EXHIBIT 10.3
THIS COMMON STOCK PURCHASE WARRANT (THE WARRANT") REPRESENTED BY THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
ACT, AS AMENDED (THE "1933 ACT") OR ANY STATE SECURITIES LAWS, AND
NEITHER THE WARRANT NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT
THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR (2) THE INVESTORS SHALL HAVE DELIVERED TO THE
COMPANY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY IN FORM, SCOPE
AND SUBSTANCE TO THE COMPANY, TO THE EFFECT THAT THE WARRANTS TO BE
SOLD OR TRANSFERRED MAY BE SOLD OR TRANSFERRED PURSUANT TO AN EXEMPTION
FROM SUCH REGISTRATION UNDER THE 1933 ACT AND STATE SECURITIES LAWS. IN
ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE AGREEMENT"), DATED
THE DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS
AMONG THE PARTIES, INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH
LIMIT THE EXERCISE RIGHTS OF THE HOLDER AND SPECIFY MANDATORY
REDEMPTION OBLIGATIONS OF THE COMPANY.
_____________________________
WORLD HEALTH ALTERNATIVES, INC.
COMMON STOCK PURCHASE WARRANT
Number of shares: _______ Holder: ________________________
________________________
________________________
Expiration Date: December 24, 2008
Exercise Price per Share: $0.60
World Health Alternatives, Inc., a company organized and existing under
the laws of the State of Florida (the "COMPANY"), hereby certifies that, for
value received, (______________), or its registered assigns (the "WARRANT
HOLDER"), is entitled, subject to the terms set forth below, to purchase from
the Company (_______________) shares (the "WARRANT SHARES") of common stock,
$0.001 par value (the "COMMON STOCK"), of the Company (each such share, a
"WARRANT SHARE" and all such shares, the "WARRANT
SHARES") in exchange for (a) one (1) Warrant and (b) $0.60 per share (as
adjusted from time to time as provided in Section 7, per Warrant Share (the
"EXERCISE PRICE")), at any time and from time to time from and after the date
thereof and through and including 5:00 p.m. New York City time on December 24,
2008 (the "EXPIRATION DATE"), and subject to the following terms and conditions:
1. REGISTRATION OF WARRANT. The Company shall register this
Warrant upon records to be maintained by the Company for that purpose (the
"WARRANT REGISTER"), in the name of the record Warrant Holder hereof from time
to time. The Company may deem and treat the registered Warrant Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof or
any distribution to the Warrant Holder, and for all other purposes, and the
Company shall not be affected by notice to the contrary.
2. INVESTMENT REPRESENTATIONS.
a. The Warrant Holder is (i) an "accredited investor" as
that term is defined in Rule 501 of Regulation D promulgated under the 1933 Act
by reason of Rule 501(a)(3) and (6), (ii) experienced in making investments of
the kind described in this Agreement and the related documents, (iii) able, by
reason of the business and financial experience of its officers (if an entity)
and professional advisors (who are not affiliated with or compensated in any way
by the Company or any of its affiliates or selling agents), to protect its own
interests in connection with the transactions described in this Agreement, and
the related documents, and (iv) able to afford the entire loss of its investment
in the Warrant.
b. The Warrant Holder is acquiring this Warrant and,
upon exercise thereof, the Warrant Shares for its own account or the account of
an affiliate for investment purposes only, and not with a present view to, or
for, resale, distribution or fractionalization thereof, in whole or in part,
within the meaning of the 1933 Act. The Warrant Holder understands that its
acquisition of the Warrant or, upon exercise thereof, the Warrant Shares has not
been registered under the 1933 Act or registered or qualified under any state
securities law in reliance on specific exemptions therefrom, which exemptions
may depend upon, among other things, the bona fide nature of such Warrant
Holders investment intent as expressed herein. The Warrant Holder shall not,
directly or indirectly, offer, sell, pledge, transfer, or otherwise dispose of
(or solicit any offers to buy, purchase, or otherwise acquire or take a pledge
of) the Warrant or the Warrant Shares, except in compliance with the terms
hereof and the registration requirements of the 1933 Act, and the rules and
regulations promulgated thereunder, or an exemption thereunder.
c. The Warrant Holder acknowledges that the certificates
representing any Warrant Shares will bear a legend indicating that they have not
been registered under the United States Securities Act of 1933, as amended (the
"1933 ACT") or any state securities laws and neither the Warrant Shares nor any
interest therein may be offered, sold, pledged, assigned or otherwise
transferred by the Warrant Holder unless
(1) a registration statement with respect thereto is effective under the 1933
Act and any applicable state securities laws or (2) the Warrant Holder shall
have delivered to the Company an opinion of counsel, reasonably satisfactory in
form, scope and substance to the Company, to the effect that the Warrant Shares
to be sold or transferred may be sold or transferred pursuant to an exemption
from such registration.
d. The Warrant Holder has been, upon request, furnished
with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Warrants and the
Warrant Shares. The Warrant Holder has been afforded the opportunity to ask
questions of the Company and have received complete and satisfactory answers to
any such inquiries. The Warrant Holder understands that such Warrant Holder's
investment in the Warrant and Warrant Shares involves a high degree of risk. The
Warrant Holder understands that no United States federal or state agency or any
other government or governmental agency has passed on or made any recommendation
or endorsement of the Warrant or the Warrant Shares.
e. If this Warrant was acquired by the Warrant Holder
pursuant to the exemption from the registration requirements of the 1933 Act
afforded by Regulation S thereunder, the Warrant Holder acknowledges and
covenants that this Warrant may not be exercised by or on behalf of a Person
during the one year distribution compliance period (as defined in Regulation S)
following the date hereof. "PERSON" means an individual, partnership, firm,
limited liability company, trust, joint venture, association, corporation, or
any other legal entity.
3. VALIDITY OF WARRANT AND ISSUE OF SHARES. The Company
represents and warrants that this Warrant has been duly authorized and validly
issued and warrants and agrees that all of Common Stock that may be issued upon
the exercise of the rights represented by this Warrant will, when issued upon
such exercise, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issue thereof.
The Company further warrants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized and reserved a sufficient number of Common Stock to
provide for the exercise of the rights represented by this Warrant.
4. REGISTRATION OF TRANSFERS AND EXCHANGE OF WARRANTS.
a. Subject to compliance with the legend set forth on the face
of this Warrant, the Company shall register the transfer of any portion of this
Warrant in the Warrant in the Warrant Register, upon surrender of this Warrant
with the Form of Assignment attached hereto duly completed and signed, to the
Company at the office specified in or pursuant to Section 9. As soon as
practicable following any such registration or transfer, a new warrant to
purchase Common Stock, in substantially the form of this Warrant (any such new
warrant, a "NEW WARRANT"), evidencing the portion of this Warrant so transferred
shall be issued to the transferee and a New Warrant evidencing the remaining
portion of this Warrant not so transferred, if any, shall be issued to the
transferring Warrant Holder. The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance of such transferee of all of the rights
and obligations of a Warrant Holder of a Warrant.
b. This Warrant is exchangeable, upon the surrender hereof by
the Warrant Holder to the office of the Company specified in or pursuant to
Section 9 for one or more New Warrants, evidencing in the aggregate the right to
purchase the number of Warrant Shares which may then be purchased hereunder. Any
such New Warrant will be dated the date of such exchange.
5. EXERCISE OF WARRANTS.
a. Upon surrender of this Warrant with the Form of Election to
Purchase attached hereto duly completed and signed to the Company, at its
address set forth in Section 9, and upon payment and delivery of the Exercise
Price per Warrant Share multiplied by the number of Warrant Shares that the
Warrant Holder intends to purchase hereunder, in lawful money of the United
States of America, in cash or by certified or official bank check or checks, to
the Company, all as specified by the Warrant Holder in the Form of Election to
Purchase, the Company shall promptly (but in no event later than 5 business days
after the Date of Exercise (as defined herein)) issue or cause to be issued and
cause to be delivered to or upon the written order of the Warrant Holder and in
such name or names as the Warrant Holder may designate (subject to the
restrictions on transfer described in the legend set forth on the face of this
Warrant), a certificate for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required herein and by the 1933 Act. Any person so
designated by the Warrant Holder to receive Warrant Shares shall be deemed to
have become holder of record of such Warrant Shares as of the Date of Exercise
of this Warrant.
b. "DATE OF EXERCISE" means the date on which the Company
shall have received (i) this Warrant (or any New Warrant, as applicable), with
the Form of Election to Purchase attached hereto (or attached to such New
Warrant) appropriately completed and duly signed, and (ii) payment of the
Exercise Price for the number of Warrant Shares so indicated by the Warrant
Holder to be purchased.
c. This Warrant shall be exercisable at any time and from time
to time until the Expiration Date for such number of Warrant Shares as is
indicated in the attached Form of Election To Purchase. If less than all of the
Warrant Shares which may be purchased under this Warrant are exercised at any
time, the Company shall issue or cause to be issued, at its expense, a New
Warrant evidencing the right to purchase the remaining number of Warrant Shares
for which no exercise has been evidenced by this Warrant.
6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The
character of the shares of stock or other securities at the time issuable upon
exercise of this Warrant and the Exercise Price therefor, are subject to
adjustment upon the occurrence of the following events:
a. ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS,
RECAPITALIZATIONS, ETC. The Exercise Price of this Warrant and the number of
shares of Common Stock or other securities at the time issuable upon exercise of
this Warrant shall be appropriately adjusted to reflect any stock dividend,
stock split, combination of shares, reclassification, recapitalization or other
similar event affecting the number of outstanding shares of stock or securities.
b. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER,
ETC. In case of any consolidation or merger of the Company with or into any
other corporation, entity or person, or any other corporate reorganization, in
which the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "REORGANIZATION"), then, in each case, the holder of this
Warrant, on exercise hereof at any time after the consummation or effective date
of such Reorganization (the "EFFECTIVE DATE"), shall receive, in lieu of the
shares of stock or other securities at any time issuable upon the exercise of
the Warrant issuable on such exercise prior to the Effective Date, the stock and
other securities and property (including cash) to which such holder would have
been entitled upon the Effective Date if such holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in this
Warrant).
c. CERTIFICATE AS TO ADJUSTMENTS. In case of any
adjustment or readjustment in the price or kind of securities issuable on the
exercise of this Warrant, the Company will promptly give written notice thereof
to the holder of this Warrant in the form of a certificate, certified and
confirmed by the Board of Directors of the Company, setting forth such
adjustment or readjustment and showing in reasonable detail the facts upon which
such adjustment or readjustment is based.
7. FRACTIONAL SHARES. The Company shall not be required to issue
or cause to be issued fractional Warrant Shares on the exercise of this Warrant.
The number of full Warrant Shares that shall be issuable upon the exercise of
this Warrant shall be computed on the basis of the aggregate number of Warrants
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section 8, be issuable
on the exercise of this Warrant, the Company shall, at its option, (i) pay an
amount in cash equal to the Exercise Price multiplied by such fraction or (ii)
round the number of Warrant Shares issuable, up to the next whole number.
8. PUT PROVISION
a. If at any time during the period commencing on the
date hereof and ending on the one hundred and twentieth (120th) day following
the date hereof the Company enters into a Definitive Purchase and Sale Agreement
(as defined below) at a purchase price of less than four (4) times Trailing
EBITA with any Target (as defined below) having a Trailing EBITA (as defined
below) of at least $3,000,000 (a "QUALIFYING ACQUISITION"), the Company may
require the Warrant Holder to exercise the Warrant, in whole, in accordance with
this Section 8 (the "PUT RIGHT"). The Company may exercise
its Put Right by delivering written notice thereof to the Warrant Holder at any
time after execution of the Definitive Purchase and Sale Agreement and prior to
the date which is not less than fifteen (15) days prior to the closing date of
the Qualifying Acquisition (the "PUT EXERCISE PERIOD"). Within ten (10) days
following the receipt of such written notice (the "PUT EXERCISE NOTICE"), the
Warrant Holder shall deposit an aggregate amount in immediately available funds
equal to the full exercise price of the Warrant into the Escrow Account (as
defined below) of the Escrow Agent (as defined below) (the "WARRANT ESCROW
FUNDS") in preparation for the exercise of the Warrant. Contemporaneous with the
closing of the Qualifying Acquisition, the Warrant Holder shall exercise the
Warrant, in whole, in accordance with Section 5 above and the Escrow Agent shall
deliver to the Company the Warrant Escrow Funds. In the event the Warrant Holder
fails to deposit the exercise price of the Warrant into the Escrow Account or
exercise the Warrant contemporaneous with the closing of the Qualifying
Acquisition: (i) the Warrant Holder shall immediately forfeit its rights to this
Warrant and any rights and interests herein or relating hereto; (ii) the Warrant
Holder shall immediately forfeit such Warrant Holder's registration rights
contained in the Registration Rights Agreement (as defined in the Stock Purchase
Agreement); and (iii) the unexercised Warrant shall be offered pro rata to all
other Warrant Holders who complied with the terms of similar put rights
contained in such Warrant Holders' warrants. Such other Warrant Holders shall
have a period of ten (10) business days to exercise the unexercised Warrant
after which any or all of the remaining unexercised Warrant shall be cancelled
by the Company. Notwithstanding anything contained herein to the contrary, in
the event that the Company does not close the Qualifying Acquisition within
sixty (60) days following the date upon which the Warrant Escrow Funds have been
deposited with the Escrow Agent, the Warrant Holder may, at its election, either
(x) exercise the Warrant, in whole or in part, or (y) upon written notice to the
Company and the Escrow Agent, demand the return of the Warrant Escrow Funds. If
the Warrant Holder provides such written notice in accordance with the preceding
sentence, the Escrow Agent shall immediately return the Warrant Escrow Funds to
the Warrant Holder.
b. For purposes of this Warrant, the following
capitalized terms shall have the following meanings:
(i) "DEFINITIVE PURCHASE AND SALE AGREEMENT" any
contract, agreement or other legally binding business arrangement relating to
any Transaction between the Company, any other Person (the "TARGET") and any
affiliates of the Company or the Target;
(ii) "ESCROW AGENT" shall mean Olshan Grundman
From Rosenzweig & Wolosky.
(iii) "ESCROW ACCOUNT" shall mean the following
escrow account:
Fleet Bank
1133 Avenue of the Americas
New York, NY 10036
For the Benefit of:
Olshan Grundman Frome Rosenzweig & Wolosky LLP
ABA #021200339
ACCT #2592-52-1891
ATTN: Scott Vanderwall
or such other escrow account which the Escrow Agent may establish.
(iv) "TRANSACTION" means (a) any transaction or
related series or combination of transactions in which the Company or any of its
subsidiaries acquires by way of merger, recapitalization, stock sale, stock
exchange or similar business combination at least 50% of the total voting power
of the Target or (b) any sale, conveyance, exclusive license or lease of all or
substantially all of the assets of the Target to the Company or any of its
subsidiaries.
(v) "TRAILING EBITA" means the earnings before
interest, taxes and amortization of the Target for the twelve (12) month period
ending on the date of the Definitive Purchase and Sale Agreement as derived from
the financial statements of the Target.
9. NOTICE. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission followed by registered or certified mail
confirmation; (iii) on the date delivered by an overnight courier service; or
(iv) on the third business day after it is mailed by registered or certified
mail, return receipt requested with postage and other fees prepaid as follows:
If to the Company:
WORLD HEALTH ALTERNATIVES, INC.
300 Penn Center Boulevard, Suite 201,
Pittsburgh, Pennsylvania 15235
ATTN: Richard E. McDonald
Telephone No.: 412-829-7800
If to the Warrant Holder:
To the address in this Warrant or to the address
provided to the Company by an Investor.
10. MISCELLANEOUS.
a. This Warrant shall be binding on and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
This Warrant may be amended only in writing and signed by the Company and the
Warrant Holder.
b. Nothing in this Warrant shall be construed to give to any
person or corporation other than the Company and the Warrant Holder any legal or
equitable right, remedy or cause of action under this Warrant; this Warrant
shall be for the sole and exclusive benefit of the Company and the Warrant
Holder.
c. This Warrant shall be governed by, construed and enforced
in accordance with the internal laws of the Commonwealth of Pennsylvania without
regard to the principles of conflicts of law thereof.
d. The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.
e. In case any one or more of the provisions of this Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonably substitute therefore, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
f. The Warrant Holder shall not, by virtue hereof, be entitled
to any voting or other rights of a shareholder of the Company, either at law or
equity, and the rights of the Warrant Holder are limited to those expressed in
this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by the authorized officer as of the date first above stated.
WORLD HEALTH ALTERNATIVES, INC.
By: ___________________________
Name: _________________________
Title: ________________________
FORM OF ELECTION TO PURCHASE
(To be executed by the Warrant Holder to exercise the right to purchase shares
of Common Stock under the foregoing Warrant)
To: WORLD HEALTH ALTERNATIVES, INC.
In accordance with the Warrant enclosed with this Form of Election to Purchase,
the undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock ("Common Stock"), $0.001 par value, of World Health Alternatives,
Inc. and encloses one warrant and $________ for each Warrant Share being
purchased or an aggregate of $________________ in cash or certified or official
bank check or checks, which sum represents the aggregate Exercise Price (as
defined in the Warrant) together with any applicable taxes payable by the
undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Please print name and address)
____________________________________________________________
(Please insert Social Security or Tax Identification Number)
If the number of shares of Common Stock issuable upon this exercise shall not be
all of the shares of Common Stock which the undersigned is entitled to purchase
in accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Please print name and address)
Dated: ___________________ Name of Warrant Holder:
(Print)_____________________________________
(By:) ______________________________________
(Name:)_____________________________________
(Title:)____________________________________
Signature must conform in all respects to
name of Warrant Holder as specified on the
face of the Warrant