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Exhibit 4.1
FORM OF WARRANT
No. W____________ Number of Shares Subject to Warrant:_________
VOID AFTER 5:00 P.M. EASTERN DAYLIGHT TIME ON JUNE 30, 2002.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF
SCHUYLKILL ACQUISITION CORP.
THIS IS TO CERTIFY. that for value received.___________________________________
("Holder") is entitled to purchase, subject to the provisions of this Warrant
from Schuylkill Acquisition Corp., a Florida corporation ("Company").__________
shares of Common Stock, $.001 per value, of the Company ("Common Stock"), at an
exercise price per share equal to $4.50, at any time during the period
beginning June 1, 1997 (the "Commencement Date") and ending at 5:00 p.m.
Philadelphia, Pennsylvania time on June 30, 2002 (the "Termination Date"). The
number of shares of Common Stock to be received upon the exercise of this
Warrant and the price to be paid for a share of Common Stock may be adjusted
from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "Exercise Price".
(a) Exercise of Warrant. Subject to the provisions of Section (h)
hereof, this Warrant may be exercised in whole or in part at any time or from
time to time on or after the Commencement Date until the Termination Date or,
if either such day is a day on which banking institutions in the State of
Florida are authorized by law to close, then on the next succeeding day which
shall not be such a day, by presentation and surrender hereof to the Company at
its principal office, or at the office of its stock transfer agent, with
the Purchase Form annexed hereto duly executed and accompanied by payment of
the Exercise price for the number of shares specified in such form in lawful
money of the United States of America in cash or by official bank or certified
check made payable to Schuylkill Acquisition Corp. If this Warrant shall be
exercised in part only, the Company shall upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the rights of the
Holder thereof to purchase the balance of the shares purchasable thereunder.
Upon receipt by the Company of this Warrant at its office, or by the stock
transfer agent of the Company at its office, in proper form for exercise and
together with payment of the Exercise Price in the manner provided herein, the
Holder shall be deemed to be the holder of record of the shares of Common Stock
or other securities issuable upon such exercise provided, however, that if at
the date of surrender of such Warrants and payment of such Exercise Price the
transfer books for the Common Stock or such other securities shall be closed,
the certificates for the shares or other securities in respect of which such
Warrants are 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
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no duty to deliver any certificate for such shares or other securities and the
Holder shall not be deemed to have become a holder or record of such shares or
the owners of such other securities.
(b) Reservation of Shares. The Company hereby agrees that at all
times there shall be reserved for issuance and or delivery upon exercise of
this Warrant such number of shares of its Common Stock as shall be required for
issuance and delivery upon exercise of this Warrant.
(c) Fractional Shares. The Company shall not be required to issue
fractions of shares on the exercise of Warrants. If any fraction of a share
would, except for the provisions of this Section, be issuable on the exercise of
any Warrant, the Company will (i) if the fraction of a share otherwise issuable
is equal to less than one-half, round down and issue to the Holder only the
largest whole number of shares of Common Stock to which the Holder is otherwise
entitled, or (ii) if the fraction of a share otherwise issuable is greater than
one-half, round-up and issue to the Holder one additional share of Common Stock
in addition to the largest whole number of shares of Common Stock to which the
holder is otherwise entitled.
(d) Exchange, Transfer, Assignment or Loss of Warrant. This Warrant
is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other Warrants of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. Subject to the provisions of Section (h),
upon surrender of this Warrant to the Company or the office of its stock
transfer agent, if any, with the Assignment Form annexed hereto duly executed
and funds sufficient to pay any applicable transfer tax, the Company shall,
without charge, execute and deliver a new Warrant in the name of the assignee
named in such instrument of assignment and this Warrant shall promptly be
canceled. This Warrant may be divided or combined with other Warrants which
carry the same rights upon presentation hereof at the office of the Company or
at the office of its stock transfer agent, if any, together with a written
notice specifying the names and denominations in which new Warrants are to be
issued and signed by the Holder thereof. The term "Warrant" as used herein
includes any Warrants into which this Warrant may be divided or exchanged. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of such indemnification as the Company may in its discretion
impose, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will execute and deliver a new Warrant of like tenor and date.
(e) Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or in
equity and the rights of the Holder are limited to those expressed in the
Warrant are not enforceable against the Company except to the extent set forth
herein.
(f) Anti-Dilution Provisions. The Exercise Price and the number and
kind of securities purchasable upon the exercise of this Warrant shall be
subject to adjustment from time to time as hereafter provided.
(i) In the case of the Company issuing Common Stock as a dividend
upon Common Stock or in payment of a dividend thereon shall subdivide the
number of outstanding shares of its Common Stock into a greater number of
outstanding shares or shall contract the number
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of outstanding shares of its Common Stock into a lesser number of shares, the
Exercise Price then in effect shall be adjusted, effective at the close of
business on the record date for the determination of stockholders entitled to
receive such dividend or be subject to such subdivision or contraction, to the
price (computed to the nearest cent) determined by dividing (A) the product
obtained by multiplying the Exercise Price in effect immediately prior to close
of business on such record date by the number of shares of Common Stock
outstanding prior to such dividend, subdivision or contraction, by (B) the
number of shares of Common Stock outstanding immediately after such dividend,
subdivision or contraction.
(ii) If any capital reorganization or reclassification of the
capital stock of the Company (other than as set forth in subsection (i) of this
section (f), or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provisions
shall be made whereby the holder of each Warrant shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified in the Warrant and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented by such Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of
Common Stock immediately theretofore purchasable and receivable upon the
exercise of the rights represented by such Warrant had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any
such case appropriate provision shall be made with respect to the rights and
interest of the Holder to the end that the provisions of the Warrants
(including, without limitation, provisions for adjustment of the Exercise Price
and of the number of shares issuable upon the exercise of Warrants) shall
thereafter be applicable as nearly as may be practicable in relation to any
shares of stock, securities, or assets thereafter deliverable upon exercise of
Warrants. The Company shall not effect any such consolidation, merger or sale
unless prior to or simultaneously with the consummation thereof, the successor
corporation purchasing such assets shall assume, by written instrument, the
obligation to deliver to the Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, the Holder may be entitled to
purchase.
(iii) Upon such adjustment of the Exercise Price pursuant to
subsection (i) of this Section (f), the number of shares of Common Stock
specified in each Warrant shall thereupon evidence the right to purchase that
number of shares of Common Stock (calculated to the nearest hundredth of a
share of Common Stock) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
purchasable immediately prior to such adjustment upon exercise of such Warrant
and dividing the product so obtained by the Exercise Price in effect after such
adjustment.
(iv) Irrespective of any adjustments of the number or kind of
securities issuable upon exercise of warrants or the Exercise Price. Warrants
theretofore or thereafter issued may continue to express the same number of
shares of Common Stock and Exercise Price as are stated in similar Warrants
previously issued.
(v) The Company may, at its sole option, retain the independent
public accounting firm regularly retained by the Company, or another firm of
independent public
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accountants of recognized standing selected by the Company's Board of Directors,
to make any computation required under this Section (f), and a certificate
signed by such firm shall be conclusive evidence of any computation made under
this Section (f).
(vi) Whenever there is an adjustment in the Exercise Price
or in the number of kind of securities issuable upon exercise of the Warrants,
or both, as provided in this Section (f) the Company shall (i) promptly file in
the custody of its Secretary or Assistant Secretary a certificate signed by the
Chairman of the board of the President or Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company setting forth the facts requiring such adjustment and
the number and kind of securities issuable upon exercise of each Warrant after
such adjustment: and (ii) cause a notice stating that such adjustment has been
effected and stating the Exercise Price then in effect and the number and kind
of securities issuable upon exercise of each Warrant to be sent to each
registered holder of a Warrant.
(vii) The Exercise Price and the number of shares issuable
upon exercise of a Warrant shall not be adjusted except in the manner and only
upon the occurrence of the events heretofore specifically referred to in this
Section (f).
(viii) The Board of Directors of the company may without the
prior consent of the Holder reduce the Exercise Price or increase the number of
shares of Common Stock or other securities issuable upon exercise of the
Warrant.
(ix) No adjustment of the Exercise Price shall be made in
an amount of less than 1% of the Exercise Price in effect at the time such
adjustment is otherwise required to be made, but any such lesser adjustment
shall be carried forward and shall be made at the time and together with the
next subsequent adjustment which together with any adjustments so carried
forward, shall amount to not less than 1% of such Exercise Price.
(g) Redemption
(i) The Company shall have the right, upon thirty (30) days
written notice to call this Warrant for redemption, in whole or in part at a
call price of $0.5 per Warrant Share upon the occurrence of both of the
following events: (a) the listing of the Company's shares of Common Stock on a
securities exchange and (b) the Company's Common Stock trading in excess of
$5.25 per share for a ten day period.
(ii) In the event the Company shall desire to exercise its
right to so redeem the Warrants it shall mail a notice of redemption to each of
the Registered Holders of the Warrants to be redeemed first class postage
prepaid not later than the thirtieth (30th)day before the date fixed for
redemption at their last address as shall appear on the records of the Warrants.
Any notice mailed in the manner provided herein shall be conclusively presumed
to have been duly given whether or not the Registered Holder receives such
notice.
(iii) The notice of redemption shall specify (a) the
redemption price: (b) the date fixed for redemption: (c) the place where the
Warrant Certificates shall be delivered and the redemption price paid: and (d)
that the right to exercise the Warrant shall terminate at 5:00 p.m.
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(Eastern Daylight Time) on the business day immediately preceding the date fixed
for redemption. The date fixed for the redemption of the Warrants shall be the
Redemption Date. No failure to mail such notice nor any defect therein or in
the mailing thereof shall affect the validity of the proceedings for such
redemption except as to a Holder (i) to whom notice was not mailed or (ii) whose
notice was defective. An affidavit of any agent of the company that notice of
redemption has been mailed shall, in the absence of fraud be prima facie
evidence of the facts stated therein. Any document of the notice, or affidavit
of the person making the hand delivery and any document evidencing delivery by
U.S. Mail to Holder's address such as a certified mail receipt, shall be
conclusive evidence of delivery of notice to Holder.
(iv) Any right to exercise a Warrant shall terminate at 5:00
p.m. (Eastern Daylight Time) on the business day immediately preceding the
Redemption Date. On or after the Redemption Date. Holders of the Warrants
shall have no further rights except to receive, upon surrender of the Warrant,
the Redemption Price.
(v) From and after the date specified for redemption the
Company shall at the place specified in the notice of redemption upon
presentation and surrender to the Company by or on behalf of the Registered
Holder thereof of one or more Warrants to be redeemed deliver or cause to be
delivered to or upon the written order of such Holder a sum in cash equal to
the redemption price of each such Warrant. From and after the date fixed for
redemption and upon the deposit or setting aside by the Company of a sum
sufficient to redeem all the Warrants called for redemption such Warrants shall
expire and become void and all rights hereunder and under the Warrant
certificates except the right to receive payment of the redemption price shall
cease.
(h) Transfer to Company with the Securities Act of 1933 and
Other Applicable Securities Laws. This Warrant or the Warrant Shares or any
other security issued or issuable upon exercise of this Warrant may not be sold
or otherwise disposed of unless the Holder provides the Company with an opinion
of counsel satisfactory to the Company in form satisfactory to the Company that
this Warrant or the Warrant Shares may be legally transferred without violating
the Act and any other applicable securities laws and then, if such opinion
states that certificates representing the Warrants or
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Warrants Shares being transferred shall be required to bear a legend restricting
further transfer only against receipt of an agreement of the transferee to
comply with the provisions of this Section (h) with respect to any resale or
other disposition of such securities.
SCHUYLKILL ACQUISITION CORP.
BY:
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THE WARRANT REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THE WARRANT REPRESENTED BY THIS CERTIFICATE HAS BEEN
TAKEN BY THE REGISTERED OWNER FOR INVESTMENT, AND WITHOUT A VIEW TO RESALE OR
DISTRIBUTION THEREOF AND MAY NOT BE TRANSFERRED OR DISPOSED OF WITHOUT AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH TRANSFER OR
DISPOSITION DOES NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
RULES AND REGULATIONS THEREUNDER.
PURSUANT TO SECTION 203(d) OF THE PENNSYLVANIA SECURITIES ACT OF 1972 AND TO
THE EXTENT IF ANY REQUIRED THEREBY THE PURCHASER OF THIS SECURITY WHICH IS A
RESIDENT OF THE COMMONWEALTH OF PENNSYLVANIA HEREBY AGREES NOT TO SELL THIS
SECURITY WITHIN TWELVE MONTHS AFTER THE DATE OF PURCHASE.
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PURCHASE FORM
Dated:
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The Undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing __________________ shares of Common Stock
and hereby makes payment of $_____________ in payment of the Exercise Price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
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[Please typewrite or print]
Address:
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Social Security or Tax I.D. Number:
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Signature:
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ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________ hereby sells,
assigns and transfers unto:
Name:
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[Please typewrite or print]
Address:
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Social Security or Tax I.D. Number:
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the right to purchase Common Stock represented by this Warrant to the extent of
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shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint _______________________. Attorney to transfer the Shares
on the books of the Company with full power of substitution in _________________
the premises.
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Signature Date