ORION ACQUISITION CORP. I
REPRESENTATIVE'S WARRANT AGREEMENT
UNDERWRITERS' WARRANT AGREEMENT dated as of ___________, _______ by
and among ORION ACQUISITION CORP. I, a Delaware corporation (the "Company") and
H.J. MEYERS & CO., INC., ("H.I. Meyers"), as representative of several
underwriters (the "Representative").
W I T N E S S E T H:
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WHEREAS, the Company proposes to issue to the Representative warrants
("Warrants") to purchase (i) up to 80,000 units (the "Units"), each Unit
consisting of one (1) share of common stock, $.01 par value, of the Company (the
"Common Stock") and one (1) Class A Common Stock Purchase Warrant (the "Class A
Warrants") and (ii) 32,000 Class B unit Purchase Warrants (the "Class B
Warrants"). The Class A Warrants and the Class B Warrants are sometimes
collectively referred to herein as the "Constituent Warrants"; and
WHEREAS, the Underwriters have agreed, pursuant to the underwriting
agreement (the "Underwriting Agreement") dated _________, ______ by and among
the Representative and the Company, to act as the underwriters in connection
with the Company' s proposed public offering of up to (i) 920,000 units (the
"Public Units"), each Public Unit consisting of one (1) share of Common Stock
and one (1) Class A Warrant to purchase (i) one share of Common Stock, at a
public offering price of $10.00 per Public Unit and (ii) 368,000 Class B
Warrants to purchase one (1) Unit of Common Stock, at a public offering price of
$5.75 per Class B Warrant (the "Public Offering"); and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued on the Closing Date (as such term is defined in the Underwriting
Agreement) by the Company to the Representative in consideration for, and as
part of the Representative's compensation in connection with, the Underwriters'
acting as the underwriters pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the foregoing premises which are
incorporated into the terms hereof of the payment by the Representative to the
Company of $.01 for each Warrant purchased hereunder, the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. GRANT.
The Holders are hereby granted the right to purchase, at any time from
_____________ until 5:00 p.m., New York time, on _____________, up to (i) 80,000
Units, each Unit consisting of one (1) share of Common Stock and one (1) Class
A Warrant, at an initial exercise price (subject to adjustment as provided in
Article 8 hereof of $11.00 per Unit (110% of the public offering price per
Public Unit) and up to (ii) 32,000 Class B Warrants, at an initial exercise
price (subject to adjustment as provided in Article 8 hereof of $5.75 per Class
B Warrant (110% of the public offering price per Class B Redeemable Warrant),
both subject to the terms and conditions of this Agreement.
Each Class A Warrant is exercisable to purchase one (1) share of Common
Stock at an initial exercise price of $9.00 at any time from the consummation of
a Business Combination (as defined below) until 5:00 P.M. New York time
____________, at which time the Class A Warrants, unless the exercise period of
the then outstanding Class A Redeemable Warrants has been extended beyond May
15, 2000, shall expire. Each Class B Warrant is exercisable to purchase one (1)
Unit at an initial exercise price of $.125 at any time from the consummation of
a Business Combination until the first anniversary thereof. A "Business
Combination" is any merger, exchange of capital stock, asset acquisition or
other business combination effected by the Company. The Class A and Class B
Warrants issuable upon exercise of the Warrants are in all respects identical to
the Public Warrants being purchased by the Representative for resale to the
public pursuant to the terms and provisions of the Warrant Agreement dated
____________ between the Company and American Stock Transfer & Trust Company
(the "Public Warrant Agreement"), a copy of which is attached hereto, except
that the Constituent Warrants included within the Warrants are not redeemable
without the consent of the Registered Holder thereof. The shares of Common
Stock included in the Units are referred to as the "Unit Shares," the Class A
Warrant issuable upon the exercise of the Class B Warrants are referred to as
the "Unit Warrants", the shares of Common Stock issuable upon exercise of the
Constituent Warrants are referred to as the "Warrant Shares," and the Unit
Shares and the Warrant Shares are collectively referred to as the "Shares." The
Shares, the
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Constituent Warrants are collectively referred to as the "Warrant Securities."
2. WARRANT CERTIFICATES.
The warrant certificates (the "Warrant Certificates") delivered and to be
delivered pursuant to this Agreement shall be in the form set forth in Exhibit A
for Units and Exhibit B for Class B Warrants, attached hereto and made a part
hereof, with such appropriate insertions omissions, substitutions, and other
variations as required or permitted by this Agreement.
3. EXERCISE OF WARRANTS.
The Warrants are exercisable during the term set forth in Section 1 hereof
at the Exercise Price (defined below) per Unit or per Class B Warrant, as the
case may be, set forth in Section 6 hereof payable by certified or cashier's
check or money order payable in lawful money of the United States, subject to
adjustment as provided in Article 8 hereof. Upon surrender of a Warrant
Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price (as hereinafter defined) for the
Units or the Class B Warrants, as the case may be, (and such other amounts, if
any, arising pursuant to Section 4 hereof at the Company's principal office in
New York (150 East 52nd Street, New York, NY 10022), the registered holder of a
Warrant Certificate ("Holder" or "Holders") shall be entitled to receive a
certificate or certificates for the Shares so purchased and a certificate or
certificates for the Public Warrants so purchased. The purchase rights
represented by each Warrant Certificate are exercisable at the option of the
Holder thereof; in whole or in part, (but not as to fractional Unit Shares or
Constituent Warrants). The Warrants may be exercised to purchase all or part of
the Units or the Class B Warrants, as the case may be, represented thereby. In
the case of the purchase of less than all the Units or the Class B Warrants, as
the case may be, purchasable on the exercise of Warrants represented by a
Warrant Certificate, the Company shall cancel the Warrant Certificate
represented thereby upon the surrender thereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of the Units or the Class
B Warrants, as the case may be, purchasable thereunder.
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4. ISSUANCE OF CERTIFICATES.
Upon the exercise of the Warrants and payment of the Exercise Price
therefor, the issuance of certificates for the Unit Shares, Constituent Warrants
or other securities, properties or rights underlying such Warrants, and upon the
exercise of the Constituent Warrants, the issuance of certificates for the
Warrant Shares or other securities, properties or rights underlying such
Constituent Warrants, shall be made forthwith (and in any event within three (3)
business days thereafter) without further charge to the Holder thereof; and such
certificates shall (subject to the provisions of Sections 5 and 7 hereof be
issued in the name of or in such names as may be directed by, the Holders
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 Holders, and
the Company shall not be required to issue or deliver such certificates unless
or until the person 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 Warrant
Certificates and the certificates representing the Unit Shares, the Constituent
Warrants, the Warrant Shares or other securities, property or rights (if such
property or rights are represented by certificates) 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 or President or Vice President of the
Company under its corporate seal reproduced thereon, attested to by the manual
or facsimile signature of the then present Secretary or Assistant Secretary or
Treasurer or Assistant Treasurer of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
5. RESTRICTION ON TRANSFER OF WARRANTS.
The Holder of a Warrant Certificate (and its Permitted Transferee, as
defined below), by its acceptance thereof covenants and agrees that the Warrants
are being acquired as an investment and not with a view to the distribution
thereof; that the Warrants may be sold, transferred, assigned, hypothecated or
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otherwise disposed of; in whole or in part, to any person (a "Permitted
Transferee"), provided such transfer, assignment, hypothecation or other
deposition is made in accordance with the provisions of the Securities Act of
1933 (the "Act"); and provided, further, that until _____________ (one year
after the Effective Date, defined below) only officers and partners of the
Representative, and any counter-writer, selling group member and their
respective officers and partners, shall be Permitted Transferees. Warrants to
purchase Units may be separately transferable from Warrants to purchase Class B
Warrants.
6. EXERCISE PRICE.
a. INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise provided in
Section 8 hereof; the initial exercise price of each Warrant to purchase Units
shall be $ 11.00 per Unit, and of each Warrant to purchase Class B Warrants
shall be $5.75 per Class B Warrant. The respective adjusted exercise prices
shall be the prices which shall result from time to time from any and all
adjustments of the initial exercise prices in accordance with the provisions of
Section 8 hereof.
b. EXERCISE PRICE. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. REGISTRATION RIGHTS.
a. REGISTRATION UNDER THE SECURITIES ACT OF 1933. The Warrants have not
been registered under the Act. The Warrant certificates shall bear the following
legend:
The securities represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act"), and may not be offered for
sale or sold except pursuant to (i) an effective registration statement
under the Act, or (ii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer, that an exemption from
registration under such Act is available.
b. DEMAND REGISTRATION.
(1) At any time commencing one (1) year and expiring five (5) years after
the effective date of the Company's Registration Statement relating to
the Public Offering
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(the "Effective Date"), the Holders of the Warrants and the Warrant
Securities representing at least a Majority (as hereinafter defined)
of such securities shall have the right, exercisable by written notice
to the Company, to have the Company prepare and file with the
Securities and Exchange Commission (the "Commission"), on one (1)
occasion, a registration statement on Form S-1 (or Post-Effective
Amendment on Form S-1) or other appropriate form) and such other
documents, including a prospectus, as may be necessary in the opinion
of both counsel for the Company and counsel for the Holders, in order
to comply with the provisions of the Act, so as to permit a public
offering and sale, for a period of nine (9) months, of the Warrant
Securities by such Holders and any other Holders of the Warrants
and/or Warrant Securities who notify the Company within fifteen (15)
business days alter receipt of the notice described in Section
7(b)(2). The Holders of the Warrants may demand registration without
exercising the Representative's Warrants, and are never required to
exercise same.
(2) The Company covenants and agrees to give written notice of any
registration request under this Section 7(b) by any Holder(s) to all
other registered Holders of the Warrants and the Warrant Securities
within ten (10) days from the date of the receipt of any such
registration request.
(3) For purposes of this Agreement, the term "Majority" in reference to
the Holders of the Warrants or Warrant Securities, shall mean in
excess of fifty percent (50%) of the then outstanding Warrants or
Warrant Securities that (i) are not held by the Company, an affiliate,
officer, director; employee or agent thereof or any of their
respective affiliates, members of their family, persons acting as
nominees or in conjunction therewith, or (ii) have not been resold to
the public pursuant to a registration statement filed with the
Commission under the Act.
c. PIGGYBACK REGISTRATION. If at any time within the period commencing one
(1) year and expiring six (6) years after the Effective Date, the Company should
file a registration statement
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with the Commission under the Act (other than in connection with a merger or
pursuant to Form S-8) it will give written notice by registered mail, at least
thirty (30) days prior to the filing of each such registration statement, to the
Representative and to all other Holders of the Warrants and/or the Warrant
Securities of its intention to do so. If the Representative or other Holders of
the Warrants and/or the Warrant Securities notify the Company within twenty (20)
days after receipt of any such notice of its or their desire to include any
Warrant Securities in such proposed registration statement, the Company shall
afford the Representative and such Holders of the Warrants and/or Warrant
Securities the opportunity to have any such Warrant Securities registered under
such registration statement. Notwithstanding the provisions of this Section
7(c), the Company shall have the right at any time after it shall have given
written notice pursuant to this Section 7(c) (irrespective of whether a written
request for inclusion of any such securities shall have been made) to elect not
to file any such proposed registration statement, or to withdraw the same after
the filing but prior to the effective date thereof.
If the underwriter of an offering to which the above piggyback rights apply
objects to such rights, such objection shall preclude such inclusion. However,
in such event, the Company will, within six (6) months of completion of such
subsequent underwriting, file at its sole expense, a registration statement
relating to such excluded Warrant Securities, which shall be in addition to any
registration statement required to be filed pursuant to Section 7(b), unless
such Holders had refused an opportunity provided with the consent of the
underwriter, to be included in the registration statement on the condition that
they agree not to offer the securities for sale without the prior written
consent of the underwriter for a period not exceeding 60 days from the effective
date of such registration statement.
If the underwriter in such underwritten offering shall advise the Company
that it declines to include a portion or all of the Warrant Securities requested
by the Representative and the Holders to be included in the registration
statement, then (A) registration of all of the Warrant Securities shall be
excluded from such registration statement on the condition that all securities
to be registered by other selling security holders, if any, are also excluded
and (B) registration of a portion of such Warrant Securities allocated among the
Representative and the Holders and
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any other selling securityholders in proportion to the respective numbers of
securities to be registered by the Representative and each such Holder and other
selling securityholder. In such event the Company shall give the Representative
and the Holders prompt notice of the number of Warrant Securities excluded.
d. COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. In connection
with any registrations under Sections 7(b) and 7(c) hereof; the Company
covenants and agrees as follows:
(1) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand
therefor; provided, however, that the Company shall not be required to
produce audited or unaudited financial statements for any period prior
to the date such financial statements are required to be filed in a
report on Form 10-K or Form 10-Q (or Form 10-KSB or Form 10-QSB), as
the case may be. The Company shall use its best efforts to have any
registration statements declared effective at the earliest possible
time, and shall furnish each Holder desiring to sell Shares such
number of prospectuses as shall reasonably be requested.
(2) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting discounts or selling fees,
expenses or commissions), fees and expenses in connection with any
registration statement filed pursuant to Sections 7(b) and 7(c) hereof
including, without limitation, the Company's legal and accounting
fees, printing expenses, blue sky fees and expenses. If the Company
shall fail to comply with the provisions of Section 7(d) (1), the
Company shall, in addition to any other equitable or other relief
available to the Holder(s), be liable for any or all incidental,
special and consequential damages and damages due to loss of profit
sustained by the Holder(s) requesting registration of their Shares.
(3) The Company will take all necessary action which may be required to
qualify or register the Shares included in a registration statement
for offering and sale under the securities or blue sky laws of such
states as reasonably
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are requested by the Holder(s), provided that the Company shall not be
obligated to execute or file any general consent to service of process
or to qualify as a foreign corporation to do business under the laws
of any such jurisdiction.
(4) The Company shall indemnify the Holder(s) of the Shares to be sold
pursuant to any registration statement and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934 (the "Exchange
Act"), against all losses, claims, damages, expenses or liability
(including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of
them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement, but only to the same extent
and with the same effect as the provisions pursuant to which the
Company has agreed to indemnify the Representative contained in
Section 8 of the Underwriting Agreement, and the Holder(s) shall
indemnify the Company to the same extent and with the same effect as
the provisions pursuant to which the Representative have agreed to
indemnify the Company contained in Section ___ of the Underwriting
Agreement.
(5) The Holder(s) of the Shares to be sold pursuant to a registration
statement, and their successors and assigns, shall severally, and not
jointly, indemnify the Company, its officers and directors and each
persons, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against
all losses, claims, damages, expenses or liability (including all
expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject under
the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such registration statement to the
same extent and with the same effect as the provisions contained in
Section ___ of the Underwriting Agreement pursuant to which the
Representative have agreed to indemnify the Company.
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(6) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to exercise their Warrants prior to the initial filing
of any registration statement or the effectiveness thereof.
(7) If the manner of distribution proposed by the holders of the Warrants
and the Warrant Securities is an underwriting, the Company shall
furnish to each Holder participating in the offering and to each
underwriter, a signed counterpart, addressed to such Holder or
underwriter of (i) an opinion of counsel to the Company, dated the
effective date of such registration statement (and if such
registration includes an underwritten public offering, an opinion
dated the date of the closing under the underwriting agreement), and
(ii) a "cold comfort" letter dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing
under the underwriting agreement) signed by the independent public
accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters
in underwritten public offerings of securities.
(8) The Company shall as soon as practicable after the effective date of
the registration statement, and in any event within the first full
four fiscal quarters following the effective date, make "generally
available to its security holders" (within the meaning of Rule 158
under the Act) an earnings statement (which need not be audited)
complying with Section 11(a) of the Act.
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(9) The Company shall deliver promptly to each Holder participating in the
offering requesting the correspondence described below and any
managing underwriter, copies of all correspondence between the
Commission and the Company, its counsel or auditors with respect to
the registration statement and permit each Holder and underwriter to
do such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as
it deems reasonably necessary to comply with applicable securities
laws or rules of the National Association of Securities Dealers, Inc.
("NASD"). Such Investigation shall include access to books, records
and properties and opportunities to discuss the business of the
Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request.
(10) In connection with an offering for which the Holders have demand
rights, the Company shall enter into an underwriting agreement with
the managing underwriter selected for such underwriting by Holders
holding a Majority of the Shares requested to be included in such
underwriting. In connection with an offering for which the Holders
have piggyback rights, the Company shall have the sole right to select
the managing underwriter. Such underwriting agreement shall be
satisfactory in form and substance to the Company, a Majority of such
Holders and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such
other terms as are customarily contained in agreements of that type
used by the managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their
Shares and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the
benefit of such underwriters shall also be made to and for the benefit
of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to
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such Holders their ownership and their intended methods of
distribution.
e. FURTHER REGISTRATIONS. The Company will cooperate with the Holder(s)
of the Warrants and Warrant Securities in preparing and signing one additional
registration statement, in addition to the registration statements discussed
above, required in order to sell or transfer the Shares and will supply all
information required therefor, but such additional registration statement
expenses or offering statement expenses will be prorated between the Company and
the Holders of the Warrants and Warrant Securities according to the aggregate
sales price of the securities being issued. The provisions of Section 7(d)
other than subsection (2) shall apply to any such registration statement.
8. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES: REDEMPTION.
a. (i) Except as hereinafter provided, in the event the Company shall, at
any time or from time to time after the date hereof; issue any shares of Common
Stock as a stock dividend to the holders of Common Stock, or subdivide or
combine the outstanding shares of Common Stock into a greater or lesser number
of shares (any such issuance, subdivision or combination being herein called a
"Change of Shares"), then, and thereafter upon each further Change of Shares,
the Purchase Price for the Warrants (whether or not the same shall be issued and
outstanding) in effect immediately prior to such Change of Shares shall be
changed to a price (including any applicable fraction of a cent to the nearest
cent) determined by dividing (i) the sum of (a) the total number of shares of
Common Stock outstanding immediately prior to such Change of Shares, multiplied
by the Purchase Price in effect immediately prior to such Change of Shares, and
(b) the consideration, if any, received by the Company upon such issuance,
subdivision or combination by (ii) the total number of shares of Common Stock
outstanding immediately after such Change of Shares; provided, however, that in
no event shall the Purchase Price be adjusted pursuant to this computation to an
amount in excess of the Purchase Price in effect immediately prior to such
computation, except in the case of a combination of outstanding shares of Common
Stock.
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For the purposes of any adjustment to be made in accordance with this
Section 8(a) the following provisions shall be applicable:
(1) Shares or equivalents of Common Stock issuable by way of dividend or
other distribution on any stock of the Company shall be deemed to have
been issued immediately after the opening of business on the day
following the record date for the determination of shareholders
entitled to receive such dividend or other distribution and shall be
deemed to have been issued without consideration.
(2) The reclassification of securities of the Company other than shares of
Common Stock into securities including shares of Common Stock shall be
deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of
business on the date fixed for the determination of security holders
entitled to receive such shares, and the value of the consideration
allocable to such shares of Common Stock shall be determined in good
faith by the Board of Directors of the Company on the basis of a
record of values of similar property or services.
(3) The number of shares of Common Stock at any one time outstanding shall
be deemed to include the aggregate maximum number of shares issuable
(subject to readjustment upon the actual issuance thereof upon the
exercise of options, rights or warrants and upon the conversion or
exchange of convertible or exchangeable securities.
b. Upon each adjustment of the Purchase Price pursuant to this Section 8,
the number of shares of Common Stock (but not the number of Class A Warrants or
Class B Warrants that may be obtained upon such exercise) purchasable upon the
exercise of each Warrant shall be the number derived by multiplying the number
of shares of Common Stock purchasable immediately prior to such adjustment by
the Purchase Price in effect prior to such adjustment and dividing the product
so obtained by the applicable adjusted Purchase Price.
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c. In case of any reclassification or change of outstanding shares of
Common Stock issuable upon exercise of the Warrants (other than a change in par
value, or from par value to no par value, or from no par value to par value or
as a result of a subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation (other than a merger with
a Subsidiary in which merger the Company is the continuing corporation and which
does not result in any reclassification or change of the then outstanding shares
of Common Stock or other capital stock issuable upon exercise of the Warrants
(other than a change in par value, or from par value to no par value, or from no
par value to par value or as a result of subdivision or combination) or in case
of any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, then, as a condition of such
reclassification, change, consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing corporation, as the case may be, shall
make lawful and adequate provision whereby the Registered Holder of each Warrant
then outstanding shall have the right thereafter to receive on exercise of such
Warrant the kind and amount of securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of securities issuable upon exercise of such Warrant immediately
prior to such reclassification change, consolidation, merger, sale or conveyance
and shall forthwith file at the Corporate Office of the Warrant Agent a
statement signed by its President or a Vice President and by its Treasurer or an
Assistant Treasurer or its Secretary or an Assistant Secretary evidencing such
provision. Such provisions shall include provision for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Section 8a. The above provisions of this Section 8b. shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
d. Irrespective of any adjustments or changes in the Purchase Price or
the number of shares of Common Stock purchasable upon exercise of the Warrants,
the Warrant Certificates therefore and thereafter issued shall, unless the
Company shall exercise its option to issue new Warrant Certificates, continue to
express the Purchase Price per share and the number of shares
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purchasable thereunder as the Purchase Price per share and the number of shares
purchasable thereunder were expressed in the Warrant Certificates when the same
were originally issued.
e. After each adjustment of the Purchase Price pursuant to this Section
8, the Company will promptly prepare a certificate signed by the Chairman or
President, and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, of the Company setting forth: (i) the Purchase Price as so
adjusted, (ii) the number of shares of Common Stock purchasable upon exercise of
each Warrant, after such adjustment, and (iii) a brief statement of the facts
accounting for such adjustment. The Company will promptly file such certificate
with the Warrant Agent and cause a brief summary thereof to be sent by ordinary
first class mail to each Registered Holder at his last address as it shall
appear on the registry books of the Warrant Agent. No failure to mail such
notice nor any defect therein or in the mailing thereof shall affect the
validity thereof except as to the holder to whom the Company failed to mail such
notice, or except as to the holder whose notice was defective. The affidavit of
an officer of the Warrant Agent or the Secretary or an Assistant Secretary of
the Company that such notice has been mailed shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
f. No adjustment of the Purchase Price shall be made as a result of or in
connection with the issuance or sale of shares of Common Stock pursuant to
options, warrants, stock purchase agreements and convertible or exchangeable
securities outstanding or in effect on the date hereof or granted upon the
consummation of and in connection with the first Business Combination (as
defined in the Registration Statement). In addition, Registered Holders shall
not be entitled to cash dividends paid by the Company prior to the exercise of
any Warrant or Warrants held by them.
g. 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 Certificate of Incorporation of the Company as it may be amended as of
the date hereof; or (ii) any other class of stock resulting from successive
changes or reclassification 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.
In the event that the Company shall, after the date hereof, issue securities
with greater or superior voting rights than those of the shares of Common Stock
outstanding
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as of the date hereof; the Holder, at its option, may receive upon exercise of
any Warrant either shares of Common Stock or a like number of such securities
with greater or superior voting rights.
h. RECLASSIFICATION. MERGER OR CONSOLIDATION. The Company will not
merge, reorganize or take any other action which would terminate the
Representative's Warrants without first making adequate provision for the
Representative's Warrants. In case of any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination), or in case of any consolidation of the Company with, or merger of
the Company with, or merger of the Company into, another corporation (other than
a consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification or change of the outstanding
Common Stock except a change as a result of a subdivision or combination of such
shares or a change in par value, as aforesaid), or in the case of a sale or
conveyance to another corporation or other entity of the property of the Company
as an entirety, the Holder of each Warrant then outstanding or to be outstanding
shall have the right thereafter (until the expiration of such Warrant) to
purchase, upon exercise of such Warrant, the kind and number of shares of stock
and other securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as if the Holder were the owner of the
shares of Common Stock underlying such Warrants and the Constituent Warrants
immediately prior to any such events at a price equal to the product of (x) the
number of shares issuable upon exercise of the Warrants and the Constituent
Warrants and (y) the Exercise Prices in effect immediately prior to the record
date for such reclassification, change, consolidation, merger, sale or
conveyance, as if such Holder has exercised the Warrants and the Constituent
Warrants. In the event of a consolidation, merger, sale or conveyance of
property, the corporation formed by such consolidation or merger, or acquiring
such property, shall execute and deliver to the Holders a supplemental warrant
agreement to such effect. Such supplemental warrant agreement shall provide for
adjustments which shall be identical to the adjustment to those provided in
Section 8. The provisions of this Section 8(h) shall similarly apply to
successive consolidations or mergers.
-16-
i. NO ADJUSTMENT OF EXERCISE PRICES IN CERTAIN CASES. No adjustment of
the Exercise Prices shall be made:
(I) Upon the issuance or sale of (i) the Warrants, the Constituent
Warrants or the Shares; (ii) the shares of Common Stock and the Public
Warrants pursuant to the Public Offering; (iii) the shares of Common
Stock issuable upon the exercise of the Public Warrants, or the
options, warrants, stock purchase agreements and convertible or
exchangeable securities outstanding or in effect on the date hereof as
described in the prospectus relating to the Public Offering; or (iv)
Common Stock upon the exercise of the Constituent Warrants.
(2) If the amount of said adjustments shall be less than ten ($.10) cents
per Unit or five ($.05) cents per Class B Warrant, as the case may be,
provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and
shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward,
shall amount to at least ten ($.10) cents per Unit or five ($.05)
cents per Class B Warrant, as the case may be.
j. DIVIDENDS AND OTHER DISTRIBUTIONS. In the event that the Company
shall at any time prior to the exercise of all the Warrants declare a dividend
(other than a dividend consisting solely of shares of Common Stock) or otherwise
distribute to its stockholders any assets, property, rights, evidences of
indebtedness, securities (other than shares of Common Stock), whether issued by
the Company or by another, or any other thing of value, the Holders of the
unexercised Warrants shall thereafter be entitled, in addition to the shares of
Common Stock or other securities and property receivable upon the exercise
thereof; to receive, upon the exercise of such Warrants, the same property,
assets, rights, evidences of indebtedness, securities or any other thing of
value that they would have been entitled to receive at the time of such dividend
or distribution as if the Warrants had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make appropriate reserves to ensure the timely performance of the
provisions of this Section 8 (j).
-17-
k. ADJUSTMENT OF CONSTITUENT WARRANT EXERCISE PRICE AND SHARES ISSUABLE ON
EXERCISE OF CONSTITUENT WARRANTS. With respect to any of the Constituent
Warrants underlying the Warrants, whether or not the Constituent Warrants have
been exercised and whether or not the Constituent Warrants are issued and
outstanding, the Constituent Warrant exercise price and the number of shares of
Common Stock underlying such Constituent Warrants shall be automatically
adjusted in accordance with Section ___ of the Public Warrant Agreement upon the
occurrence of any of the events described therein. Thereafter, the underlying
Constituent Warrants shall be exercisable at such adjusted exercise price and
for such adjusted number of underlying shares of Common Stock.
l. SUBSCRIPTION RIGHTS FOR SHARES OF COMMON STOCK OF OTHER SECURITIES. In
the event that the Company or an affiliate of the Company shall at any time
after the date hereof and prior to the exercise of all the Warrants, issue any
rights to subscribe for shares of Common Stock or any other securities of the
Company or of such affiliate to all the stockholders of the Company, the Holders
of the unexercised Warrants shall be entitled to receive, in addition to the
Unit Shares and Constituent Warrants or other securities receivable upon the
exercise of the Warrants, such rights at the time such rights are distributed to
the other stockholders of the Company.
m. REDEMPTION OF CONSTITUENT WARRANTS. Notwithstanding anything to the
contrary contained in the Public Warrant Agreement or elsewhere, the Constituent
Warrants underlying the Warrants cannot, under any circumstances, be redeemed by
the Company without the prior written consent of the Holders of the Warrants and
shall remain exercisable upon the same terms and provisions of the Public
Warrant Agreement (other than the exercise period, which shall be as set forth
in Section I hereof irrespective of whether the Company has called the
Redeemable Warrants for redemption.
9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES.
Each 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 Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Units in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
-18-
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any 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 Warrant Certificate of like
tenor, in lieu thereof.
10. ELIMINATION OF FRACTIONAL INTERESTS.
The Company shall not be required to issue certificates representing
fractions of Shares or of Constituent Warrants upon the exercise of the
Warrants, nor shall it be required to issue scrip or pay cash in lieu of
fractional interests, provided, however, that if a Holder exercises all Warrants
or Constituents Warrants (as the case may be) held of record by such Holder the
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of Unit Shares, Warrant Shares, Constituent Warrants or
other securities, properties or rights.
11. RESERVATION AND LISTING 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 and the Constituent Warrants and the conversion of
preferred stock, if any, such number of shares of Common Stock or other
securities, properties or rights as shall be issuable upon the exercise on
conversion thereof. The Company covenants and agrees that, upon exercise of the
Warrants and payment of the Exercise Price therefor, all the Unit Shares and
other securities issuable upon such exercise shall be duly and validly issued,
fully paid, nonassessable and not subject to the preemptive rights of any
stockholder. The Company further covenants and agrees that upon exercise of the
Constituent Warrants underlying the Warrants and payment of the respective
Common Stock Warrant exercise price therefor, all the Warrant Shares and other
securities issuable upon such exercises shall be duly and validly issued, fully
paid, non-assessable and not subject to the preemptive rights of any
stockholder. As long as the Warrants and the Constituent Warrants shall be
outstanding, the Company shall use its best efforts to cause the Common Stock to
be listed (subject to official notice of issuance) on all securities
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exchanges on which the Public Units, the Common Stock and the Constituent
Warrants issued to the public in connection herewith may then be listed or
quoted.
12. NOTICES TO WARRANT HOLDERS.
Nothing contained in this Agreement shall be construed as conferring upon
the Holders the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder 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 entitling them to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend or distribution payable
otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
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 dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) 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 shall give written notice of such
event at least fifteen (15) days prior to the date fixed as a record date or the
date of closing the transfer books for the determination of the stockholders
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable
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securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
13. COMMON STOCK WARRANTS.
The form of the certificates representing the Class A and Class B Warrants
(and the form of election to purchase shares of Common Stock upon the exercise
of the Class A and Class B Warrants and the form of assignment printed on the
reverse thereof shall be substantially as set forth in Exhibits A and B to the
Public Warrant Agreement, except that the exercise periods shall be as set forth
in Section I hereof. Each Class A Warrant issuable upon exercise of the
Warrants shall evidence the Holder's right to purchase one (1) fully paid and
non-assessable share of Common Stock at an initial exercise price of $9.00. Each
Class B Warrant issuable upon exercise of the Warrants shall evidence the
Holder's right to purchase one (1) Unit consisting of one (1) fully paid and
non-assessable share of Common Stock and one (1) Class A Warrant at an initial
exercise price of $.125. The exercise price of the Constituent Warrants and the
number of the shares of Common Stock issuable upon the exercise of the
Constituent Warrants are subject to adjustment, whether or not the Warrants have
been exercised and the Constituent Warrants have been issued, in the manner and
upon the occurrence of the events set forth in Section 8 of the Public Warrant
Agreement, which is hereby incorporated herein by reference and made a part
hereof as if set forth in its entirety herein. Subject to the provisions of this
Agreement and upon issuance of the Constituent Warrants underlying the Warrants,
each registered Holder of such Common Stock Warrant shall have the right to
purchase from the Company (and the Company shall issue to such registered
Holders) up to the number of fully paid and non-assessable shares of Common
Stock (subject to adjustment as provided herein and in the Public Warrant
Agreement), free and clear of all preemptive rights of stockholders, provided
that such registered Holder complies with the terms governing the exercise of
the Redeemable Warrants set forth in the Public Warrant Agreement, and pays the
applicable exercise price, determined in accordance with the terms of the Public
Warrant Agreement. Upon exercise of the Constituent Warrants, the Company shall
forthwith issue to the registered Holder of any such Common Stock Warrant in his
name or in such name as may be directed by him, certificates for the number of
shares of Common Stock and Class A Warrants so purchased. Except as otherwise
provided herein and in Sections 1, 6(a) and 8(i), the
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Constituent Warrants underlying the Warrants shall be governed in all respects
by the terms of the Public Warrant Agreement. The Constituent Warrants shall be
transferable in the manner provided in the Public Warrant Agreement, and upon
any such transfer, a new Common Stock Warrant Certificate shall be issued
promptly to the transferee. The Company covenants to, and agrees with, the
Holder(s) that without the prior written consent of the Holder(s), this
Agreement will not be modified, amended, canceled, altered or superseded, and
that the Company will send to each Holder, irrespective of whether or not the
Warrants have been exercised, any and all notices required by this Agreement to
be sent to holders of Constituent Warrants.
14. NOTICES.
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made when delivered, or mailed
by registered or certified mail, return receipt requested:
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 3 hereof or to
such other address as the Company may designate by notice to the Holders.
15. SUPPLEMENTS AND AMENDMENTS.
The Company and the Representative may from time to time supplement or
amend this Agreement without the approval of any Holders of Warrant Certificates
(other than the Representative) in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or inconsistent
with any provisions herein, or to make any other provisions in regard to matters
or questions arising hereunder which the Company and the Representative may deem
necessary or desirable and which the Company and the Representative deem shall
not adversely affect the interests of the Holders of Warrant Certificates.
16. SUCCESSORS
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All the covenants and provisions of this Agreement shall be binding upon
and inure to the benefit of the Company, the Underwriters, the Holders and their
respective successors and assigns hereunder.
17. TERMINATION.
This Agreement shall terminate at the close of business on ___________.
Notwithstanding the foregoing, the indemnification provisions of Section 7 shall
survive such termination until the close of business on the later of the
expiration of any applicable statute of limitations or _______________.
18. GOVERNING LAW: SUBMISSION TO JURISDICTION.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the laws of said State without
giving effect to the rules of said State governing the conflicts of laws, except
that matters concerning the validity of the issuance of securities shall be
determined and construed in accordance with the laws of Delaware. The Company,
the Representative and the Holders hereby agree that any action, proceeding or
claim against it arising out of, or relating in any way to, this Agreement shall
be brought and enforced in the courts of the State of New York or of the United
States of America for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company, the
Representative and the Holders hereby irrevocably waive any objection to such
exclusive jurisdiction or inconvenient forum. Any such process or summons to be
served upon any of the Company, the Representative and the Holders (at the
option of the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof; by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
14 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the party so served in any action, proceeding or claim.
19. ENTIRE AGREEMENT: MODIFICATION.
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This Agreement (including the Underwriting Agreement and the Public Warrant
Agreement to the extent portions thereof are referred to herein) contains the
entire understanding between the parties hereto with respect to the subject
matter hereof. Subject to Section 15, this Agreement 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.
20. SEVERABILITY.
If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Agreement.
21. CAPTIONS.
The caption headings of the Sections of this Agreement are for convenience
of reference only and are not intended, nor should they be construed as, a part
of this Agreement and shall be given no substantive effect.
22. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and the Representative and any other
registered Holder(s) of the Warrant Certificates or Warrant Securities any legal
or equitable right, remedy or claim under this Agreement; and this Agreement
shall be for the sole and exclusive benefit of the Company and the
Representative and any other Holder(s) of the Warrant Certificates or Warrant
Securities.
23. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
24. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the
Company, the Representative and their respective successors
-24-
and assigns and the Holders from time to time of the Warrant Certificate(s) or
any of them.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
ORION ACQUISITION CORP. I
By:
--------------------------------
Arthur H. Goldberg, Chief
Executive Officer
H.J. MEYERS & CO., INC.
By:
--------------------------------
Authorized Agent
-25-
EXHIBIT A
ORION ACQUISITION CORP. I
WARRANT CERTIFICATE
THE SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANT REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
The securities represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"), and may not be offered for
sale or sold except pursuant to (i) an effective registration statement under
the Act, or (ii) an opinion of counsel, if such opinion shall be reasonably
satisfactory to counsel to the issuer, that an exemption from registration under
such Act is available.
THE TRANSFER OR EXCHANGE OF THE WARRANT REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE COMMENCING __________ THROUGH 5:00 P.M., NEW YORK TIME
_________________.
No.WU-l _____Warrants
This Warrant Certificate certifies that _______________ ________________ or
registered assigns, is the registered holder of __________ warrants (the
"Warrants") to purchase initially, at any time from _____________, until 5:00
p.m., New York time on ________________ (the "Expiration Date"), up to ________
units (the "Units"), each Unit consisting of one (1) fully paid and
nonassessable share (the "Shares"), of Common Stock, $.01 par value (the "Common
Stock"), of Orion Acquisition Corp. I, a Delaware corporation (the "Company"),
and one (1) Class A nonredeemable common stock purchase warrant (the "Class A
Warrants") of the Company at the exercise price of $11.00 per Unit (the
"Exercise Price"), upon the surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, but
subject to the conditions set forth herein and in the warrant agreement dated as
of __________ (the "Warrant Agreement") by and among the Company and H.J. Meyers
Co., Inc., as representative of several underwriters (the "Representative")
Payment of the Exercise Price shall be made by certified or cashier's check or
money order payable to the order of the Company. No Warrant may be exercised
after 5:00 P.M, New York time, on the Expiration Date, at which time all
Warrants evidenced hereby, unless exercised prior thereto, shall thereafter be
void.
Each Class A Warrant entitles the registered holder to purchase one (1)
share of Common Stock at $9.00 per share at the times set forth in the Warrant
Agreement. Except as set forth in the Warrant Agreement and as described below,
the Class A Warrants are subject to the conditions set forth in the warrant
agreement dated ______________ between the Company and American Stock Transfer &
Trust Company.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement 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.
The Warrant Agreement 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 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 Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange as provided herein,
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
Certificate, the Company shall forthwith issue to the holder hereof a new
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 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 Warrant Certificate which are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
_____ day of _________, 199__.
[SEAL]
ORION ACQUISITION CORP. I
By:_______________________
Arthur H. Goldberg,
Chief Executive Officer
ATTEST:
By:_______________________
, Secretary
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED________________
hereby sells, assigns and transfers unto _______________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ______________________
Attorney, to transfer the within Warrant Certificate on the books of Orion
Acquisition Corp. I, with full power of substitution.
Dated:_____________________
Signature____________________
(Signature must conform in all respects to
the name of holder as specified on the face
of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase:
________ Class B Warrants
and herewith tenders in payment for such securities a certified or cashier's
check or money order payable to the order of Orion Acquisition Corp. I 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 the name of holder as specified on
the face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
EXHIBIT B
ORION ACQUISITION CORP. I
WARRANT CERTIFICATE
THE SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANT REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
The securities represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"), and may not be offered for
sale or sold except pursuant to (i) an effective registration statement under
the Act, or (ii) an opinion of counsel, if such opinion shall be reasonably
satisfactory to counsel to the issuer, that an exemption from registration under
such Act is available.
THE TRANSFER OR EXCHANGE OF THE WARRANT REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE COMMENCING _____________ THROUGH 5:00 P.M., NEW YORK TIME
__________________.
No.WW-1 _________ Warrants
This Warrant Certificate certifies that ________________ _______ or
registered assigns, is the registered holder of _________ warrants (the
"Warrants") to purchase initially, at any time from ______________, until 5:00
p.m., New York time on _________________ (the "Expiration Date"), up to ________
Redeemable Class B common stock purchase warrants (the "Class B Warrants") of
Orion Acquisition Corp. I, a Delaware corporation (the "Company"), of the
Company at the exercise price of $5.75 per Class B Warrant (the "Exercise
Price"), upon the surrender of this Warrant Certificate and payment of the
Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the warrant agreement dated as of
_____________ (the "Warrant Agreement") by and among the Company and H.J. Meyers
&
Co., Inc., as representative of several underwriters (the "Representative").
Payment of the Exercise Price shall be made by certified or cashier's check or
money order payable to the order of the Company. No Warrant may be exercised
after 5:00 P.M., New York time, on the Expiration Date, at which time all
Warrants evidenced hereby, unless exercised prior thereto, shall thereafter be
void. Each Class B Warrant entitles the registered holder to purchase one (1)
Unit of the Company at a price of $.125, consisting of one share of Common
Stock, $.01 par value ("Common Stock"), and one non-redeemable Class A common
stock purchase warrant ("Class A Warrant") of the Company, at the times set
forth in the Warrant Agreement. Each Class A Warrant entitles the registered
holder to purchase one (1) share of Common Stock at $9.00 per share at the times
set forth in the Warrant Agreement. Except as set forth in the Warrant Agreement
and as described below, the Class A Warrants and Class B Warrants are subject to
the conditions set forth in the Warrant Agreement dated _______________ between
the Company and American Stock Transfer & Trust Company.
Except as set forth in the Warrant Agreement and as described below, the
Class B Warrants are subject to the conditions set forth in the Warrant
Agreement dated _________________ between the Company and American Stock
Transfer & Trust Company.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement 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.
The Warrant Agreement 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 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 Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new
Warrant Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange as provided herein, 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
Certificate, the Company shall forthwith issue to the holder hereof a new
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 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 Warrant Certificate which are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate this ____
day of __________ 199__.
[SEAL]
ORION ACQUISITION CORP. I
By:_____________________
Arthur H. Goldberg,
Chief Executive Officer
ATTEST:
By:___________________
, Secretary
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED________________
hereby sells, assigns and transfers unto _____________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________________
Attorney, to transfer the within Warrant Certificate on the books of Orion
Acquisition Corp. I, with full power of substitution.
Dated:
Signature_____________________
(Signature must conform in all respects
to the name of holder as specified on
the face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase:
_____Class B Warrants
and herewith tenders in payment for such securities a certified or cashier's
check or money order payable to the order of Orion Acquisition Corp. I 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 the name of holder as specified on
the face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)