NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE
UPON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SHARES
ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, PLEDGED,
TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR IN A
TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER
THE PROVISIONS OF THE SECURITIES ACT.
STOCK PURCHASE WARRANT
To Purchase 195,771 Shares of Common Stock of
CAMBEX CORPORATION
THIS CERTIFIES that, for value received, Ladenburg Thalmann & Co. Inc.,
(the "Holder"), is entitled, upon the terms and subject to the
conditions hereinafter set forth, at any time on or after July 20, 2000
(the "Issuance Date") and on or prior to the close of business on July
20, 2003 (the "Termination Date") but not thereafter, to subscribe for
and purchase from Cambex Corporation, a Massachusetts corporation
(the "Company"), up to 195,771 shares (the "Warrant Shares") of
Common Stock, $0.10 par value, of the Company (the "Common
Stock"). The purchase price of one share of Common Stock (the
"Exercise Price") under this Warrant shall be $2.9376 (115% of the
average of the VWAP on the five (5) business days immediately
preceding the initial closing date of that certain Common Stock
Purchase Agreement, dated July 6, 2000, by and between the
Company and Thumberland Limited). The Exercise Price and the
number of shares for which the Warrant is exercisable shall be subject
to adjustment as provided herein. In the event of any conflict between
the terms of this Warrant and terms applicable to warrants included in
that certain Common Stock Purchase Agreement, dated July 14, 2000,
between Thumberland Limited and the Company (the "Purchase
Agreement"), such terms included in the Purchase Agreement shall
control (even though the Holder of this Warrant is not a party to the
Purchase Agreement). Capitalized terms used and not otherwise
defined herein shall have the meanings set forth for such terms in the
Purchase Agreement.
Title to Warrant. Prior to the Termination Date hereof and subject to
compliance with applicable laws, this Warrant and all rights hereunder
are transferable, in whole or in part, at the office or agency of the
Company by the holder hereof in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form
annexed hereto properly endorsed.
Authorization of Shares. The Company covenants that all shares of
Common Stock which may be issued upon the exercise of rights
represented by this Warrant will, upon exercise of the rights represented
by this Warrant in accordance with its terms, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and
charges in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Exercise of Warrant. Except as provided in Section 4 herein, exercise of
the purchase rights represented by this Warrant may be made at any
time or times on or after the Issuance Date and before the close of
business on the Termination Date hereof; provided, however, in the
event that the Purchase Agreement is terminated by the Company for
the Purchaser's failure to fund a Draw Down, the Holder may only
exercise a pro-rata portion of this Warrant, based upon the portion of
the maximum amount that may be purchased pursuant to the Purchase
Agreement and that has not been previously honored. Exercise of this
Warrant or any part hereof shall be effected by the surrender of this
Warrant and the Notice of Exercise Form annexed hereto duly executed,
at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the registered
holder hereof at the address of such holder appearing on the books of the
Company) and upon payment of the Exercise Price of the shares thereby
purchased by wire transfer or cashier's check drawn on a United States
bank, the holder of this Warrant shall be entitled to receive a certificate
for the number of shares of Common Stock so purchased. Certificates
for shares purchased hereunder shall be delivered to the holder hereof
within three (3) Trading Days after the date on which this Warrant shall
have been exercised as aforesaid. This Warrant shall be deemed to have
been exercised and such certificate or certificates shall be deemed to
have been issued, and Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of
such shares for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price and all taxes
required to be paid by Holder, if any, pursuant to Section 5 prior to the
issuance of such shares, have been paid. If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to Holder
a new Warrant evidencing the rights of Holder to purchase the
unpurchased shares of Common Stock called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant.
If a registration statement is not effective for the resale of Warrant
Shares at any time after one year from the date of this Warrant, this
Warrant may also be exercised by means of a "cashless exercise" in
which the holder shall be entitled to receive a certificate for the number
of shares equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where:
(A) = the average of the high and low trading prices per share of Common
Stock on the Trading Day preceding the date of such election;
(B) = the Exercise Price of the Warrants; and
(X) = the number of shares issuable upon exercise of the Warrants in
accordance with the terms of this Warrant.
No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash
adjustment (which may be effected as a reduction of the amount paid by
the Holder upon such exercise) in respect of such final fraction in an
amount equal to the Exercise Price.
Charges, Taxes and Expenses. Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without
charge to the holder hereof for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of
which taxes and expenses shall be paid by the Company, and such
certificates shall be issued in the name of the holder of this Warrant or in
such name or names as may be directed by the holder of this Warrant;
provided, however, that in the event certificates for shares of Common
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by
the holder hereof; and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
Closing of Books. The Company will not close its shareholder books or
records in any manner which prevents the timely exercise of this
Warrant.
Transfer, Division and Combination. The Holder acknowledges that this
Warrant and the Warrant Shares have not been registered under the
Securities Act or applicable state law. The Holder agrees, by acceptance
of this Warrant, (i) that no sale, transfer or distribution of this Warrant
or the Warrant Shares shall be made except in compliance with the
Securities Act and the rules and regulations promulgated thereunder,
including, without limitation, any applicable prospectus delivery
requirements and (ii) that if distribution of this Warrant or any Warrant
Shares is proposed to be made by it otherwise than by delivery of a
prospectus meeting the requirements of Section 10 of the Securities Act,
such action shall be taken only after submission to the Company of an
opinion of counsel, reasonably satisfactory in form and substances to the
Company's counsel, to the effect that the proposed distribution will not
be in violation of the Securities Act or applicable state law. If the
Company reasonably determines that the proposed assignment is
permitted pursuant to the provisions hereof, upon surrender by the
Holder of this Warrant to the Company at its principal office with the
Assignment Form attached hereto duly completed, the Company shall
register the assignment of this Warrant in accordance with the
information contained in the Assignment Form and execute and deliver a
new Warrant or Warrants in the name of the assignee or assignees
named in such Assignment Form (and, if applicable, a new Warrant in
the name of the Holder evidencing any remaining portion of the Warrant
not theretofore exercised, transferred or assigned) and this Warrant
shall promptly be canceled. Conditions to the transfer of this Warrant
or any portion thereof shall be that the proposed transferee deliver to the
Company his or its written agreement to accept and be bound by all of
the terms and conditions of this Warrant. The term "Warrant" as used
herein includes any Warrants into which this Warrant may be divided or
exchanged.
(b) This Warrant may be divided or combined with
other Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by Holder or
its agent or attorney. Subject to compliance with Section 7(a), as to any
transfer which may be involved in such division or combination, the
Company shall execute and deliver a new Warrant or Warrants in exchange
for the Warrant or Warrants to be divided or combined in accordance with
such notice.
(c) The Company shall prepare, issue and deliver
at its own expense (other than transfer taxes) the new Warrant or Warrants
under this Section 7.
(d) The Company agrees to maintain, at its
aforesaid office, books for the registration and the registration of transfer of
the Warrants.
No Rights as Shareholder until Exercise. This Warrant does not confer
upon the Holder any rights as a shareholder of the Company, either at
law or in equity. The rights of the Holder are limited to those expressed
herein and the Holder, by acceptance hereof, consents to and agrees to
be bound by and to comply with all the provisions of this Warrant. Each
Holder, by acceptance of this Warrant, agrees that the Company and its
transfer agent, if any, may, prior to any presentation of this Warrant for
registration of transfer, deem and treat the person in whose name this
Warrant is registered as the absolute, true and lawful owner of this
Warrant for all purposes whatsoever and neither the Company nor any
transfer agent shall be affected by any notice to the contrary.
Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant or any stock certificate relating to the Warrant Shares, and in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which shall not include the posting of any bond), and
upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in lieu of such
Warrant or stock certificate.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day
not a Saturday, Sunday or legal holiday.
Adjustments of Exercise Price and Number of Warrant Shares. (a)
Stock Splits, etc. The number and kind of securities purchasable upon
the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time upon the happening of any of the
following. In case the Company shall (i) pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock to
holders of its outstanding Common Stock, (ii) subdivide its outstanding
shares of Common Stock into a greater number of shares of Common
Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then the number
of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the holder of this
Warrant shall be entitled to purchase the kind and number of Warrant
Shares or other securities of the Company which he would have owned
or have been entitled to purchase had such Warrant been exercised in
advance thereof. Upon each such adjustment of the kind and number of
Warrant Shares or other securities of the Company which are
purchasable hereunder, the holder of this Warrant shall thereafter be
entitled to purchase the number of Warrant Shares or other securities
resulting from such adjustment at an Exercise Price per Warrant Share or
other security obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares
purchasable pursuant hereto immediately prior to such adjustment and
dividing by the number of Warrant Shares or other securities of the
Company resulting from such adjustment. An adjustment made
pursuant to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
(b) Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets. In case the Company shall
reorganize its capital, reclassify its capital stock, consolidate or merge with
or into another corporation (where the Company is not the surviving corporation
or where there is a change in or distribution with respect to the Common
Stock of the Company), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another corporation and,
pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the
successor or acquiring corporation, or any cash, shares of stock or other
securities or property of any nature whatsoever (including warrants or other
subscription or purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation ("Other Property"), are to be received
by or distributed to the holders of Common Stock of the Company, then
Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the number of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and Other
Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume
the due and punctual observance and performance of each and every
covenant and condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined in good faith by
resolution of the Board of Directors of the Company) in order to provide for
adjustments of shares of Common Stock for which this Warrant is exercisable
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 11. For purposes of this Section 11, "common stock of the
successor or acquiring corporation" shall include stock of such corporation of
any class which is not preferred as to dividends or assets over any other class
of stock of such corporation and which is not subject to redemption and shall
also include any evidences of indebtedness, shares of stock or other securities
which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 11 shall similarly
apply to successive reorganizations, reclassifications, mergers, consolidations
or disposition of assets.
Voluntary Adjustment by the Company. The Company may at any time
during the term of this Warrant, reduce the then current Exercise Price
to any amount and for any period of time deemed appropriate by
resolution of the Board of Directors of the Company.
Notice of Adjustment. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the
exercise of this Warrant or the Exercise Price is adjusted, as herein
provided, the Company shall promptly mail by registered or certified
mail, return receipt requested, to the holder of this Warrant notice of
such adjustment or adjustments setting forth the number of Warrant
Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and
other securities or property) after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such notice, in the
absence of manifest error, shall be conclusive evidence of the correctness
of such adjustment.
Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive a dividend
or other distribution, or any right to subscribe for or purchase any evidences
of its indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any sale,
transfer or other disposition of all or substantially all the property, assets
or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i)
at least 30 days' prior written notice of the date on which a record date shall
be selected for such dividend, distribution or right or for determining rights
to vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 30
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such disposition, dissolution, liquidation or
winding up.
Each such written notice shall be sufficiently given if addressed to Holder at
the last address of Holder appearing on the books of the Company and
delivered in accordance with Section 16(d).
Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under
this Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the
necessary certificates for the Warrant Shares upon the exercise of the
purchase rights under this Warrant. The Company will take all such
reasonable action as may be necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Principal
Market upon which the Common Stock may be listed.
The Company shall not by any action, including,
without limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, 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 this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of Holder against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the
amount payable therefor upon such exercise immediately prior to such
increase in par value, (b) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of Common Stock upon the exercise of this
Warrant, and (c) use reasonable efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its obligations
under this Warrant.
Before taking any action which would cause an
adjustment reducing the current Exercise Price below the then par value, if
any, of the shares of Common Stock issuable upon exercise of the Warrants,
the Company shall take any corporate action which may be necessary in
order that the Company may validly and legally issue fully paid and non-
assessable shares of such Common Stock at such adjusted Exercise Price.
Before taking any action which would result in an
adjustment in the number of shares of Common Stock for which this Warrant
is exercisable or in the Exercise Price, the Company shall obtain all such
authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction
thereof.
Miscellaneous.
Jurisdiction. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a
contract under the laws of New York without regard to its conflict of law
principles or rules, and be subject to arbitration pursuant to the terms set
forth in the Purchase Agreement.
Restrictions. The holder hereof acknowledges that the
Warrant Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal securities
laws.
Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice Holder's rights, powers or
remedies, notwithstanding all rights hereunder terminate on the Termination
Date hereof. If the Company willfully fails to comply with any material
provision of this Warrant, the Company shall pay to Holder such amounts as
shall be sufficient to cover any costs and expenses including, but not limited
to, reasonable attorneys' fees, including those of appellate proceedings,
incurred by Holder in collecting any amounts due pursuant hereto or in
otherwise enforcing any of its rights, powers or remedies hereunder.
Notices. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement.
Limitation of Liability. No provision hereof, in the absence of
affirmative action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of Holder hereof, shall give rise
to any liability of Holder for the purchase price of any Common Stock or as a
stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
Remedies. Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees
that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and
hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
Successors and Assigns. Subject to applicable securities laws,
this Warrant and the rights and obligations evidenced hereby shall inure to
the benefit of and be binding upon the successors of the Company and the
successors and permitted assigns of Holder. The provisions of this Warrant
are intended to be for the benefit of all Holders from time to time of this
Warrant and shall be enforceable by any such Holder.
Amendment. This Warrant may be modified or amended or
the provisions hereof waived with the written consent of the Company and
the Holder.
Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
Counterparts. This Warrant may be
executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and shall
become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being
understood that all parties need not sign the same counterpart.
Execution may be made by delivery by facsimile.
IN WITNESS WHEREOF, the Company has caused this
Warrant to be executed by its officer thereunto duly authorized.
Dated: July 14, 2000
CAMBEX CORPORATION
By: /s/ Joseph Kruy
Name: Joseph Kruy
Its: Chairman, President and CEO
Agreed to and accepted:
LADENBURG THALMANN & CO. INC.
By: /s/ Joseph A. Smith
Name: Joseph A. Smith
Title: Managing Director
NOTICE OF EXERCISE
To: Cambex Corporation
(3) The undersigned hereby elects to purchase ________
shares of Common Stock (the "Common Stock"), of Cambex Corporation
pursuant to the terms of the attached Warrant, and tenders herewith payment
of the exercise price in full, together with all applicable transfer taxes, if
any.
(4) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other
name as is specified below:
_______________________________
(Name)
_______________________________
(Address)
_______________________________
Dated:
______________________________
Signature
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all
rights evidenced thereby are hereby assigned to
_______________________________________________ whose address is
______________________________________________________________
_.
______________________________________________________________
_
Dated:
______________, _______
Holder's Signature:
_____________________________
Holder's Address:
_____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the
name as it appears on the face of the Warrant, without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank or
trust company. Officers of corporations and those acting in an fiduciary or
other representative capacity should file proper evidence of authority to
assign the foregoing Warrant.