Exhibit 4.6
NEITHER THIS WARRANT, NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION THEREFROM.
Xxxxx 0, 0000 Xxxxxxx to Purchase
Shares of Common Stock
MILLSTREAM ACQUISITION CORPORATION
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, __________, or his registered
assigns, is entitled to purchase from Millstream Acquisition Corporation, a
Delaware corporation (the "Company"), at any time or from time to time during
the period specified in Section 1 hereof, _____________ (________) fully paid
and nonassessable shares of the Company's Stock, no par value (the "Common
Stock"), at an exercise price of Eight Dollars and Fifty Cents ($8.50) per share
(the "Exercise Price"), subject to adjustment as provided herein. The term
"Warrant Shares," as used herein, refers to the shares of Common Stock
purchasable hereunder.
This Warrant is subject to the following terms, provisions, and
conditions:
1. Period of Exercise. This Warrant is exercisable at any time or from
time to time beginning on the date on which the Effective Time of the merger of
N Merger, LLC, the Company's wholly-owned subsidiary, with and into
NationsHealth Holdings, L.L.C. occurs (the "Effective Date"), as defined in that
certain Agreement and Plan of Merger dated as of March 9, 2004, among the
Company, N Merger, LLC and NationsHealth Holdings, L.L.C. (the "Merger
Agreement"), and ending at 5:00 p.m., New York City time on the seventh
anniversary of the Effective Date (the "Exercise Period"). In the event that the
Merger Agreement is terminated in accordance with Article VIII thereof, then
this Warrant shall automatically terminate and be deemed null and void.
2. Manner of Exercise; Issuance of Certificates; Payment for Shares.
(a) Subject to the provisions hereof, this Warrant may be exercised
by the holder hereof, in whole or in part, by the surrender of this Warrant,
together with a completed exercise agreement in the form attached hereto (the
"Exercise Agreement"), to the Company during normal business hours on any
business day during the Exercise Period at the Company's principal executive
offices (or such other office or agency of the Company as it may designate by
notice to the holder hereof), and upon payment to the Company in cash, by
certified or official bank check or by wire transfer for the account of the
Company of the Exercise Price for the Warrant Shares specified in the Exercise
Agreement. The Warrant Shares so purchased shall be deemed to be issued to the
holder hereof or such holder's designee, as the record owner of such shares, as
of the close of business on the date on which this Warrant shall have been
surrendered, the completed Exercise Agreement shall have been delivered and
payment shall have been made for such shares (or an election to effect a
cashless exercise pursuant to Section 2(b) has been made) as set forth above.
Certificates for the Warrant Shares so purchased, representing the aggregate
number of shares specified in the Exercise Agreement, shall be delivered to the
holder hereof within three (3) business days after this Warrant shall have been
so exercised. The certificates so delivered shall be in such denominations as
may be requested by the holder hereof and shall be registered in the name of
such holder or such other name as shall be designated by such holder. If this
Warrant shall have been exercised only in part, then, unless this Warrant has
expired, the Company shall, at its expense, at the time of delivery of such
certificates, deliver to the holder a new Warrant representing the number of
shares with respect to which this Warrant shall not then have been exercised.
(b) Net Issue Exercise. In lieu of exercising any Warrant pursuant to
Section 2(a), the registered holder thereof may elect to receive shares of
Common Stock (the "Net Issue Right") by surrender of the Warrant to the Company
with the Exercise Agreement duly executed, electing to exercise its Net Issue
Right pursuant to this Section 2(b). Upon election of the Net Issue Right, the
registered holder shall be entitled to that number of shares of Common Stock
(without payment by the holder of any Exercise Price) computed using the
following formula:
X = Y(W-Z)
------
W
Where:
X = the number of shares of Common Stock to be issued to
the registered holder;
Y = the number of shares of Common Stock purchasable
under the Warrant (at the date of such calculation);
W = the fair market value of one share of the Common
Stock (at the date of such calculation);
Z = the Exercise Price (as adjusted according to the
terms set forth herein).
As used in this Section 2(b), "fair market value" of one share of Common Stock
shall mean the average closing price, for the ten trading days immediately
preceding the date the Exercise Agreement is submitted to the Company, per share
of Common Stock as reported on the Nasdaq Stock Market (the "NASDAQ"), the New
York Stock Exchange (the "NYSE"), the American Stock Exchange (the "AMEX"), any
other stock exchange or the over-the-counter market, as applicable, as reported
in The Wall Street Journal (Northeast edition), or, if not then reported
thereby, any other authoritative source. If the Common Stock is not traded on
the NASDAQ, the NYSE, the AMEX, any other stock exchange or the over-the-counter
market, then in lieu of the average closing price, fair market value of the
Common Stock per share shall be the price per share that is determined by the
Board of Directors of the Company acting reasonably and in good faith. Upon
exercise of its Net Issue Right pursuant to this Section 2(b) and the receipt by
the registered holder of the applicable shares of Common Stock, the obligations
of the Company to deliver shares of Common Stock shall be terminated with
respect to the number of shares of Common Stock for which the registered holder
shall have exercised its Net Issue Right.
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3. Certain Agreements of the Company. The Company hereby covenants and
agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance
in accordance with the terms of this Warrant, be validly issued, fully paid, and
nonassessable and free from all taxes, liens, and charges with respect to the
issue thereof.
(b) Reservation of Shares. During the Exercise Period, the Company
shall at all times have authorized, and reserved for the purpose of issuance
upon exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise in full of this Warrant.
(c) Certain Actions Prohibited. The Company will not, by amendment
of its charter or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the holder of this
Warrant in order to protect the exercise privilege of the holder of this Warrant
against dilution or other impairment, consistent with the tenor and purpose of
this Warrant. Without limiting the generality of the foregoing, the Company (i)
will not increase the par value of any shares of Common Stock issuable upon the
exercise of this Warrant above the Exercise Price then in effect, and (ii) 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 shares of
Common Stock upon the exercise of this Warrant.
(d) Successors and Assigns. This Warrant will be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all the Company's assets.
4. Adjustments.
(a) Stock Dividends - Split-Ups. If after the date hereof, and
subject to the provisions of Section 4(f) below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in shares of
Common Stock, or by a split-up of shares of Common Stock, or other similar
event, then, on the effective date of such stock dividend, split-up or similar
event, the number of shares of Common Stock issuable on exercise of each Warrant
shall be increased in proportion to such increase in outstanding shares.
(b) Aggregation of Shares. If after the date hereof, and subject to
the provisions of Section 4(f), the number of outstanding shares of Common Stock
is decreased by a consolidation, combination, reverse stock split or
reclassification of shares of Common Stock or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of shares of Common Stock issuable
on exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding shares.
(c) Adjustments in Exercise Price. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is adjusted, as
provided in Section 4(a) or 4(b) above, the Exercise Price shall be adjusted (to
the nearest cent) by multiplying such Exercise Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
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shares of Common Stock purchasable upon the exercise of the Warrants immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Common Stock so purchasable immediately thereafter.
(d) Replacement of Securities upon Reorganization, etc. In case of
any reclassification or reorganization of the outstanding shares of Common Stock
(other than a change covered by Section 4(a) or 4(b) hereof or that solely
affects the par value of such shares of Common Stock), or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, the Warrant holders shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in the
Warrants and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented thereby, the kind and amount of shares of stock or other securities
or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, by a Warrant holder of the number of shares of Common
Stock of the Company obtainable upon exercise of the Warrants immediately prior
to such event; and if any reclassification also results in a change in shares of
Common Stock covered by Section 4(a) or 4(b), then such adjustment shall be made
pursuant to Sections 4(a), 4(b), 4(c) and this Section 4(d). The provisions of
this Section 4(d) shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
(e) Notices of Changes in Warrant. Upon every adjustment of the
Exercise Price or the number of shares issuable on exercise of a Warrant, the
Company shall give written notice thereof to the Warrant holder, which notice
shall state the Exercise Price resulting from such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon the
occurrence of any event specified in Sections 4(a), 4(b), 4(c) or 4(d), then, in
any such event, the Company shall give written notice to the Warrant holder of
the record date or the effective date of the event. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such event.
(f) No Fractional Shares. Notwithstanding any provision contained in
this Agreement to the contrary, the Company shall not issue fractional shares
upon exercise of Warrants. If, by reason of any adjustment made pursuant to this
Section 4, the holder of any Warrant would be entitled, upon the exercise of
such Warrant, to receive a fractional interest in a share, the Company shall,
upon such exercise, round up to the nearest whole number, the number of the
shares of Common Stock to be issued to the Warrant holder.
(g) Form of Warrant. The form of Warrant need not be changed because
of any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Exercise Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this Agreement. However, the
Company may at any time in its sole discretion make any change in the form of
Warrant that the Company may deem appropriate and that does not affect the
substance thereof, and any Warrant thereafter issued or countersigned, whether
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in exchange or substitution for an outstanding Warrant or otherwise, may be in
the form as so changed.
5. Issue Tax. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the holder of this
Warrant or such shares for any issuance tax or other costs in respect thereof.
6. No Rights or Liabilities as a Shareholder. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
7. Transfer, Exchange, and Replacement of Warrant.
(a) Restriction on Transfer. This Warrant and the rights granted to
the holder hereof are transferable, in whole or in part, upon surrender of this
Warrant, together with a properly executed assignment in the form attached
hereto, at the office or agency of the Company referred to in Section 7(e)
below; provided, however, that any transfer or assignment shall be subject to
the conditions set forth in Section 7(f).
(b) Warrant Exchangeable for Different Denominations. This Warrant
is exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company referred to in Section 7(e) below, for new Warrants of
like tenor representing in the aggregate the right to purchase the number of
shares of Common Stock which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of shares as shall be
designated by the holder hereof at the time of such surrender.
(c) Replacement of Warrant. Upon receipt of evidence of the loss,
theft, destruction, or mutilation of this Warrant and, in the case of any such
loss, theft, or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company, or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant, the Company, at its
expense, will execute and deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation; Payment of Expenses. Upon the surrender of this
Warrant in connection with any transfer, exchange, or replacement as provided in
this Section 7, this Warrant shall be promptly canceled by the Company. The
Company shall pay all taxes (other than securities transfer taxes) and all other
expenses (other than legal expenses, if any, incurred by the holder or
transferees) and charges payable in connection with the preparation, execution,
and delivery of Warrants pursuant to this Section 7.
(e) Register. The Company shall maintain, at its principal executive
offices (or such other office or agency of the Company as it may designate by
notice to the holder hereof), a register for this Warrant, in which the Company
shall record the name and address of the person in whose name this Warrant has
been issued, as well as the name and address of each transferee and each prior
owner of this Warrant.
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(f) Exercise or Transfer Without Registration. If, at the time of
the surrender of this Warrant in connection with any exercise, transfer, or
exchange of this Warrant, this Warrant (or, in the case of any exercise, the
Warrant Shares issuable hereunder), shall not be registered under the Securities
Act and under applicable state securities or blue sky laws, the Company may
require, as a condition of allowing such exercise, transfer, or exchange, that
the holder or transferee of this Warrant, as the case may be, furnish to the
Company a written opinion of counsel to the effect that such exercise, transfer,
or exchange may be made without registration under the Securities Act and under
applicable state securities or blue sky laws; provided however, that no legal
opinion shall be required in connection with a transfer pursuant to Rule 144
under the Securities Act.
8. Notices. Any notice which is required or provided to be given under
this Warrant shall be deemed to have been sufficiently given and received for
all purposes when delivered by hand, telecopy (if a copy of such confirmed
telecopy transmission shall be contemporaneously sent by first class mail), or
nationally recognized overnight courier, or five days after being sent by
certified or registered mail, postage and charges prepaid, return receipt
requested, to the following addresses:
If to the Company:
Millstream Acquisition Corporation
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to the Holder:
________________________
________________________
________________________
Facsimile: _______________
9. Applicable Law. The validity, interpretation, and performance of
this Agreement and of the Warrants shall be governed in all respects by the
internal laws of the State of New York, applicable to contracts made and to be
performed entirely within such State. The Company hereby agrees 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 the United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
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The Company hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenience forum. Any such process or summons to be
served upon the Company 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 8 hereof. Such mailing shall
be deemed personal service and shall be legal and binding upon the Company in
any action, proceeding or claim.
10. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may only be
amended by an instrument in writing signed by the Company and the holder of this
Warrant.
(b) Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for purposes of reference only, and
shall not affect the meaning or construction of any of the provisions hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
MILLSTREAM ACQUISITION CORPORATION
By:
Name: Xxxxxx Xxxxxxx
Title: President and Chief Executive Officer
Dated as of March 9, 2004
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FORM OF EXERCISE AGREEMENT
Dated: ________ __, 20__
To: Millstream Acquisition Corporation
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, XX 00000
The undersigned, pursuant to the provisions set forth in the Warrant
attached hereto, hereby agrees to purchase ________ shares of Common Stock
covered by such Warrant, and makes payment herewith in full therefor at the
price per share provided by such Warrant in cash, by wire transfer or by
certified or official bank check in the amount of, or by surrender of securities
issued by the Company (including a portion of the Warrant) having a market value
(in the case of a portion of this Warrant, determined in accordance with Section
2(b) of the Warrant) equal to $_________. Please issue a certificate or
certificates for such shares of Common Stock in the name of and pay any cash for
any fractional share to:
Name: ______________________________
Signature: ______________________________
Address: ______________________________
______________________________
Note: The above signature should correspond exactly
with the name on the face of the within Warrant.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all the rights of the undersigned under the within Warrant, with
respect to the number of shares of Common Stock covered thereby set forth
hereinbelow, to:
Name of Assignee Address No. of Shares
, and hereby irrevocably constitutes and appoints
______________________________________ ________________________ as agent and
attorney-in-fact to transfer said Warrant on the books of the within-named
Company, with full power of substitution in the premises.
Dated:________________________, __, 20
In the presence of:
__________________________________
Name: __________________________________
Signature: ________________________________
Title of Signing Officer or Agent (if any):
__________________________________
Address: __________________________________
__________________________________
Note: The above signature should correspond exactly with
the name on the face of the within Warrant.
