FORM OF WARRANT EXHIBIT 4.2
THIS WARRANT AND THE SHARES UNDERLYING THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE BLUE SKY LAWS OF ANY STATE.
SUCH WARRANT AND SHARES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
IN ACCORDANCE WITH AN EXEMPTION THEREUNDER.
VOID AFTER 5:00 P.M. EASTERN TIME ON THE EXPIRATION DATE
WARRANT TO PURCHASE _________ SHARES OF COMMON STOCK
OF
AMERICAN MEDICAL ALERT CORP.
This Is To Certify That, FOR VALUE RECEIVED,
________________________________ ("Holder") having an address at
__________________________________________, it designee or its permitted
assigns, is entitled to purchase, subject to the provisions of this Warrant,
("Warrant") from American Medical Alert Corp., a New York corporation (the
"Company"), ____________________ (_______) non-callable, fully paid, validly
issued and non-assessable shares of Common Stock, par value $.01 per share (the
"Common Stock"), at an exercise price of $3.80 per share of Common Stock, at any
time or from time to time during the period (the "Exercise Period") from the
date hereof until 5:00 p.m. Eastern Standard Time on _______________, 2007 (the
"Expiration Date"). The number of shares of Common Stock to be received upon the
exercise of this Warrant and the price to be paid for each share of Common Stock
may be adjusted from time to time as hereinafter set forth. The Common Stock
issuable upon the exercise of this Warrant, as adjusted from time to time, is
hereinafter sometimes referred to as "Warrant Shares" and the exercise price per
share of Common Stock issuable hereunder in effect at any time and as adjusted
from time to time is hereinafter sometimes referred to as the "Exercise Price."
(1) EXERCISE OF WARRANT. This Warrant may be exercised in whole or in
part at any time or from time to time during the Exercise Period; provided,
however, that if such day is a day on which banking institutions in the State of
New York are authorized by law to close, then on the next succeeding day which
shall not be such a day. This Warrant may be exercised by presentation and
surrender of this Warrant to the Company at its principal office or to the
Company's warrant agent, if any has been so appointed, with the Purchase Form
annexed hereto duly executed and accompanied by payment of the Exercise Price,
in cash or by certified or bank cashier's check, for the number of Warrant
Shares specified in such form. As soon as practicable after each such exercise
of the Warrants, the Company shall issue or cause to be issued and delivered to
the Holder a certificate or certificates for the Warrant Shares issuable upon
such exercise, registered in the name of the Holder. The Warrant shall be deemed
to have been exercised immediately prior to the close of business on the date of
any such exercise, provided such exercise is in accordance with the provisions
set forth herein. If this Warrant should be exercised in part only, the Company
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the rights of the Holder thereof to purchase the balance
of the Warrant Shares purchasable thereunder. Upon receipt by the Company of
this Warrant at its office in proper form for exercise, the Holder shall be
deemed to be the holder of record of the Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such Common Stock shall not
then be physically delivered to the Holder.
(2) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
the Warrants.
(3) FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. If more
than one Warrant shall be exercised at one time by the Holder, the number of
full shares which shall be issuable upon exercise thereof shall be computed on
the basis of the aggregate number of full shares issuable upon such exercise. No
adjustment shall be made in respect of cash dividends on Warrant Shares
delivered upon exercise of any Warrant. With respect to any fraction of a share
called for upon exercise hereof, the Company shall pay to the Holder an amount
in cash equal to such fraction multiplied by the average bid and asked prices of
the Common Stock on the last available date for which quotations are available
immediately preceding the date of exercise of this Warrant, if the bid and asked
prices are not so reported, then the current market value shall be an amount,
not less than the book value thereof as at the end of the most recent fiscal
year of the Company ending prior to the date of the exercise of the Warrant,
determined in such reasonable manner as may be prescribed by the Board of
Directors of the Company.
(4) EXCHANGE OR LOSS OF WARRANT. This Warrant is exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company for other Warrants of different denominations entitling the holder
thereof to purchase in the aggregate the same number of Common Stock purchasable
hereunder. This Warrant may be divided or combined with other Warrants which
carry the same rights upon presentation hereof at the principal office of the
Company with a written notice specifying the denominations in which new Warrants
are to be issued and signed by the Holder hereof. The term "Warrant" as used
herein includes any Warrants into which this Warrant may be divided or
exchanged. Upon receipt by the Company or its warrant agent, if any, of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date.
(5) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein
and in any warrant agreement entered into by and between the Company and a
warrant agent with respect to the Warrants.
(6) ANTI-DILUTION PROVISIONS.
(a) Stock Dividends, Splits, Combinations, etc. In case the
Company shall at any time after the date of this Warrant (i) declare a dividend,
or make a distribution, on the outstanding Common Stock in shares of its capital
stock, (ii) subdivide the outstanding Common Stock, such as in a stock split,
(iii) combine the outstanding Common Stock into a smaller number of shares, such
as in a reverse stock split, or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), then in each case, the number and kind of shares of Common Stock
receivable upon exercise of this Warrant, in effect at the time of the record
date for such dividend or distribution or of the effective date of such
subdivision, combination, or reclassification, shall be proportionately
increased or decreased, as the case may be, so that the Holder after such time
shall be entitled to receive the aggregate number and kind of shares which if
such Warrant had been exercised immediately prior to such time, it would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, distribution, subdivision, combination or reclassification. Whenever
the number of shares of Common Stock purchasable upon the exercise of this
Warrant is adjusted as provided in this Section 6(a), then the Exercise Price
shall also be adjusted by multiplying such Exercise Price immediately prior to
such adjustment by a fraction (A) the numerator of which shall be the number of
shares of common Stock purchasable upon the exercise immediately prior to such
adjustment, and (B) the denominator of which shall be the number of shares of
Common Stock so purchasable immediately thereafter. Such adjustment shall be
made successively whenever any event listed above shall occur.
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(b) Reorganization, Consolidation, Merger, Etc. In the case of
any reorganization of the Company (or any other corporation, the securities of
which are at the time receivable on the exercise of this Warrant) or if the
Company (or any other such corporation) shall consolidate with or merge into
another corporation or convey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant upon the
exercise as provided for in Section 1 at any time after the consummation of such
reorganization, consolidation, merger or conveyance, shall be entitled to
receive in lieu of the securities and property receivable upon the exercise of
this Warrant 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 immediately prior thereto, in each such case, the terms
of this Warrant shall be applicable to the securities or property received upon
the exercise of this Warrant after such combination.
(c) Extraordinary Dividends. In case the Company shall distribute
to all holders of Common Stock (including any such distribution made to the
stockholders of the Company in connection with a consolidation or merger in
which the Company is the continuing corporation) evidences of its indebtedness
or assets (other than dividends payable in shares of Common Stock), or
subscription rights, options, or warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock (excluding those referred to in paragraph 6(b) hereof), then, in each
case, the Exercise Price shall be adjusted by multiplying the Current Market
Price (as hereinafter defined) per share of common stock immediately prior to
the record date for the determination of stockholders entitled to receive such
distribution by a fraction, the numerator of which shall be the Current Market
Price per share of Common Stock on such record date, less the fair market value
(as determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive absent manifest error) of the portion of the
evidences of indebtedness or assets so to be distributed, or of such
subscription rights, options, or warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock, applicable to one share, and the denominator of which shall be such
Current Market Price per share of Common Stock. Such adjustment shall be made
whenever any such distribution is made, and shall become effective on the date
of such distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
(d) De Minimis Exception. No adjustment in the Exercise Price
shall be required if such adjustment is less than $.01; provided, however, that
any adjustments which by reason of this paragraph 6 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this paragraph 6 shall be made to the nearest
one-thousandth of a share, as the case may be.
(e) Date of Issuance. In any case in which this paragraph 6 shall
require that an adjustment in the Exercise Price be made effective as of a
record date for a specified event, the Company may elect to defer, until the
occurrence of such event, issuing to any Holder who exercised any Warrants after
such record date, the shares of Common Stock, if any, issuable upon such
exercise over and above the shares of Common Stock, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment.
(f) Notice of Adjustments. Whenever there shall be an adjustment
as provided in this paragraph 6, the Company shall promptly cause written notice
thereof to be sent by overnight courier, to the Holder, at its principal office,
which notice shall be accompanied by an officer's certificate setting forth the
number of Warrant Shares purchasable upon the exercise of this Warrant and the
Exercise Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and the computation thereof, which officer's
certificate shall be conclusive evidence of the correctness of any such
adjustment absent any error.
(g) Adjustments at Below Par Value. Before taking any action
which would cause an adjustment reducing the Exercise Price below the then par
value of the Common Stock issuable upon exercise of the Warrants, the Company
will take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of such the Company at such adjusted Exercise Price.
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(7) INVESTMENT REPRESENTATION. By accepting this Warrant, the Holder
acknowledges that it is being taken for its own account as principal, for
investment purposes only, and not with a view to, or for, resale, distribution
or fractionalization thereof, in whole or in part, and no other person has a
direct or indirect beneficial interest in such Warrant and such Warrant may only
be transferred, subject to compliance with the legend set forth on the first
page of this Warrant Certificate. The Holder, upon exercise of this Warrant,
will be required to provide the Company with an investment letter and the
certificates representing such shares will contain a legend to the effect that
the Holder may not transfer, sell, pledge or hypothecate such shares unless the
registration provisions of the Act have been complied with and unless the
Company has received an opinion of counsel that such registration is not
required. Such Holder will also be required to confirm that it is an "Accredited
Investor" as such term is defined under Regulation D, at the time of such
exercise, and that it is acquiring the Warrant Shares for investment purposes as
set forth in the first sentence in this Section 7.
(8) REGISTRATION RIGHTS. The Warrant Shares issuable upon the exercise
of this Warrant are the subject of certain registration rights granted by the
Company to the Holder as more specifically set forth in the Stock and Warrant
Purchase Agreement which was executed by each of the Company and Holder.
(9) NOTICES. All notices and other communications which are required or
may be given under this Warrant shall be in writing and shall be deemed to have
been duly given when delivered in person or transmitted by telex or three (3)
days after being mailed, postage prepaid, in the case of the Company to American
Medical Alert Corp., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention:
Chief Financial Officer, with a copy to Jenkens & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP,
The Chrysler Building, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., and in the case of the Holder to the address
set forth herein, or to such other address as such party shall have specified by
notice to the other party in accordance with this section (9). If notice is
given by registered or certified first class mail, postage prepaid, return
receipt requested, the return receipt shall be conclusive evidence of the notice
having been mailed on the date set forth.
(10) DEFINITION. The "Current Market Price" as of a particular date
(the "Valuation Date") shall mean the following: (a) if the Common Stock is then
listed on a national stock exchange, the closing sale price of one share of
Common Stock on such exchange on the last trading day prior to the Valuation
Date; (b) if the Common Stock is then quoted on the NASDAQ Stock Market, Inc.
("Nasdaq"), the closing sale price of one share of Common Stock on Nasdaq on the
last trading day prior to the Valuation Date or, if no such closing sale price
is available, the average of the high bid and the low asked price quoted on
Nasdaq on the last trading day prior to the Valuation Date; or (c) if the Common
Stock is not then listed on a national stock exchange or quoted on Nasdaq, the
Current Market Price of one share of Common Stock as of the Valuation Date,
shall be determined in good faith by the Board of Directors of the Company and
the Holder. In the event that the Board of Directors of the Company and the
Holder are unable to agree upon the Current Market Price in respect of subpart
(c) hereof, the Company and Holder shall jointly select an appraiser, who is
experienced in such matters, who's decision on the matter shall be final and
conclusive and the cost of such appraiser shall be borne evenly by the Company
and the Holder.
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(11) MISCELLANEOUS. This Agreement contains the entire Agreement and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Warrant may not
be changed orally, but only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge is sought,
provided however, that this Warrant may be amended or modified without the
consent of the Holder if such amendment or modification does not adversely
affect the rights of the Holder hereunder. This Agreement may be assigned by
Holder in accordance with the provisions of section (7) of this Agreement. This
Agreement will not be assigned by the Company and shall be interpreted under the
laws of the State of New York without application to the principles of conflicts
of laws.
AMERICAN MEDICAL ALERT CORP.
By: ___________________________________________
Name:
Title:
[SEAL]
Dated:
Attest:
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FORM OF ASSIGNMENT
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(To be executed by the registered holder if such holder desires to
transfer the attached Warrant.)
FOR VALUE RECEIVED, _____________________ hereby sells, assigns, and
transfers unto ________________________ a warrant (the "Warrant") to purchase
__________ Common Stock, $.01 par value per share, of American Medical Alert
Corp. (the "Company"), together with all right, title, and interest therein, 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:___________________
Signature: ___________________
NOTICE
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The signature on the foregoing Assignment must correspond to the name
as written upon the face of this Warrant in every particular, without alteration
or enlargement or any change whatsoever.
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EXERCISE FORM
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Dated ___________, ____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing shares of Common Stock and hereby (i)
tenders payment herewith in the amount of $_____________ or (ii) surrenders this
Warrant in the amount of _________, in payment of the actual exercise price
thereof, and requests that certificates for such securities be issued in the
name of, and delivered to, and, if such number of Warrant Shares shall not be
all the Warrant Shares covered by the within Warrant, that a new Warrant for the
balance of the Warrant Shares be registered in the name of, and delivered to,
the undersigned at the address stated below. As a condition to this election,
the undersigned hereby represents and warrants to the Company that the
representations made by the undersigned in Section 4 of the Stock and Warrant
Purchase Agreement, including the information provided by the undersigned in its
Purchaser Questionnaire, are true and correct as of the date of this election
with respect to the Warrant Shares.
_______
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: _________________________________________________________________________
(Please type, write or print in block letters)
Address: ______________________________________________________________________
Signature: ____________________________________________________________________
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