THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED IN
VIOLATION OF SUCH ACT OR LAWS, THE RULES AND
REGULATIONS THEREUNDER OR THE PROVISIONS
OF THIS WARRANT.
WARRANT TO PURCHASE 15,625 SHARES
OF COMMON STOCK OF
AMERIHOST PROPERTIES, INC.
ISSUED TO
RUSSELL J. CERQUA
DATED: FEBRUARY 3, 1997
NO. 0297-RJC
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
THIS IS TO CERTIFY THAT RUSSELL J. CERQUA (or his or its registered
assigns, herein referred to as the "Warrantholder") is entitled, upon the due
exercise hereof and subject to the terms and conditions hereof, anytime
commencing on the date of this Certificate (the "Commencement Date"), and ending
on the tenth anniversary of the Commencement Date (the "Expiration Date"), to
purchase from AMERIHOST PROPERTIES, INC., a Delaware corporation (the
"Company"), and the Company shall issue and sell to the Warrantholder, the
number of shares of common stock, $.005 par value per share (the "Common
Stock"), of the Company (the "Shares") set forth above upon surrender hereof,
with the form of election to purchase included herein completed and duly
executed, at the office of the Company, and upon simultaneous payment therefor
at an exercise price per Share equal to $1.53125 per Share (hereinafter referred
to as the "Purchase Price") in cash and/or check payable to the order of the
Company. The number and Purchase Price of the Shares are subject to adjustment
as provided herein.
1. The Warrantholder acknowledges that it may sell, transfer,
assign, hypothecate or otherwise dispose of this Warrant after the Commencement
Date, provided such sale, transfer, assignment, hypothecation or other
disposition is in accordance with applicable federal and state securities laws
and the Company agrees that the Warrantholder has complied with such laws. In
connection therewith the Company may require an opinion of counsel and/or other
documentation evidencing compliance with such laws. Notwithstanding the
foregoing, the Warrantholder acknowledges that it may not sell, transfer or
assign this Warrant to other than the original holder's estate or heirs prior to
the second anniversary of the Commencement Date.
2. Subject to the restrictions set forth above and in Section 3
hereof, upon surrender of this Warrant, and payment of the Purchase Price as
aforesaid, the Company shall issue and deliver with all reasonable dispatch the
certificate(s) for the Shares to or upon the written order of the holder of this
Warrant and in such name or names as such holder may designate. Such
certificate(s) shall represent the number of Shares issuable upon the exercise
of the Warrants embodied herein, together with a cash amount (if the holder has
so elected in accordance with the provisions of Section 9 hereof) in respect of
any fraction of a Share otherwise issuable upon such surrender.
Certificate(s) representing the Shares shall be deemed to have
been issued and the person so designated to be named therein shall be deemed to
have become a holder of record of such Shares as of the date of the surrender of
this Warrant and payment of the Purchase Price as aforesaid; provided, however
that if, at the date of surrender of this Warrant and payment of such Purchase
Price, the transfer books for the Shares or other classes of stock purchasable
upon the exercise of this Warrant shall be closed, the certificate(s) for the
Shares in respect of which this Warrant is then exercised shall be issuable as
of the date on which such books shall next be opened, and until such date the
Company shall be under no duty to deliver any certificate(s) for such Shares.
This Warrant shall be exercisable, at the election of the registered holder
hereof, either as an entirety or from time to time for part of the number of
Shares specified herein, but in no event shall fractional Shares be issued with
regard to the exercise of this Warrant. In the event that this Warrant is
exercised at any time prior to the close of business on the Expiration Date, a
new Warrant shall be issued to such holder for the remaining number of Shares,
if any, purchasable pursuant hereto. The Company shall cancel this Warrant when
it is surrendered upon exercise.
Prior to due presentment for registration of transfer of this
Warrant, the Company shall deem and treat the Warrantholder in whose name this
Warrant shall be issued as the absolute owner of this Warrant (notwithstanding
any notation of ownership or other writing on this Warrant made by anyone other
than the Company) for the purpose of any exercise hereof, of any distribution to
the holder hereof, and for all other purposes, and the Company shall not be
affected by any notice to the contrary.
3. The Company shall pay all documentary stamp taxes, if any,
attributable to the initial issuance of the Shares issuable upon the exercise of
this Warrant, provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue or delivery of any certificate(s) for Shares in a name other than that of
the Warrantholder upon the exercise of this Warrant, and in such case the
Company shall not be required to issue or deliver any certificates for Shares
until or unless the person or persons requesting the issuance have paid to the
Company the amount of such tax or have established to the Company's satisfaction
that such tax has been paid.
4. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue and deliver, in exchange and substitution for
and upon cancellation of a mutilated Warrant, or in lieu of and substitution for
a Warrant lost, stolen or destroyed, a new Warrant of like tenor and
representing an equivalent number of Shares purchasable upon exercise at
equivalent exercise times and exercise prices, but only upon receipt of evidence
satisfactory to the Company of such loss, theft or destruction of such Warrant
and reasonable indemnity or bond, if requested, also satisfactory to the
Company. Applicants for such substitute Warrant shall also comply with such
other reasonable conditions and pay such other reasonable charges as the Company
may prescribe.
5. (a) For the purpose of enabling it to satisfy any obligation to
issue Shares upon the exercise of this Warrant, the Company shall at all times
through the Expiration Date, reserve and keep available, free from pre-emptive
rights and out of its aggregate authorized but unissued shares of Common Stock,
the number of Shares deliverable upon the exercise of this Warrant.
(b) Before taking any action which would cause an adjustment
pursuant to the terms set forth herein reducing the Purchase Price attributable
to any Shares below the then par value (if any) of such Shares, the Company
shall take any corporate action which may, in the opinion of its counsel (which
may be counsel regularly engaged by the Company), be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares at the
Purchase Price as so adjusted.
(c) The Company covenants that all Shares issued upon exercise
of the Warrants shall, upon issuance in accordance with the terms hereof, be
fully paid and nonassessable and free from all pre-emptive rights and taxes,
liens, charges and security interests created by the Company with respect to the
issuance and holding thereof.
(d) After the Expiration Date, no Shares shall be subject to
reservation in respect of this Warrant.
6. Unless this Warrant is surrendered and payment made as herein
provided before the Expiration Date, this Warrant will become wholly void and
all rights evidenced hereby will terminate.
7. Subject to the provisions of Section 2 above, this Warrant may be
exchanged for a number of Warrants of the same tenor as this Warrant for the
purchase in the aggregate of the same number of Shares of the Company as are
purchasable upon the exercise of this Warrant, upon surrender hereof at the
office of the Company with written instructions as to the denominations of the
Warrants to be issued in exchange.
8. (a) In case the Company shall at any time after the date of this
Agreement (i) declare a dividend on the Common Stock of the Company payable in
shares of the Company's capital stock (whether in shares of Common Stock or of
capital stock of any other class), (ii) subdivide the outstanding Common Stock,
(iii) reverse split the outstanding Common Stock into a smaller number of shares
or (iv) issue any shares of the Company's capital stock in a reclassification of
the Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation), the
Purchase Price in effect with respect to each Share covered hereby, whether or
not such Share can then be purchased pursuant to the terms of this Warrant, at
the time of the record date for such dividend or of the effective date of such
subdivision, reverse split or reclassification, and/or the number and kind of
shares of capital stock issuable on such date, shall be proportionately adjusted
so that the holder of any Warrant exercised after such time shall be entitled to
receive the aggregate number and kind of securities which, if such Warrant had
been exercised immediately prior to such date, such holder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
subdivision, reverse split or reclassification. Such adjustments shall be made
successively whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the making
of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of earnings (or
consolidated earnings if the Company shall have one or more subsidiaries) or
earned surplus, dividends payable in Common Stock or distributions of scrip) or
subscription rights, options or warrants, the Purchase Price with respect to
each Share covered hereby to be in effect after such record date (whether or not
such Share can then be purchased pursuant to the terms of this Warrant) shall be
determined by multiplying the Purchase Price for such Share in effect
immediately prior to such record date by a fraction, of which the numerator
shall be the current market price for a Share (as defined in Section 8(c)
hereof) on such record date less the fair market value (as determined by the
Board of Directors of the Company, whose determination shall be conclusive) of
the portion of the assets or evidences of indebtedness so to be distributed or
of such subscription rights, options or warrants applicable to one Share and of
which the denominator shall be the current market price for a Share. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the Purchase Price with
respect to each Share covered hereby shall again be adjusted to be the Purchase
Price which would then be in effect if such record date had not been fixed.
(c) For the purpose of any computation under Section 8(b)
hereof, the current market price per Share on any date shall be (i) the average
of the last reported sale prices for the past thirty trading days as reported on
a national securities exchange or (ii) the average of the last reported bid and
asked prices for the past thirty trading days if the Company's Common Stock is
reported on the NASDAQ or (iii) if the Company's Common Stock is not on the
NASDAQ, the average of the last reported sale price for the past thirty trading
days as reported in the "pink sheets" (or an equivalent quotation system) for
over-the-counter stocks or, if the Company's Common Stock is not trading, such
value as the Board of Directors of the Company, in good faith, shall determine.
(d) No adjustment in the Purchase Price with respect to any
Share covered hereby shall be required unless such adjustment would require a
decrease of at least one cent ($0.01) in such price; provided, however, that any
adjustment which (by reason of this Section 8(d)) is not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 8 shall be made to the nearest cent or to
the nearest hundredth of a Share, as the case may be, but in no event shall the
Company be obligated to issue fractional Shares or fractional portions of any
securities upon the exercise of any Warrant.
(e) In the event that at any time, as a result of an adjustment
made pursuant to Section 8(a) hereof, the holder of any Warrant thereafter
exercised shall become entitled to receive any shares of capital stock or
warrants or other securities of the Company other than the Shares, thereafter
the number of such other shares of capital stock or warrants or other securities
so receivable upon exercise of any Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Shares contained in this Section 8, and the
provisions of this Warrant with respect to the Shares shall apply, to the extent
applicable, on like terms to any such other shares of capital stock or warrants
or other securities.
(f) In any case in which this Section 8 shall require that an
adjustment in the Purchase Price with respect to any Shares covered hereby be
made effective as of a record date for a specified event, the Company may elect
to defer until the occurrence of such event the issuing to the holder of any
Warrants exercised after such record date Shares and such other shares of
capital stock or warrants or other securities of the Company, if any, issuable
upon such exercise over and above the Shares, on the basis of the Purchase Price
with respect to such Shares in effect prior to such adjustment; provided,
however that the Company shall deliver to the holder a due bill or other
appropriate instrument evidencing such holder's right to receive such shares of
capital stock or warrants or other securities upon the occurrence of the event
requiring such adjustment.
(g) Upon each adjustment of the Purchase Price with respect to
each Share covered hereby as a result of the calculations made in Section 8(b)
hereof, each Warrant outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase (but only at the
applicable times specified herein), that number of Shares (calculated to the
nearest hundredth) obtained by (A) multiplying the number of Shares purchasable
at the Purchase Price with respect to such Shares upon exercise of a Warrant
immediately prior to such adjustment of the number of Shares by the Purchase
Price with respect to such Shares in effect immediately prior to such adjustment
of the Purchase Price with respect to such Shares and (B) dividing the product
so obtained by the Purchase Price with respect to such Shares in effect
immediately after such adjustment of the Purchase Price with respect to such
Shares. Such adjustments and calculations shall be made with respect to all
Shares covered hereby and not only with respect to Shares which are then
eligible for purchase pursuant to the terms hereof; however, no such adjustment
or calculation shall have the effect of accelerating the vesting schedule set
forth above. Additionally, all such adjustments and calculations shall be made
separately with respect to Shares purchasable at differing exercise prices
pursuant to the terms hereof.
(h) In case of any capital reorganization of the Company, or of
any reclassification of the Common Stock (other than a change in par value, or
from par to no par value, or from no par value to par value, or as a result of
subdivision or combination), or in case of the consolidation of the Company with
or the merger of the Company into any other corporation (other than a
consolidation or merger in which the Company is the continuing corporation) or
of the sale of the properties and assets of the Company as, or substantially as,
an entirety to any other corporation, each Warrant shall after such
reorganization, reclassification, consolidation, merger or sale be exercisable
(but only at the applicable times specified herein), upon the terms and
conditions specified herein, for the number of shares of Common Stock or other
capital stock or warrants or other securities or property to which a holder of
the number of Shares purchasable (at the time of such reorganization,
reclassification, consolidation, merger or sale, whether or not such right to
purchase can then be exercised pursuant to the terms hereof) upon exercise of
such Warrant would have been entitled upon such reorganization,
reclassification, consolidation, merger or sale; and in any such case, if
necessary, the provisions set forth in this Section 8(h) with respect to the
rights and interests thereafter of the registered holders of all Warrants
purchasable upon the exercise of any portion of this Warrant shall be
appropriately adjusted so as to be applicable, as nearly as may reasonably be,
to any Shares of Common Stock or other capital stock or warrants or other
securities or property thereafter deliverable on the exercise of the Warrants.
The subdivision, reverse split or combination of shares of Common Stock at any
time outstanding into a greater or lesser number of shares shall not be deemed
to be a reclassification of the Common Stock for the purposes of this Section
8(h). The Company shall not effect any such consolidation or merger or sale
unless prior to or simultaneously with the consummation thereof, the successor
corporation (if other than the Company) resulting from such consolidation, or
merger or the corporation purchasing such assets or other appropriate
corporation or entity shall assume, by written instrument executed and delivered
to the registered holders of all Warrants, the obligation to deliver to the
holders of all Warrants such shares of Common Stock or other capital stock, or
warrants or securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to purchase, and any other obligations
of the Company under this Warrant.
(i) In no event shall an adjustment be made in the Purchase
Price or the number of Shares purchasable upon the exercise of this Warrant
because the Company issues, in exchange for cash, property or services, Shares,
or any securities convertible into or exchangeable for Shares, or securities
carrying the right to purchase Shares or such convertible or exchangeable
securities; it being understood that the adjustment provided for in this Section
8 shall be made upon the conversion, exchange or exercise (as applicable) of
such securities.
9. (a) Upon exercise the Company shall not be required to issue
fractions of Shares. In lieu of such fractional Shares, the holders of Warrants
shall receive an amount in cash equal to the same fraction of the current market
value of one whole Share. For purposes of this Section 9, the current market
value of one whole Share shall be determined pursuant to Section 8(c) hereof.
All calculations under this Section 9 shall be made to the nearest cent.
(b) The exercise price may be paid by check or, at the option of
the holder, the holder may instruct the Company in writing to retain certain
shares to be received upon exercise and to apply the current value of those
shares (based on the closing bid price reported on NASDAQ on the preceding
business day) to the payment of the total exercise price.
10. The holder of a Warrant shall not be entitled to any rights
of a shareholder of the Company with respect to any Shares purchasable upon the
exercise thereof, including voting, dividend or dissolution rights, until such
Shares have been paid for in full and issued to such holder. As soon as
practicable after such exercise, the Company shall deliver a certificate or
certificates for the securities issuable upon such exercise, all of which shall
be fully paid and nonassessable, to the person or persons entitled to receive
the same; provided, however, that such certificate or certificates delivered to
the holder of the surrendered Warrant shall bear a legend reading substantially
as follows:
No sale, offer to sell or transfer of these securities or this
certificate or of any shares or other securities issued in exchange for or
in respect of these securities shall be made unless a registration
statement under the Securities Act of 1933 (the "Act"), as amended, and any
applicable state securities laws, with respect to such securities, is in
effect or an exemption from the registration requirements of the Act and
such laws is then in fact applicable to such securities, to the Company's
satisfaction.
11. (a) Upon any adjustment of the Purchase Price with respect
to any Share covered hereby pursuant to Section 8 hereof, the Company within
ninety (90) calendar days thereafter shall have on file for inspection by the
holder hereof a certificate of the Board of Directors of the Company setting
forth the Purchase Price with respect to each Share covered hereby after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such calculations are based and setting forth the number of
Shares purchasable upon exercise of a Warrant after such adjustment in the
Purchase Price, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein.
(b) In case:
(1) the Company shall authorize the issuance to all holders
of Common Stock of rights, options or warrants to subscribe for or purchase
capital stock of the Company or of any other subscription rights, options
or warrants; or
(2) the Company shall authorize the distribution to all
holders of Common Stock of evidences of its indebtedness or assets (other
than cash dividends or cash distributions payable out of earnings (or
consolidated earnings if the Company shall have one or more subsidiaries)
or earned surplus or dividends payable in Common Stock or distributions of
scrip); or
(3) of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is
required, or of the conveyance or transfer of the properties and assets of
the Company substantially as an entirety, or of any capital reorganization
or any reclassification of the Common Stock (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
(4) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(5) the Company proposes to take any other action which
would require an adjustment of the Purchase Price pursuant to Section 8
hereof;
then the Company shall give to the holder of a Warrant at his, her or
its address appearing below at least twenty (20) calendar days prior
to the applicable record date hereinafter specified in (i) or (ii)
below, by first-class mail, postage prepaid, a written notice stating
(i) the date as of which the holders of record of shares of Common
Stock to be entitled to receive any such rights, options, warrants or
distribution are to be determined or (ii) the date on which any such
consolidation, merger, conveyance, transfer, reorganization,
reclassification, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that
holders of record of shares of Common Stock shall be entitled to
exchange such shares for securities or other property, if any,
deliverable upon such consolidation, merger, conveyance, transfer,
reorganization, reclassification, dissolution, liquidation or winding
up. The failure to give the notice required by this Section 11(b) or
any defect therein shall not affect the legality or validity of any
distribution right, option, warrant, consolidation, merger,
conveyance, transfer, reorganization, reclassification, dissolution,
liquidation or winding up or the vote upon any action.
(c) Nothing contained herein shall be construed as conferring
upon the holder of a Warrant with respect to the Shares the right to vote or to
consent or to receive notice as a stockholder in respect of the meetings of
stockholders or the election of directors of the Company or any other matter, or
any rights whatsoever as a stockholder of the Company.
12. The Company agrees that if, at any time, within the ten (10)
year period commencing February 3, 1997, it should file a Registration Statement
with the Securities and Exchange Commission (the "Commission") pursuant to the
Act and the underwriter(s) for the prospective offering agrees to permit
shareholders holding Shares or other securities received upon exercise of the
Warrants to include all or a portion of their Shares or other securities in the
Registration Statement and register such Shares or other securities for sale,
the Company, at its own expense, will offer to the holders of Warrants, not less
than 30 days prior to the filing of such Registration Statement, the opportunity
to register all or a portion of the Shares that the holders of Warrants have
received upon exercise of the Warrants prior to the time of such filing pro rata
with all other holders of Shares of the Company that have piggyback registration
rights or are otherwise registering their Shares for sale to the public. The
Company undertakes no obligation to file a Registration Statement. Further, the
Company undertakes no obligation to maintain a current Registration Statement.
The Warrantholder's rights provided for above are not applicable to a
Registration Statement filed by the Company with the Commission on Forms S-4 or
S-8 or any other inapplicable form.
13. Any notice, request, demand or other communication pursuant
to the terms of this Warrant shall be in writing and shall be sufficiently given
or made when delivered or mailed by first-class or registered mail, postage
prepaid, if to the Company addressed to:
AMERIHOST PROPERTIES, INC.
2400 East Devon Avenue
Suite 280
Des Plaines, Illinois 60018
Attention: Secretary
with a copy to:
Helen R. Friedli, P.C.
McDermott, Will & Emery
227 West Monroe Avenue
Chicago, Illinois 60606
or to such other address or such other counsel as the Company may designate by
written notice to the holder of a Warrant, and if to the holder of a Warrant at
his or its registered address on the records of the Company.
14. All the covenants and provisions herein by or for the
benefit of the Company shall bind and inure to the benefit of its respective
successors and assigns to the extent permitted hereunder and all of the
covenants and provisions herein by or for the benefit of the holder hereof shall
inure to the benefit of such holder's successors, legal representatives, heirs
or assigns as permitted herein.
15. This Warrant shall be deemed to be a contract made under the
laws of the State of Illinois for all purposes and shall be construed in
accordance with the internal laws of such State.
16. Nothing in this Warrant shall be construed to give to any
person or corporation other than the Company and the holder of this Warrant any
legal or equitable right, remedy or claim under this Warrant; but this Warrant
shall be for the sole and exclusive benefit of the Company and the holder of
this Warrant.
* * *
IN WITNESS WHEREOF, an authorized officer of the Company has signed
this Warrant.
AMERIHOST PROPERTIES, INC.
By:
President
ELECTION TO PURCHASE
(To be executed by the holder only if he, she or it desires to exercise
Warrants evidenced by the original Warrant attached hereto.)
TO: AMERIHOST PROPERTIES, INC.
2400 East Devon Avenue
Suite 280
Des Plaines, Illinois 60018
The undersigned hereby (1) irrevocably elects to exercise ____________
Warrants, evidenced by the original Warrant attached hereto, for and to purchase
thereunder Shares issuable upon exercise of said Warrants, (2)
makes payment in full of the Purchase Price of such Shares, (3) requests that
certificates for the Shares be issued in the name of:
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
_________________________________________________________________
________________________________
(Please print Social Security or
Tax Identification Number)
and, (4) if said number of Warrants shall not be all the Warrants evidenced by
the attached original Warrant, requests that a new Warrant evidencing Warrants
not so exercised be issued in the name of and delivered to:
__________________________________________________________________
(Please print name and address)
__________________________________________________________________
__________________________________________________________________
In lieu of receipt of a fractional Share the undersigned hereby elects (check
the appropriate line):
(i) to receive a cash payment, and the check representing payment
thereof should be made payable
to_________________________________________________________
__________________________________________________________________________
(Please print name and address)
and should be delivered to
_________________________________________________
________________________________________________________________________
____________________________________________________________________;
or
(ii) to credit the amount of such payment against the Purchase Price
payable for the Shares issuable upon the exercise of said
Warrants.
DATED:
Signature:
NOTICE: The above signature must correspond with
the name as written upon the face of the
attached Warrant in every particular,
without alteration or enlargement or any
change whatsoever.