EXHIBIT 4.7A
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WARRANT
TO PURCHASE
SHARES OF
COMMON STOCK
OF
ANCHOR PACIFIC UNDERWRITERS, INC.
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TABLE OF CONTENTS
Page
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1. General Terms................................................ 1
1.1 Right to Acquire Securities............................ 1
1.2 Exercise of Warrant.................................... 2
1.3 Record Holder.......................................... 2
1.4 Payment of Taxes....................................... 2
1.5 Transfer and Exchange.................................. 2
2. Transfer of Securities....................................... 3
2.1 Restrictions of Transfer............................... 3
2.2 Cooperation............................................ 4
3. Registration Rights.......................................... 4
3.1 Rights of Warrantholders............................... 4
3.2 Expenses............................................... 6
3.3 Company Responsibilities............................... 6
3.4 Indemnification........................................ 6
3.5 Holder's Obligations................................... 8
3.6 Assignment............................................. 8
4. Adjustments to Exercise Price and Warrant Shares............. 8
4.1 Subdivision or Combination............................. 8
4.2 Adjustment for Reorganization, Consolidation, Merger... 8
4.3 Miscellaneous Exercise Matters......................... 9
4.4 No Dilution or Impairment.............................. 9
4.5 Notice of Adjustment................................... 10
4.6 Duty to Make Fair Adjustments in Certain Cases......... 10
5. Miscellaneous................................................ 10
5.1 Entire Agreement....................................... 10
5.2 Successors and Assigns................................. 10
5.3 Governing Law.......................................... 10
5.4 Notices, Etc........................................... 10
5.5 Delays or Omissions.................................... 10
5.6 Survival............................................... 11
5.7 Waivers and Amendments................................. 11
5.8 Severability........................................... 11
(ii)
5.9 Registered Holder....................................... 11
5.10 Titles and Subtitles................................... 12
Exercise Notice.................................................... 13
Form of Assignment................................................. 14
(iii)
WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
ANCHOR PACIFIC UNDERWRITERS, INC.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) COVERED
BY AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT, (B) IN COMPLIANCE WITH
RULE 144 UNDER SUCH ACT, OR (C) THE COMPANY HAS BEEN FURNISHED WITH AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT NO REGISTRATION IS REQUIRED
FOR SUCH TRANSFER.
__________ Shares of Common Stock
1. General Terms.
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1.1 Right to Acquire Securities.
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(a) This Warrant certifies that for value received _____________
________________________________________________ (the "Holder"), or registered
assigns, are entitled at any time before 5:00 p.m., San Francisco, California
time, on the Expiration Date (as such term is defined herein) to purchase from
ANCHOR PACIFIC UNDERWRITERS, INC., a Delaware corporation (the "Company"),
________ shares (the "Warrant Shares") of the fully paid and non-assessable
Common Stock of the Company ("Common Stock") as constituted on the date hereof
(the "Issuance Date"), at a price of $.90 per share (the "Exercise Price"), such
number of shares and price per share subject to adjustment as provided herein
and all subject to the conditions set forth herein. This Warrant may be
exercised at any time on or before five years from the date hereof (the
"Expiration Date").
Upon any partial exercise hereof, there shall be issued to the
Holder a new Warrant or Warrants with respect to the shares of Common Stock not
so exercised. No fractions of a share of Common Stock will be issued upon the
exercise of this Warrant, but if a fractional share would be issuable upon
exercise the Company will pay in cash the fair market value thereof as
determined by the Board of Directors of the Company in good faith.
(b) The Warrant may be subdivided, at the Warrantholder's
option, into several warrants to purchase the Warrant Shares (collectively, also
referred to as the "Warrant"). Such subdivision may be accomplished in
accordance with the provisions of Section 1.5 hereof.
(1)
1.2 Exercise of Warrant.
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(a) The Holder or any person or entity to whom the Holder has
assigned its right under this Warrant (collectively referred to as the
"Warrantholder") may exercise the Warrant, in whole or in part, at any time or
from time to time, prior to its expiration, on any business day, by delivering a
written notice in the form attached hereto (the "Exercise Notice") to the
Company at the offices of the Company designated in Section 5.4 hereof,
exercising the Warrant and specifying (i) the total number of shares of Common
Stock the Warrantholder will purchase pursuant to such exercise and (ii) a place
and date not less than one nor more than 20 business days from the date of the
Exercise Notice for the closing of such purchase.
(b) At any closing under Section 1.2(a) hereof, (i) the
Warrantholder will surrender the Warrant and make payment to the Company of the
aggregate Exercise Price for the shares of Common Stock so purchased by bank,
cashier's or certified check and (ii) the Company will deliver to the
Warrantholder a certificate or certificates for the number of shares of Common
Stock issuable upon such exercise, together with cash, in lieu of any fraction
of a share, as provided in Section l.l(a) above. Upon any partial exercise, a
new warrant or warrants of the same tenor and expiration date for the purchase
of the number of such shares not purchased upon such exercise shall be issued by
the Company to the registered holder thereof.
1.3 Record Holder. A Warrant shall be deemed to have been exercised
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immediately prior to the close of business on the date of its surrender for
exercise as provided in Section 1.2(b) above, and the person entitled to receive
the shares of Common Stock 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.
1.4 Payment of Taxes. The Company shall pay all taxes and other
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governmental charges that may be imposed in respect of the issue or delivery of
the Warrant Shares or any portion thereof. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for the Warrant Shares or any portion
thereof in any name other than that of the registered holder of the Warrant
surrendered in connection with the purchase of such shares, and in such case the
Company shall not be required to issue or deliver any certificate until such tax
or other charge has been paid or it has been established to the Company's
satisfaction that no tax or other charge is due.
1.5 Transfer and Exchange.
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(a) Subject to the terms hereof, including, without limitation,
Section 2.1, the Warrant and all rights thereunder are transferable, in whole or
in part, on the books of the Company maintained for such purpose at its office
designated in Section 5.4 hereof by the registered holder hereof in person or by
duly authorized attorney, upon surrender of the Warrant properly endorsed and
upon payment of any necessary transfer tax or other governmental charge
(2)
imposed upon such transfer. Upon any partial transfer, the Company will issue
and deliver to such holder a new warrant or warrants with respect to the Warrant
Shares not so transferred. Each taker and holder of the Warrant, by taking or
holding the same, consents and agrees that the Warrant when endorsed in blank
shall be deemed negotiable, and that when the Warrant shall have been so
endorsed, the holder may be treated by the Company and all other persons dealing
with the Warrant as the absolute owner of such Warrant for any purpose and as
the person entitled to exercise the rights represented thereby, or to the
transfer on the books of the Company, any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered holder of the Warrant as the owner for all purposes. The term
"Warrant" as used herein shall include the Warrant and, any warrants delivered
in substitution or exchange therefor as provided herein.
(b) The Warrant is exchangeable for a warrant or warrants for
the same aggregate number of Warrant Shares, each new Warrant to represent the
right to purchase such number of shares as the holder shall designate at the
time of such exchange.
2. Transfer of Securities.
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2.1 Restrictions of Transfer. Neither the Warrant nor the Warrant
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Shares shall be transferable except upon the conditions specified in this
Section 2.1, which conditions are intended to insure compliance with the
provisions of the Securities Act of 1933 (the "1933 Act") in respect to the
transfer of the Warrant and the Warrant Shares.
(a) Unless and until otherwise permitted by this Section 2.1,
the Warrant and each certificate or other document evidencing any of the Warrant
Shares shall be endorsed with a legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT,
(B) IN COMPLIANCE WITH RULE 144 UNDER SUCH ACT, OR (C) THE COMPANY HAS BEEN
FURNISHED WITH AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY
TO THE EFFECT THAT NO REGISTRATION IS REQUIRED FOR SUCH TRANSFER."
(b) Neither the Warrant nor the Warrant Shares shall be
transferred, and the Company shall not be required to register any such
transfer, unless and until one of the following events shall have occurred:
(i) the Company shall have received an opinion of
counsel, in form and substance reasonably acceptable to the Company and its
counsel, stating that the contemplated transfer is exempt from registration
under the 1933 Act as then in effect, and the Rules and Regulations of the
Securities and Exchange Commission (the "Commission") thereunder. Within five
business days after delivery to the Company and its counsel of such an
(3)
opinion, the Company either shall deliver to the proposed transferor a statement
to the effect that such opinion is not satisfactory in the reasonable opinion of
its counsel (and shall specify in detail the legal analysis supporting any such
conclusion) or shall authorize the Company's transfer agent to make the
requested transfer;
(ii) the Company shall have been furnished with a letter
from the Commission in response to a written request in form and substance
acceptable to counsel for the Company setting forth all of the facts and
circumstances surrounding the contemplated transfer, stating that the Commission
will take no action with regard to the contemplated transfer;
(iii) the Warrant or the Warrant Shares are transferred
pursuant to a registration statement which has been filed with the Commission
and has become effective; or
(iv) the Warrant or the Warrant Shares are transferred in
accordance with the provisions of Rule 144 promulgated by the Commission under
the 1933 Act.
(c) The restrictions on transfer imposed by this Section 2.1
shall cease and terminate as to the Warrant and the Warrant Shares when (i) such
securities shall have been effectively registered under the 1933 Act and sold by
the holder thereof in accordance with such registration, (ii) an acceptable
opinion as described in Section 2.1(b)(i) or a "no action" letter described in
Section 2.1(b)(ii) states that future transfers of such securities by the
transferor or the contemplated transferee would be exempt from registration
under the 1933 Act, or (iii) such securities may be sold in accordance with the
provisions of Rule 144 promulgated under the 1933 Act. When the restrictions on
transfer contained in this Section 2.1 have terminated as provided above, the
holder of the securities as to which such restrictions shall have terminated or
the transferee of such holder shall be entitled to receive promptly from the
Company, without expense to him, new certificates not bearing the legend set
forth in Section 2.1(a) hereof.
2.2 Cooperation. The Company shall cooperate in supplying such
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information as may be reasonably requested by the Warrantholder to complete and
file any information reporting forms presently or subsequently required by the
Commission as a condition to the availability of an exemption, presently
existing or subsequently adopted, from the 1933 Act for the sale of the Warrant
or the Warrant Shares.
3. Registration Rights.
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3.1 Rights of Warrantholders. Holders of the Common Stock issued or
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issuable upon exercise of this Warrant (collectively, the "Registrable
Securities") shall have "piggyback" registration rights as set forth below:
(a) If, at any time, through and including the third anniversary
of the date of this Warrant, the Company proposes to register any of its
securities under the Act (other than in connection with a merger,
acquisition, reorganization or similar transaction pursuant to a Form S-4
Registration Statement or an employee stock compensation plan pursuant to a
Form S-8 Registration Statement), it will give written notice by registered
(4)
mail, at least (30) days prior to the filing of each such registration
statement, to the Holder of its intention to do so. If the Holder notifies
the Company within 20 days after receipt of any such notice of its desire
to include any Registrable Securities in such proposed registration
statement, the Company shall afford such Holder the opportunity to have any
of the Registrable Securities registered under such registration statement
and included in any underwriting involved with respect thereto.
(b) Notwithstanding the provisions of Section 3 hereof: (i) the
Company shall have the right at any time after it shall have given written
notice pursuant to this Section 3 (irrespective of whether a written
request for inclusion of any Registrable Securities shall have been made)
to elect not to file any such proposed registration statement, or to
withdraw the same after the filing but prior to the effective date thereof;
and (ii) in the event a registration under Section 3 hereof relates to an
underwritten public offering which does not include any securities being
offered and sold on behalf of selling shareholders, the inclusion of any
Registrable Securities may, at the election of the Company, be conditioned
upon the Holder agreeing that the public offering of such Registrable
Securities shall not commence until 90 days after the effective date of
such registration.
(c) The rights of the Holder pursuant to Section 3 hereof shall
be conditioned upon such Holder's participation in the underwriting with
respect thereto and the inclusion of such Holder's Registrable Securities
in such underwriting (unless otherwise mutually agreed by the Company, the
managing underwriter or, if none, a majority of the underwriters, and such
Holder) to the extent provided herein.
(d) Notwithstanding any other provision of this Warrant, if the
managing underwriter or, if none, a majority of the underwriters,
determines that marketing factors require a limitation of the number of
shares to be underwritten or a complete exclusion of such shares, such
underwriter or underwriters may limit the number of Registrable Securities
that may be included in the registration and underwriting or exclude all of
the Registrable Securities, as appropriate. In the case of an underwritten
registration in which the number of Registrable Securities that may be
included is limited, the Company shall advise the Holder of the limited
number of Registrable Securities that may be included in the registration,
and the number of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities entitled to inclusion in such registration held by
such Holders at the time of filing the registration statement.
(e) The Company shall (together with all Holders proposing to
distribute their securities through an underwriting) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for the underwriting.
(5)
3.2 Expenses.
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All expenses incurred in connection with any registration
pursuant to this Warrant or Warrant Shares, including without limitation, all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for the Company, and expenses of any special audits
incidental to or required by such registration, shall be borne by the Company;
provided however the Company shall not be required to pay:
(a) fees of legal counsel of any Holder, or underwriters' fees,
discounts, commissions or expenses relating to Registrable Securities;
and
(b) for expenses that the Company is prohibited from paying
under Blue Sky laws or by Blue Sky administrators.
3.3 Company Responsibilities.
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In the case of a piggyback registration of Warrant Shares, the
Company shall use its best efforts to keep the Holder advised in writing as to
the initiation, effectiveness and completion of such registration. At its
expense the Company shall:
(a) prepare and file a registration statement (and such
amendments and supplements thereto) with respect to such Registrable
Securities and use its best efforts to cause such registration
statement to become and remain effective for a period of 180 days or
until the Holder or Holders have completed the distribution described
in the registration statement relating thereto, whichever first
occurs;
(b) furnish such number of copies of a Prospectus in conformity
with the requirements of applicable law, and such other documents
incident thereto as a Holder from time to time may reasonably request;
and
(c) use every reasonable effort to register or qualify the
Registrable Securities covered by such registration statement under
the state Blue Sky laws of such jurisdictions as the Company's Board
of Directors may reasonably determine, and do any and all other acts
and things which may be necessary under said Blue Sky laws to enable
the sellers of the Registrable Securities to consummate the public
sale or other disposition of the Registrable Securities owned by them
in such jurisdictions, except that the Company shall not for any
purpose be required to qualify to do business as a foreign corporation
in any jurisdiction wherein the Registrable Securities are so
qualified.
3.4 Indemnification.
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(a) The Company shall indemnify the Holder, with respect to such
registration effected pursuant to Section 3 hereof, against all claims,
losses, damages and liabilities (or actions in respect thereto) arising out
of or based on any untrue statement
(6)
(or alleged untrue statement) of a material fact contained in any
registration statement or related Prospectus, or based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of any rule or regulation promulgated under any
securities law applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, and shall
reimburse the Holder and each person who controls any such underwriter, for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, provided that the Company shall not be liable in any such case to
the extent that any such claim, loss, damage or liability arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company in an instrument duly executed by such Holder
specifically for use therein.
(b) The Holder shall, if Registrable Securities held by or
issuable to the Holder are included in the securities as to which such
registration is being effected, indemnify the Company, each of its
directors and officers who sign such registration statement, each
underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company within the
meaning of the Act, and each other Holder, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement or related Prospectus, or
any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse the Company and such Holders for any
legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability, or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or related Prospectus in
reliance upon and in conformity with written information furnished to the
Company in an instrument duly executed by such Holder specifically for use
therein.
(c) Each party entitled to indemnification under this Section
3.4 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not be unreasonably withheld), and the Indemnified Party may
participate in such defense at such party's expense; and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Section 3.4. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement, which does
not include as an unconditional
(7)
term thereof, the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such claim or
litigation.
3.5 Holder's Obligations. The Holder shall furnish to the Company
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such written information regarding such Holder and the distribution proposed by
such Holder as the Company may reasonably request in writing and as shall be
required in connection with any registration referred to in this Warrant.
3.6 Assignment. The rights granted to the Holder pursuant to this
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Warrant may be assigned to a transferee or assignee of the Warrant or any of the
Registrable Securities, provided that the transferee or assignee is an
affiliated entity of the Holder and the Company is given written notice at the
time of or within 10 days after said transfer, stating the name and address of
said transferee or assignee and identifying the Registrable Securities with
respect to which such registration rights are being assigned.
4. Adjustments to Exercise Price and Warrant Shares. The Exercise Price
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in effect from time to time and the number of Warrant Shares shall be subject to
adjustment in certain cases as set forth in this Section 4.
4.1 Subdivision or Combination. In the event the outstanding Common
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Stock shall be subdivided into a greater number of shares of Common Stock, the
Exercise Price for the Warrant Shares shall, simultaneously with the
effectiveness of such subdivision, be proportionately reduced and the number of
Warrant Shares proportionately increased, and conversely, in case the
outstanding Common Stock shall be combined into a smaller number of shares of
Common Stock, the Exercise Price shall, simultaneously with the effectiveness of
such combination, be proportionately increased and the number of Warrant Shares
proportionately reduced.
4.2 Adjustment for Reorganization, Consolidation, Merger.
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(a) In case of any reorganization of the Company (or any other
corporation the stock or other securities of which are receivable on the
exercise of the Warrant) after the date on which this Warrant is first issued
(the "Issuance Date"), or in case, after such date, the Company (or any such
other corporation) shall consolidate with or merge into another corporation or
convey all or substantially all of its assets to another corporation, then and
in each such case the Warrantholder, upon exercise of the Warrant as provided in
Section 1.2 hereof at any time after the consummation of such reorganization,
consolidation, merger or conveyance, shall be entitled to receive, in lieu of
the stock or other securities and property receivable upon the exercise of the
Warrant prior to such consummation, the stock or other securities or property to
which the Warrantholder would have been entitled upon such consummation if the
Warrantholder had exercised or converted the Warrant immediately prior thereto;
in each such case, the terms of this Warrant, including the exercise provisions
of Section 1.2, shall be applicable to the shares of stock or other securities
or property receivable upon the exercise or conversion of the Warrant after such
consummation.
(8)
(b) The Company shall not effect any consolidation, merger or
conveyance of all or substantially all of its assets unless prior to the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation into or for the
securities of which the previously outstanding stock of the Company shall be
changed in connection with such consolidation or merger, or the corporation
purchasing such assets, as the case may be, shall assume by written instrument,
in form and substance satisfactory to the Warrantholder, executed and delivered
in accordance with Section 5.4 hereof, the obligation to deliver to the
Warrantholder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, the Warrantholder is entitled to purchase.
(c) If a purchase, tender or exchange offer is made to and
accepted by the holders of more than 50% of the outstanding shares of Common
Stock of the Company, the Company shall not effect any consolidation, merger or
sale with the Person having made such offer or with any Affiliate of such
Person, unless prior to consummation of such consolidation, merger or sale the
Warrantholder shall have been given a reasonable opportunity to then elect to
receive either the stock, securities or assets then issuable upon the exercise
or conversion of the Warrant or, if different, the stock, securities or assets,
or the equivalent, issued to previous holders of the Common Stock in accordance
with such offer, computed as though the Warrantholder hereof had been, at the
time of such offer, a holder of the stock, securities or assets then purchasable
upon the exercise or conversion of the Warrant. As used in this paragraph (c),
the term "Person" shall mean and include an individual, a partnership, a
corporation, a trust, a joint venture, an unincorporated organization and a
government or any department or agency thereof, and an "Affiliate" of any Person
shall mean any Person directly or indirectly controlling, controlled by or under
direct or indirect common control with, such other Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
4.3 Miscellaneous Exercise Matters. The Company shall at all times
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reserve and keep available out of its authorized but unissued Common Stock the
full number of Warrant Shares deliverable upon exercise of the Warrant Shares,
as such number may change from time to time. Also, the Company shall, at its
own expense, take all such actions and obtain all such permits and orders as may
be necessary to enable the Company lawfully to issue the Warrant Shares upon the
exercise of the Warrant.
4.4 No Dilution or Impairment. The Company will not, by amendment of
-------------------------
its certificate of incorporation or through reorganization, consolidation,
merger, dissolution, issue or sale of securities, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of the Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate in order to protect the rights of the Warrantholder
against dilution or other impairment. Without limiting the generality of the
foregoing, the Company will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and non-assessable shares upon the exercise or conversion of the Warrant.
(9)
4.5 Notice of Adjustment. When any adjustment is required to be made
--------------------
in either the Exercise Price or the number of shares issuable upon exercise of
the Warrant, the Company shall promptly notify the Warrantholder of such event,
of the calculation by which such adjustment is to be made and of the resulting
Exercise Price or conversion rate, as the case may be.
4.6 Duty to Make Fair Adjustments in Certain Cases. If any event
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occurs as to which in the opinion of the Board of Directors the other provisions
of this Section 4 are not strictly applicable or if strictly applicable would
not fairly protect the purchase and exercise rights of the Warrant in accordance
with the essential intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to protect such
purchase rights as aforesaid.
5. Miscellaneous.
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5.1 Entire Agreement. This Warrant constitutes the full and entire
----------------
understanding and agreements between the parties hereto with respect to the
subjects hereof and thereof.
5.2 Successors and Assigns. The terms and conditions of this Warrant
----------------------
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties hereto, except as expressly provided otherwise herein.
5.3 Governing Law. This Warrant shall be governed by and construed
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under the laws of the State of California.
5.4 Notices, Etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon the seventh day following mailing by registered
air mail, postage prepaid, addressed (a) if to the Warrantholder, at
__________________________________________, or at such other address as it shall
have furnished to the Company in writing, (b) if to the Company, a copy should
be sent to 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 and
addressed to the attention of the corporate secretary, or at such other address
as the Company shall have furnished in writing to the Warrantholder, or (c) if
to any other holder of any Warrant or of Warrant Shares issued upon conversion
of the Warrant, at such address as such holder shall have furnished to the
Company in writing, or, until such holder so furnishes an address to the
Company, then to and at the address of the last holder of such Warrant or
Warrant Shares who so furnished an address to the Company.
5.5 Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any holder of any securities issued or sold or to be
issued or sold hereunder, upon any breach or default of the Company under this
Agreement, shall impair any such right, power or remedy of such holder nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring, nor shall any
waiver of any single breach or
(10)
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any holder of any breach or default under this
Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
5.6 Survival. The representations, warranties, covenants and
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agreements made herein and or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement, except as expressly provided otherwise
herein.
5.7 Waivers and Amendments. With the written consent of the record
----------------------
or beneficial holders of more than 50% of the Warrant Shares (treated as if
converted), the obligations of the Company and the rights of the holders of the
Warrant and the Warrant Shares may be waived (either generally or in a
particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplemental agreement for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Warrant; provided,
however, that no such waiver or supplemental agreement shall reduce the
aforesaid percentage of the Warrant Shares, the holders of which are required to
consent to any waiver or supplemental agreement, without the consent of the
record or beneficial holders of all of the Warrant Shares (treated as if
converted). Upon the effectuation of each such waiver, consent, agreement of
amendment or modification, the Company promptly shall give written notice
thereof to the record holders of the Warrant and the Warrant Shares. This
Warrant or any provision hereof may not be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 5.7.
5.8 Severability. If one or more provisions of this Warrant are held
------------
to be invalid, illegal or unenforceable under applicable law, such provision
shall be modified in such manner as to be valid, legal and enforceable, but so
as to most nearly retain the intent of the parties, and if such modification is
not possible, such provision shall be severed from this Agreement as if such
provision were not included, in either case, and the balance of this Warrant
shall not in any way be affected or impaired thereby and shall be enforceable in
accordance with its terms.
5.9 Registered Holder. The Company may deem and treat the registered
-----------------
Holder(s) hereof as the absolute owner(s) of this Warrant (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise or conversion hereof, of any distribution to the Holder(s)
hereof, and for all other purposes, and the Company shall not be affected by any
notice to the contrary. Other than as set forth herein, this Warrant does not
entitle any Holder hereof to any rights of a stockholder of the Company.
(11)
5.10 Titles and Subtitles. The titles of the sections and subsections
--------------------
of this Warrant are for convenience and are not to be considered in construing
this Warrant.
IN WITNESS WHEREOF, Company has caused this Warrant to be signed by
its duly authorized officer and issued as of the date set forth below.
Dated: __________________
ANCHOR PACIFIC UNDERWRITERS, INC.
By:________________________________
Its:_______________________________
(12)
EXERCISE NOTICE
(To be executed only upon exercise of Warrant)
The undersigned registered owner of a Warrant of ANCHOR PACIFIC
UNDERWRITERS, INC. (the "Company"), originally issued to
_________________________ _____________________________ irrevocably exercises
such Warrant for the purchase of shares of Common Stock of the Company,
purchasable with the Warrant, and hereby sets the place and date for the closing
of such purchase as follows, all on the terms and conditions specified in the
Warrant.
Place of Closing ______________________
Date of Closing _______________________
The undersigned requests that a certificate for such shares be
registered in the name of
________________________________________________________, whose address is
__________________________________________________. If said number of shares is
less than all of the shares of Common Stock purchasable under the Warrant, the
undersigned requests that a new Warrant representing the remaining balance of
such shares be registered in the name of
_____________________________________________________________, whose address is
____________________________________________________.
Dated:______________________
_________________________________________
Signature of Registered Owner
_________________________________________
Street Address
_________________________________________
City State Zip
(13)
FORM OF ASSIGNMENT
FOR VALUED RECEIVED, the undersigned registered owner of this Warrant
issued by ANCHOR PACIFIC UNDERWRITERS, INC. hereby sells, assigns and transfers
unto the Assignee named below all of the rights of the undersigned under the
within Warrant, with respect to the number of Shares of Common Stock set forth
below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint
____________________________________ _______________________________________
attorney to make such transfer on the books of ________________________,
maintained for such purpose, with full power of substitution in the premises.
Dated:_____________________
_________________________________________
Signature of Registered Owner
_________________________________________
Witness
(14)
