Exhibit 4.10
WARRANT AGREEMENT dated as of _________, 2003 between New York Health Care,
Inc., a New York corporation (the "Company"), whose principal place of business
is 0000 XxxXxxxxx Xxxxxx, Xxxxxxxx, XX 00000 and
___________________________________, his successors, designees and assigns (the
"Holder").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company proposes to issue to the Holder a warrant to purchase
up to an aggregate of _________ shares of the Company's common stock, $.01 par
value, (the "Common Stock") which shall be known as the "Series ___" Warrant.
NOW, THEREFORE, in consideration of the premises, the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. GRANT. The Company hereby agrees to issue to the Holder the warrant
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described in Section 1.1 below.
1.1 SERIES __ WARRANT. The Series __ Warrant grants to the Holder the
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right to purchase, at any time from ____________, 2003 until 5:00 P.M., New York
time, on _______, 2006, up to an aggregate of _______shares of Common Stock (the
"Shares") at an initial exercise price (subject to adjustment as provided in
Section 8 hereof) of $_______ per share subject to the terms and conditions of
this Agreement. Except as set forth herein, the shares issuable upon exercise
of the Series__ Warrant are in all respects identical to the shares of Common
Stock held by all of the Company's other shareholders.
2. WARRANT CERTIFICATE. The warrant certificate (the "Warrant
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Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. EXERCISE OF WARRANT.
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3.1 METHOD OF EXERCISE. The Series__ Warrant is initially exercisable at
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the initial exercise price (subject to adjustment as provided in Section 8
hereof) per Share payable by certified or official bank check in New York
Clearing House funds or by surrender to the Company of a number of Shares
issuable pursuant to the Series__ Warrant which, when valued at the exercise
price, equal the amount of the exercise price for the Shares to be issued upon
exercise of the Series__ Warrant, subject to adjustment as provided in Section 8
hereof. Upon surrender of a Warrant Certificate with the annexed Form of
Election to Purchase duly executed, together with payment of the Exercise Price
(as hereinafter defined) for the Common Stock purchased at the Company's
principal offices (presently located at 0000 XxxXxxxxx Xxxxxx, Xxxxxxxx, XX
11223) the registered holder of a Warrant Certificate ("Holder" or "Holders")
shall be entitled to receive a certificate or certificates for the shares of
Common Stock so purchased. The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holders thereof, in whole or
part (but not as to fractional shares of the Common Stock). In the case of the
purchase of less than all Common Stock purchasable under any Warrant
Certificate, the Company shall cancel said Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate of
like tenor for the balance of the Common Stock purchasable thereunder.
3.2 DEFINITION OF MARKET PRICE. As used herein, the phrase "Market Price"
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at any date shall be deemed to be (i) when referring to the Common Stock, the
last reported price, or, in case no such reported sale takes place on such day,
the average of the last reported prices for the last three (3) trading days, in
either case as officially reported by the principal securities exchange on which
the Common Stock is listed or admitted to trading or by the Nasdaq Stock Market
("NSM") or, (ii) if the Common Stock is not listed or admitted to trading on
any national securities exchange or quoted by NSM, the average closing price as
furnished by the National Association of Securities Dealers, Inc. ("NASD")
through Nasdaq or similar organization if Nasdaq is no longer reporting such
information, or (iii) if the Common Stock is not quoted on Nasdaq, or such
similar organization as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to it.
4. ISSUANCE OF CERTIFICATE. Upon the exercise of the Series__ Warrant,
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the issuance of certificates for shares of Common Stock shall be made forthwith
(and in any event within five (5) business days thereafter) without charge to
the Holder thereof including, without limitation, any tax which may be payable
in respect of the issuance thereof, and such certificates shall (subject to the
provisions of Sections 5 and 7 hereof) be issued in the name of, or in such
names as may be directed by, the Holder thereof; 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 issuance and delivery of any such certificates in a
name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
The Warrant Certificate and the certificate representing the Shares shall
be executed on behalf of the Company by the manual or facsimile signature of the
then present Chairman or Vice Chairman of the Board of Directors or President or
Vice President of the Company under its corporate seal reproduced thereon,
attested to by the manual or facsimile signature of the then present Secretary
or Assistant Secretary of the Company. The Warrant Certificate shall be dated
the date of execution by the Company upon initial issuance, division, exchange,
substitution or transfer.
5. RESTRICTION ON TRANSFER OF WARRANTS. The Holder of a Warrant
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Certificate, by its acceptance thereof, covenants and agrees that the Series__
Warrant is being acquired as an investment and not with a view to the
distribution thereof; that the Series__ Warrant may not be sold, transferred,
assigned, hypothecated or otherwise disposed of, in whole or in part, for a
period of one (1) year from the date hereof.
6. EXERCISE PRICE.
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6.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise provided in
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Section 8 hereof, the initial exercise price of each Series__ Warrant to
purchase Common Stock shall be equal to the initial exercise price set forth in
Sections 1.1 above. The adjusted exercise price
shall be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the provisions of
Section 8 hereof.
6.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean the
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applicable initial exercise price or with respect to the Series__ Warrant to
purchase Common Stock at the adjusted exercise price, depending upon the
context.
7. REGISTRATION RIGHTS.
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7.1 CURRENT REGISTRATION UNDER THE SECURITIES ACT OF 1933. The Company
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has registered certain shares of common stock under the Securities Act of 1933,
as amended (the "Act") (the "Registration Statement").
7.2 PIGGYBACK REGISTRATION.
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(a) If, at any time commencing after the date of this Agreement, the
Company proposes to register any of its securities under the Act, either for its
own account or the account of any other security holder or holders of the
Company possessing registration rights ("Other Stockholders"), it shall give
written notice, at least thirty (30) days prior to the filing of each such
registration statement, to the Holder and to all other Holders of warrants with
registration rights of the opportunity to register the Common Stock underlying
such warrants (collectively, "Registrable Securities") of its intention to do
so. If the Holder or other Holders of Registrable Securities notify the Company
within twenty-one (21) days after the receipt of any such notice of its or their
desire to include any such securities in such proposed registration statement,
the Company shall afford the Holder and such other Holders of such securities
the opportunity to have any such securities registered under such registration
statement.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holder and such other Holders as part of the written notice given
pursuant to Section 7.2(a) hereof. The right of the Holder or any such other
Holder to registration pursuant to this Section 7.2 shall be conditioned upon
their participation in such underwriting and the inclusion of their Registrable
Securities in the underwriting to the extent hereinafter provided. The Holder
and all other Holders proposing to distribute their securities through such
underwriting shall (together with the Company and any officer, directors or
Other Stockholders distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with
the underwriter selected by the Company. Notwithstanding any other provision of
this Section 7.2, if the underwriter advises the Company in writing that
marketing factors require a limitation or elimination of the number of shares of
Common Stock or other securities to be underwritten, the underwriter may limit
the number of shares of Common Stock or other securities to be included in the
registration and underwriting. The Company shall so advise the Holder and all
other Holders of Registrable Securities requesting registration, and the number
of shares of Common Stock or other securities that are entitled to be included
in the registration and underwriting shall be allocated among the Holder and
other Holders requesting registration, in each case, in proportion, as nearly as
practicable, to the respective amounts of securities which they had requested to
be included in such registration at the time of filing the registration
statement.
(c) Notwithstanding the provisions of this Section 7.2, the Company
shall have the right at any time after it shall have given written notice
pursuant to Section 7.2(a) hereof (irrespective of whether a written request for
inclusion of any such 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.
7.3 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. In connection
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with any registration under Section 7.2, the Company covenants and agrees as
follows:
(a) The Company shall use its best efforts to have any registration
statement declared effective at the earliest possible time, and shall furnish
each Holder desiring to sell Registrable Securities such number of prospectuses
as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Section 7.2 hereof including, without limitation, the Company's legal and
accounting fees, printing expenses, blue sky fees and expenses.
(c) The Company will take all necessary action which may be required
in qualifying or registering the Registrable Securities included in a
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably are requested
by the Holder(s); provided that the Company shall not be obligated to execute or
file any general consent to service of process or to qualify as a foreign
corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), against all loss, claim, damage, expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from such registration statement.
(e) The Holder(s) of the Registrable Securities to be sold pursuant
to a registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, for specific inclusion in such registration statement.
(f) For purposes of this Agreement, the term "Majority" in reference
to the Holders of Registrable Securities, shall mean in excess of fifty percent
(50%) of the Registrable Securities that have not been resold to the public
pursuant to a registration statement filed with the SEC under the Act.
(g) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise their Series__ Warrant prior to the initial
filing of any registration statement or the effectiveness thereof.
7.4 RESTRICTIVE LEGENDS. In the event that the Company fails to maintain
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the effectiveness of the Registration Statement, such that the exercise, in part
or in whole, of the Series__ Warrants are not, at the time of such exercise,
registered under the Act, any certificates
representing the Shares underlying the Series__ Warrants and any of the other
securities issuable upon exercise of the Series__ Warrants shall bear the
following restrictive legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended ("Act"), and
may not be offered or sold except pursuant to (i) an effective
registration statement under the Act, (ii) to the extent applicable,
Rule 144 under the Act (or any similar rule under such Act relating to
the disposition of securities), or (iii) an opinion of counsel, if
such opinion shall be reasonably satisfactory to counsel to the
issuer, that an exemption from registration under such Act is
available.
8. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
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8.1 SUBDIVISION AND COMBINATION. In case the Company shall at any time
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subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
8.2 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
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Exercise Price pursuant to the provisions of this Section 8, the number of
Common Stock issuable upon the exercise at the adjusted exercise price of each
Series__ Warrant shall be adjusted to the nearest full amount by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Common Stock issuable upon exercise of the Series__
Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
8.3 DEFINITION OF COMMON STOCK. For the purpose of this Agreement, the
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term "Common Stock" shall mean (i) the class of stock designated as Common Stock
in the Certificate of Incorporation of the Company as amended as of the date
hereof, or (ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
The Company covenants that so long as any of the Series__ Warrant are
outstanding, the Company shall not without the prior written consent of the
Holder issue any securities whatsoever other than Common Stock. In the event
that the Company shall, upon the consent of the Holder, after the date hereof
issue securities with greater or superior voting rights than the shares of
Common Stock outstanding as of the date hereof, the Holder, at its option, may
receive upon exercise of any Series__ Warrant either shares of Common Stock or a
like number of such securities with greater or superior voting rights.
8.4 MERGER OR CONSOLIDATION. In case of any consolidation of the Company
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with, or merger of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute and deliver to the Holder a
supplemental warrant agreement providing that the holder of each Series__
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Series__ Warrant) to receive, upon exercise of
such warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger, by a holder of the number
of shares of Common Stock of the Company for which such Series__ Warrant might
have been exercised immediately prior to such consolidation, merger, sale or
transfer. Such supplemental warrant agreement shall provide for adjustments
which shall be identical to the adjustments provided in Section 8. The above
provision of this subsection shall similarly apply to successive consolidations
or mergers.
8.5 NO ADJUSTMENT OF EXERCISE PRICE IN CERTAIN CASES. No adjustment of
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the Exercise Price shall be made:
(a) upon the issuance or sale of the Series__ Warrant or the shares
of Common Stock issuable upon the exercise of the Series__ Warrant; or
(b) If the amount of said adjustment shall be less than two (2) cents
per Warrant Security, provided, however, that in such case any adjustment that
would otherwise be required then to be made shall be carried forward and shall
be made at the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at least two
(2) cents per Warrant Security.
9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
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Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Common Stock in such denominations as shall
be designed by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Series__ Warrant,
if mutilated, the Company will make and deliver a new Warrant Certificate of
like tenor, in lieu thereof.
10. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
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required to issue fractional shares of Common Stock or the Series__ Warrant upon
the exercise of the Series__ Warrant. Warrants may only be exercised in such
multiples as are required to permit the issuance by the Company of one or more
whole shares of Common Stock. If one or more Series__ Warrant shall be
presented for exercise in full at the same time by the same Holder, the number
of whole shares of Common Stock which shall be issuable upon such exercise
thereof shall be computed on the basis of the aggregate number of shares of
Common Stock purchasable on exercise of the Series__ Warrant so presented. If
any fraction of a share of Common Stock would, except for the provisions
provided herein, be issuable on the exercise of any Series__ Warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to
such fraction multiplied by the then current market value of a share of Common
Stock, determined as follows:
(1) If the Common Stock is listed, or admitted to unlisted trading
privileges on the New York Stock Exchange ("NYSE") or the American Stock
Exchange ("AMEX"), or is traded on the NSM, the current market value of a share
of Common Stock shall be the closing sale price of the Common Stock at the end
of the regular trading session on the last business day prior to the date of
exercise of the Series__ Warrant on whichever of such exchanges or NSM had the
highest average daily trading volume for the Common Stock on such day; or
(2) If the Common Stock is not listed or admitted to unlisted trading
privileges, on either the NYSE or the AMEX and is not traded on NSM, but is
quoted or reported on Nasdaq, the current market value of a share of Common
Stock shall be the closing price (or the last sale price, if then reported by
Nasdaq) of the Common Stock at the end of the regular
trading session on the last business day prior to the date of exercise of the
Series__ Warrant as quoted or reported on Nasdaq; or
(3) If the Common Stock is not listed, or admitted to unlisted
trading privileges, on either of the NYSE or the AMEX, and is not traded on NSM
or quoted or reported on Nasdaq, but is listed or admitted to unlisted trading
privileges on the BSE or another national securities exchange (other than the
NYSE or the AMEX), the current market value of a share of Common Stock shall be
the closing price of the Common Stock at the end of the regular trading session
on the last business day prior to the date of exercise of the Series__ Warrant
on whichever of such exchanges has the highest average daily trading volume for
the Common Stock on such day; or
(4) If the Common Stock is not listed or admitted to unlisted trading
privileges on any national securities exchange, or listed for trading on NSM or
quoted or reported on Nasdaq, but is traded in the over-the-counter market, the
current market value of a share of Common Stock shall be the average of the
last reported bid and asked prices of the Common Stock reported by the National
Quotation Bureau, Inc. on the last business day prior to the date of exercise of
the Series__ Warrant; or
(5) If the Common Stock as the case may be, is not listed, admitted
to unlisted trading privileges on any national securities exchange, or listed
for trading on NSM or quoted or reported on Nasdaq, and bid and asked prices of
the Common Stock are not reported by the National Quotation Bureau, Inc., the
current market value of a share of Common Stock shall be an amount, not less
than the book value thereof as of the end of the most recently completed fiscal
quarter of the Company ending prior to the date of exercise, determined in
accordance with generally acceptable accounting principles, consistently
applied.
11. RESERVATION AND LISTING OF SECURITIES. The Company shall at all times
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reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Series__ Warrant such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Series__ Warrant and payment of the Exercise Price
therefore, all shares of Common Stock and other Securities issuable upon such
exercise
shall be duly and validly issued, fully paid, non-assessable and not subject to
the preemptive rights of any stockholder. As long as the Series__ Warrant shall
be outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon the exercise of the Series__ Warrant to be listed
(subject to official notice of issuance) on all securities exchanges on which
the Common Stock issued to the public in connection herewith may then be listed
and quoted on NSM.
12. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement shall
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be construed as conferring upon the Holders the right to vote or to consent or
to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Series__ Warrants and their exercise, any of the following
events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable other than in cash, or a cash dividend or distribution
payable other than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefore; or (c) a dissolution, liquidation or
winding up of the Company (other than in connection with a consolidation or
merger) or a sale of all or substantially all of its property, assets and
business as an entirety shall be proposed; then, in any one or more of said
events, the Company shall give written notice of such event at least fifteen
(15) days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled to such
dividend, distribution, convertible or exchangeable securities or subscription
rights, or entitled to vote on such proposed dissolution, liquidation, winding
up or sale. Such notice shall specify such record date or the date of closing
the transfer book, as the case may be. Failure to give such notice or any
defect therein shall not affect the validity of any action taken in connection
with the
declaration or payment of any such dividend, or the issuance of any convertible
or exchangeable securities, or subscription rights, options or warrants, or any
proposed dissolution, liquidation, winding up or sale.
13. NOTICE.
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All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made and sent when delivered,
or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Series__ Warrant, to the
address of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3
hereof or to such other address as the Company may designate by notice to the
Holders.
14. SUPPLEMENTS AND AMENDMENTS. The Company and the Holder may from time
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to time supplement or amend this Agreement without the approval of any Holders
of Warrant Certificates in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with any
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Holder may deem necessary
or desirable and which the Company and the Holder deem shall not adversely
affect the interests of the Holders of Warrant Certificates.
15. SUCCESSORS. All the covenants and provisions of this Agreement shall
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be binding upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
16. TERMINATION. This Agreement shall terminate at the close of business
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on ________, 2006. Notwithstanding the foregoing, the indemnification
provisions of Section 7 shall survive such termination until the close of
business on ________, 2012.
17. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and each
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Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company, the Holder and any other registered Holders hereby agree that
any action, proceeding or claim against it arising out of, or relating in any
way to, this Agreement shall be brought and enforced in the courts of the State
of New York or of the United States of America for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company, the Holder and any other registered Holders hereby
irrevocably waive any objection to such exclusive jurisdiction or inconvenient
forum. Any such process or summons to be served upon any of the Company, the
Holder and the Holders (at the option of the party bringing such action,
proceeding or claim) may be served by transmitting a copy thereof, by registered
or certified mail, return receipt requested, postage prepaid, addressed to it at
the address set forth in Section 14 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim. The Company, the Holder and any other registered
Holders agree that the prevailing party(ies) in any such action or proceeding
shall be entitled to recover from the other party(ies) all of its'/their
reasonable legal costs and expenses relating to such action or proceeding and
incurred in connection with the preparation therefore.
18. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the entire
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understanding between the parties hereto with respect to the subject matter
hereof and may not be modified or amended except by a writing duly signed by the
party against whom enforcement of the modification or amendment is sought.
19. SEVERABILITY. If any provision of this Agreement shall be held to be
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invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
20. CAPTIONS. The caption headings of the Sections of this Agreement are
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for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
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construed to give to any person or corporation other than the Company and the
Holder and any other registered Holder(s) of the Warrant Certificates or Common
Stock any legal or equitable right, remedy or claim under this Agreement; and
this Agreement shall be for the sole benefit of the Company and the Holder and
any other registered Holders of Warrant Certificates or Common Stock.
22. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
NEW YORK HEALTH CARE, INC.
By: /s/__________________________________
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
/s/__________________________________
EXHIBIT A
[FORM OF SERIES__ WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, ________, 2006
No. ____ Series__ Warrant to Purchase
________ Shares of Common Stock
SERIES__ WARRANT CERTIFICATE
This Warrant Certificate certifies that ___________, or registered assigns,
is the registered holder of _____________ (_______) Warrants to purchase
initially, at any time from ___________, 2003 until 5:00 p.m. New York time on
________, 2006 ("Expiration Date"), up to _____________ (________) fully-paid
and non-assessable shares of common stock, $.01 par value ("Common Stock") of
New York Health Care, Inc., a New York corporation (the "Company"), at the
initial exercise price, subject to adjustment in certain events (the "Exercise
Price"), equal to $______ per share upon surrender of this Warrant Certificate
and payment of the Exercise Price at an office or agency of the Company, but
subject to the conditions set forth herein and in the Warrant Agreement dated as
of ________, 2003 between the Company and H. Xxxx Xxxxxx (the "Warrant
Agreement"). Payment of the Exercise Price shall be made by certified or
official bank check in New York Clearing House funds payable to the order of the
Company or by surrender of this Warrant Certificate.
No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price and the type and number of the Company's securities issuable
thereupon may, subject to certain conditions, be adjusted. In such event, the
Company will, at the request of the holder, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and type of
securities issuable upon the exercise of the Warrants; provided, however, that
the failure of the Company to issue such new Warrant Certificates shall not in
any way change, alter, or otherwise impair, the rights of the holder as set
forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate of
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and 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.
All terms used in this Warrant Certificate which are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated as of ________, 2003
Attest: NEW YORK HEALTH CARE, INC.
/s/_____________________________ By: /s/______________________________
Name: Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxx
Title: Secretary Title: Chief Executive Officer
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ____________________ hereby sells, assigns and unto
(Please print name and address of transferee
this Warrant Certificate, together with all right, title and interest therein,
and does hereby reasonably constitute and appoint ___________________________,
as Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Date:______________ Signature:____________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
(Insert Social Security or Other Identifying
Number of Assignee)
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase:
_______________Shares
_______________Series__ Warrants
and herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of New York Health
Care, Inc., in the amount of $__________________, or a total of ______________
shares of the Securities issuable upon exercise of the Warrant, all in
accordance with the terms of the Warrant Agreement dated ________, 2003 between
the undersigned and New York Health Care, Inc. The undersigned request that a
certificate for such Securities be registered in the name of whose address is
and that such Certificate be delivered to whose address is.
Date:______________ Signature:____________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
(Insert Social Security or Other Identifying
Number of Assignee)
