NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT AS PROVIDED HEREIN. THE HOLDER OF THIS WARRANT AND THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
Warrant No. N-2
WARRANT
TO
PURCHASE SHARES OF COMMON STOCK
OF
NATIONWIDE STAFFING, INC.
This Warrant effective as of February 12, 1997 (this "Warrant") certifies
that, for good and valuable consideration, Nationwide Staffing, Inc., a Delaware
corporation (the "Company"), grants to Sabrina A. McTopy and, together with any
transferee of this Warrant or Warrant Shares (as defined below) (the
"Warrantholder" or "Warrantholders"), subject to the terms and conditions set
forth herein, the right to subscribe for and purchase from the Company 5,000
shares (the "Warrant Shares") of the Company's common stock ("Common Stock"),
during the period from and after 9:00 a.m., Houston, Texas time on the first
anniversary of the date that the Company consummates the initial public offering
of its securities (the "IPO") pursuant to the Securities Act of 1933, as amended
(the "Initial Exercise Date") and to and including 5:00 p.m. Houston, Texas time
on the date that is four years after the Initial Exercise Date (the "Expiration
Date") at a purchase price (the "Exercise Price") equal to the lesser of (i)
$8.00 per share; or (ii) 60% of the initial per share public offering price of
common stock sold to the public in the IPO. The Warrant Shares shall be
identical (in terms of rights and features) to the shares of Common Stock issued
by the Company in the IPO and shall be equivalent to 5,000 shares of Common
Stock issued in the IPO. The Exercise Price and the number of Warrant Shares are
subject to adjustment from time to time after the consummation date of the IPO
(the "IPO Date"), as provided in Section 5. The Exercise Price may be paid (i)
in cash, by certified or official bank check
payable to the order of the Company; or (ii) by the exercise of the Warrants for
"Net Warrant Shares." The number of Net Warrant Shares will be determined as
described by the following formula: Net Warrant Shares = [WS x (MP-EP)]/MP. "WS"
is the number of Warrant Shares issuable upon exercise of the Warrant or portion
of the Warrant in question. "EP" shall mean the Exercise Price. "MP" is the
Market Price of the Common Stock on the last trading day preceding the date of
the request to exercise the Warrant. "Market Price" on any day shall mean the
average of the closing prices on such day of the Common Stock on all domestic
exchanges on which the Common Stock is then listed, or, if there shall have been
no sales on any such exchange on such day, the average of the highest bid and
lowest asked prices on all such exchanges at the end of such day, or, if the
Common Stock shall not be so listed, the average of the representative bid and
asked prices quoted in the NASDAQ National Market System as of 3:30 P.M., New
York time, on such day, or if the Common Stock shall not be quoted in the NASDAQ
National Market System, the average of the high and low bid and asked prices on
such day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization.
1. DURATION AND EXERCISE OF WARRANT, LIMITATION ON EXERCISE; PAYMENT OF
TAXES.
1.1 DURATION AND EXERCISE OF WARRANT. The rights represented by this
Warrant may be exercised by the Warrantholder of record, in whole, or from time
to time in part (but covering at least the greater of 1,000 shares or the
remaining unexercised portion of this Warrant), by surrender of this Warrant,
accompanied by the Exercise Form annexed hereto (the "Exercise Form") duly
executed by the Warrantholder of record and specifying the number of Warrant
Shares to be purchased, to the Company at the office of the Company located at
1100 Louisiana, Suite 3535, Houston, Texas 77002 (or such other office or agency
as it may designate by notice to the Warrantholder at the address of such
Warrantholder appearing on the books of the Company) during normal business
hours on any day (a "Business Day") other than a Saturday, Sunday or a day on
which the Company is otherwise closed for business (a "Nonbusiness Day") on or
after 9:00 a.m., Houston, Texas time on the Initial Exercise Date but not later
than 5:00 p.m. on the Expiration Date (or 5:00 p.m. on the next succeeding
Business Day, if the Expiration Date is a Nonbusiness Day), delivery of payment
to the Company of the Exercise Price for the number of Warrant Shares specified
in the Exercise Form, payable in cash or certified bank check, and such
documentation as to the identity and authority of the Warrantholder as the
Company may reasonably request. Such Warrant Shares shall be deemed by the
Company to be issued to the Warrantholder that is the record holder of such
Warrant Shares as of the close of business on the date on which this Warrant
shall
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have been surrendered and payment made for the Warrant Shares as aforesaid.
Certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Warrantholder as promptly as practicable, and in any event
within 5 business days, thereafter. The stock certifi of the Warrantholder or,
if permitted by subsection 1.4 and in accordance with the provisions thereof,
such other name as shall be designated in the Exercise Form. If this Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of the certificates for the Warrant Shares, deliver to the
Warrantholder a new Warrant evidencing the rights to purchase the remaining
Warrant Shares, which new Warrant shall in all other respects be identical with
this Warrant. No adjustments or payments shall be made on or in respect of
Warrant Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date as of
which the Warrantholder shall be deemed to be the record holder of such Warrant
Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 p.m. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to Section 1.1, shall cease to be exercisable and shall become void and
all rights of the Warrantholder hereunder shall cease. This Warrant shall not be
exercisable and no Warrant Shares shall be issued hereunder, prior to 9:00 a.m.
Houston, Texas time on the Initial Exercise Date.
1.3 PAYMENT OF TAXES. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for any stock transfer
or other issuance tax in respect thereto; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all taxes which may be payable in
respect of any transfer involved in the issuance and delivery of any
certificates for Warrant Shares in a name other than that of the then
Warrantholder as reflected upon the books of the Company.
1.4 TRANSFER: RESTRICTION ON TRANSFER AND LEGEND.
(a) Subject to the provisions of Section 1.4(b) below, this
Warrant shall be transferable, in whole or in part, at any time after the
IPO Date, without the consent of the Company, by notice from
Warrantholder. The Company shall keep at its principal office a register
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration, transfer and exchange of this
Warrant. The Company will not at any time, except upon the dissolution,
liquidation or winding up of the Company, close such register so as to
prevent or delay the exercise or transfer of this Warrant.
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(b) Neither this Warrant nor any of the Warrant Shares, nor
any interest or participation in either, may be in any manner transferred
or disposed of, in whole or in part, except in compliance with applicable
United States federal and state securities laws.
Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend shall
bear a legend similar in effect to the foregoing paragraph unless, in the
opinion of counsel for the Company, the Warrant need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4 shall be
binding upon all subsequent holders of this Warrant, if any. Warrant Shares
transferred to the public as expressly permitted by, and in accordance with, the
provisions of this Warrant shall thereafter cease to be deemed to be "Warrant
Shares" for purposes hereof.
1.5 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. Upon any such division, and, if
permitted by subsection 1.4 and in accordance with the provisions thereof, the
Warrants may be transferred of record to a name other than that of the
Warrantholder of record; PROVIDED, HOWEVER, that the Warrantholder shall be
required to pay any and all transfer taxes with respect thereto.
1.6 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents, warrants and covenants as follows:
(a) EXISTENCE. The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware and is authorized
to do business and is in good standing as a foreign corporation in every
jurisdiction in which it owns or leases real property or in which the
nature of its business requires it to be so qualified, except where the
failure to so qualify, individually or in the aggregate, could not
reasonably be expected to have a material adverse effect on the Company.
(b) POWER AND AUTHORITY. The Company has all requisite
corporate power and authority, and has taken all corporate action
necessary, to execute, deliver and perform this Warrant, to grant, issue
and deliver this Warrant and to authorize and reserve for issuance and,
upon payment from time to time of the Exercise Price, to issue and deliver
the shares of Common Stock issuable upon exercise of the Warrant. This
Warrant has been duly executed and delivered by the Company.
4
(c) RESERVATION, ISSUANCE AND DELIVERY OF COMMON STOCK. There
have been reserved for issuance, and the Company shall at all times keep
reserved, out of the authorized and unissued shares of Common Stock, a
number of shares sufficient to provide for the exercise of the rights of
purchase represented by this Warrant, and such shares, when issued upon
receipt of payment therefor in accordance with the terms of this Warrant,
will be legally and validly issued, fully paid and nonassessable and will
be free of any preemptive rights of stockholders.
(d) NO VIOLATION. Neither the execution or delivery of this
Warrant nor the consummation of the transactions herein contemplated does
or will result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of any provision of the Certificate of Incorporation or Bylaws
of the Company or any statute or any order, rule or regulation or any
court or governmental agency or body having jurisdiction over the Company
or any of its properties.
(e) VALID AND BINDING OBLIGATION. This Warrant, when duly
executed and delivered, will constitute legal, valid and binding
obligation of the Company, enforceable in accordance with its terms,
subject to any applicable bankruptcy, insolvency or other laws of general
application affecting creditors' rights and judicial decisions
interpreting any of the foregoing.
2. RESERVATION AND LISTING OF SHARES. All Warrant Shares which are issued
upon the exercise of the rights represented by this Warrant shall, upon issuance
and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense procure such listing thereof (subject to
official notice of issuance) as then may be required on all stock exchanges on
which the Common Stock is then listed. The Company shall, from time to time,
take all such action as may be required to assure that the par value per share
of the Warrant Shares is at all times equal to or less than the then effective
Exercise Price.
5
3. EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsection
1.4 or 1.5 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
4. OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1, 1.4 and 1.5 or in Section 3.
5. CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment after the IPO Date as
follows:
5.1 GENERAL. The number of Warrant Shares purchasable upon the
exercise of this Warrant and the Exercise Price shall be subject to adjustment
as follows:
(a) In case the Company shall after the IPO Date (i) pay a
dividend in shares of Common Stock or make a distribution in shares of
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 by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder shall
be entitled to receive the kind and number of Warrant Shares or other
securities of the Company that the Warrantholder would have owned or have
been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of
6
such event or any record date with respect thereto. An adjustment made
pursuant to this paragraph (a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any,
for such event.
(b) In case the Company shall after the IPO Date:
(i) issue rights, options or warrants generally to
holders of its outstanding Common Stock, without any charge to
such holders, entitling them at the time of such issuance to
subscribe for or purchase, pursuant to such an issuance,
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the
then-current Market Price per share of Common Stock, or
(ii) distribute generally to holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions and dividends or
distributions referred to in paragraph (a) of this subsection
5.1) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock,
appropriate adjustments shall be made to the number of Warrant Shares
purchasable upon the exercise of the Warrant and/or the Exercise Price in
order to preserve the relative rights and interests of the Warrantholders,
such adjustments to be made by the good faith determination of the Board
of Directors of the Company.
5.2 VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrant, reduce the then current
Exercise Price to any amount consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
5.3 NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
5.4 NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
7
5.5 PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC.
In case of any consolidation of the Company with or merger of the Company into
another person or in case of any sale, transfer or lease to another corporation
of all or substantially all of the assets of the Company, the Company or such
successor or purchaser, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon payment of the Exercise Price in effect immediately prior to
such action to purchase upon exercise of each Warrant the kind and amount of
shares and other securities and property that the holder thereof would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had such Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustment,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this subsection 5.5 shall apply
similarly to successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS.
6.1 PIGGYBACK REGISTRATION RIGHTS. The Company covenants and agrees
that (i) upon its filing of a registration statement on Form S-8 registering
shares of Common Stock underlying certain of the Company's options and warrants
(which the Company shall file within one year after the issuance of this
Warrant), and (ii) in the event the Company proposes to file a registration
statement under the Securities Act of 1933, as amended (the "Act"), subsequent
to the IPO and prior to the Expiration Date, with respect to the offering of
Common Stock (other than in connection with an exchange offer or a registration
statement on Form S-4 or other similar registration statement not available to
register securities so requested to be included), the Company shall in each case
give written notice of such proposed filing to (i) if this Warrant has been
exercised, the holders of the Warrant Shares and (ii) if this Warrant has not
been exercised, the Warrantholders, in each case at least 30 days before the
earlier of the anticipated or the actual effective date of the registration
statement and at least ten days before the initial filing of such registration
statement, and such notice shall offer to such Warrantholders the opportunity to
include in such registration statement such number of Warrant Shares as they may
request. Warrantholders desiring inclusion of Warrant Shares in such
registration statement shall so inform the Company by written notice, given
within 10 days of the giving of such notice by the Company in accordance with
the provisions of Section 8.6 hereof. The Company shall permit, or shall cause
the managing underwriter of a proposed offering to
8
permit, the holders of Warrant Shares requested to be included in the
registration to include such securities in the proposed offering on the same
terms and conditions as applicable to any similar securities of the Company, if
any, included therein for the account of any person other than the Company and
the holders of Warrants and/or Warrant Shares. The Company shall continuously
maintain in effect any registration statement with respect to which the Warrant
Shares have been requested to be included (and so included) for a period of not
less than (i) 180 days after the effectiveness of such registration statement or
(ii) the consummation of the distribution by the Warrantholders of the Warrant
Shares ("Piggy-back Termination Date"); PROVIDED, HOWEVER, that if at the
Piggy-back Termination Date the Warrant Shares are covered by a registration
statement which is, or is required to remain, in effect beyond the Piggy-back
Termination Date, the Company shall maintain in effect the registration
statement as it relates to the Warrant Shares for so long as such registration
statement remains or is required to remain in effect for any of such other
securities. All expenses of such registration shall be borne by the Company,
except that underwriting commissions and expenses attributable to the Warrant
Shares and fees and distributions of counsel (if any) to the Warrantholders
requesting that the Warrant Shares be offered will be borne by such
Warrantholders.
6.2 OTHER MATTERS. In connection with the registration
of Warrant Shares in accordance with Section 6.1 above, the Company
agrees to:
(a) Use its best efforts to register or qualify the Warrant
Shares for offer or sale under state securities or Blue Sky laws of
such jurisdictions in which the holders of such Warrants and/or
Warrant Shares shall reasonably designate; provided, that in no
event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action which would subject it to general service of process or
taxation in any jurisdiction where it is not now so subject, and use
its best efforts to do any and all other acts and things which may
be necessary or advisable to enable the Warrantholders to consummate
the sale, transfer or other disposition of such securities in any
jurisdiction.
(b) Enter into indemnity and contribution agreements, each in
customary form, with each underwriter, if any, and each holder of
Warrant Shares included in such registration statement; and, if
requested, enter into an underwriting agreement containing customary
representations, warranties, covenants, allocation of expenses, and
customary closing
9
conditions including, but not limited to, opinions of counsel,
accountants' cold comfort letters and petroleum engineers' reports
with any underwriter who participates in the offering of Warrant
Shares; and
(c) Pay all expenses in connection with the registration of
the Warrants and/or Warrant Shares under the Act and compliance with
the provisions of clause (a) above.
In connection with the registration of Warrant Shares in accordance
with Section 6.1 above, the Warrantholders agree to enter into an
underwriting agreement containing customary representations, warranties,
covenants, allocation of expenses (not otherwise inconsistent with this
Warrant), and customary closing conditions, with any underwriter who
participates in the offering of Warrant Shares.
6.3 OTHER REGISTRATIONS. During the time all or any portion of this
Warrant remains unexercised, the Company shall not register, or grant any rights
(including, without limitation, piggyback rights) to any person or entity to
register, any shares of capital stock or other securities of the Company, other
than shares to be issued by the Company on its own behalf, unless the Company
grants additional rights that at are least as favorable as the rights being
granted to any such person or entity to the Warrantholders, with respect to the
Warrant Shares.
7. NO IMPAIRMENT. 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 the Warrantholders against impairment. Without limiting the generality
of the foregoing, the Company will (a) not change the par value of any shares of
Common Stock receivable upon the exercise of this Warrant to an amount greater
than the amount payable therefor upon such exercise, (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, (c) obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to person-n its obligations under this Warrant,
and (d) not undertake any reverse stock split, combination, reorganization or
other reclassification of its capital stock which would have the effect of
making this Warrant exercisable for less than one share of Common Stock.
10
Upon the request of a Warrantholder, the Company will at any time during
the period this Warrant is outstanding acknowledge in writing, in form
reasonably satisfactory to such Warrantholder, the continued validity of this
Warrant and the Company's obligations hereunder.
11
8. MISCELLANEOUS.
8.1 ENTIRE AGREEMENT. This Warrant constitutes the
entire agreement between the Company and the Warrantholders with
respect to this Warrant and the Warrant Shares.
8.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholders and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
8.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and the
Warrantholders. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
8.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
8.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders and
holders of Warrant Shares shall do and perform all such further acts and things
and execute and deliver all such other certificates, instruments and/or powers
of attorney as may be necessary or appropriate as any party hereto may, at any
time and from time to time, reasonably request in connection with the
performance of any of the provisions of this Warrant.
8.6 NOTICES. All demands, requests, notices and other communications
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States certified or registered first class mail, postage prepaid, to the
parties hereto at the following addresses or at such other address as any party
hereto shall hereafter specify by notice to the other party hereto:
12
(a) if to the Company, addressed to:
Nationwide Staffing, Inc.
1100 Louisiana
Suite 3535
Houston, Texas 77002
Attention: President
(b) if to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person appearing on the books of the
Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on
the date of personal delivery thereof or on the third Business Day after
the mailing thereof.
8.7 SEPARABILITY. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
8.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the then-current Market Price.
8.9 RIGHTS OF THE HOLDER. No Warrantholder shall, solely by virtue
of this Warrant, be entitled to any rights of a stockholder of the Company,
either at law or in equity.
8.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
8.11 EXPENSES. The Company shall pay all reasonable legal and other
reasonable out-of-pocket expenses of the Warrantholders and their counsel in
connection with the exercise and sale of the Warrant Shares as contemplated by
this Warrant.
8.12 RIGHT TO INFORMATION. The Company will provide to a
Warrantholder and to all holders of Warrant Shares, on a timely basis, copies of
all documents and reports filed with the
13
Securities and Exchange Commission (the "Commission") and publicly available
annual and quarterly financial statements, as may be requested in writing by the
Warrantholder or as otherwise agreed in another agreement between the Company
and the Warrantholder.
8.13 MERGER OR CONSOLIDATION OF THE COMPANY. So long as this Warrant
remains in effect, the Company will not merge or consolidate with or into, or
sell, transfer or lease all or substantially all of its property to, any other
corporation unless the successor or purchasing corporation, as the case may be
(i) shall be the Company or (ii) if not the Company, shall expressly assume, by
supplemental agreement executed and delivered to the Warrantholders, the
performance and observance of each and every covenant and condition of this
Warrant to be performed and observed by the Company under this Warrant.
8.14 RULE 144. With a view to making available to Warrantholders the
benefits of certain rules of the Commission that may permit the sale of shares
of Common Stock to the public without registration, the Company hereby covenants
and agrees to use its reasonable business efforts after the Initial Exercise
Date to file in a timely manner all reports and other documents required to be
filed by it under the Act and the Securities Exchange Act of 1934, as amended,
and the rules and regulations adopted by the Commission thereunder necessary to
permit sales under Rule 144 under the Act, and the Company will take such
further action which does not have material cost to the Company to the extent
requireon under the Act within the limitation of the exemptions provided by (a)
Rule 144 under the Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission. Upon the
written request of a Warrantholder, the Company will deliver to such
Warrantholder a written statement as to whether it has complied with such
requirements.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer as of the date first written above.
Nationwide Staffing, Inc.
By: _______________________________
Warren L. Williams, President
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase
________________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of Nationwide Staffing, Inc. in the amount of
$___________ in accordance with the terms of this Warrant. The undersigned
requests that a certificate for such Warrant Shares be registered in the name of
__________________ and that such certificate be delivered to _______________
whose address is _____________________________________________.
Date: ______________________ Signature: ___________________________________
(Name Printed)
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