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EXHIBIT 4.3
The Form of Warrant Agreement filed herewith applies to the following
individuals or groups and warrants.
INDIVIDUAL OR GROUP RECEIVING WARRANTS NUMBER OF WARRANTS RECEIVED
-------------------------------------- ---------------------------
GSSF Master Fund 7,895
Gryphon Master Fund 7,895
Capital Ventures 11,842
Alpha Capital 7,895
Midsummer Investments 15,789
Truk Opportunity 5,937
Truk International 379
TCMP Partners 6,316
Select Contarian 7,500
Ball & Co. 1,500
Xxxxxx Xxxxxxx 7,106
Xxxxx Xxxxxxxx 7,105
Xxxxx Xxxxxxxx 7,105
------
Total Warrants 94,264
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THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER
SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE SOLD OR
TRANSFERRED OR OFFERED FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO
SUCH SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL (WHICH OPINION
IS REASONABLY SATISFACTORY TO THE ISSUER OF THESE SECURITIES), SUCH REGISTRATION
UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
Date: Warrant to Purchase
December 28, ***________***
2004 Shares
DATATRAK International, Inc.
(Incorporated under the laws of the State of Ohio)
WARRANT FOR THE PURCHASE OF SHARES OF
THE NO PAR VALUE COMMON SHARES
Warrant Price: $ 14.40 per share ,subject to adjustment as provided below.
THIS IS TO CERTIFY that, for value received, _______________ ("Purchaser")
and its assigns (collectively, the "Holder"), is entitled to purchase, subject
to the terms and conditions hereinafter set forth, up to ***________*** shares
of the no par value common shares ("Common Shares") of DATATRAK International,
Inc., an Ohio corporation (the "Company"), and to receive certificate(s) for the
Common Shares so purchased.
1. EXERCISE PERIOD AND VESTING. The exercise period is the period
beginning on the date of this Warrant (the "Issuance Date") and ending at 5:00
p.m., Cleveland, Ohio time, on December 23, 2007 (the "Exercise Period"). This
Warrant is vested in full as of the Issuance Date and is immediately exercisable
by Holder. This Warrant will terminate automatically and immediately upon the
expiration of the Exercise Period.
2. EXERCISE OF WARRANT.
(a) This Warrant may be exercised, in whole or in part, at any time
and from time to time during the Exercise Period. Such exercise shall be
accomplished by the presentation and surrender to the Company of this Warrant
with an executed subscription in substantially the form attached hereto as
Exhibit A (the "Subscription") and either (i) tender to the Company of the
purchase price equal to the per share warrant price set forth above (the
"Warrant Price") multiplied by the number of Common Shares that this Warrant is
being exercised for, in cash, by
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wire transfer or by certified check or bank cashier's check, payable to the
order of the Company, or (ii) or, after December 28, 2005, if a registration
statement is not then-effective under the Securities Act covering the Common
Shares issuable under this Warrant, in a "cashless" or "net-issue" exercise in
which the Subscription specifies the number of Common Shares to be delivered to
the Holder ("Deliverable Shares") and the number of Common Shares with respect
to which this Warrant is being surrendered in payment of the aggregate purchase
price for the Deliverable Shares ("Surrendered Shares"); provided that the
Warrant Price multiplied by the number of Deliverable Shares shall not exceed
the value of the Surrendered Shares. For the purposes of this provision, each
Surrendered Share will be attributed a value equal to the average of the
"current market price" (as defined in Section 4(c) below) for the 20 trading
days immediately preceding the date of exercise less the Warrant Price.
(b) Upon a valid exercise of this Warrant pursuant to the terms of
subsection (a) above , the Company will deliver to the Holder, as promptly as
possible, a certificate or certificates representing the shares of Common Shares
so purchased, registered in the name of the Holder or its transferee (as
permitted under Section 3 below). With respect to any exercise of this Warrant,
the Holder will for all purposes be deemed to have become the holder of record
of the number of shares of Common Shares purchased hereunder on the date this
Warrant is validly exercised pursuant to the terms of subsection (a) above (the
"Exercise Date"), irrespective of the date of delivery of the certificate
evidencing such shares, except that, if the date of such receipt is a date on
which the stock transfer books of the Company are closed, such person will be
deemed to have become the holder of such shares at the close of business on the
next succeeding date on which the stock transfer books are open. Fractional
shares of Common Shares will not be issued upon the exercise of this Warrant. In
lieu of any fractional shares that would have been issued but for the
immediately preceding sentence, the Holder will be entitled to receive cash
equal to the current market price of such fraction of a share of Common Shares
on the trading day immediately preceding the Exercise Date. In the event this
Warrant is exercised in part, the Company shall issue a new Warrant to the
Holder covering the aggregate number of shares of Common Shares as to which this
Warrant remains exercisable for.
3. TRANSFERABILITY AND EXCHANGE.
(a) This Warrant, and the Common Shares issuable upon the exercise
hereof, may not be sold, transferred, pledged or hypothecated unless the Company
shall have been provided with an opinion of counsel, or other evidence
reasonably satisfactory to it, that such transfer is not in violation of the
Securities Act, and any applicable state securities laws. Subject to the
satisfaction of the aforesaid condition, this Warrant and the underlying shares
of Common Shares shall be transferable from time to time by the Holder upon
written notice to the Company (However, Purchaser agrees not to transfer the
warrant to any competitor of the Company). If this Warrant is transferred, in
whole or in part, the Company shall, upon surrender of this Warrant to the
Company, deliver to each transferee a Warrant evidencing the rights of such
transferee to purchase the number of shares of Common Shares that such
transferee is entitled to purchase pursuant to such transfer. The Company may
place a legend similar to the legend at the top of this Warrant on any
replacement Warrant and on each certificate representing shares issuable upon
exercise of this Warrant or any replacement Warrants. Only a registered Holder
may enforce the provisions of this Warrant against the Company. A transferee of
the original registered Holder becomes a registered Holder only upon delivery to
the Company of the original
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Warrant and an original Assignment, substantially in the form set forth in
Exhibit B attached hereto.
(b) This Warrant is exchangeable upon its surrender by the Holder to
the Company for new Warrants of like tenor and date representing in the
aggregate the right to purchase the number of shares purchasable hereunder, each
of such new Warrants to represent the right to purchase such number of shares as
may be designated by the Holder at the time of such surrender.
4. ADJUSTMENTS TO WARRANT PRICE AND NUMBER OF SHARES SUBJECT TO WARRANT.
The Warrant Price and the number of shares of Common Shares purchasable upon the
exercise of this Warrant are subject to adjustment from time to time upon the
occurrence of any of the events specified in this Section 4. For the purpose of
this Section 4, "Common Shares" means shares now or hereafter authorized of any
class of common shares of the Company and any other stock of the Company,
however designated, that has the right to participate in any distribution of the
assets or earnings of the Company without limit as to per share amount
(excluding, and subject to any prior rights of, any class or series of preferred
stock).
(a) In case the Company shall (i) pay a dividend or make a
distribution in shares of Common Shares or other securities, (ii) subdivide its
outstanding shares of Common Shares into a greater number of shares, (iii)
combine its outstanding shares of Common Shares into a smaller number of shares,
or (iv) issue by reclassification of its shares of Common Shares other
securities of the Company, then the Warrant Price in effect at the time of the
record date for such dividend or on the effective date of such subdivision,
combination or reclassification, and/or the number and kind of securities
issuable on such date, shall be proportionately adjusted so that the Holder of
any Warrant thereafter exercised shall be entitled to receive the aggregate
number and kind of shares of Common Shares (or such other securities other than
Common Shares) of the Company, at the same aggregate Warrant Price, that, if
such Warrant had been exercised immediately prior to such date, the Holder would
have owned upon such exercise and been entitled to receive by virtue of such
dividend, distribution, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) In case the Company shall fix a record date for the making of a
distribution to all holders of Common Shares (including any such distribution
made in connection with a consolidation or merger in which the Company is the
surviving corporation) of cash, evidences of indebtedness or assets, or
subscription rights or warrants, the Warrant Price to be in effect after such
record date shall be determined by multiplying the Warrant Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the current market price per share of Common Shares on such record
date, less the amount of cash so to be distributed (or the fair market value (as
determined in good faith by, and reflected in a formal resolution of, the Board
of Directors of the Company) of the portion of the assets or evidences of
indebtedness so to be distributed, or of such subscription rights or warrants,
applicable to one share of Common Shares, and the denominator of which shall be
such current market price per share of Common Shares. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the Warrant Price shall again
4
be adjusted to be the Warrant Price which would then be in effect if such record
date had not been fixed.
(c) For the purpose of any computation under any subsection of this
Section 4 or under any subsection of Section 2, the "current market price" per
share of Common Shares on any date shall be the per share price of the Common
Shares on the trading day immediately prior to the event requiring an adjustment
hereunder and shall be: (i) if the principal trading market for such securities
is a national or regional securities exchange, the closing price on such
exchange on such day; or (ii) if sales prices for shares of Common Shares are
reported by the Nasdaq National Market or Nasdaq Small Cap Market (or a similar
system then in use), the last reported sales price so reported on such day; or
(iii) if neither (i) nor (ii) above are applicable, and if bid and ask prices
for shares of Common Shares are reported in the over-the-counter market by
Nasdaq (or, if not so reported, by the National Quotation Bureau), the average
of the high bid and low ask prices so reported on such day. Notwithstanding the
foregoing, if there is no reported closing price, last reported sales price, or
bid and ask prices, as the case may be, for the day in question, then the
current market price shall be determined as of the latest date prior to such day
for which such closing price, last reported sales price, or bid and ask prices,
as the case may be, are available, unless such securities have not been traded
on an exchange or in the over-the-counter market for 30 or more days immediately
prior to the day in question, in which case the current market price shall be
determined in good faith by, and reflected in a formal resolution of, the Board
of Directors of the Company.
(d) Notwithstanding any provision herein to the contrary, no
adjustment in the Warrant Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Warrant Price; provided,
however, that any adjustments which by reason of this subsection (d) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 4 shall be made to
the nearest cent or the nearest one-hundredth of a share, as the case may be.
(e) In the event that at any time, as a result of an adjustment made
pursuant to subsection (a) above, the Holder of any Warrant thereafter exercised
shall become entitled to receive any shares of capital stock of the Company
other than shares of Common Shares, thereafter the number of such other shares
so receivable upon exercise of any Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares of Common Shares contained in this Section
4, and the other provisions of this Warrant shall apply on like terms to any
such other shares.
(f) If the Company merges or consolidates into or with another
corporation or entity, or if another corporation or entity merges into or with
the Company (excluding such a merger in which the Company is the surviving or
continuing corporation and which does not result in any reclassification,
conversion, exchange, or cancellation of the outstanding shares of Common
Shares), or if all or substantially all of the assets or business of the Company
are sold or transferred to another corporation, entity, or person, then, as a
condition to such consolidation, merger, or sale (a "Transaction"), lawful and
adequate provision shall be made whereby the Holder shall have the right from
and after the Transaction to receive, upon exercise of this Warrant and upon the
terms and conditions specified herein and in lieu of the shares of the
5
Common Shares that would have been issuable if this Warrant had been exercised
immediately before the Transaction, such shares of stock, securities, or assets
as the Holder would have owned immediately after the Transaction if the Holder
had exercised this Warrant immediately before the effective date of the
Transaction.
5. REGISTRATION RIGHTS. The Company hereby grants to Holder, if Holder is
not Purchaser, with respect to the shares of Common Shares underlying this
Warrant, registration rights identical to those that are granted to Purchasers
pursuant to that certain Share Purchase Agreement (the "Share Purchase
Agreement") dated as of December __, 2004 by and among the Company, Purchaser
and the other parties thereto.
6. RESERVATION OF SHARES. The Company agrees at all times to reserve and
hold available out of its authorized but unissued shares of Common Shares the
number of shares of Common Shares issuable upon the full exercise of this
Warrant. The Company further covenants and agrees that all shares of Common
Shares that may be delivered upon the exercise of this Warrant will, upon
delivery, be fully paid and nonassessable and free from all taxes, liens and
charges with respect to the purchase thereof hereunder.
7. NOTICES TO HOLDER. Upon any adjustment of the Warrant Price (or number
of shares of Common Shares purchasable upon the exercise of this Warrant)
pursuant to Section 4, the Company shall promptly thereafter cause to be given
to the Holder written notice of such adjustment. Such notice shall include the
Warrant Price (and/or the number of shares of Common Shares purchasable upon the
exercise of this Warrant) after such adjustment, and shall set forth in
reasonable detail the Company's method of calculation and the facts upon which
such calculations were based. Where appropriate, such notice shall be given in
advance and included as a part of any notice required to be given under the
other provisions of this Section 7.
In the event of (a) any fixing by the Company of a record date with
respect to the holders of any class of securities of the Company for the purpose
of determining which of such holders are entitled to dividends or other
distributions, or any rights to subscribe for, purchase or otherwise acquire any
shares of capital stock of any class or any other securities or property, or to
receive any other right, (b) any capital reorganization of the Company, or
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets or business of the Company
to, or consolidation or merger of the Company with or into, any other entity or
person, or (c) any voluntary or involuntary dissolution or winding up of the
Company, then and in each such event the Company will give the Holder a written
notice specifying, as the case may be (i) the record date for the purpose of
such dividend, distribution, or right, and stating the amount and character of
such dividend, distribution, or right; or (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, conveyance, dissolution, liquidation, or winding up is to take place and
the time, if any is to be fixed, as of which the holders of record of Common
Shares (or such capital stock or securities receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Shares (or such
other stock securities) for securities or other property deliverable upon such
event. Any such notice shall be given at least 10 days prior to the earliest
date therein specified.
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8. NO RIGHTS AS A SHAREHOLDER. This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company, nor to any
other rights whatsoever except the rights herein set forth.
9. ADDITIONAL COVENANTS OF THE COMPANY. For so long as the Common Shares
are listed for trading on any regional or national securities exchange or Nasdaq
(National Market or Small Cap Market), the Company shall, upon issuance of any
shares for which this Warrant is exercisable, at its expense, promptly obtain
and maintain the listing of such shares. The Company shall also comply with the
reporting requirements of Sections 13 and 15(d) of the Exchange Act for so long
as and to the extent that such requirements apply to the Company.
The Company shall 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 of this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
at all times reserve and keep available, solely for issuance and delivery upon
exercise of this Warrant, shares of Common Shares issuable from time to time
upon exercise of this Warrant, (b) will not increase the par value of any shares
of capital stock receivable upon exercise of this Warrant above the amount
payable therefor upon such exercise, and (c) will take all such actions as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable stock.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Company, the Holder and their respective successors and
permitted assigns.
11. NOTICES. The Company agrees to maintain a ledger of the ownership of
this Warrant (the "Ledger"). Any notice hereunder shall be given by registered
or certified mail if to the Company, at its principal executive office and, if
to the Holder, to its address shown in the Ledger of the Company; provided,
however, that the Holder may at any time on three (3) days written notice to the
Company designate or substitute another address where notice is to be given.
Notice shall be deemed given and received after a certified or registered
letter, properly addressed with postage prepaid, is deposited in the U.S. mail.
12. SEVERABILITY. Every provision of this Warrant is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the remainder of this
Warrant.
13. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Ohio without giving effect to the
principles of choice of laws thereof.
14. ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Warrant, the prevailing party shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedy.
15. ENTIRE AGREEMENT. This Warrant (including the Exhibits attached
hereto) and, with respect to Registration Rights, the Share Purchase Agreement,
constitute the entire understanding between the Company and the Holder with
respect to the subject matter hereof,
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and supersedes all prior negotiations, discussions, agreements and
understandings relating to such subject matter.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer as of the date first set forth above.
DATATRAK INTERNATIONAL, INC.
By: ___________________________
Title:_________________________
8
Exhibit A
SUBSCRIPTION FORM
(To be Executed by the Holder to Exercise the Rights To Purchase Common Shares
Evidenced by the Within Warrant)
The undersigned hereby irrevocably subscribes for _______ shares (the
"Shares") of the Common Shares of DATATRAK International, Inc. (the "Company")
pursuant to and in accordance with the terms and conditions of the attached
Warrant (the "Warrant"), and hereby exercises the Warrant:
(A) ______by making payment herewith of $_______ for the Shares
($_________ per Share) by tendering cash, wire transferring or delivering a
certified check or bank cashier's check, payable to the order of the Company; or
(b) ______in a "cashless" or "net-issue exercise" for, and to purchase the
Shares (the "Deliverable Shares"), and herewith makes payment therefor with
__________ Surrendered Shares (as defined in the Warrant. Pursuant to Section 2
of the Warrant, the undersigned attributed a value of $______ per Surrendered
Share.
The undersigned requests that a certificate for the Shares be issued in
the name of the undersigned and be delivered to the undersigned at the address
stated below. If the Shares are not all of the shares purchasable pursuant to
the Warrant, the undersigned requests that a new Warrant of like tenor for the
balance of the remaining shares purchasable thereunder be delivered to the
undersigned at the address stated below.
In connection with the issuance of the Shares, I hereby represent to the
Company that I am acquiring the Shares for my own account for investment and not
with a view to, or for resale in connection with, a distribution of the shares
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
I understand that because the Shares may not be registered at the time of
exercise of the Warrant under the Securities Act, I must hold such Shares
indefinitely unless the Shares are subsequently registered and qualified under
the Securities Act or is exempt from such registration and qualification. I
shall make no transfer or disposition of the Shares unless (a) such transfer or
disposition can be made without registration under the Securities Act by reason
of a specific exemption from such registration and such qualification, or (b) a
registration statement has been filed pursuant to the Securities Act and has
been declared effective with respect to such disposition.
In the event the Shares are not registered at the time of exercise of the
Warrant, I agree that each certificate representing the Shares delivered to me
shall bear substantially the same legend as set forth on the front page of the
Warrant.
I further agree that the Company may place stop orders on the certificates
evidencing the Shares with the transfer agent, if any, to the same effect as the
above legend. The legend and stop transfer notice referred to above shall be
removed only upon my furnishing to the Company of an opinion of counsel
(reasonably satisfactory to the Company) to the effect that such legend may be
removed.
Date:_____________________ Signed:___________________________
Address:__________________________
__________________________
A-1
Exhibit B
ASSIGNMENT
(To be Executed by the Holder to Effect Transfer of the Attached Warrant)
For Value Received __________________________ hereby sells, assigns and
transfers to _________________________ the Warrant attached hereto and the
rights represented thereby to purchase _________ shares of Common Shares in
accordance with the terms and conditions hereof, and does hereby irrevocably
constitute and appoint _________________________ as attorney to transfer such
Warrant on the books of the Company with full power of substitution.
Dated:________________________ Signed: _____________________________
Please print or typewrite Please insert Social Security
name and address of or other Tax Identification
assignee: Number of Assignee:
_____________________________
_____________________________
_____________________________
B-1
