VOID AFTER 5:00 P.M., MIAMI, FLORIDA TIME, ON DECEMBER 22, 1997.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE THEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR THE SECURITIES LAWS OF ANY STATE.
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
OTHERWISE DISPOSED OF, IN WHOLE OR IN PART (COLLECTIVELY, A "TRANSFER"), UNLESS
ANY SUCH TRANSFER IS REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SAID
ACT IS AVAILABLE, AND THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO SUCH
EFFECT, WHICH OPINION IS REASONABLY SATISFACTORY TO THE COMPANY. THIS LEGEND
SHALL BE ENDORSED ON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
SANDATA, INC.
COMMON STOCK PURCHASE WARRANT
Warrant Certificate No. 1~
1. Number and Price of Shares of Common Stock Subject to Common Stock
Purchase Warrant. Subject to the terms and conditions hereinafter set forth, 2~
(the "Holder"), is entitled to purchase from Sandata, Inc., a Delaware
corporation (the "Company"), at any time and from time to time during the period
from December 23, 1996 (the "Commencement Date") until 5:00 p.m., Miami, Florida
Time, on December 22, 1997 (the "Expiration Date"), at which time this Common
Stock Purchase Warrant (the "Warrant") shall expire and become void, an
aggregate of 3~ shares (the "Warrant Shares") of the Company's common stock,
$.001 par value per share (the "Common Stock"), which number of Warrant Shares
is subject to adjustment from time to time, as described below, upon payment
therefor of the exercise price of $5.00 per Warrant Share, in lawful funds of
the United States of America, such amounts (the "Basic Exercise Price") being
subject to adjustment in the circumstances set forth hereinbelow. This
applicable Basic Exercise Price, until such adjustment is made and thereafter as
adjusted from time to time, is called the "Exercise Price." This Warrant is one
of a series of Common Stock Purchase Warrants dated December 23, 1996 to
purchase an aggregate of 200,000 Warrant Shares, of which 100,000 Warrant Shares
may be purchased for a Basic Exercise Price of $5.00 and 100,000 Warrant Shares
may be purchased for a Basic Exercise Price of $7.00. The terms and conditions
of the Common Stock Purchase Warrants shall be identical in all material
respects except that the number of Warrant Shares to which the holder is
entitled to purchase may differ.
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2. Exercise of Warrant. This Warrant may be exercised in whole or in
part at any time from and after the Commencement Date and on or before the
Expiration Date, provided however, if such Expiration Date is a day on which
Federal or State chartered banking institutions located in the State of Florida
are authorized by law to close, then the Expiration Date shall be deemed to be
the next succeeding day which shall not be such a day, by presentation and
surrender to the Company at its principal office, or at the office of any
transfer agent for the Warrants ("Transfer Agent"), designated by the Company,
of this Warrant accompanied by the form of election to purchase on the last page
hereof signed by the Holder and upon payment of the Exercise Price for the
Warrant Shares purchased thereby, by cashier's check or by wire transfer of
immediately available funds. If this Warrant is exercised in part only, the
Company or Transfer Agent shall, promptly after presentation of this Warrant
upon such exercise, execute and deliver a new Warrant, dated the date hereof,
evidencing the rights of the Holder to purchase the balance of the Warrant
Shares purchasable hereunder upon the same terms and conditions herein set
forth. This Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date of its surrender for exercise as provided
above, and the person entitled to receive the Warrant Shares or other securities
issuable upon such exercise shall be treated for all purposes as the holder of
such shares of record as of the close of business on such date. As promptly as
practicable, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
full Warrant Shares issuable upon such exercise, together with cash in lieu of
any fraction of a share as provided below.
3. Call Option.
At any time prior to the expiration of this Warrant, except as
provided below, the Company shall have the right and option, upon notice mailed
to the Holder, to call, redeem and acquire all of the Warrants remaining
outstanding and unexercised at the date fixed for such redemption in such
notice, which redemption date shall be at least 30 days after the date of such
notice, for an amount equal to $.01 per underlying share (the "Redemption
Price"); provided, that the Company may exercise such right and option only if,
for 20 consecutive trading days ending within 10 calendar days prior to the
redemption notice date, the closing price per share of the Common Stock equals
or exceeds $7.00, such amount being subject to adjustment under the same
circumstances and in the same proportion as the Exercise Price. The Holder shall
have the right, during the 20-day period immediately following the date of such
notice, to exercise the Warrants. If any Warrants are exercised during such
20-day period, this call option shall be deemed not to have been exercised by
the Company as to the Warrant Shares so exercised by the Holder. Said notice of
redemption shall require the Holder to surrender to the Company, on or before
the redemption date, at the offices of the Company, or its warrant agent, if
any, the certificate or certificates representing the Warrants to be redeemed.
Notwithstanding the fact that any Warrants called for redemption have not been
surrendered for redemption and cancellation on the redemption date, after the
redemption date, such Warrants shall be deemed to be expired and all rights of
the Holder with respect to such unsurrendered Warrants shall cease and
terminate, other than the right to receive the Redemption Price. The rights of
the Company pursuant to this Section 3 are conditioned upon the registration by
the Company of the resale of the Warrant Shares under the Securities Act of
1933, as amended (the "Securities
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Act"), pursuant to a registration statement which is kept current by the Company
for at least 120 days after the notice of redemption.
4. Registration Rights.
4.1 If, at any time prior to the Expiration Date, the Holders of
a majority of the Warrants Shares shall give notice to the Company
requesting that the Company file with the Securities and Exchange
Commission (the "Commission") a registration statement (the
"Registration Statement") relating to the sale of the Warrant Shares
by the Holder, the Company shall promptly give written notice of such
proposed Registration Statement to the Holders of such Warrants or
Warrant Shares, and to any subsequent permissible transferee of any of
the Warrants or Warrant Shares (at the address of such persons
appearing on the books of the Company or its transfer agent) which
notice shall offer to include the Warrant Shares in the requested
Registration Statement. The Company shall, as expeditiously as
possible, file and use its reasonable efforts to cause to become
effective under the Securities Act, the Registration Statement
covering the sale of such of the Warrant Shares by such Holders as the
Company has been requested to register for disposition by the Holders
thereof, to the extent required to permit the public sale or other
public disposition thereof by the Holders. The Company shall cause the
Registration Statement to remain effective for a period of at least
120 days from the effective date of the Registration Statement or such
earlier date as all of the Warrant Shares have been sold or the
Warrants expire (the "Effective Period"). The Holders shall have the
right to demand registration of the Warrant Shares as described above
on one occasion only. Notwithstanding anything contained herein to the
contrary, the Holders may not demand registration of the Warrant
Shares if the Warrant Shares may otherwise be sold without
registration under the Securities Act or applicable state securities
laws and regulations and without limitation as to volume pursuant to
Rule 144 of the Securities Act. Notwithstanding anything contained
herein, the Company shall not be obligated to file or use its
reasonable efforts to cause to become effective a registration
statement under this section during any period commencing with the
date the Company files a registration statement relating to the sale
or exchange by it of its securities in either an underwritten offering
or in an offering involving a merger, acquisition, combination or
reorganization and ending with the date such registration statement
becomes effective.
4.2 In addition, if at any time during the four years after the
Commencement Date, the Company shall prepare and file one or more
registration statements under the Securities Act (other than a
registration statement on Form S-4 (or with regard to any transaction
contemplated by Rule 145 promulgated under the Securities Act) or Form
S-8 or any successor form of limited purpose and other than a
post-effective amendment to any such registration statement), with
respect to a public offering of equity or debt securities of the
Company, or of any such securities of the Company held by its security
holders, the Company will include in any such registration statement
such information as is required, and such number of Warrant Shares
held by the Holders thereof or their respective designees or
transferees as may be requested by them, to permit a public offering
of the Warrant Shares so requested; provided, however, that if, in the
written opinion of the Company's managing underwriter, if any, for
such offering, the inclusion of the Warrant Shares requested to be
registered, when added to the securities being registered by the
Company or the selling security holder(s), would exceed the
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maximum amount of the Company's securities that can be marketed
without otherwise materially and adversely affecting the entire
offering, then the Company may exclude from such offering all or that
portion of the Warrant Shares requested to be so registered, so that
the total number of securities to be registered is within the maximum
number of shares that, in the opinion of the managing underwriter, may
be marketed without otherwise materially and adversely affecting the
entire offering, provided that at least a pro rata amount of the
securities that otherwise were proposed to be registered for other
stockholders is also excluded. In the event of such a proposed
registration, the Company shall furnish the then Holders of Warrant
Shares with not less than 20 days' written notice prior to the
proposed date of filing of such registration statement. Further notice
shall be given by the Company to Holders of Warrant Shares, with
respect to subsequent registration statements or post-effective
amendments filed by the Company, until such time as all of the Warrant
Shares have been registered or may be sold without registration under
the Securities Act or applicable state securities laws and regulations
pursuant to Rule 144 of the Securities Act. The holders of Warrant
Shares shall exercise the rights provided for in this Section 4.2 by
giving written notice to the Company, within ten days of receipt of
the Company's notice of its intention to file a registration
statement. Notwithstanding anything contained herein to the contrary,
the Company may delay the effectiveness of such registration statement
or withdraw such registration statement; provided, however, the
Company must provide the Holders of Warrant Shares with notice of such
delay or withdrawal.
4.3 Notwithstanding anything contained herein to the contrary,
the Holders shall not be permitted to exercise the registration rights
provided for herein with respect to all or such portion of the Warrant
Shares as may be sold without registration under the Securities Act or
applicable state securities laws and regulations under Rule 144 of the
Securities Act.
4.4 The Company shall bear all expenses, incurred in the
preparation and filing of such registration statements or
post-effective amendment (and related state registrations, to the
extent permitted by applicable law) and the furnishing of copies of
the preliminary and final prospectus thereof to the Holder, other than
expenses of the Holder's counsel, and other than sales commissions or
transfer taxes incurred by the then holders with respect to the sale
of such securities.
4.5 Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to Section 4.1
or Section 4.2, a certificate signed by the Chief Executive Officer of
the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such registration statement to be
filed or go effective and it is therefore essential to defer the
filing or effectiveness of such registration statement, then the
Company shall have the right to defer taking action with respect to
such filing or effectiveness for a period of not more than 90 days
after receipt of the request of the Holders; provided, however, that
the Company may not utilize this right more than once in any
twelve-month period.
4.6 Notwithstanding the provisions of Sections 4.1 and 4.2, if at
any time during which the Company is obligated to maintain the
effectiveness of a registration statement pursuant to such Section,
counsel to the Company (which counsel shall be experienced in
securities matters) has determined in good faith that the filing of
such registration statement or
CORP\02437\0068\LCFAS12.19C
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the compliance by the Company with its disclosure obligations
thereunder would require the disclosure of material information which
the Company has a bona fide business purpose for preserving as
confidential, then the Company may delay the filing or the
effectiveness of such registration statement (if not then filed or
effective, as appropriate) and shall not be required to maintain the
effectiveness thereof (if previously declared effective) for a period
expiring upon the earlier to occur of (i) the date on which such
information is disclosed to the public or ceases to be material or the
Company is so able to comply with its disclosure obligations, or (ii)
30 days after counsel to the Company makes such good faith
determination. There shall not be more than one such delay period with
respect to any registration statement after it has been declared
effective pursuant to Sections 4.1 and 4.2. Notice of any such delay
period and of the termination thereof will be promptly delivered by
the Company to each Holder and shall be maintained in confidence by
each such Holder. The Holders shall not sell any Warrant Shares during
such period as any such registration statement is not current, as
advised by the Company. Each Holder shall furnish to the Company such
information regarding such Holder and a written description of the
contribution proposed by such Holder as the Company may reasonably
request.
4.7 Each Holder whose Warrant Shares are included in a
registration statement pursuant to an underwritten public offering
shall, if requested by the managing underwriter of the public
offering, enter into an agreement with the underwriter pursuant to
which the Holder will agree not to sell, Transfer or otherwise dispose
of the Warrant Shares for such period after consummation of the public
offering as may reasonably be requested by the underwriter; up to a
maximum of 90 days, without the consent of the underwriter.
5. Reservation of Common Stock. The Company covenants that, during the
period this Warrant is exercisable, the Company will reserve from its authorized
and unissued Common Stock a sufficient number of shares of Common Stock to
provide for the issuance of the Warrant Shares upon the exercise of this
Warrant. This Company agrees that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for Warrant Shares
upon the exercise of this Warrant.
6. No Stockholder Rights. This Warrant, as such, shall not entitle the
Holder to any rights of a stockholder of the Company, until the Holder has
exercised this Warrant in accordance with Section 2 hereof.
7. Adjustment of Exercise Price and Number of Warrant Shares.
7.1 The number and kind of securities issuable upon the exercise
of this Warrant shall be subject to adjustment from time to time, and
the Company agrees to provide notice upon the happening of certain
events, as follows:
a. If the Company is recapitalized through the subdivision
or combination of its outstanding shares of Common Stock into a
larger or smaller number of shares of Common Stock, the number of
shares of Common Stock for which this Warrant may be exercised
shall be increased or reduced, as of the record date for such
recapitalization, in the
CORP\02437\0068\LCFAS12.19C
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same proportion as the increase or decrease in the
outstanding shares of Common Stock, and the Exercise Price shall
be adjusted so that the aggregate amount payable for the purchase
of all of the Warrant Shares issuable hereunder immediately after
the record date for such recapitalization shall equal the
aggregate amount so payable immediately before such record date.
b. If the Company declares a dividend on its Common Stock
payable in shares of its Common Stock or securities convertible
into shares of its Common Stock, the number of shares of Common
Stock for which this Warrant may be exercised shall be increased
as of the record date for determining which holders of Common
Stock shall be entitled to receive such dividend, in proportion
to the increase in the number of outstanding shares of Common
Stock (and shares of Common Stock issuable upon conversion of all
such securities convertible into shares of Common Stock) as a
result of such dividend, and the Exercise Price shall be adjusted
so that the aggregate amount payable for the purchase of all the
Warrant Shares issuable hereunder immediately after the record
date for such dividend shall equal the aggregate amount so
payable immediately before such record date.
c. If the Company effects a general distribution to holders
of its Common Stock, other than as part of the Company's
dissolution or liquidation or the winding up of its affairs, of
any shares of its capital stock, any evidence of indebtedness or
any of its assets (other than cash, shares of Common Stock or
securities convertible into shares of Common Stock), the Company
shall give written notice to the Holder of any such general
distribution at least 15 days prior to the proposed record date
in order to permit the Holder to exercise this Warrant on or
before the record date. There shall be no adjustment in the
number of shares of Common Stock for which this Warrant may be
exercised, or in the Exercise Price, by virtue of any such
general distribution, except as otherwise provided herein.
d. If the Company offers rights or warrants (other than the
Warrant) to all holders of its Common Stock which entitle them to
subscribe to or purchase additional shares of Common Stock or
securities convertible into shares of Common Stock, the Company
shall give written notice of any such proposed offering to the
Holder at least 15 days prior to the proposed record date in
order to permit the Holder to exercise this Warrant on or before
such record date.
e. In the event an adjustment in the Exercise Price or the
number of Warrant Shares issuable hereunder is made under
subsection a. or b. above, and such an event does not occur, then
any adjustments in the Exercise Price or number of Warrant Shares
issuable upon exercise of this Warrant that were made in
accordance with such subsection a. or b. shall be re-adjusted to
the Exercise Price and number of Warrant Shares as were in effect
immediately prior to the record date for such an event.
f. If and whenever the Company issues or sells, or in
accordance with Section 7.1 is deemed to have issued or sold, any
shares of its Common Stock for a consideration per share less
than the Exercise Price in effect immediately prior to the time
of such issuance or sale (except for the issuance or deemed
issuance of securities in a transaction described in paragraph g.
of this Section 7.1), then immediately upon such issuance or sale
the Exercise Price will be reduced to an Exercise Price
determined by multiplying the Exercise Price
CORP\02437\0068\LCFAS12.19C
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in effect immediately prior to the issuance or sale by a
fraction, the numerator of which shall be the sum of (i) the
number of shares of Common Stock outstanding prior to the
issuance or sale plus (ii) the number of Warrant Shares issuable
hereunder that the maximum aggregate amount of consideration
receivable by the Company upon such issuance or sale would
purchase at the Exercise Price in effect immediately prior to the
issuance or sale, and the denominator of which shall be the
number of shares of Common Stock deemed outstanding, as
hereinafter determined, immediately after such issuance or sale.
g. Notwithstanding anything contained herein to the
contrary, the following securities or transactions shall be
excluded from the operation of paragraph f. of this Section 7.1:
(i) The existence and any exercise, conversion and/or
exchange of any option, convertible promissory note and/or
other convertible or exchangeable security, warrant, or
other right to purchase Common Stock, that is outstanding on
the date hereof (whether or not currently exercisable,
convertible or exchangeable); and
(ii) Any grant or exercise of options for Common Stock
granted under the Company's stock option plans, in existence
as of the date hereof, provided said grant or exercise is
not effectuated as a result of any amendment to such plans
subsequent to the date hereof, with an exercise price equal
to at least the fair market value of the shares of Common
Stock on the date of grant. Notwithstanding anything
contained herein to the contrary, if the Company amends such
plans with the consent of Barber & Bronson Incorporated
(which consent shall not be unreasonably withheld or
delayed), the securities issued pursuant to such plan, as
amended, shall be excluded from the operation of paragraph
f. of this Section 7.1. As used herein, the term "fair
market value" shall mean the closing bid price, or, if not
available, the highest bid price, of the shares of Common
Stock as quoted on a national securities exchange, or in the
over-the-counter market as reported by Nasdaq or, if not
available, by the National Quotation Bureau, Incorporated,
as the case may be (or, if there is no bid price on a
particular day, then the closing bid price or, if not
available, the highest bid price on the nearest trading date
before that day and for which such prices are available),
and if the shares of Common Stock are not listed on such an
exchange or traded in such a market on such particular day,
then the fair market value per share shall be determined by
mutual agreement of the Board of Directors and the Holders
by taking into consideration all relevant factors,
including, but not limited to, the Company's net worth,
prospective earning power and dividend paying capacity.
h. If the Company in any manner grants any rights or options to
subscribe for or to purchase Common Stock or any stock or other
securities convertible into or exchangeable for Common Stock (such
rights or options being herein called "Rights" and such convertible or
exchangeable stock or securities being herein called "Convertible
Securities"), and the price per share for which Common Stock is
issuable upon the exercise of such Rights or upon conversion or
exchange of such Convertible Securities is less than the Exercise
Price in effect immediately prior to the time of the granting of such
Rights, then the total maximum number of shares of Common Stock
issuable upon the exercise of such Rights or upon conversion or
exchange of the total maximum amount of such Convertible Securities
issuable upon the exercise of such Rights will be deemed to be
outstanding and to have been issued and
CORP\02437\0068\LCFAS12.19C
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sold by the Company for such price per share. For purposes of
this Section, the "price per share for which Common Stock is issuable
upon exercise of such Rights or upon conversion or exchange of such
Convertible Securities" will be determined by dividing (i) the total
amount, if any, received or receivable by the Company as consideration
for the granting of such Rights, plus the minimum aggregate amount of
additional consideration payable to the Company upon exercise of all
such Rights, plus, in the case of Rights that relate to Convertible
Securities, the minimum aggregate amount of additional consideration,
if any, payable to the Company upon the issuance or sale of such
Convertible Securities and the conversion or exchange thereof, by (ii)
the total maximum number of shares of Common Stock then issuable upon
the exercise of such Rights or upon the conversion or exchange of all
Convertible Securities issuable upon the exercise of such Rights.
Except as otherwise provided in Subsections j. and k. below, no
adjustment of the Exercise Price will be made when Convertible
Securities are actually issued upon the exercise of such Rights or
when Common Stock is actually issued upon the exercise of such Rights
or the conversion or exchange of such Convertible Securities.
i. If the Company in any manner issues or sells any
Convertible Securities, and the price per share for which Common
Stock is issuable upon such conversion or exchange is less than
the Exercise Price in effect immediately prior to the time of
such issuance or sale, then the maximum number of shares of
Common Stock then issuable upon conversion or exchange of all
such Convertible Securities will be deemed to be outstanding and
to have been issued and sold by the Company for such price per
share, as determined below. For the purposes of this Section, the
"price per share for which Common Stock is issuable upon such
conversion or exchange" will be determined by dividing (i) the
total amount received or receivable by the Company as
consideration for the issuance or sale of such Convertible
Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion
or exchange thereof, by (ii) the total maximum number of shares
of Common Stock then issuable upon the conversion or exchange of
all such Convertible Securities. Except as otherwise provided in
Subsections j. and k. below, no adjustment of the Exercise Price
will be made when Common Stock is actually issued upon the
conversion or exchange of such Convertible Securities, and if any
such issuance or sale of such Convertible Securities is made upon
exercise of any Convertible Securities for which adjustments of
the Exercise Price had been or are to be made pursuant to other
provisions of this Section 6, no further adjustment of the
Exercise Price will be made by reason of such issuance or sale.
j. If the purchase price provided for in any Rights, the
additional consideration, if any, payable upon the conversion or
exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exchangeable for Common
Stock changes at any time (other than under or by reason of provisions
that are designed to protect against dilution of the type set forth in
this Section 7 and are no more favorable to the holders of such Rights
or Convertible Securities than this Section 7 would have been if this
Section 7 were included in such Rights or Convertible Securities),
then the Exercise Price in effect at the time of such change will be
re-adjusted to the Exercise Price that would have been in effect at
such time had such Rights or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration, or
changed conversion rate, as the case may be, at the time initially
granted, issued, or sold; and such adjustment of the Exercise Price
will be made whether the result thereof is to increase or reduce the
Exercise Price then in effect
CORP\02437\0068\LCFAS12.19C
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under this Warrant, provided that no such adjustment shall
increase the Exercise Price above the initial Exercise Price hereof
and that such adjustments shall be made by the Board of Directors of
the Company, who shall promptly provide notice of the new Exercise
Price to the Holder.
k. Upon the expiration of any Right, or the termination of any
right to convert or exchange any Convertible Security, without the
exercise of such Right, or the conversion of such Convertible
Security, the Exercise Price then in effect hereunder will be adjusted
to the Exercise Price that would have been in effect at the time of
such expiration or termination had such Right or Convertible Security
never been issued, but such subsequent adjustment shall not affect the
number of shares of Common Stock issued upon any exercise of this
Warrant prior to the date such adjustment is made.
l. If any shares of Common Stock, Rights, or Convertible
Securities are issued or sold or deemed to have been issued or sold
for consideration that includes cash, then the amount of cash
consideration actually received by the Company will be deemed to be
the cash portion thereof. If any shares of Common Stock, Rights, or
Convertible Securities are issued or sold or deemed to have been
issued or sold for a consideration part or all of which is other than
cash, then the amount of the consideration other than cash received by
the Company will be the fair value of such consideration as determined
by the Board of Directors of the Company, except where such
consideration consists of securities, in which case the amount of
consideration received by the Company will be the market value thereof
as of the date of receipt. If any shares of Common Stock, Rights, or
Convertible Securities are issued in connection with any merger or
consolidation in which the Company is the surviving corporation, then
the amount of consideration therefor will be deemed to be the fair
value of such portion of the net assets and business of the
non-surviving corporation as is attributable to such Common Stock,
Rights, or Convertible Securities, as the case may be.
m. If any Right is issued in connection with the issuance or sale
of other securities of the Company, together comprising one integrated
transaction in which no specific consideration is allocated to such
Right by the parties thereto, the Right will be deemed to have been
issued without consideration.
n. The number of shares of Common Stock deemed outstanding at any
given time shall include the number of shares of Common Stock
outstanding, as adjusted as provided herein, but shall not include
shares owned or held by or for the account of the Company, and the
disposition of any shares so owned or held will be considered an
issuance or sale of Common Stock hereunder.
o. No adjustment of the Exercise Price shall be made if the
amount of such adjustment would be less than one cent per Warrant
Share, but in such case any adjustment that otherwise would be
required to be made shall be carried forward and shall be made at the
time and together with the next subsequent adjustment that, together
with any adjustment or adjustments so carried forward, shall amount to
not less than one cent per Warrant Share.
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7.2 In the event of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value, or
from no par value to par value, or from par value to no par value, or as a
result of a subdivision or combination) or in the event of any
consolidation or merger of the Company with another entity at any time
prior to the expiration of this Warrant, the Holder shall have the right to
exercise this Warrant. Upon such exercise, the Holder shall have the right
to receive the same kind and number of shares of capital stock and other
securities, cash or other property as would have been distributed to the
Holder upon such reorganization, reclassification, consolidation or merger.
The Holder shall pay upon such exercise the Exercise Price that otherwise
would have been payable pursuant to the terms of this Warrant. If any such
reorganization, reclassification, consolidation or merger results in a cash
distribution in excess of the then applicable Exercise Price, the Holder
may, at the Holder's option, exercise this Warrant without making payment
of the Exercise Price, and in such case the Company shall, upon
distribution to the Holder, consider the Exercise Price to have been paid
in full, and in making settlement to the Holder, shall deduct an amount
equal to the Exercise Price from the amount payable to the Holder. In the
event of any such reorganization, merger or consolidation, the corporation
formed by such consolidation or merger or the corporation which shall have
acquired the assets of the Company shall execute and deliver a supplement
hereto to the foregoing effect, which supplement shall also provide for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided in the Warrant.
7.3 If the Company shall, at any time before the expiration of this
Warrant, dissolve, liquidate or wind up its affairs, the Holder shall have
the right to exercise this Warrant. Upon such exercise the Holder shall
have the right to receive, in lieu of the shares of Common Stock of the
Company that the Holder otherwise would have been entitled to receive, the
same kind and amount of assets as would have been issued, distributed or
paid to the Holder upon any such dissolution, liquidation or winding up
with respect to such stock receivable upon exercise of this Warrant on the
date for determining those entitled to receive any such distribution. If
any such dissolution, liquidation or winding up results in any cash
distribution in excess of the Exercise Price provided by this Warrant, the
Holder may, at the Holder's option, exercise this Warrant without making
payment of the Exercise Price and, in such case, the Company shall, upon
distribution to the Holder, consider the Exercise Price to have been paid
in full and, in making settlement to the Holder, shall deduct an amount
equal to the Exercise Price from the amount payable to the Holder.
7.4 Upon each adjustment of the Exercise Price pursuant to Section 7
hereof, the Holder shall thereafter (until another such adjustment) be
entitled to purchase, at the adjusted Exercise Price in effect on the date
this Warrant is exercised, the number of Warrant Shares, calculated to the
nearest number of Warrant Shares, determined by (a) multiplying the number
of Warrant Shares purchasable hereunder immediately prior to the adjustment
of the Exercise Price by the Exercise Price in effect immediately prior to
such adjustment, and (b) dividing the product so obtained by the adjusted
Exercise Price in effect on the date of such exercise. The provisions of
Section 11 shall apply, however, so that no fractional share of Common
Stock or fractional Warrant shall be issued upon exercise of this Warrant.
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7.5 The Company may retain a firm of independent public accountants of
recognized standing (who may be any such firm regularly employed by the
Company) to make any computation required under this Section 7, and a
certificate signed by such firm shall be conclusive evidence of the
correctness of any computation made under this Section 7.
8. Voting Agreement. Upon exercise of the Warrants, the Holder shall agree
to vote the Warrant Shares in favor of management's nominees to the Board of
Directors for a period of four years or so long as Holder owns the Warrant
Shares, whichever is lesser. The delivery of the Warrant Shares to the Holder
shall be contingent upon the execution and delivery to the Company of a document
providing for the foregoing in a form reasonably satisfactory to the Company.
9. Notice to Holder. So long as this Warrant shall be outstanding (a) if
the Company shall pay any dividends or make any distribution upon the Common
Stock otherwise than in cash or (b) if the Company shall offer generally to the
holders of Common Stock the right to subscribe to or purchase any shares of any
class of capital stock or securities convertible into capital stock or any
similar rights or (c) if there shall be any capital reorganization of the
Company in which the Company is not the surviving entity, recapitalization of
the capital stock of the Company, consolidation or merger of the Company with or
into another corporation, sale, lease or other transfer of all or substantially
all of the property and assets of the Company, or voluntary or involuntary
dissolution, liquidation or winding up of the Company, then in such event, the
Company shall cause to be mailed by registered or certified mail to the Holder,
at least 30 days prior to the relevant date described below (or such shorter
period as is reasonably possible if 30 days is not reasonably possible), a
notice containing a description of the proposed action and stating the date or
expected date on which a record of the Company's stockholders is to be taken for
the purpose of any such dividend, distribution of rights, or such
reorganization, recapitalization, consolidation, merger, sale, lease or
transfer, dissolution, liquidation or winding up is to take place and the date
or expected date, if any is to be fixed, as of which the holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such event.
10. Certificate of Adjustment. Whenever the Exercise Price or number or
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the Holder of this Warrant a
certificate of an officer of the Company setting forth the nature of such
adjustment and a brief statement of the facts requiring such adjustment.
11. No Fractional Shares. No fractional shares of Common Stock will be
issued in connection with any subscription hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share of
Common Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
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12. Restrictions on Exercise.
12.1 Unless, prior to the exercise of this Warrant, the Warrant Shares
have been registered with the Commission pursuant to the Securities Act,
the notice of exercise shall be accompanied by a representation of the
Holder to the Company that such shares are being acquired for investment
and not with a view to the distribution thereof, and such other
representations and documentation as may reasonably be required by the
Company, unless in the opinion of counsel to the Company such
representations or other documentation is not necessary to comply with such
the Securities Act.
12.2 The Company shall not be obligated to deliver any Warrant Shares
unless and until the Company has compiled with any requirements of the
securities exchange or other self-regulatory body on which the Company's
shares of Common Stock may be listed or until there has been qualification
under or compliance with such federal or state laws, rules or regulations.
The Company agrees and undertakes to comply with such laws, rules or
regulations promptly upon receipt by the Company of the Election to
Purchase, and in any event by such date as compliance is required.
Notwithstanding anything contained herein to the contrary, where the
actions described herein may be taken after the issuance of the Warrant
Shares, the Company will promptly issue the Warrant Shares and thereafter
take such appropriate action.
13. Restrictions on Transfer.
13.1 Neither this Warrant nor any Warrant Shares may be transferred
except as follows: (a) to a person who, in the opinion of counsel
satisfactory to the Company, is a person to whom this Warrant or the
Warrant Shares may legally be transferred without registration and without
the delivery of a current prospectus under the Securities Act with respect
thereto and then only against receipt of an agreement of such person to
comply with the provisions of this Section 13 with respect to any Transfer
of such securities; or (b) to any person upon delivery of a prospectus then
meeting the requirements of the Securities Act relating to such securities
and the offering thereof for such Transfer.
13.2 Unless, prior to the exercise of this Warrant, the Warrant Shares
have been registered with the Commission pursuant to the Securities Act,
upon exercise of this Warrant and the issuance of the Warrant Shares, all
certificates representing such Warrant Shares shall bear on the face or
reverse thereof substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF
UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF SUCH ACT AND
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL TO THE COMPANY
IS OBTAINED STATING THAT SUCH SALE, OFFER FOR SALE, PLEDGE,
TRANSFER, ASSIGNMENT OR OTHER DISPOSITION IS IN
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COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION.
14. Lost, Stolen or Destroyed Warrants. In the event that the Holder
notifies the Company that this Warrant has been lost, stolen or destroyed and
either (a) provides a letter, in form satisfactory to the Company, to the effect
that it will indemnify the Company from any loss incurred by it in connection
therewith, and/or (b) provides an indemnity bond in such amount as is reasonably
required by the Company, the Company shall accept such letter and/or indemnity
bond in lieu of the surrender of this Warrant as required by Section 2 hereof.
15. Exchange or Assignment of Warrant. This Warrant is exchangeable,
without expense, at the option of the Holder, upon presentation and surrender
hereof to the Company, for other Warrants of different denominations, entitling
the Holder to purchase in the aggregate the same number of shares purchasable
hereunder. Subject to the provisions of this Warrant and receipt by the Company
of any required representations and agreements, upon surrender of this Warrant
to the Company with the Assignment annexed hereto duly executed and funds
sufficient to pay any transfer tax, the Company shall, without additional
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.
16. Notices. Notices and other communications to be given to the Holder
shall be deemed sufficiently given if delivered by hand, or five days after
mailing by registered or certified mail, postage prepaid, to the Holder at 201
South Biscayne Boulevard, Suite 2950, Miami, Florida 33131. Notices or other
communications to the Company shall be deemed to have been sufficiently given if
delivered by hand or five days after mailing if mailed by registered or
certified mail postage prepaid, to the Company at 26 Harbor Park Drive, Port
Washington, New 11050. A party may change the address to which notice shall be
given by notice pursuant to this Section 16.
17. Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Warrant, the successful
party will be awarded reasonable attorneys' fees at all trial and appellate
levels, expenses and costs.
18. Entire Agreement and Modification. The Company and the Holder of this
Warrant hereby represent and warrant that this Warrant is intended to and does
contain and embody all of the understandings and agreements, both written and
oral, of the parties hereto with respect to the subject matter of this Warrant,
and that there exists no oral agreement or understanding, express or implied,
whereby the absolute, final and unconditional character and nature of this
Warrant shall be in any way invalidated, impaired or affected. A modification or
waiver of any of the terms, conditions or provisions of this Warrant shall be
effective only if made in writing and executed with the same formality of this
Warrant.
19. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Delaware, without application of the
principles of conflicts of laws.
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the 23rd
day of December, 1996.
SANDATA, INC., a Delaware corporation
By:
Bert E. Brodsky, President
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ELECTION TO PURCHASE
TO: Sandata, Inc.
The undersigned hereby irrevocably elects to exercise Warrants represented
by this Common Stock Purchase Warrant to purchase ____________________ shares of
Common Stock issuable upon the exercise of such Warrants and requests that
certificates for such shares be issued in the name of:
(Please insert social security or other identifying number)
(Please print name and address)
Dated: ____________________, 19__
NOTICE: The signature on this Election to Purchase must correspond with the
name as written upon the face of the within Warrant, in every particular,
without alteration, enlargement, or any change whatsoever, and must be
guaranteed by a bank, other than a savings bank, having an office or
correspondent in New York, New York, Boca Raton or Miami, Florida, or by a firm
having membership on a registered national securities exchange and an office in
New York, New York, or Boca Raton or Miami, Florida.
SIGNATURE GUARANTEE
Authorized Signature:
Name of Bank or Firm:
Dated:
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ASSIGNMENT
FOR VALUE RECEIVED, __________________________________________, the
undersigned Holder hereby sells, assigns, and transfers all of the rights of the
undersigned under the within Warrant with respect to the number of Shares
covered thereby set forth below, unto the Assignee identified below, and does
hereby irrevocably constitute and appoint
________________________________________ to effect such transfer of rights on
the books of the Company, with full power of substitution:
Name of Assignee Address of Assignee No. of Shares Exercise Price
Dated:
(Signature of Holder)
(Print or type name)
NOTICE: The signature on this Assignment must correspond with the name
as written upon the face of the within Warrant, in every particular, without
alteration, enlargement, or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, having an office or correspondent in New York,
New York, Boca Raton or Miami, Florida, or by a firm having membership on a
registered national securities exchange and an office in New York, New York, or
Boca Raton or Miami, Florida.
SIGNATURE GUARANTEE
Authorized Signature:
Name of Bank or Firm:
Dated:
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