Contract
Exhibit 4.4
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.
HEALTH BENEFITS DIRECT CORPORATION
WARRANT
| Warrant No. PA-[___] | Date of Original Issuance: March 30, 2007 |
Health Benefits Direct Corporation, a Delaware corporation (the “Company"), hereby certifies
that, for value received, or its registered assigns (the “Holder"), is entitled
to purchase from the Company up to a total of [ ] shares of common stock, $0.001 par value per
share (the “Common Stock"), of the Company (each such share, a “Warrant Share” and all such shares,
the “Warrant Shares") at an exercise price equal to $ per share [Greater of $2.70 or the
closing bid price of the Company’s common stock immediately prior to closing] (as adjusted from
time to time as provided in Section 9, the “Exercise Price"), at any time and from time to time
from and after the six-month anniversary of the date hereof and through and including March ___,
2010 (the “Expiration Date"), and subject to the following terms and conditions:
1. Definitions. In addition to the terms defined elsewhere in this Warrant,
capitalized terms that are not otherwise defined herein shall have the meanings given to such terms
in the Securities Purchase Agreement dated as of March 30, 2007 by and among the Company and the
investors thereto (the “Securities Purchase Agreement").
2. Registration of Warrant. The Company shall register this Warrant, upon records to
be maintained by the Company for that purpose (the “Warrant Register"), in the name of the record
Holder hereof from time to time. The Company may deem and treat the registered Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. The Company shall register the transfer of any portion
of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the Company at its address specified
herein. Upon any such registration or transfer, a new Warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new Warrant, a
“New Warrant”), evidencing the
portion of this Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations of a holder of a Warrant.
4. Exercise and Duration of Warrants. This Warrant shall be exercisable by the
registered Holder at any time and from time to time on or after the six-month anniversary of the
date hereof to and including the Expiration Date. At 5:30 p.m., New York City time on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become void
and of no value.
5. Delivery of Warrant Shares; Disposition of Warrants and Warrant Shares.
(a) To effect exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant is being exercised.
Upon delivery of the attached Exercise Notice to the Company (with the attached Warrant Shares
Exercise Log) at its address for notice set forth herein and upon payment of the Exercise Price
multiplied by the number of Warrant Shares that the Holder intends to purchase hereunder, the
Company shall as promptly as practicable thereafter issue and deliver to the Holder, a certificate
for the Warrant Shares issuable upon such exercise. The Company shall, upon request of the Holder
and subsequent to the date on which a registration statement covering the resale of the Warrant
Shares has been declared effective by the Securities and Exchange Commission, use commercially
reasonable efforts to deliver Warrant Shares hereunder electronically through the Depository Trust
Corporation or another established clearing corporation performing similar functions, if available,
provided, that, the Company may, but will not be required to change its transfer agent if its
current transfer agent cannot deliver Warrant Shares electronically through the Depository Trust
Corporation. A “Date of Exercise” means the date on which the Holder shall have delivered to the
Company: (i) the Exercise Notice (with the Warrant Exercise Log attached to it), appropriately
completed and duly signed and (ii) if such Holder is not utilizing the cashless exercise provisions
set forth in this Warrant, payment of the Exercise Price for the number of Warrant Shares so
indicated by the Holder to be purchased.
(b) The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to
enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any
judgment against any Person or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation of law by the Holder
or any other Person, and irrespective of any other circumstance which might otherwise limit such
obligation of the Company to the Holder in connection with
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the issuance of Warrant Shares. Nothing herein shall limit a Holder’s right to pursue any
other remedies available to it hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as
required pursuant to the terms hereof.
(c) The Warrants and Warrant Shares (collectively, the “Securities”) may only be disposed of
in compliance with state and federal securities laws. In connection with any transfer of the
Securities other than pursuant to an effective registration statement, to the Company, to an
affiliate of a Holder or in connection with a pledge as contemplated below, the Company may require
the transferor thereof to provide to the Company an opinion of counsel selected by the transferor,
the form and substance of which opinion shall be reasonably satisfactory to the Company, to the
effect that such transfer does not require registration of such transferred Securities under the
Securities Act of 1933, as amended (the “Securities Act”).
(d) The Warrants shall contain the legend set forth above and the stock certificates
evidencing the Warrant Shares will contain the following legend, until such time as they are not
required under the conditions described below:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
(e) The Company acknowledges and agrees that a Holder may from time to time pledge, and/or
grant a security interest in some or all of the Securities in accordance with all applicable
federal and state securities laws pursuant to a bona fide margin agreement in connection with a
bona fide margin account and, if required under the terms of such agreement or account, such Holder
may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or
transfer would not be subject to approval or consent of the Company and no legal opinion of legal
counsel to the pledgee, secured party or pledgor shall be required in connection with the pledge,
but such legal opinion may be required in connection with a subsequent transfer by the pledgee or
secured party following default by the Investor or otherwise. No notice shall be required of such
pledge. At the appropriate Holder’s expense, the Company will execute and deliver such reasonable
documentation as a pledgee or secured party of Securities may reasonably request in connection with
a pledge or transfer of the Securities including the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of
the Securities Act to appropriately amend the list of Selling Stockholders thereunder.
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(f) Certificates evidencing the Warrant Shares shall not contain any legend at such time as a
Holder has provided evidence to the Company (including any customary broker’s or selling
stockholder’s letters) that: (i) there has been a sale of such Warrant Shares pursuant to an
effective registration statement, (ii) there has been a sale of such Warrant Shares pursuant to
Rule 144 (assuming the transferor is not an affiliate of the Company), or (iii) such Warrant shares
are then eligible for sale under Rule 144(k). Following such time as restrictive legends are not
required to be placed on certificates representing Warrant Shares pursuant to the preceding
sentence, the Company will, promptly following the delivery by a Holder to the Company or the
Company’s transfer agent of a certificate representing Warrant Shares containing a restrictive
legend and the foregoing evidence, deliver or cause to be delivered to such Holder a certificate
representing such Warrant shares that is free from all restrictive and other legends. The Company
may not make any notation on its records or give instructions to any transfer agent of the Company
that enlarge the restrictions on transfer set forth in this Section, except as it may reasonably
determine are necessary or appropriate to comply or to ensure compliance with those applicable laws
that are enacted or modified after the date of initial issuance of this Warrant.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue
or transfer tax, transfer agent fee or other similar incidental tax or expense in respect of the
issuance of such certificates, all of which such taxes and expenses shall be paid by the Company;
provided, however, that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any certificates for Warrant Shares or
Warrants in a name other than that of the Holder. The Holder shall be responsible for all other
tax liability that may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity (which shall not include a surety bond), if requested.
Applicants for a New Warrant under such circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant, then the
Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the
Company’s obligation to issue the New Warrant.
8. Reservation of Warrant Shares. The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which are then issuable
and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other
contingent purchase rights of persons other than the Holder (taking into account the adjustments
and restrictions of Section 9). The Company covenants that all Warrant Shares so issuable
and deliverable shall, upon issuance and the payment of the applicable Exercise Price in
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accordance with the terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set forth in this
Section 9.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of
Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be
multiplied by a fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to
clause (i) of this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination. If any event requiring an adjustment under this
paragraph occurs during the period that an Exercise Price is calculated hereunder, then the
calculation of such Exercise Price shall be adjusted appropriately to reflect such event.
(b) Fundamental Transactions. If, at any time while this Warrant is outstanding, (1)
the Company effects any merger or consolidation of the Company with or into another Person, (2) the
Company effects any sale of all or substantially all of its assets in one or a series of related
transactions, (3) any tender offer or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Stock are permitted to tender or exchange their
shares for other securities, cash or property, or (4) the Company effects any reclassification of
the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property (in any such case, a
“Fundamental Transaction"), then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the same amount and kind of securities, cash or property as it would have
been entitled to receive upon the occurrence of such Fundamental Transaction if it had been,
immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then
issuable upon exercise in full of this Warrant (the “Alternate Consideration"). For purposes of
any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply
to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect
of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. If holders of Common Stock are
given any choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it
receives upon any exercise of this Warrant following such Fundamental Transaction. The terms of
any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring
any such successor or surviving entity to comply with the provisions of this paragraph (b) and
insuring that the Warrant
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(or any such replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction.
(c) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise
Price pursuant to paragraph (a) of this Section, the number of Warrant Shares that may be purchased
upon exercise of this Warrant shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares
shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.
(d) Calculations. All calculations under this Section 9 shall be made to the
nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of
Common Stock outstanding at any given time shall not include shares owned or held by or for the
account of the Company, and the disposition of any such shares shall be considered an issue or sale
of Common Stock.
(e) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the Company at its expense will promptly compute such adjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a
statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other
securities issuable upon exercise of this Warrant (as applicable), describing the transactions
giving rise to such adjustments and showing in detail the facts upon which such adjustment is
based. Upon written request, the Company will promptly deliver a copy of each such certificate to
the Holder and to the Company’s Transfer Agent.
(f) Notice of Corporate Events. If the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common Stock, including
without limitation any granting of rights or warrants to subscribe for or purchase any capital
stock of the Company or any Subsidiary, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes
the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the
Company shall deliver to the Holder a notice describing the material terms and conditions of such
transaction, at least 10 calendar days prior to the applicable record or effective date on which a
Person would need to hold Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in order to insure that the
Holder is given the practical opportunity to exercise this Warrant prior to such time so as to
participate in or vote with respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of the corporate action
required to be described in such notice.
10. Payment of Exercise Price. The Holder may pay the Exercise Price in one of the
following manners:
(a)
Cash Exercise. The Holder may deliver immediately available
funds; or
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(b) Cashless Exercise. The Holder may notify the Company in an Exercise Notice of its
election to utilize cashless exercise, in which event the Company shall issue to the Holder the
number of Warrant Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to the Holder.
Y = the number of Warrant Shares with respect to which this Warrant
is being exercised.
is being exercised.
A = the average of the closing prices for the five Trading Days
immediately prior to (but not including) the Exercise Date.
immediately prior to (but not including) the Exercise Date.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and
acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to
have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to
have commenced, on the date this Warrant was originally issued.
11. No Rights as Stockholder. Until the exercise of this Warrant, the Holder shall
not have or exercise any rights by virtue hereof as a stockholder of the Company.
12. Piggyback Registration Rights. If at any time during the period beginning on the
date hereof and ending on the earlier to occur of the date that all of the Warrant Shares have been
sold and reissued free of a restrictive legend or the date that all of the Warrant Shares may be
sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act, as
determined by the Company, the Company shall determine to register under the Securities Act any of
its securities (other than on Form S-8 or Form S-4 or their then equivalents and other than shares
to be issued solely (i) in connection with any acquisition of any entity or business (ii) upon the
exercise of stock options, or (iii) pursuant to employee benefit plans), it shall send to each
holder of Warrant Shares, including each holder who has the right to acquire Warrant Shares,
written notice of such determination and, if within ten (10) days after receipt of such notice,
such holder shall so request in writing, the Company shall use its commercially reasonable efforts
to include in such registration statement all or any part of the Warrant Shares such holder
requests to be registered therein; provided that, if, in connection with any offering involving an
underwriting of Common Stock to be issued by the Company, the managing underwriter shall prohibit
the inclusion of shares of Common Stock by selling holders in such registration statement or shall
impose a limitation on the number of shares of such Common Stock which may be included in any such
registration statement because, in its judgment, such limitation is necessary to effect an orderly
public distribution, and such limitation is imposed pro rata with respect to all securities whose
holders have a contractual, incidental (“piggyback”) right to include such securities in the
registration statement and as to which inclusion has been requested pursuant to such right and
there is first excluded from such registration statement all shares of Common Stock sought to be
included therein by (i) any holder thereof not having any
7
such contractual, incidental registration rights, and (ii) any holder thereof having
contractual, incidental registration rights subordinate and junior to the rights of the holders of
Warrant Shares, the Company shall then be obligated to include in such registration statement only
such limited portion (which may be none) of the Warrant Shares with respect to which such holder
has requested inclusion hereunder. In addition, the registration rights and related rights
provided by this Section 12 shall not be applicable to any registration statement contemplated by
the Registration Rights Agreement (as defined in the Securities Purchase Agreement) covering
Registrable Securities (as defined in the Registration Rights Agreement).
13. No Fractional Shares. No fractional shares of Warrant Shares will be issued in
connection with any exercise of this Warrant. In lieu of any fractional shares which would,
otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied
by the Market Price of one Warrant Share on the date of exercise. “Market Price” as of a
particular date (the “Valuation Date”) shall mean the following: (a) if the Common Stock are then
listed on a U.S. national stock exchange, the closing sale price of one share of Common Stock on
such exchange on the last trading day prior to the Valuation Date; (b) if the Common Stock are then
quoted on the National Association of Securities Dealers, Inc. OTC Bulletin Board (the “Bulletin
Board”) or such similar quotation system or association (such as Pink Sheets LLC), the closing sale
price of one share of Common Stock on the Bulletin Board or such other quotation system or
association on the last trading day prior to the Valuation Date or, if no such closing sale price
is available, the average of the high bid and the low asked price quoted thereon on the last
trading day prior to the Valuation Date; or (c) if the Common Stock are not then listed on a
national stock exchange or quoted on the Bulletin Board or such other quotation system or
association, the fair market value of one share of Common Stock as of the Valuation Date, as
determined in good faith by the Board of Directors of the Company.
14. Notices. Any and all notices or other communications or deliveries hereunder
(including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in this Section prior to 5:30 p.m. (New
York City time) on a Trading Day, (ii) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number specified in this
Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any
Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required
to be given. The addresses for such communications shall be: (i) if to the Company, to Health
Benefits Direct Corporation, Health Benefits Direct Corporation, 000 X. Xxxxxx-Xxxxxxx Xxxx,
Xxxxxx, XX 00000, Facsimile: (000) 000-0000, Attention: Chief Financial Officer, or such other
address as the Company shall so notify the Holder, or (ii) if to the Holder, to the address or
facsimile number appearing on the Warrant Register or such other address or facsimile number as the
Holder may provide to the Company in accordance with this Section.
15. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon
10 days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers
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substantially all of its corporate trust or shareholders services business shall be a
successor warrant agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
16. Representations of Holder. By acceptance hereof, the Holder hereby represents and
warrants to the Company as follows:
(a) The Holder represents and warrants that it is acquiring the Warrant and the Warrant Shares
solely for its account for investment and not with a view to or for sale or distribution of said
Warrant or Warrant Shares or any part thereof. The Holder also represents that the entire legal
and beneficial interests of the Warrant and Warrant Shares the Holder is acquiring is being
acquired for its account only. The Holder is an “accredited investor” as defined in Rule 501(a)
under the Securities Act.
(b) The Holder understands that the Warrant and the Warrant Shares have not been registered
under the Securities Act on the basis that no distribution or public offering of the stock of the
Company is to be effected. The Holder realizes that the basis for the exemption may not be present
if, notwithstanding its representations, the Holder has a present intention of acquiring the
securities for a fixed or determinable period in the future, selling (in connection with a
distribution or otherwise), granting any participation in, or otherwise distributing the
securities. The Holder has no such present intention.
(c) The Holder recognizes that the Warrant and the Warrant Shares must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption from such
registration is available. The Holder recognizes that the Company has no obligation to register
the Warrant or the Warrant Shares of the Company (except as provided for herein), or to comply
with any exemption from such registration.
(d) The Holder is aware that neither the Warrant nor the Warrant Shares may be sold pursuant
to Rule 144 adopted under the Securities Act unless certain conditions are met, including, among
other things, the existence of a public market for the shares, the availability of certain current
public information about the Company, the resale following the required holding period under Rule
144 and the number of shares being sold during any three month period not exceeding specified
limitations. Xxxxxx is aware that the conditions for resale set forth in Rule 144 have not been
satisfied.
17. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of the parties hereto and their
respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant
shall be construed to give to any Person other than the Company and the Holder any legal or
equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in
writing signed by the Company and the Holder and their successors and assigns.
(b) All questions concerning the construction, validity, enforcement and interpretation of
this Warrant shall be governed by and construed and enforced in
accordance
9
with the internal laws of the State of Delaware, without regard to the principles of conflicts
of law xxxxxxx. Each party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of this Warrant and the transactions herein
contemplated (“Proceedings”)
(whether brought against a party hereto or its respective Affiliates, employees or agents) may be
commenced non-exclusively in the state and federal courts sitting in the City of Wilmington, State
of Delaware (the “Delaware Courts”). Each party hereto hereby irrevocably submits to the
non-exclusive jurisdiction of the Delaware Courts for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally
subject to the jurisdiction of any Delaware Court, or that such Proceeding has been commenced in an
improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law.
Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any legal proceeding arising out of or relating to this Warrant
or the transactions contemplated hereby. If either party shall commence a Proceeding to enforce
any provisions of this Warrant, then the prevailing party in such Proceeding shall be reimbursed by
the other party for its attorney’s fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(c) The headings herein are for convenience only, do not constitute a part of this Warrant and
shall not be deemed to limit or affect any of the provisions hereof.
(d) In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision
in this Warrant.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.
| HEALTH BENEFITS DIRECT CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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EXERCISE NOTICE
TO HEALTH BENEFITS DIRECT CORPORATION:
The
undersigned hereby irrevocably elects to purchase shares of Common Stock
pursuant to the above captioned Warrant, and, if such Holder is not utilizing the cashless exercise
provisions set forth in the Warrant, encloses herewith $ in cash, certified or official
bank check or checks or other immediately available funds, which sum represents the aggregate
Exercise Price (as defined in the Warrant) for the number of shares of Common Stock to which this
Exercise Notice relates, together with any applicable taxes payable by the undersigned pursuant to
the Warrant.
By its delivery of this Exercise Notice, the undersigned represents and warrants to the
Company that (i) the aforesaid shares of Common Stock are being acquired for the account of the
undersigned for investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of distributing or reselling
such shares; (ii) the undersigned is aware of the Company’s business affairs and financial
condition and has acquired sufficient information about the Company to reach an informed and
knowledgeable decision regarding its investment in the Company; (iii) the undersigned is
experienced in making investments of this type and has such knowledge and background in financial
and business matters that the undersigned is capable of evaluating the merits and risks of this
investment and protecting the undersigned’s own interests; (iv) the undersigned is an “accredited
investor” as defined in Regulation D under the Securities Act of 1933, as amended (the “Securities
Act”); and (v) the undersigned understands that the shares of Common Stock issuable upon exercise
of this Warrant have not been registered under the Securities, by reason of a specific exemption
from the registration provisions of the Securities Act, which exemption depends upon, among other
things, the bona fide nature of the investment intent as expressed herein, and, because such
securities have not been registered under the Securities Act, they must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such registration is
available; (v) the undersigned is aware that the aforesaid shares of Common Stock may not be sold
pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until
the undersigned has held the shares for the number of years prescribed by Rule 144; and (vi) the
undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common
Stock unless and until there is then in effect a registration statement under the Securities Act
covering such proposed disposition and such disposition is made in accordance with said
registration statement, or the undersigned has provided the Company with an opinion of counsel
satisfactory to the Company, stating that such registration is not required.
The undersigned requests that certificates for the shares of Common Stock issuable upon this
exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
TAX IDENTIFICATION NUMBER
(Please print name and address)
Warrant Shares Exercise Log
| Number of | |||||||||||
| Number of Warrant | Warrant Shares | ||||||||||
| Shares Available to be | Number of Warrant Shares | Remaining to | |||||||||
| Date | Exercised | Exercised | be Exercised | ||||||||
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the right represented by the above-captioned Warrant to purchase
shares of Common Stock to which such Warrant relates and appoints
attorney to transfer said right on the books of the Company with full power of substitution in the
premises.
Dated: ,
| (Signature must conform in all respects to name of | ||||
| xxxxxx as specified on the face of the Warrant) | ||||
| Address of Transferee | ||||
In the presence of:
