Document/Exhibit Description Pages Size
1: 10-K Annual Report 58 315K
2: EX-4.F Instrument Defining the Rights of Security Holders 2 11K
9: EX-10.AA Material Contract 5 15K
10: EX-10.EE Material Contract 18 85K
11: EX-10.FF Material Contract 10 45K
12: EX-10.GG Material Contract 27 97K
13: EX-10.HH Material Contract 9 36K
3: EX-10.U Material Contract 8 23K
4: EX-10.V Material Contract 9 27K
5: EX-10.W Material Contract 1 9K
6: EX-10.X Material Contract 17 74K
7: EX-10.Y Material Contract 17 75K
8: EX-10.Z Material Contract 30 124K
14: EX-21 Subsidiaries of the Registrant 1 6K
15: EX-27 Financial Data Schedule (Pre-XBRL) 1 8K
EXHIBIT 10.y
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE OR SECURITIES LAWS
AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY
TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH EXHIBIT I REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., MIAMI TIME, July 14, 2002
No. W-25 545,455 Warrants
WARRANT TO PURCHASE 545,455 SHARES OF
COMMODORE HOLDINGS LIMITED COMMON STOCK
RESTATED WARRANT CERTIFICATE
THIS RESTATED WARRANT CERTIFICATE is made and entered into as of the
15th day of April, 1998 by and between Commodore Holdings Limited (the
"Company") and JeMJ Financial Services, Inc. (the "Warrant Holder").
WHEREAS, the Company issued a Warrant Certificate on April 26, 1995,
granting Warrant Holder the right to purchase 250,000 shares of $.01 par value
common stock (the "Common Stock") of the Company (the "Warrant Certificate") at
the initial exercise price of $6.00 per share of Common Stock;
WHEREAS, the Company amended such Warrant Certificate on November 4,
1997 to clarify certain ambiguities contained therein (the "Amendment");
WHEREAS, as a result of certain anti-dilutive events, the Company is
required to adjust the number of Warrant Shares and Exercise Price contained in
the Warrant Certificate; and
WHEREAS, the Company has determined that it is in its best interests to
restate the terms of the Warrant Certificate by cancelling such Warrant
Certificate and re-issuing this Warrant Certificate (the "Restated Warrant
Certificate") which reflects both the Amendment to the Warrant Certificate and
the adjustment in the number of Warrant Shares and Exercise Price.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the Company and the Warrant Holder hereby agree as follows:
THIS RESTATED WARRANT CERTIFICATE certifies that JeMJ Financial
Services, Inc., or its registered assigns, are the registered holders of 545,455
Warrants (the "Warrants") to purchase initially, at any time from the date
hereof until 5:30 p.m., Miami time, on July 14, 2002 ("Expiration Date"), up to
545,455 fully paid and nonassessable shares of Common Stock, of COMMODORE
HOLDINGS LIMITED, a Bermuda corporation (the "Company"), at the exercise price
(the "Exercise Price") of $2.75 per share of Common Stock upon surrender of this
Restated Warrant Certificate and payment of the Exercise Price at the office of
the Company located at 4000 Hollywood Boulevard, Suite 385, South Tower,
Hollywood, Florida 33021, or any successor office, but subject to the conditions
set forth herein and in EXHIBIT I hereto. Payment of the Exercise Price shall be
made by certified or official bank check payable to the order of the Company or
may be made by tendering an amount of Warrants for cancellation with a value as
determined by the difference between the then current market price of the
underlying shares of Common Stock as of the date of exercise less the Exercise
Price of each Warrant.
No Warrant may be exercised after 5:30 p.m., Miami time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void. If the Expiration Date shall in the
State of Florida be a holiday or a day on which banks are authorized to close,
then the Expiration Date shall mean 5:30 P.M., Miami Time, the next following
day which, in the State of Florida, is not a holiday or a day on which banks are
not authorized to close.
The Warrants evidenced by this Restated Warrant Certificate are subject
to the provisions of EXHIBIT I hereto, which EXHIBIT I is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for 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.
EXHIBIT I hereto 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 Restated
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 Restated
Warrant Certificate(s) shall not in any way change, alter, or otherwise impair
the rights of the holder as set forth in EXHIBIT I.
Upon due presentment for registration of transfer of this Restated
Warrant Certificate at the office of the Company located at 4000 Hollywood
Boulevard, Suite 385, South Tower, Hollywood, Florida 33021, or any successor
office, a new Restated Warrant Certificate or Restated Warrant Certificates of
like tenor and evidencing in the aggregate a like number of Warrants shall be
issued to the transferee(s) in exchange for this Restated Warrant Certificate,
subject to the limitations provided herein and in EXHIBIT I, without any charge
except for any tax or other governmental charge imposed in connection with such
transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Restated Warrant Certificate, the Company shall forthwith issue to the holder
hereof a new Restated 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 Restated 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 Restated Warrant Certificate which are defined
in EXHIBIT I hereto shall have the meanings assigned to them in EXHIBIT I
hereto.
IN WITNESS WHEREOF, the Company has caused this Restated Warrant
Certificate to be duly executed under its corporate seal.
Dated as of April 15, 1998.
COMMODORE HOLDINGS LIMITED
By:/S/ FREDERICK MAYER
------------------------------------
Frederick Mayer,
Vice-Chairman of the Board
Attest:
/S/ BLANCA SANTOS
------------------------
Blanca Santos, Secretary
FORM OF ELECTION TO PURCHASE
THE UNDERSIGNED hereby irrevocably elects to exercise the right,
represented by this Restated Warrant Certificate, to purchase ________ shares of
Common Stock and herewith tenders in payment for such securities a certified or
official bank check payable to the order of Commodore Holdings Limited 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_____________________
____________.
Dated:_________________________
Signature_______________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Restated Warrant
Certificate.)
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
________________________________________
Signature Guarantee
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Restated Warrant Certificate)
FOR VALUE RECEIVED ___________________ hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Restated Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint____________________
______________________ Attorney, to transfer the within
Restated Warrant Certificate on the books of the within named Company, with full
power of substitution.
Dated:__________________________
Signature_______________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Restated Warrant
Certificate.)
________________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
________________________________________
Signature Guarantee
EXHIBIT I
Section 1. EXERCISE OF WARRANT. The Warrants are exercisable at an
aggregate adjusted exercise price per share of common stock, $.01 par value per
share (the "Common Stock") of Commodore Holdings Limited (the "Company") set
forth in Section 3 hereof (subject to adjustment as provided in Section 5
hereof) payable by certified or official bank check. Upon surrender of a
Restated Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter defined)
for the shares of Common Stock purchased at the Company's principal offices in
Florida (presently located at 4000 Hollywood Boulevard, Suite 385, South Tower,
Hollywood, Florida 33021), the registered holder of a Restated Warrant
Certificate ("Holder" or "Holders") shall be entitled to receive a certificate
or certificates for the shares of Common Stock so purchased. The purchase rights
represented by each Restated Warrant Certificate are exercisable at the option
of the Holder thereof, in whole or in part (but not as to fractional shares of
the Common Stock underlying the Warrants). In the case of the purchase of less
than all the shares (the "Warrant Shares") of Common Stock purchasable under any
Restated Warrant Certificate, the Company shall cancel said Restated Warrant
Certificate upon the surrender thereof and shall execute and deliver a new
Restated Warrant Certificate of like tenor for the balance of the shares of
Common Stock purchasable thereunder.
Section 2. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants,
the issuance of certificates for shares of Common Stock shall be made forthwith
(and in any event within ten (10) business days thereafter) without charge to
the Holder thereof including, without limitation, any tax which may be payable
in respect of the issuance thereof, and such certificates shall 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
persons 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 Restated Warrant Certificates and the certificates representing the
Warrant Shares shall be executed on behalf of the Company by the manual or
facsimile signature of the then present Chairman or Vice Chairman of the Board
of Directors and also by the Secretary or by any two Directors or by any one
Director and the Secretary of the Company under its corporate seal reproduced
thereon.
Section 3. EXERCISE PRICE.
3.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise provided
in Section 5 hereof, the exercise price of each Warrant shall be $2.75 per share
of Common Stock. The adjusted exercise price shall be the price which shall
result from time to time from any and all adjustments of the initial exercise
price in accordance with the provisions of Section 5 hereof.
3.2 EXERCISE PRICE. The term "Exercise Price" as used herein shall mean
the initial exercise price or the adjusted exercise price, depending upon the
context.
Section 4. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
4.1 REPRESENTATIONS. The Holders of the Warrants agree to the
following:
(a) Each Holder understands that the Warrants, or the Warrant
Shares, have not been registered under applicable state and federal
securities laws, and that such Warrants or Warrant Shares cannot be
resold or transferred unless they are so registered, or unless such
transfer qualifies for an exemption from such registration;
(b) Each Holder is acquiring the Warrants for investment
purposes only, and not with a view towards resale or distribution;
(c) Each Holder understands that all certificates which
represent the Warrants issued to him or her will bear a legend which
incorporates these restrictions; and
(d) Each Holder is familiar with the business and financial
condition of the Company, has been provided access and an opportunity
to review all material agreements, books and records of the Company and
has been afforded an opportunity to question the executive officers of
the Company with respect to the foregoing.
4.2 RESTRICTIONS ON TRANSFER. Notwithstanding any provisions contained
in the Restated Warrant Certificate to the contrary, these Warrants shall not be
transferable and the related Warrant Shares shall not be transferable except
upon the conditions specified in this SECTION 4, which conditions are intended,
among other things, to ensure compliance with the provisions of the 1933 Act in
respect of the transfer of the Warrants or the Warrant Shares. The Holders of
the Warrants further agree that they will not (a) transfer the Warrants prior to
delivery to the Company of an opinion of the Holder's counsel (as provided for
in SECTION 4.3), which opinion shall be acceptable to counsel for the Company,
or (b) transfer the Warrant Shares prior to delivery to the Company of the
opinion of the Holder's counsel (as provided for in SECTION 4.3), which opinion
shall be acceptable to counsel for the Company, or until registration of the
Warrant Shares under the Securities Act has become effective.
4.3 OPINION OF COUNSEL. In connection with any transfer of the Warrants
or of the related Warrant Shares, the following provisions shall apply:
(a) If in the opinion of counsel, which counsel and opinion
shall be acceptable to the Company, the proposed transfer of the
Warrants or the Warrant Shares may be effected without registration of
the Warrants of the Warrant Shares under the 1933 Act, the Holders
shall be entitled to transfer the Warrants or the Warrant Shares in
accordance with the proposed method of disposition.
(b) If in the opinion of counsel, which counsel and opinion
shall be acceptable to the Company, the proposed transfer of the
Warrants or the Warrant Shares may not be effected without registration
of the Warrants or such Warrant Shares under the Securities Act, the
holder of the Warrants shall not be entitled to transfer the Warrants
or the Warrant Shares until registration is effective.
4.4 SUBSEQUENT HOLDERS. Anything contained herein to the contrary
notwithstanding, the provisions of this SECTION 4 shall be binding upon all
subsequent holders of the Warrants and the
Warrant Shares, and the Company shall not be required to issue all of any
portion of the Warrants or the Warrant Shares to such Holder unless such Holder
agrees in writing in advance of such issuance to be so bound. The provisions of
this SECTION 4 shall survive the Expiration Date.
4.5 SECURITIES ACT OF 1933 LEGEND. The Warrant and the Warrant Shares
have not been registered under the Securities Act. Upon exercise of the
Warrants, in part or in whole, the certificates representing the Warrant Shares
shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY
TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
4.6 REQUIRED REGISTRATION.
(a) DEMAND REGISTRATION. If the Company shall receive from the
Holders of a majority of the Warrant Shares at any time prior to the Expiration
Date, a written request that the Company effect any registration with respect to
all or a part of the Warrant Shares, the Company will, as soon as practicable,
use its best efforts to effect such registration (including, without limitation,
filing post-effective amendments, appropriate qualifications under applicable
blue sky or other state securities laws, and appropriate compliance with the
Securities Act); and as would permit or facilitate the sale and distribution of
all or such portion of such Warrant Shares as are specified in such request and
cause such registration to remain effective until the earlier of six months have
elapsed or all of the Warrant Shares included therein have been sold.
The Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section:
(i) In any particular jurisdiction in which the
Company would be required to execute a general consent to
service of process in effecting such registration,
qualification, or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be
required by the Securities Act;
(ii) After the Company has initiated one such
registration pursuant to this Section (counting for these
purposes only registrations which have been declared or
ordered effective and pursuant to which all securities have
been sold); or
(iii) During the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the
date of filing of, and ending on a date one hundred eighty
(180) days after the effective date of, a Company-initiated
registration; provided that
the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become
effective.
Subject to the foregoing clauses (i) through (iii), the
Company shall file a registration statement covering the Warrant Shares so
requested to be registered as soon as practicable after receipt of the written
request or requests of the Holders; PROVIDED, HOWEVER, that if in the good faith
judgment of the Board of Directors of the Company, such registration would be
seriously detrimental to the Company and the Board of Directors of the Company
concludes, as a result, that it is essential to defer the filing of such
registration statement at such time, and the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company for such registration statement to be filed
in the near future and that it is, therefore, essential to defer the filing of
such registration statement, then the Company shall have the right to defer such
filing for the period during which such disclosure would be seriously
detrimental, provided that (except as provided in clause (iii) above) the
Company may not defer the filing for a period of more than one hundred eighty
(180) days after receipt of the request of the Holders, and, provided further,
that the Company shall not defer its obligation in this manner more than once in
any twelve (12) month period.
If the Company or other persons shall request inclusion in any
registration pursuant to this Section of securities being sold for its or their
own accounts, the Holders shall offer to include such securities in the
underwriting and may condition such offer on their acceptance of the further
applicable provisions of this Section. The Company shall (together with all
Holders and other persons proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for such underwriting
by a majority in interest of the Holders, which underwriters are reasonably
acceptable to the Company.
(b) PIGGYBACK REGISTRATION. If the Company shall determine to
register any of its securities either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights (other than pursuant to this Section), other than a registration relating
solely to employee benefit plans, or a registration relating solely to a Rule
145 transaction, or a registration on any registration form that does not permit
secondary sales, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) use its best efforts to include in such
registration (and any related qualification under blue sky
laws or other compliance), and in any underwriting involved
therein, all the Warrant Shares specified in a written request
or requests, made by any Holder and received by the Company
within twenty (20) days after the written notice from the
Company described in clause (i) above is mailed or delivered
by the Company. Such written request may specify all or a part
of a Holder's Warrant Shares.
The Holders agree to sell their Warrant Shares on the same terms as the
sale of other shares of Common Stock in the offering and agree to execute such
documents as shall be reasonably requested by the Company or its counsel in
connection with such offering.
If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to this
Section. In such event, the right of any Holder to registration pursuant to this
Section shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Warrant Shares in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders of securities of the Company with registration rights to
participate therein distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected by the Company.
(c) EXPENSES OF REGISTRATION. All registration expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section (including filing fees, printing expenses, blue sky fees, and fees and
expenses of the Company's counsel and accountants) shall be borne by the
Company. All expenses incurred by the Holders for their own counsel or
accountants and all selling expenses relating to securities so registered
(including underwriter discounts and commissions) shall be borne by the holders
of securities so registered on the basis of the number of shares of securities
so registered on their behalf.
(d). INDEMNIFICATION.
(i) The Company will indemnify each Holder, each of its
officers, directors and partners, legal counsel, and accountants and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
with respect to which registration, qualification, or compliance has been
effected pursuant to this Section, and each underwriter, if any, and each person
who controls within the meaning of Section 15 of the Securities Act any
underwriter, against all expenses, claims, losses, damages, and liabilities (or
actions, proceedings, or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document (including any
related registration statement, notification, or the like), incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such Holder, each of its officers, directors, partners, legal
counsel, and accountants and each person controlling such Holder, each such
underwriter, and each person who controls any such underwriter, for any legal
and any other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability, or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability, or expense arises out of or is based on
any untrue statement or omission based upon written information furnished to the
Company by such Holder or underwriter and stated to be specifically for use
therein. It is agreed that the indemnity agreement contained in this Section
shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the
consent of the Company (which consent has not been unreasonably withheld).
(ii) Each Holder will, if Warrant Shares held by him are
included in the securities as to which such registration, qualification, or
compliance is being effected, indemnify the Company, each of its directors,
officers, partners, legal counsel, and accountants and each of its directors,
officers, partners, legal counsel, and accountants and each underwriter, if any,
of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, each other such Holder and other Shareholder,
and each of their officers, directors, and partners, and each person controlling
such Holder or other Shareholder, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular, or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such Holders, other Shareholders,
directors, officers, partners, legal counsel, and accountants, persons,
underwriters, or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability, or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus, offering
circular, or other document in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use therein provided, however, that the obligations of such
Holder hereunder shall not apply to amounts paid in settlement of any such
claims, losses, damages, or liabilities (or actions in respect thereof) if such
settlement is effected without the consent of such Holder (which consent shall
not be unreasonably withheld), and provided that in no event shall any indemnity
under this Section exceed the gross proceeds from the offering received by such
Holder.
Section 5. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SHARES.
5.1 SUBDIVISION AND COMBINATION. In case the Company shall at any time:
(i) subdivide the outstanding shares of Common Stock into a larger number of
shares, (ii) declare a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, or (iii) issue by reclassification of its
Common Stock any shares of its capital stock, the Exercise Price in effect
immediately after the record date for such dividend or distribution on the
effective date of such subdivision, combination or reclassification shall be
adjusted so that it shall equal the price determined by multiplying the Exercise
Price in effect immediately prior thereto by a fraction, of which the numerator
shall be the number of shares of Common Stock outstanding immediately before
such dividend, distribution, subdivision, combination or reclassification, and
of which the denominator shall be the number of shares of Common Stock
outstanding immediately after such dividend, distribution, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event specified above shall occur. Notwithstanding the foregoing,
in the event the Company shall combine its outstanding shares of Common Stock
into a smaller number of shares, there shall be no adjustment in the Exercise
Price.
5.2 ADJUSTMENT IN NUMBER OF WARRANT SHARES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 5, the number of
Warrant Shares issuable upon the exercise of each Warrant shall be adjusted to
the nearest full share by multiplying a number equal to
the Exercise Price in effect immediately prior to such adjustment by the number
of Warrant Shares issuable upon exercise of the Warrants immediately prior to
such adjustment and dividing the product so obtained by the adjusted Exercise
Price.
5.3 DEFINITION OF COMMON STOCK. For the purpose of this Agreement, the
term "Common Stock" shall mean: (i) the class of stock designated as Common
Stock in the Memorandum of Association of the Company as may be amended as of
the date hereof, or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value.
5.4 MERGER OR CONSOLIDATION. (a) In case the Company after the date
hereof: (i) shall consolidate with or merge into any other person and shall not
be the continuing or surviving corporation of such consolidation or merger, or
(ii) shall permit any other person to consolidate with or merge into the Company
and the Company shall be the continuing or surviving person but, in connection
with such consolidation or merger, the Common Stock shall be changed into or
exchanged for stock or other securities of any other person or cash or any other
property, or (iii) shall transfer all or substantially all of its properties or
assets to any other person, or (iv) shall effect a capital reorganization or
reclassification of the Common Stock (other than a capital reorganization or
reclassification resulting in the issue of additional shares of Common Stock for
which adjustment in the Exercise Price is provided in this Section 5), then, and
in the case of each such transaction, proper provision shall be made so that,
upon the basis and the terms and in the manner provided in this Agreement and
the Warrants, the Holders of the Warrants, upon the exercise thereof at any time
after the consummation of such transaction, shall be entitled to receive (at the
aggregate Exercise Price in effect at the time of such consummation for all
Common Stock issuable upon such exercise immediately prior to such
consummation), in lieu of the Common Stock, the highest amount of securities,
cash or other property to which such Holders would actually have been entitled
as shareholders upon such consummation if such Holders had exercised the rights
represented by the Warrants immediately prior thereto, subject to adjustments
(subsequent to such consummation) as nearly equivalent as possible to the
adjustments provided for in this Section 5.
5.5 ASSUMPTION OF OBLIGATIONS. Notwithstanding anything contained in
the Warrants to the contrary, the Company will not effect any of the
transactions described in clauses (i) through (iv) of Section 5.4 unless, prior
to the consummation thereof, each person (other than the Company) which may be
required to deliver any stock, securities, cash or property upon the exercise of
the Warrants as provided herein shall assume, by written instrument delivered to
the Holders of the Warrants, (a) the obligations of the Company under the
Warrants (including this EXHIBIT I) (and if the Company shall survive the
consummation of such transaction, such assumption shall be in addition to, and
shall not release the Company from, any continuing obligations of the Company
under this EXHIBIT I and the Warrants) and (b) the obligation to deliver to such
Holders such shares of stock, securities, cash or property as, in accordance
with the foregoing provisions of this Section 5, such Holders may be entitled to
receive, and such person shall have similarly delivered to such Holders an
opinion of counsel for such person stating that the Warrants (including this
EXHIBIT I) shall thereafter continue in full force and effect and the terms
hereof (including, without limitation, all of the provisions of this Section 5)
shall be applicable to the stock, securities, cash or property which such person
may be required to deliver upon any exercise of the Warrants or the exercise of
any rights pursuant hereto.
5.6 DIVIDENDS AND OTHER DISTRIBUTIONS. If, at any time or from time to
time after the date of this Warrant, the Company shall issue or distribute to
the holders of shares of Common Stock, evidences of its indebtedness, any other
securities of the Company or any cash, property or other assets (excluding a
subdivision, combination or reclassification, or dividend or distribution
payable in shares of Common Stock, referred to in Section 5.1, and also
excluding cash dividends or cash distributions paid out of net profits legally
available therefor if the full amount thereof, together with the value of other
dividends and distributions made substantially concurrently therewith or
pursuant to a plan which includes payment thereof, is equivalent to not more
than 5% of the Company's net worth) (any such non-excluded event being herein
called a "Special Dividend"), the Exercise Price shall be adjusted by
multiplying the Exercise Price then in effect by a fraction, the numerator of
which shall be the then current market price of the Common Stock (defined as the
average for the thirty consecutive business days immediately prior to the record
date of the daily closing price of the Common Stock as reported by the national
securities exchange upon which the Common Stock is then listed or if not listed
on any such exchange, the average of the closing prices as reported by the
National Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") Stock Market's National Market, or if not then listed on the NASDAQ
National Market, the average of the highest reported bid and lowest reported
asked prices as reported by the NASDAQ, or if not then publicly traded, as the
fair market price as determined by the Company's Board of Directors) less the
fair market value (as determined by the Company's Board of Directors) of the
evidences of indebtedness, cash, securities or property, or other assets issued
or distributed in such Special Dividend applicable to one share of Common Stock
and the denominator of which shall be such then current market price per share
of Common Stock. An adjustment made pursuant to this Section 5.6 shall become
effective immediately after the record date of any such Special Dividend.
5.7 OTHER DILUTIVE EVENTS. In case any event shall occur as to which
the other provisions of this Section 5 are similar to, but not strictly
applicable but as to which the failure to make any adjustment would not fairly
protect the purchase rights represented by the Warrants (including this EXHIBIT
I) in accordance with the essential intent and principles hereof then, in each
such case, the Holders collectively may appoint a firm of independent public
accountants of recognized national standing reasonably acceptable to the
Company, which shall give their opinion as to the adjustment, if any, on a basis
consistent with the essential intent and principles established herein,
necessary to preserve the purchase rights represented by the Warrants (including
this EXHIBIT I). Upon receipt of such opinion the Company will promptly mail a
copy thereof to the Holders and shall make the adjustments described therein.
The fees and expenses of such independent public accountants shall be borne by
the Company. If the Company shall at any time or from time to time hereafter:
(i) sell or issue any additional shares of its Common Stock (other than upon
exercise of the Warrants) and any other warrant issued upon exchange of the
Warrants, for a consideration per share less than the Exercise Price in effect
immediately prior to such sale or issuance, or without consideration; or (ii)
sell or issue any rights or options to purchase Common Stock of the Company or
sell or issue any securities of any kind convertible into shares of Common Stock
of the Company in which the option, purchase, exercise or conversion price (or
consideration) per share, as the case may be, is less than the Exercise Price in
effect immediately prior to such sale or issuance, then and in each such case,
the Exercise Price in effect immediately prior to such sale or issuance shall
immediately and automatically be reduced to the consideration per share received
by the Company upon such sale or issuance as specified in (i) above or to the
option, purchase, exercise or conversion price (or consideration) per share upon
such sale or issuance as specified in (ii) above, as the case may be.
5.8 NOTICE OF ADJUSTMENT EVENTS. Whenever the Company contemplates the
occurrence of an event which would give rise to adjustments under this Section
5, the Company shall mail to each Holder, at least thirty (30) days prior to the
record date with resect to such event or, if no record date shall be
established, at least thirty (30) days prior to such event, a notice specifying:
(i) the nature of the contemplated event, (ii) the date of which any such record
is to be taken for the purpose of such event, (iii) the date on which such event
is expected to become effective and (iv) the time, if any is to be fixed, when
the holders of record of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable in connection with
such event.
5.9 NOTICE OF ADJUSTMENTS. Whenever the Exercise Price or the kind of
securities or property issuable upon exercise of the Warrants, or both, shall be
adjusted pursuant to this Section 5, the Company shall make a certificate signed
by its President or a Vice President and by its Chief Financial Officer,
Secretary or Assistant Secretary, setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method of which such
adjustment was calculated (including a description of the basis on which the
Company made any determination hereunder), and the Exercise Price and the kind
of securities or property issuable upon exercise of the Warrants after giving
effect to such adjustment, and shall cause copies of such certificate to be
mailed (by first class mail postage prepaid) to each Holder promptly after each
adjustment.
5.10 PRESERVATION OF RIGHTS. The Company will not, by amendment of its
Memorandum of Association or through any consolidation, merger, reorganization,
transfer of assets, dissolution, 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 the Warrants (including this EXHIBIT I) or the rights represented
thereby, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders of the Warrants
against dilution or other impairment.
5.11 WHEN NO ADJUSTMENT REQUIRED. No adjustment in the Exercise Price
shall be required unless such adjustment would require an increase or decrease
of at least $0.05 per share of Common Stock; PROVIDED, HOWEVER, that any
adjustments which by reason of this Section 5.11 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment;
PROVIDED FURTHER, however, that adjustments shall be required and made in
accordance with the provisions of this Section 5 (other than this Section 5.11)
not later than such time as may be required in order to preserve the tax-free
nature of a distribution to the Holders of the Warrants. All calculations under
this Section 5 shall be made to the nearest cent or to the nearest 1/100th of a
share, as the case may be. Anything in this Section 5 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Exercise Price, in addition to those required by this Section 5, as it in its
discretion shall deem to be advisable in order that any stock dividend,
subdivision of shares or distribution of rights to purchase stock or securities
convertible or exchangeable for stock hereafter made by the Company to its
shareholders shall not be taxable.
Section 6. EXCHANGE AND REPLACEMENT OF RESTATED WARRANT CERTIFICATES.
Each Restated 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 Restated Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of Warrant
Shares 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 Restated 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 Warrants, if mutilated, the Company will make and deliver a new Restated
Warrant Certificate of like tenor, in lieu thereof.
Section 7. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not
be required to issue certificates representing fractions of shares of Common
Stock 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 of Common Stock.
Section 8. RESERVATION 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, 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 of Common Stock shall be duly and
validly issued, fully paid, nonassessable and not subject to the preemptive
rights of any shareholder.
Section 9. NOTICES TO WARRANT HOLDERS. Nothing contained in this
EXHIBIT I shall be construed as conferring upon the 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:
(a) the Company shall take a record of the holders of
its shares of Common Stock for the purpose of determining the
holders thereof who are entitled to receive any dividend or
other distribution payable;
(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 voluntary or involuntary dissolution,
liquidation or winding-up of the Company (other than in
connection with a consolidation or merger) or any capital
reorganization, recapitalization or reclassification or a sale
of all or substantially all of its property, assets and
business as an entirety shall be proposed.
then, in any one or more of said events, the Company will mail to each Holder of
a Warrant a notice specifying (i) the date or expected date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and the amount and character of such dividend, distribution or
right, and (ii) the date or expected date on which any such reorganization,
reclassification, recapitalization, consolidation, merger, sale, 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 record of Common Stock shall be entitled to
exchange their shares of Common Stock for the securities or other property
deliverable upon such reorganization, reclassification, recapitalization,
consolidation, merger, sale, dissolution, liquidation or winding-up. Such notice
shall be mailed at least thirty (30) days prior to the date therein specified.
Section 10. NOTICES.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly given or made at the
time delivered by hand if personally delivered; five calendar days after mailing
if sent by registered or certified mail; when receipt is confirmed, if
telecopied; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee):
(a) If to the 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 1
hereof or to such other address as the Company may designate by notice
to the Holders.
Section 11. SUCCESSORS. All the covenants and provisions of this
EXHIBIT I shall be binding upon and inure to the benefit of the Company, the
Holders and their respective successors and assigns hereunder.
Section 12. GOVERNING LAW. This EXHIBIT I and each Warrant shall be
governed and construed in accordance with the laws of the State of Florida
applicable to contracts made and performed in the State of Florida without
giving effect to the principles of conflicts of law thereof.
Section 13. ENTIRE AGREEMENT; MODIFICATION. This EXHIBIT I (including
the Restated Warrant Certificate and the Subscription Agreements with respect to
registration rights) contains the entire understanding between the parties
hereto with respect to the subject matter hereof and may not be modified or
amended except by a writing duly signed by the party against whom enforcement of
the modification or amendment is sought.
Section 14. SEVERABILITY. If any provision of this EXHIBIT I shall be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provision of this EXHIBIT I.
Section 15. CAPTIONS. The caption headings of the Sections of this
EXHIBIT I are for convenience of reference only and are not intended to be, nor
should they be construed as, part of this EXHIBIT I and shall be given no
substantive effect.
Section 16. BENEFITS OF THIS EXHIBIT I. Nothing in this EXHIBIT I shall
be construed to give any person or corporation other than the Company and the
registered Holder(s) of the Restated
Warrant Certificates or Warrant Shares any legal or equitable right, remedy or
claim under this EXHIBIT I; and this EXHIBIT I shall be for the sole and
exclusive benefit of the Company and any registered Holder(s) of the Restated
Warrant Certificates or Warrant Shares.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 7/14/02 | | 1 | | 2 | | | None on these Dates |
| Filed on: | | 12/29/98 |
| For Period End: | | 9/30/98 |
| | 4/15/98 | | 3 |
| | 11/4/97 | | 1 |
| | 4/26/95 | | 1 |
| List all Filings |
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