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EXHIBIT 4.3
The Form of Warrant Agreement filed herewith applies to the following
individuals or groups and warrants.
INDIVIDUAL OR GROUP RECEIVING WARRANTS NUMBER OF WARRANTS RECEIVED
-------------------------------------- ---------------------------
Scottsdale Capital 4,531
▇▇▇▇ ▇▇▇▇▇▇ 2,172
▇▇▇ ▇▇▇▇▇▇ 2,172
Cardinal Securities 3,750
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,166
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4,167
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4,167
------
Total Warrants 25,125
======
1
THISWARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER
SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE SOLD OR
TRANSFERRED OR OFFERED FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO
SUCH SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL (WHICH OPINION
IS REASONABLY SATISFACTORY TO THE ISSUER OF THESE SECURITIES), SUCH REGISTRATION
UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
Date: Warrant to Purchase
August 8, 2003 *** ***
Shares
DATATRAK International, Inc.
(Incorporated under the laws of the State of Ohio)
REPRESENTATIVE'S WARRANT FOR THE PURCHASE OF SHARES OF
THE NO PAR VALUE COMMON SHARES
Warrant Price: $ 4.80 per share, subject to adjustment as provided below.
THIS IS TO CERTIFY that, for value received, . ("Placement Agent")
and its assigns (collectively, the "Holder"), is entitled to purchase, subject
to the terms and conditions hereinafter set forth, up to *** *** shares of
the no par value common shares ("Common Shares") of DATATRAK International,
Inc., an Ohio corporation (the "Company"), and to receive certificate(s) for the
Common Shares so purchased.
1. EXERCISE PERIOD AND VESTING. The exercise period is the period
beginning on the date of this Warrant (the "Issuance Date") and ending at 5:00
p.m., Cleveland, Ohio time, on August 8, 2008 (the "Exercise Period"). This
Warrant is vested in full as of the Issuance Date and is immediately exercisable
by Holder. This Warrant will terminate automatically and immediately upon the
expiration of the Exercise Period.
2. EXERCISE OF WARRANT. This Warrant may be exercised, in whole
or in part, at any time and from time to time during the Exercise Period. Such
exercise shall be accomplished by tender to the Company of the purchase price
set forth above as the warrant price (the "Warrant Price"), in cash, by wire
transfer or by certified check or bank cashier's check, payable to the order of
the Company, together with presentation and surrender to the Company of this
Warrant with an executed subscription in substantially the form attached hereto
as Exhibit A (the "Subscription"). Upon receipt of the foregoing, the Company
will deliver to the Holder, as promptly as possible, a certificate or
certificates representing the shares of Common Shares so
2
purchased, registered in the name of the Holder or its transferee (as permitted
under Section 3 below). With respect to any exercise of this Warrant, the Holder
will for all purposes be deemed to have become the holder of record of the
number of shares of Common Shares purchased hereunder on the date this Warrant,
a properly executed Subscription and payment of the Warrant Price is received by
the Company (the "Exercise Date"), irrespective of the date of delivery of the
certificate evidencing such shares, except that, if the date of such receipt is
a date on which the stock transfer books of the Company are closed, such person
will be deemed to have become the holder of such shares at the close of business
on the next succeeding date on which the stock transfer books are open.
Fractional shares of Common Shares will not be issued upon the exercise of this
Warrant. In lieu of any fractional shares that would have been issued but for
the immediately preceding sentence, the Holder will be entitled to receive cash
equal to the current market price of such fraction of a share of Common Shares
on the trading day immediately preceding the Exercise Date. In the event this
Warrant is exercised in part, the Company shall issue a new Warrant to the
Holder covering the aggregate number of shares of Common Shares as to which this
Warrant remains exercisable for.
3. TRANSFERABILITY AND EXCHANGE.
(a) This Warrant, and the Common Shares issuable upon the
exercise hereof, may not be sold, transferred, pledged or hypothecated unless
the Company shall have been provided with an opinion of counsel, or other
evidence reasonably satisfactory to it, that such transfer is not in violation
of the Securities Act, and any applicable state securities laws. Subject to the
satisfaction of the aforesaid condition, this Warrant and the underlying shares
of Common Shares shall be transferable from time to time by the Holder upon
written notice to the Company (However, Placement Agent agrees not to transfer
the warrant to any competitor of the Company). If this Warrant is transferred,
in whole or in part, the Company shall, upon surrender of this Warrant to the
Company, deliver to each transferee a Warrant evidencing the rights of such
transferee to purchase the number of shares of Common Shares that such
transferee is entitled to purchase pursuant to such transfer. The Company may
place a legend similar to the legend at the top of this Warrant on any
replacement Warrant and on each certificate representing shares issuable upon
exercise of this Warrant or any replacement Warrants. Only a registered Holder
may enforce the provisions of this Warrant against the Company. A transferee of
the original registered Holder becomes a registered Holder only upon delivery to
the Company of the original Warrant and an original Assignment, substantially in
the form set forth in Exhibit B attached hereto.
(b) This Warrant is exchangeable upon its surrender by
the Holder to the Company for new Warrants of like tenor and date representing
in the aggregate the right to purchase the number of shares purchasable
hereunder, each of such new Warrants to represent the right to purchase such
number of shares as may be designated by the Holder at the time of such
surrender.
4. ADJUSTMENTS TO WARRANT PRICE AND NUMBER OF SHARES SUBJECT TO
WARRANT. The Warrant Price and the number of shares of Common Shares purchasable
upon the exercise of this Warrant are subject to adjustment from time to time
upon the occurrence of any of the events specified in this Section 4. For the
purpose of this Section 4, "Common Shares" means shares now or hereafter
authorized of any class of common shares of the Company and any other
3
stock of the Company, however designated, that has the right to participate in
any distribution of the assets or earnings of the Company without limit as to
per share amount (excluding, and subject to any prior rights of, any class or
series of preferred stock).
(a) In case the Company shall (i) pay a dividend or make
a distribution in shares of Common Shares or other securities, (ii) subdivide
its outstanding shares of Common Shares into a greater number of shares, (iii)
combine its outstanding shares of Common Shares into a smaller number of shares,
or (iv) issue by reclassification of its shares of Common Shares other
securities of the Company, then the Warrant Price in effect at the time of the
record date for such dividend or on the effective date of such subdivision,
combination or reclassification, and/or the number and kind of securities
issuable on such date, shall be proportionately adjusted so that the Holder of
any Warrant thereafter exercised shall be entitled to receive the aggregate
number and kind of shares of Common Shares (or such other securities other than
Common Shares) of the Company, at the same aggregate Warrant Price, that, if
such Warrant had been exercised immediately prior to such date, the Holder would
have owned upon such exercise and been entitled to receive by virtue of such
dividend, distribution, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) In case the Company shall fix a record date for the
making of a distribution to all holders of Common Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the surviving corporation) of cash, evidences of indebtedness or
assets, or subscription rights or warrants, the Warrant Price to be in effect
after such record date shall be determined by multiplying the Warrant Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the current market price per share of Common Shares on such
record date, less the amount of cash so to be distributed (or the fair market
value (as determined in good faith by, and reflected in a formal resolution of,
the Board of Directors of the Company) of the portion of the assets or evidences
of indebtedness so to be distributed, or of such subscription rights or
warrants, applicable to one share of Common Shares, and the denominator of which
shall be such current market price per share of Common Shares. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Warrant Price shall again be
adjusted to be the Warrant Price which would then be in effect if such record
date had not been fixed.
(c) For the purpose of any computation under any
subsection of this Section 4, the "current market price" per share of Common
Shares on any date shall be the per share price of the Common Shares on the
trading day immediately prior to the event requiring an adjustment hereunder and
shall be: (i) if the principal trading market for such securities is a national
or regional securities exchange, the closing price on such exchange on such day;
or (ii) if sales prices for shares of Common Shares are reported by the Nasdaq
National Market System or Small Cap Market System (or a similar system then in
use), the last reported sales price so reported on such day; or (iii) if neither
(i) nor (ii) above are applicable, and if bid and ask prices for shares of
Common Shares are reported in the over-the-counter market by Nasdaq (or, if not
so reported, by the National Quotation Bureau), the average of the high bid and
low ask prices so reported on such day. Notwithstanding the foregoing, if there
is no reported closing price, last reported sales price, or bid and ask prices,
as the case may be, for the day in question, then the
4
current market price shall be determined as of the latest date prior to such day
for which such closing price, last reported sales price, or bid and ask prices,
as the case may be, are available, unless such securities have not been traded
on an exchange or in the over-the-counter market for 30 or more days immediately
prior to the day in question, in which case the current market price shall be
determined in good faith by, and reflected in a formal resolution of, the Board
of Directors of the Company.
(d) Notwithstanding any provision herein to the contrary,
no adjustment in the Warrant Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Warrant Price;
provided, however, that any adjustments which by reason of this subsection (d)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 4 shall be made
to the nearest cent or the nearest one-hundredth of a share, as the case may be.
(e) In the event that at any time, as a result of an
adjustment made pursuant to subsection (a) above, the Holder of any Warrant
thereafter exercised shall become entitled to receive any shares of capital
stock of the Company other than shares of Common Shares, thereafter the number
of such other shares so receivable upon exercise of any Warrant shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of Common Shares
contained in this Section 4, and the other provisions of this Warrant shall
apply on like terms to any such other shares.
(f) If the Company merges or consolidates into or with
another corporation or entity, or if another corporation or entity merges into
or with the Company (excluding such a merger in which the Company is the
surviving or continuing corporation and which does not result in any
reclassification, conversion, exchange, or cancellation of the outstanding
shares of Common Shares), or if all or substantially all of the assets or
business of the Company are sold or transferred to another corporation, entity,
or person, then, as a condition to such consolidation, merger, or sale (a
"Transaction"), lawful and adequate provision shall be made whereby the Holder
shall have the right from and after the Transaction to receive, upon exercise of
this Warrant and upon the terms and conditions specified herein and in lieu of
the shares of the Common Shares that would have been issuable if this Warrant
had been exercised immediately before the Transaction, such shares of stock,
securities, or assets as the Holder would have owned immediately after the
Transaction if the Holder had exercised this Warrant immediately before the
effective date of the Transaction.
5. REGISTRATION RIGHTS. The Company hereby grants to Holder, with
respect to the shares of Common Shares underlying this Warrant, registration
rights identical to those that are granted to Purchasers in the Placement (as
such terms are defined in that certain Placement Agency Agreement, dated as of
August 6, 2003, by and between the Company and Placement Agent); it being
specifically agreed and understood that the shares of Common Shares underlying
this Warrant will be included in any registration statement filed by the Company
which includes shares of Common Shares, or shares of Common Shares underlying
any securities, issued to Purchasers in the Placement.
5
6. RESERVATION OF SHARES. The Company agrees at all times to
reserve and hold available out of its authorized but unissued shares of Common
Shares the number of shares of Common Shares issuable upon the full exercise of
this Warrant. The Company further covenants and agrees that all shares of Common
Shares that may be delivered upon the exercise of this Warrant will, upon
delivery, be fully paid and nonassessable and free from all taxes, liens and
charges with respect to the purchase thereof hereunder.
7. NOTICES TO HOLDER. Upon any adjustment of the Warrant Price
(or number of shares of Common Shares purchasable upon the exercise of this
Warrant) pursuant to Section 4, the Company shall promptly thereafter cause to
be given to the Holder written notice of such adjustment. Such notice shall
include the Warrant Price (and/or the number of shares of Common Shares
purchasable upon the exercise of this Warrant) after such adjustment, and shall
set forth in reasonable detail the Company's method of calculation and the facts
upon which such calculations were based. Where appropriate, such notice shall be
given in advance and included as a part of any notice required to be given under
the other provisions of this Section 7.
In the event of (a) any fixing by the Company of a record date with
respect to the holders of any class of securities of the Company for the purpose
of determining which of such holders are entitled to dividends or other
distributions, or any rights to subscribe for, purchase or otherwise acquire any
shares of capital stock of any class or any other securities or property, or to
receive any other right, (b) any capital reorganization of the Company, or
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets or business of the Company
to, or consolidation or merger of the Company with or into, any other entity or
person, or (c) any voluntary or involuntary dissolution or winding up of the
Company, then and in each such event the Company will give the Holder a written
notice specifying, as the case may be (i) the record date for the purpose of
such dividend, distribution, or right, and stating the amount and character of
such dividend, distribution, or right; or (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, conveyance, dissolution, liquidation, or winding up is to take place and
the time, if any is to be fixed, as of which the holders of record of Common
Shares (or such capital stock or securities receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Shares (or such
other stock securities) for securities or other property deliverable upon such
event. Any such notice shall be given at least 10 days prior to the earliest
date therein specified.
8. NO RIGHTS AS A SHAREHOLDER. This Warrant does not entitle the
Holder to any voting rights or other rights as a shareholder of the Company, nor
to any other rights whatsoever except the rights herein set forth.
9. ADDITIONAL COVENANTS OF THE COMPANY. For so long as the Common
Shares are listed for trading on any regional or national securities exchange or
Nasdaq (National Market or Small Cap Market), the Company shall, upon issuance
of any shares for which this Warrant is exercisable, at its expense, promptly
obtain and maintain the listing of such shares. The Company shall also comply
with the reporting requirements of Sections 13 and 15(d) of the Exchange Act for
so long as and to the extent that such requirements apply to the Company.
6
The Company shall not, by amendment of its Articles of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities, or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
at all times reserve and keep available, solely for issuance and delivery upon
exercise of this Warrant, shares of Common Shares issuable from time to time
upon exercise of this Warrant, (b) will not increase the par value of any shares
of capital stock receivable upon exercise of this Warrant above the amount
payable therefor upon such exercise, and (c) will take all such actions as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable stock.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Company, the Holder and their respective
successors and permitted assigns.
11. NOTICES. The Company agrees to maintain a ledger of the
ownership of this Warrant (the "Ledger"). Any notice hereunder shall be given by
registered or certified mail if to the Company, at its principal executive
office and, if to the Holder, to its address shown in the Ledger of the Company;
provided, however, that the Holder may at any time on three (3) days written
notice to the Company designate or substitute another address where notice is to
be given. Notice shall be deemed given and received after a certified or
registered letter, properly addressed with postage prepaid, is deposited in the
U.S. mail.
12. SEVERABILITY. Every provision of this Warrant is intended to
be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the remainder
of this Warrant.
13. GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the laws of the State of Ohio without giving effect to the
principles of choice of laws thereof.
14. ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Warrant, the prevailing party shall be entitled to
recover reasonable attorneys' fees in addition to its costs and expenses and any
other available remedy.
15. ENTIRE AGREEMENT. This Warrant (including the Exhibits
attached hereto) constitutes the entire understanding between the Company and
the Holder with respect to the subject matter hereof, and supersedes all prior
negotiations, discussions, agreements and understandings relating to such
subject matter.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer as of the date first set forth above.
DATATRAK INTERNATIONAL, INC.
By: ________________________
Title:______________________
7
Exhibit A
SUBSCRIPTION FORM
(To be Executed by the Holder to Exercise the Rights To Purchase Common Shares
Evidenced by the Within Warrant)
The undersigned hereby irrevocably subscribes for _______ shares (the
"Shares") of the Common Shares of DATATRAK International, Inc. (the "Company")
pursuant to and in accordance with the terms and conditions of the attached
Warrant (the "Warrant"), and hereby makes payment of $_______ therefor ($4.80
per Share) by tendering cash, wire transferring or delivering a certified check
or bank cashier's check, payable to the order of the Company. The undersigned
requests that a certificate for the Shares be issued in the name of the
undersigned and be delivered to the undersigned at the address stated below. If
the Shares is not all of the shares purchasable pursuant to the Warrant, the
undersigned requests that a new Warrant of like tenor for the balance of the
remaining shares purchasable thereunder be delivered to the undersigned at the
address stated below.
In connection with the issuance of the Shares, I hereby represent to
the Company that I am acquiring the Shares for my own account for investment and
not with a view to, or for resale in connection with, a distribution of the
shares within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
I understand that because the Shares may not be registered at the time
of exercise of the Warrant under the Securities Act, I must hold such Shares
indefinitely unless the Shares are subsequently registered and qualified under
the Securities Act or is exempt from such registration and qualification. I
shall make no transfer or disposition of the Shares unless (a) such transfer or
disposition can be made without registration under the Securities Act by reason
of a specific exemption from such registration and such qualification, or (b) a
registration statement has been filed pursuant to the Securities Act and has
been declared effective with respect to such disposition.
In the event the Shares are not registered at the time of exercise of
the Warrant, I agree that each certificate representing the Shares delivered to
me shall bear substantially the same legend as set forth on the front page of
the Warrant.
I further agree that the Company may place stop orders on the
certificates evidencing the Shares with the transfer agent, if any, to the same
effect as the above legend. The legend and stop transfer notice referred to
above shall be removed only upon my furnishing to the Company of an opinion of
counsel (reasonably satisfactory to the Company) to the effect that such legend
may be removed.
Date:_______________________ Signed:________________________
Address:_______________________
_______________________
A-1
Exhibit B
ASSIGNMENT
(To be Executed by the Holder to Effect Transfer of the Attached Warrant)
For Value Received __________________________ hereby sells, assigns and
transfers to _________________________ the Warrant attached hereto and the
rights represented thereby to purchase _________ shares of Common Shares in
accordance with the terms and conditions hereof, and does hereby irrevocably
constitute and appoint _________________________ as attorney to transfer such
Warrant on the books of the Company with full power of substitution.
Dated:________________________ Signed: ______________________
Please print or typewrite Please insert Social Security
name and address of or other Tax Identification
assignee: Number of Assignee:
______________________________ ______________________________
______________________________
______________________________
B-1