VOID AFTER 5:00 P.M., MIAMI, FLORIDA TIME, ON DECEMBER 22, 2001.
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.
REDEEMABLE 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, 2001 (the "Expiration Date"), at which time this
Redeemable 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 $7.00 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."
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
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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 $9.00, 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 Act"), pursuant to a registration statement
which is kept current by the Company for at least 120 days after the notice of
redemption.
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4. Registration Rights.
4.1 The Company will, as soon as reasonably possible following
issuance of these Warrants, file a registration statement with the Securities
and Exchange Commission (the "Commission") for the purpose of registering the
re-sale by the Holders thereof of the Common Stock issuable upon exercise of the
Warrant.
4.2 In addition, 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 offer and re-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.
4.3 In addition, if at any time prior to the Expiration 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), to the extent
permitted by law, including, without limitation, the rules and regulations of
the Commission, 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
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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 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 (other than the
registration statement contemplated by Section 4.1 above), 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 4.3 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.
4.4 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.
4.5 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.
4.6 Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to Section 4.2
or Section 4.3, 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
CORP\02437\0068\LCFJLS12.21A
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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.
4.7 Notwithstanding the provisions of Sections 4.2 and 4.3, 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 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 4.2 and 4.3. 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.
4.8 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.
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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 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.
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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 of the
Common Stock Purchase Warrants to B C Capital Corp. or its designees
simultaneously herewith or 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 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
CORP\02437\0068\LCFJLS12.21A
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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 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
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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 7, 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 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.
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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.
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
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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.
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 five 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
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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.
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
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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 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 4~.
Notices or other communications to the Company shall be deemed to have been
sufficiently given if delivered by hand or five days after
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mailing if mailed by registered or certified mail postage prepaid, to the
Company at 26 Harbor Park Drive, Port Washington, New York 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.
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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