EXHIBIT 4.2
AA NORTHVALE MEDICAL ASSOCIATES, INC.
PLACEMENT AGENT WARRANT
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"),
AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL
BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON THE LAST DAY OF THE EXERCISE
PERIOD, AS DEFINED BELOW
CLASS A COMMON STOCK PURCHASE WARRANT
OF
AA NORTHVALE MEDICAL ASSOCIATES, INC.
This is to certify that, FOR VALUE RECEIVED, Maxim Group LLC
("Holder"), is entitled to purchase, subject to the provisions of this Class A
Common Stock Purchase Warrant (this "Warrant"), from AA Northvale Medical
Associates, Inc., a New Jersey corporation (the "Company"), at an initial
exercise price per share of $____ (the "Initial Exercise Price"), subject to
adjustment as provided in this Warrant, _______________ (_____________) shares
of common stock, no par value ("Common Stock"). The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Stock," and the exercise price for
the purchase of a share of Common Stock pursuant to this Warrant in effect at
any time and as adjusted from time to time is hereinafter sometimes referred to
as the "Exercise Price."
1. ISSUANCE OF WARRANT. This Warrant is being issued pursuant to a
private offering of up to 35 units ("UNITS") at an offering price of $100,000
per Unit, each Unit consisting of: (i) one (1) $100,000 Joint Unsecured 6%
Convertible Note (the "NOTES"); (ii) one (1) Class A Common Stock Purchase
Warrant of ADMT, and (iii) one (1) Class A Common Stock Purchase Warrant of AAN.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the subscription agreement ("Subscription Agreement")
attached as an exhibit to the Company's PPM dated May 20, 2004. In addition the
following terms have the meanings set forth below:
"AAN Warrant" means this Warrant for the purchase of the
number of shares of Common Stock of the Company noted above.
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"ADMT Warrant" shall mean the Warrant for the purchase of
______ shares of common stock of ADM Tronics Unlimited, Inc., a Delaware
corporation, which was issued to the Holder concurrently with the issuance of
the AAN Warrant. The ADMT Warrant is sometimes referred to herein as the
"Corresponding ADMT Warrant."
"Approved Market" shall mean any public market on which the
AAN Common Stock is trading (it being understood that the Pink Sheets Quotation
Service shall not qualify as an Approved Market for these purposes).
"Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities, which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property, for
shares of Common Stock, either immediately or upon the occurrence of a specified
date or a specified event.
"Exercise Period" shall mean the period commencing on ______,
2004 and ending at 5 p.m., eastern time on __________.
"Offering" shall mean the joint offering of units by the
Company and ADMT pursuant to a confidential private placement memorandum dated
May 20, 2004 ("PPM") the first supplement dated June 30, 2004 and the second
supplement dated August 5, 2004 ("Supplements").
"Permitted Issuances" shall mean: (i) Common Stock issued
pursuant to a stock split or subdivision, (ii) Common Stock issuable or issued
to employees, consultants or directors of the Company directly or pursuant to a
stock plan or other compensation arrangement approved by the Board of Directors
of the Company, (iii) capital stock, debt instruments convertible into capital
stock or options or warrants to purchase capital stock, issued to financial
institutions, investors or lessors in connection with commercial credit
arrangements, equipment financings or similar transactions, provided that the
terms of such transaction or transactions are approved by the Board of Directors
of the Company, (iv) capital stock, debt instruments convertible into capital
stock or warrants or options to purchase capital stock issued in connection with
bona fide acquisitions, mergers, technology licenses or purchases, corporate
partnering agreements, joint ventures or similar transactions, the terms of
which are approved by the Board of Directors of the Company, (v) Common Stock
issued or issuable upon conversion of the Warrants or any other securities
exercisable or exchangeable for, or convertible into shares of Common Stock
outstanding as of May 20, 2004, and (vi) shares of Common Stock issued or
issuable in a transaction approved in advance by the holders of more than 50% of
the then outstanding Warrants.
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2. EXERCISE OF WARRANT/REGISTRATION RIGHTS.
(a) This AAN Warrant may be exercised in whole or in part at any time
or from time to time from the date that the Common Stock of the Company is
listed on an Approved Market, and that the shares of Common Stock issuable upon
exercise of this AAN Warrant have been registered for resale with the SEC until
the end of the Exercise Period by presentation and surrender of this AAN Warrant
and the ADMT Warrants to the Company at its principal office, or at the office
of its stock transfer agent, if any, with the Purchase Form annexed to this AAN
Warrant duly executed and accompanied by payment of the Exercise Price for the
number of shares of Common Stock specified in the Purchase Form in cash (the
Holder will receive no consideration for the surrender of the ADMT Warrant) or
on a cashless basis in accordance with (i) below. If this AAN Warrant should be
exercised in part only, the Company shall, upon surrender of this AAN Warrant
(and the ADMT Warrants) for cancellation, execute and deliver a new AAN Warrant
(and the ADMT Warrants) evidencing the rights of the Holder hereof to purchase
the balance of the shares of Common Stock purchasable hereunder. Upon receipt by
the Company of this AAN Warrant at its office, or by the stock transfer agent of
the Company at its office, in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be actually delivered to the Holder. As soon as practicable
after each exercise of this Warrant, in whole or in part, and in any event
within seven (7) days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the Holder hereof or, subject to Section 6 hereof, as the
Holder (upon payment by the Holder of any applicable transfer taxes) may direct
a certificate or certificates (with appropriate restrictive legends, as
applicable) for the number of duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock to which the Holder shall be entitled upon
exercise plus, in lieu of any fractional share to which the Holder would
otherwise be entitled, all issuances of Common Stock shall be rounded up to the
nearest whole share.
(i) The Holder may, at its option, elect to exercise this
Warrant, in whole or in part and at any time or from time to
time, on a cashless basis, by surrendering this Warrant, with
the Purchase Form attached hereto duly executed by or on
behalf of the Holder, at the principal office of the Company,
or at such other office or agency as the Company may
designate, by canceling a portion of this Warrant in payment
of the Exercise Price payable in respect of the number of
shares of Warrant Stock purchased upon such exercise. In the
event of an exercise pursuant to this subsection 2(a)(i), the
number of shares of Warrant Stock issued to the Holder shall
be determined according to the following formula:
X = Y(A-B)
------
A
Where: X = the number of shares of Warrant Stock that
shall be issued to the Holder;
Y = the number of shares of Warrant Stock
for which this Warrant is being exercised
(which shall include both the number of
shares of Warrant Stock issued to the Holder
and the number of shares of Warrant Stock
subject to the portion of the Warrant being
cancelled in payment of the Exercise Price);
A= the Fair Market Value (as defined below)
of one share of Common Stock; and
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B = the Exercise Price then in effect.
The Fair Market Value per share of Common Stock
shall be determined as follows:
(1) If the Common Stock is listed on a national
securities exchange, the Nasdaq National Market, the OTC Bulletin Board or
another nationally recognized trading system as of the Exercise Date, as defined
below, the Fair Market Value per share of Common Stock shall be deemed to be the
average of the high and low reported sale prices per share of Common Stock
thereon on the trading day immediately preceding the Exercise Date, as defined
below, (provided that if the Common Stock is not so listed on such day, the Fair
Market Value per share of Common Stock shall be determined pursuant to clause
(2) below).
(2) If the Common Stock is not listed on a national
securities exchange, the Nasdaq National Market, the OTC Bulletin Board or
another nationally recognized trading system as of the Exercise Date, as defined
below, the Fair Market Value per share of Common Stock shall be deemed to be the
amount most recently determined by the Board of Directors of the Company or an
authorized committee of the Board of Directors of the Company (the "BOARD") to
represent the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement with employees of
the Company); and, upon request of the Holder, the Board (or a representative
thereof) shall, as promptly as reasonably practicable but in any event not later
than 15 days after such request, notify the Holder of the Fair Market Value per
share of Common Stock. Notwithstanding the foregoing, if the Board has not made
such a determination within the three-month period prior to the Exercise Date,
as defined below, then (A) the Board shall make, and shall provide or cause to
be provided to the Holder notice of, a determination of the Fair Market Value
per share of the Common Stock within 15 days of a request by the Holder that it
do so, and (B) the exercise of this Warrant pursuant to this subsection 2(a)
shall be delayed until such determination is made and notice thereof is provided
to the Holder.
(b) The Company shall use its best efforts to file a registration
statement (the "Registration Statement") registering the Warrant Stock with the
SEC under the Securities Act of 1933, as amended (the "Act") within 60 days
following the closing of the Offering.
(c) The Company has also granted "piggyback" registration rights to the
Holder, as more fully described in the Subscription Agreement executed as of the
date hereof.
3. RESERVATION OF SHARES; FRACTIONAL SHARES. The Company hereby agrees
that at all times there shall be reserved for issuance and/or delivery upon
exercise of this Warrant such number of shares of Common Stock as shall be
required for issuance and delivery upon exercise of this Warrant. No fractional
shares or script representing fractional shares shall be issued upon the
exercise of this Warrant. Instead, the Company will round up to the nearest
whole share.
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4. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This AAN Warrant
is exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof (along with the Corresponding ADMT Warrant) to the Company
or at the office of its stock transfer agent, if any, for other AAN Warrants
(and Corresponding ADMT Warrants) of different denominations entitling the
holder thereof to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Upon surrender of this AAN Warrant (and
Corresponding ADMT Warrant) to the Company or at the office of its stock
transfer agent, if any, with the Assignment Form annexed hereto duly executed
and funds sufficient to pay any transfer tax, the Company shall, without charge,
execute and deliver a new AAN Warrant (and Corresponding ADMT Warrant) in the
name of the assignee named in such instrument of assignment and this AAN Warrant
(and Corresponding ADMT Warrant) shall promptly be canceled. This AAN Warrant
(and Corresponding ADMT Warrant) may be divided or combined with other AAN
Warrants (and Corresponding ADMT Warrants) which carry the same rights upon
presentation hereof at the office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying the names and
denominations in which new AAN Warrants (and Corresponding ADMT Warrants) are to
be issued and signed by the Holder hereof. The term "Warrant" and "AAN Warrant"
as used herein includes any AAN Warrants into which this Warrant may be divided
or exchanged. Upon receipt by the Company of evidence satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor. Any such new Warrant executed
and delivered shall constitute an additional contractual obligation on the part
of the Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
5. RIGHTS AND OBLIGATIONS OF THE HOLDER. The Holder shall not, by
virtue of this Warrant, be entitled to any rights of a stockholder in the
Company, either at law or equity, and the rights of the Holder are limited to
those expressed in the Warrant and are not enforceable against the Company
except to the extent set forth herein. In addition, no provision hereof, in the
absence of affirmative action by Holder to purchase shares of Common Stock, and
no enumeration herein of the rights or privileges of Holder hereof, shall give
rise to any liability of such Holder for the purchase price of any Common Stock
or as a stockholder of Company, whether such liability is asserted by Company or
by creditors of Company.
6. ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time
and the number and kind of securities purchasable upon exercise of each Warrant
shall be subject to adjustment as follows and the Company shall give each Holder
notice of any event described below which requires an adjustment pursuant to
this Section 6 at the time of such event:
(a) Stock Dividends, Subdivisions and Combinations. If at any time
Company shall:
(i) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, shares of Common Stock,
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(ii) subdivide or reclassify its outstanding shares of Common
Stock into a larger number of shares of Common Stock, or
(iii) combine or reclassify its outstanding shares of Common
Stock into a smaller number of shares of Common Stock or otherwise effect a
reverse stock split,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event, or the record date therefor,
whichever is earlier, would own or be entitled to receive after the happening of
such event, and (ii) the Exercise Price(s) shall be adjusted to equal (A) the
Exercise Price immediately prior to such event multiplied by the number of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the adjustment divided by (B) the number of shares for which this Warrant is
exercisable immediately after such adjustment.
(b) Certain Other Distributions and Adjustments.
(i) If at any time Company shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive any dividend or
other distribution of:
(A) cash,
(B) any evidences of its indebtedness, any shares of
its stock or any other securities or property of any nature whatsoever (other
than Convertible Securities or shares of Common Stock), or
(C) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any shares of its stock or any other
securities or property of any nature whatsoever (other than Convertible
Securities or shares of Common Stock),
then Holder, upon exercise of this Warrant, shall be entitled to receive such
dividend or distribution as if Holder had exercised this Warrant.
(ii) A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no par value to
par value) into shares of Common Stock and shares of any other class of stock
shall be deemed a distribution by Company to the holders of its Common Stock of
such shares of such other class of stock and in such event Holder shall be
entitled to receive such distribution as if Holder had exercised this Warrant
and, if the outstanding shares of Common Stock shall be changed into a larger or
smaller number of shares of Common Stock as a part of such reclassification,
such change shall be deemed a subdivision or combination, as the case may be, of
the outstanding shares of Common Stock within the meaning of Section 6(a).
(c) Issuance of Additional Shares of Common Stock.
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(i) If at any time the Company shall issue or sell any shares
of Common Stock in exchange for consideration in an amount per share of Common
Stock less than the then current Exercise Price, other than Permitted Issuances,
then (A) the Exercise Price shall be adjusted so that it shall equal the price
determined by multiplying the Exercise Price in effect immediately prior to such
event by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance plus the number of additional
shares of Common Stock which the aggregate offering price would purchase based
upon the Exercise Price, and of which the denominator shall be the number of
shares of Common Stock outstanding on the date of issuance plus the number of
additional shares of Common Stock issued or issuable in such offering, and (B)
the number of shares of Common Stock for which this Warrant is exercisable shall
be adjusted to equal the product obtained by multiplying the Exercise Price in
effect immediately prior to such issue or sale by the number of shares of Common
Stock for which this Warrant is exercisable immediately prior to such issue or
sale and dividing the product thereof by the Exercise Price resulting from the
adjustment made pursuant to clause (A) above.
(ii) The provisions of paragraph (i) of this Section 6(c)
shall not apply to any issuance of shares of Common Stock for which an
adjustment is provided under Section 6(a) or 6(b). No adjustment of the number
of shares of Common Stock for which this Warrant shall be exercisable shall be
made under paragraph (i) of this Section 6(c) upon the issuance of any shares of
Common Stock which are issued pursuant to the exercise of any warrants or other
subscription or purchase rights or pursuant to the exercise of any conversion or
exchange rights in any Convertible Securities, if any such adjustment shall
previously have been made upon the issuance of such warrants or other rights or
upon the issuance of such Convertible Securities (or upon the issuance of any
warrant or other rights therefor) pursuant to Section 6(d) or Section 6(e).
(d) Issuance of Warrants or Other Rights. If at any time Company shall
take a record of the holders of its Common Stock for the purpose of entitling
them to receive a distribution of, or shall in any manner (whether directly or
by assumption in a merger in which Company is the surviving corporation) issue
or sell, any warrants or other rights to subscribe for or purchase any shares of
Common Stock or any Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the price per
share for which Common Stock is issuable upon the exercise of such warrants or
other rights or upon conversion or exchange of such Convertible Securities shall
be less than the Trigger Price, then the number of shares for which this Warrant
is exercisable and the Exercise Price shall be adjusted as provided in Section
6(c) on the basis that the maximum number of shares of Common Stock issuable
pursuant to all such warrants or other rights or necessary to effect the
conversion or exchange of all such Convertible Securities shall be deemed to
have been issued and outstanding and the Company shall be deemed to have
received all the consideration payable therefor, if any, as of the date of
issuance of such warrants or other rights. No further adjustment of the Exercise
Price(s) shall be made upon the actual issuance of such Common Stock or of such
Convertible Securities upon exercise of such warrants or other rights or upon
the actual issuance of such Common Stock upon such conversion or exchange of
such Convertible Securities.
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(e) Issuance of Convertible Securities. If at any time Company shall
take a record of the holders of its Common Stock for the purpose of entitling
them to receive a distribution of, or shall in any manner (whether directly or
by assumption in a merger in which Company is the surviving corporation) issue
or sell, any Convertible Securities, whether or not the rights to exchange or
convert thereunder are immediately exercisable, and the price per share for
which Common Stock is issuable upon such conversion or exchange shall be less
than the then current Exercise Price, then the number of shares of Common Stock
for which this Warrant is exercisable and the Exercise Price shall be adjusted
as provided in Section 6(c) on the basis that the maximum number of shares of
Common Stock necessary to effect the conversion or exchange of all such
Convertible Securities shall be deemed to have been issued and outstanding and
Company shall have received all of the consideration payable therefor, if any,
as of the date of issuance of such Convertible Securities. If any issue or sale
of Convertible Securities is made upon exercise of any warrant or other right to
subscribe for or to purchase any such Convertible Securities for which
adjustments of the number of shares of Common Stock for which this Warrant is
exercisable and the Exercise Price have been or are to be made pursuant to
Section 6(d), no further adjustment of the number of shares of Common Stock for
which this Warrant is exercisable and the Exercise Price shall be made by reason
of such record, issue or sale.
(f) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($0.01) in
such price; provided, however, that any adjustments which by reason of this
Section 6(f) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 6(f)
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(g) The Company may retain a firm of independent public accountants of
recognized standing selected by the Board (who may be the regular accountants
employed by the Company) to make any computation required by this Section 6.
(h) In the event that at any time, as a result of an adjustment made
pursuant to Section 6(a), (b) or (c) of this Warrant, the Holder of any Warrant
thereafter shall become entitled to receive any shares of the Company, other
than Common Stock, thereafter the number of such other shares so receivable upon
exercise of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in Sections 6(a) through (g), inclusive,
of this Warrant.
(i) Notwithstanding the foregoing, no adjustment shall be effected due
to, or as a result of, any Permitted Issuances.
(j) Other Action Affecting Common Stock. In case at any time or from
time to time Company shall take any action in respect of its Common Stock, other
than any action described in this Section 6, then, unless such action will not
have a materially adverse effect upon the rights of the Holders, the number of
shares of Common Stock or other stock for which this Warrant is exercisable
and/or the purchase price thereof shall be adjusted in such manner as may be
equitable in the circumstances.
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7. REDEMPTION. This AAN Warrant shall not be redeemable by the Company
at anytime.
8. OFFICER'S CERTIFICATE. Whenever the Exercise Price(s) shall be
adjusted as required by the provisions of Section 6 of this Warrant, the Company
shall forthwith file in the custody of its Secretary or an Assistant Secretary
at its principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price(s) and the adjusted number of
shares of Common Stock issuable upon exercise of each Warrant, determined as
herein provided, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional shares of Common
Stock, if any, and such other facts as shall be necessary to show the reason for
and the manner of computing such adjustment. A copy of each such officer's
certificate shall be forwarded to Holder.
9. NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (1) if the Company shall pay any dividend or make any distribution
upon Common Stock, or (2) if the Company shall offer to the holders of Common
Stock for subscription or purchase by them any share of any class or any other
rights, or (3) if any capital reorganization of the Company, reclassification of
the capital stock of the Company, consolidation or merger of the Company with or
into another entity, tender offer transaction for the Company's Common Stock,
sale, lease or 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 shall be effected, or (4) if the Company shall file a
registration statement under the Securities Act, on any form other than on Form
S-4 or S-8 or any successor form, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder, at least ten days prior to the
date specified in clauses (1), (2), (3) or (4), as the case may be, of this
Section 9 a notice containing a brief description of the proposed action and
stating the date on which (i) a record is to be taken for the purpose of such
dividend, distribution or rights, or (ii) such reclassification, reorganization,
consolidation, merger, tender offer transaction, conveyance, lease, dissolution,
liquidation or winding up is to take place and the date, if any is to be fixed,
as of which the holders of Common Stock or other securities shall receive cash
or other property deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or winding up, or
(iii) such registration statement is to be filed with the Securities and
Exchange Commission.
10. RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing or surviving corporation and which
does not result in any reclassification, capital reorganization or other change
of outstanding shares of Common Stock of the class issuable upon exercise of
this Warrant) or in case of any sale, lease or conveyance of all or
substantially all of the assets of the Company, the Company shall, as a
condition precedent to such transaction, cause effective provisions to be made
so that (i) the Holder shall have the right thereafter by exercising this
Warrant, to purchase the kind and amount of shares of stock and other securities
and property receivable upon such reclassification, capital reorganization and
other change, consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock which could have been purchased upon exercise
of this Warrant immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance, and (ii) the successor or acquiring
entity shall expressly assume the due and punctual observance and performance of
each covenant and condition of this Warrant to be performed and observed by
Company and all obligations and liabilities hereunder (including but not limited
to the provisions of Section 3 regarding the increase in the number of shares of
Warrant Stock potentially issuable hereunder). Any such provision shall include
provision for adjustments which shall be as nearly equivalent as possible to the
adjustments provided for in this Warrant. The foregoing provisions of this
Section 10 shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event that in connection
with any such capital reorganization or reclassification, consolidation, merger,
sale or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole in part, for a security
of the Company other than Common Stock, any such issue shall be treated as an
issuance of Common Stock covered by the provisions of Section 6 of this Warrant.
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11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. This Warrant or
the Warrant Stock or any other security issued or issuable upon exercise of this
Warrant may not be sold or otherwise disposed of except as follows:
(i) to a person who, in the opinion of counsel for the
Company, is a person to whom this Warrant or Warrant Stock may legally be
transferred without registration and without the delivery of a current
prospectus under the Act with respect thereto and then only against receipt of
an agreement of such person to comply with the provisions of this Section 11
with respect to any resale or other disposition of such securities which
agreement shall be satisfactory in form and substance to the Company and its
counsel; or
(ii) to any person upon delivery of a prospectus then meeting
the requirements of the Act relating to such securities and the offering thereof
for such sale or disposition.
12. GOVERNING LAW; JURISDICTION. The corporate laws of the State of New
Jersey shall govern all issues concerning the relative rights of the Company and
its stockholders. All issues concerning the construction, validity, enforcement
and interpretation of this Warrant shall be governed by and construed in
accordance with the internal laws of the State of New York without giving effect
to the principles of conflicts of law thereof. The parties hereto agree that
venue in any and all actions and proceedings related to the subject matter of
this Warrant shall be in the state and federal courts in and for New York, New
York, which courts shall have exclusive jurisdiction for such purpose, and the
parties hereto irrevocably submit to the exclusive jurisdiction of such courts
and irrevocably waive the defense of an inconvenient forum to the maintenance of
any such action or proceeding. Service of process may be made in any manner
recognized by such courts. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought.
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13. NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (New York City
time) on a Business Day, (ii) the Business Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Agreement later than 6:30 p.m. (New York City
time) on any date and earlier than 11:59 p.m. (New York City time) on such date,
(iii) the Business Day following the date of mailing, if sent by nationally
recognized overnight courier service, or (iv) upon actual receipt by the party
to whom such notice is required to be given. The address for such notices and
communications shall be as follows:
AA Northvale Medical Associates, Inc.
224-S Pegasus Avenue
Northvale, New Jersey 07647
Attn: President
Tel: (201) 767-6040 Fax: (201) 784-0620
or such other address as it shall have specified to the Subscriber in
writing, with a copy (which shall not constitute notice) to:
Frank J. Hariton, Esq.
1065 Dobbs Ferry Road
White Plains, New York 10607
Attn: Frank J. Hariton
Tel: 914.674.4373; Fax: 914.693.2963
If to the Holder: Maxim Group, LLC
405 Lexington Avenue, 2nd Floor
New York, NY 10017
Facsimile No.: (212) 895-2555
Attn: Anthony Sarkis
14. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
attributable to the issuance of shares of Common Stock underlying this Warrant
upon exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificate for shares of Common Stock underlying
this Warrant in a name other that of the Holder. The Holder is responsible for
all other tax liability that may arise as a result of holding or transferring
this Warrant or receiving shares of Common Stock underlying this Warrant upon
exercise hereof.
[signature page follows]
11
IN WITNESS WHEREOF, this Warrant has been duly executed as of _______, 2004.
AA NORTHVALE MEDICAL ASSOCIATES, INC.
By: ________________________________
Name:
Title:
12
PURCHASE FORM
To: AA Northvale Medical Associates, Inc. Dated:____________
The undersigned, pursuant to the provisions set forth in the attached Warrant
(No. ___), hereby elects to purchase (check applicable box):
_________ shares of the Common Stock of AA Northvale Medical Associates, Inc.
covered by such Warrant; or
the maximum number of shares of Common Stock covered by such Warrant pursuant
to the cashless exercise procedure set forth in section 2(a).
The undersigned herewith makes payment of the full Exercise Price for such
shares at the price per share provided for in such Warrant, plus the return for
cancellation of a like number of Corresponding ADMT Warrants. Such payment takes
the form of (check applicable box or boxes):
$______ in lawful money of the United States; and/or
the cancellation of such portion of the attached Warrant as is
exercisable for a total of _____ Warrant Shares (using a Fair
Market Value of $_____ per share for purposes of this
calculation) ; and/or
the cancellation of such number of Warrant Shares as is
necessary, in accordance with the formula set forth in section
2(a), to exercise this Warrant with respect to the maximum
number of Warrant Shares purchasable pursuant to the cashless
exercise procedure set forth in section 2(a).
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Print or Type Name
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(Signature must conform in all respects to
name of holder as specified on the
face of Warrant)
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(Street Address)
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(City) (State) (Zip Code)
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:___________________________________________
(Please typewrite or print in block letters)
Signature:______________________________________
Social Security or Employer Identification No.:_________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________________ hereby
sells, assigns and transfer unto:
Name:_______________________________________________
(Please typewrite or print in block letters)
Address:____________________________________________
Social Security or Employer Identification No.:__________________________
The right to purchase Common Stock represented by this Warrant to the extent of
shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint attorney to transfer the same (along with the
Corresponding ADMT Warrant) on the books of the Company with full power of
substitution.
Dated: _________________, 200_.
Signature:________________________
Signature Guaranteed:
_________________________________