Exhibit 4.4
No. ______
Warrant to Purchase ________ shares of Common Stock
APOLLO INTERNATIONAL OF DELAWARE, INC.
Common Stock Purchase Warrant
_______________ 1996
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED
EFFECTIVE UNDER SUCH ACT OR THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE
COMPANY THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS
AVAILABLE.
THIS CERTIFIES THAT ________________________ (hereinafter sometimes
called the "Holder"), is entitled to purchase from Apollo International of
Delaware, Inc., a Delaware corporation (the "Company"), at the price and during
the period hereinafter specified, up to ____________ shares of the Company's
common stock, $.01 par value (the "Common Stock").
This Warrant, together with warrants of like tenor, is subject to
adjustment in accordance with Paragraph 7 of this Warrant.
1. a. The rights represented by this Warrant shall be exercisable,
at any time commencing two years from the later of: (i) the closing of this
offering, and (ii) the effective date of an initial public offering of the
Company's Common Stock, if any, until August 5, 2002 (the "Exercise Period") at
a purchase price of $5.50 per share (the "Exercise Price"), subject to
adjustment in accordance with Paragraph 7. After August 5, 2002, the Holder
shall have no right to purchase any shares of Common Stock underlying this
Warrant.
b. Notwithstanding anything herein contained to the contrary,
the Company and the Holder agree that, if the Company conducts an initial public
offering which includes warrants, and if the terms and conditions of the
warrants to be registered in the Registration Statement for the Company's
anticipated initial public offering (as described in the Confidential Private
Placement Memorandum) (the "Public Warrants") are not identical to the terms and
conditions of this Warrant, this Warrant will be modified and amended upon the
closing of such initial public offering to conform exactly to the terms and
conditions of the Public Warrants offered pursuant to such Registration
Statement including without limitation, the same Exercise Price as the Public
Warrants, which Exercise Price may exceed $5.50 per share.
2. The rights represented by this Warrant may be exercised at any
time within the Exercise Period above specified, in whole or in part, by (i) the
surrender of this Warrant (with the purchase form at
1
the end hereof properly executed) at the principal executive office of the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder appearing on the
books of the Company); and (ii) payment to the Company of the Exercise Price
then in effect for the number of shares of Common Stock specified in the
above-mentioned purchase form together with applicable stock transfer taxes, if
any. This Warrant shall be deemed to have been exercised, in whole or in part
to the extent specified, immediately prior to the close of business on the date
this Warrant is surrendered and payment is made in accordance with the foregoing
provisions of this Paragraph 2, and the person or person in whose name or names
the certificates for shares of Common Stock shall be issuable upon such exercise
shall become the holder or holders of record of such shares of Common Stock at
that time and date. The certificate or certificates for the shares of Common
Stock so purchased shall be delivered to such person or persons within a
reasonable time, not exceeding thirty (30) days, after this Warrant shall have
been exercised.
3. Neither this Warrant nor the shares of Common Stock issuable upon
exercise hereof have been registered under the Securities Act of 1933, as
amended (the "1933 Act") nor under any state securities law and shall not be
transferred, sold, assigned or hypothecated in violation thereof. If permitted
by the foregoing, any such transfer, sale, assignment or hypothecation shall be
effected by the Holder surrendering this Warrant for cancellation at the office
or agency of the Company referred to in Paragraph 2 hereof, accompanied by an
opinion of counsel satisfactory to the Company and its counsel, stating that
such transferee is a permitted transferee under this Paragraph 3 and that such
transfer does not violate the 1933 Act or such state securities laws.
4. The Company covenants and agrees that all shares of Common Stock
which may be issued upon exercise of this Warrant will, upon issuance, be duly
and validly issued, fully paid and nonassessable and no personal liability will
attach to the Holder thereof. The Company further covenants and agrees that
during the Exercise Period, the Company will at all times have authorized and
reserved a sufficient number of shares of its Common Stock to provide for the
exercise of this Warrant.
5. The Warrant shall not entitle the Holder to any rights, including,
without limitation, voting rights, as a stockholder of the Company.
6. The Company shall be obligated to register the shares of Common
Stock underlying this Warrant in accordance with the 1933 Act, as set forth in
the Registration Rights Agreement annexed as Exhibit E to the Company's Private
Placement Memorandum.
7. The Exercise Price and Exercise Period in effect at any time and
the number and kind of securities purchaseable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the happening of certain
events as follows:
a. If the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into
a greater number of shares, or (iii) combine or reclassify its outstanding
shares of Common Stock into a smaller number of shares, the Exercise Price in
effect at the time of the effective date or record date, as the case may be, for
such sale, dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be adjusted so that it shall
equal the price determined by multiplying the Exercise Price by a fraction, the
denominator of which shall be the
2
number of shares of Common Stock outstanding after giving effect to such action,
and the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such action.
b. Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Paragraph 7a. above, the number of shares of
Common Stock purchasable upon exercise of this Warrant shall simultaneously be
adjusted by multiplying the number of shares of Common Stock initially issuable
upon exercise of this Warrant by the Exercise Price in effect on the date hereof
and dividing the product so obtained by the Exercise Price, as adjusted.
c. Notwithstanding any adjustment in the Exercise Price or the
number or kind of shares of Common Stock purchasable upon the exercise of this
Warrant, certificates for Warrants issued prior or subsequent to such adjustment
may continue to express the same price and number and kind of shares of Common
Stock as are initially issuable pursuant to this Warrant.
d. In addition to the modification provisions of Section 1.b.
hereof, the Company may, but under no circumstances is obligated to, modify the
terms of this Warrant to provide for an earlier commencement of the Exercise
Period, or to extend the Exercise Period or to lower the Exercise Price, at any
time prior to the expiration of this Warrant.
8. This Agreement shall be governed by and in accordance with the
laws of the State of Florida, without regard to its conflicts of laws
principles.
IN WITNESS WHEREOF, APOLLO INTERNATIONAL OF DELAWARE, INC. has caused
this Warrant to be signed by its duly authorized officer as of the date set
forth on the first page hereof.
APOLLO INTERNATIONAL OF DELAWARE, INC.
By: _______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
3
EXERCISE FORM
To Be Executed by the Holder
in Order to Exercise Warrant
The undersigned Holder hereby irrevocably elects to exercise this Warrant
and to purchase _____ shares of the Company's Common Stock issuable upon the
exercise of such Warrant, and requests that certificates for such securities
shall be issued in name of:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
(please print or type name and address)
_____________________________________________________________________
(please insert social security or other identifying number)
and be delivered:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
(please print or type name and address)
_____________________________________________________________________
(please insert social security or other identifying number)
and if such number of shares of Common Stock shall not be all the shares
evidenced by this Warrant Certificate, that a new Warrant Certificate for the
balance of such shares be registered in the name of, and delivered to, the
Holder.