EXHIBIT 4.5
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE APPLICABLE STATE SECURITIES LAWS (COLLECTIVELY, THE "SECURITIES
LAWS"), AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS (1)
REGISTERED UNDER THE SECURITIES LAWS OR (2) EXEMPT FROM REGISTRATION UNDER THE
SECURITIES LAWS AND THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES LAWS.
THE SECURITIES REPRESENTED BY THIS WARRANT AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND OTHER
OBLIGATIONS CONTAINED IN AN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED AS
OF _____ __, 2003 AMONG THE COMPANY AND CERTAIN OF ITS STOCKHOLDERS, A COPY OF
WHICH IS ON FILE WITH THE COMPANY AND WILL BE FURNISHED WITHOUT COST TO THE
HOLDER HEREOF UPON WRITTEN REQUEST TO THE SECRETARY.
No. [__] Warrant to Purchase [_____] Shares
of Common Stock
FOUNTAIN VIEW, INC.
Warrant
Void after April 16, 2008
Fountain View, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, [_____________________] or its permitted
assigns (the "Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company at any time on or after August __, 2003, but in any
event not later than 5:00 p.m., Eastern time, on April 16, 2008 (the "Expiration
Date"), up to [_______] fully paid and nonassessable shares of the Company's
Common Stock at the purchase price (the "Warrant Price") of $.01 per share and
otherwise in accordance with the terms hereof.
Section 1. Certain Definitions. As used herein, the following terms
have the meanings set forth below:
"Stockholders Agreement" means the Amended and Restated Stockholders
Agreement dated as of August __, 2003 among the Company, the individuals and
entities listed on Exhibit A thereto, and any Person who thereafter becomes a
stockholder of the Company as provided therein, as amended from time to time.
Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Stockholders Agreement.
Section 2. Exercise. This Warrant shall be exercisable in full or in
part at any time prior to the Expiration Date. Except as otherwise provided in
Sections 7 and 8, this Warrant shall be exercisable by delivery by the Holder to
the Company of notice of exercise setting forth
the number of shares for which the Warrant is being exercised and payment in
cash or by check of the Warrant Price for each share for which this Warrant is
being exercised.
Section 3. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Warrant, and in any event within three
business days thereafter, the Company at its expense (including the payment by
it of any applicable issue taxes) will cause to be issued in the name of and
delivered to the Holder, (i) a certificate or certificates for the number of
fully paid and nonassessable shares of Common Stock to which the Holder shall be
entitled on such exercise, and (ii) a new Warrant to purchase all of the shares,
if any, to which the Holder shall be entitled to receive in connection with the
portion of the Warrant not so exercised.
Section 4. Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, etc. The Warrant Price and the number of shares of Common
stock issuable upon exercise of this Warrant shall be appropriately adjusted to
reflect any stock dividend, stock split, combination of shares,
reclassification, recapitalization or other similar event affecting the number
of outstanding shares of Common Stock. In case of any adjustment or readjustment
in the Warrant Price or number of shares of Common Stock issuable on the
exercise of this Warrant, the Company will promptly give written notice thereof
to the Holder in the form of a certificate, certified and confirmed by the
president or treasurer of the Company, setting forth such adjustment and showing
in reasonable detail the facts upon which such adjustment or readjustment is
based.
Section 5. Adjustment for Conversions, Reclassifications, Mergers, etc.
In case of any capital reorganization or any reclassification of the capital
stock of the Company or in case of the consolidation or merger of the Company
with or into another corporation or the conveyance of all or substantially all
of the assets of the Company to another corporation, this Warrant shall
thereafter be exercisable for the number of shares of stock or other securities
or property to which a holder of the number of shares of Common Stock of the
Company deliverable upon exercise of the Warrant would have been entitled to
upon such conversion, reorganization, reclassification, consolidation, merger or
conveyance.
Section 6. Reservation of Shares. The Company (a) will at all times
reserve and keep available a number of its authorized shares of Common Stock
free from all preemptive or similar rights therein, which will be sufficient to
permit the exercise of this Warrant, and (b) will take such action as may be
necessary or appropriate so that all shares of Common Stock issued pursuant to
the exercise of this Warrant will, upon the issuance, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issue thereof, except for certain restrictions on transfer
set forth in the Stockholders Agreement and under applicable securities laws.
Section 7. Net Issue Exercise. In lieu of exercising this Warrant in
accordance with Section 2, the Holder may elect to receive shares equal to the
value of this Warrant (to the extent exercised) by surrender of this Warrant at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Holder a number of shares of the
Company's Common Stock equal to the quotient obtained by dividing (a) the value
of the aggregate number of shares of Common Stock for which this warrant is then
exercised (determined by subtracting the aggregate Warrant Price for such shares
immediately prior to
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surrender from the aggregate Fair Market Value (as hereinafter defined) of such
shares), by (b) the Fair Market Value of one share of Common Stock immediately
prior to surrender. For purposes of this Section, the "Fair Market Value" of the
Company's Common Stock shall mean (i) if the company has consummated a
registered public offering of its Common Stock, the average of the closing sale
prices of each share of Common Stock for the ten (10) business days preceding
the date upon which Fair Market Value is to be determined, or (ii) if the
Company has not consummated a registered public offering of its Common Stock,
the fair market value of each share of Common Stock, as determined in good faith
by the Company's Board of Directors.
In the event of the surrender of this Warrant, as described above,
certificates for the shares of stock issuable thereon shall be delivered to the
Holder as soon as possible and in any event within three days of receipt of
notice of surrender. If the Warrant is not exercised in full pursuant to such
surrender, a replacement warrant for the portion of the Warrant not so exercised
shall be issued in accordance with Section 3.
Section 8. Surrender of Preferred Stock. Upon the exercise of this
Warrant by any holder of shares of the Company's Preferred Stock (the "Preferred
Stock"), such holder may, at its option, surrender a portion of such Preferred
Stock to the Company, together with written instructions from such holder to
apply all or a specified portion of the Liquidation Value (as defined in the
Company's Certificate of Incorporation) of the Preferred Stock against the
payment of some or all of the Warrant Price required upon such exercise, in
which case the Company will accept such specified portion of the Preferred Stock
in lieu of a like amount of cash payment.
In the event of the surrender of Preferred Stock, as described above,
certificates for the number of shares of Common Stock issuable hereunder shall
be delivered to the holder hereof as soon as possible and in any event within
three days of notice of surrender of the Preferred Stock, together with a
certificate therefor, duly endorsed for transfer and together with this Warrant,
and a certificate for the balance of the Preferred Stock surrendered to the
Company with such notice shall also be issued to the holder hereof as soon as
possible and in any event within such two-day period.
Section 9. Exchange of Warrants. On surrender for exchange of this
Warrant, properly endorsed, to the Company, and subject to the restrictions on
transfer set forth in the Stockholders Agreement, the Company at its expense
will issue and deliver to or on the order of the holder thereof a new Warrant of
like tenor, in the name of such holder or as such holder may direct, calling in
the aggregate on the face thereof for the number of shares of Common Stock
called for on the face of the Warrant so surrendered.
Section 10. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
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Section 11. Notices. Any notice or other communication given pursuant
to this Warrant shall be in writing and shall be personally delivered, sent by
nationally recognized overnight courier or express mail, or mailed by first
class certified or registered mail, postage prepaid, return receipt requested,
to the Company, at its address as it appears in the Stockholders Agreement and
(b) to the Holder, at such Holder's address as it appears in the Stockholders
Agreement (or, if not specified therein, at such Holder's address as it appears
in the records of the Company), unless otherwise indicated by the Company or
such Holder, as the case may be, in each case with any copies required by the
Stockholders Agreement.
Section 12. Fractional Shares. The number of shares of Common Stock to
be issued upon exercise of this Warrant shall be rounded to the nearest whole
share, with any fractional shares disregarded.
Section 13. Legend. A legend setting forth or referring to the
restrictions described on page 1 of this Warrant shall be placed on any
replacement hereof and any certificate representing securities issued pursuant
to the exercise of this Warrant.
Section 14. No Rights as Shareholder. This Warrant shall not entitle
the holder to any voting rights or any other rights as a shareholder of the
Company, except the rights stated herein.
Section 15. Investment Intent. By accepting this Warrant, the holder
represents that it is acquiring this Warrant for investment and not with a view
to or for sale in connection with any distribution thereof. The Holder
represents that it is an accredited investor as defined in Regulation D under
the Securities Act.
Section 16. Miscellaneous. This Warrant and any term hereof may be
amended, modified or waived only by an instrument in writing signed by the
Company and the Holder. This Warrant shall be governed by and construed in
accordance with the General Corporation Law of the State of Delaware and the
internal laws of Massachusetts, (without regard for its conflicts of laws
principles).
IN WITNESS WHEREOF, this Warrant has been executed and delivered as a
sealed instrument as of the date first above written.
FOUNTAIN VIEW, INC.
By: ___________________________
Roland Rapp
Secretary
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FORM OF EXERCISE NOTICE
(To be signed only on exercise of Warrant)
TO: FOUNTAIN VIEW, INC.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, ____________* shares of Common Stock of Fountain View,
Inc., and herewith makes payment of $_________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to
__________________________, whose address is _______________________
_______________________________________________________________________________.
Dated:
__________________________________________________
(Signature must conform in all respects to name of
holder specified on the face of the Warrant)
* Insert here the number of shares as to which the Warrant is being exercised.
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto __________ the right represented by the within Warrant to
purchase shares of Common Stock of Fountain View, Inc. to which the within
Warrant relates, and appoints _____________________ its attorney to transfer
such right On the books of Fountain View, Inc. with full power of substitution
in the premises.
The undersigned represents and warrants that this transfer is permitted
by the restrictions contained in the warrant, and acknowledges that Fountain
View, Inc. is entitled to require compliance with those restrictions as a
condition to recognition of this transfer. This Warrant is and remains subject
to the restrictions set forth in the Stockholders Agreement referenced in the
Warrant.
Dated:
__________________________________________________
(Signature must conform in all respects to name of
holder specified on the face of the Warrant)
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