EXHIBIT C
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE
SECURITIES ACT.
No. of Shares of Common Stock: 30,000 Warrant No. 3
WARRANT
To Purchase Common Stock of
STANDARD MANAGEMENT CORPORATION
THIS IS TO CERTIFY THAT FLEET NATIONAL BANK, or its registered
assigns, is entitled, at any time or from time to time prior to the
Expiration Date (as hereinafter defined), to purchase from Standard
Management Corporation, an Indiana corporation (the "COMPANY"), 30,000
shares of Common Stock (as hereinafter defined and subject to adjustment
as provided herein), in whole or in part, at a purchase price of $4.375
per share, all on the terms and conditions and pursuant to the provisions
hereinafter set forth.
1 DEFINITIONS. As used in this Warrant, the following terms have the
respective meanings set forth below:
"ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of Common
Stock issued or issuable by the Company after the Closing Date, other
than the Warrant Stock.
"AFFILIATE" shall have the meaning set forth in the Revolving Line
of Credit Agreement.
"ASSIGNED VALUE" shall mean, in respect of any share of Common
Stock on any date herein specified (i) if there is a public market for
Common Stock, the average closing price of the Common Stock on the
largest exchange on which such shares are traded (or if not traded on an
exchange, then the average of the closing bid and ask prices quoted
over-the-counter) over the 10 trading days prior to the date of the
determination (as such prices are reported in The Wall Street Journal or
if not so reported, in any nationally recognized financial journal or
newspaper), (ii) if there is no public market for Common Stock, the
highest price at which shares of Common Stock are offered for sale in a
public offering registered pursuant to the Securities Act or in an
arms-length private offering, if any such offering is pending (unless
such offer is revoked prior to such sale) on the date of determination of
the Assigned Value, or (iii) if there is no public market for Common
Stock and no such offering is pending, the fair market value per share of
Common Stock as determined in good faith by the Company's board of
directors.
"BUSINESS DAY" shall mean any day that is not a Saturday or Sunday
or a day on which banks are required or permitted to be closed in the
State of Connecticut.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated) of capital stock, including each class of common stock and
preferred stock of such Person.
"CLOSING DATE" shall mean July 18, 1996.
"COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency then administering the Securities Act and other
federal securities laws.
"COMMON STOCK" shall mean (except where the context otherwise
indicates) the Common Stock, no par value, of the Company as constituted
on the Closing Date, and any Capital Stock into which such Common Stock
may thereafter be changed, and shall also include (i) Capital Stock of
the Company of any other class (regardless of how denominated) issued to
the holders of shares of Common Stock upon any reclassification thereof
which is also not preferred as to dividends or assets over any other
class of stock of the Company and which is not subject to redemption and
(ii) shares of common stock of any successor or acquiring corporation (as
defined in Section 4.7) received by or distributed to the holders of
Common Stock of the Company in the circumstances contemplated by Section
4.7.
"COMMON STOCK OUTSTANDING" shall mean, at any date as of which
the number of shares thereof is to be determined, all issued and
outstanding shares of Common Stock and shall include all shares issuable
in respect of outstanding scrip or any certificates representing
fractional interests in shares of Common Stock.
"CONVERTIBLE SECURITIES" shall mean evidences of indebtedness,
shares of stock or other securities which are convertible into or
exchangeable, with or without payment of additional consideration in cash
or property, for Additional Shares of Common Stock, either immediately or
upon the occurrence of a specified date or a specified event.
"CURRENT MARKET PRICE" shall mean, in respect of any share of
Common Stock on any date herein specified, the Assigned Value per share
of Common Stock as at such date.
"CURRENT WARRANT PRICE" shall mean, in respect of a share of
Common Stock at any date herein specified, the price at which a share of
Common Stock may be purchased pursuant to exercise of this Warrant on
such date.
"EXPIRATION DATE" shall mean July 18, 2003.
"FULLY-DILUTED OUTSTANDING" shall mean, (i) when used with
reference to Common Stock, at any date as of which the number of shares
thereof is to be determined, the number of shares of Common Stock
Outstanding at such date and the number of shares of Common Stock which
would be outstanding if the Warrants, the Company's convertible preferred
stock, if any, and all other outstanding rights, options or warrants to
purchase, or securities convertible into, shares of Common Stock and all
security convertible or exchangeable into any of the foregoing, that are
"in-the-money" were converted into or exercised or exchanged for shares
of Common Stock on such date, and (ii) when used with reference to Voting
Securities, at any date as of which the number of shares thereof is to be
determined, the number of shares of Voting Securities Outstanding at such
date and the number of shares of Voting Securities which would be
outstanding if any outstanding rights, warrants or options to purchase,
or securities convertible into, shares of Voting Securities and all
securities convertible or exchangeable into any of the foregoing, that
are "in-the-money" were converted into or exercised or exchanged for
shares of Voting Securities on such date.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in effect.
"HOLDER" shall mean the Person or Persons in whose name this
Warrant or, as applicable, the Warrant Stock, is registered on the books
of the Company maintained for such purpose.
"INITIAL PUBLIC OFFERING" shall mean the first time a
registration statement filed by the Company under the Securities Act with
respect to its securities, whether on behalf of itself or otherwise, is
declared effective, other than a registration statement filed on Form S-8
or any successor forms thereto.
"LIEN" means any mortgage, pledge, lien, encumbrance, charge or
adverse claim affecting title or resulting in an encumbrance against real
or personal property, or a security interest of any kind (including,
without limitation, any conditional sale or other title retention
agreement or any lease in the nature thereof, and any filing of or
agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).
"MAJORITY HOLDERS" shall mean Holders of more than 50% of (i)
Warrants exercisable for the aggregate number of shares of Common Stock
then purchasable upon exercise of all Warrants, whether or not then
exercisable, PLUS (ii) where a provision affects Holders of the Warrant
Stock, the Warrant Stock.
"OTHER PROPERTY" is defined in Section 4.7.
"PERSON" shall have the meaning defined in the Revolving Line of
Credit Agreement.
"REGISTRATION RIGHTS AGREEMENT" shall mean that certain Amended
and Restated Registration Rights Agreement dated as of July 18, 1996 by
and between the Company and Holder.
"RESTRICTED COMMON STOCK" shall mean shares of Common Stock which
are, or which upon their issuance on the exercise of this Warrant would
be, evidenced by a certificate bearing the restrictive legend set forth
in Section 9 herein.
"REVOLVING LINE OF CREDIT AGREEMENT" shall mean that certain
Amended and Restated Revolving Line of Credit Agreement dated as of
November 8, 1996, by and between the Company and Holder.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the
time.
"SUBSIDIARY" shall have the meaning set forth in the Revolving
Line of Credit Agreement.
"VOTING SECURITIES" means any class of Capital Stock of a
corporation or other equity shares, interests, participations, rights in
or other equivalents (however designated) of a Person other than a
corporation, and any rights (including without limitation debt securities
convertible into Capital Stock), warrants or options exercisable or
exchangeable for or convertible into such Capital Stock or other equity
securities, pursuant to which the holders thereof have (or would have
upon exercise, conversion or exchange) the general voting power under
ordinary circumstances to vote for the election of directors, managers,
trustees or general partners of any Person (irrespective of whether or
not at the time any other class or classes will have or might have voting
power by reason of the happening of any contingency).
"VOTING SECURITIES OUTSTANDING" shall mean, at any date as of
which the number of shares thereof is to be determined, all issued and
outstanding shares of Voting Securities, and shall include all shares issuable
in respect of outstanding scrip or any certificates representing fractional
interests in shares of Voting Securities.
"WARRANTS" shall mean all of the Warrants of the Company issued
prior to or on the date hereof or to be issued subsequent to the date hereof
pursuant to the Revolving Line of Credit Agreement, including this Warrant, and
all warrants issued upon transfer, division or combination of, or in
substitution for, any thereof. All Warrants shall at all times be identical as
to terms and conditions, except as to date of issuance, the purchase price, the
number of shares of Common Stock for which they may be exercised and the date
by which such Warrants must be exercised.
"WARRANT PRICE" shall mean an amount equal to (i) the number of
shares of Common Stock being purchased upon exercise of this Warrant pursuant
to Section 2.1 multiplied by (ii) the Current Warrant Price as of the date of
such exercise.
"WARRANT STOCK" shall mean the shares of Common Stock issuable
to the Holders upon the exercise of this Warrant.
2 EXERCISE OF WARRANT: OTHER AGREEMENTS
1.11834 MANNER OF EXERCISE.
i) From and after the date hereof until 5:00 P.M., New
York City time, on the Expiration Date, Holder may exercise this Warrant, on
any Business Day, for all or any part of the number of shares of Common Stock
purchasable hereunder. In order to exercise this Warrant, in whole or in part,
Holder shall deliver to the Company at its principal office at 0000 Xxxxxxxx
Xxxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, or at the office or agency
designated by the Company pursuant to Section 11, (a) a written notice of
Holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased, (b) this Warrant, (c) payment
of the Warrant Price by certified or official bank check from Holder, unless
the Holder is making a cashless exercise pursuant to Section 2.1(iii) herein,
and (d) if the Holder is making a cashless exercise pursuant to Section
2.1(iii) herein, a statement. Such notice shall be substantially in the form
of EXHIBIT A hereto, duly executed by Holder or its agent or attorney.
ii) Upon receipt thereof, the Company shall, as promptly
as practicable, and in any event within ten (10) Business Days thereafter,
execute or cause to be executed and deliver or cause to be delivered to Holder
a certificate or certificates representing the aggregate number of shares of
Common Stock issuable upon such exercise as hereinafter provided. The stock
certificate or certificates so delivered shall be, to the extent possible, in
such denomination or denominations as such Holder shall request in the notice
and shall be registered in the name of Holder or such other name as shall be
designated in the notice. This Warrant shall be deemed to have been exercised
and such certificate or certificates shall be deemed to have been issued, and
Holder or any other Person so designated to be named therein shall be deemed to
have become a holder of record of such shares for all purposes, as of the date
the notice, together with the check or checks and this Warrant, is received by
the Company as described above and all taxes required to be paid by Holder, if
any, pursuant to Section 2.2 prior to the issuance of such shares have been
paid. If this Warrant shall have been exercised in part, the Company shall, at
the time of delivery of the certificate or certificates representing the
Warrant Stock, deliver to Holder a new Warrant evidencing the rights of Holder
to purchase the unpurchased shares of Common Stock called for by this Warrant,
which new Warrant shall in all other respects be identical with this Warrant,
or, at the request of Holder, appropriate notation may be made on this Warrant
and the same returned to Holder.
(iii) (2) In lieu of paying the Warrant Price, Holder may
elect to receive shares of the Company's Common Stock equal to the value of
this Warrant (or the portion thereof being exercised), in which event the
Company shall issue to Holder the number of shares of the Company's Common
Stock computed using the following formula:
X = Y (A-B)
A
Where:
X = the number of shares of Warrant Stock to be issued to the Holder;
Y = the number of shares of Warrant Stock otherwise purchasable (or the
portion thereof being exercised) under this Warrant (at the date
of exercise);
A = the Current Market Price of one share of the Company's Common Stock
(at the date of such exercise);
and
B = the Current Warrant Price (as adjusted to the date of such exercise).
(3) In lieu of paying the Warrant Price, Holder may elect
to receive cash equal to the value of this Warrant (or the portion thereof
being exercised), in which event the Company shall pay to Holder cash in an
amount computed using the following formula:
X = Y (A-B)
Where:
X = the amount of cash to be paid to Holder;
Y = the number of shares of Warrant Stock otherwise purchasable (or
the portion thereof being exercised) under this Warrant (at the
date of exercise);
A = the Current Market Price of one share of the Company's Common Stock
(at the date of such exercise);
and
B = the Current Warrant Price (as adjusted to the date of such exercise).
1.11834 PAYMENT OF TAXES. All shares of Common Stock issuable
upon the exercise of this Warrant pursuant to the terms hereof shall be validly
issued, fully paid and nonassessable and, to the extent permitted by law, free
of liens or preemptive rights. The Company shall pay all expenses in connection
with, and all taxes and other governmental charges that may be imposed with
respect to, the issue or delivery thereof unless such tax is imposed by law on
Holder, in which case such tax or charge shall be paid by Holder. The Company
shall not be required, however, to pay any tax or other charge imposed in
connection with any transfer involved in the issue of any certificate for
shares of Common Stock issuable upon exercise of this Warrant in any name other
than that of Holder, and in such case, the Company shall not be required to
issue or deliver any stock certificate until such tax or other charge has been
paid or it has been established to the satisfaction of the Company that no such
tax or other charge is due.
2.11834 OTHER AGREEMENTS. This Warrant and the Warrant Stock
shall be governed by the terms of this Warrant, the Registration Rights
Agreement and, to the extent applicable, the Revolving Line of Credit Agreement
(the terms of which are hereby incorporated herein by this reference). Each
Holder agrees to be bound by, and shall enjoy the benefits of, this Warrant,
the Registration Rights Agreement and the Revolving Line of Credit Agreement.
The registered holder of the Warrant Stock issued upon exercise of this Warrant
(in whole or in part) shall be entitled to all rights granted pursuant to the
Registration Rights Agreement and agrees to be bound by all of the obligations
and limitations thereof, including the ability of the Company to elect to make
a cash payment to the Holder as more particularly described in Section 1.1(ii)
of the Registration Rights Agreement in lieu of proceeding with a Demand
Registration (as such term is defined in the Registration Rights Agreement).
-2-
1 TRANSFER. DIVISION AND COMBINATION.
1.11834 TRANSFER. Subject to compliance with Section 9 herein,
Holder shall have the right to transfer of this Warrant and all rights
hereunder and the Warrant Stock, in each case, in whole or in part. Such
transfer shall be registered on the books of the Company to be maintained for
such purpose, upon surrender of this Warrant or the Warrant Stock at the
principal office of the Company referred to in Section 2.1 or the office or
agency designated by the Company pursuant to Section 10, together with, in the
case of this Warrant, a written assignment of this Warrant substantially in the
form of EXHIBIT B hereto duly executed by Holder or its agent or attorney and,
in the case of Warrant Stock, stock powers or other instrument of assignment
duly executed, and, in each case, funds sufficient to pay any transfer taxes
payable upon the making of such transfer.
2.11834 DIVISION AND COMBINATION. This Warrant may be divided or
combined with other Warrants upon presentation hereof at the aforesaid office
or agency of the Company, together with a written notice specifying the names
and denominations in which new Warrants are to be issued, signed by Holder or
its agent or attorney. Subject to compliance with this Section 3, as to any
transfer which may be involved in such division or combination, the Company
shall execute and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such notice.
3.11834 EXPENSES. The Company shall prepare, issue and deliver
at its own expense (other than transfer taxes) the new Warrant or Warrants
under this Section 3.
4.11834 MAINTENANCE OF BOOKS. The Company agrees to maintain, at
its aforesaid office or agency, books for the registration and the registration
of transfer of the Warrants.
2 ADJUSTMENTS.
The number of shares of Common Stock for which this Warrant is
exercisable shall be subject to adjustment from time to time as set forth in
this Section 4. The Company shall give each Holder notice of any event
described below which requires an adjustment pursuant to this Section 4 at the
time of such event.
1.11834 STOCK DIVIDENDS. SUBDIVISIONS AND COMBINATIONS. If, at
any time, the Company shall:
i) pay holders of its Common Stock a dividend in, or
otherwise make a distribution of, Additional Shares of Common Stock,
ii) subdivide its outstanding shares of Common Stock
into a larger number of shares of Common Stock,
iii) combine its outstanding shares of Common Stock into
a smaller number of shares of Common Stock, or
iv) issue any shares of equity securities pursuant to a
reclassification of shares of Common Stock,
then the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the occurrence of such event would own or be entitled to receive after
the happening of such event.
The Current Warrant Price shall be adjusted to equal the Current
Warrant Price hereunder immediately prior to any such adjustment multiplied by
a fraction, the numerator of which shall be the number of shares on a Fully
Diluted Outstanding basis immediately prior to such adjustment and the
denominator of which shall be the number of shares on a Fully Diluted
Outstanding basis immediately after such event.
1.11834 CERTAIN OTHER DISTRIBUTIONS. If, at any time, the
Company shall pay holders of its Common Stock a dividend in, or otherwise
distribute:
i) cash,
ii) any evidences of its indebtedness, any shares of its
stock or any other securities or property of any nature whatsoever (other than
cash, Convertible Securities or Additional Shares of Common Stock), or
iii) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any shares of its stock or any
other securities or property of any nature whatsoever (other than cash,
Convertible Securities or Additional Shares of Common Stock),
then the number of shares of Common Stock for which this Warrant is exercisable
shall be adjusted to equal the product of the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such adjustment by a
fraction (I) the numerator of which shall be the Current Market Price per share
of Common Stock at the date of such payment and (II) the denominator of which
shall be (x) such Current Market Price per share of Common Stock minus (y) the
amount allocable to one share of Common Stock of any such cash so distributable
and of the fair value (as determined in good faith by the Board of Directors of
the Company) of any and all such evidences of indebtedness, shares of stock,
other securities or property or warrants or other subscription or purchase
rights so distributable. A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no par value to
par value) into shares of Common Stock and shares of any other class of stock
shall be deemed a distribution by the Company to the holders of its Common
Stock of such shares of such other class of stock within the meaning of this
Section 4.2 and, if the outstanding shares of Common Stock shall be changed
into a larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination, as
the case may be, of the outstanding shares of Common Stock within the meaning
of Section 4.1.
The Current Warrant Price shall be adjusted to equal the
Current Warrant Price hereunder immediately prior to any such adjustment
multiplied by a fraction, the numerator of which shall be the number of
shares for which this Warrant is exercisable immediately prior to such
adjustment and the denominator of which shall be the number of shares for
which this Warrant is exercisable immediately after such adjustment, as
calculated above.
1.11834 ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK.
i) If at any time the Company shall (except as
hereinafter provided) issue or sell any Additional Shares of Common Stock
for consideration in an amount per Additional Share of Common Stock less
than the Current Market Price, then the number of shares of Common Stock
for which this Warrant is exercisable shall be adjusted to equal the
product obtained by multiplying the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such issue or sale
by a fraction (I) the numerator of which shall be the number of Fully
Diluted Outstanding shares of Common Stock immediately after such issue
or sale, and (II) the denominator of which shall be the number of Fully
Diluted Outstanding shares of Common Stock immediately prior to such
issue or sale plus the number of shares which the aggregate offering
price of the total number of such Additional Shares of Common Stock would
purchase at the then Current Market Price. Current Warrant Price shall
be adjusted to equal the Current Warrant Price hereunder immediately
prior to any such adjustment multiplied by a fraction, the numerator of
which shall be the number of shares for which this Warrant is exercisable
immediately prior to such adjustment, and the denominator is the number
of shares for which this Warrant is exercisable immediately after such
adjustment, as calculated above.
ii) The provisions of Section 4.3(i) shall not apply
to any issuance of Additional Shares of Common Stock for which an
adjustment is provided under Section 4.1. No adjustment of the number of
shares of Common Stock for which this Warrant shall be exercisable shall
be made under Section 4.3(i) upon the issuance of any Additional Shares
of Common Stock which are issued pursuant to the exercise of any
warrants, options or other subscription or purchase rights or pursuant to
the exercise of any conversion or exchange rights in any Convertible
Securities, if any such adjustment shall previously have been made upon
the issuance of such warrants or other rights or upon the issuance of
such Convertible Securities (or upon the issuance of any warrant or other
rights therefor) pursuant to Section 4.4.
1.11834 ISSUANCE OF WARRANTS, CONVERTIBLE SECURITIES OR
OTHER RIGHTS. If, at any time, the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to receive
a distribution of, or shall in any manner (whether directly or by
assumption in a merger in which the Company is the surviving corporation
or otherwise) issue or sell, any warrants, options or other rights to
subscribe for or purchase any Additional Shares of Common Stock or any
Convertible Securities, whether or not the rights to exercise, purchase,
exchange or convert thereunder are immediately exercisable, and the price
per share for which Common Stock is issuable upon the exercise of such
warrants, options or other rights or upon conversion or exchange of such
Convertible Securities shall be less than the Current Market Price in
effect immediately prior to the exercise of this Warrant, then the number
of shares for which this Warrant is exercisable and the Current Warrant
Price shall each be adjusted as provided in Section 4.3 on the basis that
the maximum number of Additional Shares of Common Stock issuable
(assuming immediate exercisability for all shares covered) pursuant to
all such warrants, options or other rights or necessary to effect the
conversion or exchange of all such Convertible Securities shall be deemed
to have been issued as of the date of the exercise of this Warrant. No
further adjustments of the number of shares for which this Warrant is
exercisable or the Current Warrant Price shall be made upon the actual
issue of such Common Stock or of such Convertible Securities upon
exercise of such warrants or other rights or upon the actual issue of
such Common Stock upon such conversion or exchange of such Convertible
Securities.
2.11834 OTHER ACTION AFFECTING WARRANT. If at any time or
from time to time the Company shall take any action in respect of or
affecting the Common Stock other than an action described in any of the
foregoing Sections 4.1 to 4.4, inclusive, then, unless in the reasonable
judgment of the Board of Directors of the Company such action will not
have a materially adverse effect upon the rights of any Holder, the
number of shares of Common Stock for which this Warrant is exercisable
shall be adjusted in such manner and at such time as the Board of
Directors of the Company may in good faith determine to be equitable
under the circumstances.
3.11834 OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER
SECTION 4.6. The following provisions shall be applicable to the making
of adjustments of the number of shares of Common Stock for which this
Warrant is exercisable provided for in this Section 4:
i) COMPUTATION OF CONSIDERATION. To the extent that
any Additional Shares of Common Stock or any Convertible Securities or
any warrants, options or other rights to subscribe for or purchase any
Additional Shares of Common Stock or any Convertible Securities shall be
issued for cash consideration, the consideration received by the Company
therefor shall be the amount of the cash received by the Company
therefor, or, if such Additional Shares of Common Stock or Convertible
Securities are offered by the Company for subscription, the subscription
price, or, if such Additional Shares of Common Stock or Convertible
Securities are sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering price (in
any such case subtracting any amounts paid or receivable for accrued
interest or accrued dividends and without taking into account any
compensation, discounts or expenses paid or incurred by the Company for
and in the underwriting of, or otherwise in connection with, the issuance
thereof). To the extent that such issuance shall be for a consideration
other than cash, then, except as herein otherwise expressly provided, the
amount of such consideration shall be deemed to be the fair value of such
consideration at the time of such issuance as determined in good faith by
the Board of Directors of the Company (excluding therefrom any director
designated by the transferor thereof). In case any Additional Shares of
Common Stock or any Convertible Securities or any warrants, options or
other rights to subscribe for or purchase such Additional Shares of
Common Stock or Convertible Securities shall be issued in connection with
any merger in which the Company issues any securities, the amount of
consideration therefor shall be deemed to be the fair value, as
determined in good faith by the Board of Directors of the Company
(excluding therefrom any director designated by the transferor thereof),
of such portion of the assets and business of the nonsurviving
corporation as such Board in good faith shall determine to be
attributable to such Additional Shares of Common Stock, Convertible
Securities, warrants, options or other rights, as the case may be. The
consideration for any Additional Shares of Common Stock issuable pursuant
to any warrants, options or other rights to subscribe for or purchase the
same shall be the consideration received by the Company for issuing such
warrants, options or other rights plus the additional consideration
payable to the Company upon exercise of such warrants or other rights.
The consideration for any Additional Shares of Common Stock issuable
pursuant to the terms of any Convertible Securities shall be the
consideration received by the Company for issuing warrants, options or
other rights to subscribe for or purchase such Convertible Securities,
plus the consideration paid or payable to the Company in respect of the
subscription for or purchase of such Convertible Securities, plus the
additional consideration, if any, payable to the Company upon the
exercise of the right of conversion or exchange in such Convertible
Securities. In case of the issuance at any time of any Additional Shares
of Common Stock or Convertible Securities in payment or satisfaction of
any dividends upon any class of stock other than Common Stock, the
Company shall be deemed to have received for such Additional Shares of
Common Stock or Convertible Securities a consideration equal to the
amount of such dividend so paid or satisfied.
ii) WHEN ADJUSTMENTS TO BE MADE. The adjustments
required by this Section 4 shall be made whenever and as often as any
specified event requiring an adjustment shall occur, except that any
adjustment of the number of shares of Common Stock for which this Warrant
is exercisable that would otherwise be required may be postponed (except
in the case of a subdivision or combination of shares of the Common
Stock, as provided for in Section 4.1) up to, but not beyond the date of
exercise if such adjustment either by itself or with other adjustments
not previously made adds or subtracts less than 1% of the shares of
Common Stock for which this Warrant is exercisable immediately prior to
the making of such adjustment. Any adjustment representing a change of
less than such minimum amount (except as aforesaid) which is postponed
shall be carried forward and made as soon as such adjustment, together
with other adjustments required by this Section 4 and not previously
made, would result in a minimum adjustment or on the date of exercise.
For the purpose of any adjustment, any specified event shall be deemed to
have occurred at the close of business on the date of its occurrence.
iii) FRACTIONAL INTERESTS. In computing adjustments
under this Section 4, fractional interests in Common Stock shall be taken
into account to the nearest one-tenth of a share.
iv) WHEN ADJUSTMENT NOT REQUIRED. If the Company shall
take a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend or distribution or subscription or
purchase rights and shall, thereafter and before the distribution to
stockholders thereof, legally abandon its plan to pay or deliver such
dividend, distribution, subscription or purchase rights, then thereafter
no adjustment shall be required by reason of the taking of such record
and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
1.11834 REORGANIZATION, RECLASSIFICATION, MERGER,
CONSOLIDATION OR DISPOSITION OF ASSETS.
i) In case the Company shall reorganize its capital,
reclassify its Capital Stock, consolidate or merge with or into another
corporation, or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another corporation
and, pursuant to the terms of such reorganization, reclassification,
merger, consolidation or disposition of assets, shares of common stock of
the successor or acquiring corporation, or any cash, shares of stock or
other securities or property of any nature whatsoever (including warrants
or other subscription or purchase rights) in addition to or in lieu of
common stock of the successor or acquiring corporation ("OTHER
PROPERTY"), are to be received by or distributed to the holders of Common
Stock of the Company, then each Holder shall have the right thereafter to
receive, upon exercise of such Warrant, the number of shares of common
stock of the successor or acquiring corporation or of the Company, if it
is the surviving corporation, and Other Property receivable upon or as a
result of such reorganization, reclassification, merger, consolidation or
disposition of assets by a holder of the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such event.
ii) In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, (a)
Holder shall continue to enjoy, with respect to any shares of common
stock of the successor or acquiring corporation or the Company or any
Other Property consisting of Capital Stock or warrants acquired by
Holder, all the rights and benefits available to Holder pursuant to this
Warrant and all other agreements executed in connection with this Warrant
and/or the Warrant Stock, and (b) the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of
this Warrant to be performed and observed by the Company and all the
obligations and liabilities hereunder, subject to such modifications as
may be deemed appropriate (as determined by resolution of the Board of
Directors of the Company) in order to provide for adjustments of shares
of the Common Stock for which this Warrant is exercisable which shall be
as nearly equivalent as practicable to the adjustments provided for in
this Section 3.
iii) For purposes of this Section 4.7, "COMMON STOCK OF
THE SUCCESSOR OR ACQUIRING CORPORATION" shall include stock of such
corporation of any class which is not preferred as to dividends or assets
over any other class of stock of such corporation and which is not
subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible
into or exchangeable for any such stock, either immediately or upon the
arrival of a specified date or the happening of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 4.7 shall similarly apply to
successive reorganizations, reclassifications, mergers, consolidations or
disposition of assets.
iv) The Company shall not consolidate or merge with or
into an Affiliate of the Company, nor sell, transfer or otherwise dispose
of all or substantially all its property, assets or business to such an
Affiliate unless and until (a) such consolidation, merger, sale, transfer
or disposition is fair and equitable to the Company, each Holder and all
holders of Warrant Stock and is on terms which are at least as favorable
as those that would be obtainable in a similar transaction with an
unrelated third party, and (b) each Holder shall have received, at the
Company's sole cost and expense, the opinion of a financial advisor
satisfactory to such Holder in such Holder's reasonable discretion to the
effect that the proposed consolidation, merger, sale, transfer or
disposition satisfies the conditions set forth in the immediately
preceding clause (a).
1.11834 CERTAIN LIMITATIONS. Notwithstanding anything to the
contrary contained in the Company's Articles of Incorporation, Bylaws or
other documents governing the terms of the Company's Capital Stock, the
Company agrees not to amend its Articles of Incorporation or Bylaws,
enter into any other transaction or execute any other document that would
cause a reduction in the par value per share of Common Stock below the
Current Warrant Price.
1 NOTICES TO WARRANT HOLDERS.
1.11834 NOTICE OF ADJUSTMENTS. Whenever the number of shares
of Common Stock for which this Warrant is exercisable is subject to
adjustment pursuant to Section 4, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the Company
setting forth, in reasonable detail, the event requiring the adjustment
and the method by which such adjustment was calculated (including a
description of the basis on which the Board of Directors of the Company
determined the fair value of any evidences of indebtedness shares of
stock, other securities or property or warrants or other subscription or
purchase rights referred to in Section 4.6(i)), specifying the number of
shares of Common Stock for which this Warrant is exercisable and (if such
adjustment was made pursuant to Section 4.7) describing the number and
kind of any other shares of stock or Other Property for which this
Warrant is exercisable, and any change in the purchase price or prices
thereof, after giving effect to such adjustment or change. The Company
shall promptly cause a signed copy of such certificate to be delivered to
each Holder in accordance with Section 17.1. The Company shall keep at
its office or agency designated pursuant to Section 10 copies of all such
certificates and cause the same to be available for inspection at said
office during normal business hours by any Holder or any prospective
purchaser of a Warrant designated by a Holder thereof.
2.11834 NOTICE OF CORPORATE ACTION. If at any time:
i) the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a dividend
(other than a cash dividend payable out of earnings or earned surplus
legally available for the payment of dividends under the laws of the
jurisdiction of incorporation of the Company) or other distribution, or
any right to subscribe for or purchase any evidences of its indebtedness,
any shares of stock of any class or any other securities or property, or
to receive any other right, or
ii) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the Capital Stock of
the Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation, or
iii) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder
(a) at least 20 days' prior written notice of the date on which a record
date shall be selected for such dividend, distribution or right or for
determining rights to vote in respect of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, and (b) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 20 days'
prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clauses also shall specify (I)
with respect to clause (a), the date on which any such record is to be
taken for the purpose of such dividend, distribution or right, the date
on which the holders of Common Stock shall be entitled to any such
dividend, distribution or right, and the amount and character thereof,
and (II) with respect to clauses (a) and (b), the date on which any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up is to take place and
the time, if any such time is to be fixed, as of which the holders of
Common Stock shall be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of Holder
appearing on the books of the Company and delivered in accordance with
Section 17.1.
1 NO IMPAIRMENT. The Company shall not by any action, including,
without limitation, amending its articles of incorporation or through any
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, winding up, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the
rights of Holder against impairment. Without limiting the generality of
the foregoing, the Company will (i) not increase the par value of any
shares of Common Stock receivable upon the exercise of this Warrant above
the amount payable therefor upon such exercise immediately prior to such
increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of Common Stock upon the exercise of this
Warrant, including reducing the par value of its Common Stock, and (iii)
use its best efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as
may be necessary to enable the Company to perform its obligations under
this Warrant.
2 RESERVATION AND AUTHORIZATION OF COMMON STOCK: REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY.
From and after the date hereof, the Company shall at all times reserve
and keep available for issue upon the exercise of Warrants such number of
its authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of all outstanding Warrants. All shares of
Common Stock which shall be so issuable, when issued upon exercise of any
Warrant and payment therefor in accordance with the terms of such
Warrant, shall be duly and validly issued and fully paid and
nonassessable, and, to the extent permitted by law, free of liens or
preemptive rights.
Before taking any action which would result in an adjustment
in the number of shares of Common Stock for which this Warrant is
exercisable, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any
public regulatory body or bodies having jurisdiction thereof.
3 TAKING OF RECORD: STOCK AND WARRANT TRANSFER BOOKS. In the case of
all dividends or other distributions by the Company to the holders of its
Common Stock with respect to which any provision of Section 4 refers to
the taking of a record of such holders, the Company will in each such
case take such a record as of the close of business on a Business Day.
The Company will not, at any time, except upon dissolution, liquidation
or winding up of the Company, close its stock transfer books or Warrant
transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.
4 RESTRICTIONS OF TRANSFERABILITY. Each Warrant shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT") AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE
SECURITIES ACT."
5 LOSS OR MUTILATION. Upon receipt by the Company from any Holder of
evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of this Warrant and indemnity reasonably
satisfactory to it, and in case of mutilation upon surrender and
cancellation hereof, the Company will execute and deliver in lieu hereof
a new Warrant of like tenor to such Holder; PROVIDED, in the case of
mutilation, no indemnity shall be required if this Warrant in
identifiable form is surrendered to the Company for cancellation.
6 OFFICE OF THE COMPANY. As long as any of the Warrants remain
outstanding, the Company shall maintain an office or agency (which may be
the principal executive offices of the Company) where the Warrants may be
presented for exercise, registration of transfer, division or combination
as provided in this Warrant. The Company shall notify each Holder in
writing prior to any change of address of the office at which the
Warrants may be presented.
7 LIMITATION OF LIABILITY. No provision hereof, in the absence of
affirmative action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of Holder hereof, shall
give rise to any liability of such Holder for the purchase price of any
Common Stock or as a stockholder of the Company, whether such liability
is asserted by the Company or by creditors of the Company.
8 CAPITALIZATION. As of August 31, 1996, there are outstanding
4,773,395 shares of Common Stock; 979,104 shares of treasury stock of the
Company; and 160,939 outstanding shares of Class S preferred stock and
139,061 shares of treasury Class S preferred stock, which are convertible
into a maximum number of 201,174 shares of Common Stock.
9 REGISTERED HOLDER. Notwithstanding any other provision of this
Warrant, Holder and/or its affiliates may exercise this Warrant solely to
the extent such exercise would not result in Holder and/or its affiliates
holding, directly or indirectly, in excess of 4.99% of the outstanding
Common Stock of the Company (such determination to be made by Holder),
except for an exercise in connection with (i) a widely dispersed public
offering of the Warrant Stock, (ii) a sale of the Warrant Stock in the
secondary market pursuant to the transaction and volume limitations of
Rule 144 under the Securities Act (irrespective of holding periods), or
(iii) a private placement or sale, including those made pursuant to Rule
144A under the Securities Act, so long as Holder and/or its affiliates do
not collectively acquire more than 2% of the Common Stock of the Company
pursuant to any such transfer.
10 UNDERTAKINGS. Holder covenants with the Company that it will not
exercise or attempt to exercise influence over the management or policies
of the Company in connection with this Warrant or any shares of Common
Stock for which this Warrant may be exercised.
11 SHAREHOLDER COMMUNICATIONS. The Company will provide the Registered
Holder with copies of all written communications distributed to
shareholders generally.
12 MISCELLANEOUS.
1.11834 NOTICE GENERALLY. Any notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder
to be made pursuant to the provisions of this Warrant shall be
sufficiently given or made if in writing and either delivered in person
with receipt acknowledged or sent by registered or certified mail, return
receipt requested, postage prepaid, or by telecopy and confirmed by
telecopy answerback, addressed as follows:
i) If to any Holder or holder of the Warrant Stock,
at its last known address appearing on the books of the Company
maintained for such purpose.
-2-
ii) If to the Company at:
0000 Xxxxxxxx Xxxxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Every notice
demand, request, consent, approval, declaration, delivery or other
communication hereunder shall be deemed to have been duly given or served
on the date on which personally delivered, with receipt acknowledged,
telecopied and confirmed by telecopy answerback, or three (3) Business
Days after the same shall have been deposited in the United States mail.
Failure or delay in delivering copies of any notice, demand, request,
approval, declaration, delivery or other communication to the person
designated above to receive a copy shall in no way adversely affect the
effectiveness of such notice, demand, request, approval, declaration,
delivery or other communication.
1.11834 SUCCESSORS AND ASSIGNS. This Warrant and the rights
evidenced hereby (including, without limitation, those relating to the
Warrant Stock) shall inure to the benefit of and be binding upon the
successors of the Company and the successors and assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and all Holders from time to
time of the Warrant Stock, and shall be enforceable by any such
Holder(s).
2.11834 AMENDMENT.
i) This Warrant and all other Warrants may be
modified or amended or the provisions hereof waived with the written
consent of the Company and the Majority Holders, PROVIDED that no such
Warrant may be modified or amended to reduce the number of shares of
Common Stock for which such Warrant is exercisable or to increase the
Warrant Price without the prior written consent of Holder thereof.
ii) No waivers of, or exceptions to, any term,
condition or provision of this Warrant, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of
any such term, condition or provision.
1.11834 SEVERABILITY. Wherever possible, each provision of
this Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions
of this Warrant.
2.11834 HEADINGS. The headings used in this Warrant are for
the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
3.11834 GOVERNING LAW. This Warrant shall be governed by the
laws of the State of Connecticut, without regard to the provisions
thereof relating to conflict of laws.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be duly executed.
Dated: July 18, 1996
STANDARD MANAGEMENT CORPORATION
By: /s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Its: Executive Vice President
and General Counsel
-2-
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of _______ shares of Common Stock
of the Company, and herewith makes payment in the amount of $________
therefor, and requests that certificates for the shares of Common Stock
hereby purchased (and any securities or other property issuable upon such
exercise) be issued in the name of and delivered to ___________, whose
address is ____________ and, if such shares of Common Stock shall not
include all of the shares of Common Stock issuable as provided in this
Warrant, that a new Warrant of like tenor and date for the balance of the
shares of Common Stock issuable hereunder be delivered to the
undersigned. In lieu of paying the purchase price, I hereby make a
cashless exercise of this Warrant for the purchase of _______ shares of
Common Stock of the Company pursuant to Section 2.1(iii) of this Warrant
and request that [$______] [certificates representing _____ shares] be
[paid][issued] and delivered to _______, whose address is ____________.
Fleet National Bank
(Name or Registered Owner)
/s/ X.X. XXXX
(Signature of Registered
Owner)
000 Xxxx Xx.
(Xxxxxx Xxxxxxx)
Xxxxxxxx, XX 00000
(City) (State) (zip Code)
-2-
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below
all of the rights of the undersigned under this Warrant, with respect to
the number of shares of Common Stock set forth below:
NAME AND ADDRESS OF ASSIGNEE No. of Shares of Common Stock
and does hereby irrevocably constitute and appoint __________________
attorney-in-fact to register such transfer on the books of
______________________ maintained for the purpose, with full power of
substitution in the premises.
Dated: Print Name:
Signature:
Witness:
NOTICE: The signature on this assignment must correspond with the name
as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
-2-
