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Exhibit 4.3
FORM OF COMMON STOCK WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "1933
ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE WARRANT AND THE
SHARES OF COMMON STOCK UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR IN A TRANSACTION THAT MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE
1933 ACT IN RELIANCE UPON AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
HealthExtras, Inc.
Common Stock Warrant
_____ shares of Common Stock
Warrant No.: _____ September____, 2001
HealthExtras, Inc., a Delaware corporation (the "Company"), for value
received, hereby certifies that [NAME OF ENTITY], or its registered assigns,
(the "Holder") is entitled to purchase from the Company, at any time or from
time to time prior to 5:00 p.m., Eastern time, on September ___, 2005, the
Expiration Date, _______ duly authorized, validly issued, fully paid and
nonassessable shares of common stock, as constituted on the date hereof (the
"Common Stock"), of the Company at a purchase price of $5.37 per share (the
"Warrant Price"), all subject to the terms, conditions and adjustments set forth
below in this Warrant.
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1. EXERCISE OF WARRANT.
1.1. Manner of Exercise. This Warrant may be exercised by the
Holder, in whole or part, during normal business hours on any Business Day prior
to the Expiration Date by surrender of this Warrant to the Company at the
principal executive office of the Company, accompanied by (i) a subscription in
the form of Schedule 1 hereto duly executed by such Xxxxxx and (ii) by payment
in cash or by certified or official bank check payable to the order of the
Company or by wire transfer to the Company in the amount obtained by multiplying
(a) the number of shares of Common Stock (without giving effect to any
adjustment therein) designated in such subscription by (b) the Warrant Price.
1.2. When Exercise Effective. Each exercise of this Warrant shall
be deemed to have been effected immediately prior to the close of business on
the Business Day on which this Warrant shall have been surrendered to the
Company as provided in Section 1.1. At such time, the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock shall
be issuable upon such exercise as provided in Section 1.3 (the "Warrant Shares")
shall be deemed to have become the stockholder(s) of record thereof.
1.3. Delivery of Stock Certificates, etc.
1.3.1 As soon as practicable after the exercise of this Warrant,
in whole or in part, and in any event within three (3) trading
days after the date of the exercise, the Company at its
expense (including the payment by it of any applicable
issuance taxes) will cause to be issued to and delivered or
registered in the name of the Holder hereof or, subject to
Section 4, as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct, the number of duly
authorized, validly issued, fully paid and nonassessable
shares of Common Stock to which such Holder shall be entitled
upon such exercise plus, in lieu of any fractional share to
which such Holder would otherwise be entitled, cash in an
amount equal to the same fraction of the Market Price per
share on the Business Day next preceding the date of such
exercise. If the Company's transfer agent is participating in
the Depository Trust Company ("DTC") Fast Automated Securities
Transfer Program, the Company shall cause its transfer agent
to electronically transmit the Warrant Shares so purchased to
the Holder by crediting the account of the Holder with DTC
through its Deposit Withdrawal Agent Commission system ("DTC
Transfer"), unless such Warrant Shares are required to have a
legend and such electronic transmission of legended shares is
not permissible. If the aforementioned conditions to a DTC
Transfer are not satisfied, the Company shall deliver to the
Holder physical certificates representing the Warrant Shares
so purchased. Further, the Holder may instruct the Company to
deliver to the Holder physical certificates representing the
Warrant Shares so purchased in lieu of delivering such shares
by way of DTC Transfer. Any certificates so delivered shall be
in such
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denominations as may be reasonably requested by the Holder
hereof, shall be registered in the name of such Holder and
such certificates shall not bear a restrictive legend if (i)
the requirements for removal of such restrictive legend set
forth in that certain Securities Purchase Agreement (the
"Securities Purchase Agreement") dated September 25, 2001, by
and between the Company and the other signatories thereto or
(ii) the Warrant Shares covered by such certificates may be
sold by the Holder pursuant to Rule 144(k) promulgated under
the Securities Act (or a successor rule). If this Warrant
shall have been exercised only in part, then the Company
shall, at its expense, at the time of delivery of such
certificates, deliver to the Holder a new Warrant or Warrants
of like tenor, calling in the aggregate on the face or faces
thereof for issuance of the number or shares of Common Stock
equal (without giving effect to any adjustment therein) to the
number of such shares called for on the face of this Warrant
minus the number of such shares so designated by such Holder
upon such exercise as provided in Section 1.1.
1.3.2 If the Company shall fail for any reason or for no reason to
issue to the Holder within three (3) trading days after
exercise of the Warrants in accordance with Section 1.3.1, a
certificate for the number of Warrant Shares or to credit the
Holder's balance account with DTC for such number of Warrant
Shares, to which the Holder is entitled upon the Holder's
exercise of this Warrant:
(a) the Holder will have the right to rescind such exercise;
and
(b) in addition to any other rights available to the Holder,
if after such third Trading Day the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Holder of the
Warrant Shares which the Holder anticipated receiving upon
such exercise (a "Buy-In"), then the Company shall (1) pay in
cash to the Holder the amount by which (x) the Holder's total
purchase price (including brokerage commissions, if any) for
the shares of Common Stock so purchased exceeds (y) the amount
obtained by multiplying (A) the number of Warrant Shares that
the Company was required to deliver to the Holder in
connection with the exercise at issue by (B) the closing bid
price of the Common Stock at the time of the obligation giving
rise to such purchase obligation and (2) at the option of the
Holder, either reinstate the portion of the Warrant and
equivalent number of Warrant Shares for which such exercise
was not honored or deliver to the Holder the number of shares
of Common Stock that would have been issued had the Company
timely complied with its exercise and delivery obligations
hereunder. For example, if the Holder purchases Common Stock
having a total purchase price of
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$11,000 to cover a Buy-In with respect to an attempted
exercise of shares of Common Stock with a market price on the
date of exercise which totaled $10,000, under clause (A) of
the immediately preceding sentence the Company shall be
required to pay the Holder $1,000. The Holder shall provide
the Company written notice indicating the amounts payable to
the Holder in respect of the Buy-In.
1.4. Representation of the Company. The Company represents, warrants and
acknowledges to the Holder that:
1.4.1. it is a corporation duly formed and validly existing in the
state of Delaware;
1.4.2. the Company will at all times reserve and keep available,
solely for issuance and delivery upon the exercise of the
Warrants, the number of shares of Common Stock (or Other
Securities) from time to time issuable upon the exercise of
all Warrants at the time outstanding. All such securities
shall be duly authorized and, when issued upon such exercise,
shall be validly issued and, in the case of shares, fully paid
and nonassessable with no liability on the part of the holders
thereof.
1.4.3. this Warrant has been duly authorized and approved by all
requisite action of the Company, and constitutes a valid and
binding agreement of the Company; and
1.4.4. when issued in accordance with the terms of this Warrant, the
shares of Common Stock covered by this Warrant will be duly
authorized and validly issued, fully paid and nonassessable.
1.5 Net Issuance. Notwithstanding anything to the contrary in Section 1.1
above, at any time when the resale by the Holder of the Warrant Shares would be
required to be covered by an effective registration statement under the
Securities Act of 1933 and such resale is not then covered by such a
registration statement, then the Holder may elect to exercise this Warrant in
whole or in part by receiving shares of Common Stock equal to the net issuance
value (as determined below) of this Warrant, or any part hereof, upon surrender
of this Warrant to the Company together with the subscription form annexed
hereto as Schedule I (duly executed by the Holder), in which event the Company
shall issue to the Holder a number of shares of Common Stock computed using the
following formula:
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X = Y (A-B)
--------------------------------------------------------------------------------
A
Where:
X = the number of shares of Common Stock to be issued to the Holder
Y = the number of shares of Common Stock as to which this Warrant
is to be exercised
A = the current fair market value as defined below of one share of
Common Stock calculated as of the last trading day immediately preceding the
exercise of this Warrant
B = the Warrant Price
As used herein, current fair market value of Common Stock as of a
specified date shall mean with respect to each share of Common Stock, if such
stock is listed on a national securities exchange, the closing sale price of the
Common Stock on the principal securities market on which the Common Stock may at
the time be listed or, if there have been no sales on any such exchange on any
such day, the average of the highest bid and lowest asked prices on the
principal securities market at the end of such day, or, if on any such day the
Common Stock is not so listed, the average of the representative bid and asked
prices quoted in the Nasdaq System as of 4:00 p.m., New York City time, or, if
on such day the Common Stock is not quoted in the Nasdaq System, the average of
the highest bid and lowest asked price on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case averaged
over a period of five consecutive trading days consisting of the day as of which
the current fair market value of a share of Common Stock is being determined (or
if such day is not a trading day, the trading day next preceding such day) and
the four consecutive trading days prior to such day. If on the date for which
current fair market value is to be determined the Common Stock is not listed on
any securities exchange or quoted in the Nasdaq System or the over-the-counter
market, the current fair market value of Common Stock shall be the highest price
per share which the Company could then obtain from a willing buyer (not a
current employee or director) for shares of Common Stock sold by the Company,
from authorized but unissued shares, as determined in good faith by the Board of
Directors of the Company, unless prior to such date the Company has become
subject to a merger, acquisition or other consolidation pursuant to which the
Company is not the surviving party, in which case the current fair market value
of the Common Stock shall be deemed to be the value received by the holders of
the Company's Common Stock for each share thereof pursuant to the Company's
acquisition.
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2. ANTI-DILUTION PROVISION.
2.1. Stock Dividends, Subdivisions And Combination.
2.1.1. Triggering Events. If at any time the Company
shall: (i) declare a dividend or otherwise make a
distribution to the holders of its Common Stock
in the form of additional shares of Common Stock
or otherwise change its outstanding shares of
Common Stock into a larger number of shares of
Common Stock, or (ii) combine its outstanding
shares of Common Stock into a smaller number or
shares of Common Stock, then the adjustments set
forth in Sections 2.1.2 and 2.1.3 of this Section
2.1 shall be made to the number of shares of
Common Stock for which this Warrant is
exercisable and to the Warrant Price,
respectively.
2.1.2 Adjustment to Number of Shares of Common Stock
For Which Warrant Is Exercisable. The number of
shares of Common Stock for which this Warrant is
exercisable shall be adjusted to equal: (i) the
number of shares of Common Stock for which this
Warrant is exercisable immediately before the
occurrence of any such event, (ii) multiplied by
a fraction, (A) the numerator of which is the
total number of shares of Common Stock
outstanding immediately after the occurrence of
such event, and (B) the denominator of which is
the total number of shares of Common Stock
outstanding immediately before the occurrence of
such event.
2.1.3. Adjustment to Warrant Price. The Warrant price
shall be adjusted to equal: (i) the Warrant Price
immediately prior to the occurrence of any such
event, (ii) multiplied by a fraction, the
numerator of which is the number of shares of
Common Stock for which this Warrant is
exercisable immediately before such event, and
the denominator of which is the number of shares
of Common Stock for which this Warrant is
exercisable immediately after the adjustment.
2.1.4. Effective Date. Any adjustment under this
Section 2.1 shall become effective at the close
of business on the date the subdivision or
combination become effective. Such adjustment
shall be made successively whenever such an event
occurs.
2.2. Reclassification, Exchange, and Substitution. If the Common
Stock issuable upon exercise of this Warrant shall be changed into the same or a
different number of shares of any other class or classes of stock or other
securities of the Company, including any such reclassification in connection
with a consolidation or merger in which the Company is the surviving entity,
whether by capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares provided for above), the Holder shall, on
its exercise, be
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entitled to receive the kind and number of shares of Common Stock or other
securities of the Company which the Holder would have owned or been entitled to
receive had such Warrant been exercised in full immediately prior to the
happening of such reclassification, exchange or substitution for the same
aggregate consideration. If the Company shall at any time change its Common
Stock into the same or a difference number of shares of any other class or
classes of stock or other securities of the Company as set forth in this Section
2.2, the Warrant Price then in effect immediately before that reclassification,
exchange or substitution shall be adjusted by multiplying the Warrant Price by a
fraction, the numerator of which shall be the number of shares of Common Stock
purchasable upon the exercise of this Warrant immediately prior to such
adjustment and the denominator of which shall be the number of shares of Common
Stock purchasable immediately thereafter. An adjustment made pursuant to this
Section 2.2 shall become effective immediately after the effective date of such
event. Such adjustment shall be made successively whenever such an event occurs.
2.3. Reorganization, Mergers, Consolidations, or Sales of Assets.
In the event of a reorganization, merger or consolidation of the Company with or
into another entity, or the sale of substantially all of the Company's
properties and assets as, or substantially as, an entity to any other entity,
then as part of such reorganization, merger, consolidation or sale, lawful
provision shall be made so that the Holder shall thereafter be entitled to
receive upon exercise of this Warrant, at any time prior to the Expiration Date
and upon payment of the Warrant Price then in effect, the number of shares of
Common Stock or Other Securities or property of the Company, or of the successor
corporation resulting from such merger or consolidation, to which the Holder
would have been entitled in such reorganization, merger, or consolidation or
sale if this Warrant had been exercised immediately before that reorganization,
merger, or consolidation or sale. In any such case, appropriate adjustment (as
determined in good faith by the Company's Board of Directors) shall be made in
the application of the provisions of this Warrant with respect to the rights and
interests of the Holder after the reorganization, merger, consolidation or sale
to the end that the provisions of this Warrant (including adjustment of the
Warrant Price then in effect and number of shares of Common Stock purchasable
upon exercise of this Warrant) shall be applicable after that event, as near as
reasonably may be, in relation to any Common Stock or Warrants or other property
deliverable after that event upon exercise of this Warrant. The Company shall,
within thirty (30) days after making such adjustment, give written notice (by
first class mail, postage prepaid) to the Holder at the address of the Holder
shown on the Company's books. That notice shall set forth, in reasonable detail,
the event requiring the adjustment and the method by which the adjustment was
calculated and specify the Warrant Price then in effect after the adjustment and
the increased or decreased number of shares of Common Stock purchasable upon
exercise of this Warrant. When appropriate, that notice may by given in advance
and include as part of the notice required under other provisions of this
Warrant.
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2.4. Form of Warrant After Adjustments.
2.4.1. The form of this Warrant need not be changed
because of any adjustments in the Warrant Price
or number or kind of the shares of Common Stock
purchasable pursuant to this Warrant, and
Warrants theretofore or hereunder issued may
continue to express the same price and number and
kind of shares as are stated in this Warrant, as
initially issued; provided, however, that the
Company may, at any time in its sole discretion
(which shall be conclusive), make any change in
the form of Warrant Certificate that it may deem
appropriate and that does not affect the
substance thereof. Any Warrant certificate
thereafter issued, whether upon registration of
transfer of, or in exchange or substitution for,
an outstanding Warrant certificates may be in the
form so changed.
3. RESTRICTION OF TRANSFER.
3.1. Restrictive Legends. Except as otherwise permitted by this
Section 3, or Section 1.3.1 hereof, each Warrant originally issued, each Warrant
issued upon direct or indirect transfer, each certificate for Common Stock (or
Other Securities) issued upon the exercise of any Warrant, and each certificate
issued upon the direct or indirect transfer or any such Common Stock (or Other
Securities), shall be stamped or otherwise imprinted with a legend in
substantially the following form, if applicable:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT") OR
ANY STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE 1933 ACT OR (2) PURSUANT
TO RULE 144 UNDER THE 1933 ACT OR (3) IN A TRANSACTION THAT MAY
BE EFFECTED WITHOUT REGISTRATION UNDER THE 1933 ACT IN RELIANCE
UPON AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
3.2. Notice of Proposed Transfer: Opinions of Counsel. Prior to
any transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act (other than a transfer
pursuant to Rule 144, Rule 144A or any comparable rule under such Act), the
holder thereof will give written notice to the Company of such Xxxxxx's
intention to effect such transfer and to comply in all other respects with this
Section 3.2. Each such notice shall (a) describe the manner and circumstances of
the proposed transfer, in sufficient detail to enable counsel to render the
opinion referred to below, and (b) designate counsel for the Holder giving such
notice. The Holder giving such notice will submit a copy thereof to the counsel
designated in such notice. The following provisions shall then apply:
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3.2.1. if in the written opinion of such counsel for the
holder, obtained at the Holder's sole cost and
expense, and a copy of which shall be delivered
to the Company and shall be reasonably
satisfactory in form, scope and substance to the
Company, the proposed transfer may be effected
without registration of such Restricted
Securities under the Securities Act and, such
Holder shall thereupon be entitled to transfer
such Restricted Securities in accordance with the
terms of the notice delivered by such Holder to
the Company. Each Restricted Security or
certificate, if any, issued upon or in connection
with such transfer shall bear the appropriate
restrictive legend set forth in Section 3.1
unless, in the opinion of such counsel, such
legend is no longer required to insure compliance
with the Securities Act and applicable state
securities laws; and
3.2.2. if the opinion of such counsel rendered pursuant
to the foregoing subdivision 3.2.1 is not to the
effect that the proposed transfer may legally be
effected without registration of such Restricted
Securities under the Securities Act such holder
shall not be entitled to transfer such Restricted
Securities (other than a transfer pursuant to
Rule 144, Rule 144A or any comparable rule under
the Securities Act) until receipt by the Company
of a further notice and further opinion of
counsel for such holder to the effect stated in
subdivision 3.2.1 above or until registration of
such Restricted Securities under the Securities
Act and applicable state securities laws has
become effective.
4. OWNERSHIP TRANSFER AND SUBSTITUTION OF WARRANTS.
4.1. Ownership of Warrants. The Company, may treat the Person in
whose name any Warrant is registered on the register kept at the principal
executive office of the Company as the owner and holder thereof for all
purposes, notwithstanding any notice to the contrary, except that, if and when
any Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer thereof as the owner of such Warrant for all
purposes, notwithstanding any notice to the contrary. Subject to Section 3, a
Warrant, if properly assigned, may be exercised by a new Holder without first
having a new Warrant issued.
5. DEFINITIONS. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or any other day on which banks are not open for business in the
State of New York.
"COMMISSION" shall mean the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities
Act.
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"COMMON STOCK" shall mean, the Common Stock (or other equity
interest, however denominated) of the Company and any stock into
which such Common Stock shall have been changed or any stock
resulting from any reclassification of such Common Stock.
"COMPANY" shall have the meaning specified in the opening
paragraph of this Warrant, including any corporation which shall
succeed to or assume the obligations of the Company hereunder.
"HOLDER" shall have the meaning specified in the opening
paragraph of this Warrant.
"MARKET PRICE" shall mean, per share of Common Stock which the
Holder shall be entitled to receive upon exercise thereof, on any
date specified herein, (a) the last sale price on such date of
such Common Stock or, if no such sale takes place on such date,
the average of the closing bid and asked prices thereof on such
date, in each case as officially reported on the principal
national securities exchange on which such Common Stock is then
listed or admitted to trading, or (b) if such Common Stock is not
then listed or admitted to trading on any national securities
exchange but is designated as a national market system security
by the National Association of Securities Dealers, Inc., the last
trading price of such Common Stock on such date, or (c) if there
shall have been no trading on such date or if such Common Stock
is not so designated, the average of the reported closing bid and
asked prices of such Common Stock on such date as shown by NASDAQ
and reported by any member firm of the New York Stock Exchange
selected by the Company, or (d) if neither (a), (b) nor (c) is
applicable, a price per share thereof equal to the fair value
thereof determined in good faith by a resolution of the Board of
Directors of the Company as of a date which is within 15 days of
the date as of which the determination is to be made.
"ORIGINAL ISSUE DATE" shall have the date this Warrant was first
issued.
"OTHER SECURITIES" shall mean any stock (other than Common Stock)
and other securities of the Company or any other Person
(corporate or otherwise) which the holders of the Warrants at any
time shall be entitled to receive, or shall have received, upon
the exercise of the Warrants, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been
issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 2 or otherwise.
"PERSON" shall mean a corporation, an association, a partnership,
an organization or business, an individual, a government or
political subdivision thereof or a governmental agency.
"RESTRICTED SECURITIES" shall mean (a) any Warrants bearing the
applicable legend set forth in Section 3.1, (b) any shares of
Common Stock (or Other Securities) issued upon the exercise of
Warrants which are evidenced by a certificate of certificates
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bearing the applicable legend set forth in such Section and (c)
any shares of Common Stock (or Other Securities) issued
subsequent to the exercise of any of the Warrants as a dividend
or other distribution with respect to, or resulting from a
subdivision of the outstanding shares of Common Stock (or Other
Securities) into a greater number of shares by reclassification,
stock splits or otherwise, or in exchange for or in replacement
of the Common Stock (or Other Securities) issued upon such
exercise, which are evidenced by a certificate or certificates
bearing the applicable legend set forth in such section.
"SECURITIES ACT" shall mean the Securities Act of 1933, 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.
"WARRANTS" shall have the meaning specified in the opening
paragraphs of this Warrant.
"WARRANT PRICE" shall have the meaning specified in the opening
paragraph of this Warrant.
6. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this
warrant shall be construed as conferring upon Holder hereof any rights as a
stockholder of the Company or as imposing any obligation on such Holder to
purchase any securities or as imposing any liabilities on the Holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
7. NOTICES. All notices and other communications provided for herein
shall be delivered or mailed by first class mail, postage prepaid, addressed to:
if to the Holder:
[ENTITY NAME AND ADDRESS]
if to the Company:
HealthExtras, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
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The address provided in this Section 7 may be modified by the Company
by providing the Holder notice in writing; provided, however, that the exercise
of any Warrant shall be effective in the manner provided in Section 1.
8. MISCELLANEOUS. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. Any provisions of this Warrant which shall be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
other jurisdiction. To the extent permitted by applicable law, the Company
waives any provision of law which shall render any provision hereof prohibited
or unenforceable in any respect. This Warrant shall be governed by the
substantive laws of the State of Delaware without reference to the choice of law
rules thereof. The headings of this Warrant are inserted for convenience only
and shall not be deemed to constitute a part hereof.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OR WARRANT. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new Warrant of like tenor and dated as of such cancellation,
in lieu of this Warrant.
10. SATURDAY, SUNDAYS, HOLIDAYS, ETC. Of the last or appointed day for
taking prior to the Expiration Date any action or the expiration of any right
required or granted herein is not a Business Day, then such action may be taken
or such right may be exercised on the next succeeding Business Day prior to the
Expiration Date.
HealthExtras, Inc.
By:
-----------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------
Title: Chief Executive Officer
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SCHEDULE I
EXERCISE OF WARRANT
-------------------
The undersigned holder of Warrant No. ____ to purchase _______ shares
of common stock of HealthExtras, Inc. hereby:
(i) exercises the Warrant to purchase _______shares of such common
stock; and
(ii)(A) submits payment for such shares in the amount of $___________:
(PLEASE CHECK AS APPLICABLE)
by the enclosed certified or bank check payable to the
--------- order of HealthExtras, Inc.; or
by wire transfer to the account of HealthExtras, Inc.
--------- Account No. ___________________________________
---------------------------------------------;
in cash; or
---------
(B) elects pursuant to Section 1.5 of the Warrant to
receive shares of Common Stock having a value equal
to the value of the Warrant calculated in accordance
with such Section 1.5; and
(iii) requests that stock certificates be registered in the name,
and delivered to the address, set forth as Exhibit A hereto.
(iv) If the Holder requests that the certificates for the Warrant
Shares be issued without a restrictive legend, please check
here ______ and attach the documentation required by the
Securities Purchase Agreement.
Date:___________________________ __________________________________
(print name)
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(address)
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(taxpayer identification no.)
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(signature)
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