EXHIBIT 4.2
WARRANT AGREEMENT
THIS WARRANT AGREEMENT is dated as of June __, 1998 between Uniservice
Corporation, a Florida corporation (the "COMPANY"), and ▇▇▇▇▇▇-▇▇▇▇ Securities,
Inc., (hereinafter referred to as the "UNDERWRITER").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue to the Underwriter warrants (the
"WARRANTS") to purchase up to 140,000 (as such number may be adjusted from time
to time pursuant to Article 8 of this Warrant Agreement) shares (the "SHARES")
of the common stock, par value $.0001 per share, of the Company (the "COMMON
STOCK"); up to 140,000 (as such number may be adjusted from time to time
pursuant to Article 8 of this Warrant Agreement) Common Stock purchase warrants
(the "UNDERLYING WARRANTS"); and
WHEREAS, the Underwriter has agreed, pursuant to the underwriting
agreement (the "UNDERWRITING AGREEMENT") dated June __, 1998 between the
Underwriter and the Company, to act as the underwriter in connection with the
Company's proposed public offering (the "PUBLIC OFFERING") of 1,400,000 shares
of Common Stock (the "PUBLIC SHARES") at an initial public offering price of
$5.00 per Public Share and 1,400,000 warrants (the "PUBLIC WARRANTS") at an
initial public offering price of $0.125 per Public Warrant; and
WHEREAS, the Warrants issued pursuant to this Agreement are being
issued by the Company to the Underwriter or to its designees who are officers of
the Underwriter or to members of the selling group participating in the
distribution of the Public Shares and Public Warrants to the public in the
Public Offering and/or their respective officers or partners (collectively, the
"DESIGNEES"), in consideration for, and as part of the Underwriter's
compensation in connection with, the Underwriter acting as the Underwriter
pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the
Underwriter or its designees to the Company of One Hundred Forty Dollar
($140.00), the agreements herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. GRANT.
The Underwriter and/or the Designees are hereby granted the
right to purchase, commencing ________ __, 1999 until 5:00 P.M., Eastern time,
on _________, 2003 (the "WARRANT EXERCISE TERM"), up to 140,000 fully-paid and
non-assessable Shares at an initial exercise price (subject to adjustment as
provided in Article 6 hereof) of $7.50 per Share and up to 140,000 Underlying
Warrants at an initial exercise price (subject to adjustment as provided in
Article 6 hereof) of $0.1875 per Underlying Warrant.
The Underlying Warrants are each exercisable to purchase one
fully-paid and non-assessable share of Common Stock (collectively, the
"UNDERLYING WARRANT SHARES") at a
price of $11.25 per Underlying Warrant Share. The Underlying Warrants are
exercisable at any time commencing _________, 1999 until 5:00 P.M., Eastern time
on ________, 2003. The Holder (defined hereafter) may purchase, upon exercise of
the Warrants, either all or part of the Shares or all or part of the Underlying
Warrants or all or part of both. The Shares and, except as provided in Article
13 hereof, the Underlying Warrants are in all respects identical to the Public
Shares and Public Warrants, respectively, being sold to the public pursuant to
the terms and provisions of the Underwriting Agreement.
2. WARRANT CERTIFICATES. The warrant certificates delivered and to be
delivered pursuant to this Agreement (the "WARRANT CERTIFICATES") shall be, for
the Warrants exercisable for the purchase of Underlying Shares, in the form set
forth in Exhibit A attached hereto and made a part hereof, and, for the Warrants
exercisable for the purchase of Underlying Warrants, in the form of Exhibit B
attached hereto and made a part hereof, each with such appropriate insertions,
omissions, substitutions and other variations as required or permitted by this
Agreement.
3. EXERCISE OF WARRANTS.
3.1. CASH EXERCISE. The Warrants initially are exercisable at
a price of $7.50 per Share purchased and $0.1875 per Underlying Warrant
purchased, payable in cash or by check to the order of the Company, or any
combination thereof, subject to adjustment as provided in Article 8 hereof. Upon
surrender of the Warrant Certificate(s) with the annexed Form of Election to
Purchase duly executed, together with payment of the Exercise Price (as
hereinafter defined) for the Shares and Underlying Warrants purchased, at the
Company's principal offices in Florida (currently located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ 33431) the registered holder of a Warrant
Certificate ("HOLDER" or "HOLDERS") shall be entitled to receive a certificate
or certificates for the Shares so purchased and/or a certificate or certificates
for the Underlying Warrants so purchased. The purchase rights represented by
each Warrant Certificate are exercisable at the option of the Holder thereof, in
whole or in part (but not as to fractional Shares or fractional Underlying
Warrants). In the case of the purchase of less than all Shares or Underlying
Warrants purchasable under any Warrant Certificate, the Company shall cancel
said Warrant Certificate upon the surrender thereof and shall execute and
deliver a new Warrant Certificate of like tenor for the balance of the Shares or
Underlying Warrants purchasable thereunder.
3.2. CASHLESS EXERCISE. At any time during the Warrant
Exercise Term, the Holder may, at the Holder's option, exchange, in whole or in
part, the Warrants represented by such Holder's Warrant Certificate which are
exercisable for the purchase of Shares and Underlying Warrants (a "WARRANT
EXCHANGE"), into the number of Shares and Underlying Warrants determined in
accordance with this Section , by surrendering such Warrant Certificate at the
principal office of the Company or at the office of its transfer agent,
accompanied by a notice stating such Holder's intent to effect such exchange,
the number of Warrants to be so exchanged and the date on which the Holder
requests that such Warrant Exchange occur (the "NOTICE OF EXCHANGE"). The
Warrant Exchange shall take place on the date specified in the Notice of
Exchange or, if later, the date the Notice of Exchange is received by the
Company (the "EXCHANGE DATE"). Certificates for the Shares and Underlying
Warrants issuable upon such Warrant Exchange and, if applicable, a new Warrant
Certificate of like tenor
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representing the Warrants which were subject to the surrendered Warrant
Certificate and not included in the Warrant Exchange, shall be issued as of the
Exchange Date and delivered to the Holder within three (3) days following the
Exchange Date.
In connection with any Warrant Exchange, the Holder shall be entitled
to subscribe for and acquire (i) the number of Shares (rounded to the next
highest integer) which would, but for such Warrant Exchange, than be issuable
pursuant to the provisions of Section above upon the exercise of the Warrants
specified by the Holder in its Notice of Exchange (the "TOTAL SHARE NUMBER")
less (ii) the number of Shares equal to the quotient obtained by dividing (a)
the product of the Total Share Number and the existing Exercise Price (as
hereinafter defined) per Share by (b) the Public Shares Market Price (as
hereinafter defined) of a Public Share on the day preceding the Warrant
Exchange. "PUBLIC SHARES MARKET PRICE" at any date shall be deemed to be the
last reported sale price of the Common Stock, or, in case no such reported sales
takes place on such day, the average of the last reported sale prices for the
last three (3) trading days, in either case as officially reported by the
principal securities exchange on which the Common Stock is listed or admitted to
trading or as reported on the Nasdaq SmallCap Market, or, if the Common Stock is
not listed or admitted to trading on any national securities exchange or quoted
in the Nasdaq SmallCap Market, the closing bid price as furnished by (i) the
National Association of Securities Dealers, Inc. (the "NASD") through the Nasdaq
Stock Market Inc. ("NASDAQ") or (ii) a similar organization if NASDAQ is no
longer reporting such information.
In connection with any Warrant Exchange, the Holder shall be entitled
to subscribe for and acquire (i) the number of Underlying Warrants (rounded to
the next highest integer) which would, but for such Warrant Exchange, than be
issuable pursuant to the provisions of Section 3.1 above upon the exercise of
the Warrants specified by the Holder in its Notice of Exchange (the "TOTAL
UNDERLYING WARRANT NUMBER") less (ii) the number of Underlying Warrants equal to
the quotient obtained by dividing (a) the product of the Total Underlying
Warrant Number and the existing Exercise Price per Underlying Warrant by (b) the
Public Warrants Market Price (as hereinafter defined) of a Public Warrant on the
day preceding the Warrant Exchange. "PUBLIC WARRANTS MARKET PRICE" at any date
shall be deemed to be the last reported sale price of the Public Warrants, or,
in case no such reported sales takes place on such day, the average of the last
reported sale prices for the last three (3) trading days, in either case as
officially reported by the principal securities exchange on which the Public
Warrants are listed or admitted to trading or as reported on the Nasdaq SmallCap
Market, or, if the Public Warrants are not listed or admitted to trading on any
national securities exchange or quoted in the Nasdaq SmallCap Market, the
closing bid price as furnished by (i) the National Association of Securities
Dealers, Inc. (the "NASD") through the Nasdaq Stock Market Inc. ("NASDAQ") or
(ii) a similar organization if NASDAQ is no longer reporting such information.
4. ISSUANCE OF CERTIFICATES.
Upon the exercise of the Warrants, the issuance of
certificates for the Shares purchased and certificates for the Underlying
Warrants purchased, and upon the exercise of the Underlying Warrants, the
issuance of certificates for the Underlying Warrant Shares purchased, shall be
made forthwith (and in any event within three (3) business days thereafter)
without charge to the Holder thereof including, without limitation, any tax
which may be payable in
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respect of the issuance thereof, and such certificates shall (subject to the
provisions of Article hereof) be issued in the name of, or in such names as may
be directed by, the Holder thereof; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the Shares
and the Underlying Warrants shall be executed on behalf of the Company by the
manual or facsimile signature of the present or any future Chairman or Vice
Chairman of the Board of Directors or Chief Executive Officer, President or Vice
President of the Company under its corporate seal reproduced thereon, attested
to by the manual or facsimile signature of the present or any future Secretary
or Assistant Secretary of the Company. Warrant Certificates and certificates
representing the Underlying Warrants shall be dated the date of execution by the
Company upon initial issuance, division, exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Shares and the Underlying Warrants purchased, and upon
exercise, in whole or in part, of the Underlying Warrants, certificates
representing the Underlying Warrant Shares purchased (collectively, the "WARRANT
SECURITIES"), shall bear a legend substantially similar to the following:
"The securities represented by this certificate and the other
securities issuable upon exercise thereof have not been registered for
purposes of public distribution under the Securities Act of 1933, as
amended (the "ACT"), and may not be offered or sold except (i) pursuant
to an effective registration statement under the Act, (ii) to the
extent applicable, pursuant to Rule 144 under the Act (or any similar
rule under such Act relating to the disposition of securities), or
(iii) upon the delivery by the holder to the Company of an opinion of
counsel, reasonably satisfactory to counsel to the Company, stating
that an exemption from registration under such Act is available."
5. RESTRICTION ON TRANSFER OF WARRANTS.
The Holder of a Warrant Certificate, by the Holder's
acceptance thereof, covenants and agrees that the Warrants are being acquired as
an investment and not with a view to the distribution thereof, and that the
Warrants, Shares, Underlying Warrants and Underlying Warrant Shares may not be
sold, transferred, assigned, pledged or hypothecated or otherwise disposed of,
in whole or in part, for a period of one (1) year from the date hereof, except
to the Underwriter or to the Designees.
6. PRICE.
6.1. INITIAL AND ADJUSTED EXERCISE PRICE. The initial exercise
price of each Warrant shall be $7.50 per Share and $0.1875 per Underlying
Warrant. The adjusted exercise
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price per Share and the adjusted exercise price per Underlying Warrant shall be
the prices which shall result from time to time from any and all adjustments of
the initial exercise price per Share or per Underlying Warrant, as the case may
be, in accordance with the provisions of Article 8 hereof.
6.2. EXERCISE PRICE. The term "EXERCISE PRICE" herein shall
mean the initial exercise price or the adjusted exercise price, depending upon
the context.
7. REGISTRATION RIGHTS.
7.1. REGISTRATION UNDER THE SECURITIES ACT OF 1933. All of the
Warrants, the Shares, the Underlying Warrants, and the Underlying Warrant Shares
have been registered for purposes of public distribution under the Securities
Act of 1933, as amended (the "ACT").
7.2. REGISTRABLE SECURITIES. As used herein the term
"REGISTRABLE SECURITY" means each of the Warrants, the Shares, the Underlying
Warrants, the Underlying Warrant Shares and any shares of Common Stock issued
upon any stock split or stock dividend in respect of such Shares or Underlying
Warrant Shares; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Act and disposed of pursuant thereto, (ii) registration under the Act
is no longer required for subsequent public distribution of such security, or
(iii) it has ceased to be outstanding. The term "REGISTRABLE SECURITIES" means
any and/or all of the securities falling within the foregoing definition of a
"REGISTRABLE SECURITY." In the event of any merger, reorganization,
consolidation, recapitalization or other change in corporate structure affecting
the Common Stock, such adjustment shall be made in the definition of
"REGISTRABLE SECURITY" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Article .
7.3. COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION.
The Company covenants and agrees as follows:
(a) Once effective, the Company will use its best
efforts to maintain the effectiveness of the Registration Statement until the
earlier of (i) the date that all of the Registrable Securities have been sold or
(ii) the date the holders thereof receive an opinion of counsel to the Company
that all of the Registrable Securities may be freely traded without registration
under the Act, under Rule 144(k) promulgated under the Act or otherwise.
(b) In connection with the registration under Section
7.1 hereof, the Company shall file the Registration Statement as expeditiously
as possible, but in any event no later than furnish each holder of Registrable
Securities such number of prospectuses as shall reasonably be requested.
(c) The Company shall pay all costs, fees and
expenses (other than underwriting fees, discounts and nonaccountable expense
allowance applicable to the Registrable Securities and fees and expenses of
counsel retained by the holders of Registrable Securities) in connection with
all Registration Statements filed pursuant to Section 7.1 hereof including,
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without limitation, the Company's legal and accounting fees, printing expenses,
and blue sky fees and expenses.
(d) The Company will take all necessary action which
may be required in qualifying or registering the Registrable Securities included
in the Registration Statement, for offering and sale under the securities or
blue sky laws of such states as are reasonably requested by the holders of such
securities.
(e) The Company shall indemnify any holder of the
Registrable Securities to be sold pursuant to any Registration Statement and any
underwriter or person deemed to be an underwriter under the Act and each person,
if any, who controls such holder or underwriter or person deemed to be an
underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), against all loss,
claim, damage, expense or liability (including all expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to which
any of them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement to the same extent and with the same
effect as the provisions pursuant to which the Company has agreed to indemnify
the Underwriter, and to provide for just and equitable contribution, as set
forth in Section 7 of the Underwriting Agreement.
(f) Any holder of Registrable Securities to be sold
pursuant to a registration statement, and such holder's successors and assigns,
shall severally, and not jointly, indemnify, the Company, its officers and
directors and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss,
claim, damage or expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which they may become subject under the Act, the Exchange Act or otherwise,
arising from information furnished by or on behalf of such holder, or such
holder's successors or assigns, for specific inclusion in such Registration
Statement to the same extent and with the same effect as the provisions pursuant
to which the Underwriter has agreed to indemnify the Company, and to provide for
just and equitable contribution, as set forth in Section 7 of the Underwriting
Agreement.
(g) Nothing contained in this Agreement shall be
construed as requiring any holder to exercise the Warrants or the Underlying
Warrants held by such holder prior to the initial filing of any registration
statement or the effectiveness thereof.
(h) If the Company shall fail to comply with the
provisions of this Article , the Company shall, in addition to any other
equitable or other relief available to the holders of Registrable Securities, be
liable for any or all incidental, special and consequential damages sustained by
the holders of Registrable Securities, requesting registration of their
Registrable Securities.
(i) The Company shall promptly deliver copies of all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the Registration Statement to each holder of Registrable Securities
included for such registration in such Registration Statement
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pursuant to Section 7.1 hereof requesting such correspondence and memoranda and
to the managing underwriter, if any, of the offering in connection with which
such Holder's Registrable Securities are being registered and shall permit each
holder of Registrable Securities and such underwriter to do such reasonable
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the Registration Statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the NASD. Such
investigation shall include access to books, records and properties and
opportunities to discuss the business of the Company with its officers and
independent auditors, all to such reasonable extent and at such reasonable times
and as often as any such holder of Registrable Securities or underwriter shall
reasonably request.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SECURITIES. The
following adjustments apply to the Exercise Price of the Warrants with respect
to the Shares and the number of Shares purchasable upon exercise of the
Warrants. In the event the Exercise Price per Share and/or the number of Shares
so purchasable is adjusted, then the Exercise Price of the Warrants relating to
the Underlying Warrants and the number of Underlying Warrants purchasable
thereunder shall be adjusted in the same proportion.
8.1. DISTRIBUTION OF SECURITIES. In case the Company shall at
any time after the date hereof pay a dividend in shares of Common Stock or make
any issuance or distribution in shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (other than
securities to employees of the Company pursuant to an employee stock purchase or
option plan that has been approved by the Company's stockholders in which
non-executive employees are eligible to participate), then upon such dividend or
distribution, the holder of Warrants shall receive the amount of such dividend
in shares of Common Stock or the amount of such other distribution in shares of
Common Stock which would have otherwise been payable to such holder if it been
the holder of record of Common Stock issuable upon exercise of its Warrant on
the record date for the determination of those entitled to such stock dividend
or distribution.
8.2. SUBDIVISION AND COMBINATION. In case the Company shall at
any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
8.3. ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment
of the Exercise Price pursuant to the provisions of this Article , the number of
Shares issuable upon the exercise of each Warrant shall be adjusted to the
nearest full number by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Shares issuable
upon exercise of the Warrants immediately prior to such adjustment and dividing
the product so obtained by the adjusted Exercise Price. Notwithstanding the
foregoing, in the case of adjustments to the exercise price of the Warrants with
respect to the Underlying Warrants and/or the number of Underlying Warrants
purchasable upon exercise of the Warrants, if an event occurs that results in an
adjustment of the number and/or price of the shares of Common Stock issuable
upon exercise of the Public Warrants pursuant to Section 6 of the Warrant
Agreement by and among the Company, the Underwriter and American Securities
Transfer & Trust, Inc. dated as of July __, 1998 ("PUBLIC WARRANT AGREEMENT"),
resulting in
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automatic adjustment in the number and/or price of the Underlying Warrant Shares
issuable upon exercise of the Underlying Warrants pursuant to Section 8.5
hereof, then the adjustment provided for in this Section shall not, in such
instance, result in any further adjustment in the aggregate number of shares of
Common Stock ultimately issuable upon exercise of the Underlying Warrants.
8.4. RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of
any reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a result of
a subdivision or combination of such shares or a change in par value, as
aforesaid), or in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the Holders shall thereafter have the
right to purchase the kind and number of shares of stock and other securities
and property receivable upon such reclassification, change, consolidation,
merger, sale or conveyance as if the Holders were the owners of both the Shares
and the Underlying Warrant Shares immediately prior to any such events.
8.5. ADJUSTMENT OF UNDERLYING WARRANTS' EXERCISE PRICE AND
SECURITIES ISSUABLE UPON EXERCISE OF UNDERLYING WARRANTS. With respect to any of
the Underlying Warrants, whether or not the Warrants have been exercised and
whether or not the Warrants are issued and outstanding, the exercise price for,
and the number of, Underlying Warrant Shares issuable upon exercise of the
Underlying Warrants shall automatically be proportionately adjusted in
accordance with Section 6 of the Public Warrant Agreement, upon the occurrence
of any of the events described therein. Thereafter, until the next such
adjustment or until otherwise adjusted in accordance with this Section 8.5, the
Underlying Warrants shall be exercisable at such adjusted exercise price and for
such adjusted number of Underlying Warrant Shares.
8.6. DISTRIBUTION OF ASSETS. In the event that the Company
shall at any time prior to the exercise of all Warrants make any distribution of
its assets to holders of its Common Stock as a liquidating or a partial
liquidating dividend, then the holder of Warrants who exercises its Warrants
after the record date for the determination of those holders of Common Stock
entitled to such distribution of assets as a liquidating or partial liquidating
dividend shall be entitled to receive for the Warrant Price per Warrant, in
addition to each share of Common Stock, the amount of such distribution (or, at
the option of the Company, a sum equal to the value of any such assets at the
time of such distribution as determined by the Board of Directors of the Company
in good faith) which would have been payable to such holder had he been the
holder of record of the Common Stock receivable upon exercise of his Warrant on
the record date for the determination of those entitled to such distribution. At
the time of any such dividend or distribution, the Company shall make
appropriate reserves to ensure the timely performance of the provisions of this
Subsection 8.6.
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9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES.
Each Warrant Certificate is exchangeable without expense, upon
the surrender thereof by the registered Holder at the principal executive office
of the Company, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of
securities in such denominations as shall be designated by the Holder thereof at
the time of such surrender.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Warrant Certificate, if mutilated, the Company will make and deliver a new
Warrant Certificate of like tenor, in lieu thereof.
10. ELIMINATION OF FRACTIONAL INTERESTS.
The Company shall not be required to issue certificates
representing fractions of Shares or fractions of Underlying Warrants upon the
exercise of the Warrants, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of Shares and Underlying Warrants.
11. RESERVATION AND LISTING OF SECURITIES.
The Company shall at all times reserve and keep available out
of its authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Warrants and the Underlying Warrants, such number of
shares of Common Stock as shall be issuable upon the exercise thereof. The
Company covenants and agrees that, upon exercise of the Warrants and payment of
the Exercise Price therefor, all Shares issuable upon such exercise shall be
duly and validly issued, fully paid, non-assessable and not subject to the
preemptive rights of any shareholder. The Company further covenants and agrees
that upon exercise of the Underlying Warrants and payment of the respective
Underlying Warrant exercise price therefor, all Underlying Warrant Shares
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any shareholder. As
long as the Warrants shall be outstanding, the Company shall use its best
efforts to cause all shares of Common Stock issuable upon the exercise of the
Warrants and the Underlying Warrants and all Underlying Warrants to be listed on
or quoted by NASDAQ or listed on such national securities exchange, in the event
the Common Stock is listed on a national securities exchange.
12. NOTICES TO WARRANT HOLDERS.
Nothing contained in this Agreement shall be construed as
conferring upon the Holder or Holders the right to vote or to consent or to
receive notice as a shareholder in respect of any meetings of shareholders for
the election of directors or any other matter, or as having any rights
whatsoever as a shareholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
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(a) the Company shall take a record of the holders of
its shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of its
Common Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation or merger) or a sale of
all or substantially all of its property, assets and business as an entirety
shall be proposed; or
(d) reclassification or change of the outstanding
shares of Common Stock (other than a change in par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a result of
a subdivision or combination of such shares or a change in par value, as
aforesaid), or a sale or conveyance to another corporation of the property of
the Company as an entirety is proposed; or
(e) The Company or an affiliate of the Company shall
propose to issue any rights to subscribe for shares of Common Stock or any other
securities of the Company or of such affiliate to all the shareholders of the
Company;
then, in any one or more of said events, the Company shall give written notice
to the Holder or Holders of such event at least fifteen (15) days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, options or
warrants, or entitled to vote on such proposed dissolution, liquidation, winding
up or sale. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. Failure to give such notice or any
defect therein shall not affect the validity of any action taken in connection
with the declaration or payment of any such dividend or distribution, or the
issuance of any convertible or exchangeable securities or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
13. UNDERLYING WARRANTS.
The form of the certificates representing the Underlying
Warrants (and the form of election to purchase shares of Common Stock upon the
exercise of the Underlying Warrants and the form of assignment printed on the
reverse thereof) shall be substantially as set forth in Exhibit "B" hereto. As
set forth in Section 8.3 of this Agreement, the exercise price of the Underlying
Warrants and the number of shares of Common Stock issuable upon the exercise of
the Underlying Warrants are subject to adjustment, whether or not the Warrants
have been
10
exercised and the Underlying Warrants have been issued, in the manner and upon
the occurrence of the events set forth in Section 6 of the Public Warrant
Agreement, which is hereby incorporated herein by reference and made a part
hereof as if set forth in its entirety herein. Subject to the provisions of this
Agreement and upon issuance of the Underlying Warrants, each registered holder
of such Underlying Warrants shall have the right to purchase from the Company
(and the Company shall issue to such registered holders) up to the number of
fully paid and non-assessable Underlying Warrant Shares (subject to adjustment
as provided herein and in the Public Warrant Agreement), free and clear of all
preemptive rights of shareholders, provided that such registered holder
complies, in connection with the exercise of such holders' Underlying Warrants,
with the terms governing exercise of the Public Warrants set forth in the Public
Warrant Agreement, and pays the applicable exercise price, determined in
accordance with the terms of the Public Warrant Agreement. Upon exercise of the
Underlying Warrants, the Company shall forthwith issue to the registered holder
of any such Underlying Warrants, in such holder's name or in such name as may be
directed by such holder, certificates for the number of Underlying Warrant
Shares so purchased. The Underlying Warrants shall be transferable in the manner
provided in the Public Warrant Agreement, and upon any such transfer, a new
Underlying Warrant shall be issued promptly to the transferee. The Company
covenants to, and agrees with, each Holder that without the prior written
consent of all the Holders, the Public Warrant Agreement will not be modified,
amended, cancelled, altered or superseded, and that the Company will send to
each Holder, irrespective of whether or not the Warrants have been exercised,
any and all notices required by the Public Warrant Agreement to be sent to
holders of the Public Warrants.
14. NOTICES.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Warrants, to the
address of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in
Section of this Agreement or to such other address as the Company may designate
by notice to the Holders.
15. SUPPLEMENTS AND AMENDMENTS.
The Company and the Underwriter may from time to time
supplement or amend this Agreement without the approval of any Holders of the
Warrants and/or Warrant Securities in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or inconsistent
with any provisions herein, or to make any other provisions in regard to matters
or questions arising hereunder which the Company and the Underwriter may deem
necessary or desirable and which the Company and the Underwriter deem not to
adversely affect the interests of the Holders of Warrant Certificates.
11
16. SUCCESSORS.
All the covenants and provisions of this Agreement by or for
the benefit of the Company and the Holders inure to the benefit of their
respective successors and assigns hereunder.
17. TERMINATION.
This Agreement shall terminate at the close of business on
_________, 2006. Notwithstanding the foregoing, this Agreement will terminate on
any earlier date when all Warrants and Underlying Warrants have been exercised
and all Warrant Securities have been resold to the public; provided, however,
that the provisions of Section shall survive any termination pursuant to this
Section until the close of business on __________, 2008.
18. GOVERNING LAW.
This Agreement and each Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Florida and
for all purposes shall be construed in accordance with the laws of said State.
19. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company and the Underwriter and any other
registered holder or holders of the Warrant Certificates or Warrant Securities
any legal or equitable right, remedy or claim under this Agreement; and this
Agreement shall be for the sole and exclusive benefit of the Company and the
Underwriter and any other holder or holders of the Warrant Certificates or
Warrant Securities.
20. COUNTERPARTS.
This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
12
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
UNISERVICE CORPORATION
By:_________________________________
Name:
Title:
▇▇▇▇▇▇-▇▇▇▇ SECURITIES, INC.
By:_________________________________
Name:
Title:
13
EXHIBIT A
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME COMMENCING _________, 1999
UNTIL 5:00 P.M., EASTERN TIME, _______, 2003
No. W- _______ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that_______________________
_______________ or registered assigns, is the registered holder of __________
Warrants to purchase, at any time until 5:00 P.M. Eastern time on _______, 2003
("EXPIRATION DATE"), up to _______ fully-paid and non-assessable shares (the
"SHARES") of the common stock, par value $.0001 per share (the "COMMON STOCK"),
of Uniservice Corporation, a Florida corporation (the "COMPANY"), at an initial
exercise price, subject to adjustment in certain events (the "EXERCISE PRICE"),
of $7.50 per Share, upon surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the warrant agreement dated as of _______,
1998 between the Company and ▇▇▇▇▇▇-▇▇▇▇ Securities, inc. (the "WARRANT
AGREEMENT"). Payment of the Exercise Price may be made in cash, or by certified
or official bank check in New York Clearing House funds payable to the order of
the Company, or any combination thereof.
No Warrant may be exercised after 5:00 P.M., Eastern time, on
the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "HOLDERS" or "HOLDER" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of
certain events, the Exercise Price and the type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
provided, however, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair, the rights
of the holder as set forth in the Warrant Agreement.
A-1
This Warrant Certificate may be divided or combined with other
Warrant Certificates of other denominations upon surrender hereof at an office
or agency maintained by the Corporation for such purpose, together with a
written notice specifying the names and denominations (in whole Warrants) in
which new Warrant Certificates are to be issued, signed by the holder thereof or
his duly authorized attorney, together with the funds to pay any transfer,
documentary, stamp or other taxes or government charges payable in connection
with such transfer and any other amounts required pursuant to this Warrant
Certificate. Upon such surrender and payment, a new Warrant Certificate or
Certificates representing a like aggregate number of Warrants shall be issued
and delivered in accordance with such notice.
Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof
as the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined
in the Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: _______, 1998 UNISERVICE CORPORATION
By:__________________________
Name:
Title:
A-2
[FORM OF ELECTION TO PURCHASE]
PLEASE CHECK THE APPROPRIATE BOX
[ ] Pursuant to Section 3.1 of the Warrant Agreement, the undersigned
hereby irrevocably elects to exercise the right, represented by this Warrant
Certificate, to purchase _________ Shares of Common Stock and herewith tenders
in payment for such securities, cash or a certified or official bank check
payable in New York Clearing House Funds to the order of UNISERVICE CORPORATION
in the amount of $________, all in accordance with the terms hereof. The
undersigned requests that a certificate for such securities be registered in the
name of_____________________________ ________________, whose address is
___________________, and that such Certificate be delivered
to__________________________, whose address is
___________________________________.
[ ] Pursuant to Section 3.2 of the Warrant Agreement, the undersigned
hereby irrevocably elects to exchange _________ Warrants represented by this
Warrant Certificate for __________ _________ Shares of Common Stock. The
undersigned requests that a certificate for such securities be registered in the
name of_____________________________ ________________, whose address is
___________________, and that such certificate be delivered
to__________________________, whose address is
___________________________________.
Dated:____________________ (Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Signature:________________ Certificate.)
________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
A-3
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED
--------------------------------------
hereby sells, assigns and transfers unto
-------------------------------------
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________, Attorney, to
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated:____________________ (Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Signature:________________ Certificate.)
________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
A-4
EXHIBIT B
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE AT ANY TIME COMMENCING _________, 1999
UNTIL 5:00 P.M., EASTERN TIME, _______, 2003
No. W- _________ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that _____________
____________________, or registered assigns, is the registered holder of
___________________________ (_______) Warrants to purchase, at any time until
5:00 P.M. Eastern time on _______, 2003 ("EXPIRATION DATE"), an aggregate of up
to ___________________________ (_______) common stock purchase warrants, each
common stock purchase warrant entitling the holder thereof to purchase one share
of common stock, par value $.0001 per share (collectively, the "UNDERLYING
WARRANTS"), of Uniservice Corporation, a Florida corporation (the "COMPANY"), at
an initial exercise price, subject to adjustment in certain events (the
"EXERCISE PRICE"), of $0.1875 per Underlying Warrant, upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the warrant
agreement dated as of _______, 1997 between the Company and ▇▇▇▇▇▇-▇▇▇▇
Securities, Inc. (the "WARRANT AGREEMENT"). Payment of the Exercise Price may be
made in cash, or by certified or official bank check in New York Clearing House
funds payable to the order of the Company, or any combination thereof.
The Underlying Warrants issuable upon exercise of the Warrants
will be exercisable at any time from _______, 1999 (or such earlier date on
which the Underwriter consents to the exercise of the Public Warrants (as
defined in the Public Warrant Agreement which is hereinafter defined)) until
5:00 P.M. Eastern time _______, 2003 each Underlying Warrant entitling the
holder thereof to purchase one fully-paid and non-assessable share of common
stock of the Company, at an initial exercise price, subject to adjustment in
certain events, of $11.25 per share. The Underlying Warrants are issuable
pursuant to the terms and provisions of a certain agreement dated as of _______,
1998 by and among the Company, ▇▇▇▇▇▇-▇▇▇▇ Securities, Inc. and
______________________________ (the "PUBLIC WARRANT AGREEMENT"). The Public
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to (except as otherwise provided in the
Warrant Agreement) for a description of the rights, limitations of rights,
manner of exercise, anti-dilution provisions and other provisions with respect
to the Underlying Warrants.
No Warrant may be exercised after 5:00 P.M., Eastern time, on
the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, shall thereafter be void.
B-1
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to in a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "HOLDERS" or "HOLDER" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that, upon the occurrence of
certain events, the Exercise Price and the type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
provided, however, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair the rights
of the holder as set forth in the Warrant Agreement.
This Warrant Certificate may be divided or combined with other
Warrant Certificates of other denominations upon surrender hereof at an office
or agency maintained by the Corporation for such purpose, together with a
written notice specifying the names and denominations (in whole Warrants) in
which new Warrant Certificates are to be issued, signed by the holder thereof or
his duly authorized attorney, together with the funds to pay any transfer,
documentary, stamp or other taxes or government charges payable in connection
with such transfer and any other amounts required pursuant to this Warrant
Certificate. Upon such surrender and payment, a new Warrant Certificate or
Certificates representing a like aggregate number of Warrants shall be issued
and delivered in accordance with such notice.
Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof
as the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined
in the Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: _______, 1998 UNISERVICE CORPORATION
By:__________________________
Name:
Title:
B-2
[FORM OF ELECTION TO PURCHASE]
PLEASE CHECK THE APPROPRIATE BOX
[ ] Pursuant to Section 3.1 of the Warrant Agreement, the undersigned
hereby irrevocably elects to exercise the right, represented by this Warrant
Certificate, to purchase _________ Underlying Warrants and herewith tenders in
payment for such securities, cash or a certified or official bank check payable
in New York Clearing House Funds to the order of UNISERVICE CORPORATION in the
amount of $________, all in accordance with the terms hereof. The undersigned
requests that a certificate for such securities be registered in the name
of_____________________________ ________________, whose address is
___________________, and that such Certificate be delivered
to__________________________, whose address is
___________________________________.
[ ] Pursuant to Section 3.2 of the Warrant Agreement, the undersigned
hereby irrevocably elects to exchange _________ Warrants represented by this
Warrant Certificate for __________ _________ Underlying Warrants. The
undersigned requests that a certificate for such securities be registered in the
name of_____________________________ ________________, whose address is
___________________, and that such certificate be delivered
to__________________________, whose address is
___________________________________.
Dated:____________________ (Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Signature:________________ Certificate.)
________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
B-3
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED
--------------------------------------
hereby sells, assigns and transfers unto
-------------------------------------
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________, Attorney, to
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated:____________________ (Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Signature:________________ Certificate.)
________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
B-4