EXHIBIT 4.2
FINOVA/registered trademark/[LOGO]
FINANCIAL INNOVATORS
-------------------------------------------------------------------------------
Rediscount Finance
Warrant to Purchase
70,000 Shares of
Common Stock
WARRANT TO PURCHASE COMMON STOCK OF
▇▇▇▇▇▇ INDUSTRIES, INC., A FLORIDA CORPORATION
This certifies that, for value received, FINOVA CAPITAL CORPORATION or
its transferees or assigns, is entitled upon exercise of this Warrant, subject
to the terms set forth below, to purchase from ▇▇▇▇▇▇ INDUSTRIES, INC.
(hereinafter defined as the "Association") up to Seventy Thousand (70,000)
shares of fully paid and nonassessable shares of common stock, $______ par
value, of the Association ("Common Stock") at the purchase price per share (the
"Exercise Price") of Two Dollars ($2.00). The price and number of shares to
which the Warrant holder is entitled are subject to adjustment as provided in
this Warrant at any time or from time to time from the date of this Warrant
until the Expiration Date indicated below.
THE WARRANT AND RIGHTS TO PURCHASE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
Expiration Date:
The Warrant represented by this Warrant Certificate shall
expire, and become wholly void and of no value, at 5:00 p.m.,
Dallas, Texas time, on December 31, 1999, unless sooner
terminated as provided in this Warrant.
1. DEFINITIONS.
As used in this Warrant Certificate, the following terms, unless the
context otherwise requires, have the following meanings:
WARRANT TO PURCHASE COMMON STOCK - PAGE 1
(a) "ASSOCIATION" shall mean ▇▇▇▇▇▇ Industries, Inc., to be known as
Smart Choice Holdings, Inc., a Florida corporation, (pursuant to a name change
that is scheduled to occur within thirty [30] days of the date hereof) and any
association or corporation which shall succeed to or assume the obligations of
the Association under this Warrant.
(b) "COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(c) "COMMON STOCK" when used with reference to stock of the
Association, means all shares, now or hereafter authorized, of the class of the
common stock of the Association, $______ par value.
(d) "EXERCISE PRICE" shall mean Two Dollars ( $2.00) per share, as
adjusted from time to time pursuant to the provisions of Section 4 hereof.
(e) "MAXIMUM EXERCISE PAYMENT" shall mean the number of shares for
which the Warrant is from time to time exercisable (originally multiplied by the
Exercise Price then in effect).
(f) "RESTRICTED SECURITIES" shall mean the securities of the
Association required to bear the legend set forth in Section 5.2 hereof.
(g) "SECURITIES ACT" shall mean the Securities Act Of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(h) "SHARES" shall mean shares of Common Stock.
(i) "WARRANT CERTIFICATE" OR "CERTIFICATE" shall mean this certificate.
(i) "WARRANTHOLDER", "HOLDER OF WARRANT", "HOLDER", or similar terms
when the context refers to a holder of this Warrant shall mean any person who
shall at the time be the holder of this Warrant Certificate.
(k) "WARRANT" means all of those securities, representing rights to
purchase shares of Common Stock, which are evidenced by this Warrant
Certificate.
(l) "WARRANT SHARES" means the Shares of Common Stock which are
purchasable by the Warrant holder upon surrender of this Warrant Certificate and
exercise of the Warrant.
2. EXERCISE PROVISIONS.
(a) The holder of this Warrant Certificate may exercise the Warrant
represented hereby in whole or in part at any time by surrendering the
Certificate, with the purchase form attached hereto duly executed by the holder,
to the Association at its principal office, accompanied by payment in the amount
obtained by multiplying (i) the number of Shares designated in the purchase form
by (ii) the Exercise Price.
WARRANT TO PURCHASE COMMON STOCK - PAGE 2
(b) Payment may be in cash or by certified or official bank check or
wire funds payable to the order of the Association.
(c) On partial exercise hereof, the Association shall promptly issue
and deliver to the holder of this Certificate a new Certificate or Certificates
of like tenor in the name of that holder providing for the right to purchase
that number of Warrant Shares as to which this Certificate has not been
exercised.
(d) The rights represented hereby shall expire at 5:00 p.m., Dallas,
Texas time, on December 31, 1999, unless sooner terminated pursuant to paragraph
6 hereof.
3. DELIVERY OF STOCK CERTIFICATES.
As soon as possible after full or partial exercise of this Warrant, the
Association at its expense will cause to be issued in the name of and delivered
to the holder hereof, a certificate or certificates for the number of fully paid
and nonassessable Shares to which that holder shall be entitled upon such
exercise (each a "Warrant Share"), together with any other securities and
property to which that holder is entitled upon such exercise under the terms
hereof. No fractional Shares will be issued upon exercise of rights to purchase;
if upon any such exercise a fraction of a Share results, the Association will
pay the cash value of that fractional Share, calculated on the basis of the fair
market value as of the date of exercise.
4. ANTI-DILUTION PROVISIONS.
The Exercise Price and number of Warrant Shares purchasable upon
exercise shall be subject to adjustment from time to time as follows:
(a) STOCK DIVIDENDS AND SPLITS. In the event the Association shall at
any time or from time to time after the date hereof fix a record date for the
effectuation of a split or subdivision of the outstanding Shares or the
determination of holders of Shares entitled to receive a dividend or other
distribution payable in additional Shares, then, as of such record date (or the
date of such dividend distribution, split or subdivision if no record date is
fixed), the number of Warrant Shares issuable on exercise of this Warrant shall
be increased in proportion to such increase of outstanding Shares, and
concurrently therewith the Exercise Price shall be proportionately decreased
(i.e., by adjusting such Price downward by multiplying it by the inverse of the
proportion or multiple by which the number of Warrant Shares issuable upon
exercise was increased).
(b) DECREASES IN SHARES. If the number of Shares outstanding at any
time after the date of this Agreement is decreased by a combination or reverse
split of the outstanding Shares, then, as of the record date of such
combination, the number of Shares for which the Warrant represented by this
Certificate may be exercised shall be decreased in proportion to such decrease
in outstanding Shares, and the Exercise Price shall be proportionately
increased.
(c) OTHER DISTRIBUTIONS. In the event the Association shall declare a
distribution to all holders of its Common Stock payable in securities of other
persons, evidences of indebtedness issued by the Association or other persons,
or assets (excluding cash dividends), then, in each
WARRANT TO PURCHASE COMMON STOCK - PAGE 3
such case for the purpose of this paragraph 4(c), the Warrantholders shall,
upon the exercise of its right to purchase Warrant Shares hereunder after the
record date for such distribution or, in the absence of a record date, after
the date of such distribution, receive, in addition to the Warrant Shares
subscribed for, the amount of such securities, evidences of indebtedness or
assets (or, at the option of the Association, a sum equal to the value thereof
at the time of distributions as determined by the Board of Directors of the
Association) which would have been distributed to such Warrantholder if he had
exercised his right to purchase Warrant Shares hereunder immediately prior to
the record date for such distribution or, in the absence of a record date,
immediately prior to the date of such distribution.
(d) REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALE OF ASSETS. If at
any time there shall be (i) a recapitalization or reorganization of the
Association's capital structure involving, or affecting the book value or voting
rights of, the Shares or (ii) a merger or consolidation of the Association with
or into another corporation, or (iii) the sale of the Association's properties
and assets as, or substantially as, an entirety to any other person (each of the
occurrences in (i), (ii) and (iii) referred to herein as an "Event"), then, as a
part of such Event, lawful provision shall be made so that the Warrantholder
shall thereafter be entitled to receive, upon exercise of the Warrant evidenced
by this Certificate prior to the Expiration Date and upon payment of the
Exercise Price, the number of Warrant Shares or other securities or property of
the Association, or of the successor corporation resulting from such Event, to
which such Warrantholder would have been entitled in such Event if the Warrant
evidenced hereby had been exercised and the corresponding Warrant Shares issued
immediately before such Event. In any such case, appropriate adjustment (as
determined by the Association's Board of Directors) shall be made in the
application of the provisions of this Warrant Certificate with respect to the
rights and interests of the Warrantholder after any such Event, such that the
provisions of this Section 4 (including adjustment of the Exercise Price then in
effect and the number of Warrant Shares purchasable upon exercise of the
Warrant) shall be applicable after such Event, as near as reasonably may be, in
relation to any Warrant Shares, other securities or property deliverable after
that Event upon exercise of the Warrant. The Association shall, within thirty
(30) days after making such adjustment, give written notice (by certified mail,
postage prepaid) to the registered holder of this Certificate at the address of
that holder shown on the Association's books. That notice shall set forth, in
reasonable detail, the Event requiring the adjustment and the method by which
the adjustment was calculated, and specify the Exercise Price then in effect
after the adjustment and the increased or decreased number of Warrant Shares
purchasable upon exercise of the Warrant evidenced hereby. When appropriate,
that notice may be given in advance and be included as part of the notice
required under other provisions hereof.
(e) NO IMPAIRMENT. The Association will not, by amendment of its
Certificate of Incorporation nor through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Association, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 4 and in the taking of all such action as may
be necessary appropriate in order to protect the respective rights of the
holders of the Warrant against impairment.
WARRANT TO PURCHASE COMMON STOCK - PAGE 4
(f) NO FRACTIONAL SHARES. No fractional Shares shall be issued upon
exercise of the Warrant. In lieu of fractional Shares, the Association shall pay
cash equal to such fraction multiplied by the then fair market value of a share
of Common Stock, as determined by the Board of Directors. Whether or not
fractional shares would be issuable upon such exercise shall be determined on
the basis of the total number of Warrant Shares issuable at the time of exercise
of the Warrant.
(g) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to this Section 4, the
Association, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to the
Warrantholder a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
The Association shall, within a reasonable time following the written request at
any time of the Warrantholder, furnish or cause to be furnished to such holder a
like certificate setting forth (i) such adjustment and readjustment, (ii) the
Exercise Price at the time in effect, and (iii) the number of Warrant Shares and
the amount, if any, of other securities or property that at the time would be
received upon the exercise of Warrant.
(h) NOTICE OF RECORD DATE. In the event of any taking by the
Association of a record of its Stockholders for the purpose of determining
stockholders who are entitled to receive payment of any dividend on its Shares
(other than a cash dividend) or other distribution, or in respect of its Shares
in connection with the dissolution, liquidation or winding up of the
Association, any right to subscribe for, purchase or otherwise acquire any
shares of any class or any other securities or property, or to receive any other
right, the Association shall mail to each Warrantholder, at least twenty (20)
days prior to the date specified therein, a notice specifying the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
(i) RESERVATION OF SHARES ISSUABLE UPON EXERCISE. The Association shall
at all times reserve and keep available out of its authorized but unissued
Shares, solely for the purpose of effecting the exercise of the Warrant, such
number of its Shares as shall from time to time be sufficient to effect the
exercise of the Warrant; and if at any time the number of authorized but
unissued Shares shall not be sufficient to effect the exercise of the Warrant
then outstanding, the Association will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
Shares to such number of Shares as shall be sufficient for such purposes.
(j) NOTICES. Any notice required by the provisions of this Section to
be given to the Warrantholder, shall be deemed to be delivered when deposited in
the United States mail, postage prepaid, registered or certified, and addressed
to each holder of record at its address appearing on the stock transfer books of
the Association.
5. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; COMPLIANCE WITH
SECURITIES ACT.
5.1 RESTRICTIONS ON TRANSFERABILITY. The Warrant and the Warrant Shares
shall not be sold, assigned, transferred, or pledged except upon the conditions
specified in this Section 5, which
WARRANT TO PURCHASE COMMON STOCK - PAGE 5
conditions are intended to insure compliance with the provisions of the
Securities Act and all applicable state and federal regulatory agencies. Each
Warrantholder will cause any proposed purchaser, assignee, transferee, or
pledgee of the Warrant held by such Warrantholder to agree to take and hold
such securities subject to the provisions and upon the conditions specified in
this Section 5.
5.2 RESTRICTIVE LEGEND. Each certificate representing (i) the Warrant,
(ii) the Warrant Shares, or (iii) any other securities issued in respect to the
Warrant or Warrant Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation, or similar event, shall (unless
otherwise permitted by the provisions of Section 5.3 below) be stamped or
otherwise imprinted with a legend substantially in the following form (in
addition to any legend required under applicable state securities laws);
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, OR ANY STATE SECURITIES ACT. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
ASSOCIATION RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACTS. COPIES OF THE APPLICABLE
PORTION OF THE AGREEMENT RESTRICTING THE TRANSFER MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE ASSOCIATION AT THE PRINCIPAL PLACE
OF BUSINESS OR REGISTERED OFFICE OF THE ASSOCIATION.
The Warrantholder consents to the Association making a notation on its
records and giving instructions to any transfer agent of the Warrant or the
Common Stock in order to implement the restrictions on transfer established in
this Section 5.
5.3 NOTICE OF PROPOSED TRANSFERS. Each holder of Restricted Securities,
by acceptance thereof, agrees to comply in all respects with the provisions of
this Section 5.3. Prior to any proposed sale, assignment, transfer, or pledge of
any Restricted Securities (other than a transfer not involving a change in
beneficial ownership), unless there is in effect a registration statement under
the Securities Act covering the proposed transfer, the holder thereof shall give
written notice to the Association of such holder's intention to effect such
transfer, sale, assignment, or pledge. Each such notice shall describe the
manner and circumstances of the proposed transfer, sale, assignment, or pledge
in sufficient detail, and shall be accompanied, at such holder's expense, by
either (i) an unqualified written opinion of legal counsel who shall be, and
whose legal opinion shall be, reasonably satisfactory to the Association,
addressed to the Association, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act or any applicable state securities laws, or (ii) a "no action" letter from
the Commission, and the securities administrator of any state whose securities
acts may be applicable, to the effect that the transfer of such securities
without registration will not result in a recommendation by the staff of the
Commission, and the securities administrator of any state
WARRANT TO PURCHASE COMMON STOCK - PAGE 6
whose securities acts might be applicable, that action be taken with respect
thereto. Thereupon the holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the holder to the Association. Each certificate evidencing the
Restricted Securities transferred as above provided shall bear, except if such
transfer is made to a non-affiliate of the Association pursuant to Commission
Rule 144, the appropriate restrictive legend set forth in Section 5.2 above,
except that, such certificate shall not bear such restrictive legend if in the
opinion of counsel for such holder and of counsel for the Association such
legend is not required in order to establish compliance with the provisions of
the Securities Act or any applicable state securities laws.
6. REGISTRATION RIGHTS.
(a) ASSOCIATION REGISTRATION. Whenever the Association proposes to
register any of its Common Stock under the Securities Act for a public offering
for cash, whether as a primary or secondary offering (or pursuant to
registration rights granted to holders of other securities of the Association),
but excluding a registration on form S-4, S-8 or other comparable registration
in respect of mergers or acquisitions or employee benefit plans, the Association
shall, each such time, give the holder written notice of its intent to do so.
Upon the written request of the holder given within thirty (30) days after
receipt of any such notice, the Association shall use its best efforts to cause
to be included in such registration all of the Warrant Shares (the "Registration
Shares") which the holder requested to be registered; provided (i) the Holder
agrees to sell Warrant Shares in the same manner and on the same terms and
conditions as the other Common Stock which the Association proposes to register,
including any "lock-up" agreements required of other selling stockholders of the
Association, and (ii) if the registration is to include Common Stock to be sold
for the account of the Association, the proposed managing underwriter does not
advise the Association that in its opinion the inclusion of the holder's Shares
is likely to affect adversely the success of the offering by the Association or
the price it would receive.
b) DEMAND REGISTRATION. If the Association has not effectuated the
registration of the Registration Shares on or before one (1) year from the date
of this Warrant Certificate, holder shall have the right, upon written notice to
the Association, to require the Association to exercise its best efforts to
cause the Registration Shares to be registered under the Securities Act.
(c) OBLIGATIONS OF THE ASSOCIATION. Whenever required under subsections
7(a) or 7(b) to use its best efforts to effect the registration of any of the
Warrant Shares, the Association shall, as expeditiously as reasonably possible,
but subject to the holder providing such information and customary indemnities
as reasonably requested by the Association or its underwriters:
(i) Prepare and file with the Commission a Registration
Statement with respect to such Shares and use its best efforts to cause
such Registration Statement to become and remain effective; provided,
however, that in connection with any proposed registration intended to
permit an offering of any securities from time to time (i.e., a so
called "shelf registration"), the Association shall in no event be
obligated to cause any such registration to remain effective for more
than one hundred and eighty (180) days.
WARRANT TO PURCHASE COMMON STOCK - PAGE 7
(ii) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to permit the disposition of
all securities covered by such Registration Statement.
(iii) Furnish to the holder such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of Shares
owned by it.
(iv) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably appropriate for the distribution of the securities covered
by the Registration Statement, provided that the Association shall not
be required in connection therewith or as a condition thereto to
qualify to do business in any such states or jurisdictions, to subject
itself to taxation therein or to submit to the general jurisdiction
thereof.
(d) EXPENSES OF REGISTRATION. All expenses incurred in connection with
any registration pursuant to this section 6, including without limitation all
registration and qualification fees, printing and accounting fees, fees and
disbursements of counsel for the Association, but excluding underwriting
discounts and commissions (the "Registration Expenses"), shall be borne by the
Association. Each selling shareholder shall bear the fees and costs of its own
counsel, if different from counsel for the Association.
(e) LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
execution hereof, the Association will not, without the prior written consent of
the holder enter into any agreement with any holder or prospective holder of any
Shares of the Association which allows such holder or prospective holder of any
Shares of the Association to include such Shares in any registration filed under
the Securities Act unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his securities will not diminish the amount of
Registration Shares of the holder which are included.
8. MISCELLANEOUS PROVISIONS.
(a) LOST CERTIFICATE. On receipt of evidence reasonably satisfactory to
the Association of the loss, theft, destruction, or mutilation of this
Certificate and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the
Association or, in the case of mutilation, on surrender and cancellation of this
Certificate, the Association at its expense will execute and deliver, in lieu of
this Certificate, a new Certificate of like tenor.
(b) EXCHANGE AND TRANSFER. On surrender of this Warrant Certificate for
exchange, properly endorsed on the form of assignment attached hereto, and
subject to the provisions herein
WARRANT TO PURCHASE COMMON STOCK - PAGE 8
regarding compliance with the Securities Act, the Association at its expense
will issue to or on the order of the holder of this Certificate a new
Certificate or Certificates of like tenor, in the name of that holder or as
that holder (on payment by that holder of any applicable transfer taxes) may
direct, evidencing in the aggregate on the face or faces of such Certificate or
Certificates for the number of Warrant Shares called for on the face hereof.
(c) NO RIGHTS AS STOCKHOLDER. No holder of this Certificate, as such,
shall be entitled to vote or receive dividends or be considered a stockholder of
the Association for any purpose, nor shall anything in this Certificate be
construed to confer on any holder of this Certificate as such, any rights of a
stockholder of the Association or any right to vote, give or withhold consent to
any corporate action, or except as otherwise specified herein, to receive notice
of meeting of stockholders, to receive dividends, or to receive subscription
rights except as otherwise specified herein, or otherwise.
(d) ▇▇▇▇▇▇ DEEMED OWNER. The holder hereof may be treated by the
Association, any warrant agent, and all other persons dealing with the Warrant
as the absolute owner hereof for any purpose and as the person entitled to
exercise the rights represented hereby.
(e) NEGOTIABILITY. Title to this Certificate may be transferred by
endorsement (by the holder of this Certificate executing the form of assignment
attached hereto) and delivery in the same manner as a negotiable instrument
transferable by endorsement and delivery.
(f) MODIFICATION. This Warrant Certificate and any of its terms may be
changed, waived, or terminated only by a written instrument signed by the party
against whom enforcement of that change, waiver, or termination is sought.
WARRANT TO PURCHASE COMMON STOCK - PAGE 9
(g) GOVERNING LAW. This Warrant Certificate shall be governed by and
construed and enforced in accordance with the laws of the State of Arizona.
Dated: January 13, 1997
ASSOCIATION:
▇▇▇▇▇▇ INDUSTRIES, INC.
By:______________________________
▇▇▇▇ ▇▇▇▇▇, President
HOLDER:
FINOVA CAPITAL CORPORATION
By:______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
WARRANT TO PURCHASE COMMON STOCK - PAGE 10
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to the number of
Shares of Common Stock set forth below:
NAME AND ADDRESS OF ASSIGNEE NUMBER OF SHARES OF COMMON STOCK
---------------------------- --------------------------------
and does hereby irrevocably constitute and appoint _________________________
attorney to register such transfer on the books of Association maintained for
the purpose, with full power of substitution in the premises.
Dated: _______________________
--------------------------------
------------------------------
Witness
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatever.
The signature to this assignment must be guaranteed by a bank or trust company
having an office or correspondent in ___________________________,
______________________ or by a firm having membership on the New York Stock
Exchange.
WARRANT TO PURCHASE COMMON STOCK - PAGE 11