created
by or imposed upon the Company with respect to the issuance and holding
thereof. The Company shall no less than 50 days prior to the Expiration Date
(unless the Company shall have elected to effect a Redemption pursuant to
Section 2.7) at all times thereafter until issuance of Warrant Shares in
accordance herewith keep reserved out of its authorized shares of Common Stock
a number of shares of Common Stock sufficient to provide for the exercise of
all outstanding Warrants.
SECTION 2.11 No Fractional Warrants. (a) No certificates or
scrip representing fractional Warrants shall be issued to any Holder in the
Warrant Distribution. As promptly as practicable following the Warrant
Distribution Record Date, the Warrant Agent shall determine with respect to
each Person entitled to receive Warrants pursuant to the Warrant Distribution
the excess of (x) the number of Warrants delivered to the Warrant Agent by the
Company pursuant to Section 2.2 with respect to each such Person over (y) the
number of whole Warrants to be distributed with respect to such Person (such
excess fraction of a Warrant being hereinafter referred to in connection with
each such Person as a "Fractional Warrant"). As soon after the Warrant
Distribution Record Date as practicable, the Warrant Agent, as agent for
Holders otherwise entitled to receive Fractional Warrants (each, a "Fractional
Warrant Holder"), shall aggregate and sell in normal transactions the
Fractional Warrants for all Fractional Warrant Holders at then available
prices on the NYSE. Until the net proceeds of such sale or sales (the
"Fractional Warrant Proceeds") have been distributed to the Fractional Warrant
Holders, the Warrant Agent shall hold the Fractional Warrant Proceeds in trust
for the Fractional Warrant Holders. The Company shall pay, and deduct from
the Fractional Warrant Proceeds, all commissions, transfer taxes and other
out-of-pocket transaction costs, including the expenses and compensation of
the Warrant Agent, incurred in connection with such sale of the Fractional
Warrants. The Warrant Agent shall determine the portion of the net Fractional
Warrant Proceeds to which each Fractional Warrant Holder shall be entitled, if
any, by multiplying the net Fractional Warrant Proceeds amount by a fraction,
the numerator of which is the Fractional Warrant to which such Fractional
Warrant Holder would otherwise be entitled and the denominator of which is the
aggregate Fractional Warrants to which all Fractional Warrant Holders would
otherwise be entitled. As soon as practicable after the determination of the
amount of Fractional Warrant Proceeds, if any, to be paid in cash to each
Fractional Warrant Holder in lieu of any Fractional Warrants, the Warrant
Agent shall make available such amounts, without interest, to each such
Fractional Warrant Holder.
(b) If Warrants are to be issued Holders pursuant to Section
4.7(h), the Company and the Warrant Agent shall, prior to such issuance,
establish a procedure corresponding to the procedure described in subsection
(a) above such that Holders that would otherwise receive Fractional Warrants
shall instead receive the appropriate amount of the Fractional Warrant
Proceeds thereof.
SECTION 2.12 No Fractional Warrant Shares. Notwithstanding any
adjustment pursuant to Article 4 in the number of Warrant Shares purchasable
upon the exercise of a Warrant, no certificates or scrip representing
fractional Warrant Shares shall be issued upon exercise of a Warrant. As
promptly as practicable following the Expiration Date, if the Company shall
not have elected to effect a Redemption pursuant to Section 2.7, the Transfer
Agent shall determine the excess of (x) the number of Warrant Shares delivered
to the Transfer Agent by the Company with respect to each Holder pursuant to
Section 2.6 over (y) the aggregate number of whole Warrant Shares to be issued
with respect to such Holder (such excess being hereinafter referred to in
connection with each such Holder as the "Fractional Warrant Share"). As soon
after the Expiration Date as practicable, the Transfer Agent, as agent for
Holders otherwise entitled to receive Fractional Warrant Shares (each, a
"Fractional Warrant Share Holder"), unless the Company has elected to effect a
Redemption pursuant to Section 2.7, shall aggregate and sell in normal
transactions the Fractional Warrant Shares for all the Fractional Warrant
Share Holders at then available prices on the NYSE or on the principal United
States securities exchange on which the Common Stock is listed, if any, or on
NASDAQ, if the Common Stock is quoted on NASDAQ. Until the net proceeds of
such sale or sales (the "Fractional Warrant Share Proceeds") have been
distributed to such Holders, the Transfer Agent will hold the Fractional
Warrant Share Proceeds in trust for the Fractional Warrant Share Holders. The
Company shall pay, and deduct from the Fractional Warrant Share Proceeds, all
commissions, transfer taxes and other out-of-pocket transaction costs,
including the expenses and compensation of the Transfer Agent, incurred in
connection with such sale of the Fractional Warrant Shares. The Transfer
Agent shall determine the portion of the net Fractional Warrant Share Proceeds
to which each Fractional Warrant Share Holder shall be entitled, if any, by
multiplying the net Fractional Warrant Share Proceeds amount by a fraction,
the numerator of which is the Fractional Warrant Share to which such
Fractional Warrant Share Holder would otherwise be entitled and the
denominator of which is the aggregate amount of Fractional Warrant Shares to
which all such Fractional Warrant Share Holders would otherwise be entitled.
As soon as practicable after the determination of the amount of the net
Fractional Warrant Share Proceeds, if any, to be paid in cash to each such
Fractional Warrant Share Holder in lieu of its Fractional Warrant Share, the
Transfer Agent shall make available such amounts, without interest, to each
such Fractional Warrant Share Holder.
ARTICLE 3
TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS, LISTING
SECTION 3.1 Ownership of Warrants. The Company and the Warrant
Agent may deem and treat any Holder as the absolute owner for all purposes,
notwithstanding any notation of ownership or other writing on the relevant
Warrant Certificate made by anyone, and shall not be affected by any notice to
the contrary until due presentation of such Warrant Certificate for
registration and transfer as provided in this Article 3.
SECTION 3.2 Registration and Countersignature. Warrant
Certificates shall be countersigned manually or by facsimile and dated the
date of countersignature by the Warrant Agent and shall not be valid for
any purpose unless so countersigned. The Warrant Certificates shall be
numbered and shall be registered in the Warrant Register. The
countersignature of the Warrant Agent shall be that of a duly authorized
employee of the Warrant Agent.
SECTION 3.3 Registration of Transfers and Exchanges. (a) The
Warrant Agent shall from time to time register the transfer of any outstanding
Warrant Certificate in the Warrant Register, upon surrender of such Warrant
Certificate, duly endorsed, and accompanied by a written instrument or
instruments of transfer in a form satisfactory to the Warrant Agent, duly
signed by the Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (i) a bank or trust company, (ii) a broker or dealer that is a
member of the NASD or (iii) a member of a national securities exchange, and
funds sufficient to pay and transfer taxes payable with respect to such
transfer. Upon any such registration or transfer, a new Warrant Certificate
shall be issued to the transferee.
(b) Warrant Certificates may be exchanged at the option of the
holder or holders thereof, when surrendered to the Warrant Agent at a Warrant
Agent Office, or at the offices of any successor Warrant Agent as provided in
Section 5.3 hereof, for another Warrant Certificate or other Warrant
Certificates of like tenor and representing in the aggregate a like number of
Warrants.
(c) Notwithstanding paragraphs (a) and (b) above, the Warrant
Agent shall not be required to transfer or exchange any Warrant Certificate
from and after the 105th day preceding the scheduled Expiration Date provided
that if, in the notice provided by the Company pursuant to Section 2.5, the
Company shall not have elected to redeem the Warrants, then the Warrant Agent
shall permit transfers or exchanges of Warrant Certificates from and after the
mailing of the notice to Holders referred to in Section 2.5 but shall not be
required to transfer or exchange any Warrant Certificate from and after the
15th day preceding the Expiration Date.
SECTION 3.4 Cancellation of Warrants. If the Company shall
purchase or otherwise acquire Warrants, the Company may deliver the Warrant
Certificates representing such Warrants to the Warrant Agent to be canceled by
it and retired. The Warrant Agent shall cancel all Warrant Certificates so
surrendered.
SECTION 3.5 Payments of Taxes. The Company will pay any
documentary stamp taxes attributable to the initial issuance of Warrants and
of Warrant Shares upon the exercise of Warrants; provided, that the Company
shall not be required to pay any tax or taxes which may be payable in respect
of any transfer involved in the issue of any Warrant Certificates or any
certificates for Warrant Shares in a name other than the registered holder of
Warrant Certificate surrendered upon the exercise of a Warrant, and the
Company shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 3.6 Mutilated or Missing Warrant Certificates. (a) If
(i) any mutilated Warrant Certificate is surrendered to the Warrant Agent or
(ii) 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 hold each of them harmless with respect
thereto, 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.
(b) Upon the issuance of any new Warrant Certificate under
this Section 3.6 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.
(c) Every new Warrant Certificate executed and delivered
pursuant to this Section 3.6 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 Warrant Agreement equally and proportionately with any and
all other Warrant Certificates duly executed and delivered hereunder.
SECTION 3.7 Governmental Approvals and Stock Exchange Listing.
The Company from time to time will use its best efforts (a) to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and to file such documents under federal and state securities
acts and laws, which may be or become requisite in connection with the
issuance, sale, transfer and delivery of the Warrant Certificates, the
exercise of the Warrants and the issuance, sale, transfer and delivery of the
Warrant Shares issued upon exercise of Warrants (including, without
limitation, causing a registration statement under the Securities Act in
respect of the Warrant Shares to be filed and declared effect but, subject to
the Company's other contractual obligations, not including maintaining an
effective registration statement for purposes of resale of Warrant Shares),
provided, however, if any such permits, consents, approvals or documents are
not so obtained or effective, the Company will immediately notify the Warrant
Agent; (b) to have the Warrants listed on the NYSE or on the principal United
States securities exchange on which the Common Stock is listed, if any, or
quoted on NASDAQ if the Common Stock is so quoted; and (c) immediately upon
the issuance of Warrant Shares upon exercise of Warrants, to have such Warrant
Shares listed on the NYSE or on the principal United States securities
exchange or exchanges on which the Common Stock is listed, if any, or quoted
on NASDAQ if the Common Stock is so quoted. The Company shall cause the
Warrants to be delisted on the NYSE or cease to be quoted, as the case may be,
effective as of the Close of Business on the Expiration Date. Notwithstanding
anything in this Agreement to the contrary, in no event shall a Holder be
entitled to exercise a Warrant unless a registration statement filed under the
Securities Act in respect of the Warrant Shares is then effective (unless in
the opinion of counsel to the Company an exemption from the registration
requirements is available under the Securities Act at the time of such
exercise).
SECTION 3.8 Transfer to Comply with the Securities Laws.
Neither the Warrants nor any of the Warrant Shares, nor any interest in
either, may be sold, assigned, pledged, hypothecated, encumbered or in any
other manner transferred or disposed of, in whole or in part, except in
compliance with applicable United States federal and state securities laws and
the terms and conditions hereof and thereof.
SECTION 3.9 Company Option to Repurchase Warrants. The Company
and its subsidiaries shall have the option, in their sole discretion, at any
time or from time to time, to purchase Warrants (i) in the public market, (ii)
by tender or exchange offer available to all Holders at any price or (iii) in
private transactions at a price not more than ten percent (10%) over the
Market Price of the Warrants as of closing date of each such transaction
respectively. Warrants acquired by the Company or its subsidiaries shall be
canceled and shall not be available for reissuance or resale.
ARTICLE 4
ANTI-DILUTION PROVISIONS
SECTION 4.1 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of Warrant
Shares purchasable upon the exercise of each Warrant and the number of
Warrants outstanding are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Article 4.
SECTION 4.2 Stock Dividends, Stock Splits, Combinations and
Stock Reclassifications. If the Company shall (i) pay a dividend on its
shares of capital stock (including Common Stock) in shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock or (iv) issue any shares of its capital stock in a reclassification of
the Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
in each case, other than the Merger pursuant to the Merger Agreement, the
number of Warrant Shares purchasable upon exercise of each Warrant immediately
prior thereto shall be adjusted so that each Holder shall be entitled upon
exercise to receive the kind and number of Warrant Shares or other securities
of the Company which such Holder would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this Section
4.2 shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
SECTION 4.3 Rights, Options and Warrants. If the Company shall
issue any rights, options or warrants to holders of its outstanding Common
Stock (other than pursuant hereto, pursuant to stock option plans or similar
plans approved by the Board of Directors of the Company or pursuant to the
Merger Agreement), without payment of additional consideration by such
holders, entitling them (for a period expiring within 45 days after the record
date mentioned below) to subscribe for or purchase shares of Common Stock at a
price per share that is lower than the Market Price per share of Common Stock
at the record date mentioned below, the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon exercise
of each Warrant by a fraction, of which the numerator shall be (i) the number
of shares of Common Stock outstanding on the record date for the issuance of
such rights, options or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the
denominator shall be (ii) the number of shares of Common Stock outstanding on
the record date for the issuance of such rights, options or warrants plus the
number of shares which the aggregate offering price of the total number of
shares of Common Stock so offered would purchase at the Market Price per share
of Common Stock at such record date. Such adjustment shall be made whenever
such rights, options or warrants are issued, and shall become effective
immediately on the date of issuance retroactive to the record date for the
determination of stockholders entitled to receive such rights, options or
warrants.
SECTION 4.4 Certain Distributions. If the Company shall
distribute to all holders of its shares of Common Stock evidences of its
indebtedness of assets (excluding cash dividends or distributions payable out
of consolidated earnings or earned surplus and dividends or distributions
referred to Section 4.2) or rights, options or warrants or convertible or
exchangeable securities containing the right to subscribe for or purchase
shares of Common Stock (excluding those referred to in Section 4.3), then in
each case the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number of
Warrant Shares theretofore purchasable upon the exercise of each Warrant, by a
fraction, of which the numerator shall be (i) the then current Market Price
per share of Common Stock on the date of such distribution, and of which the
denominator shall be (ii) the then current Market Price per share of Common
Stock on the date of such distribution, less the then fair value (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights, options or
warrants or convertible or exchangeable securities applicable to one share of
Common Stock. Such adjustment shall be made whenever any such distribution is
made, and shall become effective on the date of distribution retroactive to
the record date for the determination of stockholders entitled to receive such
distribution.
SECTION 4.5 Capital Reorganizations and Stock
Reclassifications. In the event of any capital reorganization or any
reclassification of the Common Stock (except as provided in Section 4.2,
4.3, 4.4 or 4.6), any Holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Common Stock to which such Holder would
have become entitled upon exercise immediately prior to such reorganization
or reclassification, the shares (of any class or classes) or other
securities or property of the Company that such Holder would have been
entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if such Holder's Warrants had been
exercised immediately prior thereto; and in any such case, appropriate
provision (as determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive and shall be evidenced by
a resolution filed with the Warrant Agent) shall be made for the
application of this Article 4 with respect to the rights and interests
thereafter of the Holders (including the allocation of the adjusted
Exercise Price between or among shares of classes of capital stock), to the
end that this Article 4 (including the adjustments of the number of shares
of Common Stock or other securities purchasable and the Exercise Price
thereof) shall thereafter be reflected, as nearly as reasonably
practicable, in all subsequent exercises of the Warrants for any shares or
securities or other property thereafter deliverable upon the exercise of
the Warrants.
SECTION 4.6 Consolidations, Mergers, Sales and Conveyances. In
case of any consolidation of the Company with or merger of the Company into
another corporation 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, the Company or such successor or purchasing corporation, as the
case may be, shall execute with the Warrant Agent an agreement that each
Holder shall have the right thereafter upon payment of the Exercise Price in
effect immediately prior to such action to purchase upon exercise of each
Warrant the kind and amount of shares and other securities and property which
such holder would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale or conveyance had such Warrant
been exercised immediately prior to such action. The Company shall mail by
first-class mail, postage prepaid, to each Holder, notice of the exception of
any such agreement. Such agreement shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Article 4. The provisions of this Section 4.6 shall similarly apply
to successive consolidations, mergers, sales or conveyances. The Warrant
Agent shall be under no duty or responsibility to determine the correctness of
any provisions contained in any such agreement relating either to the kind or
amount of shares of stock or other securities or property receivable upon
exercise of Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
SECTION 4.7 Adjustment Rules. (a) For the purposes of
adjustments required by Section 4.2 and Section 4.3, the shares of Common
Stock that the holder of any rights, options, warrants or convertible or
exchangeable securities shall be entitled to subscribe for or purchase shall
be deemed to be issued and outstanding as of the date of sale, issuance or
distribution of such securities and the consideration, if any, received by the
Company therefor shall be deemed to be the consideration received by the
Company for such securities, plus the consideration or premiums stated in such
securities to be paid for the shares of Common Stock covered thereby.
(b) Except for adjustments required by Section 4.6, no
adjustment in the number of Warrant Shares purchasable hereunder shall be
required unless such adjustment would require an increase or decrease of at
least one percent in the number of Warrant Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by
reason of this Section 4.7(b) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
shall be made to the nearest cent and to the nearest one-hundredth of a share,
as the case may be.
(c) Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant is adjusted as herein provided (whether or not the
Company then or thereafter elects to issue additional Warrants in substitution
for an adjustment in the number of Warrant Shares as provided in Section
4.7(h)), the Exercise Price payable upon exercise of each Warrant shall be
adjusted by multiplying such Exercise Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of
Warrant Shares purchasable upon the exercise of each Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of
Warrant Shares so purchasable immediately thereafter, provided, however, that
the Exercise Price shall not be reduced below par unless the Company has taken
action pursuant to Section 2.8.
(d) For the purpose of this Article 4, the term "shares of
Common Stock" shall mean (i) the class of stock designated as the Common
Stock of the Company at the date of this Agreement, or (ii) any other class
of stock resulting from successive changes or reclassification of such
shares consisting solely of changes in par value, or from par value to no
par value, or from no par value to par value. If at any time, as a result
of an adjustment made pursuant to Section 4.2 or Section 4.5 above, the
holders of Warrants shall become entitled to purchase any shares of the
Company other than shares of Common Stock, thereafter the number of such
other shares so purchasable upon exercise of each Warrant and the Exercise
Price with respect to such shares 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 Warrant Shares contained in Section 4.2
through Section 4.5 and subsections (a), (b) and (c) of this Section 4.7,
inclusive, above, and the provisions of Sections 3.2, 3.5, 3.7 and 4.9,
with respect to the Warrant Shares, shall apply on like terms to any such
other shares.
(e) Except as provided in Sections 4.2, 4.3 and 4.4, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(f) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
(g) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof shall not have been
exercised, the Exercise Price and the number of Warrant Shares purchasable
upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it been
originally adjusted (or had the original adjustment not been required, as
the case may be) as if (i) the only shares of Common Stock so issued were
the shares of Common Stock, if any, actually issued or sold upon the
exercise of such rights, options, warrants or conversions or exchange
rights and (ii) such shares of Common Stock, if any, were issued or sold
for the consideration actually received by the Company upon such exercise
plus the aggregate consideration, if any, actually received by the Company
for the issuance, sale or grant of all of such rights, options, warrants or
conversion or exchange rights whether or not exercised; provided, that no
such readjustment shall have the effect of increasing the Exercise Price or
decreasing the number of shares by an amount in excess of the amount of the
readjustment initially made in respect to the issuance, sale or grant of
such rights, options, warrants or conversion or exchange rights.
(h) The Company may elect, on or after the date of any
adjustment required by Section 4.2 through Section 4.5, to adjust the
number of Warrants in substitution for an adjustment in the number of
Warrant Shares purchasable upon the exercise of a Warrant. Each of the
Warrants outstanding after such adjustment of the number of Warrants shall
be exercisable for the same number of Warrant Shares as immediately prior
to such adjustment. Each Warrant held of record prior to such adjustment
of the number of Warrants shall become that number of Warrants (calculated
to the nearest hundredth) obtained by dividing the Exercise Price in effect
prior to adjustment of the Exercise Price by the Exercise Price in effect
after adjustment of the Exercise Price. The Company shall notify the
Holders in the same manner as provided in Section 4.8, of its election to
adjust the number of Warrants, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Exercise Price is
adjusted or any date thereafter. Upon each adjustment of the number of
Warrants pursuant to this Section 4.7(h) the Company shall, as promptly as
practicable, cause to be distributed to Holders as of such record date
Warrant Certificates evidencing, subject to Sections 2.8 and 2.11, the
additional Warrants to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for
the Warrant Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Warrant Certificates evidencing all the Warrants to be issued, executed and
registered in the manner specified in Sections 3.2 and 3.3 (and which may
bear, at the option of the Company, the adjusted Exercise Price) and shall
be registered in the names of the Holders on the record date specified in
the notice.
SECTION 4.8 Notice to Holders with Respect to Adjustments.
Not more than 30 days following the record date or effective date, as the case
may be, of any adjustment or readjustment pursuant to this Article 4, the
Company shall forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal executive office and with the Warrant Agent, an
officers' certificate showing the adjusted number of Warrant Shares
purchasable upon exercise of the Warrants, the additional number of Warrants
to be issued for each outstanding Warrant or the adjusted Exercise Price, as
the case may be, determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of computing such
adjustment. Each such officers' certificate shall be signed by the Chairman,
President or Chief Financial Officer of the Company and by the Secretary or
any Assistant Secretary of the Company. Each such officers' certificate shall
be made available at the Warrant Agent Office all reasonable times for
inspection by the Holder or any Holder of a Warrant and then upon written
request of a Holder the Warrant Agent shall mail a copy of such certificate by
first-class mail to such Holder.
ARTICLE 5
WARRANT AGENT
SECTION 5.1 Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the instructions hereinafter in this Agreement set forth; and the Warrant
Agent hereby accepts such appointment, upon the terms and conditions
hereinafter set forth.
SECTION 5.2 Warrant Agent. (a) The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the Holders, by their
acceptance of the Warrants, shall be bound:
(i) the statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any of
the same except such as describes the Warrant Agent or action taken
or be taken by it. Except as herein otherwise provided, the Warrant
Agent assumes no responsibility with respect to the execution,
delivery or distribution of the Warrant Certificates.
(ii) The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the covenants contained
in this Agreement or in the Warrant Certificates to be complied with
by the Company nor shall it at any time be under any duty or
responsibility to any Holder to make or cause to be made any
adjustment in the Exercise Price or in the number of Warrant Shares
issuable upon exercise of any Warrant (except as instructed by the
Company), or to determine whether any facts exist which may require
any such adjustments, or with respect to the nature or extent of or
method employed in making any such adjustments when made.
(iii) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the
Company or any holder of any Warrant Certificate in respect of any
action taken, suffered or omitted by it hereunder in good faith and
in accordance with the opinion or the advice of such counsel.
(iv) The Warrant Agent shall incur no liability or
responsibility to the Company or to any Holder for any action taken
in reliance on any notice, resolution, waiver, consent, order,
certificate or other paper, document or instrument believed by it to
be genuine and to have been signed, sent or presented by the proper
party or parties.
(v) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for
its reasonable out-of-pocket expenses (including attorneys' fees and
expenses) incurred by the Warrant Agent without negligence, bad faith
or breach of this Agreement on its part in connection with the
services rendered by it hereunder. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense (including reasonable attorneys' fees and
expenses) incurred without negligence, bad faith or breach of this
Agreement on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, as well
as the reasonable costs and expenses of defending against any claim
of liability in the premises. The obligations of the Company under
this Section 5.2 shall survive the termination of this Agreement.
(vi) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
registered holders of Warrant Certificates shall furnish the Warrant
Agent with reasonable security and indemnity for any costs or
expenses which may be incurred. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant
Agent without possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto,
and any such action, suit or proceeding instituted by the Warrant
Agent shall be brought in its name as Warrant Agent, and any recovery
or judgment shall be for the ratable benefit of the Holders, as their
respective rights or interests may appear.
(vii) The Warrant Agent, and any stockholder, director,
officer or employee thereof, may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to the Company or otherwise act as
fully and freely as though they were not the Warrant Agent under this
Agreement, or a stockholder, director, officer or employee of the
Warrant Agent, as the case may be. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or
for any other legal entity.
(viii) The Warrant Agent shall act hereunder solely as agent
for the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for
anything which it may do or refrain from doing in connection with
this Agreement except for its own negligence or bad faith.
(ix) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing of the provisions of
this Agreement.
(x) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Warrant
Agent) or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof), nor shall the
Warrant Agent by any act hereunder be deemed to make any
representation or warrant as to the authorization or reservation of
the Warrant Shares to be issued pursuant to this Agreement or any
Warrant Certificate or as to whether the Warrant Shares will when
issued be validly issued, fully paid and nonassessable or as to the
Exercise Price or the number of Warrant Shares issuable upon exercise
of any Warrant.
(xi) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer, the
Secretary or an Assistant Secretary of the Company, and to apply to
such officers for advice or instructions in connection with its
duties, and shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instruction of any
such officer or in good faith reliance upon any statement signed by
any one of such officers of the Company with respect to any fact or
matter (unless other evidence in respect thereof is herein
specifically prescribed) which may be deemed to be conclusively
proved and established by such signed statement.
SECTION 5.3 Change of Warrant Agent. If the Warrant Agent
shall resign (such resignation to become effective not earlier than 60 days
after the giving of written notice thereof to the Company and the Holders) or
shall become incapable of acting as Warrant Agent or if the Board of Directors
of the Company shall by resolution remove the Warrant Agent (such removal to
become effective not earlier than 30 days after the filing of a certified copy
of such resolution with the Warrant Agent and the giving of written notice of
such removal to the registered holders of Warrant Certificates), the Company
shall appoint a successor to the Warrant Agent. If the Company shall fail to
make such appointment within a period of 30 days after such removal or after
it has been so notified in writing of such resignation or incapacity by the
Warrant Agent, then any Holder may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to the Warrant Agent, either by the Company or by
such a court, the duties of the Warrant Agent shall be carried out by the
Company. Any successor Warrant Agent, whether appointed by the Company or by
such a court, shall be a bank or trust company, in good standing, incorporated
under the laws of any state or of the United States of America. As soon as
practicable after appointment of the successor Warrant Agent, the Company
shall cause written notice of the change in the Warrant Agent to be given to
each of the Holders at such Holder's address appearing on the Warrant
Register. After appointment, the successor Warrant Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed. The former
Warrant Agent shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed
necessary for the purpose. Failure to give any notice provided for in this
Section 5.3 or any defect therein, shall not affect the legality or validity
of the removal of the Warrant Agent or the appointment of a successor Warrant
Agent, as the case may be.
SECTION 5.4 Merger, Consolidation or Change of Name of Warrant
Agent. (a) Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall
be a party, or any corporation succeeding to the shareholder services business
of the Warrant Agent, shall be the successor to the Warrant Agent hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible
for appointment as a successor Warrant Agent under the provisions of Section
5.3. If at the time such successor to the Warrant Agent shall succeed under
this Agreement, any of the Warrant Certificates shall have been countersigned
but not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent, and if at that time any of the
Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor Warrant Agent;
and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
(b) If at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent whose name has changed may
adopt the countersignature under its prior name; and if at that time any of
the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Notices. (a) Except as otherwise provided in
Section 6.1(b) any notice, demand or delivery authorized by this Warrant
Agreement shall be sufficiently given or made when mailed if sent by
first-class mail, postage prepaid, addressed to any Holder of a Warrant at
such Holder's address shown on the Warrant Register and to the parties as
follows:
If to the Company:
National Health Laboratories Holdings Inc.
4225 Executive Square
Suite 805
La Jolla, CA 92037
Attention: General Counsel
If to the Warrant Agent:
American Stock Transfer & Trust Company
6201 Fifteenth Avenue
Brooklyn, NY 11219
Attention: Joseph Wolf
or such other address as shall have been furnished to the party giving 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 Warrant Register.
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 6.2 Supplements and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any Holders in order to cure any ambiguity, manifest error or
other mistake in this Agreement, or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect, alter or change
the interest of the Holders.
SECTION 6.3 Termination. This Agreement shall terminate
immediately after (i) the Company has paid the Redemption Amount with respect
to all Holders in the case of a Redemption or (ii) all Warrant Shares in
respect of properly exercised Warrants have been issued in the case the Company
does not elect to effect a Redemption pursuant to Section 2.7, provided, that
the provisions of Section 5.2 shall survive such termination until such time
that the obligations contemplated thereunder have been performed.
SECTION 6.4 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be governed by and
construed in accordance with the internal laws of such State.
SECTION 6.5 Persons Benefiting. This Warrant 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 of the Warrants. Nothing in this Warrant
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 Warrant Agreement or any
part hereof.
SECTION 6.6 Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
SECTION 6.7 Headings. The headings of sections of this
Agreement have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed and delivered as of the day and year first above
written.
NATIONAL HEALTH LABORATORIES
HOLDINGS INC.
By /s/ David C. Flaugh
______________________________
Title: David C. Flaugh
Senior Executive Vice President
Chief Operating Officer
ATTEST:
/s/ John F. Markus
_____________________________
John F. Markus
Executive Vice President
Assistant Secretary
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By /s/ Herbert J. Lemmer
______________________________
Title: Herbert J. Lemmer
Vice President
ATTEST:
/s/ Susan Silber
_____________________________
Susan Silber
Assistant Secretary
Exhibit A
WARRANTS TO PURCHASE SHARES OF COMMON STOCK
NUMBER OF WARRANTS
LABORATORY CORPORATION OF AMERICA HOLDINGS
EXPIRING AT 5:00 P.M. NEW YORK CITY TIME ON APRIL 28, 2000
CUSIP 5054OR 11 0
This Warrant Certificate certifies that
or registered assigns,
is the registered holder (the "Holder") of the number of warrants set forth
above (each, a "Warrant") issued by Laboratory Corporation of America
Holdings, a Delaware corporation (the "Company"), subject to the terms and
conditions set forth herein and in the Warrant Agreement referred to on the
reverse side hereof. Each Warrant entitles the Holder thereof to purchase from
the Company one fully paid and nonassessable share (a "Warrant Share") of
common stock, $0.01 par value (the "Common Stock"), of the Company at the
initial exercise price per share of $22.00 (the "Exercise Price"), payable in
lawful money of the United States of America, subject to adjustment as
described below. The Warrants evidenced by this Certificate expire at 5:00
p.m. New York City Time (the "Close of Business") on April 28, 2000 (the
"Expiration Date") unless such date is extended at the option of the Company
as set forth in the Warrant Agreement referred to on the reverse side hereof.
Subject to the terms and conditions set forth herein and in the
Warrant Agreement referred to on the reverse side hereof, a Warrant may be
exercised upon proper surrender of this Warrant Certificate and payment of the
aggregate Exercise Price to American Stock Transfer & Trust Company (the
"Warrant Agent") at 40 Wall Street, 46th Floor, New York, NY 10005 or such
other of its offices as may be designated by the Warrant Agent (the "Warrant
Agent Office").
The number of Warrants, the Exercise Price and the number of
Warrant Shares purchasable upon exercise of a Warrant are subject to
adjustment upon the occurrence of certain events as set forth in Article 4 of
the Warrant Agreement referred to on the reverse side hereof
Upon notice to the Warrant Agent in accordance with the Warrant
Agreement, the Company may at its sole option elect to redeem all but not less
than all of the Warrants on the Expiration Date by payment of an amount in
cash in respect of each Warrant equal to the Redemption Amount (as defined in
the Warrant Agreement). If the Company shall have duly elected to redeem the
Warrants but the aggregate Redemption Amount is zero or less than zero, no
amount shall be required to be paid by the Company in respect of the
redemption of the Warrants but the Warrants shall nonetheless be deemed to
have been redeemed.
A Warrant may only be exercised prior to the Close of Business on
the Expiration Date and only if the Company shall not have elected to redeem
the Warrants (provided that the Warrant Agent will accept surrenders of
Warrant Certificates and payments of the Exercise Price in respect of Warrants
to be exercised during the 45-day period preceding the Expiration Date, but
such Warrants will not be deemed to have been exercised until the Expiration
Date). As of the Close of Business on the Expiration Date, the Warrants will
become wholly void and of no value.
This Warrant Certificate shall be governed by and construed in
accordance with the internal laws of the State of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT
CERTIFICATE SET FORTH ON THE REVERSE SIDE HEREOF. SUCH FURTHER PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS
PLACE.
This Warrant Certificate shall not be valid unless countersigned
by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed by the facsimile signature of its duly authorized officer, and the
facsimile of the corporate seal hereunto affixed.
Dated:
LABORATORY CORPORATION OF AMERICA HOLDINGS
By /s/ James B. Powell
_____________________________
PRESIDENT
ATTEST
By /s/ Bradford T. Smith
_____________________________
SECRETARY
[facsimile of the seal of the Company]
COUNTERSIGNED AND REGISTERED
AMERICAN STOCK TRANSFER & TRUST COMPANY
NEW YORK, NY AS WARRANT AGENT,
BY __________________________
AUTHORIZED OFFICER
LABORATORY CORPORATION OF AMERICA HOLDINGS
THIS WARRANT CERTIFICATE IS ISSUED UNDER AND IN ACCORDANCE WITH A
WARRANT AGREEMENT, DATED AS OF APRIL 10, 1995, BETWEEN THE COMPANY AND THE
WARRANT AGENT (THE "WARRANT AGREEMENT"), AND IS SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN THE WARRANT AGREEMENT. THE WARRANT AGREEMENT IS
HEREBY INCORPORATED BY REFERENCE IN AND MADE A PART OF THIS INSTRUMENT AND IS
HEREBY REFERRED TO FOR A DESCRIPTION OF THE RIGHTS, LIMITATIONS OF RIGHTS,
OBLIGATIONS, DUTIES AND IMMUNITIES THEREUNDER OF THE WARRANT AGENT, THE
COMPANY AND THE HOLDERS. A COPY OF THE WARRANT AGREEMENT MAY BE INSPECTED AT
THE WARRANT AGENT OFFICE AND WILL BE PROVIDED BY FIRST-CLASS MAIL, WITHOUT
CHARGE, TO ANY REGISTERED HOLDER UPON WRITTEN REQUEST ADDRESSED TO THE WARRANT
AGENT AT THE WARRANT AGENT OFFICE. ALL TERMS USED BUT NOT DEFINED HEREIN HAVE
THE MEANINGS ASSIGNED TO THEM IN THE WARRANT AGREEMENT.
Warrants may be exercised to purchase Warrant Shares from the
Company on, but prior to the Close of Business on, the Expiration Date, at the
Exercise Practice set forth on the face hereof, subject to adjustment as
described in the Warrant Agreement, but only if the Company shall not have
elected to redeem the Warrants as described below. The registered Holder of
the Warrants evidenced by this Warrant Certificate may exercise such Warrants
by surrendering to the Warrant Agent this Warrant Certificate, with the form
of election to exercise set forth hereon properly completed and executed,
together with payment of the aggregate Exercise Price, in lawful money of the
United States of America, to the Warrant Agent at the Warrant Agent Office.
Although such surrender and payment will be accepted during the 45-day period
preceding the Expiration Date, Warrants will not be deemed to have been
exercised until the Expiration Date.
No adjustment shall be made for any cash dividends on any Warrant
Shares issuable upon exercise of this Warrant.
Upon notice to the Warrant Agent not earlier than 90 days nor
later than 60 days prior to the Expiration Date, the Company may at its sole
option elect to redeem all but not less than all Warrants on the Expiration
Date by payment of an amount in cash in respect of each Warrant equal to the
Redemption Amount (as defined in the Warrant Agreement). If the Company shall
have duly elected to redeem the Warrants but the aggregate Redemption Amount
is zero or less than zero, no amount shall be required to be paid by the
Company in respect of the redemption of the Warrants but the Warrants shall
nonetheless be deemed to have been redeemed.
Warrants shall expire at and become null and void and have no
value and no Person shall have any rights with respect thereto as of the Close
of Business on the Expiration Date, provided, however, that, notwithstanding
such expiration, Holders who have properly exercised Warrants in accordance
herewith and with the Warrant Agreement prior to such Close of Business shall
be entitled to receive Warrant Shares with respect to such Holders' Warrants
unless the Company shall have elected to redeem the Warrants as described
below, in which case each Holder shall be entitled to receive the Redemption
Amount.
No certificates or script representing fractional Warrant Shares
shall be issued upon exercise of a Warrant. As promptly as practicable
following the Expiration Date, if the Company shall not have elected to redeem
the Warrants, the Company shall pay to each Holder otherwise entitled to
receive fractional Warrant Shares, if any, a cash amount in lieu of such
fractional Warrant Shares which shall be equal to the proceeds from the sale
of such Holder's fractional Warrant Shares as provided in the Warrant
Agreement, without interest thereon and after deduction of all commissions,
transfer taxes and other out-of-pocket transaction costs, including the
expenses and compensation of the Warrant Agent, incurred in connection with
such sale of the fractional Warrant Shares.
Warrant Certificates, when surrendered at the Warrant Agent office
in person or by a legal representative or attorney duly authorized in writing,
may be exchanged, in the manner and subject to the limitations provided in the
Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor evidencing a Warrant
to purchase in the aggregate a like number of Warrant Shares.
A new Warrant Certificate or Warrant Certificates of like tenor
and evidencing a Warrant or Warrants to purchase in the aggregate a like
number of Warrant Shares shall be issued to a transferee designated by a
Holder upon surrender of a Warrant Certificate, duly endorsed, and
accompanied by a written instrument or instruments of transfer in a form
satisfactory to the Warrant Agent, duly signed by the Holder or Holders or
by the duly appointed legal representative thereof or by a duly authorized
attorney, such signature to be guaranteed by (i) a bank or trust company,
(ii) a broker or dealer that is a member of the National Association of
Securities Dealers, Inc. or (iii) a member of national securities exchange,
and funds sufficient to pay any transfer taxes payable on such transfer.
Notwithstanding the foregoing, the Warrant Agent shall not be
required to register the transfer or exchange of any Warrant Certificate from
and after the 105th day preceding the scheduled Expiration Date, provided that
if, in the notice provided by the Company pursuant to Section 2.5 of the
Warrant Agreement, the Company shall not have elected to redeem the Warrants,
then the Warrant Agent shall permit transfers or exchanges of Warrant
Certificates from and after the mailing of the notice to Holders referred to
in Section 2.5 of the Warrant Agreement but shall not be required to register
the transfer or exchange of any Warrant Certificate from and after the 15th
day preceding the Expiration date.
The Company and its subsidiaries shall have the option, in their
sole discretion, at any time or from time to time, to purchase Warrants (i) in
the public market, (ii) by tender or exchange offer available to all Holders
at any price or (iii) in private transactions at a price not more than ten
percent (10%) over the Market Price of the Warrants as of the closing date of
each such transaction. Warrants acquired by the Company or its subsidiaries
shall be canceled and shall not be available for reissuance or resale.
The Company and the Warrant Agent may deem and treat the
registered Holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
FORM OF ELECTION TO EXERCISE
(To Be Executed by Registered Holder Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right
represented by this Warrant Certificate to receive shares of Common Stock
and herewith tenders payment for such shares to the order of Laboratory
Corporation of America Holdings in care of American Stock Transfer & Trust
Company, 40 Wall Street, 46th Floor, New York, NY. 10005, in the amount of $
in lawful money of the United States of America by certified or
official bank check or by wire transfer in accordance with the terms hereof.
The undersigned requests that a certificate for such shares be registered in
the name of _________________________________________________________________
whose address is
_____________________________________________________________________________
and whose Social Security or Taxpayer identification Number
is____________________________________ and that such shares be delivered to
_____________________________________________________________________________
whose address is
_____________________________________________________________________________
Dated:____________________, 20__
Signature:_________________________
Note: The above signature must
correspond with the name as written
upon the face of the Warrant
Certificate in every particular without
alteration or enlargement of any change
whatsoever.
Signature
Guaranteed:_____________________________
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- __________ Custodian ---
TEN ENT -- as tenants by the entireties (custodian) (minor)
JT TEN -- as joint tenants with the right of survivorship andunder Uniform
Gift to Minors not as tenants in common Act _________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF ASSIGNMENT
(To Be Executed by Registered Holder Upon Assignment of the Warrant)
FOR VALUE RECEIVED, the undersigned registered Holder hereby sells, assigns
and transfers unto
_____________________________________________________________________________
whose address
is_ _________________________________________________________________________
and whose Social Security or Taxpayer Identification Number is
_____________________________________________________________________________
_____________________________________________________________________________
the Warrants represented by this Warrant Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
___________________________________________________ attorney, to transfer the
within Warrant Certificate on the books of the Warrant Agent, with full power
of substitution.
Dated: _________________
Signature:_______________________________
Note: The above signature must
correspond with the name as written
upon the face of the Warrant Certificate
in every particular without alteration or
enlargement or any change whatsoever
Signature
Guaranteed:_____________________________
Dates Referenced Herein and Documents Incorporated by Reference
| This ‘SC 13D’ Filing | | Date | | Other Filings |
|---|
| |  |
| | 4/28/00 |
| Filed on: | | 5/8/95 |
| | 4/28/95 | | 8-K |
| | 4/21/95 |
| | 4/10/95 |
| | 12/13/94 | | 8-K |
| List all Filings |
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