WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of this ____ day of April, 1997,
between ROMTECH, INC., a Pennsylvania corporation (the "Company"), and
_____________________________, a ___________________________( the "Holder").
W I T NE S S E T H:
WHEREAS, the Company desires to provide for the
issuance of a Warrant to the Holder upon the terms and conditions provided
herein.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth, the parties hereto agree as
follows:
SECTION 1. Definitions. As used herein, the following
terms shall have the following meanings, unless the context shall otherwise
require:
(a) "Average Quoted Price" of a share of
Common Stock is the average of the closing bid price for the period in question
of the Common Stock as reported on the Nasdaq SmallCap Market, or the primary
securities market or exchange on which the Common Stock is then quoted;
provided, however, that if the Common Stock is neither traded on the Nasdaq
SmallCap Market nor on any other securities market or exchange, the price
referred to above shall be the closing bid price reflected in the
over-the-counter market as reported by the National Quotation Bureau, Inc. or
any organization performing a similar function.
(b) "Common Stock" shall mean the common
stock of the Company, without par value.
(c) "Effective Date" shall mean April ,
1997.
(d) "Exercise Date" shall mean the date on
which the Company shall have received both (i) the Warrant Certificate
representing this Warrant, with the exercise form thereon duly executed by the
Holder hereof or his attorney duly authorized in writing, and (ii) payment in
cash or by check made payable to the Company, of the amount in lawful money of
the United States of America equal to the applicable Purchase Price or payment
as provided in Section 4 hereof.
(e) "Initial Warrant Exercise Date" shall
mean, subject to the limitation set forth herein, the date that is six (6)
months after the Effective Date. Notwithstanding
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the forgoing, this Warrant shall not be exercisable until the Average Quoted
Price of the Common Stock has reached $5.66 at any time beginning on the Initial
Warrant Exercise Date and before the Warrant Expiration Date.
(f) "Market Price" per share of Common Stock
on any date means the Average Quoted Price of a share of Common Stock for the
thirty consecutive trading days commencing forty-five (45) trading days before
the date in question. In the absence of one or more such quotations, the Company
shall determine the Market Price in good faith, based on the best information
available to it.
(g) "Purchase Price" shall mean $3.94,
subject to modification and adjustment as provided in Section 8, and further
subject to the Company's right, in its sole discretion, to decrease the Purchase
Price for a period of not less than 30 days on not less than 30 days' prior
written notice to the Registered Holder.
(h) "Registered Holder" shall mean the
person in whose name any certificate representing the Warrants shall be
registered on the books maintained by the Company pursuant to Section 6.
(i) "Warrant Certificate" shall mean a
certificate representing each of the Warrants substantially in the form annexed
hereto as Exhibit A.
(j) "Warrant Expiration Date" shall mean,
5:00 p.m. (Eastern Standard Time) on October , 2000 or, if such date shown in
the Commonwealth of Pennsylvania be a holiday or a day on which banks are
authorized to close, then 5:00 p.m. (Eastern Standard Time) on the next
following day which in the Commonwealth of Pennsylvania is not a holiday or a
day on which banks are authorized to close, subject to the Company's right,
prior to the Warrant Expiration Date, in its sole discretion, to extend such
Warrant Expiration Date on five business days prior written notice to the
Registered Holders.
SECTION 2. Warrants and Issuance of Warrant
Certificates.
(a) Each Warrant shall initially entitle the
Registered Holder of the Warrant Certificate representing such Warrants to
purchase at the Purchase Price therefor, beginning on the Initial Warrant
Exercise Date until the Warrant Expiration Date, one share of Common Stock upon
the exercise thereof, subject to modification and adjustment as provided in
Section 8.
(b) Upon execution of this Agreement, a
Warrant Certificate representing _____________ Warrants to purchase up to an
aggregate of ________________ shares of Common Stock (subject to modification
and adjustment as provided in Section 8) shall be executed by the Company and
delivered to the Holder.
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(c) From time to time, up to the Warrant
Expiration Date, as the case may be, the Company shall countersign and deliver
Warrant Certificates in required denominations of one or whole number multiples
thereof to the person entitled thereto in connection with any transfer or
exchange permitted under this Agreement. Except as provided in Section 7 hereof,
no Warrant Certificates shall be issued except (i) Warrant Certificates
initially issued pursuant to Section 2(b) hereof, (ii) Warrant Certificates
issued upon any transfer or exchange of Warrants, (iii) Warrant Certificates
issued in replacement of lost, stolen, destroyed or mutilated Warrant
Certificates pursuant to Section 7, and (iv) at the option of the Company,
Warrant Certificates in such form as may be approved by its Board of Directors,
to reflect any adjustment or change in the Purchase Price, the number of shares
of Common Stock purchasable upon exercise of the Warrants therefor made pursuant
to Section 8 hereof.
SECTION 3. Form and Execution of Warrant
Certificates.
(a) The Warrant Certificates shall be
substantially in the form annexed hereto as Exhibit A (the provisions of which
are hereby incorporated herein) and may have such letters, numbers or other
marks of identification or designation and such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or to conform to usage. The Warrant Certificates shall be dated
the date of issuance thereof (whether upon initial issuance, transfer, exchange
or in lieu of mutilated, lost, stolen or destroyed Warrant Certificates).
(b) Warrant Certificates shall be executed
on behalf of the Company by its Chairman of the Board, President or any Vice
President and by its Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary, by manual signatures or by facsimile signatures printed
thereon, and shall have imprinted thereon a manual or a facsimile of the
Company's seal.
SECTION 4. Exercise.
(a) (1) Warrants in denominations of one or
whole number multiples thereof may, subject to the limitations set forth in
Section 1(e), be exercised commencing at any time on or after the Initial
Warrant Exercise Date, but not after the Warrant Expiration Date, upon the terms
and subject to the conditions set forth herein (including the provisions set
forth in Section 5 hereof) and in the applicable Warrant Certificate. A Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the Exercise Date, provided that the Warrant Certificate
representing such Warrant, with the exercise form thereon duly executed by the
Registered Holder thereof or his attorney duly authorized in writing, together
with payment in cash or by check made payable to the Company, of an amount in
lawful money of the United States of America equal to the applicable Purchase
Price has been received in good funds by the Company. The person entitled to
receive the securities deliverable upon such exercise shall be treated for all
purposes as the holder of such securities as of the close of business on the
Exercise Date. If more than one Warrant
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Certificate shall be exercised at one time by the same Registered Holder, the
number of full shares of Common Stock which shall be issuable upon exercise
thereof shall be computed on the basis of the aggregate number of full shares of
Common Stock issuable upon such exercise. As soon as practicable on or after the
Exercise Date and in any event with ten business days after such date, the
Company shall cause to be issued to the person or persons entitled to receive
the same a Common Stock certificate or certificates for the shares of Common
Stock deliverable upon such exercise, and the Company shall deliver the same to
the person or persons entitled thereto.
(b) The Company shall be not obligated to
issue any fractional share interests or fractional Warrant interests upon the
exercise of any Warrant or Warrants, nor shall it be obligated to issue scrip or
pay cash in lieu of fractional interests. Any fraction equal to or greater than
one-half shall be rounded up to the next full share or Warrant, as the case may
be, any fraction less than one-half shall be eliminated.
SECTION 5. Reservation of Shares: Listing of Taxes;
etc.
(a) The Company covenants that it will at
all times reserve and keep available out of its authorized Common Stock, solely
for the purpose of issue upon exercise of Warrants, such number of shares of
Common Stock as shall then be issuable upon the exercise of all outstanding
Warrants. The Company covenants that all shares of Common Stock which shall be
issuable upon exercise of the Warrants shall, at the time of delivery thereof
and upon payment of the Purchase Price with respect thereto, be duly and validly
issued and fully paid and nonassessable and free from all preemptive or similar
rights, taxes, liens and charges with respect to the issue, thereof except for
taxes and other charges payable by the holder as provided in Section 5(b), and
that upon issuance such shares shall be listed on each securities exchange, if
any, on which the other shares of outstanding Common Stock of the Company are
then listed.
(b) The Company shall pay all documentary,
stamp or similar taxes and other governmental charges that may be imposed with
respect to the issuance of Warrants, or the issuance or delivery of any shares
of Common Stock upon exercise of the Warrants; provided, however, that if shares
of Common Stock are to be delivered in a name other than the name of the
Registered Holder of the Warrant Certificate representing any Warrant being
exercised, (provided that such issuance is permitted under any applicable
federal or state securities laws) then no such delivery shall be made unless the
person requesting the same has paid to the Company the amount of transfer taxes
or charges incident thereto, if any.
SECTION 6. Exchange and Registration of Transfer
(a) Warrant Certificates may be exchanged
for other Warrant Certificates representing an equal aggregate number of
Warrants, or, subject to the limitations set forth in Section 6 (g) hereof, may
be transferred in whole or in part. Warrant Certificates to be so exchanged
shall be surrendered to the Company at 2000 Cabot Boulevard West, Suite 110,
Langhorne, Pennsylvania 19047, to the attention of Gerald W. Klein, and the
Company shall execute,
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issue and deliver in exchange therefor to the Registered Holder a new Warrant
Certificate or Certificates representing an equal aggregate number of Warrants.
(b) The Company shall keep, at such office,
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates, and the transfer thereof. Upon due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and shall issue and deliver to the Registered
Holder a new Warrant Certificate or Certificates representing an equal aggregate
number of Warrants.
(c) With respect to any Warrant Certificates
presented for registration or transfer, or for exchange or exercise, the
subscription or assignment form accompanying the Warrant Certificate(s), as the
case may be, attached thereto shall be duly endorsed or be accompanied by a
written instrument or instruments of transfer or subscription, in form
satisfactory to the Company, duly executed by the Registered Holder thereof or
his attorney duly authorized in writing.
(d) No service charge shall be made for any
exchange of registration or transfer of Warrant Certificates. However, the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
(e) All Warrant Certificates surrendered for
exercise or for exchange shall be promptly canceled by the Company.
(f) Prior to due presentment for
registration or transfer thereof, the Company may deem and treat the Registered
Holder of any Warrant Certificate as the absolute owner thereof of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company) for all purposes and shall be
affected by any notice to the contrary.
(g) The Warrants represented by the Warrant
Certificates may not be exercised nor may any interest in the Warrants
represented by the Warrant Certificates be sold, assigned, pledged,
hypothecated, encumbered or in any other manner transferred or disposed of, in
whole or in part, except in compliance with applicable United States federal and
state securities laws and the terms and conditions hereof. Each Warrant
Certificate shall bear the legend set forth in Section 14 hereof. Each share of
Common Stock issued upon exercise of the Warrants shall bear a legend
substantially in the form set forth in Section 14 hereof. Any Warrant
Certificate issued at any time in exchange or substitution for any Warrant
Certificate bearing such legend shall also bear such legend unless, in the
opinion of legal counsel for the Company, the Warrants represented thereby need
no longer be subject to the restriction contained herein. The provisions of this
Section 6 (g) shall be binding upon all subsequent holders of Warrant
Certificates.
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SECTION 7. Loss or Mutilation. Upon receipt by the
Company of evidence satisfactory to it to the ownership of the loss, theft,
destruction or mutilation of any Warrant Certificate and (in the case of loss,
theft or destruction) of indemnity satisfactory to them, and (in case of
mutilation) upon surrender and cancellation thereof, the Company shall execute
and deliver in lieu thereof a new Warrant Certificate to the Registered Holder
thereof representing an equal aggregate number of Warrants. Applicants for a
substitute Warrant Certificate shall also comply with such other reasonable
regulations and pay such other charges as the Company may prescribe.
SECTION 8. Adjustment of Purchase Price and Number of
Shares of Common Stock Deliverable.
(a) (i) Except as hereinafter provided, in
the event the Company shall, at any time or from time to time after the date
hereof, sell any shares of Common Stock for a consideration per share less than
the Purchase Price or 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 sale, 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) equal to the
following:
NPP = (OB x OPP) + (NS x NSP)
OA
where:
NPP = the New Purchase Price
OPP = the existing Purchase Price immediately
OB = before the new issue the total outstanding
shares of Common Stock immediately before
Change of Shares
NS = number of shares sold or issued pursuant to
the Change of Shares
NSP = price per share of new issue
OA = the total outstanding shares of Common
Stock immediately after the
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.
For the purposes of any adjustment to be made in
accordance with this Section 8 (a) the following provisions shall be applicable:
(A) In case of the issuance or
sale of shares of Common Stock (or of other securities deemed hereunder to
involve the issuance or sale of shares of Common
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Stock) for a consideration part or all of which shall be cash, the amount of the
cash portion of the consideration therefor deemed to have been received by the
Company shall be (i) the subscription price, if shares of Common Stock are
offered by the Company for subscription, or (ii) the public offering price
(before deducting therefrom any compensation paid or discount allowed in the
sale, underwriting or purchase thereof by underwriters or dealers or others
performing similar services), if such securities are sold to underwriters or
dealers for public offering without a subscription offering, or (iii) the gross
amount of cash actually received by the Company for such securities in any other
case, in each case, without deduction for any expenses incurred by the Company
in connection with such transaction.
(B) In case of the issuance or
sale (otherwise than as a dividend or other distribution on any stock of the
Company) of shares of Common Stock (or of other securities deemed hereunder to
involve the issuance or sale of shares of Common Stock) for a consideration part
or all of which shall be other than cash, the amount of the consideration
therefor other than cash deemed to have been received by the Company shall be
the value of such consideration as determined in good faith by the Board of
Directors of the Company.
(C) Shares 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.
(D) 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 as provided in
subsection (B) of this Section 8(a).
(E) 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.
(ii) Upon each adjustment of the
Purchase Price pursuant to this Section 8, the number of shares of Common Stock
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.
(b) Except as hereinafter provided, in case
the Company shall at any time after the date hereof issue options, rights or
warrants to subscribe for shares of Common
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Stock (whether as part of a package of securities such as units, or otherwise,
herein "Units"), or issue any securities convertible into or exchangeable for
shares of Common Stock, for a consideration per share (determined as provided in
Section 8(a) and as provided below) less than the Purchase Price in effect
immediately prior to the earlier of the issuance of such options, rights or
warrants, or such convertible or exchangeable securities or the record date
therefor, or without consideration (including the issuance of any such
securities by way of dividend or other distribution), the Purchase Price for the
Warrants (whether or not the same shall be issued and outstanding) in effect
immediately prior to the issuance of such options, Units, rights or warrants, or
other such convertible or exchangeable securities, as the case may be, shall be
reduced to a price determined by making the computation in accordance with the
provisions of Section 8(a) hereof, provided that:
(A) The aggregate maximum
number of shares of Common Stock, as the case may be, issuable or that may
become issuable under such options, rights, Units or warrants (assuming exercise
in full even if not then currently exercisable or currently exercisable to full)
shall be deemed to be issued and outstanding at the time such options, rights,
Units, or warrants were issued, for a consideration equal to the minimum
purchase or exercise price per share provided for in such options, rights or
warrants at the time of issuance, plus the consideration, if any, received by
the Company upon the issuance of such options, rights, Units or warrants
(without deduction for expenses incurred or amounts paid to any underwriter by
the Company in connection with such issuance); provided, however, that upon the
expiration or other termination of such options, rights or warrants, if any
thereof shall not have been exercised, the number of shares of Common Stock
deemed to be issued and outstanding pursuant to this subsection (A) (and for the
purposes of subsection (E) of Section 8(a) hereof) shall be reduced by the
number of shares as to which options, warrants and/or rights outstanding, and
the Purchase Price then in effect shall forthwith be readjusted and thereafter
be the price that it would have been had adjustment been made on the basis of
the issuance only of the shares actually issued plus the shares remaining
issuable upon the exercise of those options, rights or warrants as to which the
exercise rights shall not have expired or terminated unexercised.
(B) The aggregate maximum
number of shares of Common Stock issuable or that may become issuable upon
conversion or exchange of any convertible or exchangeable securities (assuming
conversion or exchange in full even if not then currently convertible or
exchangeable in full) shall be deemed to be issued and outstanding at the time
of issuance of such securities, for a consideration equal to the consideration
received by the Company upon the issuance of such securities (without deduction
for expenses incurred or amounts paid to any underwriter in connection with such
issuance), plus the minimum consideration, if any, receivable by the Company
upon the conversion or exchange thereof; provided, however, that upon the
termination of the right to convert to or exchange such convertible or
exchangeable securities (whether by reason or redemption or otherwise), the
number of shares of Common Stock deemed to be issued and outstanding pursuant to
this subsection (B) (and for the purposes of subsection (E) of Section 8(a)
hereof) shall be reduced by the number of shares as to which the conversion or
exchange rights shall have expired or terminated unexercised, and such number of
shares shall no longer be deemed to be
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issued only of the shares actually issued plus the shares remaining issuable
upon conversion or exchange rights shall not have expired or terminated
unexercised.
(C) If any change shall occur
in the price per share provided for in any of the options, rights or warrants
referred to in subsection (A) of this Section 8(b), or in the price per share or
ratio at which the securities referred to in subsection (A) of this Section 8(b)
are convertible or exchangeable (in either case, other than changes in such
prices or ratios arising pursuant to antidilution adjustments in such options,
rights, Units, warrants or convertible or exchangeable securities or the
instruments pursuant to which they were issued, provided that such options,
rights, warrants, convertible or exchangeable securities or instruments pursuant
to which they were issued do not contain antidilution provisions any more
favorable to the holder thereof than those contained herein) such options,
rights, Units, or warrants or conversion or exchange rights, as the case may be,
to the extent not theretofore exercised, shall be deemed to have expired or
terminated on the date when such price change became effective in respect of
shares not theretofore issued pursuant to the exercise or conversion or exchange
thereof, and the Company shall be deemed to have issued upon such date new
options, rights, Units or warrants or convertible or exchangeable securities.
(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 subdivision or combination),
or in case of any consolidation or merger of the Company with or into another
corporation (other than a merger in which 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 or
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 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. Such provisions shall include provision for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Sections 8(a) and (b). The above provisions of this Section 8(c) shall similarly
apply to successive reclassification 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 theretofore
and thereafter issued shall, unless the Company shall exercise its option to
issue new Warrant Certificates pursuant to Section 2(e) hereof, continue to
express the Purchase
9
Price per share and the number of shares 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 Vice 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 (ii) a brief statement of the facts accounting for such
adjustment. The Company will 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 books of the Company. 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 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 or
in the number of shares of Common Stock issuable upon exercise of the Warrants
shall be made as a result of or in connection with (A) the issuance or sale of
shares of Common Stock pursuant to options, warrants and convertible or
exchangeable securities outstanding or in effect or provided for on the date
hereof, (B) the issuance or sale of shares of Common Stock upon the exercise of
options referred to in clause (A) above, (C) the issuance of shares of Common
Stock pursuant to the exercise of options to purchase Common Stock granted to
employees of the Company pursuant to the Company's Amended and Restated 1995
Stock Option Plan (D) the issuance or sale of shares of Common Stock if the
amount of said adjustment shall be less than $.05, 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 that shall amount, together with any adjustment so carried
forward, to at least $.05. 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.
SECTION 9. Modification of Agreement. This Agreement
may not be modified, supplemented or altered in any respect except with the
consent in writing of the Registered Holders and the Company; provided, further,
that no change in the number or nature of the securities purchasable upon the
exercise of any Warrant, or the Purchase Price therefor shall be made without
the consent in writing of the Registered Holder of affected Warrant, other than
such changes as are specifically prescribed by this Agreement as originally
executed.
SECTION 10. Notices. All notices, requests, consents
and other communications hereunder shall be in writing and shall be deemed to
have been made when delivered or mailed first-class postage pre-paid, or
delivered to a telegraph office for transmission if the Registered Holder of a
Warrant Certificate, at the address of such holder as shown on the registry
books maintained by the Company; if to the Company at 2000 Cabot Boulevard West,
Suite 110,
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Langhorne, Pennsylvania 19047, Attention: Gerald W. Klein, or at such other
address as may have been furnished to the Registered Holder in writing by the
Company.
SECTION 11. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania without giving effect to conflicts of laws.
SECTION 12. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the Company and the holders from time
to time of Warrant Certificates or any of them. Except as hereinafter stated,
nothing in this Agreement is intended or shall be construed to confer upon any
other person any right, remedy or claim or to impose upon any other person any
duty, liability or obligation.
SECTION 13. Counterparts. This Agreement may be
executed in one or more counterparts, which taken together shall constitute a
single document.
Section 14. Legend. The Warrants and the shares of
Common Stock issuable upon exercise of the Warrants have not been registered
under the Act. Upon exercise, in part or in whole, of the Warrants, certificates
representing the shares of Common Stock underlying the Warrants and any of the
other securities issuable upon exercise of the Warrants (collectively, the
"Warrant Securities") shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR
ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAWS OR, UNLESS, IN THE OPINION OF COUNSEL, IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, OR TRANSFER IS
EXEMPT FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH
LAWS.
Section 15. Registration Rights. The Company and the
Registered Holder and its permitted transferees acknowledge and agree that the
shares of Common Stock underlying this Warrant are subject to a Registration
Rights Agreement between the Registered Holder and the Company dated the date
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the first date above written.
ROM TECH, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
HOLDER:
By:____________________________________
Name:__________________________________
Title:_________________________________
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EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT AND SUCH LAWS, WHICH, IN THE OPINION OF COUNSEL, IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, IS AVAILABLE.
NO. _____ VOID AFTER October , 2000
WARRANT CERTIFICATE TO PURCHASE _______ SHARES OF COMMON STOCK
of
ROM TECH, INC.
THIS CERTIFIES THAT, FOR VALUE RECEIVED
_______________________________ or registered assigns (the "Registered Holder")
are the owners of the number of Common Stock Purchase Warrants (the "Warrants")
specified above. Each Warrant initially entitles the Registered Holder to
purchase, subject to the terms and conditions set forth in this Certificate and
the Warrant Agreement (as hereinafter defined), one fully paid and nonassessable
share of Common Stock, without par value, of Rom Tech, Inc., a Pennsylvania
corporation (the "Company"), at any time beginning on October , 1997 and prior
to the Expiration Date (as such term is defined in the Warrant Agreement),
subject to the limitation that the Average Quoted Price (as such term is defined
in the Warrant Agreement) of Company's Common Stock shall at any time beginning
on October , 1997 and ending on Expiration Date have reached $5.66, upon the
presentation and surrender of this Warrant Certificate with the Subscription
Form on the reverse hereof duly executed, at the corporate office of the
Company, accompanied by payment of the Purchase Price (as such term is defined
in the Warrant Agreement), in lawful money of the United States of America in
cash or by check made payable to the Company.
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This Warrant Certificate and each Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the Warrant Agreement (the "Warrant Agreement"), dated
as of April , 1997, by and between the Company and _____________________.
In the event of certain contingencies provided for in the
Warrant Agreement, the Purchase Price and the number of shares of Common Stock
subject to purchase upon the exercise of each Warrant represented hereby are
subject to modification or adjustment.
Each Warrant represented hereby is exercisable at the option
of the Registered Holder, but no fractional interests will be issued. In the
case of the exercise of less than all the Warrants represented hereby, the
Company shall cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificate or Warrant Certificates of
like tenor for the balance of such Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (Eastern
Standard Time) on October , 2000. If each such date shall in the Commonwealth
of Pennsylvania be a holiday or a day on which the banks are authorized to
close, then the Expiration Date shall mean 5:00 p.m. (Eastern Standard Time) the
next following day which in the Commonwealth of Pennsylvania is not a holiday or
a day on which banks are authorized to close.
This Warrant shall not be exercisable by a Registered Holder
in any state where such exercise would be unlawful.
The Warrant Certificate is exchangeable, upon the surrender
hereof by the Registered Holder at the corporate office of the Company, for a
new Warrant Certificate or Warrant Certificates of like tenor representing an
equal aggregate number of Warrants, each of such new Warrant Certificates to
represent such number of Warrants as shall be designated by such Registered
Holder at the time of such surrender. Upon due presentment and payment of any
tax or other charge imposed in connection therewith or incident thereto, for
registration of transfer of this Warrant Certificate at such office, a new
Warrant Certificate representing an equal aggregate number of Warrants will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
Prior to due presentment for registration of transfer hereof,
the Company may deem and treat the Registered Holder as the absolute owner
hereof and of each Warrant represented hereby (notwithstanding any notations of
ownership or writing hereon made by anyone other than a duly
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authorized officer of the Company) for all purposes and shall not be affected by
any notice to the contrary, except as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed as of the date hereof.
Dated: April __, 1997
ROM TECH, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
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SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrant
The undersigned Registered Holder hereby irrevocably
elects to exercise Warrants represented by this Warrant Certificate, and to
purchase the securities issuable upon the exercise of such Warrants, and
requests that ______ certificates for such securities shall be issued in name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
--------------------------------
--------------------------------
--------------------------------
(please print or type name and address)
and be delivered to
--------------------------------
--------------------------------
--------------------------------
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Warrant Certificate for the
balance of such Warrants be registered in the name of, and delivered to, the
Registered Holder at the address stated below.
Dated:___________________
Signature______________________
Print Name_____________________
Address________________________
-------------------------------
Social Security or Taxpayer
Identification Number
-------------------------------
Signature Guaranteed
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ASSIGNMENT
To Be Executed by the Registered Holder
In Order to Assign Warrants
FOR VALUE RECEIVED, , hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
--------------------------------
--------------------------------
--------------------------------
(please print or type name and address)
_________________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitutes and appoints
______________________________ Attorney to transfer this Warrant Certificate on
the books of the Company, with full power of substitution in the premises.
Dated:_________________ x____________________________
Signature Guaranteed
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST
CORRESPOND TO THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER AND
MUST BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE,
MIDWEST STOCK EXCHANGE OR BOSTON STOCK EXCHANGE.
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