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Exhibit 4.1
THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT,
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR APPLICABLE STATE LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE ACT OR
UNLESS THE COMPANY IS SATISFIED THAT THIS WARRANT AND THE UNDERLYING SECURITIES
MAY BE SOLD WITHOUT REGISTRATION UNDER THE ACT.
FORM
ACCESS HEALTH ALTERNATIVES, INC.
Class A Common Stock Purchase Warrant
VOID AFTER 5:00 P.M., EASTERN TIME
June 12, 2000
THIS WARRANT IS ONE OF A SERIES OF WARRANTS WHICH, IN THE
AGGREGATE, WOULD ENTITLE THE HOLDERS TO ACQUIRE UP TO
1,400,000 SHARES OF COMMON STOCK OF ACCESS HEALTH
ALTERNATIVES, INC.
FOR VALUE RECEIVED, Access Health Alternatives, Inc., a Florida
corporation (the "Company"), promises to issue in the name of, and sell and
deliver to (the "Holder"), or the Holder's registered transferee or assignee
(also the "Holder"), a certificate or certificates for (the "Shares") of Common
Stock, $.001 par value per share (the "Common Stock"), of the Company, at any
time commencing on March 15, 2000 and expiring on or before 5:00 P.M., Eastern
Time, on June 12, 2000 (the "Expiration Date"), upon payment therefore of $3.00
per Share in lawful funds of the United States of America, such amount (the
"Basic Exercise Price") being subject to adjustment in the circumstances set
forth hereinbelow. This applicable Basic Exercise, until such adjustment is
made and thereafter as adjusted from time to time is called the "Exercise
Price."
1. EXERCISE OF THE WARRANT. In case the Holder of this Warrant shall
desire to exercise this Warrant in whole or in part, the Holder shall surrender
this Warrant, with the form of exercise notice on the last page hereof duly
executed by the Holder, to the Company, accompanied by payment of the Exercise
Price of $3.00 per Share, subject to adjustment as noted herein.
This Warrant may be exercised in whole or in part but not for
fractional Shares. In case of the exercise in part only, the Company will
deliver to the Holder a new Warrant of like tenor in the name of the Holder
evidencing the right to purchase the number of Shares as to which this Warrant
has not been exercised. This Warrant, at any time prior to the exercise hereof,
upon presentation and surrender to the Company may be exchanged, along or with
other Warrants of like tenor registered in the name of the same Holder, for
another Warrant or other Warrants of like tenor in the name of such Holder
exercisable for the same aggregate number of Shares as the Warrant or Warrants
surrendered.
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2. STOCK DIVIDENDS, RECLASSIFICATIONS, REORGANIZATIONS, ANTI-DILUTION
PROVISIONS. This Warrant is subject to the following further provisions:
a. In case, prior to the expiration of this Warrant by
exercise or by its terms, the Company shall issue any Common Stock as a stock
dividend or subdivide the number of outstanding shares of Common Stock into a
greater number of shares, then, in such case, the number of Shares underlying
this Warrant shall be proportionately increased; and conversely, in the event
the Company shall contract the number of outstanding shares of Common Stock by
combining such shares into a smaller number of shares then, in such case, the
number of Shares underlying this Warrant shall be proportionately decreased. If
the Company shall, at any time during the life of this Warrant, declare a
dividend payable in cash on its Common Stock and shall at substantially the
same time offer to its shareholders generally a right to purchase new shares of
Common Stock from the proceeds of such dividend or for an amount substantially
equal to the dividend, all shares of Common Stock so issued shall, for the
purpose of this Warrant, be deemed to have been issued as a stock dividend. Any
dividend paid or distributed upon the shares of Common Stock or any class of
stock convertible into Common Stock shall be treated as a dividend paid in
Common Stock to the extent that Common Stock is issuable upon the conversion
thereof.
b. In case, prior to the expiration of this Warrant by
exercise or by its terms, the Company shall be recapitalized by reclassifying
its outstanding Common Stock into shares with a different nominal value, or
shall thereafter reclassify any such shares in a like manner, or the Company or
a successor corporation shall consolidate, or merge with or convey all or
substantially all of its, or all of substantially all of any successor
corporation's, property and assets to any other corporation or corporations
(any such corporation being included within the meaning of the term "successor
corporation" hereinbefore used in the event of any consolidation or merger of
any such corporation with, or the sale of all or substantially all of the
property of any such corporation to another corporation or corporations), the
Holder shall thereafter have the right to purchase, pursuant to and on the
terms and conditions and during the time specified in this Warrant, in lieu of
the Shares of Common Stock underlying this Warrant and that are purchasable
upon the exercise of this Warrant, such Common Stock, securities or assets as
may be issued or payable with respect to, or in exchange for, the number of
Shares underlying this Warrant and that are purchasable upon the exercise of
this Warrant as herein provided, shall continue and be preserved in respect to
any shares, securities or assets that the Holder of this Warrant becomes
entitled to purchase.
c. Upon the occurrence of each event requiring an adjustment
of the Exercise Price or of the number of shares of Common Stock included in
the Shares underlying this Warrant that are purchasable pursuant to this
Warrant in accordance with, and as required by, the terms of Subsection (a) or
(b) of this Section, the Company shall use its best efforts to forthwith cause
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either a firm of independent certified public accountants (who may be the
regular accountants for the Company) or the Chief Financial Officer of the
Company to compute the adjusted Exercise Price or the adjusted number of Shares
of Common Stock issuable upon exercise of this Warrant by reason of such event
in accordance with the provisions of Subsection (a) or (b). The Company shall
forthwith mail to the Holder of this Warrant a copy of such computations, which
shall be conclusive and shall be binding upon such Holder unless contested by
such Holder by written notice to the Company within 14 days after the mailing
thereof by the Company.
d. In case:
(1) the Company shall make a record of the holders
of its Common Stock for the purpose of entitling them to receive a dividend
payable otherwise than in cash, or a cash dividend constituting a partial
liquidating dividend, as hereinafter defined; or
(2) the Company shall make a record of the holders
of its Common Stock for the purpose of entitling them to subscribe for or
purchase any shares of any class or to receive any other rights; or
(3) the Company shall set a date for any
reclassification or other reorganization of the capital stock of the Company,
consolidation or merger of the Company with or into another corporation, or
conveyance of all or substantially all of the assets of the Company; or
(4) the Company shall set a date for the voluntary
or involuntary dissolution, liquidation or winding up of the Company;
then, in any such case, the Company shall mail to the Holder of this Warrant,
at least 30 days prior to such record date or the date set for any actions
described in subparagraphs (d)(1) through (d)(4) above, a notice advising such
Holder of the date or expected date on which a record is to be taken for the
purpose of such dividend, distribution of rights or the date on which a record
is to be taken for the purpose of such dividend, distribution of rights or the
date on which such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up, as the case may be. Each
such written notice shall be given by certified mail, postage prepaid, return
receipt requested, addressed to the holder of the Warrant at the address of
such Holder as shown on the books of the Company.
e. In case the Company, at any time while this Warrant shall
remain valid and unexercised, shall sell all or substantially all of its
property, or dissolve, liquidate or wind up its affairs or sell or dispose of
all or any part of the assets, securities or property of any wholly-owned
subsidiary, the Holder of this Warrant shall thereafter be entitled to receive
upon exercise hereof (in lieu of such Shares of Common Stock underlying this
Warrant) the same kind and amount of any securities or assets as may be
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issuable, distributable or payable upon any such sale, dissolution, liquidation
or winding up with respect to such number of Shares of Common Stock of the
Company as would otherwise have been issuable upon exercise of this Warrant.
The Company shall mail notice thereof by registered mail to the Holder and
shall make no distribution to the shareholders of the Company until the
expiration of thirty (30) days from the date of such mailing; provided,
however, than in any such event if the Holder shall not exercise this Warrant
within 30 days from the date of mailing such notice, all rights herein granted
not so exercised within such thirty (30) day period shall thereafter become
null and void. The Company shall not, however be prevented from consummating
any such sale without awaiting the expiration of such thirty (30) day period,
it being the intent and purposes hereof to enable the Holder upon exercise of
this Warrant to participate in the distribution of the consideration to be
received by the Company upon any such sale or the distribution of assets upon
any dissolution or liquidation of the Company.
f. In the event the Company, at any time while this Warrant
shall remain valid and unexercised, shall propose to declare any partial
liquidating dividend, it shall notify the Holder of this Warrant as set forth
herein. The term "partial liquidating dividend" shall include a dividend in
cash or other property of an amount that, together with all other dividends in
cash or other property paid or declared and set aside for payment is equal to
or greater than 40% of the cumulative consolidated net income of the Company
subsequent to one year from the date hereof.
g. The provisions of this Section are for the purpose of, and
shall be interpreted to the effect that, upon any exercise of this Warrant, the
Holder shall be entitled to receive the same amount and kind of securities and
other property that it would have been entitled to receive as the owner at all
times subsequent to the date hereof of the umber of Shares of Common Stock
purchased upon any such exercise.
h. It is agreed and understood that no adjustments shall be
made hereunder solely as a result of the issuance by the Company of stock,
stock options, warrants or other rights, regardless of the purpose therefor,
except as expressly provided in the foregoing provisions of Section 4.
5. COVENANTS OF THE COMPANY. The Company hereby covenants and agrees
that prior to the expiration of this Warrant by exercise or by its terms:
a. The Company will not by amendment of its Articles of
Incorporation or through reorganization, consolidation, merger, dissolution, or
sale of assets, or by any other voluntary act or deed, avoid or seek to avoid
the observance or performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by the Company, but will at
all times in good faith assist, insofar as it is able, in the carrying out of
all provisions oft his Warrant and in the taking of all other actions that may
be necessary in order to protect the rights of the Holder against dilution.
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b. If at any time or from time to time the Company shall, by
subdivision, consolidation or reclassification of shares, or otherwise, change
as a whole the outstanding Common Stock into a different number or class of
shares, the number and class of shares as so changed shall, for the purpose of
each Warrant and the terms and conditions hereof, replace the shares
outstanding immediately prior to such change, and the Warrant purchase price in
effect, and the number of Shares purchasable under each Warrant, immediately
prior to the date on which such change shall become effective, shall be
proportionately adjusted.
c. Irrespective of any adjustment or change in the Warrant
purchase price or the number of Shares of Common Stock actually purchasable
under each Warrant of like tenor, the Warrants therefore and thereafter issued
may continue to express the Warrant purchase price per Share and the number of
Shares purchasable thereunder as the Warrant purchase price per Share and the
number of shares purchasable were expressed on the Warrants when initially
issued.
d. If at any time while any Warrant is outstanding the
Company consolidates with or merges into another corporation, firm or entity,
or otherwise enters into a form of business combination, the Holder, upon
exercise hereof, shall be entitled to purchase, with respect to each Share of
Common Stock purchasable hereunder, that number of shares to which a holder of
one (1) share of Common Stock would have been entitled upon the occurrence of
such business combination without any change in, or payment in addition to, the
Warrant purchase price in effect immediately prior to such merger or
consolidation, and the Company shall take such steps in connection with such
consolidation or merger as may be necessary to ensure that all the provisions
of each Warrant shall thereafter be applicable, as nearly as reasonably may be,
in relation to any securities or property thereafter deliverable upon the
exercise of each Warrant. The Company shall not effect any such consolidation,
merger or other form of business combination unless, prior to the consummation
thereof, the successor corporation (if other than the Company) resulting
therefrom shall assume by written instrument executed and mailed to the
registered Holder of each Warrant at the address of such Holder shown on the
books of the Company, the obligation to deliver to such holder such securities
or property such holder shall be entitled to purchase in accordance with the
foregoing provisions.
e. Upon the happening of any event requiring an adjustment of
the Warrant purchase price hereunder, the Company shall forthwith give written
notice thereof to the registered Holder of each Warrant, stating the adjusted
Warrant purchase price and the adjusted number of Shares purchasable upon the
exercise thereof resulting from such event, and setting forth in reasonable
detail the method of calculation. The certificate of either the Company's
independent certified public accountants or Chief Financial Officer shall be
conclusive evidence of the correctness of any computation made hereunder unless
contested by a Holder by written notice to the Company within 30 days after the
mailing thereof by the Company. Notice pursuant to this paragraph shall be
given by certified mail, postage prepaid, return receipt requested, addressed
to the registered Holder of each warrant at the address of such Holder
appearing in the records of the Company.
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f. The Company shall at all times reserve and keep available,
out of its authorized and unissued share capital, solely for the purpose of
providing for the exercise, forthwith upon the request of the Holder of the
Warrants then outstanding and in effect, such number of shares of Common Stock
as shall, from time to time, be sufficient for the exercise of the Warrants.
The Company shall, from time to time, in accordance with the laws of the State
of Florida, increase the authorized amount of is share capital if at any time
the number of shares of Common Stock remaining unissued and unreserved for
other purposes shall not be sufficient to permit the exercise of the Warrants
then outstanding and in effect.
g. The Company covenants and agrees that all shares that may
be issued upon the exercise of the rights represented by this Warrant will,
upon issuance, be validly issued, fully paid an non-assessable, and free from
all taxes, liens and charges with respect to the issue thereof.
6. LOSS, THEFT, DESTRUCTION OR MUTILATION. In case this Warrant shall
become mutilated or defaced or be destroyed, lost or stolen, the Company shall
execute and deliver a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or in lieu of and in
substitution for such Warrant so destroyed, lost or stolen, upon the Holder of
such warrant filing with the Company such evidence satisfactory to it that such
Warrant has been so mutilated, defaced, destroyed, lost or stolen and of the
ownership thereof by the Holder; provided, however, that the Company shall be
entitled, as a condition to the execution and delivery of such new Warrant, to
demand indemnity satisfactory to it and payment of expenses and charges
incurred in connection with the delivery of such new Warrant, and may demand a
bond from the Holder. All Warrants so surrendered to the Company shall be
canceled.
7. RECORD OWNER. At the time of the surrender of this Warrant,
together with the form of subscription properly executed and payment of the
Exercise Price, the person exercising this Warrant s hall be deemed to be the
Holder of record of the Common Stock deliverable upon such exercise, in whole
or in part, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such securities shall not then
be actually delivered to such person.
8. FRACTIONAL SECURITIES. No fractional shares of Common Stock or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for on such exercise,
the Holder may elect to receive, and the Company shall pay to the Holder, an
amount in cash equal to such fraction multiplied by the Exercise Price. In the
alternative, the Holder may elect to remit to the Company an amount in cash
equal to the difference between such fraction and one, multiplied by the
Exercise Price, and the Company will issue the Holder one share of Common Stock
in addition to the number of whole shares required by the exercise of the
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Warrant; provided, however, that the Company shall not be obligated by the
operation of this Section to issue shares in the aggregate exceeding the number
of shares as to which an exemption from federal and state registration has been
determined to be available.
9. ORIGINAL ISSUE TAXES. The Company will pay all United States, state
and local original issue taxes, if any, upon the issuance of this Warrant or
the Common Stock deliverable upon exercise hereof.
10. MAILING OF NOTICES, ETC. All notices and other communications from
the Company to the Holder of this Warrant shall be mailed by first-class
registered or certified mail, return receipt requested, postage prepaid, to the
Holder at the address set forth in the records of the Company, or to such other
address furnished to the Company in writing from time to time by the Holder of
this Warrant. All notices from the Holder of this Warrant to the Company shall
be mailed to the Company at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000,
attn: President.
11. REDEMPTION. The Company may redeem this Warrant at any time that
the average closing bid and asked price for its common stock has been at least
$4.00 for a minimum of 20 consecutive trading days, at a redemption price of
$.01 per share, upon 30 days' written notice to the Holder, during which time
the Holder may exercise this Warrants (even if such exercise would precede
March 15, 2000); provided, however, that a current registration statement
covering the underlying shares of common stock is then available.
12. REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. Neither
this Warrant nor the Shares underlying it have been registered under the
Securities Act of 1933, as amended (the "Act"). Unless and until registered
under the Act, this Warrant and all replacement Warrants shall bear the
following legend;
NEITHER THIS WARRANT (NOR THE SHARES UNDERLYING IT) HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND IT THEREFORE MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS (I) A REGISTRATION STATEMENT UNDER WHICH THIS WARRANT AND THE
SHARES UNDERLYING IT ARE REGISTERED HAS BECOME EFFECTIVE, OR (II) THE
COMPANY IS SATISFIED THAT NO SUCH REGISTRATION STATEMENT IS THEN
REQUIRED AND THAT THIS WARRANT AND THE SHARES UNDERLYING IT MAY BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE MANNER CONTEMPLATED
WITHOUT REGISTRATION UNDER THE ACT.
The Company will include the Shares of common stock issuable upon the
exercise of this Warrant in the Company's first registration statement to be
filed under the Act. In the event the Company has not filed such a registration
statement at such time as this Warrant may be exercised, the holders of a
majority of the outstanding Warrants may demand that the Company file such a
registration statement within 90 days from receipt of written notice by such
holders, or as soon thereafter as possible; provided, however, that the Shares
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may not be disposed of in any manner for at least 60 business days following
the effective date of the registration statement if an underwritten offering is
then pending.
13. LAWS OF THE STATE OF FLORIDA. This Warrant shall be governed by,
interpreted under and construed in all respects in accordance with the laws of
the State of Florida, irrespective of the place of domicile or residence of any
party. In the event of a controversy arising out of the interpretation,
constructions, performance or breach of this Warrant, the parties hereby agree
and consent to the jurisdiction and venue of the Courts of the State of
Florida, Orange County, or the United States District Court for the Middle
District of Florida; and further agree and consent that personal service of
process in any such action or proceeding outside the State of Florida shall be
tantamount to service in person in Florida.
14. ENTIRE AGREEMENT AND MODIFICATION. The Company and the Holder of
this Warrant hereby represent and warrant that this Warrant is intended to and
does contain and embody all of the understandings and agreements, both written
and oral, of the parties hereto with respect to the subject matter of this
Warrant, and that there exists no oral agreement or understanding, express or
implied, whereby the absolute, final and unconditional character and nature of
this Warrant shall be in any way invalidated, empowered or affected. A
modification or waiver of any of the terms, conditions or provisions of this
Warrant shall be effective only if made in writing and executed with the same
formality as this Warrant.
This Warrant will become wholly void and of no effect and the rights
evidences hereby will terminate unless exercised in accordance with the terms
and provisions hereof at or before 5:00 P.M., Eastern Time, on the Expiration
Date.
IN WITNESS WHEREOF, the Company by its duly authorized officer, has
executed this Warrant on the _____ day of ___________, 1999.
Attest: ACCESS HEALTH ALTERNATIVES, INC.
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Xxxxxx X. Xxxxxxxx, Secretary Xxxxxx X. Xxxxxx, President
(CORPORATE SEAL)
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FORM OF EXERCISE
The undersigned hereby irrevocably elects to exercise the purchase
rights represented by this Warrant for, and to purchase thereunder, _______
Shares of Common Stock, $.001 par value per share, of Access Health
Alternatives, Inc., and herewith makes payment of $3.00 per Share, or a total
of $___________ therefore, and requests that such Shares be issued to:
_______________________________________________________________________________
(print name)
_______________________________________________________________________________
(address)
_______________________________________________________________________________
(social security number)
Dated: ___________________________________________________________
(signature must conform in all respects to
name of holder as specified on the face of
this Warrant)
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________ the right represented by this Warrant to
purchase ____ Shares of Common Stock, $.001 par value per Share of Access
Health Alternatives, Inc., to which this Warrant relates, and appoints
_________________________, attorney to transfer said right on the books of the
premises.
Dated: ___________________________ __________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
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