1
Exhibit 4.12
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES
LAWS OF CERTAIN STATES, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS
AVAILABLE.
U N I T W A R R A N T
----------------------
PARTECH HOLDINGS CORPORATION
(Incorporated under the Laws of the State of Delaware)
No. W-___
THIS IS TO CERTIFY that, for value received, __________________ or
assigns (the "Holder") is entitled, subject to the terms and conditions set
forth herein, to purchase, at an aggregate purchase price of One Dollar
($1.00), securities of PARTECH HOLDINGS CORPORATION, a Delaware corporation
(the "Company"), from the Company as described herein.
This Warrant shall expire upon the earlier of the exercise or
conversion in full of this Warrant or June __, 1999. This Warrant is part of
an offering of Convertible Units (the "Units"), each Unit consisting of one 6%
Secured Note, (a "Note"), and one Warrant (a "Unit Warrant). Each Unit Warrant
is pari passu with each other Unit Warrant of such series with respect to all
rights and preferences. The Units have been issued pursuant to a
2
Subscription Agreement dated as of June 15, 1994 between the Company and the
holders of the Unit Warrants (the "Subscription Agreement"), which contains
representations and warranties and additional covenants of the Company with
respect to the Units. THE PROVISIONS OF THE SUBSCRIPTION AGREEMENT ARE
INCORPORATED HEREIN BY REFERENCE.
1. EXERCISABILITY. Upon an underwritten public offering by the
Company of its securities (the "Underwritten Offering"), this Warrant shall be
exercisable to purchase securities identical to those to be offered by the
Company pursuant to the Underwritten Offering (the "Underwritten Securities")
in a number equal to $__,000 divided by 100% (subject to adjustment as provided
below) (the "Exercise Factor") of the public offering price of the Underwritten
Securities (E.G., if the public offering price of the Underwritten Securities
is $10.00, the Holder would receive _,000 ($__,000 / 100% of $10) of such
securities upon exercise of this Warrant). If the registration statement with
respect to the Underwritten Offering is declared effective and the Underwritten
Securities have commenced trading on or prior to September 30, 1994 and the
closing with respect to the Underwritten Offering (the "Closing") takes place
on or prior to October 7, 1994, this Warrant shall (if not previously
exercised) be deemed exercised, without any further action on the part of the
Holder, for the Warrant Securities (defined below) at the Closing. The
securities issuable to the Holder upon exercise of this Warrant (the "Warrant
Securities") shall be included in the registration statement with respect to
the Underwritten Offering for registration under the Securities Act of 1933, as
amended (the "Act"), and the Holder shall be entitled to sell the Warrant
Securities simultaneously with the Underwritten Securities sold for the account
of
- 2 -
3
the Company pursuant to the Underwritten Offering, subject only to the
Underwriter's Holdback (as defined in Section 4(a) hereof).
In the event the registration statement with respect to the
Underwritten Offering is declared effective or the Underwritten Securities
commence trading after September 30, 1994, or if the Closing does not occur on
or before October 7, 1994, the Exercise Factor shall decrease by 4% (four
percentage points) for each additional month or partial month thereafter (I.E.,
96% for October 1, 1994 through October 31, 1994, 92% for November 1, 1994
through November 30, 1994, etc.).
Notwithstanding anything to the contrary contained in this Warrant or
otherwise, the Holder shall not be required to exercise this Warrant if the
Company has not complied with all of its obligations hereunder.
2. MANNER OF EXERCISE. In case of the purchase of less than all
the securities as to which this Warrant is exercisable, the Company shall
cancel this Warrant upon the surrender hereof and shall execute and deliver a
new warrant of like tenor for the balance of the securities purchasable
hereunder. Upon the exercise of this Warrant, the issuance of certificates for
securities, properties or rights underlying this Warrant shall be made
forthwith (and in any event within five (5) business days thereafter) without
charge to the Holder including, without limitation, any tax that may be payable
in respect of the issuance thereof, and such certificates shall be issued in
the name of, or in such names as may be directed by, the Holder; provided,
however, that the Company shall not be required to pay any tax in respect of
income or capital gain of the Holder or any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such certificates
in a name other than that of the Holder (a "Transfer Tax"), and the Company
- 3 -
4
shall not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of any such Transfer Tax or shall have established to the
satisfaction of the Company that any such Transfer Tax has been paid.
If and to the extent this Warrant is exercised, in whole or in part,
the Holder shall be entitled to receive a certificate or certificates
representing the shares of Common Stock so purchased, upon presentation and
surrender to the Company of this Warrant, with the form of subscription
attached hereto duly executed, and accompanied by payment of the purchase
price.
3. ALTERNATIVE EXERCISE. If the Underwritten Offering is not
effective and the Underwritten Securities have not commenced trading by
September 30, 1994 (or if the Underwritten Offering is terminated prior
thereto) and the Notes have then been repaid in full, this Warrant shall
alternatively, at the option of the Holder, be exercisable at an exercise price
of $1.00 per warrant and shall entitle the Holder to receive a number of shares
of the Company's common stock, par value $.05 per share (the "Common Stock"),
equal to (i) the original principal amount of the corresponding Note held by
the Holder divided by (ii) 100% (subject to reduction as described below) (the
"Alternative Exercise Factor") of the closing bid price of the Common Stock on
the day of the first exercise under this Section 3 (the "Alternative Conversion
Shares") (e.g., if such closing bid price of the Common Stock was $5, the
Holder would receive _,000 ($10,000 / 100% of $5) upon exercise of this
Warrant). The Holder may, at its option, any time thereafter demand
registration, in whole or in part, of such Alternative Conversion Shares in
accordance with the provisions of Section 4 hereof.
- 4 -
5
4. REGISTRATION. (a) The Company shall cause the Warrant
Securities issuable upon exercise of this Warrant to be registered under the
Act pursuant to the registration statement (the "Registration Statement") to be
filed with respect to the Underwritten Offering. The Holder shall be entitled
to sell the Warrant Securities simultaneously with the Underwritten Securities
sold for the account of the Company pursuant to the Underwritten Offering,
subject only to a restriction on selling for a period of 180 days following the
effective date of the registration statement with respect to the Underwritten
Offering (the "Underwriter's Holdback"), which restriction may be waived in the
sole discretion of Berkeley Securities Corporation (the "Underwriter"). The
Company shall use its best efforts to cause the registration statement with
respect to the Underwritten Offering to be declared effective by the Securities
and Exchange Commission (the "Commission") on or before September 30, 1994.
The Company shall cause the registration statement to be declared effective by
the Commission with respect to the Underwritten Offering simultaneously with
respect to the offering of the Warrant Securities, unless holders of a majority
of the Units (which majority must include Generation Capital Associates (a
"Majority-in-Interest") have given the Company prior written consent to the
contrary, which consent may be given or withheld in their sole discretion. The
Company shall take all other action necessary under any federal or state law or
regulation to permit the Securities to be sold or otherwise disposed of, and
will maintain such compliance from the date of effectiveness of the
Registration Statement until nine months from such date in order to effect such
proposed sale or other disposition.
(b) In the event the Registration Statement with respect
to the Underwritten Offering is not effective or the Underwritten Securities
have not commenced
- 5 -
6
trading for any reason whatsoever by September 30, 1994 (or if the Underwritten
Offering is terminated prior thereto), a Majority-in-Interest shall have the
right, exercisable upon written request to the Company, to have the Company
file with the Commission a registration statement and such other documents,
including a prospectus, as may be necessary, in the opinion of counsel to the
Majority-in-Interest, to comply with the provisions of the Act, so as to permit
a public offering of the Alternative Conversion Shares (the "Demand
Registration").
(c) In connection with the registration of securities
pursuant to Section 4(a) or (b) hereof, the Company and the Holder covenant and
agree as follows:
(i) The Company shall use its best efforts to cause the
Registration Statement to be declared effective at the earliest
possible time, and shall furnish the Holder such number of prospectuses
as the Holder shall reasonably request. The Company shall cause the
Registration Statement to remain effective, and shall file all
post-effective amendments necessary, to cause the Registration
Statement to remain effective until nine months following the effective
date of such registration, except in the case of any warrants issuable
hereunder, in which case the Company shall cause the Registration
Statement to remain effective until nine months following the
expiration date of such warrants.
(ii) The Company shall pay all costs, fees and expenses
incurred by the Company and the Holder in connection with the
Registration Statement and the offering thereunder including, without
limitation, the Company's legal and accounting fees, fees and expenses
of the Holder's counsel, printing expenses
- 6 -
7
and blue sky fees and expenses (but excluding discounts or selling
commissions of any underwriter or broker-dealer acting on behalf of the
Holder).
(iii) The Company shall take all necessary action which may
be reasonably required in qualifying or registering the securities
included in the Registration Statement for offering and sale under the
securities or blue sky laws of all states reasonably requested by the
Holder, provided that the Company shall not be obligated to execute or
file any general consent to service of process or to qualify as a
foreign corporation to do business under the laws of any such
jurisdiction.
(iv) The Company shall indemnify the Holder and each
person, if any, who controls the Holder within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against all loss,
claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from the Registration Statement, in
accordance with the terms and conditions set forth in Exhibit H of the
Subscription Agreement.
(v) The Holder shall indemnify the Company, its officers
and directors and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against all loss, claim, damage, expense or liability (including
all expenses reasonably incurred in investigating, preparing or
defending against any claim
- 7 -
8
whatsoever) to which they may become subject under the Act, the
Exchange Act or otherwise, arising from information furnished by or on
behalf of the Holder for specific inclusion in the Registration
Statement, in accordance with the terms and conditions set forth in
Exhibit H of the Subscription Agreement.
(vi) The Company shall, as soon as practicable after the
effective date of the Registration Statement, and in any event within
fifteen (15) months thereafter, make "generally available to its
security holders" (within the meaning of Rule 158 under the Act) an
earnings statement (which need not be audited) complying with Section
11(a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the
Registration Statement.
(vii) The Company shall (A) deliver promptly to the Holder,
upon request, copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the
Registration Statement and (B) permit the Holder to perform such
investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the Registration Statement, as
it deems reasonably necessary to comply with applicable securities laws
or rules of the National Association of Securities Dealers, Inc. Such
investigation shall include, but not be limited to, access to financial
and accounting information and opportunities to discuss the business of
the Company with the Company's officers and independent auditors, all
to
- 8 -
9
such reasonable extent, at such reasonable times and as often as the
Holder shall reasonably request.
(viii) The Company shall furnish to the Holder a signed
counterpart, addressed to the Holder, of (A) the opinion of counsel to
the Company, dated the closing date with respect to the Registration
Statement, and (B) the "cold comfort" letter, dated the closing date
with respect to the Registration Statement, in each case, delivered to
the underwriter(s) in connection with the Underwritten Offering.
(ix) The Company shall cause all securities of the Holder
registered pursuant to a Registration Statement to be listed on any
national securities exchange or quoted on any automated quotation
system on which similar securities of the Company are then listed or
quoted.
5. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant
shall be construed as requiring the Holder to exercise this Warrant prior to or
in connection with the effectiveness of a registration statement.
6. NO STOCKHOLDER RIGHTS. This Warrant shall not entitle the
Holder hereof to any voting rights or other rights as a stockholder of the
Company, or to any other rights whatsoever except the rights herein expressed,
and, no dividends shall be payable or accrue in respect of this Warrant or the
interest represented hereby or the securities purchasable hereunder until or
unless, and except to the extent that, this Warrant shall be exercised.
7. EXCHANGE. This Warrant is exchangeable upon the surrender
hereof by the Holder to the Company for new warrants of like tenor representing
in the aggregate the
- 9 -
10
right to purchase the number of securities purchasable hereunder, each of
such new warrants to represent the right to purchase such number of
securities as shall be designated by the Holder at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it and reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation hereof, if mutilated, the Company
will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of securities upon the
exercise of this Warrant, nor shall it be required to issue scrip or pay cash
in lieu of fractional interests. All fractional interests shall be eliminated
by rounding any fraction up to the nearest whole number of securities,
properties or rights receivable upon exercise of this Warrant.
9. RESERVATION AND LISTING OF SECURITIES. The Company shall at
all times reserve and keep available out of its authorized shares of Common
Stock, solely for the purpose of issuance upon the exercise of this Warrant,
such number of shares of Common Stock or other securities, properties or rights
as shall be issuable upon the exercise hereof. The Company covenants and
agrees that, upon exercise of this Warrant and payment of the purchase price
therefor, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any stockholder. As long as this Warrant
shall be outstanding, the Company shall use its best efforts to cause all
shares of Common Stock issuable upon the
- 10 -
11
exercise of this Warrant to be listed (subject to official notice of issuance)
on all securities exchanges and quoted by all automated quotation reporting
systems on or by which the Common Stock may then be listed and/or quoted.
10. NOTICES TO HOLDER. If at any time prior to the expiration of
this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock
of the Company, or any option, right or warrant to subscribe therefor;
or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of
all or substantially all of its property, assets and business as an
entirety shall be proposed; then, in any one or more of said events,
the Company shall give written notice of such event to the Holder at
least fifteen (15) days prior to the date fixed as a record date or the
date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on
such
- 11 -
12
proposed dissolution, liquidation, winding up or sale. Such notice
shall specify such record date or the date of closing the transfer
books, as the case may be.
11. INFORMATIONAL REQUIREMENTS. The Company will transmit to the
Holder such information, documents and reports as are generally distributed to
stockholders of the Company concurrently with the distribution thereof to such
stockholders.
12. NOTICE. Notices to be given to the Company or the Holder
shall be deemed to have been sufficiently given if delivered personally (with
delivery confirmed by receipt signed by recipient) or sent by overnight courier
or messenger or sent by registered or certified mail (air mail if overseas),
return receipt requested, or by telex, facsimile transmission, telegram or
similar means of communication with delivery confirmed. Notices shall be
deemed to have been received on the date of personal delivery, telex, facsimile
transmission, telegram or similar means of communication, or if sent by
overnight courier or messenger, shall be deemed to have been received on the
next delivery day after deposit with the courier or messenger, or if sent by
certified or registered mail, return receipt requested, shall be deemed to be
delivered on the third business day after the date of mailing. The address of
the Company is 3366 Riverside Drive, Suite 200, Columbus, Ohio 43221, Facsimile
Number (614) 538-0670, and the Company shall give written notice of any change
of address to the Holder. The address of the Holder shall be the address of
the Holder as set forth in the books and records of the Company.
13. CONSENT TO JURISDICTION AND SERVICE. The Company consents to
the jurisdiction of any court of the State of New York, and of any federal
court located in New York, in any action or proceeding arising out of or in
connection with this Warrant. The
- 12 -
13
Company waives personal service of any summons, complaint or other process in
connection with any such action or proceeding and agrees that service thereof
may be made, by certified mail directed to the Company at the location provided
for in Section 12 hereof, or, in the alternative, in any other form or manner
permitted by law.
14. SUCCESSORS. All the covenants and provisions of this Warrant
shall be binding upon and inure to the benefit of the Company, the Holder and
their respective heirs, legal representatives, successors and assigns.
15. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by the signature of its President and its seal affixed and attested by its
Secretary and delivered it in New York, New York.
No. W-___
Dated: June __, 1994
PARTECH HOLDINGS CORPORATION
By:_____________________________________
Name: John E. Rayl
Title: President and Chief
Executive Officer
[Corporate Seal]
ATTEST:
____________________________
Secretary
- 13 -
14
ASSIGNMENT
To Be Executed by the Holder
If He/She Desires To Assign The
Warrant In Its Entirety
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and transfers
unto ___________________________________________________________ the right to
(Please insert Social Security or other identifying number of Assignee)
purchase _____________ securities of the within named Company evidenced by the
within Warrant, together will all right, title and interest therein, and does
hereby irrevocably constitute and appoint attorney ___________________________
to transfer the said Warrant on the books of said Company, with full power of
substitution in the premises.
Dated: __________________, 199_
________________________________________
(Signature)
NOTE: The signature to this Assignment must correspond with the name as
written upon the face of this Warrant in every particular, without alteration
or enlargement or any change whatever.
SIGNATURE GUARANTEED:
________________________________________
- 14 -
15
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by this Warrant Certificate
for, and to purchase securities of PARTECH HOLDINGS CORPORATION and herewith
makes payment of $1.00 therefor, and requests that the certificates for such
securities be issued in the name of, and delivered to _____________________,
whose address is __________________________________________.
Dated:
Signature_______________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
- 15 -