21ST CENTURY HOLDING COMPANY
EXHIBT
4.4
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES REPRESENTED HEREBY ARE
RESTRICTED AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,
ACCEPTABLE TO THE COMPANY, IS OBTAINED STATING THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
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Dated
as of _________, 2003
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No.
W-
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(INCORPORATED
UNDER THE LAWS OF THE STATE OF FLORIDA)
REDEEMABLE
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR
VALUE
RECEIVED, 21st Century Holding Company, a Florida corporation (the "Company"),
hereby certifies that ______________________, his (her/its) successors and
assigns (the "Holder"), is the owner of such number of warrants (the "Warrants")
as set forth in Section 1 hereof. Each Warrant initially entitles the Holder,
subject to the provisions hereof, to purchase from the Company at any time
and
from time to time on and after the date hereof until 5:00 p.m. Florida local
time on the Expiration Date (as described in Section 3 herein), one-half fully
paid and non-assessable share of Common Stock (as defined below) at the Exercise
Price per share of Common Stock (as described in
Section
2
herein) on the terms and conditions hereinafter set forth.
The
term
"Common Stock" means the Common Stock, par value $0.01 per share, of the Company
as constituted on the date hereof (the "Base Date"). The number of shares of
Common Stock to be received upon the exercise of this warrant certificate may
be
adjusted from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter referred to as "Warrant Shares." The term "Other Securities" means
any other equity or debt securities that may be issued by the Company in
addition thereto or in substitution for the Warrant Shares. The term "Company"
means and includes the corporation named above as well as any immediate
successor corporation resulting from a reorganization.
Upon
receipt by the Company of documentation reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this warrant certificate, and (in
the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and upon surrender and cancellation of this warrant certificate, if mutilated,
the Company shall execute and deliver a new warrant certificate of like tenor
and date. Any such new warrant certificate executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this warrant certificate so lost, stolen, destroyed or mutilated
shall be at any time enforceable by anyone.
The
Holder agrees with the Company that this warrant certificate is issued, and
all
the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein.
1.
NUMBER
OF WARRANTS. The Holder is the owner of a number of warrants equal to two times
the quotient of the aggregate principal amount of the 6% Senior Subordinated
Notes the Holder has purchased pursuant to the terms of the Unit Purchase
Agreement (as hereinafter defined) and the Exercise Price.
2.
EXERCISE PRICE. The Exercise Price shall equal 115% of the weighted-average
volume price for the Common Stock on Nasdaq as reported by Bloomberg Financial
Markets ("Bloomberg") for the 60 consecutive trading days after the date of
the
Closing as set forth in the Unit Purchase Agreement; provided, however, that
in
no event shall the Exercise Price be greater than $25.00 per share nor lower
than $15.00 per share. No later than 15 business days after the expiration
date
of the 60-day period set forth above, the Company shall mail a notice to the
Holder, first class, postage prepaid, at such Holder's latest address as shall
appear on the records of the Company or the Company's Warrant Agent (as
hereinafter defined), if any, setting forth the Exercise Price and the number
of
Warrants determined in accordance with Sections 1 and 2 hereof.
3.
EXERCISE OF WARRANT. This warrant certificate may be exercised in whole or
in
part, at any time, or from time to time during the period commencing on the
date
hereof and expiring three years after the date hereof (the "Expiration Date").
The Warrants must be exercised so as to purchase one full Warrant
Share.
4.
NOTICE
OF EXERCISE. Exercise of the Warrants shall be effected in any such case by
presentation and surrender of this warrant certificate to the Company at its
principal office, at the office of its stock transfer agent or any other warrant
agent designated by the Company (the "Warrant Agent") if any, with the Warrant
Exercise Form, a form of which is attached hereto as Exhibit A, duly executed
and accompanied by payment (either in cash or by certified or official bank
check, payable to the order of the Company) of the Exercise Price for the number
of Warrant Shares specified in such form and instruments of transfer, if
appropriate, duly executed by the Holder or its duly authorized attorney. If
this warrant certificate should be exercised in part only, the Company shall,
upon surrender of this warrant certificate for cancellation, execute and deliver
a new warrant certificate evidencing the rights of the Holder thereof to
purchase the balance of the Warrant Shares purchasable hereunder. Upon receipt
by the Company of this warrant certificate, together with the Exercise Price,
at
its office, or by the Warrant Agent at its office, in proper form for exercise,
the Holder shall be deemed to be the Holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer
books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Holder.
The
Company shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock
on
exercise of this warrant certificate, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the issuance
or
transfer of the Warrants or the Warrant Shares.
5.
REDEMPTION RIGHTS. The Warrants may be redeemed, in whole or in part, at any
time or from time to time, at the Company's sole option, commencing a year
from
the date hereof at a redemption price of $0.01 per Warrant Shares; provided,
however, that before any such call for redemption of the Warrants the
weighted-average volume price for the Company's Common Stock quoted on the
Nasdaq National Market ("Nasdaq") shall have for 20 consecutive trading days
ending not more than 10 days prior to the notice of redemption been in excess
of
150% of the Exercise Price, as such may be adjusted from time to time.
Redemption
of the Warrants may only occur upon 30 days' prior written notice to the Holder,
such notice to include certification of the trading price of the Company's
Common Stock on Nasdaq as reported by Bloomberg. If the Company exercises its
right to redeem the Warrants, in whole or in part, it shall mail a notice of
redemption to the Holder, first class, postage prepaid, not later than the
30th
day before the date fixed for redemption, at such Holder's last address as
shall
appear on the records of the Company or the Company's Warrant Agent, if any.
Any
notice mailed in the manner provided herein shall be conclusively presumed
to
have been duly given whether or not the Holder receives such notice. The notice
of redemption shall specify the redemption price, the date fixed for redemption,
the place where the warrant certificate shall be delivered and the redemption
price shall be paid, and that the right to exercise the Warrants shall terminate
at 5:00 p.m. Florida local time on the business day immediately preceding the
date fixed for redemption. The date fixed for the redemption of the Warrants
shall be the Redemption Date. Any right to exercise a Warrant shall terminate
at
5:00 p.m. Florida local time on the business day immediately preceding the
Redemption Date. On and after the Redemption Date, the Holder shall have no
further rights except to receive, upon surrender of a certificate evidencing
Warrants duly endorsed or accompanied by a written instrument or instruments
of
redemption in form satisfactory to the Company, the redemption price of $0.01,
without interest, per Warrant Shares.
6.
RESERVATION OF SHARES. The Company will at all times reserve for issuance and
delivery upon exercise of this warrant certificate all shares of Common Stock
or
other shares of capital stock of the Company (and Other Securities) from time
to
time receivable upon exercise of this warrant certificate. All such shares
(and
Other
Securities)
shall be duly authorized and, when issued upon such exercise, shall be validly
issued, fully paid and non-assessable and free of all preemptive
rights.
7.
FRACTIONAL SHARES. No fractional shares or script representing fractional shares
shall be issued upon the exercise of the Warrants, but the Company shall pay
the
Holder an amount equal to the fair market value of such fractional share of
Common Stock in lieu of each fraction of a share otherwise called for upon
any
exercise of the Warrants, as determined by the Board of Directors of the
Company.
8.
EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This warrant certificate
is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its Warrant Agent,
if
any, for other warrant certificates of different denominations, entitling the
Holder to purchase in the aggregate the same number of shares of Common Stock
purchasable hereunder. Upon surrender of this warrant certificate to the Company
or at the office of its Warrant Agent, if any, with an appropriate form of
assignment duly executed and funds sufficient to pay any transfer tax, the
Company shall, without charge, execute and deliver a new warrant certificate
in
the name of the assignee named in such instrument of assignment and this warrant
certificate shall promptly be canceled. This warrant certificate may be divided
or combined with other warrant certificates that carry the same rights upon
presentation hereof at the office of the Company or at the office of its Warrant
Agent, if any, together with a written notice specifying the names and
denominations in which new warrant certificates are to be issued and signed
by
the Holder hereof.
9.
RIGHTS
OF THE HOLDER. The Holder shall not, by virtue hereof, be entitled to any rights
as a shareholder in the Company, either at law or in equity, and the rights
of
the Holder are limited to those expressed in this warrant
certificate.
10.
ANTI-DILUTION PROVISIONS.
10.1
ADJUSTMENT FOR RECAPITALIZATION. If the Company shall at any time subdivide
its
outstanding shares of Common Stock (or Other Securities at the time receivable
upon the exercise of the Warrants) by recapitalization, reclassification or
split-up thereof, or if the Company shall declare a stock dividend or distribute
shares of Common Stock to its shareholders, the number of shares of Common
Stock
subject to this warrant certificate immediately prior to such subdivision shall
be proportionately increased and the Exercise Price shall be proportionately
decreased, and if the Company shall at any time combine the outstanding shares
of Common Stock by recapitalization, reclassification or combination thereof,
the number of shares of Common Stock or Other Securities subject to this warrant
certificate immediately prior to such combination shall be proportionately
decreased and the Exercise Price shall be proportionately increased. Any such
adjustments pursuant to this Section 10.1 shall be effective at the close of
business on the effective date of such subdivision or combination or if any
adjustment is the result of a stock dividend or distribution then the effective
date of such adjustment based thereon shall be the record date
therefor.
10.2
ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In the case of a
reorganization of the Company after the Base Date, the Holder, upon the exercise
thereof as provided in Section 1, at any time after the consummation of such
reorganization, shall be entitled to receive, in lieu of the securities and
property receivable upon the exercise of this warrant certificate prior to
such
consummation, the securities or property to which such Holder would have been
entitled upon such consummation if such Holder had exercised this warrant
certificate immediately prior thereto; in each such case, the terms of this
warrant certificate shall be applicable to the securities or property receivable
upon the exercise of this warrant certificate after such
consummation.
10.3
ISSUANCES BELOW EXERCISE PRICE. Except in the case of the issuance of Common
Stock issued (i) pursuant to any employee benefit plan of the Company now
existing or to be implemented in the future, (ii) for consideration other than
cash pursuant to a merger, consolidation, acquisition or similar business
combination, (iii) in connection with any transaction referred to in, or
contemplated by, this Section 10 hereof, (iv) pursuant to any equipment leasing
or loan arrangement, or debt financing from a bank or similar financial or
lending institution, (v) issued by the Company pursuant
to
a
registration statement filed under the Securities Act, or (v) issued in
connection with strategic transactions involving the Company and other entities,
including (a) joint ventures, manufacturing, marketing or distribution
arrangements or (b) technology transfer or development arrangements, if the
Company at any time while the Warrants are outstanding, shall issue shares
of
Common Stock at a price per share (an "Issuance Price") less than the Exercise
Price (or in the case of an issuance of Common Stock in a private placement
at
less than 80% of the Exercise Price), then the Exercise Price shall be
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to the issuance of such Common
Stock plus the number of shares of Common Stock which the price paid for such
shares of Common Stock would purchase at the Exercise Price, and the denominator
of which shall be the sum of the number of shares of Common Stock outstanding
immediately prior to such issuance plus the number of shares of Common Stock
so
issued or issuable. Upon each adjustment of the Exercise Price pursuant to
the
provisions of this Section 10.2, the number of Warrant Shares issuable upon
the
exercise of each Warrant shall be adjusted by multiplying a number equal to
the
Exercise Price in effect immediately prior to such adjustment by the number
of
Warrant Shares issuable upon exercise of the Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise
Price.
10.4
NOTICES OF RECORD DATE, ETC. In case:
(a)
the
Company shall take a record of the holders of its Common Stock (or Other
Securities at the time receivable upon the exercise of the Warrants) for the
purpose of entitling them to receive any dividend (other than a cash dividend
at
the same rate as the rate of the last cash dividend theretofore paid) or other
distribution, or any right to subscribe for, purchase or otherwise acquire
any
shares of stock of any class or any other securities, or to receive any other
right; or
(b)
of
any capital reorganization of the Company, any reclassification of the capital
stock of the Company, or any consolidation or merger of the Company with or
into
another corporation; then, and in each such case, the Company shall mail or
cause to be mailed to the Holder at the time outstanding a notice specifying,
as
the case may be, (i) the date on which a record is to be taken 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 such
reorganization, reclassification, consolidation or merger is to take place,
and
the time, if any, is to be fixed, as to which the holders of record of Common
Stock (or such Other Securities at the time receivable upon the exercise of
the
Warrants) shall be entitled to exchange their shares of Common Stock (or such
Other Securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation or merger. Such notice shall
be
mailed at least 20 days prior to the date therein specified and the Warrants
may
be exercised prior to said date during the term of the Warrants.
10.5
LIMITATION ON ANTI-DILUTION ADJUSTMENTS. Notwithstanding anything to the
contrary contained herein, the Company shall not adjust the number of Warrant
Shares as provided in this Section 10, if such adjustment would, either
individually or together with one or more other adjustments or together with
one
or more issuances of Transaction Shares (as defined in the Unit Purchase
Agreement dated as of ___________, 2003 (the "Unit Purchase Agreement") among
the Company and the Purchasers named therein), cause the issuance of shares
of
Common Stock to exceed the number of shares that the Company could then issue
under Section 4350(i) of the rules and regulations of Nasdaq (the "Nasdaq
Rules") or any successor rule or regulation. Under Section 4350(i) of the Nasdaq
Rules, a company may not issue shares, and may not issue securities convertible
into shares, where the shares issued could in the aggregate equal 20% or more
of
the voting power of the shares outstanding, without obtaining shareholder
approval. The foregoing limitation shall only apply until such time as the
Company obtains the requisite approval of its shareholders for the issuance
of
the Transaction Shares, as required by Section 4350(i) of the Nasdaq Rules
or
any successor rule or regulation. The Company covenants and agrees that it
shall
include a proposal for the approval of the issuance of the Transaction Shares
in
the Company's proxy statement for its 2004 annual meeting of shareholders,
which
the Company currently anticipates shall take place in June 2004. If, due to
the
foregoing limitation, the Company cannot adjust the Warrant Shares as provided
in Section 10.3 above, then, subject to NASD approval, the Company agrees that
the Exercise
Price
hereof shall be reduced to equal the Issuance Price(s) of the shares of Common
Stock that triggered the adjustment pursuant to Section 10.3.
11.
TRANSFER TO COMPLY WITH THE SECURITIES ACT. The Warrants and any Warrant Shares
or Other Securities may not be sold, transferred, pledged, hypothecated or
otherwise disposed of unless registered under the Securities Act and any
applicable state securities laws or pursuant to available exemptions from such
registration, provided that the transferor delivers to the Company an opinion
of
counsel satisfactory to the Company confirming the availability of such
exemption.
12.
REGISTRATION RIGHTS. The Warrants and the Warrant Shares issuable upon exercise
of the Warrants shall be subject to certain registration rights as provided
in
the registration rights agreement (the "Registration Rights Agreement") among
the Company and the initial holders of the Warrants. If the Company fails to
comply with the terms of the Registration Rights Agreement, the Exercise Price
shall be reduced by 10% for each full period of 30 consecutive days of such
non-compliance (and there shall be no pro rata reduction of the Exercise Price
if a period of non-compliance is not a full 30-day period).
13.
LEGEND. Unless the Warrant Shares or Other Securities have been registered
under
the Securities Act, upon exercise of any of the Warrants and the issuance of
any
of the Warrant Shares or Other Securities, all certificates representing such
securities shall bear on the face thereof substantially the following
legend:
"The
securities represented by this certificate have not been
registered
under the Securities Act of 1933, as amended (the
"Act"),
or under applicable state securities laws and may not
be
sold,
offered for sale, assigned, transferred or otherwise
disposed
of, unless registered pursuant to the provisions of
the
Act
and any applicable state securities laws or unless an
opinion
of counsel to the Company is obtained stating that
such
disposition is in compliance with an available exemption
from
such
registration."
14.
NOTICES. All notices required hereunder shall be in writing and shall be deemed
given when sent by facsimile, delivered personally or within two days after
mailing when mailed by certified or registered mail, return receipt requested,
to the Company at its principal office, or to the Holder at the address set
forth on the record books of the Company, or at such other address of which
the
Company or the Holder has been advised by notice hereunder.
15.
APPLICABLE LAW. The Warrants are issued under and shall for all purposes be
governed by and construed in accordance with the laws of the State of Florida,
without giving effect to the choice of law rules thereof.
IN
WITNESS WHEREOF, the Company has caused this warrant certificate to be signed
on
its behalf, in its corporate name, by its duly authorized officer, all as of
the
day and year first above written.
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21ST
CENTURY HOLDING COMPANY,
a
Florida corporation
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| By: | ||
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Name:_________________________________________________ |
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| Title:__________________________________________________ | ||
EXHIBIT
A
WARRANT
EXERCISE FORM
(To
be
executed by the Holder to exercise the right to purchase shares of Common Stock
under the foregoing Warrant)
To
21st
Century Holding Company:
In
accordance with the warrant certificate enclosed with this Warrant Exercise
Form, the undersigned hereby irrevocably elects to purchase________ shares
of
Common Stock, $0.01 par value per share ("Common Stock"), of 21st
Century
Holding Company and, encloses herewith $__________ in cash, certified or
official bank check or checks, which sum represents the aggregate Exercise
Price
(as
defined in the Warrant) for the number of shares of Common Stock to which this
Warrant Exercise Form relates, together with any applicable taxes payable by
the
undersigned pursuant to the warrant certificate.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
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PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION
NUMBER
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________________________________________________________________________________________________________
(Please
print name and address)
If
the
number of shares of Common Stock issuable upon this exercise shall not be all
of
the shares of Common Stock that the undersigned is entitled to purchase in
accordance with the enclosed warrant certificate, the undersigned requests
that
a new warrant certificate evidencing the right to purchase the shares of Common
Stock not issuable pursuant to the exercise evidenced hereby be
issued
in
the name of and delivered to:
________________________________________________________________________________________________________
(Please
print name and address)
________________________________________________________________________________________________________
________________________________________________________________________________________________________
| Date: __________________________________ | |
____________________________________ (Print name of holder |
| By: ________________________________ | ||
| Title _______________________________ | ||
| Title: _______________________________ | ||
|
(Signature
must conform in all respects to
name
of Holder as specified on the face of
the
Warrant)
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