EXHIBIT 4.2
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement") is dated as of this 9th day of
August, 2000, by and between ▇▇▇▇.▇▇▇ INC., a Delaware corporation ("Company"),
and _____________ (the "Warrant Holder").
The Warrants are granted hereunder in substitution of the Warrants
granted to Universal Claims Adminstrator, Inc. ("UCA") by Access One
Communications Corp., a New Jersey corporation ("Access One"), at an exercise
price of $______ per share (the "Prior Warrant"), which Warrants were
subsequently assigned by UCA to the Warrant Holder. Acceptance of the Warrant by
the Warrant Holder on the terms and conditions specified herein shall render the
Prior Warrant null and void and of no further force or effect.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrants and the certificates representing the Warrants and
the respective rights and obligations thereunder of the Company and the Warrant
Holder, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Common Stock" shall mean the common stock of the Company, $ .01
par value; provided, however, that the shares issuable upon exercise of the
Warrants shall include (i) only shares of such class designated in the Company's
Certificate of Incorporation as Common Stock on the date of the original issue
of the Warrants, or (ii) in the case of any reclassification, change,
consolidation, merger, sale or conveyance of the character referred to in
Section 8(c) hereof, the stock, securities or property provided for in such
section; or (iii) in the case of any reclassification or change in the
outstanding shares of Common Stock issuable upon exercise of the Warrants as a
result of a subdivision or combination or a change in par value, or from par
value to no par value, or from no par value to par value, such shares of Common
Stock as so reclassified or changed.
(b) "Corporate Office" shall mean the office of the Company at which at
any particular time its principal business shall be administered, which office
is located at the date hereof at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
(c) "Exercise Date" shall mean, as to any Warrant, the date on which
the Company shall have received both (i) the Warrant Certificate representing
such Warrant, with the exercise form thereon duly executed by the Registered
Holder (as defined below) thereof or his attorney duly authorized in writing,
and (ii) payment in cash, or by official bank or certified check made payable to
the Company, of an amount in lawful money of the United States of America equal
to the applicable Purchase Price (as defined below).
(d) "Initial Warrant Exercise Date" shall mean the date hereof.
(e) "Purchase Price" shall mean the purchase price per share to be paid
upon exercise of each Warrant in accordance with the terms hereof, which price
shall be _______ Dollars and ______ Cents ($______) per share of Common Stock,
subject to adjustment from time to time pursuant to the terms and provisions of
Section 8 hereof.
(f) "Registered Holder" shall mean as to any Warrant and as of any
particular date, the person in whose name the certificate representing the
Warrant shall be registered on that date on the books maintained by the Company
pursuant to Section 6.
(g) "Transfer Agent" shall mean the Company or, if applicable, a third
party stock transfer agent and registrar retained by the Company.
(h) "Warrant Expiration Date" shall mean 5:00 P. M. (New York time) on
August 9, 2005; provided that if such date shall in the State of New York be a
holiday or a day on which banks are authorized or required to close, then 5:00
P.M. (New York time) on the next following day which in the State of New York is
not a holiday or a day on which banks are authorized or required to close. Upon
thirty (30) days' written notice to the Warrant Holder, the Company shall have
the right to extend the Warrant Expiration Date.
2. Warrants and Issuance of Warrant Certificates.
(a) A Warrant initially shall entitle the Registered Holder of the
Warrant representing such Warrant to purchase one share of Common Stock upon the
exercise thereof (sometimes referred to as the "Warrant Shares"), in accordance
with the terms hereof, subject to modification and adjustment as provided in
Section 8.
(b) Upon execution of this Agreement, warrant certificates ("Warrant
Certificates"), in the form of Exhibit A annexed hereto (i) representing
_________ Warrants shall be executed by the Company and delivered to the Warrant
Holder and (ii) representing ________ Warrants shall be executed by the Company
and delivered, on behalf of the Warrant Holder, to Wilmington Trust Company, a
Delaware banking corporation, as escrow agent, pursuant to the provisions of
that certain Escrow Agreement dated August 9, 2000, by and among the Company,
Aladdin Acquisition Corp., Access One and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as representative.
(c) From time to time, up to the Warrant Expiration Date, the Transfer
Agent shall countersign and deliver stock certificates in required whole number
denominations representing the shares of Common Stock issuable, subject to
adjustment as described herein, upon the exercise of Warrants in accordance with
this Agreement.
(d) From time to time, up to the Warrant Expiration Date, the Company
shall countersign and deliver Warrant Certificates in required whole number
denominations to the persons entitled thereto in connection with any transfer or
exchange permitted under this Agreement; provided that no Warrant Certificates
shall be issued except (i) those initially issued hereunder, (ii) those issued
on or after the Initial Warrant Exercise Date, upon the exercise of fewer than
all Warrants represented by any Warrant Certificate, to evidence any unexercised
Warrants held by the exercising Registered Holder, (iii) those issued on any
transfer or exchange pursuant to Section 6, (iv) those issued in replacement of
lost, stolen, destroyed or mutilated Warrant Certificates pursuant to Section 7,
and (v) those issued at the option of the Company, in
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such form as may be approved by its Board of Directors, to reflect any
adjustment or change made pursuant to Section 8 hereof in the Purchase Price or
the number of shares of Common Stock purchasable on exercise of the Warrants.
3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates shall be substantially in the form
attached hereto as Exhibit A (the provisions of which are hereby incorporated
herein) and may have such letters, numbers or other marks of identification or
designation and such legends, summaries or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage or to the requirements of Section 2(b). The Warrant
Certificates shall be dated the date of issuance thereof (whether upon initial
issuance, transfer, exchange or in lieu of mutilated, lost, stolen or destroyed
Warrant Certificates) and issued in registered form.
(b) Warrant Certificates shall be executed on behalf of the Company by
its President, or any Vice President and by its Secretary or an Assistant
Secretary, by manual signatures or by facsimile signatures printed thereon, and
shall have imprinted thereon a facsimile of the Company's seal. In case any
officer of the Company who shall have signed any of the Warrant Certificates
shall cease to be an officer of the Company or to hold the particular office
referenced in the Warrant Certificate before the date of issuance of the Warrant
Certificates, such Warrant Certificates may nevertheless be issued and delivered
with the same force and effect as though the person who signed such Warrant
Certificates had not ceased to be an officer of the Company or to hold such
office.
4. Exercise. Each Warrant may be exercised by the Registered Holder
thereof at any time on or after the Initial Warrant Exercise Date, but not after
the Warrant Expiration Date, on the terms and subject to the conditions set
forth herein and in the applicable Warrant Certificate. A Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
Exercise Date and the person entitled to receive the securities deliverable on
such exercise shall be treated for all purposes as the holder of those
securities on the exercise of the Warrant as of the close of business on the
Exercise Date. Promptly following, and in any event within five (5) business
days after the date of such exercise, the Company shall cause to be issued and
delivered by the Transfer Agent, to the person or persons entitled to receive
the same, a certificate or certificates for the securities deliverable on such
exercise (plus a certificate for any remaining unexercised Warrants of the
Registered Holder).
5. Reservation of Shares, Listing Payment of Taxes, etc.
(a) The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue on
exercise of Warrants, such number of shares of Common Stock as shall then be
issuable on the exercise of all outstanding Warrants. The Company covenants that
all shares of Common Stock that shall be issuable on exercise of the Warrants
shall, at the time of delivery, be duly and validly issued, fully paid,
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof (other than those that the Company shall promptly pay or
discharge) and that on issuance such shares shall
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be listed on each national securities exchange or eligible for inclusion in each
automated quotation system, if any, on which the other shares of outstanding
Common Stock of the Company are then listed or eligible for inclusion.
(b) The Company shall pay all documentary, stamp or similar taxes and
other governmental charges that may be imposed with respect to the issuance of
Warrants, or the issuance, or delivery of any shares on exercise of the
Warrants; provided, however, that if the shares of Common Stock are to be
delivered in a name other than the name of the Registered Holder of the Warrant
Certificate representing any Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Company the
amount of transfer taxes or charges incident thereto, if any.
6. Exchange and Registration of Transfer.
(a) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants of the same
class or may be transferred in whole or in part. Warrant Certificates to be
exchanged shall be surrendered to the Company at its Corporate Office, and on
satisfaction of the terms and provisions hereof, the Company shall execute,
issue and deliver in exchange therefor the Warrant Certificate or Certificates
that the Registered Holder making the exchange shall be entitled to receive. The
Holder shall pay all transfer taxes, if any, for any transfer of Warrant
Certificates.
(b) The Company shall keep at its office books in which, subject to
such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and the transfer thereof in accordance with its regular practice.
Upon due presentment for transfer of any Warrant Certificate at such office, the
Company shall execute, issue and deliver to the transferee or transferees a new
Warrant Certificate or Certificates representing an equal aggregate number of
Warrants.
(c) With respect to all Warrant Certificates presented for transfer, or
for exchange or exercise, the assignment or subscription form on the reverse
thereof shall be duly endorsed, or be accompanied by a written instrument or
instruments of transfer and subscription, in form satisfactory to the Company,
duly executed by the Registered Holder or his attorney-in-fact duly authorized
in writing.
(d) All Warrant Certificates surrendered for exercise or for exchange
in case of mutilated Warrant Certificates shall be promptly canceled by the
Company and thereafter retained by the Company until termination of this
Agreement.
(e) Prior to due presentment for transfer thereof, the Company may deem
and treat the Registered Holder of any Warrant Certificate as the absolute owner
thereof and of each Warrant represented thereby (notwithstanding any notations
of ownership or writing thereon made by anyone other than a duly authorized
officer of the Company) for all purposes and shall not be affected by any notice
to the contrary.
7. Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it of the ownership of and loss, theft, destruction or
mutilation of any Warrant Certificate and (in case of loss, theft or
destruction) of indemnity satisfactory to it, and (in the case of mutilation)
upon
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surrender and cancellation thereof, the Company shall execute (in the absence of
notice to the Company that the Warrant Certificate has been acquired by a bona
fide purchaser) and deliver to the Registered Holder in lieu thereof a new
Warrant Certificate of like tenor representing an equal aggregate number of
Warrants. Applicants for a substitute Warrant Certificate shall comply with such
other reasonable regulations and pay such other reasonable charges as the
Company may prescribe.
8. Adjustment of Exercise Price and Number of Shares of Common Stock or
Warrants.
(a) Subject to the exceptions referred to in Section 8(g) below, in the
event the Company shall, at any time or from time to time after the date hereof,
issue any shares of Common Stock as a stock dividend to the holders of Common
Stock, or subdivide or combine the outstanding shares of Common Stock into a
greater or lesser number of shares (any such issuance, subdivision or
combination being herein called a "Change of Shares"), then, and thereafter upon
each further Change of Shares, the Purchase Price in effect immediately prior to
such Change of Shares shall be changed to a price (including any applicable
fraction of a cent) determined by multiplying the Purchase Price in effect
immediately prior thereto by a fraction, the numerator of which shall be the sum
of the number of shares of Common Stock outstanding immediately prior to the
issuance of such additional shares and the number of shares of Common Stock
which the aggregate consideration received (determined as provided in subsection
8(f) below) for the issuance of such additional shares would purchase at such
current market price per share of Common Stock, and the denominator of which
shall be the sum of the number of shares of Common Stock outstanding immediately
after the issuance of such additional shares. Such adjustment shall be made
successively whenever such an issuance is made.
Upon each adjustment of the Purchase Price pursuant to this
Section 8, the total number of shares of Common Stock purchasable upon the
exercise of each Warrant shall (subject to the provisions contained in Section
8(b) hereof) be such number of shares (calculated to the nearest tenth)
purchasable at the Purchase Price in effect immediately prior to such adjustment
multiplied by a fraction, the numerator of which shall be the Purchase Price in
effect immediately prior to such adjustment and the denominator of which shall
be the Purchase Price in effect immediately after such adjustment.
(b) The Company may elect, on any adjustment of the Purchase Price
hereunder, to adjust the number of Warrants outstanding, in lieu of the
adjustment in the number of shares of Common Stock purchasable on the exercise
of each Warrant as hereinabove provided, so that each Warrant outstanding after
such adjustment shall represent the right to purchase one share of Common Stock.
Each Warrant held of record prior to such adjustment of the number of Warrants
shall become that number of Warrants (calculated to the nearest tenth)
determined by multiplying the number one by a fraction, the numerator of which
shall be the Purchase Price in effect immediately prior to such adjustment and
the denominator of which shall be the Purchase Price in effect immediately after
such adjustment. Upon each adjustment of the number of Warrants pursuant to this
Section 8, the Company shall, as promptly as practicable, cause to be
distributed to each Registered Holder of Warrant Certificates on the date of
such adjustment Warrant Certificates evidencing the number of additional
Warrants to which such Holder shall be entitled as a result of such adjustment
or, at the option of the Company, cause to be distributed to such Holder in
substitution and replacement for the Warrant Certificates held by him prior to
the date of adjustment (and on surrender thereof, if required by the Company)
new Warrant
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Certificates evidencing the number of Warrants to which such Holder shall be
entitled after such adjustment.
(c) In case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock, or in case of any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
that does not result in any reclassification, capital reorganization or other
change of outstanding shares of Common Stock), or in case of any sale or
conveyance to another corporation of the property of the Company as, or
substantially as, an entirety (other than a sale leaseback, mortgage or other
financing transaction), the Company shall cause effective provision to be made
so that each holder of a Warrant then outstanding shall have the right
thereafter, by exercising such Warrant, to purchase the kind and number of
shares of stock or other securities or property (including cash) receivable on
such reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
that might have been purchased on exercise of such Warrant immediately prior to
such reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance. Any such provision shall include provision for
adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 8. The Company shall not effect any
such consolidation, merger or sale unless prior to or simultaneously with the
consummation thereof the successor (if other than the Company) resulting from
such consolidation or merger or the corporation purchasing assets or other
appropriate corporation or entity shall assume, by written instrument executed
and delivered to the Company, the obligation to deliver to the holder of each
Warrant such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holders may be entitled to purchase and the other
obligations under this Agreement. The foregoing provisions shall similarly apply
to successive reclassifications, capital reorganizations and other changes of
outstanding shares of Common Stock and to successive consolidations, mergers,
sales or conveyances.
(d) Irrespective of any adjustments or changes in the Purchase Price or
the number of shares of Common Stock purchasable on exercise of the Warrants,
the Warrant Certificates theretofore and thereafter issued shall, unless the
Company shall exercise its option to issue new Warrant Certificates pursuant to
Section 2(d) hereof, continue to express the Purchase Price per share and the
number of shares purchasable thereunder as the Purchase Price per share and the
number of shares purchasable therefor were expressed in the Warrant Certificates
when the same were originally issued.
(e) After each adjustment of the Purchase Price pursuant to this
Section 8, the Company will promptly prepare a certificate signed by the
President or a Vice President, and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, of the Company setting forth: (i) the
Purchase Price as so adjusted, (ii) the number of shares of Common Stock
purchasable on exercise of each Warrant after such adjustment, and, if the
Company shall have elected to adjust the number of Warrants and the number of
Warrants to which the Registered Holder of each Warrant shall then be entitled,
and (iii) a brief statement of the facts accounting for such adjustment. The
Company will promptly cause a brief summary thereof to be sent by ordinary first
class mail to each Registered Holder of Warrants at his last address as it shall
appear on the books of the Company. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect the validity thereof
except as to the holder to
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whom the Company failed to mail such notice, or except as to the holder whose
notice was defective. The affidavit of the Secretary or an Assistant Secretary
of the Company that such notice has been mailed shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
(f) For purposes of Section 8(a) and 8(b) hereof, the following
provisions (i) and (ii) shall also be applicable:
(i) The number of shares of Common Stock outstanding at any
given time shall include shares of Common Stock owned or held by or
for the account of the Company and the sale or issuance of such
treasury shares or the distribution of any such treasury shares
shall not be considered a Change of Shares for purposes of said
sections.
(ii) No adjustment of the Purchase Price shall be made unless
such adjustment would require an increase or decrease of at least
Ten Cents ($.10) in such price; provided that any adjustments that
by reason of this subsection (ii) are not required to be made shall
be carried forward and shall be made at the time of and together
with the next subsequent adjustment that, together with any
adjustment(s) so carried forward, shall require an increase or
decrease of at least Ten Cents ($.10) in the Purchase Price then in
effect hereunder.
(g) No adjustment to the Purchase Price of the Warrants or to the
number of shares of Common Stock purchasable on the exercise of each Warrant
will be made, however,
(i) on the sale or exercise of the Warrants or any warrant
outstanding on the date hereof; or
(ii) on the issuance or sale of Common Stock or convertible
securities on the exercise of any rights or warrants to subscribe
for or purchase, or any options for the purchase of, Common Stock
or convertible securities, whether or not such rights, warrants or
options were outstanding on the date of the original sale of the
Warrants or were thereafter issued or sold; or
(iii) on the issuance or sale of Common Stock on conversion or
exchange of any convertible securities, whether or not any
adjustment in the Purchase Price was made or required to be made on
the issuance or sale of such convertible securities and whether or
not such convertible securities were outstanding on the date of the
original sale of the Warrants or were thereafter issued or sold; or
(iv) on the issuance or sale of Common Stock or convertible
securities to shareholders of any corporation that merges and/or
consolidates into or is acquired by the Company or from which the
Company acquires assets and some or all of the consideration
consists of equity securities of the Company, in proportion to
their stock holdings of such corporation immediately prior to the
acquisition but only if no adjustment is required pursuant to any
other provision of this Section 8.
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(v) on the issuance or exercise of options or on the issuance
or grant of stock awards granted to the Company's directors,
employees or consultants under a plan or plans (including for this
purpose any arrangement or agreement that would constitute a "plan"
under the instructions to the registration statement on Form S-8)
adopted by the Company's Board of Directors and approved by its
stockholders.
(vi) on the issuance of Common Stock to the Company's
directors, employees or consultants under a plan or plans that are
qualified under the Internal Revenue Code as incentive stock option
plans; or
(vii) on the issuance of Common Stock in a bona fide public
offering pursuant to a firm commitment underwriting.
(h) Any determination as to whether an adjustment in the Purchase Price
in effect hereunder is required pursuant to Section 8, or as to the amount of
any such adjustment, if required, shall be binding on the holders of the
Warrants and the Company if made in good faith by the Board of Directors of the
Company.
(i) If and whenever the Company shall grant to the holders of Common
Stock, as such, rights or warrants to subscribe for or to purchase, or any
options for the purchase of, Common Stock or securities convertible into or
exchangeable for or carrying a right, warrant or option to purchase Common
Stock, the Company shall concurrently therewith grant to each Registered Holder
as of the record date for such transaction of the Warrants then outstanding, the
rights, warrants or options to which each Registered Holder would have been
entitled if, on the record date used to determine the stockholders entitled to
the rights, warrants or options being granted by the Company, the Registered
Holder were the holder of record of the number of whole shares of Common Stock
then issuable on exercise of his Warrants. Such grant by the Company to the
holders of the Warrants shall be in lieu of any adjustment that otherwise might
be called for pursuant to this Section 8.
9. Registration Rights. The Warrants and the Warrant Shares have not
been registered under the Securities Act. Upon exercise, in part or in whole, of
this Warrant, certificates representing the Warrant Shares shall bear the
following legend:
These securities have not been registered under the Securities
Act of 1933. Such securities may not be sold or offered for
sale, transferred, hypothecated or otherwise assigned in the
absence of an effective registration statement with respect
thereto under such Act or an opinion of counsel reasonably
satisfactory to the Company that an exemption from
registration for such sale, offer, transfer, hypothecation or
other assignment is available under such Act.
10. Fractional Warrants and Fractional Shares.
(a) If the number of shares of Common Stock purchasable on the exercise
of each Warrant is adjusted pursuant to Section 8 hereof, the Company
nevertheless shall not be required
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to issue fractions of shares, on exercise of the Warrants or otherwise, or to
distribute certificates that evidence fractional shares. In such event, the
Company may at its option elect to round up the number of shares to which the
Warrant Holder is entitled to the nearest whole share or to pay cash in respect
of fractional shares in accordance with the following: With respect to any
fraction of a share called for on any exercise hereof, the Company shall pay to
the Warrant Holder an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as follows:
(i) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such
exchange or listed for trading on the Nasdaq Stock Market, the
current value shall be the last reported sale price of the Common
Stock on such exchange or market on the last business day prior to
the date of exercise of this Warrant, or if no such sale is made on
such day, the average of the closing bid and ask prices for such
day on such exchange or market; or
(ii) If the Common Stock is not listed or admitted to unlisted
trading privileges on a national securities exchange or listed for
trading on the Nasdaq Stock Market, the current value shall be the
mean of the last reported bid and asked prices reported by the
National Quotation Bureau, Inc. on the last business day prior to
the date of the exercise of this Warrant; or
(iii) If the Common Stock is not so listed or admitted to
unlisted trading privileges on a national securities exchange or
listed for trading on the Nasdaq Stock Market and bid and asked
prices are not so reported, the current value shall be an amount
determined in such reasonable manner as may be prescribed by the
Board of Directors of the Company.
11. Warrant Holders Not Deemed Stockholders. No holder of Warrants
shall, as such, be entitled to vote or to receive dividends or be deemed the
holder of Common Stock that may at any time be issuable on exercise of such
Warrants for any purpose whatsoever, nor shall anything contained herein be
construed to confer on the holder of Warrants, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
on any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether on any recapitalization, issue
or reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger or conveyance or otherwise), or to receive notice
of meetings, or to receive dividends or subscription rights, until such Warrant
Holder shall have exercised such Warrants and been issued shares of Common Stock
in accordance with the provisions hereof.
12. Rights of Action. All rights of action with respect to this
Agreement are vested in the respective Registered Holders of the Warrants, and
any Registered Holder of a Warrant or of the holder of any other Warrant, may,
in his own behalf and for his own benefit, enforce against the Company his right
to exercise his Warrants for the purchase of shares of Common Stock in the
manner provided in the Warrant Certificate and this Agreement.
13. Agreement of Warrant Holders. Every holder of a Warrant, by his
acceptance thereof, consents and agrees with the Company, and every other holder
of a Warrant that:
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(a) The Warrants are transferable only on the books of the Company by
the Registered Holder thereof in person or by his attorney-in-fact duly
authorized in writing and only if the Warrant Certificates representing such
Warrants are surrendered at the office of the Company, duly endorsed or
accompanied by a proper instrument of transfer satisfactory to the Company in
its discretion, together with payment of any applicable transfer taxes; and
(b) The Company may deem and treat the person in whose name the Warrant
Certificate is registered as the holder and as the absolute, true and lawful
owner of the Warrants represented thereby for all purposes, and the Company
shall not be affected by any notice or knowledge to the contrary, except as
otherwise expressly provided in Section 7 hereof.
(c) Warrant Holder hereby confirms that the Warrants to be received by
Warrant Holder and the Common Stock issuable upon exercise thereof
(collectively, the "Securities") will be acquired for such Warrant Holder's own
account, not as a nominee or agent, for investment purposes only and not with a
view to the resale or distribution of any part thereof.
(d) Warrant Holder understands that (i) the Warrants are not, and any
Common Stock acquired on exercise thereof at the time of issuance may not be,
registered under the Securities Act of 1933, as amended (the "1933 Act") ; (ii)
the sale and issuance of the Securities by the Company are being made on the
basis of exemption thereunder; and (iii) the Company's reliance on such
exemption is predicated on such Warrant Holder's representations set forth
herein.
(e) Warrant Holder represents that he has had the opportunity (i) to
discuss the Company's business, management and financial affairs with the
Company's management, (ii) to review the Company's operations and facilities and
(iii) to ask question and receive answers from the Company regarding the terms
and conditions of the offering of the Warrants.
(f) Warrant Holder has such knowledge and experience in financial or
business matters that he is capable of evaluating the merits and risks of his
investment in the Securities. Warrant Holder can bear the economic risk of his
investment in the Securities, including a partial or complete loss of his
investment.
(g) Warrant Holder acknowledges and agrees that the Warrants, and any
shares of Common Stock issued upon exercise thereof, must be held indefinitely
unless subsequently registered under the 1933 Act or an exemption from such
registration is available. Warrant Holder has been advised or is aware of the
provisions of Rule 144 promulgated under the 1933 Act as in effect from time to
time, which permits limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including, among other
things: the availability of certain current public information about the
Company, the resale occurring following the required holding period under Rule
144 and the number of shares being sold during any three-month period not
exceeding specified limitations. Warrant Holder agrees that he will not sell,
assign or otherwise transfer the Warrants, or any shares of Common Stock issued
upon exercise thereof, in violation of the 1933 Act.
(h) Warrant Holder is an "accredited investor" as such term is defined
in Rule 501 promulgated under the 1933 Act.
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14. Cancellation of Warrant Certificates. If the Company shall purchase
or acquire any Warrant, the Warrant Certificate or Warrant Certificates
evidencing the same shall thereupon be delivered to the Company and canceled by
it and retired. The Company shall also cancel any Warrant Certificates following
exercise of any of the Warrants Certificates represented thereby or delivered to
it for transfer, split up, combination or exchange.
15. Modification of Agreement. This Agreement shall not be modified,
supplemented or altered in any respect except with the consent in writing of the
Company and the Registered Holders, other than such changes as are specifically
prescribed by this Agreement as originally executed or are made in compliance
with applicable law.
16. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first class registered or certified mail, postage prepaid as
follows: if to the Registered Holder of a Warrant Certificate, at the address of
such holder as shown on the books maintained by the Company; if to the Company,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other address as the Company may
specify.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws.
18. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the Company and the Registered Holders, and their respective
successors and assigns, and the holders from time to time of Warrant
Certificates. Nothing in this Agreement is intended or shall be construed to
confer on any other person any right, remedy or claim, in equity or at law, or
to impose on any other person any duty, liability or obligation.
19. Termination. This Agreement shall terminate at the close of
business on the Warrant Expiration Date of all the Warrants or such earlier date
on which all Warrants have been exercised.
20. Counterparts. This Agreement may be executed in several
counterparts, which taken together shall constitute a single document.
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
▇▇▇▇.▇▇▇ INC.
By:_____________________________________
Name:
Title:
________________________________________
AGREED TO AND ACKNOWLEDGED BY:
UNIVERSAL CLAIMS ADMINISTRATOR, INC.
By______________________________________
Name:
Title:
12
EXHIBIT A
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE, TRANSFERRED,
HYPOTHECATED OR OTHERWISE ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT THERETO UNDER SUCH ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION FOR
SUCH SALE, OFFER, TRANSFER, HYPOTHECATION OR OTHER ASSIGNMENT IS AVAILABLE UNDER
SUCH ACT.
No. ____ _________
Common Stock Purchase Warrants
VOID AFTER AUGUST __, 2005
STOCK PURCHASE WARRANT CERTIFICATE FOR PURCHASE OF COMMON STOCK
▇▇▇▇.▇▇▇ INC.
THIS CERTIFIES THAT
FOR VALUE RECEIVED ________ or registered assigns (the "Registered
Holder") is the owner of the number of Common Stock Purchase Warrants
("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 non-assessable share of Common Stock, $.01 par value ("Common Stock"), of
▇▇▇▇.▇▇▇ INC., a Delaware corporation (the "Company"), at any time between the
Initial Exercise Date (as herein defined) and the Expiration Date (as
hereinafter defined), on the presentation and surrender of this Warrant
Certificate with the Subscription Form on the reverse hereof duly executed, at
the corporate office of the Company, accompanied by payment of _______ Dollars
and ________ Cents ($____) per share of Common Stock, subject to adjustment from
time to time pursuant to the terms and provisions of Section 8 of the Warrant
Agreement in lawful money of the United States of America in cash or by official
bank or certified check made payable to ▇▇▇▇.▇▇▇ INC.
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 August 9, 2000,
by and between the Company and the Registered Holder. Terms not defined herein
shall have the meanings assigned to them in the Warrant Agreement.
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase Price and/or the number of shares of Common Stock
subject to purchase on the exercise of each Warrant represented hereby are
subject to modification or adjustment.
B-1
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock will be issued. In
the case of the exercise of less than all the Warrants represented hereby, the
Company shall cancel this Warrant Certificate on 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 "Initial Exercise Date" shall mean as of the date hereof.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on
August __, 2005, or such earlier date as the Warrants shall be redeemed. 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.
This Warrant Certificate is exchangeable, on the surrender hereof by
the Registered Holder at the corporate office of the Company, 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 with any transfer fee in addition
to any tax or other governmental charge imposed in connection therewith, for
registration of transfer of this Warrant Certificate at such office, a new
Warrant Certificate or 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.
Prior to due presentment for transfer hereof, the Company may deem and
treat the Registered Holder as the absolute owner hereof and of each Warrant
represented hereby (notwithstanding any notations of ownership or writing hereon
made by anyone other than a duly authorized officer of the Company) for all
purposes and shall not be affected by any notice to the contrary.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
B-2
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or in facsimile by its officer thereunto duly
authorized and a facsimile of its corporate seal to be imprinted hereon.
▇▇▇▇.▇▇▇ INC.
By:_____________________________________
Name:
Title:
Date:_________________________________
[Seal]
B-3
SUBSCRIPTION FORM
(To Be Executed by the Registered Holder in Order to Exercise Warrants)
--------------------------
THE UNDERSIGNED REGISTERED HOLDER hereby elects to exercise Warrants
of ▇▇▇▇.▇▇▇ INC. represented by this Warrant Certificate, and to
purchase the securities issuable on the exercise of such Warrants, and
requests that certificates for such securities shall be issued in the
name of:
------------------------------------------
whose taxpayer identification number is: ________________________
and be delivered to:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below:
------------------------------------------
------------------------------------------
------------------------------------------
(Address)
---------------------------
(Date)
---------------------------
(Taxpayer Identification Number)
---------------------------
(Signature)
SIGNATURE GUARANTEED
---------------------------
(Bank or trust company having an office or correspondent in the
United States or a broker or dealer which is a member of a
registered securities exchange or the National Association of
Securities Dealers, Inc.)
B-4
ASSIGNMENT
(To Be Executed by the Registered Holder in Order to Assign Warrants)
---------------------------
FOR VALUE RECEIVED, the Undersigned Registered Holder hereby sells, assigns and
transfers unto
------------------------------------------
(insert name)
whose taxpayer identification or other identifying number is: ______________ and
whose address is:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
(please print or type address)
the following number of the Warrants represented by this Warrant Certificate:
___________________, and hereby irrevocably constitutes and appoints
___________________ Attorney to transfer this Warrant Certificate on the books
of the Company, with full power of substitution in the premises.
---------------------------
(Date)
---------------------------
(Signature)
SIGNATURE GUARANTEED
------------------------------------------
(Bank or trust company having an office or correspondent in the
United States or a broker or dealer which is a member of a
registered securities exchange or the National Association of
Securities Dealers, Inc.)
B-5