THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR THE SECURITIES OR BLUE SKY LAWS OF ANY STATE. NEITHER THIS WARRANT
NOR ANY INTEREST IN THIS WARRANT MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR
AN EXEMPTION THEREFROM.
WARRANT CERTIFICATE
(FAX)
To Purchase Shares of Common Stock
of
Mortgage Assistance Center Corporation
THIS IS TO CERTIFY THAT, for value received, FAX/MACC, L.P., a Texas limited
partnership, and its successors and assigns (the "Holder"), is entitled, subject
to the terms and conditions set forth in this Warrant Certificate (this
"Warrant"), to purchase from Mortgage Assistance Center Corporation, a Florida
corporation (the "Company"), at any time during the period commencing on the
date of this Warrant and ending on 5:00 p.m. Dallas, Texas time on November 30,
2016 (the "Expiration Date"), 6,075,591 shares of the Company's common stock,
$0.01 par value (the "Common Stock"), subject to adjustment as set forth in this
Warrant (the "Warrant Shares"), at an initial purchase price equal to $0.01 per
share of Common Stock, subject to adjustment as set forth in this Warrant (the
"Exercise Price"). This Warrant is one of a series of warrants issued pursuant
to that certain Series A Preferred Stock and Common Stock Warrant Purchase
Agreement, dated November 30, 2006, by and among the Corporation and the other
parties thereto (the "Purchase Agreement").
ARTICLE I
EXERCISE OF WARRANT
1.01 Adjustment to Warrant Shares.
(a) Decrease Based Upon Investment. The amount of the Warrant
Shares assumes a total investment by the Holder of $2,000,000 in the
Company. If less than $2,000,000 is invested by the Holder in the
Company at the time that the Warrant is exercised, then at the time the
Warrant is exercised, the Warrant Shares shall be reduced automatically
and without necessity of further act or documentation to an amount
equal to the product determined by multiplying the Warrant Shares by a
fraction, the numerator of which is equal to the total amount invested
by the Holder in the Company, and the denominator of which is
$2,000,000.
(b) If the Company fails to timely satisfy any covenant
contained in Section 8 of that certain Mortgage Assistance Center
Corporation Series A Preferred Stock and Common Stock Warrant Purchase
Agreement dated as of the date of this Warrant, then, without any
further action by any person, the Warrant Shares referred to in the
introductory paragraph of this Warrant shall automatically be increased
by 852,715 shares.
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1.02 Method of Exercise. Subject to the provisions of this Warrant, the
Holder may exercise this Warrant in whole or in part at any time and from time
to time on and after the issuance hereof upon surrender of the Warrant, together
with delivery of the duly executed Subscription Notice form attached hereto (the
"Subscription Notice") (which may be by fax), to the Company at the Warrant
Office (as defined in Section 2.01) during normal business hours on any business
day at the Company's principal executive offices (or such other office or agency
of the Company as it may designate by notice to the Holder), and upon payment to
the Company of the Exercise Price for the Warrant Shares specified in the
Subscription Notice. The Warrant Shares so purchased shall be deemed to be
issued to the Holder or such Holder's designee, as the record owner of such
shares, as of the close of business on the date on which the completed
Subscription Notice shall have been delivered to the Company (or such later date
as may be specified in the Subscription Notice) (provided that the Exercise
Price is paid within five (5) trading days thereafter as a condition subsequent
to such Warrant Shares being deemed issued on such date). Certificates for the
Warrant Shares so purchased, representing the aggregate number of shares
specified in the Subscription Notice, shall be delivered to the Holder within a
reasonable time, not exceeding five (5) trading days, after this Warrant shall
have been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the Holder and shall be registered in the
name of the Holder or such other name as shall be designated by the Holder. If
this Warrant shall have been exercised only in part, then, unless this Warrant
has expired, the Company shall at its expense, at the time of delivery of such
certificates, deliver to the Holder a new Warrant representing the percentage of
shares with respect to which this Warrant shall not then have been exercised.
1.03 Fractional Shares. No fractional shares of Common Stock are to be
issued upon the exercise of this Warrant, but in lieu of any such fractional
share, the Company shall make a cash payment for such fractional share, equal to
the fair market value of such fractional share (i.e., a proportionate amount of
the fair market value of a share as determined in Section 1.04), less the
Exercise Price.
1.04 Payment of Exercise Price. Upon exercise of this Warrant, the
Exercise Price then in effect shall be payable, at the Holder's election, by
tender to the Company of payment in (i) cash, bank check or wire transfer of
good funds, or (ii) shares of capital stock of the Company as provided in
Section 1.05.
1.05 Cashless Exercise. Notwithstanding anything to the contrary
contained in Section 1.04, the Holder shall have the right to pay the aggregate
Exercise Price by "Cashless Exercise". To effect a Cashless Exercise, the Holder
shall submit to the Company on the Subscription Notice written notice of the
Holder's intention to do so, including a calculation of the number of shares of
Common Stock to be issued upon such exercise in accordance with the terms
hereof. In the event of a Cashless Exercise, in lieu of paying the Exercise
Price in cash, the Holder shall surrender this Warrant for that number of shares
of Common Stock determined by multiplying the number of Warrant Shares to which
it would otherwise be entitled by a fraction, the numerator of which shall be
the difference between the then current Fair Market Value per share of the
Common Stock and the applicable Exercise Price, and the denominator of which
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shall be the then current Fair Market Value per share of the Common Stock. For
this purpose, the "Fair Market Value" of the Common Stock shall be the average
of the closing sale prices of the Common Stock as reported by the Principal
Market for the ten (10) trailing average price of the Company's Common Stock for
the period immediately preceding the Exercise Date. To the extent there is no
active public market for the Common Stock, the Fair Market Value of the Common
Stock shall be determined in good faith by the Board of Directors of the
Company.
1.06. Exercise Price. The Exercise Price, subject to Section 1.05 and
adjustment as provided in Article III, shall, if payment is made in cash or by
certified check, be payable in lawful money of the United States of America.
1.07 Expenses. The Company shall pay all expenses and all documentary,
stamp, transfer or other transactional taxes (other than transfer or income
taxes incurred by the Holder) and other charges payable in connection with the
preparation, issuance and delivery of the Warrant and the related Warrant Shares
and any transfer of the Warrant pursuant to Article II; provided, however, that
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in the issuance or delivery of any
certificates for Warrant Shares in a name other than that of the registered
holder of this Warrant in respect of which such shares are issued. The Holder
shall be responsible for income taxes due under federal or state law, if any
such tax is due.
ARTICLE II
WARRANT OFFICE; TRANSFER
2.01 Warrant Office; Records. The Company shall maintain an office for
certain purposes specified in this Warrant (the "Warrant Office"), which office
shall initially be the Company's office address set forth in Section 5.05 of
this Warrant and may subsequently be such other office of the Company or of any
transfer agent of the Common Stock in the continental United States as to which
written notice has previously been given to the Holder of this Warrant. The
Company shall maintain at the Warrant Office, a register for the Warrant, in
which the Company shall record the name and address of the Holder of this
Warrant and his transferees and assigns. A copy of this Warrant shall be filed
in the Warrant Office among the records of the Company.
2.02 Transferability. This Warrant may not be transferred or assigned
in whole or part without compliance with the Securities Act of 1933, as amended,
and all applicable federal and state securities laws by the transferor and the
transferee to the satisfaction of the Company and its counsel. Subject to the
foregoing sentence, this Warrant is transferable by the initial Holder and each
other individual, corporation, partnership, limited liability company or other
organization or entity ("Person") who becomes the Holder of this Warrant. Title
to this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form attached to this Warrant) and delivery in the same manner as a
negotiable instrument transferable by endorsement and delivery. The Company,
from time to time, shall register the transfer of this Warrant in its register
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at the Warrant Office, upon delivery of this Warrant, appropriate instruments of
transfer and written instructions for transfer satisfactory to the Company. Upon
any such transfer, a new Warrant shall be issued to the transferee and the
surrendered Warrant shall be canceled by the Company. Any transferee of this
Warrant shall agree to be bound by the terms of the Stockholders Agreement (as
defined below).
ARTICLE III
ADJUSTMENTS
3.01 Exercise of Warrant. This Warrant shall be exercisable, at the
option of the Holder, upon payment to the Company of the applicable Exercise
Price for such number of Warrant Shares as indicated in the Subscription Notice;
provided, however, that the number of Warrant Shares for which this Warrant is
exercisable, and the Exercise Price for the Warrant Shares, shall be adjusted
from time to time as provided in Section 1.01 or this Article III. Whenever the
Warrant Shares or Exercise Price shall be adjusted as provided in Section 1.01
or this Article III, the Company shall file at the Warrant Office, a statement
showing in detail the facts requiring such adjustment, the date of the
adjustment, and the new number of Warrant Shares issuable or the new Exercise
Price in effect after such adjustment, signed by an officer of the Company. The
Company shall also cause a copy of such statement to be given to the Holder
pursuant to Section 3.04.
3.02 Adjustments. Subject to and pursuant to the provisions of this
Article III, the Exercise Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company
with another corporation, or sale, transfer or other disposition of all
or substantially all of the Company's assets to another corporation
shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger, sale, transfer or other
disposition, lawful and adequate provision shall be made whereby the
Holder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of
the Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, such shares of stock, securities or assets as would have
been issuable or payable with respect to or in exchange for a number of
Warrant Shares equal to the number of Warrant Shares immediately
theretofore issuable upon exercise of the Warrant, had such
reorganization, reclassification, consolidation, merger, sale, transfer
or other disposition not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of the
Holder to the end that the provisions hereof (including, without
limitations, provision for adjustment of the Exercise Price) shall
thereafter be applicable, as nearly equivalent as may be practicable in
relation to any shares of stock, securities or properties thereafter
deliverable upon the exercise hereof. The Company shall not effect any
such consolidation, merger, sale, transfer or other disposition unless
prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such
consolidation or merger, or the corporation purchasing or otherwise
acquiring such assets or other appropriate corporation or entity shall
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assume, by written instrument executed and delivered to the Company,
the obligation to deliver to the Holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to purchase and the other obligations under
this Warrant. The provisions of this paragraph (a) shall similarly
apply to successive reorganizations, reclassifications, consolidations,
mergers, sales, transfers or other dispositions.
(b) For purposes of this Section, if an event occurs that
triggers more than one of the above adjustment provisions, then only
one adjustment shall be made and the calculation method which yields
the greatest downward adjustment in the Exercise Price shall be used.
An adjustment shall become effective immediately after the record date
in the case of each dividend or distribution and immediately after the
effective date of each other event which requires an adjustment.
(c) If, as a result of an adjustment made pursuant to this
Section 3.02, the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than shares of
Common Stock, the number of such other shares so receivable upon
exercise of this Warrant shall be subject thereafter to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Warrant Shares
contained in this Warrant.
(d) In the event of any adjustment in the number of Warrant
Shares issuable hereunder upon exercise, the Exercise Price shall be
inversely proportionately increased or decreased, as the case may be,
such that the aggregate purchase price for Warrant Shares upon full
exercise of this Warrant shall remain the same. Similarly, in the event
of any adjustment in the Exercise Price, the number of Warrant Shares
issuable hereunder upon exercise shall be inversely proportionately
increased or decreased, as the case may be, such that the aggregate
purchase price for Warrant Shares upon full exercise of this Warrant
shall remain the same.
3.03 Adjustments for Additional Issuances. If after the date of this
Warrant, the Company issues additional shares of Common Stock or any other class
or series of capital stock or any warrants, options or other rights convertible
into or exercisable for Common Stock or other class or series of capital stock
of the Company, other than (i) 834,800 shares of Common Stock issued or reserved
for issuance to the Company's directors, officers, key employees, and
consultants in accordance with the Company's 2006 Equity Incentive Plan (the
"Plan"), or upon exercise of options that have been granted to such parties
under the Plan, in each case as of the date hereof (with any shares or options
issued under the Plan after the date hereof being fully subject to this Section
3.03), (ii) shares of capital stock issued or issuable pursuant to the
acquisition of another corporation or business entity by the Company by merger,
purchase of substantially all of the assets, or other reorganization, or to a
joint venture agreement, provided that such issuances are approved by the Board
(as defined below), (iii) shares of capital stock issued or issuable to banks,
equipment lessors, or other financial institutions pursuant to a commercial
leasing or debt financing transaction approved by the Board, (iv) shares of
capital stock issued or issuable to suppliers of goods or third party service
providers in connection with the provision of goods or services pursuant to
transactions approved by the Board, (v) shares of capital stock issued pursuant
to stock splits, stock dividends, recapitalization, or other similar
reclassification for which a proportional adjustment has been made, (vi) shares
of capital stock issued pursuant to a public offering of Common Stock or other
5
securities of the Company pursuant to an underwritten offering made in
accordance with the Securities Act, (vii) shares of capital stock issued
pursuant to any warrant or other convertible securities outstanding as of
November 30, 2006, or (viii) shares of capital stock issued or issuable for
which an appropriate adjustment has been made under Section 3.02, without
consideration or for a consideration per share (the "Offering Price") less than
$0.39 (the "Valuation Price") (the "Additional Shares"), then the number of
Warrant Shares purchasable under this Warrant will be increased, concurrently
with the issuance of the Additional Shares, to a number (calculated to the
nearest share) determined by multiplying the Warrant Shares by a fraction, (A)
the numerator of which will be the Valuation Price, and (B) the denominator of
which will be the Offering Price.
3.04 Written Notice. On the occurrence of an event requiring an
adjustment of the Exercise Price or the number of Warrant Shares pursuant to
Section 1.01, or Section 3.02, the Company shall promptly give written notice to
the Holder stating the adjusted Exercise Price and the adjusted number and kind
of securities purchasable under this Warrant resulting from the event, and
setting forth the method of calculation. When appropriate, at the Company's
option such notice may be given in advance. The Board of Directors of the
Company (including the Series A Directors (as defined in the Articles of
Incorporation) (the "Board"), acting in good faith, shall determine the
calculation. The Holder may challenge the calculations by giving the Company
written notice, specifically stating his objections to such calculations, within
ninety (90) days after Holder's receipt of such notice from the Company.
ARTICLE IV
COVENANTS OF THE COMPANY
The Company will not, by amendment of its Articles of Incorporation, as
amended (collectively, the "Articles of Incorporation") or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms. Without
limiting the generality of the foregoing, the Company:
(a) covenants that there have been reserved, and the Company
shall at all applicable times keep reserved, out of the authorized and
unissued Common Stock, a number of shares sufficient to provide for the
exercise of the rights of purchase represented by the Warrant in full
(without regard to any restrictions on beneficial ownership contained
herein), and the transfer agent for the Common Stock, including every
subsequent transfer agent for the Common Stock or other shares of the
Company's capital stock issuable upon the exercise of any of the right
of purchase aforesaid ("Transfer Agent"), shall be irrevocably
authorized and directed at all times to reserve such number of
authorized and unissued shares of Common Stock as shall be requisite
for such purpose;
(b) agrees that all Warrant Shares issued upon exercise of the
Warrant in accordance with its terms shall be, at the time of delivery
of the certificates for such Warrant Shares, duly authorized, validly
issued, fully paid and non-assessable shares of Common Stock of the
Company.
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ARTICLE V
MISCELLANEOUS
5.01 Entire Agreement. This Warrant contains the entire agreement
between the Holder and the Company with respect to the Warrant Shares
purchasable upon exercise of this Warrant and the related transactions and
supersedes all prior arrangements or understandings with respect to the
transactions contemplated by this Warrant.
5.02 Governing Law. This Warrant shall be interpreted, construed and
governed by the laws of the State of Texas, without regard to its conflict of
laws provisions. Venue for any interpretation, enforcement or dispute regarding
this Warrant shall be exclusively in the federal and state courts located in
Dallas County, Texas.
5.03 Waiver and Amendment. Any term or provision of this Warrant may be
waived at any time by the party which is entitled to the benefits of such term
or provision, and any term or provision of this Warrant may be amended or
supplemented at any time by agreement of the Holder of this Warrant and the
Company, except that any waiver of any term or condition, or any amendment or
supplementation, of this Warrant must be in writing; provided, however, that no
such amendment or waiver shall amend or modify any individual Warrants without
so amending or modifying all Warrants in the same manner. No course of dealing
between the Holder and the Company or any failure or delay on the part of the
Holder in exercising any rights or remedies under this Warrant shall operate as
a waiver of any rights or remedies of the Holder under this or any other
applicable instrument. No single or partial exercise of any rights or remedies
under this Warrant shall operate as a waiver or preclude the exercise of any
other rights or remedies under this Warrant, and a waiver of any breach or
failure to enforce any of the terms or conditions of this Warrant shall not in
any way affect, limit or waive a party's rights hereunder at any time to enforce
strict compliance thereafter with every term or condition of this Warrant.
5.04 Severability. Any provision contained in this Warrant which is
prohibited or unenforceable by law shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
contained in this Warrant.
5.05 Notices. Any notices or communications under this Agreement shall
be given by any of the following means: (i) registered, certified or first class
mail; (ii) hand delivery, with confirmed receipt of delivery; (iii) facsimile,
with confirmed receipt of transmission, or (iv) nationally recognized overnight
delivery service with confirmed receipt of delivery. Notice shall be deemed to
have been given (i) on the third day following deposit in the United States
mail, if mailed; or (ii) when delivered, if delivered by hand delivery,
facsimile, or nationally recognized delivery service. Such notice or
communication shall be given to the Company and the Holder at the address listed
below:
If to the Company: Mortgage Assistance Center Corporation
2614 Main Street
Dallas, Texas 75226
Attention: Chief Executive Officer
Facsimile:
7
If to the Holder: FAX/MACC, L.P.
Attention: Rod C. Jones
100 Crescent Court, Suite 200
Dallas, Texas 75201
Any party may, by written notice to the other party, change the representative
or the address to which such notices and communications are to be sent.
5.06 Limitation of Liability; Not Stockholders. No provision of this
Warrant shall be construed as conferring upon the Holder the right to vote
(though this Warrant does not limit rights granted under that certain
Stockholders Agreement dated November 30, 2006 (the "Stockholders Agreement")
governing stock and securities of the Company), consent, receive dividends or
receive notices other than as herein expressly provided in respect of meetings
of stockholders for the election of directors of the Company or any other matter
whatsoever as a stockholder of the Company. No provision of this Warrant, in the
absence of affirmative action by the Holder to purchase shares of Common Stock,
and no mere enumeration in this Warrant of the rights or privileges of the
Holder, shall give rise to any liability of such Holder for the purchase price
of any shares of Common Stock or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
5.07 Replacement of Warrant. Upon receipt of evidence satisfactory to
the Company of the loss, theft, mutilation or destruction of this Warrant, and
in the case of any such loss, theft or destruction upon delivery of an agreement
of indemnity in such form and amount as shall be reasonably satisfactory to the
Company, or in the event of such mutilation upon surrender and cancellation of
this Warrant, the Company will make and deliver a new Warrant of like tenor, in
the name of the Holder, in lieu of such lost, stolen, destroyed or mutilated
Warrant. This Warrant shall be promptly canceled by the Company upon the
surrender of this Warrant in connection with any exchange or replacement.
5.08 Headings. The Article and Section and other headings herein are
for convenience only and are not a part of this Warrant and shall not affect the
interpretation of this Warrant.
5.09 Identity of Transfer Agent. The initial Transfer Agent for the
Common Stock is:
American Stock Transfer & Trust Company
59 Maiden Lane, Plaza Level
New York, NY 10038
Forthwith upon the appointment of any subsequent transfer agent for the Common
Stock or other shares of the Company's capital stock issuable upon the exercise
of the rights of purchase represented by the Warrant, the Company will fax to
the Holder a statement setting forth the name and address of such transfer
agent.
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5.10 Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights in respect of the Warrant
Shares as provided in the Investors' Rights Agreement dated November 30, 2006.
5.11 Absolute Obligation to Issue Warrant Shares. The Company's
obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by
the Holder to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person or any action
to enforce the same, or any setoff, counterclaim, recoupment, limitation or
termination, or any breach or alleged breach by the Holder or any other Person
of any obligation to the Company or any violation or alleged violation of law by
the holder or any other Person, and irrespective of any other circumstance which
might otherwise limit such obligation of the Company to the holder hereof in
connection with the issuance of Warrant Shares. The Company will at no time
close its shareholder books or records in any manner which interferes with the
timely exercise of this Warrant.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
as of this _________ day of November, 2006.
MORTGAGE ASSISTANCE CENTER
CORPORATION, a Florida corporation
By:_________________________________
Name:_______________________________
Its:________________________________
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SUBSCRIPTION NOTICE
The undersigned, the holder of the foregoing Warrant, hereby elects to
exercise purchase rights represented by said Warrant for, and to purchase
thereunder, ______________ shares of the Common Stock covered by said Warrant
and herewith makes payment in full for such shares, and requests (a) that
certificates for such shares (and any securities or other property issuable upon
such exercise) be issued in the name of, and delivered to, , and (b) if such
shares shall not include all of the shares issuable as provided in said Warrant,
that a new Warrant of like tenor and date, in the name of the undersigned, for
the balance of the shares issuable thereunder be delivered to the undersigned.
________________________________
Dated:___________________, 20___
ASSIGNMENT
For value received,______________________________, sells, assigns and
transfers unto ____________________________the attached Warrant, together with
all right, title and interest therein and does hereby irrevocably constitute and
appoint the Secretary of the Company as the undersigned's duly appointed
attorney-in-fact, to transfer said Warrant on the books of the Company, with
full power of substitution.
________________________________
Dated:___________________, 20___