EXHIBIT 4.01
WARRANT AGREEMENT dated as of ________ ___, 1997 between Consolidation
Capital Corporation, a Delaware corporation (the "Company"), and Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc. (hereinafter referred to as the "Representative").
W I T N E S S E T H:
WHEREAS, the Representative has agreed, pursuant to the underwriting
agreement (the "Underwriting Agreement") dated _______________ __, 1997 between
the Representative, as representative of the several Underwriters named in the
Underwriting Agreement (the "Underwriters") and the Company, to act as one of
the underwriters in connection with the Company's proposed initial public
offering (the "Public Offering") of 24,000,000 shares of Common Stock ("Public
Shares") at an initial public offering price of $_____ per Public Share; and
WHEREAS, the Company proposes to issue to the Representative, in its
individual capacity and not as representative of the several Underwriters
(defined below) warrants ("Warrants") to purchase up to 1,130,000 shares of
common stock, par value $.001 per share ("Common Stock") (the shares of Common
Stock covered by the Warrants are referred to as "Shares"); and
WHEREAS, the Warrants issued pursuant to this Agreement are being issued by
the Company to the Representative or officers or partners of the Representative
in consideration for, and as part of the Representative's compensation in
connection with, the Representative acting as one of the underwriters pursuant
to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. GRANT.
The Representative, and/or any of its designees who are officers or
partners of the Representative is hereby granted the right to purchase, at any
time from __________ __, 1998 [ONE YEAR ANNIVERSARY OF EFFECTIVE DATE] until
5:00 P.M., New York City time, on _______ __, 2002 [FIVE YEAR ANNIVERSARY OF
EFFECTIVE DATE] (the "Warrant Exercise Term"), up to 1,130,000 shares of
Common Stock
at an initial exercise price (subject to adjustment as provided in Article 8
hereof) of $_____ per Share [100% OF PUBLIC OFFERING PRICE]. Except as provided
in Section 13 hereof, the Shares are in all respects identical to the Public
Shares being sold to the public pursuant to the terms and provisions of the
Underwriting Agreement.
2. WARRANT CERTIFICATES.
The warrant certificates (the "Warrant Certificates") delivered and to be
delivered pursuant to this Agreement shall be in the form set forth as Exhibit
A, attached hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions and other variations as required or permitted by this
Agreement.
3. EXERCISE OF WARRANTS.
3.1 CASH EXERCISE. The Warrants initially are exercisable at a price of
$_____ per Share purchased [100% OF PUBLIC OFFERING PRICE], payable in cash or
by check to the order of the Company, or any combination of cash or check,
subject to adjustment as provided in Article 8 hereof. Upon surrender of the
Warrant Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price (as hereinafter defined) for the
Shares purchased, at the principal office of the Company (presently located at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇) or at the office
of its transfer agent, the registered holder(s) of a Warrant Certificate
("Holder" or "Holders") shall be entitled to receive a certificate or
certificates for the Shares so purchased. The purchase rights represented by
each Warrant Certificate are exercisable at the option of the Holder hereof, in
whole or in part (but not as to fractional Shares). In the case of the purchase
of less than all of the Shares purchasable under any Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the Shares purchasable thereunder.
3.2 CASHLESS EXERCISE. At any time during the Warrant Exercise Term, the
Holder may, at its option, exchange this Warrant, in whole or in part (a
"Warrant Exchange"), into the number of Shares determined in accordance with
this Section 3.2, by surrendering this Warrant at the principal office of the
Company or at the office of its transfer agent, accompanied by a notice stating
such Holder's intent to effect such exchange, the number of Shares to be
exchanged and the date on which the Holder requests that such Warrant Exchange
occur (the "Notice of Exchange"). The Warrant Exchange shall take place on the
date specified in the Notice of Exchange or, if later, the date the Notice of
Exchange is received by the Company (the "Exchange Date"). Certificates for the
Shares issuable upon such Warrant Exchange and, if
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applicable, a new warrant of like tenor evidencing the balance of the Shares
remaining subject to this Warrant, shall be issued as of the Exchange Date and
delivered to the Holder within three (3) days following the Exchange Date. In
connection with any Warrant Exchange, this Warrant shall represent the right to
subscribe for and acquire the number of Shares (rounded to the next highest
integer) equal to (i) the number of Shares specified by the Holder in its Notice
of Exchange (the "Total Number"), but in no case more than the number of shares
equal to the number of shares listed on the warrant certificate, less (ii) the
number of Shares equal to the quotient obtained by dividing (A) the product of
the Total Number and the existing Exercise Price (as hereinafter defined) by (B)
the current market value of a Public Share.
4. ISSUANCE OF CERTIFICATES.
Upon the exercise of the Warrants, the issuance of certificates for the
Shares purchased shall be made forthwith (and in any event within three business
days thereafter) without charge to the Holder thereof including, without
limitation, any tax which may be payable in respect of the issuance thereof, and
such certificates shall (subject to the provisions of Article 5 hereof) be
issued in the name of, or in such names as may be directed by, the Holder
thereof; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issuance and
delivery of any such certificates in a name other than that of the Holder 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.
The Warrant Certificates and the certificates representing the Shares shall
be executed on behalf of the Company by the manual or facsimile signature of the
present or any future Chairman or Vice Chairman of the Board of Directors or
President or Vice President of the Company under its corporate seal reproduced
thereon, attested to by the manual or facsimile signature of the present or any
future Secretary or Assistant Secretary of the Company. Warrant Certificates
shall be dated the date of execution by the Company upon initial issuance,
division, exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Shares shall bear a legend substantially similar to the
following:
"The securities represented by this certificate and the other securities
issuable upon exercise thereof have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be offered or
sold except (i) pursuant to an effective registration statement under the
Act, (ii), to the extent applicable, pursuant to Rule 144 under the Act (or
any similar rule under such Act relating to the disposition of securities),
or (iii) upon the delivery by the holder to the Company of an opinion of
counsel, reasonably
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satisfactory to counsel to the Company, stating that an exemption from
registration under such Act is available."
5. RESTRICTION ON TRANSFER OF WARRANTS.
The Holder of a Warrant Certificate, by its acceptance thereof, covenants
and agrees that the Warrants are being acquired as an investment and not with a
view to the distribution thereof, and that the Warrants may not be sold,
transferred, assigned, hypothecated or otherwise disposed of, in whole or in
part, except (i) to officers, directors or affiliates of the Representative, and
(ii) to transferees with the opinion of counsel, acceptable to the Company and
the transferor, that such transfer is exempt from registration under the act.
The Warrant Certificate issued pursuant to (ii) above will bear a legend stating
that the Warrants may only be exercised if there is an applicable exemption
under the Act for the issuance of the shares of Common Stock of the Company upon
the exercise of the Warrants.
6. PRICE.
6.1 INITIAL AND ADJUSTED EXERCISE PRICE. The initial exercise price of
each Warrant shall be $_____ per Share [100% OF PUBLIC OFFERING PRICE]. The
adjusted exercise price shall be the price which shall result from time to time
from any and all adjustments of the initial exercise price in accordance with
the provisions of Article 8 hereof.
6.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. REGISTRATION RIGHTS.
7.1 REGISTRATION UNDER THE SECURITIES ACT OF 1933. None of the Warrants
nor the Shares have been registered for purposes of public distribution under
the Securities Act of 1933, as amended (the "Act").
7.2 REGISTRABLE SECURITIES. As used herein the term "Registrable
Security" means each of the Shares and any Common Stock issued upon any stock
split or stock dividend in respect of such Shares; provided, however, that with
respect to any particular Registrable Security, such security shall cease to be
a Registrable Security when, as of the date of determination, (i) it has been
effectively registered under the Act and disposed of pursuant thereto, (ii)
registration under the Act is no longer required for subsequent sale of such
security or (iii) it has ceased to be outstanding. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a "Registrable Security." In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be made in the
definition of
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"Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Article 7.
7.3 PIGGYBACK REGISTRATION.
(a) If, at any time during the seven years following the date of this
Agreement, the Company proposes to prepare and file one or more registration
statement(s) filed in connection with a public offering covering equity
securities of the Company, or any such securities of the Company held by its
shareholders (other than in connection with an exchange offer, a "rights"
offering to shareholders, an offering relating to an employee benefit plan,
dividend reinvestment plan, an acquisition, a merger, the conversion of any
convertible securities, an exchange of a security, or a stand-by underwriting
with respect to the call of a warrant, option, right or convertible security for
redemption), (for purposes of this Article 7, collectively, a "Registration
Statement"), it will give written notice of its intention to do so by registered
mail ("Notice"), at least thirty (30) business days prior to the filing of each
such Registration Statement, to all holders of the Registrable Securities or, in
the event that the Company has not formulated its intent to file such
Registration Statement at least thirty (30) calendar days before the anticipated
filing date of the Registration Statement, as soon as practicable upon the
formation by the Company of such intent. However, no such Notice need be given
if the Registration Statement is for an underwritten offering of securities
other than equity securities or securities convertible into equity securities.
Upon the written request of such a holder (a "Requesting Holder"), made within
twenty (20) business days after receipt of the Notice, that the Company include
any of the Requesting Holder's Registrable Securities in the proposed
Registration Statement, the Company shall, as to each such Requesting Holder,
use its best efforts to effect the registration under the Act of the Registrable
Securities which it has been so requested to register ("Piggyback
Registration"), at the Company's sole cost and expense and at no cost or expense
to the Requesting Holders. The Company shall not be required to honor any such
request (i) if, in opinion of counsel to the Company reasonably acceptable to
such Holder who wishes to have such Registrable Securities included in such
Registration Statement, registration under the Act is not required for the
transfer of the Registrable Securities in the manner proposed by such Holder; or
(ii) to register in the aggregate fewer than 25,000 Shares held by the Holders.
The Company shall permit, or shall use its best efforts to cause the managing
underwriter of a proposed offering to permit, the Holders of Registrable
Securities requested to be included in the registration (the "Piggy-Back
Shares") to include such Piggy-Back Shares in the proposed offering on the same
terms and conditions as applicable to the shares of Common Stock offered by the
Company and for the account of any person other than the Company, as the case
may be.
(b) Notwithstanding the foregoing, if any such managing underwriter
shall advise the Company in writing that, in its opinion, the distribution of
all or a portion of the Registrable Securities requested to be included in the
Registration Statement concurrently with the shares of Common Stock being
registered by the Company would materially adversely affect the
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distribution of such securities by the Company for its own account, or for the
account of any person or persons other than the Company that have asserted, with
respect to such registration, demand registration rights under any other
agreement, then such inclusion of Registrable Securities shall be made pro rata
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among the aggregate of the Registrable Securities for which a proper request was
made under this subsection 7.3 and any other securities properly requested to be
included in the registration by other holders pursuant to piggy-back or
incidental registration rights under any other agreement.
7.4 DEMAND REGISTRATION.
(a) At any time during the Warrant Exercise Term, any "Majority
Holder" (as such term is defined in Section 7.4(c) below) of the Registrable
Securities shall have the right (which right is in addition to the piggyback
registration rights provided for under Section 7.3 hereof), exercisable by
written notice to the Company (the "Demand Registration Request"), to have the
Company prepare and file with the Securities and Exchange Commission (the
"Commission"), on one occasion, at the sole expense of the Company, a
Registration Statement and such other documents, including a prospectus, as may
be necessary (in the opinion of both counsel for the Company and counsel for
such Majority Holder), in order to comply with the provisions of the Act, so as
to permit a public offering and sale of the Registrable Securities by the
holders thereof, for twelve (12) consecutive months. The Company shall not be
required to file any amendments to the Registration Statement required by this
subsection 7.4(a) except as is necessary to keep the disclosure about the
Company current.
(b) The Company covenants and agrees to give written notice of any
Demand Registration Request to all holders of the Registrable Securities within
ten (10) days from the date of the Company's receipt of any such Demand
Registration Request. After receiving notice from the Company as provided in
this Section 7.4(b), holders of Registrable Securities may request the Company
to include their Registrable Securities in the Registration Statement to be
filed pursuant to Section 7.4(a) hereof by notifying the Company of their
decision to include such securities within ten (10) days of their receipt of the
Company's notice.
(c) The term "Majority Holder" as used in this Section 7.4 shall mean
any holder or any combination of holders of Registrable Securities, if included
in such holders' Registrable Securities are that aggregate number of Shares
(including Shares already issued and Shares issuable pursuant to the exercise of
outstanding Warrants) as would constitute a majority of the aggregate number of
Shares (including Shares already issued and Shares issuable pursuant to the
exercise of outstanding Warrants) included in all of the Registrable Securities.
7.5 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. The Company
covenants and agrees as follows:
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(a) In connection with any registration under Section 7.4 hereof, the
Company shall file the Registration Statement as expeditiously as possible, but
in no event later than thirty (30) days following receipt of any demand
therefor, shall use its best efforts to have any such Registration Statements
declared effective at the earliest possible time. If a written request,
however, is received by the Company that would require the filing of a
Registration Statement between 45 and 105 days after the end of its fiscal year,
the deadline for the filing of the Registration Statement shall be extended
until the 106th day of such fiscal year. The Company shall furnish each holder
of Registrable Securities such number of prospectuses as shall reasonably be
requested. However, in connection with any registration under Sections 7.3 and
7.4 hereof, the Company shall have sole control in connection with the
preparation, filing, amending and supplementing of the Registration Statement,
including the right to withdraw the same or delay the filing or effectiveness
thereof when, in the sole judgment of the Board of Directors of the Company, the
filing or pendency of such registration statement or the effectiveness thereof
would impose an undue burden upon the ability by the Company to proceed with any
other material financing for its own account or any material corporate
transaction, including, but not limited to, a reorganization, recapitalization,
merger, consolidation or material acquisition of the securities or assets of
another firm or corporation; provided, however, that the Company's exercise of
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any such right of withdrawal or delay shall not be deemed a waiver of the rights
of the Holders, and the Company shall be required to file a new Registration
Statement or to proceed with such actions as reasonably may be required to cause
the Registration Statement to become effective within a reasonable time after
the consummation of the event or transaction which required such withdrawal or
delay.
(b) The Company shall pay all costs, fees and expenses in connection
with all Registration Statements filed pursuant to Sections 7.3 and 7.4(a)
hereof including, without limitation, the Company's legal and accounting fees,
printing expenses, and blue sky fees and expenses. Each Holder, however, shall
pay the underwriting discount attributable to such Holder's Registrable
Securities, any transfer tax payable with respect thereto and the fees and
expenses of such Holder's counsel.
(c) The Company will take all necessary action which may be required
in qualifying or registering the Registrable Securities included in a
Registration Statement for offering and sale under the securities or blue sky
laws of such states as are requested by the holders of such securities, provided
that the Company shall not be obligated to execute or file any general consent
to service of process or to qualify as a foreign corporation to do business
under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable
Securities to be sold pursuant to any Registration Statement and any underwriter
or person deemed to be an underwriter under the Act and each person, if any, who
controls such holder or underwriter or person deemed to be an underwriter within
the meaning of Section 15 of the Act or Section 20(a)
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of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all
loss, claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which any of them may become subject under the Act, the Exchange Act or
otherwise, arising from such Registration Statement to the same extent and with
the same effect as the provisions pursuant to which the Company has agreed to
indemnify the Underwriters contained in Section 8 of the Underwriting Agreement
and shall provide for just and equitable contribution as set forth in Section 8
of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a
Registration Statement, and its successors and assigns, shall severally, and not
jointly, indemnify the Company, its officers and directors and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished in writing by or on behalf of such holder, or its successors or
assigns, for specific inclusion in such Registration Statement to the same
extent and with the same effect as the provisions contained in Section 8 of the
Underwriting Agreement pursuant to which the Underwriters have agreed to
indemnify the Company and shall provide for just and equitable contribution as
set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as
requiring any Holder to exercise his Warrants prior to the initial filing of any
Registration Statement or the effectiveness thereof.
(g) If the Company shall fail to comply with the provisions of this
Article 7, the Company shall, in addition to any other equitable or other relief
available to the holders of Registrable Securities, be liable for any or all
incidental, special and consequential damages sustained by the holders of
Registrable Securities that request registration of their Registrable
Securities.
(h) Except as set forth in Section 7.5(j) hereof, the Company shall
not permit the inclusion of any securities other than the Registrable Securities
to be included in any Registration Statement filed pursuant to Section 7.4
hereof, or permit a Registration Statement relating to an underwritten offering
of the same securities as the Registrable Securities to be filed during an
underwritten offering of the Registrable Securities covered by a Registration
Statement filed pursuant to Section 7.4 hereof, without the prior written
consent of the Majority Holders, which consent shall not be unreasonably
withheld.
(i) The Company shall deliver promptly to each holder of Registrable
Securities
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participating in the offering in which such Holder's shares are being registered
pursuant to Section 7.3 hereof and requesting the correspondence and memoranda
described in this Section 7.5(i) and to the managing underwriter, if any, copies
of all correspondence between the Commission and the Company, its counsel or
auditors and all memoranda relating to discussions with the Commission or its
staff with respect to the Registration Statement and permit each holder of
Registrable Securities and underwriters to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted
from the Registration Statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. Such investigation shall include access to books, records and
properties and opportunities to discuss the business of the Company with its
officers and independent auditors, all to such reasonable extent and at such
reasonable times and as often as any such holder of Registrable Securities or
underwriter shall reasonably request.
(j) Upon the written request therefor by any holders of Registrable
Securities, the Company shall include in the Registration Statement filed for an
underwritten offering covering any such holders Registrable Securities, any
additional shares of Common Stock of the Company held by such holders as of the
date of filing of such Registration Statement. Notwithstanding Section 7.5(b)
hereof, the holders shall pay any additional costs, fees and expenses associated
with the inclusion on such Registration Statement of any of such holders' shares
of Common Stock that are not Registrable Securities which are included on the
Registration Statement. Notwithstanding the foregoing, if any such managing
underwriter shall advise the Company in writing that, in its opinion, the
distribution of all or a portion of the Common Stock that are not Registrable
Securities requested to be included in the Registration Statement concurrently
with the Registrable Securities being registered by such holders would
materially adversely affect the distribution of such offering, then such
additional shares of Common Stock shall be excluded from the Registration
Statement.
(k) Upon the written request therefor by any holders of Registrable
Securities, the Company shall include in the Registration Statement filed for a
non-underwritten offering covering any of the Registrable Securities, any other
securities of the Company held by such holders as of the date of filing of such
Registration Statement, including, without limitation, restricted shares of
Common Stock, options, warrants or any other securities convertible into shares
of Common Stock. Notwithstanding Section 7.5(b) hereof, the holders shall pay
any additional costs, fees and expenses associated with the inclusion on such
Registration Statement of any of such holders' other securities of the Company
that are not Registerable Securities which are included on the Registration
Statement.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SECURITIES. The following
adjustments apply to the Exercise Price of the Warrants with respect to the
Shares and the number of Shares purchasable upon exercise of the Warrants.
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8.1 COMPUTATION OF ADJUSTED PRICE. In case the Company shall at any time
after the date hereof pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to its stockholders, then upon such
dividend or distribution the Exercise Price in effect immediately prior to such
dividend or distribution shall forthwith be reduced to a price determined by
dividing:
(a) an amount equal to the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution multiplied by the
Exercise Price in effect immediately prior to such dividend or distribution, by
(b) the total number of shares of Common Stock outstanding immediately
after such issuance or sale.
For the purposes of any computation to be made in accordance with the
provisions of this Section 8.1, the shares of Common Stock issuable by way of a
dividend or other distribution on any shares of Common Stock of the Company
shall be deemed to have been issued immediately after the opening of business on
the date following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution.
8.2 SUBDIVISION AND COMBINATION. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of a subdivision or
increased in the case of a combination.
8.3 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Article 8, the number of
Shares issuable upon the exercise of each Warrant shall be adjusted to the
nearest full Share by multiplying a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of Shares issuable upon
exercise of the Warrants immediately prior to such adjustment and dividing the
product so obtained by the adjusted Exercise Price.
8.4 RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the surviving corporation
and which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or in the
case of a sale or conveyance to another corporation of the property of the
Company as an entirety, the Holders shall thereafter have the right to purchase
the kind and number of shares of stock and other securities and
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property receivable upon such reclassification, change, consolidation, merger,
sale or conveyance as if the Holders were the owners of the Shares immediately
prior to any such events and at an aggregate price equal to the product of (x)
the number of shares of Common Stock issuable upon exercise of the Holders'
Warrants and (y) the Exercise Price in effect immediately prior to the record
date for such reclassification, change, consolidation, merger, sale or
conveyance as if such Holders had exercised the Warrants.
8.5 DETERMINATION OF OUTSTANDING COMMON STOCK. The number of shares of
Common Stock at any one time outstanding shall include the aggregate number of
shares issued or issuable upon the exercise of options, rights, warrants and
upon the conversion or exchange of convertible or exchangeable securities.
8.6 SUBSCRIPTION RIGHTS FOR COMMON STOCK OR OTHER SECURITIES. In the case
that the Company or an affiliate of the Company shall at any time after the date
hereof and prior to the exercise of all of the Warrants issue any rights to
subscribe for shares of Common Stock or any other securities of the Company or
of such affiliate to all of the shareholders of the Company, the Holders of the
unexercised Warrants shall be entitled, in addition to the shares of Common
Stock or other securities receivable upon the exercise of the Warrants, to
receive at the time such rights as are distributed to the other shareholders of
the Company.
9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES.
Each Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Shares in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. ELIMINATION OF FRACTIONAL INTERESTS.
The Company shall not be required to issue certificates representing
fractions of Shares upon the exercise of the Warrants nor shall it be required
to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated
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by rounding any fraction up to the nearest whole number of Shares.
11. RESERVATION AND LISTING OF SECURITIES.
The Company shall at all times reserve and keep available out of its
authorized Common Stock, solely for the purpose of issuance upon the exercise of
the Warrants, such number of shares of Common Stock as shall be issuable upon
the exercise thereof. The Company covenants and agrees that, upon exercise of
the Warrants and payment of the Exercise Price therefor, all Shares issuable
upon such exercise shall be duly and validly issued, fully paid, non-assessable
and not subject to the preemptive rights of any shareholder. As long as the
Warrants shall be outstanding, the Company shall use its best efforts to cause
all shares of Common Stock issuable upon the exercise of the Warrants to be
listed on or quoted by the Nasdaq National Market, or listed on such national
securities exchanges as requested by the Underwriter.
12. NOTICES TO WARRANT HOLDERS.
Nothing contained in this Agreement shall be construed as conferring upon
the Holder or Holders the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the expiration of
the Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of all of the holders of its
shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash dividend
or distribution payable otherwise than out of current or retained earnings,
as indicated by the accounting treatment of such dividend or distribution
on the books of the Company; or
(b) the Company shall offer to all of the holders of its shares of
Common Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock of
the Company, or any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall
be proposed; or
(d) reclassification or change of the outstanding shares of Common
Stock (other than a change in par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination),
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the
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Company is the surviving corporation and which does not result in any
reclassification or change of the shares of outstanding Common Stock,
except a change as a result of a subdivision or combination of such shares
or a change in par value, as aforesaid), or a sale or conveyance to another
corporation of the property of the Company as an entirety is proposed; or
(e) the Company or an affiliate of the Company shall propose to issue
any rights to subscribe for shares of Common Stock or any other securities
of the Company or of such affiliate to all the stockholders of the Company;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, options or warrants, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the declaration or
payment of any such dividend or distribution, or the issuance of any convertible
or exchangeable securities or subscription rights, options or warrants, or any
proposed dissolution, liquidation, winding up or sale.
13. NOTICES.
All of notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made when delivered, or
mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Warrants, to the address of such
Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 of this
Agreement or to such other address as the Company may designate by notice
to the Holders.
14. SUPPLEMENTS AND AMENDMENTS.
The Company and the Representative may from time to time supplement or
amend this Agreement without the approval of any Holders of Warrant Certificates
in order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Representative may deem necessary or desirable and
which the Company and the Representative deem not to adversely affect the
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interests of the Holders of Warrant Certificates.
15. SUCCESSORS.
All of the covenants and provisions of this Agreement by or for the benefit
of the Company and the Holders inure to the benefit of their respective
successors and assigns hereunder.
16. TERMINATION.
This Agreement shall terminate at the close of business on __________, 2005
[THREE YEARS AFTER LAST DATE OF EXERCISE OF WARRANTS TO GIVE SUFFICIENT COVERAGE
FOR REGISTRATION OF THE SECURITIES AND PERIOD OF SALE]. Notwithstanding the
foregoing, this Agreement will terminate on any earlier date when all Warrants
have been exercised and all Shares have been resold to the public.
17. 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 Delaware and for all
purposes shall be construed in accordance with the laws of said State.
18. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and the Underwriter and any other registered
holder or holders of the Warrant Certificates, or Shares any legal or equitable
right, remedy or claim under this Agreement; and this Agreement shall be for the
sole and exclusive benefit of the Company and the Underwriter and any other
holder or holders of the Warrant Certificates, Warrants or the Shares.
19. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CONSOLIDATION CAPITAL CORPORATION
By: ____________________________________
Name:
Title:
Attest:
_________________________
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By: _____________________________________
Name:
Title:
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EXHIBIT A
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE HOLDER TO
THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL FOR THE
COMPANY, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE 5:00 P.M., NEW YORK TIME, _________, 2002
No. W-____ _______ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Friedman, Billings, ▇▇▇▇▇▇ & Co.,
Inc. or registered assigns, is the registered holder of _______ Warrants to
purchase, at any time from _______, 1998 until 5:00 P.M. New York City time on
________, 2002 ("Expiration Date"), up to _____ fully paid and non-assessable
shares ("Shares") of the Common Stock, par value $.001 per share ("Common
Stock"), of Consolidation Capital Corporation, a Delaware corporation (the
"Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $_____ per Share, upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the warrant
agreement dated as of __________ __, 1997 between the Company and Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc. (the "Warrant Agreement"). Payment of the Exercise
Price may be made in cash, or by check payable to the order of the Company, or
any combination of cash or check, or pursuant to Section 3.2 of the Warrant
Agreement.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
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The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to in a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and/or number of the Company's securities issuable thereupon
may, subject to certain conditions, be adjusted. In such event, the Company
will, at the request of the holder, issue a new Warrant Certificate evidencing
the adjustment in the Exercise Price and the number and/or type of securities
issuable upon the exercise of the Warrants; provided, however, that the failure
of the Company to issue such new Warrant Certificates shall not in any way
change, alter, or otherwise impair, the rights of the holder as set forth in the
Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax, or other governmental charge
imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: ___________, 199_ CONSOLIDATION CAPITAL CORPORATION
[SEAL] By: ______________________________
Name:
Title:
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[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _________ Shares and
herewith tenders in payment for such Shares cash or a certified or official bank
check payable in New York Clearing House Funds to the order of CONSOLIDATION
CAPITAL CORPORATION in the amount of $__________, all 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 that such Certificate be delivered to
__________________, whose address is _____________.
Dated: Signature:_______________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
________________________________
________________________________
(Insert Social Security or Other
Identifying Number of Holder)
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[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder desires
to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _________________________________________________
hereby sells, assigns and transfers unto
_____________________________________________________________________________
(Please print name and address of transferee)
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 within-named
Company, with full power of substitution.
Dated: Signature:______________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate)
_______________________________
________________________________
Insert Social Security or Other
Identifying Number of Assignee)
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