RNS Number:7147I
Applied Graphics Technologies Inc
17 August 2001
PART 4
EXHIBIT E TO THE
FIFTH AMENDMENT
FORM OF WARRANT
THIS WARRANT AND THE SHARES OF COMPANY COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER ANY STATE
SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
THEY HAVE BEEN REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE AND IF AN EXEMPTION SHALL BE APPLICABLE, THE WARRANT HOLDER SHALL
HAVE DELIVERED AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT
SUCH REGISTRATION IS NOT NECESSARY.
Date of Issuance: (January 1) (May 1), 2002 Number of Shares: _____
(subject to adjustment)
WARRANT CERTIFICATE TO PURCHASE
COMMON STOCK OF
APPLIED GRAPHICS TECHNOLOGIES, INC.
This Warrant Certificate (the "Warrant Certificate") is to certify that (NAME
OF LENDER) or its registered assigns (the "Warrantholder") is entitled, at any
time during the period beginning on the Exercise Date (as defined in Section
1.2) and ending on the date that is 180 days after the Exercise Date (the "
Expiration Date"), to purchase, at the Exercise Price (as hereinafter
defined), _______________shares (as may be modified pursuant to Section 5, the "
Initial Exercise Amount") of common stock ("Company Common Stock") of Applied
Graphics Technologies, Inc., a Delaware corporation (the "Company"). Unless
earlier exercised in full and subject to the conditions set forth herein, this
Warrant Certificate shall expire on the Expiration Date. Capitalized terms
used but not otherwise defined herein shall have the meanings given to them in
the Amended and Restated Credit Agreement dated as of March 10, 1999 among the
Company, the lenders party thereto, and Fleet National Bank, as Administrative
Agent (as amended, the "Credit Agreement").
1. Exercise of Warrant.
1.1 This Warrant Certificate is exercisable by the Warrantholder at the
Exercise Price per share of Company Common Stock issuable hereunder, payable
in cash, by certified or official bank check. Upon surrender of this Warrant
Certificate with the attached Subscription Form duly completed and executed,
together with any required payment of the Exercise Price for the shares of
Company Common Stock being purchased, at the Company's principal executive
offices presently located at 450 West 33rd Street, New York, New York 10001,
the Warrantholder shall be entitled to receive a certificate or certificates
for the shares of Company Common Stock so purchased.
1.2 The purchase rights represented by this Warrant Certificate are
exercisable at the option of the Warrantholder, in whole or in part (but not
as to fractional shares of Company Common Stock), during the period beginning
on the earlier of (i) January 15, 2003 or (ii) the occurrence of an Event of
Default (but in no event earlier than (March 1, 2002) (July 1, 2002)) (the "
Exercise Date") and ending on the Expiration Date.
1.3 In the case of the purchase of less than all the shares of Company Common
Stock purchasable under this Warrant Certificate, the Company shall cancel
this Warrant Certificate upon the surrender hereof and shall execute and
deliver a new Warrant Certificate as soon as practicable to the Warrantholder
of like tenor for the balance of the shares of Company Common Stock
purchasable hereunder.
1.4 In the event that the Company shall have consummated the (Type A Capital
Event) (Type B Capital Event) on or before (February 28, 2002) (June 30,
2002), this Warrant Certificate, and the rights hereunder, shall terminate and
be of no further force and effect as of the date of such consummation.
2. Issuance of Stock Certificates.
2.1 The issuance of certificates for shares of Company Common Stock upon the
exercise of this Warrant Certificate shall be made as soon as practicable
thereafter or in any event within twenty (20) days of such exercise without
charge to the Warrantholder, including, without limitation, any tax that may
be payable in respect thereof, and such certificates shall (subject to the
provisions of this Section 2) be issued in the name of, or in such names as
may be directed by, the Warrantholder; provided, however, that the Company
shall not be required to pay any income tax to which the Warrantholder may be
subject in connection with the issuance of this Warrant Certificate or of
shares of Company Common Stock upon the exercise of this Warrant Certificate;
provided, further, that the Company shall not be required to pay any tax that
may be payable in respect of any transfer involved in the issuance and
delivery of any such certificate in a name other than that of the
Warrantholder 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.
2.2 All shares of Company Common Stock issued upon the exercise of this
Warrant Certificate shall be validly issued, fully paid and nonassessable.
2.3 Each person in whose name any such certificate for shares of Company
Common Stock is issued shall for all purposes be deemed to have become the
holder of record of such shares on the date on which the Warrant Certificate
was surrendered and payment of the Exercise Price and any applicable taxes was
made, irrespective of the date of delivery of such certificate, except that,
if the date of such surrender and payment is a date when the stock transfer
books of the Company are closed, such person shall be deemed to have become
the holder of such shares at the close of business on the next succeeding date
on which the stock transfer books are open.
3. Restrictions on Transfer.
3.1 Investment Representation and Transfer Restriction Legend. The
Warrantholder, by acceptance of this Warrant Certificate, represents and
warrants to the Company that it is acquiring this Warrant Certificate and the
shares of Company Common Stock issued or issuable upon exercise hereof (the "
Warrant Shares") for investment purposes only and not with a view towards the
resale or other distribution thereof. Each certificate representing Warrant
Shares, unless at the same time of exercise such Warrant Shares are registered
under the Act, shall bear a legend in substantially the following form on the
face thereof:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW, AND MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THEY HAVE BEEN REGISTERED
UNDER SUCH LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND IF AN
EXEMPTION SHALL BE APPLICABLE, THE WARRANT HOLDER SHALL HAVE DELIVERED AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION
IS NOT NECESSARY.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon
completion of a distribution under a registration statement covering the
securities represented thereby) shall also bear such legend unless, in the
opinion of counsel to the Company, the securities represented thereby may be
transferred as contemplated by such Warrantholder without violation of the
registration requirements of the Securities Act.
4. Exercise Price and Exercise Amount.
4.1 Exercise Price. The exercise price of this Warrant Certificate shall be
$0.01 per share of Company Common Stock (the "Exercise Price").
4.2 Exercise Amount. The term "Exercise Amount" shall mean the Initial
Exercise Amount or the adjusted Exercise Amount determined pursuant to Section
5 depending upon the context.
5. Adjustment of Exercise Amount and Number of Shares.
5.1 The Exercise Amount specified in Section 4.2 shall be subject to
adjustment from time to time as follows:
(a) Adjustment for Stock Splits and Combinations. If the Company shall at any
time or from time to time after the date this Warrant Certificate was granted
(the "Original Issue Date") effect a subdivision of the outstanding Company
Common Stock, the Exercise Amount then in effect immediately before the
subdivision shall be proportionately increased and the Exercise Price then in
effect immediately before the subdivision shall be proportionately reduced.
If the Company shall at any time or from time to time after the Original Issue
Date combine the outstanding shares of Company Common Stock, the Exercise
Amount then in effect immediately before the combination shall be
proportionately decreased and the Exercise Price then in effect immediately
before the combination shall be proportionately increased. Any adjustment
under this paragraph shall become effective at the close of business on the
date the subdivision or combination becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the event the
Company at any time, or from time to time, after the Original Issue Date shall
make or issue, or fix a record date for the determination of holders of
Company Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Company Common Stock, then in each such event
the Exercise Amount then in effect shall be increased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the
close of business on such record date, to an amount equal to the amount
determined by multiplying the Exercise Amount then in effect by a fraction:
(i) the numerator of which shall be the total number of shares of Company
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of
shares of Company Common Stock issuable in payment of such dividend or
distribution; and
(ii) the denominator of which shall be the total number of shares of Company
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date;
provided, however, if such record date shall have been fixed and such dividend
is not fully paid or if such distribution is not fully made on the date fixed
therefor, the Exercise Amount shall be recomputed accordingly as of the close
of business on such record date and thereafter the Exercise Amount shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(c) Adjustments for Other Dividends and Distributions. In the event the
Company at any time or from time to time after the Original Issue Date shall
make or issue, or fix a record date for the determination of holders of
Company Common Stock entitled to receive, a dividend or other distribution
payable in securities of the Company or any Subsidiary or Affiliate thereof
other than shares of Company Common Stock, then and in each such event
provision shall be made so that the Warrantholder shall receive upon exercise
thereof, in addition to the number of shares of Company Common Stock
receivable thereupon, the amount and type of securities that it would have
received had its Warrant Certificate been exercised for shares of Company
Common Stock on the date of such event and had it thereafter, during the
period from the date of such event to and including the actual exercise date,
retained such securities receivable by it as aforesaid during such period
giving application to all adjustments called for during such period. In the
event of the spinoff or other creation of a subsidiary or affiliate of the
Company whose assets consist in whole or in part of a significant component of
the Company's business (a "Spinoff Transaction"), the Warrantholder shall be
entitled to receive, without any requirement that this Warrant be exercised,
Warrants (the "New Warrants") with terms substantially equivalent to the terms
of this Warrant Certificate, to purchase the amount and type of securities
(the "Spinoff Securities") that it would have received in such Spinoff
Transaction had this Warrant been exercised immediately prior to such Spinoff
Transaction. The exercise price of the New Warrants (the "New Warrant
Exercise Price") shall be equal to the Exercise Price in effect immediately
prior to the Spinoff Transaction multiplied by the product of (A) the relative
value per share of the business or assets subject to the Spinoff Transaction
as compared to the total value per share of the Company at the time of the
Spinoff Transaction (as determined in good faith by the Board) times (B) one
(1) minus the percentage of such business or assets retained by the Company,
if any. The Exercise Price shall thereafter be reduced by the amount of the
New Warrant Exercise Price such that the sum of the New Warrant Exercise Price
plus the Exercise Price shall not exceed the Exercise Price as in effect
immediately prior to the Spinoff Transaction. In the event a Spinoff
Transaction involves a third party whose contribution to the entity or
business subject to the Spinoff Transaction is other than cash or other
consideration to the Company, the Board, in good faith, shall determine the
appropriate adjustment in the application of the provisions in this Section 5
with respect to the rights and interest thereafter of the Warrantholder.
(d) Adjustment for Reclassification, Exchange, or Substitution. If the
Company Common Stock issuable upon exercise of this Warrant Certificate shall
be changed into the same or a different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification, or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization, merger, consolidation, or sale of
assets provided for below), then and in each such event the Warrantholder
shall have the right thereafter to exercise this Warrant Certificate for the
kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification, or other change, by
holders of the number of shares of Company Common Stock into which this
Warrant Certificate was exercisable immediately prior to such reorganization,
reclassification, or change, all subject to further adjustment as provided
herein.
(e) Adjustment for Merger or Reorganization, etc. In case of any
consolidation or merger of the Company with or into another Person or the sale
of all or substantially all of the assets of the Company to another Person,
this Warrant Certificate shall thereafter be exercisable for the kind and
amount of shares of stock or other securities or property to which a holder of
the number of shares of Company Common Stock of the Company deliverable upon
exercise of this Warrant Certificate would have been entitled upon such
consolidation, merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Board) shall be made in the application of the
provisions in this Section 5 with respect to the rights and interest
thereafter of the Warrantholder, to the end that the provisions set forth in
this Section 5 (including provisions with respect to changes in and other
adjustments of the Exercise Amount) shall thereafter be applicable, as nearly
as reasonably may be, in relation to any shares of stock or other property
thereafter deliverable upon exercise of this Warrant Certificate.
(f) No Impairment. The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the Company but will at
all times in good faith assist in the carrying out of all the provisions of
this Section 5 and in the taking of all such action as may be necessary or
appropriate in order to protect the exercise rights of the Warrantholder
against impairment.
(g) Certificate as to Amendments. Upon the occurrence of each adjustment or
readjustment of the Exercise Price pursuant to this Section 5, the Company at
its expense shall promptly compute such adjustment or readjustment in
accordance with the terms thereof and furnish to each Warrantholder a
certificate setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based. The
Company shall, upon the written request at any time of any Warrantholder,
furnish or cause to be furnished to such holder a similar certificate setting
forth (i) such adjustments and readjustments, (ii) the Exercise Amount then in
effect, and (iii) the number of shares of Company Common Stock and the amount,
if any, of other property which then would be received upon exercise of this
Warrant Certificate.
(h) Notice of Record Date. In the event:
(i) that the Company declares a dividend (or any other distribution) on its
Company Common Stock payable in Company Common Stock or other securities of
the Company;
(ii) that the Company subdivides or combines its outstanding shares of Company
Common Stock;
(iii) of any reclassification of the Company Common Stock (other than a
subdivision or combination of its outstanding shares of Company Common Stock
or a stock dividend or stock distribution thereon), or of any consolidation or
merger of the Company into or with another corporation, or of the sale of all
or substantially all of the assets of the Company; or
(iv) of the involuntary or voluntary dissolution, liquidation or winding up of
the Company;
then the Company shall cause to be filed at its principal office or at the
office of the transfer agent of the Company Common Stock, and shall cause to
be mailed to the Warrantholders at their last addresses as shown on the
records of the Company or such transfer agent, at least 15 days prior to the
record date specified in (A) below or 30 days before the date specified in (B)
below, a notice stating
(A) the date as of which the holders of Company Common Stock of record to be
entitled to such dividend, distribution, subdivision or combination are to be
determined, or
(B) the date on which such reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Company Common Stock of
record shall be entitled to exchange their shares of Company Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution or winding up.
6. Exchange and Replacement of Warrant Certificate.
6.1 On surrender for exchange of this Warrant Certificate, or any Warrant
Certificate or Warrant Certificates issued upon subdivision, exercise, or
transfer in whole or in part of this Warrant Certificate, properly endorsed,
to the Company, the Company at its expense will issue and deliver to or on the
order of the holder thereof a new Warrant Certificate or Warrant Certificates
of like tenor, in the name of such holder or as such holder (on payment by
such holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Company
Common Stock called for on the face or faces of the Warrant Certificate or
Warrant Certificates so surrendered.
6.2 In the event this or any subsequently issued Warrant Certificate is lost,
stolen, mutilated or destroyed, the Company may, upon receipt of a proper
affidavit (and surrender of any mutilated Warrant Certificate) and an
indemnity agreement or security reasonably satisfactory in form and amount to
the Company, in each instance protecting the Company, issue a new Warrant
Certificate of like denomination, tenor and date as the Warrant Certificate so
lost, stolen, mutilated or destroyed. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall
be at any time enforceable by anyone.
7. Elimination of Fractional Interests.
7.1 The Company shall not issue any fraction of a share in connection with the
exercise of this Warrant Certificate, but in any case where the Warrantholder
would, except for the provisions of this Section 7, be entitled under the
terms of this Warrant Certificate to receive a fraction of a share upon the
exercise of this Warrant Certificate, the Company shall, upon the exercise of
the Warrant Certificate for the largest number of full shares then called for
thereby and receipt of the Exercise Price thereof, pay a sum in cash equal to
the Fair Market Value of such fraction of a share on the day preceding such
exercise. The Warrantholder expressly waives its rights to receive any
fraction of a share or a Warrant Certificate representing a fractional share
upon exercise thereof.
7.2 If the taking of any action would cause an adjustment in the Exercise
Price so that the exercise of this Warrant Certificate while such Exercise
Price is in effect would cause shares to be issued at a price below their then
par value, the Company will take such action as may, in the opinion of its
counsel, be necessary in order that it may validly and legally issue fully
paid and nonassessable shares of Company Common Stock upon the exercise of
this Warrant Certificate.
8. Reservation of Shares.
The Company will cause to be reserved and kept available out of its authorized
and unissued shares of Company Common Stock the number of whole shares of
Company Common Stock sufficient to permit the exercise in full of this Warrant
Certificate.
9. Rights of Warrantholder.
The Company may deem and treat the person in whose name this Warrant
Certificate is registered with it as the absolute owner for all purposes
whatever (notwithstanding any notation of ownership or other writing thereon
made by anyone other than the Company) and the Company shall not be affected
by any notice to the contrary. The terms "Warrantholder" and "holder of the
Warrant Certificate" and all other similar terms used herein shall mean only
such person(s) in whose name(s) this Warrant Certificate if properly
registered on the Company's books. However, notwithstanding the foregoing, no
person, entity or group may become a Warrantholder other than the
Warrantholder unless and until (a) the provisions of Section 3.1 hereof have
been complied with, (b) the Company has received an assignment transferring
all right, title and interest in and to this Warrant Certificate, and (c) such
person, entity or group represents and warrants in writing that it will be the
sole legal and beneficial owner thereof.
10. Notices.
Any notice or demand authorized by this Warrant Certificate to be given or
made by the Warrantholder to or on the Company or to be given or made by the
Company to or on the Warrantholder shall be sufficiently given or made if sent
in writing by first-class mail, postage prepaid, addressed as follows:
(a) If to the Warrantholder, to the address for such holder as shown on the
books of the Company; or
(b) If to the Company, at the address set forth in Section 8.02 of the Credit
Agreement or at such other address as the registered holder or the Company may
hereafter have advised the other.
11. Successors.
All the covenants, agreements, representations and warranties contained in
this Warrant Certificate shall bind the parties hereto and their respective
heirs, executors, administrators, distributees, successors and assigns.
12. Headings.
The Section headings in this Warrant Certificate have been inserted for
purposes of convenience only and shall have no substantive effect.
13. Law Governing.
This Warrant Certificate is delivered in the State of New York and shall be
construed and enforced in accordance with, and governed by, the laws of the
State of New York (without giving effect to the choice of law principle of
such state), regardless of the jurisdiction of creation or domicile of the
Company or its successors or of the holder at any time hereof.
14. Remedies.
The Company stipulates that the remedies at law of the holder of this Warrant
Certificate in the event of any default or threatened default by the Company
in the performance of or compliance with any of the terms of this Warrant
Certificate are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any
agreement contained herein or by an injunction against a violation of any of
the terms hereof or otherwise.
IN WITNESS WHEREOF, the Company has executed this Warrant Certificate by its
duly authorized officer as of the day and year first above written.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By:_________________________
Name:
Title:
SUBSCRIPTION FORM
(To Be Executed By The Warrantholder
In Order to Exercise The Warrant Certificate)
The undersigned, pursuant to the provisions set forth in the enclosed Warrant
Certificate, hereby irrevocably elects to exercise the right to purchase
________ shares of Company Common Stock of APPLIED GRAPHICS TECHNOLOGIES, INC.
covered by such Warrant Certificate, and herewith tenders _________ having a
fair market value of $________ in full payment of the Exercise Price for such
shares (which may include foregoing receipt of ___ shares of Company Common
Stock as per Section 1.1 of the Warrant Certificate).
By: _______________________________
Signature
Name
Address
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