AHPC HOLDINGS, INC. CLASS A WARRANT TO PURCHASE COMMON STOCK September 21, 2005
Exhibit
99.5
THIS
WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES ACT OF ANY STATE AND MAY
NOT
BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER
SUCH ACTS COVERING THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT
OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACTS.
CLASS
A WARRANT TO PURCHASE COMMON STOCK
September
21, 2005
WARRANT
NO. ___
THIS
CERTIFIES THAT, for value received, __________________ with a principal
residence or business at _____________________________________ (the “Holder”) is
entitled to purchase from AHPC Holdings, Inc., a Maryland corporation (the
“Company”), at any time or from time to time after the date hereof and ending at
5:00 p.m. Chicago, Illinois time on the fifth (5th) calendar anniversary of
the
date hereof, __________ shares (the “Shares”) of common stock of the Company
(the “Common Stock”). Each Share subject to this Warrant may be purchased for a
price per share equal to $3.50 (the “Warrant Price”).
1. Method
of Exercise; Payment; Issuance of New Warrant; Mandatory
Conversion.
(a) Method
of Exercise; Payment.
The
purchase right represented by this Warrant may be exercised by the Holder,
in
whole or in part and from time to time any time after the date hereof, by (i)
the surrender of this Warrant (with a notice of exercise in the form attached
hereto as Exhibit A, duly executed) at the principal office of the Company
and
(ii) the payment to the Company, by check or wire transfer of funds to an
account specified in writing by the Company, of an amount equal to the Warrant
Price times the number of Shares being exercised. (b) Issuance of New Warrant.
In the event that all Shares represented by this Warrant are not exercised,
the
Company shall within five (5) business days issue to Holder a new Warrant for
the unexercised Shares, such Warrant as shall be identical in all respects
to
this Warrant except for the number of Shares it represents.
(b) Issuance
of New Warrant.
In the
event that all Shares represented by this Warrant are not exercised, the Company
shall within five (5) business days issue to Holder a new Warrant for the
unexercised Shares, such Warrant as shall be identical in all respects to this
Warrant except for the number of Shares it represents.
2. Stock
Fully Paid; Reservation of Shares.
All
Shares that may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be fully paid and nonassessable, and free from
all
preemptive rights, taxes, liens and charges with respect to the issue thereof;
provided, however, that the Company shall not be required to pay any transfer
taxes with respect to the issue of shares in any name other than that of the
registered holder hereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times have authorized,
and reserved for the purpose of the issue upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant. The Company
shall at all times take all such action and obtain all such permits or orders
as
may be necessary to enable the Company lawfully to issue such Common Stock
as
duly and validly issued, fully paid and nonassessable shares upon exercise
in
full of this Warrant.
3. Fractional
Shares.
No
fractional shares of Common Stock will be issued in connection with any exercise
hereunder, but in lieu of such fractional shares the Company shall make a cash
payment therefor upon the basis of the current market price of such Shares
then
in effect as determined in good faith by the Company’s Board of
Directors.
4. Adjustment.
This
Warrant shall be subject to adjustment from time to time upon the occurrence
of
certain events, as follows:
(a) Adjustment
for Stock Splits and Combinations.
If the
Company shall at any time or from time to time after the date hereof effect
a
subdivision of the outstanding Common Stock, the Warrant Price then in effect
immediately before that subdivision shall be proportionately decreased. If
the
Company shall at any time or from time to time after the date hereof combine
the
outstanding Common Stock, the Warrant Price then in effect immediately before
the combination shall be proportionately increased. Any adjustment under this
paragraph shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b) Adjustment
for Certain Dividends and Distributions.
In the
event the Company at any time or from time to time after the date hereof shall
make or issue a dividend or other distribution payable in additional shares
of
Common Stock, then and in each such event the Warrant Price shall be decreased
as of the time of such issuance, by multiplying the Warrant Price by a
fraction:
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(x)
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the
numerator of which shall be the total number of shares of Common
Stock
issued and outstanding immediately prior to the time of such issuance;
and
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(y)
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the
denominator of which shall be the total number of shares of Common
Stock
issued and outstanding immediately prior to the time of such issuance
plus
the number of shares of Common Stock issuable in payment of such
dividend
or distribution.
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(c) Adjustments
for Other Dividends and Distributions.
In the
event the Company at any time or from time to time after the date hereof shall
make or issue a dividend or other distribution payable in securities of the
Company other than Common Stock, then and in each such event, provision shall
be
made so that the Holder shall receive upon exercise hereof in addition to the
number of shares of Common Stock receivable thereupon, the amount of securities
of the Company that it would have received had this Warrant been exercised
on
the date of such event and had the Holder thereafter, during the period from
the
date of such event to and including the conversion date, retained such
securities receivable by it as aforesaid during such period, given application
to all adjustments called for during such period, under this Section
4.
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(d) Adjustment
of Number of Shares.
Upon
each adjustment of the Warrant Price pursuant to this Section 4, the number
of
shares of Common Stock purchasable upon exercise of this Warrant shall be
adjusted to the number of shares of Common Stock, calculated to the nearest
one
hundredth of a share, obtained by multiplying the number of shares of Common
Stock purchasable immediately prior to such adjustment upon the exercise of
the
Warrant by the Warrant Price in effect prior to such adjustment and dividing
the
product so obtained by the new Warrant Price.
(e) Adjustment
for Reclassification, Exchange and Substitution.
If the
Common Stock issuable upon the exercise of this Warrant are changed into the
same or different number of shares of any class or classes of stock, whether
by
recapitalization, reclassification or otherwise (other than a subdivision or
combination provided for in Subsection (a) above, a dividend or distribution
provided for in Subsection (b) or (c) above, or a reorganization, merger,
consolidation or sale of assets, provided for in Subsection (f) below), then
and
in any such event the Holder shall have the right thereafter to exercise this
Warrant into the kind and amount of stock and other securities receivable upon
such recapitalization, reclassification or other change, by holders of the
number of shares of Common Stock for which this Warrant might have been
exercised immediately prior to such recapitalization, reclassification or
change.
(f) Reorganization,
Mergers, Consolidations or Sales of Assets.
If at
any time or from time to time there is a capital reorganization of the Common
Stock (other than a subdivision or combination provided for in Subsection (a)
above, a dividend or distribution provided for in Subsection (b) or (c) above,
or a reclassification or exchange of shares provided for in Subsection (e)
above) or a merger or consolidation of the Company with or into another
corporation, or the sale of all or substantially all of the Company’s properties
and assets to any other person, then, as a part of such reorganization, merger,
consolidation or sale, provision shall be made so that the Holder shall
thereafter be entitled to receive upon exercise of this Warrant, upon payment
of
the Warrant Price, the number of shares of stock or other securities or property
of the Company, or of the successor corporation resulting from such merger
or
consolidation or sale, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such capital reorganization, merger,
consolidation, or sale.
(g) No
Impairment.
The
Company will not, by amendment of its Articles of Incorporation or through
any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Company but will at all times in good faith assist in the
carrying out of all the provisions of this Section and in the taking of all
such
action as may be necessary or appropriate in order to protect the conversion
rights of the Holder against dilution or other impairment.
(h) Notice
of Adjustments.
Whenever this Warrant shall be adjusted pursuant to this Section 4, the Company
shall make a certificate signed by an officer of the Company setting forth,
in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the type
or
the number of Shares purchasable after giving effect to such adjustment, and
shall cause copies of such certificate to be mailed (by first class mail,
postage prepaid) to the Holder.
(i) Notice
of Record Date.
In the
event:
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(1)
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that
the Company declares a dividend (or any other distribution) on its
Common
Stock;
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(2)
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that
the Company subdivides or combines its outstanding shares of Common
Stock;
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(3)
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of
any reclassification of the Common Stock (other than a subdivision
or
combination of its outstanding shares of Common Stock or a stock
dividend
or stock distribution thereon), or of any consolidation, merger or
share
exchange of the Company into or with another corporation, or of the
sale
of all or substantially all of the assets of the Company;
or
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(4)
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of
the involuntary or voluntary dissolution, liquidation or winding
up of the
Company;
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then
the
Company shall notify the Holder at least 20 days prior to the date specified
in
(A) below or 20 days before the date specified in (B) below, in writing
stating:
(A) the
record date of such dividend, distribution, subdivision or combination, or,
if a
record is not to be taken, the date as to which the holders of Common Stock
of
record to be entitled to such dividend, distribution, subdivision or combination
are to be determined; or
(B) the
date
on which such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up is expected to become effective, and
the
date as of which it is expected that holders of Common Stock of record shall
be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
dissolution or winding up.
5. Compliance
with Securities Act; Disposition of Warrant or Common Stock.
(a) Compliance
with Securities Act.
The
Holder, by acceptance hereof, agrees that this Warrant and the Shares to be
issued upon exercise hereof are being acquired for investment and that such
Holder will not offer, sell or otherwise dispose of this Warrant or any Common
Stock to be issued upon exercise hereof except under circumstances which will
not result in a violation of the Securities Act of 1933, as amended (the “Act”).
All Shares issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped or imprinted with a legend in substantially the following
form:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE
SECURITIES ACTS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE
IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS COVERING THIS SECURITY
OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACTS.”
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(b) Disposition
of Warrant or Shares.
With
respect to any offer, sale or other disposition of this Warrant or any Common
Stock acquired pursuant to the exercise of this Warrant prior to registration
of
such shares, the Holder agrees to give written notice to the Company prior
thereto, describing briefly the manner thereof, together with a written opinion
of the Holder’s counsel, reasonably acceptable to the Company, to the effect
that such offer, sale or other disposition may be effected without registration
or qualification (under the Act as then in effect or any federal or state law
then in effect) of this Warrant or such Common Stock and indicating whether
or
not under the Act certificates for this Warrant or such Common Stock to be
sold
or otherwise disposed of require any restrictive legend as to applicable
restrictions on transferability in order to insure compliance with the Act.
Promptly upon receiving such written notice and reasonably satisfactory opinion,
if so requested, the Company, as promptly as practicable, shall notify the
Holder that the Holder may sell or otherwise dispose of this Warrant or such
Common Stock, all in accordance with the terms of the notice delivered to the
Company. If a determination has been made pursuant to this subparagraph (b)
that
the opinion of counsel for the Holder is not reasonably satisfactory to the
Company, the Company shall so notify the Holder promptly after such
determination has been made. Notwithstanding the foregoing, this Warrant or
such
Common Stock may be offered, sold or otherwise disposed of in accordance with
Rule 144 under the Act, provided that the Company may request a reasonable
assurance that the provisions of Rule 144 have been satisfied. Each certificate
representing this Warrant or the Common Stock thus transferred (except a
transfer pursuant to Rule 144) shall bear a legend as to the applicable
restrictions on transferability in order to insure compliance with the Act,
unless in the aforesaid opinion of counsel for the Holder, such legend is not
required in order to insure compliance with the Act. The Company may issue
stop
transfer instructions to its transfer agent in connection with such
restrictions.
6. Rights
as Shareholders.
No
Holder, as such, shall be entitled to vote or receive dividends or be deemed
the
holder of Common Stock or any other securities of the Company which may at
any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a shareholder of the Company or any right to vote for the election
of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to receive notice of meetings, or to receive dividends or subscription rights
or otherwise until this Warrant shall have been exercised and the Shares
purchasable upon the exercise hereof shall have become deliverable, as provided
herein.
7. Representations
and Warranties.
The
Company represents and warrants to the Holder as follows:
(a) This
Warrant has been duly authorized and executed by the Company and is a valid
and
binding obligation of the Company enforceable in accordance with its
terms;
(b) The
Shares have been duly authorized and reserved for issuance by the Company and,
when issued in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable;
(c) The
rights, preferences, privileges and restrictions granted to or imposed upon
the
Shares and the holders thereof are as set forth in the Company’s Restated
Articles of Incorporation; and
(d) The
execution and delivery of this Warrant are not, and the issuance of the Shares
upon exercise of this Warrant in accordance with the terms hereof will not
be,
inconsistent with the Company’s Articles of Incorporation or by-laws, do not and
will not contravene any law, governmental rule or regulation, judgment or order
applicable to the Company, and, except for consents that have already been
obtained by the Company, do not and will not conflict with or contravene any
provision of, or constitute a default under, any indenture, mortgage, contract
or other instrument of which the Company is a party or by which it is bound
or
require the consent or approval of, the giving of notice to, the registration
with or the taking of any action in respect of or by, any Federal, state or
local government authority or agency or other person.
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(e) Registration
Rights.
The
Company has agreed that if at any time within one year of the issuance of this
Warrant the Company shall file a registration statement (not including an S-8
registration) with the SEC, the Company agrees to register for resale all the
Shares and use commercially reasonable efforts to have the SEC declare such
registration statement effective and to effect any related qualification or
compliance with respect to the Shares as soon as possible. In the event that
the
Company does not file a registration statement with the SEC in the one year
period following the issuance of this Warrant, the Holders of the Class A
Warrants, Class B Warrants and the Placement Agent Warrants (collectively,
the
“Warrants”, whether exercised or unexercised, shall have the right to a single
collective demand for registration (the “Demand Request”). Such Demand Request
shall be presented to the Company in writing and must consist of the assent
of
51% or more of the total Common Stock issuable upon exercise of all the
Warrants. If the Demand Request is made by the Holders, the Company shall,
no
later than sixty (60) days following receipt of the written Demand Request,
file
a registration statement with the SEC relating to the resale of the Shares
and
use commercially reasonable efforts to have the SEC declare such registration
statement effective and to effect any related qualification or compliance with
respect to the Shares as soon as possible, but in no event later than 180 days
from the filing of the registration statement. The Company shall also comply
with all rules relating to the listing of additional shares on NASDAQ. The
full
registration rights are set forth in the Registration Rights Agreement attached
as an exhibit to the Offering Document.
8. Modification
and Waiver.
This
Warrant and any provision hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of the same is sought.
9. Notices.
Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including via facsimile machine)
and
mailed, faxed or delivered as follows: if to the Company, at its address
specified opposite its signature below; and if to the Holder, to the address
specified in the first paragraph of this Warrant; or in each case at such other
address as shall be designated by the Holder or the Company in a written notice
to the other. All such notices and communications shall, when mailed, faxed
or
sent by overnight courier, be effective when deposited in the mails or overnight
courier, as the case may be, or sent by facsimile machine.
10. Descriptive
Headings.
The
descriptive headings of the several sections of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant.
11. Governing
Law.
THIS
WARRANT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF ILLINOIS.
12. Binding
Effect on Successors.
This
Warrant shall be binding upon any corporation or other business entity
succeeding the Company by merger, consolidation or acquisition of all or
substantially all of the Company’s assets, and all of the obligations of the
Company relating to the Common Stock issuable upon the exercise of this Warrant
shall survive the exercise, and termination of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
13. Lost
Warrants or Stock Certificates.
The
Company covenants to the Holder that upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation
of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company will make and deliver a new
Warrant or stock certificate, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant or stock certificate.
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed and
delivered by its duly authorized officer on the day and year first above
written.
By:________________________________________
Name: Xxxx
Xxxxxx
Title: Chief
Executive Officer
Address:
00
Xxxxxxxxxxxxxx Xxxx.
Xxxx
X
Xxxxxxxx
Xxxxxxx, XX 00000
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EXHIBIT
A
NOTICE
OF EXERCISE
(1) The
undersigned hereby elects to purchase __________ shares of Common Stock of
AHPC
Holdings, Inc. pursuant to the terms of the attached Warrant, and tenders
herewith payment of the Warrant Price for such shares in full.
(2) In
exercising this Warrant, the undersigned hereby confirms and acknowledges that
the shares of Common Stock are being acquired solely for the account of the
undersigned and not as a nominee for any other party, and for investment, and
that the undersigned will not offer, sell or otherwise dispose of any such
Common Stock except under circumstances that will not result in a violation
of
the Securities Act of 1933, as amended, or any state securities
laws.
(3) Please
issue a certificate or certificates representing said shares of Common Stock
in
the name of the undersigned or in such other name as is specified
below:
________________________________________
(Name)
HOLDER
By:
__________________________________________
Its:
__________________________________________
(4) Please
issue a new Warrant for the unexercised portion of the attached Warrant in
the
name of the undersigned or in such other name as is specified
below:
______________________________________
_________________________________________
(Name)
(Signature)
____________________________________________ _______________________________________________
(Address)
(Date)
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