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EXHIBIT 4.28
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED UNLESS (i) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. HOLDERS MUST
RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS
INVOLVED.
Warrant to Purchase
600,000 shares
WARRANT TO PURCHASE COMMON STOCK
OF
SOLUTIONSAMERICA, INC.
THIS CERTIFIES that ▇▇▇▇▇▇ Private Equity, LLC or any subsequent holder
hereof pursuant to Section 8 hereof ("Holder"), has the right to purchase from
SOLUTIONSAMERICA, INC., a Delaware corporation (the "Company"), up to 600,000
fully paid and nonassessable shares of the Company's common stock, $.001 par
value per share ("Common Stock"), subject to adjustment as provided herein, at a
price equal to the Exercise Price as defined in Section 3 below, from time to
time as set forth herein beginning on the Date of Issuance (defined below) and
ending at 5:00 p.m., New York, New York time the date that is five (5) years
after the Date of Issuance (the "Exercise Period").
Holder agrees with the Company that this Warrant to Purchase Common Stock
of the Company (this "Warrant") is issued and all rights hereunder shall be held
subject to all of the conditions, limitations and provisions set forth herein.
1. Date of Issuance and Term.
This Warrant shall be deemed to be issued on May 3, 2000 ("Date of
Issuance"). The term of this Warrant is five (5) years from the Date of
Issuance.
Of this Warrant to purchase six hundred thousand (600,000) shares of Common
Stock of the Company, the Warrant is exercisable as to two hundred thousand
(200,000) shares of Common Stock of the Company after the fifteenth (15th)
business day document review period, as the same may be extended by mutual
consent, in writing, of the Company and the Holder (the "Document Review
Period") referenced in the Equity Line Letter of Agreement dated May 3, 2000,
between Holder and Company (the "Letter of Agreement") has ended, shall be
further exercisable as to an additional two hundred thousand (200,000) shares of
Common Stock of the Company upon the execution by both the Company and ▇▇▇▇▇▇
Private Equity, LLC of all Closing Documents (as defined in the Letter of
Agreement) and shall be further exercisable as to the remaining two
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hundred thousand (200,000) shares of Common Stock of the Company upon the
earlier of (i) the date of effectiveness of the Company's registration statement
(the "Registration Statement") to be filed pursuant to the Closing Documents, or
(ii) November 3, 2000.
Anything in this Warrant to the contrary notwithstanding, if the Company
delivers written notice to ▇▇▇▇▇▇ Private Equity, LLC prior to the expiration of
the Document Review Period that the legal documents for the transaction are
unacceptable and the Company wishes to terminate the transaction (an
"Unacceptable Document Notice") or if ▇▇▇▇▇▇ Private Equity, LLC notifies
Company in writing during the Document Review Period that, based on its due
diligence review, ▇▇▇▇▇▇ Private Equity, LLC elects not to proceed with its
obligations under the Letter of Agreement (a "Due Diligence Notice"), Holder
shall return this Warrant to the Company and all of Holder's rights under this
Warrant shall be null and void and of no effect, provided that, if the Company
has not delivered a Company Termination Notice to ▇▇▇▇▇▇ Private Equity, LLC,
prior to the expiration of the Review Period, ownership of this Warrant shall
irrevocably vest to the Holder, regardless of whether a Company Termination
Notice is delivered anytime thereafter.
2. Exercise.
(a) Manner of Exercise. During the Exercise Period, this Warrant may be
exercised as to all or any lesser number of full shares of Common Stock covered
hereby (the "Warrant Shares") to the extent then exercisable in accordance with
Section 1 hereof upon surrender of this Warrant, with the Exercise Form attached
hereto as Exhibit A (the "Exercise Form") duly completed and executed, together
with the full Exercise Price (as defined below) for each share of Common Stock
as to which this Warrant is exercised at the office of the Company, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman and CEO, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇; Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or at such
other office or agency as the Company may designate in writing, by overnight
mail, with an advance copy of the Exercise Form sent to the Company and its
Transfer Agent, if any, by facsimile (such surrender and payment of the Exercise
Price hereinafter called the "Exercise of this Warrant").
(b) Date of Exercise. The "Date of Exercise" of the Warrant shall be
defined as the date that the advance copy of the completed and executed Exercise
Form is sent by facsimile to the Company, provided that the original Warrant,
Exercise Form and payment of the Exercise Price are received by the Company
within three (3) business days thereafter. Alternatively, the Date of Exercise
shall be defined as the date the original Warrant, Exercise Form and payment of
the Exercise Price are received by the Company, if Holder has not sent advance
notice by facsimile or if the original documents are not timely received.
(c) Cancellation of Warrant. This Warrant shall be canceled upon the
Exercise of this Warrant, and, as soon as practical after the Date of Exercise,
Holder shall be entitled to receive Common Stock for the number of shares
purchased upon such Exercise of this Warrant, and if this Warrant is not
exercised in full, Holder shall be entitled to receive a new Warrant (containing
terms identical to this Warrant) representing any unexercised portion of this
Warrant in addition to such Common Stock.
(d) Holder of Record. Each person in whose name any Warrant for shares of
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Common Stock is issued shall, for all purposes, be deemed to be the Holder of
record of such shares on the Date of Exercise of this Warrant, irrespective of
the date of delivery of the Common Stock purchased upon the Exercise of this
Warrant. Nothing in this Warrant shall be construed as conferring upon Holder
any rights as a stockholder of the Company.
3. Payment of Warrant Exercise Price.
The Exercise Price per share ("Exercise Price") shall initially equal (the
"Initial Exercise Price") $1.00; provided, however, that if the Date of Exercise
is after the Trading Initiation Date (as defined below) and the "Lowest Reset
Price" (as defined below) is less than $1.00, then, the Exercise Price shall be
reduced to equal the "Lowest Reset Price". The Company shall calculate a "Reset
Price" on the Trading Initiation Date, which shall equal the lowest Closing Bid
Price of the Company's Common Stock for the five (5) consecutive Trading Days
beginning on and following the Trading Initiation Date, and shall calculate a
"Reset Price" on each six-month anniversary date of the Trading Initiation Date,
which shall equal the lowest Closing Bid Price of the Company's Common Stock for
the five (5) Trading Days ending on such six-month anniversary date of the
Trading Initiation Date. The "Lowest Reset Price" shall equal the lowest Reset
Price determined on the Trading Initiation Date or any six-month anniversary
date of the Trading Initiation Date preceding the Date of Exercise, taking into
account, as appropriate, any adjustments made pursuant to Section 5 hereof. For
purposes hereof, "Trading Initiation Date" shall mean the date that the
Company's Common Stock first becomes publicly traded on a national exchange or
market and a "Trading Day" shall mean a day on which the Company's Common Stock
actually trades on its principal market or exchange.
Payment of the Exercise Price may be made by either of the following, or a
combination thereof, at the election of Holder:
(i) Cash Exercise: cash, bank or cashiers check or wire transfer; or
(11) Cashless Exercise: The Holder, at its option, may exercise this
Warrant in a cashless exercise transaction under this subsection (ii) if and
only if, on the Date of Exercise, there is not then in effect a current
registration statement that covers the resale of the shares of Common Stock to
be issued upon exercise of this Warrant. In order to effect a Cashless Exercise,
the Holder shall surrender this Warrant at the principal office of the Company
together with notice of cashless election, in which event the Company shall
issue Holder a number of shares of Common Stock computed using the following
formula:
X = Y(A-B)/A
where X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock for which this Warrant is
being exercised.
A = the Market Price of one (1) share of Common Stock (for purposes
of this Section 3(ii), the "Market Price" shall be defined as the average
Closing Price of the Common Stock for the five (5) Trading Days prior to
the Date of Exercise of this Warrant (the "Average Closing Bid Price"), as
reported by the O.T.C. Bulletin Board, National Association of Securities
Dealers Automated Quotation System ("Nasdaq") Small Cap Market, or if the
Common Stock is not traded on the Nasdaq Small Cap Market, the Average
Closing Price is any other over-the-counter market; provided,
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however that if the Common Stock is listed on a stock exchange, the
Market Price shall be the Average Closing Bid Price on such exchange for
the five (5) Trading Days prior to the date of exercise of the
Warrants. If the Common Stock is not traded during the five (5) Trading
Days prior to the Date of Exercise, then the closing price for the last
publicly traded day shall be deemed to be the closing price for any and
all (if applicable) days during such five (5) Trading Day period.
B = the Exercise Price.
For purposes hereof, the term "Closing Bid Price" shall mean the closing
bid price on the Nasdaq Small Cap Market, the National Market System ("NMS"),
the New York Stock Exchange, the American Stock Exchange, or the O.T.C.
Bulletin Board, or if no longer traded on the Nasdaq Small Cap Market, the
National Market System ("NMS"), the New York Stock Exchange, the American Stock
Exchange, or the O.T.C. Bulletin Board, the "Closing Bid Price" shall equal the
closing price on the principal national securities exchange or the
over-the-counter system on which the Common Stock is so traded and, if not
available, the mean of the high and low prices on the principal national
securities exchange on which the Common Stock is so traded.
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is
intended, understood and acknowledged that the Common Stock issuable upon
exercise of this Warrant in a cashless exercise transaction shall be deemed to
have been acquired at the time this Warrant was issued. Moreover, it is
intended, understood and acknowledged that the holding period for the Common
Stock issuable upon exercise of this Warrant in a cashless exercise transaction
shall be deemed to have commenced on the date of this Warrant was issued.
4. Transfer and Registration.
(a) Transfer Rights. Subject to the provisions of Section 8 of this
Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly
completed and endorsed. This Warrant shall be canceled upon such surrender and,
as soon as practicable thereafter, the person to whom such transfer is made
shall be entitled to receive a new Warrant or Warrants as to the portion of
this Warrant transferred, and Holder shall be entitled to receive a new Warrant
as to the portion hereof retained.
(b) Registrable Securities. In addition to any other registration rights
of the Holder, if the Common Stock issuable upon exercise of this Warrant is
not registered for resale at the time the Company proposes to register
(including for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its Common Stock under the Act
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan or a registration on Form S-4 promulgated
under the Act or any successor or similar form registered stock issuable upon a
reclassification, upon a business combination involving an exchange of
securities or upon an exchange offer for securities of the issuer or another
entity) (a "Piggyback Registration Statement"), the Company shall cause to be
included in such Piggyback Registration Statement ("Piggyback Registration")
all of the Common Stock issuable upon the exercise of this Warrant
("Registrable Securities") to the extent such inclusion does not violate the
registration rights of any other securityholder of the Company granted prior to
the date hereof. Nothing herein shall prevent the Company from withdrawing or
abandoning the Piggyback Registration Statement prior to its effectiveness.
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(c) Limitation on Obligations to Register under a Piggyback Registration.
In the case of a Piggyback Registration pursuant to an underwritten public
offering by the Company, if the managing underwriter determines and advises in
writing that the inclusion in the registration statement of all Registrable
Securities proposed to be included would interfere with the successful marketing
of the securities proposed to be registered by the Company, then the number of
such Registrable Securities to be included in the Piggyback Registration
Statement, to the extent such Registrable Securities may be included in such
Piggyback Registration Statement, shall be allocated among all Holders who had
requested Piggyback Registration pursuant to the terms hereof, in the proportion
that the number of Registrable Securities which each such Holder seeks to
register bears to the total number of Registrable Securities sought to be
included by all Holders. If required by the managing underwriter of such an
underwritten public offering, the Holders shall enter into a reasonable
agreement limiting the number of Registrable Securities to be included in such
Piggyback Registration Statement and the terms, if any, regarding the future
sale of such Registrable Securities.
5. Anti-Dilution Adjustments.
(a) Stock Dividend. If the Company shall at any time declare a dividend
payable in shares of Common Stock, then Holder, upon Exercise of this Warrant
after the record date for the determination of holders of Common Stock entitled
to receive such dividend, shall be entitled to receive upon Exercise of this
Warrant, in addition to the number of shares of Common Stock as to which this
Warrant is exercised, such additional shares of Common Stock as such Holder
would have received had this Warrant been exercised immediately prior to such
record date and the Exercise Price will be proportionately adjusted.
(b) Recapitalization or Reclassification.
(i) Stock Split. If the Company shall at any time effect a
recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a larger number of shares (a "Stock Split"), then upon the
effective date thereof, the number of shares of Common Stock which Holder shall
be entitled to purchase upon Exercise of this Warrant shall be increased in
direct proportion to the increase in the number of shares of Common Stock by
reason of such recapitalization, reclassification or similar transaction, and
the Exercise Price shall be proportionately decreased.
(ii) Reverse Stock Split. If the Company shall at any time effect a
recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a smaller number of shares (a "Reverse Stock Split"), then upon
the effective date thereof, the number of shares of Common Stock which Holder
shall be entitled to purchase upon Exercise of this Warrant shall be
proportionately decreased and the Exercise Price shall be proportionately
increased. The Company shall give Holder the same notice it provides to holders
of Common Stock of any transaction described in this Section 5(b).
(c) Distributions. If the Company shall at any time distribute for no
consideration to holders of Common Stock cash, evidences of indebtedness or
other securities or assets (other than cash dividends or distributions payable
out of earned surplus or net profits or retained earnings for the current or
preceding years) then, in any such case, Holder shall be entitled to receive,
upon Exercise of this Warrant, with respect to each share of Common Stock
issuable upon such exercise, the amount of cash or evidences of indebtedness or
other securities or assets which Holder would have been entitled to receive with
respect to
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each such share of Common Stock as a result of the happening of such event had
this Warrant been exercised immediately prior to the record date or other date
fixing shareholders to be affected by such event (the "Determination Date") or,
in lieu thereof, if the Board of Directors of the Company should so determine at
the time of such distribution, a reduced Exercise Price determined by
multiplying the Exercise Price on the Determination Date by a fraction, the
numerator of which is the result of such Exercise Price reduced by the value of
such distribution applicable to one share of Common Stock (such value to be
determined by the Board of Directors of the Company in its discretion) and the
denominator of which is such Exercise Price.
(d) Notice of Consolidation or Merger. In the event of a merger,
consolidation, exchange of shares, recapitalization, reorganization or other
similar event, as a result of which shares of Common Stock shall be changed into
the same or a different number of shares of the same or another class or classes
of stock or securities or other assets of the Company or another entity or there
is a sale of all or substantially all the Company's assets (a "Corporate
Change"), then this Warrant shall be exercisable into such class and type of
securities or other assets as Holder would have received had Holder exercised
this Warrant immediately prior to such Corporate Change: provided, however, that
Company may not effect any Corporate Change unless it first shall have given
thirty (30) days notice to Holder hereof of any Corporate Change.
(e) Exercise Price Adjusted. As used in this Warrant, the term
"Exercise Price" shall mean the purchase price per share specified in Section 3
of this Warrant, until the occurrence of an event stated in subsection (a),(b)
or (c) of this Section 5, and thereafter shall mean said price as adjusted from
time to time in accordance with the provisions of said subsection. No such
adjustment under this Section 5 shall be made unless such adjustment would
change the Exercise Price at the time by $.01 or more; provided, however, that
all adjustments not so made shall be deferred and made when the aggregate
thereof would change the Exercise Price at the time by $.01 or more.
(f) Adjustments: Additional Shares, Securities or Assets. In the
event that at any time, as a result of an adjustment made pursuant to this
Section 5, Holder shall, upon Exercise of this Warrant, become entitled to
receive shares and/or other securities or assets (other than Common Stock) then,
wherever appropriate, all references herein to shares of Common Stock shall be
deemed to refer to and include such shares and/or other securities or assets;
and thereafter the number of such shares and/or other securities or assets shall
be subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 5.
6. Fractional Interests.
No fractional shares or scrip representing fractional
shares shall be issuable upon the Exercise of this Warrant, but on Exercise of
this Warrant, Holder may purchase only a whole number of shares of Common Stock.
If, on Exercise of this Warrant, Holder would be entitled to a fractional share
of Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded and the number of shares of Common Stock
issuable upon exercise shall be the next higher number of shares.
7. Reservation of Shares.
The Company shall at all times reserve for issuance such
number of authorized and unissued shares of Common Stock (or other securities
substituted therefor as herein above provided) as shall be sufficient for the
Exercise of this Warrant and payment of the Exercise Price. The Company
covenants and agrees that upon the Exercise
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of this Warrant, all shares of Common Stock issuable upon such exercise shall be
duly and validly issued, fully paid, nonassessable and not subject to preemptive
rights, rights of first refusal or similar rights of any person or entity.
8. Restrictions on Transfer.
(a) Registration or Exemption Required. This Warrant has been issued in a
transaction exempt from the registration requirements of the Act by virtue of
Section 3(b), Section 4(2) and/or Regulation D promulgated thereunder and exempt
from state registration under applicable state laws. The Warrant and the Common
Stock issuable upon the Exercise of this Warrant may not be pledged,
transferred, sold or assigned except pursuant to an effective registration
statement or unless the Company has received an opinion from the Company's
counsel to the effect that such registration is not required, or the Holder has
furnished to the Company an opinion of the Holder's counsel, which counsel shall
be reasonably satisfactory to the Company, to the effect that such registration
is not required; the transfer complies with any applicable state securities
laws; and, if no registration covering the resale of the Warrant Shares is
effective at the time the Warrant Shares are issued, the Holder consents to a
legend being placed on certificates for the Warrant Shares stating that the
securities have not been registered under the Securities Act and referring to
such restrictions on transferability and sale.
(b) Assignment. If Holder can provide the Company with reasonably
satisfactory evidence that the conditions of (a) above regarding registration or
exemption have been satisfied, Holder may sell, transfer, assign, pledge or
otherwise dispose of this Warrant, in whole or in part. Holder shall deliver a
written notice to Company, substantially in the form of the Assignment attached
hereto as Exhibit B, indicating the person or persons to whom the Warrant shall
be assigned and the respective number of warrants to be assigned to each
assignee. The Company shall effect the assignment within ten (10) days, and
shall deliver to the assignee(s) designated by Holder a Warrant or Warrants of
like tenor and terms for the appropriate number of shares.
9. Benefits of this Warrant.
Nothing in this Warrant shall be construed to confer upon any person
other than the Company and Holder any legal or equitable right, remedy or
claim under this Warrant and this Warrant shall be for the sole and exclusive
benefit of the Company and Holder.
10. Applicable Law.
This Warrant is issued under and shall for all purposes be governed by
and construed in accordance with the laws of the state of Delaware, without
giving effect to conflict of law provisions thereof.
11. Loss of Warrant.
Upon receipt by the Company of evidence of the loss, theft, destruction
or mutilation of this Warrant, and (in the case of loss, theft or destruction)
of indemnity or security reasonably satisfactory to the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
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12. Notice or Demands.
Notices or demands pursuant to this Warrant to be given or made by Holder
to or on the Company shall be sufficiently given or made if sent by certified or
registered mail, return receipt requested, postage prepaid, and addressed, until
another address is designated in writing by the Company, to the address set
forth in section 2(a) above. Notices or demands pursuant to this Warrant to be
given or made by the Company to or on Holder shall be sufficiently given or made
if sent by certified or registered mail, return receipt requested, postage
prepaid, and addressed, to the address of Holder set forth in the Company's
records, until another address is designated in writing by Holder.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
3rd day of May, 2000.
SOLUTIONSAMERICA, INC. a
Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman & CEO
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EXHIBIT A
EXERCISE FORM FOR WARRANT
TO: SOLUTIONS AMERICA, INC.
The undersigned hereby irrevocably exercises the right to purchase
_________ of the shares of Common Stock (the "Common Stock") of SOLUTIONS
AMERICA, INC., a Delaware corporation (the "Company"), evidenced by the
attached warrant (the "Warrant"), and herewith makes payment of the exercise
price with respect to such shares in full, all in accordance with the
conditions and provisions of said Warrant.
1. The undersigned agrees not to offer, sell, transfer or otherwise dispose
of any of the Common Stock obtained on exercise of the Warrant, except in
accordance with the provisions of Section 8(a) of the Warrant.
2. The undersigned requests that stock certificates for such shares be
issued free of any restrictive legend, if appropriate, and a warrant
representing any unexercised portion hereof be issued, pursuant to the Warrant
in the name of the undersigned and delivered to the undersigned at the address
set forth below:
Dated:
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Signature
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Print Name
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Address
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NOTICE
The signature to the foregoing Exercise Form must correspond to the name as
written upon the face of the attached Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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EXHIBIT B
ASSIGNMENT
(To be executed by the registered holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned holder of the attached warrant (the
"Warrant") hereby sells, assigns and transfers unto the person or persons
below named the right to purchase _________ shares of the Common Stock of
SOLUTIONS AMERICA, INC.
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evidenced by the attached Warrant and does hereby irrevocably constitute and
appoint ______________________ attorney to transfer the said Warrant on the
books of the Company, with full power of substitution in the premises.
Dated: __________ ____________________________________
Signature
Fill in for new registration of Warrant:
_________________________________________
Name
_________________________________________
Address
_________________________________________
Please print name and address of assignee
(including zip code number)
_______________________________________________________________________________
NOTICE
The signature to the foregoing Assignment must correspond to the name as written
upon the face of the attached Warrant in every particular, without alteration or
enlargement or any change whatsoever.
_______________________________________________________________________________
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[SOLUTIONS AMERICA, INC. LOGO] FAX
TO: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ESQ. FROM: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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FAX: ▇▇▇-▇▇▇-▇▇▇▇ PAGES: 12 incl. cover
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PHONE: ▇▇▇-▇▇▇-▇▇▇▇ DATE: MAY 19, 2000
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RE: ENGAGEMENT WARRANT CC: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
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COMMENTS:
CONFIDENTIAL