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EXHIBIT 4.2
WARRANT AGREEMENT
THIS WARRANT AGREEMENT ("Agreement") is made and entered into as of
this___ day of _______ 1997, by and between 800 Travel Systems, Inc., a
Delaware corporation ("Company"), and Continental Stock Transfer Corporation, a
New York corporation, as warrant agent ("Warrant Agent").
WHEREAS, the Company proposes to offer and sell a maximum of 2,070,000
shares of common stock ("Common Stock"), $.01 par value per share, (which
includes 270,000 shares of Common Stock pursuant to the Underwriters'
over-allotment option) at a purchase price of $____ per share and 2,070,000
Redeemable Common Stock Purchase Warrants ("Warrants") (which includes 270,000
Warrants pursuant to the Underwriters' over-allotment option) at a purchase
price of $.125 per Warrant pursuant to a Registration Statement on Form SB-2
(the "Prospectus"), File Number 333-28237, filed with the Securities and
Exchange Commission; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, registration of transfer, exchange and exercise of the
Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth in this Agreement, and the Warrant Agent
hereby accepts such appointment.
2. Form of Warrants. The text and the terms of the Warrants, and
the form of election to purchase shares of Common Stock appearing on the
reverse side thereof shall be substantially as set forth in Exhibit A attached
hereto and made a part hereof. The Warrants shall be executed on behalf of the
Company by the manual or facsimile signature of the Chairman, Vice Chairman of
the Company or President or Chief Executive Officer and by the manual or
facsimile of the secretary or assistant secretary of the Company under its
corporate seal, affixed or in facsimile.
The Warrants shall be dated by the Warrant Agent as of the initial
date of issuance thereof, and upon transfer or exchange, the Warrant shall be
dated as of such subsequent issuance date.
The Warrants shall expire at 5:00 p.m. (New York time) on
____________, 2002. If such date shall, in the State of New York, be a holiday
or a day in which banks are authorized to close, then the Warrants shall expire
the next following day which in the State of New York is not a holiday or a day
on which banks are authorized to close.
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3. Registration and Countersignature. The Warrant Agent shall
maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register
the Warrants in the names of the respective registered holders, and upon
subsequent issuance, such Warrants shall be registered in the names of the
respective succeeding registered holders. The Warrants shall be countersigned
by the Warrant Agent (or by any successor to the Warrant Agent then acting as
warrant agent under this Agreement) and shall not be valid for any purpose
unless so countersigned. Warrants may be so countersigned, however, by the
Warrant Agent (or by its successor as warrant agent) and be delivered by the
Warrant Agent, notwithstanding that the persons whose manual or facsimile
signature appear thereon as proper officers of the Company shall have ceased to
be such officers at the time of such countersignature or delivery. Until a
Warrant is transferred on the books of the Warrant Agent, the Company and the
Warrant Agent may treat any registered holder of Warrants as the absolute owner
thereof for all purposes, notwithstanding any notice to the contrary.
4. Registration of Transfers and Exchanges. The Warrant Agent
shall transfer any outstanding Warrants on the books to be maintained by the
Warrant Agent for that purpose, upon surrender thereof for transfer, properly
endorsed or accompanied by appropriate instructions for transfer with proper
documentary stamps affixed thereto, if requested. Upon any such transfer, a
new Warrant shall be issued to the transferee, and the surrendered Warrant
shall be canceled by the Warrant Agent. Warrants so canceled shall be
delivered by the Warrant Agent to the Company from time to time. Warrants may
be exchanged at the option of the holder thereof when surrendered at the office
of the Warrant Agent, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of shares of Common Stock. The Warrant Agent is hereby
irrevocably authorized to countersign and deliver the Warrants in accordance
with the provisions of this Paragraph 4, and the Company, whenever required by
the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
5. Exercise of Warrants. Subject to the provisions of this
Agreement, each registered holder of Warrants shall have the right, which right
may be exercised as in such Warrants as expressed, to purchase from the
Company, and the Company shall issue and sell to such registered holder of
Warrants, the number of fully paid and nonassessable shares of Common Stock
specified in such Warrants, upon surrender to the Company at the office of the
Warrant Agent, with the form of election to purchase on the reverse side
thereof duly completed and signed, and upon payment to the Warrant Agent for
the account of the Company of the Exercise Price for the number of shares of
Common Stock in respect of which such Warrants are then exercised. Payment of
such Exercise Price may be made in cash or by certified check, bank draft, or
postal or express money order, payable in United States dollars, to the order
of the Company. Subject to the provisions of Paragraph 8 hereof, upon such
surrender of Warrants and payment of the Exercise Price as aforesaid, the
Company, acting through the Warrant Agent, shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
registered holder of such Warrants and in such name or names as such registered
holder may designate, a certificate or certificates for the number of full
shares of Common Stock so purchased upon the exercise of such Warrants. Such
certificates
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shall be deemed to have been issued, and any person so designated to be named
therein shall be deemed to have become a holder of record of such Common Stock,
as of the date of surrender of such Warrants and payment of the Exercise Price,
as aforesaid; provided, however, that if, at the date of surrender of such
Warrants and the payment of such Exercise Price, the transfer books for the
Common Stock purchasable upon the exercise of such Warrants shall be closed,
the certificates for the Common Stock in respect of which such Warrants are
then exercised shall be issuable as of the date on which such books shall next
be opened, and until such date the Company shall be under no duty to deliver
any certificate for such shares; provided further, however, that the transfer
books aforesaid, unless otherwise required by law, shall not be closed at any
one time for a period longer than 20 days. The right of purchase represented
by the Warrants shall be exercisable, at the election of the registered holders
thereof, either as an entirety or, from time to time, for only part of the
Common Stock specified therein, and in the event that any Warrant is exercised
in respect of less than all of the Common Stock specified therein at any time
prior to the date of expiration of the Warrants, a new Warrant or Warrants will
be issued for the remaining number of Common Stock specified in the Warrant so
surrendered, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrants pursuant to the provisions
of this Paragraph 5 and of Paragraph 3 of this Agreement, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such purposes.
Notwithstanding anything contained herein to the contrary, no Warrant
may be exercised if the issuance of Common Stock in connection therewith would
constitute a violation of the registration provisions of federal or state
securities laws.
Upon 30 days prior written notice to all holders of the Warrants, the
Company shall have the right to reduce the exercise price and/or extend the
term of the Warrants in compliance with the requirements of Rule 13e-4 to the
extent applicable.
The "Exercise Price" of the Warrants shall mean the exercise price
specified in the Warrants until the occurrence of a re-capitalization or
reclassification that, pursuant to the provisions hereof, shall require an
increase or decrease in the exercise price of the Warrants, and thereafter
shall mean said price as adjusted from time to time in accordance with the
provisions hereof. No such adjustment shall be made unless such adjustment
would change the then purchase price per share by ten cents ($.10) or more;
provided, however, that all adjustments not so made shall be deferred and made
when the aggregate thereof would change the then purchase price per share by
ten cents ($.10) or more. No adjustment made pursuant to any provision hereof
shall have the effect of increasing the total consideration payable upon
exercise of any of the Warrants.
6. Adjustments in Certain Cases. In case the Company shall at
any time prior to the exercise or termination of any of the Warrants effect a
recapitalization or reclassification of such character that its Common Stock
shall be changed into or become exchangeable for a larger or smaller number of
shares, then, upon the effective date thereof, the number of shares of Common
Stock that the holders of the Warrants shall be entitled to purchase upon
exercise thereof shall be
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increased or decreased, as the case may be, in direct proportion to the
increase or decrease in such number of shares of Common Stock by reason of such
recapitalization or reclassification, and the purchase price per share of such
recapitalized or reclassified Common Stock shall, in the case of an increase in
the number of shares, be proportionately decreased and, in the case of a
decrease in the number of shares, be proportionately increased.
In case the Company shall at any time prior to the exercise or
termination of any of the Warrants distribute to holders of its Common Stock
cash, evidences of indebtedness, or other securities or assets, other than as
dividends or distributions payable out of current or accumulated earnings,
then, in any such case, the holders of the Warrants shall be entitled to
receive, upon exercise thereof, 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 that such holder would have been entitled to receive
with respect to the Common Stock as a result of the happening of such event,
had the Warrants been exercised immediately prior to the record date or other
date fixing shareholders to be affected by such event (without giving effect to
any restriction upon such exercise).
In case the Company shall at any time prior to the exercise or
termination of any of the Warrants consolidate or merge with any other
corporation or transfer all or substantially all of its assets to any other
corporation preparatory to a dissolution, then the Company shall, as a
condition precedent to such transaction, cause effective provision to be made
so that the holders of the Warrants, upon the exercise thereof after the
effective date of such transaction, shall be entitled to receive the kind and
amount of shares, evidences of indebtedness, and/or other property receivable
on such transaction by a holder of the number of shares of Common Stock as to
which the Warrants were exercisable immediately prior to such transaction
(without giving effect to any restriction upon such exercise); and, in any such
case, appropriate provision shall be made with respect to the rights and
interests of the holders thereof to the effect that the provisions of the
Warrants shall thereafter be applicable (as nearly as may be practicable) with
respect to any shares, evidences of indebtedness, or other securities or assets
thereafter deliverable upon exercise of the Warrants.
Whenever the number of shares of Common Stock or other types of
securities or assets purchasable upon exercise of any of the Warrants shall be
adjusted as provided herein, the Company shall forthwith obtain and file with
its corporate records a certificate or letter from a firm of independent public
accountants of recognized standing setting forth the computation and the
adjusted number of shares of Common Stock or other securities or assets
purchasable hereunder resulting from such adjustments, and a copy of such
certificate or letter shall be mailed to each of the registered holders of the
Warrants. Any such certificate or letter shall be conclusive evidence as to
the correctness of the adjustment or adjustments referred to therein and shall
be available for inspection by the holders of the Warrants on any day during
normal business hours.
In the event that at any time as a result of an adjustment made
pursuant hereto the holders of the Warrants shall become entitled to purchase
upon exercise thereof shares, evidences of indebtedness, or other securities or
assets (other than Common Stock), then, wherever appropriate,
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all references herein to Common Stock shall be deemed to refer to and include
such shares, evidences of indebtedness, or other securities or assets, and
thereafter the number of such shares, evidences of indebtedness, 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
hereof.
7. Redemption. The Warrants may be redeemed at the option of the
Company, at a redemption price of $.05 per Warrant, upon not less than 30 days
nor more than 60 days prior written notice, if the closing price of the Common
Stock, as reported by the principal exchange on which the Common Stock is
traded, the Nasdaq Small Cap Market or the National Quotation Bureau,
Incorporated, as the case may be, for 7 days during any 10 consecutive trading
day period ending not more than 15 days prior to the date the notice of
redemption is marked equals or exceeds $_____ per share (200% of the Share
Offering Price), subject to adjustment under certain circumstances during a
period of 30 consecutive trading days ending not earlier than 10 days before
the date of the Warrants are called for redemption and provided there is a
current registration statement under the Securities Act of 1933, as amended,
with respect to the issuance and sale of Common Stock upon the exercise of the
Warrants. Any redemption of the Warrants during the one-year period commencing
on _____, 1997 shall require the written consent of First London Securities
Corporation the representative of the Underwriters (the "Representative"). On
and after the date fixed for redemption, the Registered Holder shall have no
rights with respect to the Warrants except to receive the $.05 per Warrant upon
surrender of this Warrant Certificate.
8. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of securities upon the
exercise of the Warrants; provided, however, that the Company shall not be
required to pay any tax or taxes that may be payable in respect of any transfer
involved in the issuance or delivery of any securities in a name other than
that of the registered holder of Warrants in respect of which such securities
are issued and, in such case, neither the Company nor the Warrant Agent shall
be required to issue or deliver any certificate representing such securities or
any Warrant until the person requesting the same has paid to the Company or the
Warrant Agent the amount of such tax or has established to the Company's
satisfaction that such tax has been paid.
9. Mutilated or Missing Warrants. In case any of the Warrants
shall be mutilated, lost, stolen or destroyed, the Warrant Agent may
countersign and deliver in exchange and substitution for and upon cancellation
of the mutilated Warrant or in lieu of and substitution for the Warrant lost,
stolen or destroyed, a new Warrant of like tenor and representing an equivalent
right or interest, but only upon receipt of evidence satisfactory to the
Warrant Agent of such loss, theft or destruction of such Warrants and
indemnity, if requested, also satisfactory to them. Applicants for such
substitute Warrants shall also comply with such other reasonable regulations
and pay such other reasonable charges as the Company or the Warrant Agent may
prescribe.
10. Reservation of Common Stock. Prior to the issuance of any
Warrants, there shall have been reserved, and the Company shall at all times
keep reserved out of the authorized and unissued Common Stock, a number of
shares of Common Stock sufficient to provide for the exercise
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of the rights of purchase represented by the Warrants, and the transfer agent
for the Common Stock and every subsequent transfer agent for any of the
Company's Common Stock issuable upon the exercise of any of the rights of
purchase aforesaid are hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued Common Stock as shall be
requisite for such purpose. The Company agrees that all Common Stock issued
upon exercise of the Warrants shall be, at the time of delivery of the
certificates representing such Common Stock, validly issued and outstanding,
fully paid and non-assessable. The Company will keep a copy of this Agreement
on file with the transfer agent for the Common Stock and with every subsequent
transfer agent for the Company's Common Stock issuable upon the exercise of the
right of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such transfer
agent stock certificates required to honor outstanding Warrants that have been
exercised. The Company will supply such transfer agent with duly executed
stock certificates for such purpose. All Warrants surrendered in the exercise
of the rights thereby evidenced shall be canceled by the Warrant Agent and
shall thereafter be delivered to the Company, and such canceled Warrants shall
constitute sufficient evidence of the number of shares of Common Stock that
have been issued upon the exercise of such Warrants. All Warrants surrendered
for transfer, exchange or partial exercise shall be canceled by the Warrant
Agent and delivered to the Company. Promptly after the date of expiration of
the Warrants, the Warrant Agent shall certify to the Company the total
aggregate amount of Warrants then outstanding and, thereafter, no Common Stock
shall be subject to reservation in respect of such Warrants.
11. Disposition of Proceeds on Exercise of Warrants. Unless
otherwise instructed by the Company in writing, the Warrant Agent shall account
promptly to the Company with respect to Warrants exercised and shall promptly
deposit in an account for the benefit of the Company, in a bank designated by
the Company, all moneys received by the Warrant Agent for the purchase of
Common Stock through the exercise of such Warrants.
12. Merger or Consolidation or Change of Name of Warrant Agent.
Any corporation or company that may succeed to the business of the Warrant
Agent by merger or consolidation or otherwise to which the Warrant Agent shall
be a party, or any corporation or company or otherwise succeeding to the
business of the Warrant Agent shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, that such corporation
would be eligible for appointment as a successor Warrant Agent under the
provision of Paragraph 14 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement or in case at any time the name of the Warrant Agent shall be
changed, and any of the Warrants shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent and deliver such Warrants so
countersigned; and in case at the time any of the Warrants shall not have been
countersigned, the successor to the Warrant Agent may countersign such
Warrants, either in the name of the predecessor Warrant Agent or in the name of
the successor Warrant Agent; and in all such cases, such Warrants shall have
the full force provided in the Warrants and in this Agreement.
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In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrants so countersigned; and if at that time any of the
Warrants shall not have been countersigned, the Warrant Agent may countersign
such Warrants either in its prior name or in its changed name; and in all such
cases, such Warrants shall have the full force provided in the Warrants and
this Agreement.
13. Duties of the Warrant Agent.
(a) The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company shall be bound:
(i) The statements contained herein and in the
Warrants shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same, except such
as describe the Warrant Agent or action or actions taken or to be taken by it.
The Warrant Agent assumes no responsibility with respect to the distribution of
the Warrants, except as herein otherwise provided.
(ii) The Warrant Agent shall not be responsible
for any failure of the Company to comply with any of the covenants contained in
this Agreement or in the Warrants to be complied with by the Company.
(iii) The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty hereunder,
either itself, or by or through its attorneys, agents or employees.
(iv) The Warrant Agent may consult at any time
with counsel satisfactory to it (who may be counsel for the Company), and the
Warrant Agent shall incur no liability or responsibility to the Company or to
any holder of any Warrant in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or advice of
such counsel, provided the Warrant Agent shall have exercised reasonable care
in the selection and continued employment of such counsel.
(v) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant for any action
taken in reliance upon any notice, resolution, waiver, consent, order,
certificate or other paper, document or instrument reasonably believed by it to
have been signed, sent or presented by the proper party or parties.
(vi) The Company agrees to pay the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent in the
execution of this Agreement; to reimburse the Warrant Agent for all expenses,
taxes, governmental charges and other charges of any kind and nature incurred
by the Warrant Agent in the execution of this Agreement; and to indemnify the
Warrant Agent and save it harmless from and against any and all liabilities,
including judgments,
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costs and reasonable attorneys' fees for anything done or omitted by the
Warrant Agent in the execution of this Agreement, except as a result of the
Warrant Agent's negligence or bad faith.
(vii) The Warrant Agent shall be under no
obligation to institute any action, suit or legal proceeding, or to take any
other action likely to involve expense, unless the Company or one or more
registered holders of Warrants shall furnish the Warrant Agent with reasonable
security and indemnity. All rights of action under this Agreement or under any
of the Warrants or in the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and any recovery
of judgment shall be for the benefit of the registered holders of the Warrants,
as their respective rights or interests may appear.
(viii) The Warrant Agent and any shareholder,
director, officer, partner or employee of the Warrant Agent may buy, sell or
deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as fully and
freely as though it were not the Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(ix) The Warrant Agent shall act hereunder solely
as agent, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything that it may do or refrain
from doing in connection with this Agreement, except for its own negligence or
bad faith.
(x) The Warrant Agent shall keep copies of this
Agreement available for inspection by holders of the Warrants during normal
business hours at its principal office in New York.
14. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving notice in writing to
the Company and by giving notice by mailing to holders of the Warrants at their
addresses as such addresses appear on the Warrant register of such resignation,
specifying a date when such resignation shall take effect, which date shall not
be less than 30 days after the mailing of said notice. The Warrant Agent may
be removed at the discretion of the Company by like notice to the Warrant Agent
from the Company and by like mailing of notice to the holders of the Warrants.
If the Warrant Agent shall resign or be removed or otherwise become incapable
of acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after
such removal, or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the registered
holder of a Warrant (who shall, with such notice, submit his Warrant for
inspection by the Company), then the registered holder of any Warrant may apply
to any court of competent jurisdiction for the appointment of a successor to
the Warrant Agent. After appointment, any successor Warrant Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed,
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but the former Warrant Agent shall deliver and transfer to the successor
Warrant Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance act or deed necessary for the
purpose. Not later than the effective date of any such appointment, the
Company shall give notice thereof to the predecessor Warrant Agent and each
transfer agent for the Common Stock, and shall forthwith give notice to the
holders of the Warrants in the manner prescribed in this section. Failure to
file or mail any notice provided for in this Section 14, however, or any defect
therein, shall not affect the legality or validity of the resignation or
removal of the Warrant Agent or the appointment of any successor Warrant Agent,
as the case may be.
15. Identity of Transfer Agent. Forthwith upon the appointment of
any transfer agent other than the Warrant Agent for the Common Stock of the
Company issuable upon the exercise of the rights of purchase represented by the
Warrants, the Company will file with the Warrant Agent a statement setting
forth the name and address of such transfer agent.
16. Notices. Any notice pursuant to this Agreement to be given or
made by the Warrant Agent or by the registered holder of any Warrant to
the Company shall be deemed to have been sufficiently given or made if sent by
certified mail, return receipt requested, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent) as
follows:
To the Company: 800 Travel Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
To the Warrant Agent: Continental Stock Transfer Corporation
▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to the Warrant Agent shall be deemed to
have been sufficiently given or made if sent by certified mail, return receipt
requested, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as set
forth above.
17. Standard of Conduct. Notwithstanding any implication to the
contrary elsewhere herein, whenever the Company or the Warrant Agent are
required or permitted to make any judgment or to take any action, no such
judgment or action shall be made or taken in bad faith or in any arbitrary or
capricious fashion.
18. Supplements and Amendments. The Company and the Warrant Agent
may, from time to time, supplement or amend this Agreement without the approval
of any of the holders of the Warrants in order to cure any ambiguity or to
correct or supplement any provision contained herein that may be defective or
inconsistent with any other provision herein, or to make any other
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provisions in regard to matters or questions arising hereunder that the Company
and the Warrant Agent may deem necessary or desirable, that shall not be
inconsistent with the provisions of the Warrants, and that shall not materially
adversely affect the rights of the holders of the Warrants.
19. Successors. All of the covenants and provisions hereof by or
for the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
20. Merger or Consolidation of the Company. The Company will not
merge or consolidate with or into any other corporation, unless the corporation
resulting from such merger or consolidation (if not the Company) shall
expressly assume, by supplemental agreement satisfactory in form to the Warrant
Agent and executed and delivered to the Warrant Agent, the due and punctual
performance and observance of each and every covenant and condition of this
Agreement to be performed and observed by the Company.
21. New York Contract. This Agreement and each Warrant issued
hereunder shall be deemed to be a contract made under the laws of the State of
New York and for all purposes shall be construed in accordance with the laws of
said state.
22. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give any person or corporation, other than the Company, the
Warrant Agent and the registered holders of the Warrants, any legal or
equitable right, remedy or claim under this Agreement, but this Agreement shall
be for the sole and exclusive benefit of the Company and the Warrant Agent and
their respective successors and of the holders of the Warrant Certificates.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
800 TRAVEL SYSTEMS, INC.
By:
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Its:
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ATTEST:
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CONTINENTAL STOCK AND TRANSFER
CORPORATION
By:
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Its:
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ATTEST:
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EXHIBIT A
13
NO. W ____ VOID AFTER______, 2002
_________ WARRANTS
REDEEMABLE COMMON STOCK PURCHASE WARRANT CERTIFICATE TO
PURCHASE ONE SHARE OF COMMON STOCK
800 TRAVEL SYSTEMS, INC.
CUSIP______________
THIS CERTIFIES THAT, FOR VALUE RECEIVED the holder hereof or registered assigns
(the "Registered Holder") is the owner of the number of Redeemable Common Stock
Purchase Warrants (the "Warrants") specified above. Each Warrant initially
entitles the Registered Holder to purchase, subject to the terms and conditions
set forth in this Certificate and the Warrant Agreement (as hereinafter
defined), one fully paid and nonassessable share of Common Stock, $.01 par
value, of 800 Travel Systems, Inc., a Delaware corporation (the "Company"), at
any time between _____, 1997 (the "Initial Warrant Exercise Date"), and the
Expiration Date (as hereinafter defined) upon the presentation and surrender of
this Warrant Certificate with the Election to Purchase on the reverse hereof
duly executed, at the corporate office of Continental Stock Transfer
Corporation, a corporation , as Warrant Agent, or its successor (the "Warrant
Agent"), accompanied by payment of $______ subject to adjustment (the "Purchase
Price"), in lawful money of the United States of America in cash or by check
made payable to the Warrant Agent for the account of the Company.
This Warrant Certificate and each Warrant represented hereby are
issued pursuant to and are subject in all respects to the terms and conditions
set forth in the Warrant Agreement (the "Warrant Agreement"), dated_______,
1997, by and between the Company and the Warrant Agent.
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase Price and the number of shares of Common Stock subject
to purchase upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional interests will be issued. In the case of
the exercise of less than all the Warrants represented hereby, the Company
shall cancel this Warrant Certificate upon the surrender hereof and shall
execute and deliver a new Warrant Certificate or Warrant Certificates of like
tenor, which the Warrant Agent shall countersign, for the balance of such
Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (New York time)
on_________, 2002. If such date shall in the State of New York be a holiday or
a day on which the banks are authorized to close, then the Expiration Date
shall mean 5:00 p.m. (New York time) the next following day which in the State
of New York is not a holiday or a day on which banks are authorized to close.
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The Company shall not be obligated to deliver any securities pursuant
to the exercise of this Warrant unless a registration statement under the
Securities Act of 1933, as amended (the "Act"), with respect to such securities
is effective or an exemption thereunder is available. The Company has
covenanted and agreed that it will file a registration statement under the
Federal securities laws, use its best efforts to cause the same to become
effective, use its best efforts to keep such registration statement current, if
required under the Act, while any of the Warrants are outstanding, and deliver
a prospectus which complies with Section 10(a)(3) of the Act to the Registered
Holder exercising this Warrant. This Warrant shall not be exercisable by a
Registered Holder in any state where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by
the Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to
represent such number of Warrants as shall be designated by such Registered
Holder at the time of such surrender. Upon due presentment and payment of any
tax or other charge imposed in connection therewith or incident thereto, for
registration of transfer of this Warrant Certificate at such office, a new
Warrant Certificate of Warrant Certificates representing an equal aggregate
number of Warrants will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
Subject to the provisions of the Warrant Agreement, this Warrant may
be redeemed at the option of the Company, at the redemption price of $.05 per
Warrant, on not less than 30 nor more than 60 days written notice ("Notice of
Redemption") if the closing price for the Common Stock for seven trading days
during a 10 consecutive trading day period ending not more than 15 days prior
to the date notice of redemption is mailed equals or exceeds $______ per share
(200% of the initial offering price to the public) subject to adjustment under
certain circumstances and provided there is then a current registration
statement under the Securities Act of 1933, as amended, with respect to the
issuance and sale of Common Stock upon the exercise of the Warrants. On and
after the date fixed for redemption, the Registered Holder shall have no rights
with respect to the Warrants except to receive the $.05 per Warrant upon
surrender of this Warrant Certificate.
Under certain circumstances, the Representative (as that term is
defined in the Warrant Agreement) or their designees collectively shall be
entitled upon the exercise or redemption of the Warrants to receive a fee equal
to 5% of the gross proceed received by the Company from the exercise of the
Warrants and 5% of the aggregate redemption for the Warrants represented
hereby.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Warrant
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represented hereby (notwithstanding any notations of ownership or writing
hereon made by anyone other than a duly authorized officer of the Company or
the Warrant Agent) for all purposes and shall not be affected by any notice to
the contrary, except as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to
conflicts of laws.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or in facsimile by two of its officers thereunto
duly authorized and a facsimile of its corporate seal to be imprinted hereon.
Dated: ________, 1997
[SEAL] 800 TRAVEL SYSTEMS, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
COUNTERSIGNED:
CONTINENTAL STOCK TRANSFER
CORPORATION
as Warrant Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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ELECTION TO PURCHASE
(To be signed only upon exercise of Warrant)
TO: 800 Travel Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, the Holder of Warrant Certificate Number ____ (the
"Warrant"), representing ______________ Warrants of 800 Travel Systems, Inc.
(the "Company"), which Warrant Certificate is being delivered herewith, hereby
irrevocably elects to exercise the purchase right provided by the Warrant
Certificate for, and to purchase thereunder, _____________ shares of Common
Stock of the Company, and herewith makes payment of $____________ therefor, and
requests that the certificates for such securities be issued in the name of,
and delivered to, ___________________________________
__________________________ whose address is
________________________________________________________, all in accordance
with the Warrant Agreement and the Warrant Certificate.
Dated:
----------------------
------------------------------
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant Certificate)
------------------------------
(Address)
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(FORM OF ASSIGNMENT)
(To be exercised by the registered holder if such
holder desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED____________________________________________________________
hereby sells, assigns and transfers unto
(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, and full
power of substitution.
Dated: Signature:
----------------------- -----------------------------
(Signature must conform in all
respects to name of holder as
specified on the fact of the
Warrant Certificate)
------------------------------
(Insert Social Security or
Other Identifying Number
of Assignee)
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