WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of this 15th day of November 1996,
between ROM TECH, INC., a Pennsylvania corporation (the "Company"), and
______________________________ (the "Holder").
W I T N E S S E T H:
WHEREAS, the Company desires to provide for the
issuance of a Warrant to the Holder upon the terms and conditions provided
herein.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth, the parties hereto agree as
follows:
SECTION 1. Definitions. As used herein, the following
terms shall have the following meanings, unless the context shall otherwise
require:
(a) "Affiliate" shall mean any person or
entity who controls, is controlled by or is under common control with, the
Company. For purposes of this definition, "control" means the power to direct
the management and policies of any person or entity, directly or indirectly,
whether through the ownership of securities, by contract or otherwise.
(b) "Average Quoted Price" of a share of
Common Stock is the average of the closing bid price for the period in question
of the Common Stock as reported on the Nasdaq SmallCap Market, or the primary
securities exchange on which the Common Stock is then quoted; provided, however,
that if the Common Stock is neither traded on the Nasdaq SmallCap Market nor on
any other securities exchange, the price referred to above shall be the closing
bid price reflected in the over-the-counter market as reported by the National
Quotation Bureau, Inc. or any organization performing a similar function.
(c) "Common Stock" shall mean the common
stock of the Company, without par value.
(d) "Exercise Date" shall mean the date on
which the Company shall have received both (i) the Warrant Certificate
representing this Warrant, with the exercise form thereon duly executed by the
Holder hereof or his attorney duly authorized in writing, and (ii) payment in
cash or by check made payable to the Company, of the amount in lawful money of
the United States of America equal to the applicable Purchase Price or payment
as provided in Section 4 hereof.
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(e) "Initial Warrant Exercise Date" shall
mean May 15, 1997.
(f) "Market Price" per share of Common Stock
on any date means the Average Quoted Price of a share of Common Stock for the
thirty consecutive trading days commencing forty-five (45) trading days before
the date in question . In the absence of one or more such quotations, the
Company shall determine the Market Price in good faith, based on the best
information available to it.
(g) "Purchase Price" shall mean, subject to
modification and adjustment as provided in Section 8, $6.25 and further subject
to the Company's right, in its sole discretion, to decrease the Purchase Price
for a period of not less than 30 days on not less than 30 days' prior written
notice to the Registered Holder.
(h) "Registered Holder" shall mean the
person in whose name any certificate representing the Warrants shall be
registered on the books maintained by the Company pursuant to Section 6.
(i) "Subsidiary" or Subsidiaries" shall mean
any corporation or corporations, as the case may be, of which stock having
ordinary power to elect a majority of the Board of Directors of such corporation
(regardless of whether or not at the time stock of any other class or classes of
such corporation shall have or may have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned by the Company
or by one or more Subsidiaries, or by the Company and one or more Subsidiaries.
(j) "Warrant Certificate" shall mean a
certificate representing each of the Warrants substantially in the form annexed
hereto as Exhibit A.
(k) "Warrant Expiration Date" shall mean,
5:00 p.m. (Eastern Standard Time) on November 15, 2001 or, if such date shown in
the Commonwealth of Pennsylvania be a holiday or a day on which banks are
authorized to close, then 5:00 p.m. (Eastern Standard Time) on the next
following day which in the Commonwealth of Pennsylvania is not a holiday or a
day on which banks are authorized to close, subject to the Company's right,
prior to the Warrant Expiration Date, in its sole discretion, to extend such
Warrant Expiration Date on five business days prior written notice to the
Registered Holders.
SECTION 2. Warrants and Issuance of Warrant
Certificates.
(a) One Warrant shall initially entitle the
Registered Holder of the Warrant Certificate representing such Warrant to
purchase at the Purchase Price therefor, beginning on the Initial Warrant
Exercise Date until the Warrant Expiration Date, one share of Common Stock upon
the exercise thereof, subject to modification and adjustment as provided in
Section 8.
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(b) Upon execution of this Agreement,
Warrant Certificates representing ____________ Warrants to purchase up to an
aggregate of _____________ shares of Common Stock (subject to modification and
adjustment as provided in Section 8) shall be executed by the Company and
delivered to the Holder. This Warrant is one of a series of warrants authorized
and issued or to be issued by the Company entitling the holders thereof to
purchase up to 420,000 shares of the Company's Common Stock.
(c) From time to time, up to the Warrant
Expiration Date, as the case may be, the Company shall countersign and deliver
Warrant Certificates in required denominations of one or whole number multiples
thereof to the person entitled thereto in connection with any transfer or
exchange permitted under this Agreement. Except as provided in Section 7 hereof,
no Warrant Certificates shall be issued except (i) Warrant Certificates
initially issued pursuant to Section 2(b) hereof, (ii) Warrant Certificates
issued upon any transfer or exchange of Warrants, (iii) Warrant Certificates
issued in replacement of lost, stolen, destroyed or mutilated Warrant
Certificates pursuant to Section 7, and (iv) at the option of the Company,
Warrant Certificates in such form as may be approved by its Board of Directors,
to reflect any adjustment or change in the Purchase Price, the number of shares
of Common Stock purchasable upon exercise of the Warrants therefor made pursuant
to Section 8 hereof.
SECTION 3. Form and Execution of Warrant
Certificates.
(a) The Warrant Certificates shall be
substantially in the form annexed hereto as Exhibit A (the provisions of which
are hereby incorporated herein) and may have such letters, numbers or other
marks of identification or designation and such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or to conform to usage. The Warrant Certificates shall be dated
the date of issuance thereof (whether upon initial issuance, transfer, exchange
or in lieu of mutilated, lost, stolen or destroyed Warrant Certificates).
(b) Warrant Certificates shall be executed
on behalf of the Company by its Chairman of the Board, President or any Vice
President and by its Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary, by manual signatures or by facsimile signatures printed
thereon, and shall have imprinted thereon a manual or a facsimile of the
Company's seal.
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SECTION 4. Exercise.
(a) (1) Warrants in denominations of one or
whole number multiples thereof may be exercised commencing at any time on or
after the Initial Warrant Exercise Date, but not after the Warrant Expiration
Date, upon the terms and subject to the conditions set forth herein (including
the provisions set forth in Section 5 hereof) and in the applicable Warrant
Certificate. A Warrant shall be deemed to have been exercised immediately prior
to the close of business on the Exercise Date, provided that the Warrant
Certificate representing such Warrant, with the exercise form thereon duly
executed by the Registered Holder thereof or his attorney duly authorized in
writing, together with payment in cash or by check made payable to the Company,
of an amount in lawful money of the United States of America equal to the
applicable Purchase Price has been received in good funds by the Company. The
person entitled to receive the securities deliverable upon such exercise shall
be treated for all purposes as the holder of such securities as of the close of
business on the Exercise Date. If more than one Warrant Certificate shall be
exercised at one time by the same Registered Holder, the number of full shares
of Common Stock which shall be issuable upon exercise thereof shall be computed
on the basis of the aggregate number of full shares of Common Stock issuable
upon such exercise. As soon as practicable on or after the Exercise Date and in
any event with ten business days after such date, the Company shall cause to be
issued to the person or persons entitled to receive the same a Common Stock
certificate or certificates for the shares of Common Stock deliverable upon such
exercise, and the Company shall deliver the same to the person or persons
entitled thereto.
(b) The Company shall be not obligated to
issue any fractional share interests or fractional Warrant interests upon the
exercise of any Warrant or Warrants, nor shall it be obligated to issue scrip or
pay cash in lieu of fractional interests. Any fraction equal to or greater than
one-half shall be rounded up to the next full share or Warrant, as the case may
be, any fraction less than one-half shall be eliminated.
SECTION 5. Reservation of Shares: Listing of Taxes;
etc.
(a) The Company covenants that it will at
all times reserve and keep available out of its authorized Common Stock, solely
for the purpose of issue upon exercise of Warrants, such number of shares of
Common Stock as shall then be issuable upon the exercise of all outstanding
Warrants. The Company covenants that all shares of Common Stock which shall be
issuable upon exercise of the Warrants shall, at the time of delivery thereof
and upon payment of the Purchase Price with respect thereto, be duly and validly
issued and fully paid and nonassessable and free from all preemptive or similar
rights, taxes, liens and charges with respect to the issue, thereof except for
taxes and other charges payable by the holder as provided in Section 5(b), and
that upon issuance such shares shall be listed on each securities exchange, if
any, on which the other shares of outstanding Common Stock of the Company are
then listed.
(b) The Company shall pay all documentary,
stamp or similar taxes and other governmental charges that may be imposed with
respect to the issuance of Warrants, or the issuance or delivery of any shares
of Common Stock upon exercise of the Warrants; provided, however, that if shares
of Common Stock are to be delivered in a name other than the name of the
Registered Holder of the Warrant Certificate representing any Warrant being
exercised, (provided that such issuance is permitted under any applicable
federal or state securities laws) then no such delivery shall be made unless the
person requesting the same has paid to the Company the amount of transfer taxes
or charges incident thereto, if any.
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SECTION 6. Exchange and Registration of Transfer
(a) Warrant Certificates may be exchanged
for other Warrant Certificates representing an equal aggregate number of
Warrants, or, subject to the limitations set forth in Section 6 (g) hereof, may
be transferred in whole or in part. Warrant Certificates to be so exchanged
shall be surrendered to the Company at 0000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxxx 00000, to the attention of Xxxxxx X. Xxxxx, and the
Company shall execute, issue and deliver in exchange therefor to the Registered
Holder a new Warrant Certificate or Certificates representing an equal aggregate
number of Warrants.
(b) The Company shall keep, at such office,
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates, and the transfer thereof. Upon due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and shall issue and deliver to the Registered
Holder a new Warrant Certificate or Certificates representing an equal aggregate
number of Warrants.
(c) With respect to any Warrant Certificates
presented for registration or transfer, or for exchange or exercise, the
subscription or assignment form accompanying the Warrant Certificate(s), as the
case may be, attached thereto shall be duly endorsed or be accompanied by a
written instrument or instruments of transfer or subscription, in form
satisfactory to the Company and the Warrant Agent, duly executed by the
Registered Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any
exchange of registration or transfer of Warrant Certificates. However, the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
(e) All Warrant Certificates surrendered for
exercise or for exchange shall be promptly canceled by the Company.
(f) Prior to due presentment for
registration or transfer thereof, the Company may deem and treat the Registered
Holder of any Warrant Certificate as the absolute owner thereof of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company) for all purposes and shall be
affected by any notice to the contrary.
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(g) The Warrants represented by the Warrant
Certificates may not be exercised nor may any interest in the Warrants
represented by the Warrant Certificates be sold, assigned, pledged,
hypothecated, encumbered or in any other manner transferred or disposed of, in
whole or in part, except in compliance with applicable United States federal and
state securities or Blue Sky laws and the terms and conditions hereof. Each
Warrant Certificate shall bear the legend set forth in Section 14 hereof. Each
share of Common Stock issued upon exercise of the Warrants shall bear a legend
substantially in the form set forth in Section 14 hereof. Any Warrant
Certificate issued at any time in exchange or substitution for any Warrant
Certificate bearing such legend shall also bear such legend unless, in the
opinion of legal counsel for the Company, the Warrants represented thereby need
no longer be subject to the restriction contained herein. The provisions of this
Section 6 (g) shall be binding upon all subsequent holders of Warrant
Certificates.
SECTION 7. Loss or Mutilation. Upon receipt by the
Company of evidence satisfactory to it to the ownership of the loss, theft,
destruction or mutilation of any Warrant Certificate and (in the case of loss,
theft or destruction) of indemnity satisfactory to them, and (in case of
mutilation) upon surrender and cancellation thereof, the Company shall execute
and deliver in lieu thereof a new Warrant Certificate to the Registered Holder
thereof representing an equal aggregate number of Warrants. Applicants for a
substitute Warrant Certificate shall also comply with such other reasonable
regulations and pay such other charges as the Company may prescribe.
SECTION 8. Adjustment of Purchase Price and Number of
Shares of Common Stock Deliverable.
(a) (i) Except as hereinafter provided, in
the event the Company shall, at any time or from time to time after the date
hereof, sell any shares of Common Stock for a consideration per share less than
the Purchase Price or issue any shares of Common Stock as a stock dividend to
the holders of Common Stock, or subdivide or combine the outstanding shares of
Common Stock into a greater or lesser number of shares (any such sale, issuance,
subdivision or combination being herein called a "Change of Shares"), then, and
thereafter upon each further Change of Shares, the Purchase Price for the
Warrants (whether or not the same shall be issued and outstanding) in effect
immediately prior to such Change of Shares shall be changed to a price
(including any applicable fraction of a cent to the nearest cent) equal to the
following:
NPP = (OB x OPP) + (NS x NSP)
-------------------------------
OA
where:
NPP = the New Purchase Price
OPP = the existing Purchase Price immediately
before the new issue
OB = the total outstanding shares of Common Stock
immediately before Change of Shares
NS = number of shares sold or issued pursuant to
the Change of Shares
NSP = price per share of new issue
OA = the total outstanding shares of Common Stock
immediately after the Change of Shares
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provided, however, that in no event shall the Purchase Price be adjusted
pursuant to this computation to an amount in excess of the Purchase Price in
effect immediately prior to such computation, except in the case of a
combination of outstanding shares of Common Stock.
For the purposes of any adjustment to be made in
accordance with this Section 8 (a) the following provisions shall be applicable:
(A) In case of the issuance
or sale of shares of Common Stock (or of other securities deemed hereunder to
involve the issuance or sale of shares of Common Stock) for a consideration part
or all of which shall be cash, the amount of the cash portion of the
consideration therefor deemed to have been received by the Company shall be (i)
the subscription price, if shares of Common Stock are offered by the Company for
subscription, or (ii) the public offering price (before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or purchase
thereof by underwriters or dealers or others performing similar services), if
such securities are sold to underwriters or dealers for public offering without
a subscription offering, or (iii) the gross amount of cash actually received by
the Company for such securities in any other case, in each case, without
deduction for any expenses incurred by the Company in connection with such
transaction.
(B) In case of the issuance
or sale (otherwise than as a dividend or other distribution on any stock of the
Company) of shares of Common Stock (or of other securities deemed hereunder to
involve the issuance or sale of shares of Common Stock) for a consideration part
or all of which shall be other than cash, the amount of the consideration
therefor other than cash deemed to have been received by the Company shall be
the value of such consideration as determined in good faith by the Board of
Directors of the Company.
(C) Shares of Common Stock
issuable by way of dividend or other distribution on any stock of the Company
shall be deemed to have been issued immediately after the opening of business on
the day following the record date for the determination of shareholders entitled
to receive such dividend or other distribution and shall be deemed to have been
issued without consideration.
(D) The reclassification of
securities of the Company other than shares of Common Stock into securities
including shares of Common Stock shall be deemed to involve the issuance of such
shares of Common Stock for a consideration other than cash immediately prior to
the close of business on the date fixed for the determination of security
holders entitled to receive such shares, and the value of the consideration
allocable to such shares of Common Stock shall be determined as provided in
subsection (B) of this Section 8(a).
(E) The number of shares of
Common Stock at any one time outstanding shall be deemed to include the
aggregate maximum number of shares issuable (subject to readjustment upon the
actual issuance thereof) upon the exercise of options, rights or warrants and
upon the conversion or exchange of convertible or exchangeable securities.
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(ii) Upon each adjustment of the
Purchase Price pursuant to this Section 8, the number of shares of Common Stock
purchasable upon the exercise of each Warrant shall be the number derived by
multiplying the number of shares of Common Stock purchasable immediately prior
to such adjustment by the Purchase Price in effect prior to such adjustment and
dividing the product so obtained by the applicable adjusted Purchase Price.
(b) Except as hereinafter provided, in case
the Company shall at any time after the date hereof issue options, rights or
warrants to subscribe for shares of Common Stock (whether as part of a package
of securities such as units, or otherwise, herein "Units"), or issue any
securities convertible into or exchangeable for shares of Common Stock, for a
consideration per share (determined as provided in Section 8(a) and as provided
below) less than the Purchase Price in effect immediately prior to the earlier
of the issuance of such options, rights or warrants, or such convertible or
exchangeable securities or the record date therefor, or without consideration
(including the issuance of any such securities by way of dividend or other
distribution), the Purchase Price for the Warrants (whether or not the same
shall be issued and outstanding) in effect immediately prior to the issuance of
such options, Units, rights or warrants, or other such convertible or
exchangeable securities, as the case may be, shall be reduced to a price
determined by making the computation in accordance with the provisions of
Section 8(a) hereof, provided that:
(A) The aggregate maximum number of
shares of Common Stock, as the case may be, issuable or that may become issuable
under such options, rights, Units or warrants (assuming exercise in full even if
not then currently exercisable or currently exercisable to full) shall be deemed
to be issued and outstanding at the time such options, rights, Units, or
warrants were issued, for a consideration equal to the minimum purchase or
exercise price per share provided for in such options, rights or warrants at the
time of issuance, plus the consideration, if any, received by the Company upon
the issuance of such options, rights, Units or warrants (without deduction for
expenses incurred or amounts paid to any underwriter by the Company in
connection with such issuance); provided, however, that upon the expiration or
other termination of such options, rights or warrants, if any thereof shall not
have been exercised, the number of shares of Common Stock deemed to be issued
and outstanding pursuant to this subsection (A) (and for the purposes of
subsection (E) of Section 8(a) hereof) shall be reduced by the number of shares
as to which options, warrants and/or rights outstanding, and the Purchase Price
then in effect shall forthwith be readjusted and thereafter be the price that it
would have been had adjustment been made on the basis of the issuance only of
the shares actually issued plus the shares remaining issuable upon the exercise
of those options, rights or warrants as to which the exercise rights shall not
have expired or terminated unexercised.
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(B) The aggregate maximum number of
shares of Common Stock issuable or that may become issuable upon conversion or
exchange of any convertible or exchangeable securities (assuming conversion or
exchange in full even if not then currently convertible or exchangeable in full)
shall be deemed to be issued and outstanding at the time of issuance of such
securities, for a consideration equal to the consideration received by the
Company upon the issuance of such securities (without deduction for expenses
incurred or amounts paid to any underwriter in connection with such issuance),
plus the minimum consideration, if any, receivable by the Company upon the
conversion or exchange thereof; provided, however, that upon the termination of
the right to convert to or exchange such convertible or exchangeable securities
(whether by reason or redemption or otherwise), the number of shares of Common
Stock deemed to be issued and outstanding pursuant to this subsection (B) (and
for the purposes of subsection (E) of Section 8(a) hereof) shall be reduced by
the number of shares as to which the conversion or exchange rights shall have
expired or terminated unexercised, and such number of shares shall no longer be
deemed to be issued only of the shares actually issued plus the shares remaining
issuable upon conversion or exchange rights shall not have expired or terminated
unexercised.
(C) If any change shall occur in the
price per share provided for in any of the options, rights or warrants referred
to in subsection (A) of this Section 8(b), or in the price per share or ratio at
which the securities referred to in subsection (A) of this Section 8(b) are
convertible or exchangeable (in either case, other than changes in such prices
or ratios arising pursuant to antidilution adjustments in such options, rights,
Units, warrants or convertible or exchangeable securities or the instruments
pursuant to which they were issued, provided that such options, rights,
warrants, convertible or exchangeable securities or instruments pursuant to
which they were issued do not contain antidilution provisions any more favorable
to the holder thereof than those contained herein) such options, rights, Units,
or warrants or conversion or exchange rights, as the case may be, to the extent
not theretofore exercised, shall be deemed to have expired or terminated on the
date when such price change became effective in respect of shares not
theretofore issued pursuant to the exercise or conversion or exchange thereof,
and the Company shall be deemed to have issued upon such date new options,
rights, Units or warrants or convertible or exchangeable securities.
(c) In case of any reclassification or
change of outstanding shares of Common Stock issuable upon exercise of the
Warrants (other than a change in par value, or from par value to no par value,
or from no par value to par value or as a result of subdivision or combination),
or in case of any consolidation or merger of the Company with or into another
corporation (other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification or change of the
then outstanding shares of Common Stock or other capital stock issuable upon
exercise of the Warrants (other than a change in par value or from par value or
to no par value, or from no par value to par value or as a result of subdivision
or combination)) or in case of any sale or conveyance to another corporation of
the property of the Company as an entirety or substantially as an entirety,
then, as a condition of such reclassification, change, consolidation, merger,
sale or conveyance, the Company, or such successor or purchasing corporation, as
the case may be, shall make lawful and adequate provision whereby the Registered
Holder of each Warrant shall have the right thereafter to receive on exercise of
such Warrant the kind and amount of securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of securities issuable upon exercise of such Warrant immediately
prior to such reclassification, change, consolidation, merger, sale or
conveyance. Such provisions shall include provision for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Sections 8(a) and (b). The above provisions of this Section 8(c) shall similarly
apply to successive reclassification and changes of shares of Common Stock and
to successive consolidations, mergers, sales or conveyances.
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(d) Irrespective of any adjustments or
changes in the Purchase Price or the number of shares of Common Stock
purchasable upon exercise of the Warrants, the Warrant Certificates theretofore
and thereafter issued shall, unless the Company shall exercise its option to
issue new Warrant Certificates pursuant to Section 2(e) hereof, continue to
express the Purchase Price per share and the number of shares purchasable
thereunder as the Purchase Price per share and the number of shares purchasable
thereunder were expressed in the Warrant Certificates when the same were
originally issued.
(e) After each adjustment of the Purchase
Price pursuant to this Section 8, the Company will promptly prepare a
certificate signed by the Chairman or President, and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company
setting forth: (i) the Purchase price as so adjusted, (ii) the number of shares
of Common Stock purchasable upon exercise of each Warrant, after such
adjustment, and (ii) a brief statement of the facts accounting for such
adjustment. The Company will cause a brief summary thereof to be sent by
ordinary first class mail to each Registered Holder at his last address as it
shall appear on the books of the Company. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect the validity thereof
except as to the holder to whom the Company failed to mail such notice, or
except as to the holder whose notice was defective. The affidavit of the
Secretary or an Assistant Secretary of the Company that such notice has been
mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
(f) No adjustment of the Purchase Price or
in the number of shares of Common Stock issuable upon exercise of the Warrants
shall be made as a result of or in connection with (A) the issuance or sale of
shares of Common Stock pursuant to options, warrants and convertible or
exchangeable securities outstanding or in effect or provided for on the date
hereof, (B) the issuance or sale of shares of Common Stock upon the exercise of
options referred to in clause (A) above, (C) the issuance or sale of shares of
Common Stock if the amount of said adjustment shall be less than $.05, provided,
however, that in such case, any adjustment that would otherwise be required then
to be made shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment that shall amount, together with
any adjustment so carried forward, to at least $.05. In addition, Registered
Holders shall not be entitled to cash dividends paid by the Company prior to the
exercise of any Warrant or Warrants held by them.
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SECTION 9. Modification of Agreement. This Agreement
may not be modified, supplemented or altered in any respect except with the
consent in writing of the Registered Holders representing not less than 51% of
the Warrants of which this Warrant is a part and the Company; provided, further,
that no change in the number or nature of the securities purchasable upon the
exercise of any Warrant, or the Purchase Price therefor shall be made without
the consent in writing of the Registered Holder of affected Warrant, other than
such changes as are specifically prescribed by this Agreement as originally
executed.
SECTION 10. Notices. All notices, requests, consents
and other communications hereunder shall be in writing and shall be deemed to
have been made when delivered or mailed first-class postage pre-paid, or
delivered to a telegraph office for transmission if the Registered Holder of a
Warrant Certificate, at the address of such holder as shown on the registry
books maintained by the Company; if to the Company at 0000 Xxxxx Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, or at such
other address as may have been furnished to the Registered Holder in writing by
the Company.
SECTION 11. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania without giving effect to conflicts of laws.
SECTION 12. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the Company and the holders from time
to time of Warrant Certificates or any of them. Except as hereinafter stated,
nothing in this Agreement is intended or shall be construed to confer upon any
other person any right, remedy or claim or to impose upon any other person any
duty, liability or obligation.
SECTION 13. Counterparts. This Agreement may be
executed in one or more counterparts, which taken together shall constitute a
single document.
SECTION 14. Legend. The Warrants and the shares of
Common Stock issuable upon exercise of the Warrants have not been registered
under the Act. Upon exercise, in part or in whole, of the Warrants, certificates
representing the shares of Common Stock underlying the Warrants and any of the
other securities issuable upon exercise of the Warrants (collectively, the
"Warrant Securities") shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED ("THE ACT"), OR ANY STATE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR, UNLESS, IN THE OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER, SUCH OFFER, SALE, OR TRANSFER IS EXEMPT FROM
REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE
ACT AND SUCH LAWS.
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SECTION 15. Registration Rights. The Company and the
Registered Holder and its permitted transferees acknowledge and agree that this
Warrant and the shares of Common Stock underlying this Warrant are subject to a
Registration Rights Agreement between the Registered Holder and the Company
dated the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the first date above written.
ROM TECH, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
---------------------------------------
Signature
---------------------------------------
Name
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST
THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS,
WHICH, IN THE OPINION OF COUNSEL, I N FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER, IS AVAILABLE.
NO. _____ VOID AFTER November 15, 2001
WARRANT CERTIFICATE TO PURCHASE _______ SHARES OF COMMON STOCK
of
ROM TECH, INC.
THIS CERTIFIES THAT, FOR VALUE RECEIVED
_______________________________ or registered assigns (the "Registered Holder")
are the owners of the number of Common Stock Purchase Warrants (the "Warrants")
specified above. Each Warrant initially entitles the Registered Holder to
purchase, subject to the terms and conditions set forth in this Certificate and
the Warrant Agreement (as hereinafter defined), one fully paid and nonassessable
share of Common Stock, without par value, of Rom Tech, Inc., a Pennsylvania
corporation (the "Company"), at any time beginning on May 15, 1997, and prior to
the Expiration Date (as hereinafter defined) upon the presentation and surrender
of this Warrant Certificate with the Subscription Form on the reverse hereof
duly executed, at the corporate office of the Company, accompanied by payment of
$6.25, subject to adjustment (the "Purchase Price"), in lawful money of the
United States of America in cash or by check made payable to the Company.
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This Warrant Certificate and each Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the Warrant Agreement (the "Warrant Agreement"), dated
as of November 15, 1996, by and between the Company and the holder thereof.
In the event of certain contingencies provided for in the
Warrant Agreement, the Purchase Price and the number of shares of Common Stock
subject to purchase upon the exercise of each Warrant represented hereby are
subject to modification or adjustment.
Each Warrant represented hereby is exercisable at the option
of the Registered Holder, but no fractional interests will be issued. In the
case of the exercise of less than all the Warrants represented hereby, the
Company shall cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificate or Warrant Certificates of
like tenor for the balance of such Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (Eastern
Standard Time) on November 15, 2001. If each such date shall in the Commonwealth
of Pennsylvania be a holiday or a day on which the banks are authorized to
close, then the Expiration Date shall mean 5:00 p.m. (Eastern Standard Time) the
next following day which in the Commonwealth of Pennsylvania is not a holiday or
a day on which banks are authorized to close.
This Warrant shall not be exercisable by a Registered Holder
in any state where such exercise would be unlawful.
The Warrant Certificate is exchangeable, upon the surrender
hereof by the Registered Holder at the corporate office of the Company, for a
new Warrant Certificate or Warrant Certificates of like tenor representing an
equal aggregate number of Warrants, each of such new Warrant Certificates to
represent such number of Warrants as shall be designated by such Registered
Holder at the time of such surrender. Upon due presentment and payment of any
tax or other charge imposed in connection therewith or incident thereto, for
registration of transfer of this Warrant Certificate at such office, a new
Warrant Certificate representing an equal aggregate number of Warrants will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
15
Prior to due presentment for registration of transfer hereof,
the Company may deem and treat the Registered Holder as the absolute owner
hereof and of each Warrant represented hereby (notwithstanding any notations of
ownership or writing hereon made by anyone other than a duly authorized officer
of the Company) for all purposes and shall not be affected by any notice to the
contrary, except as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed as of the date hereof.
Dated: November 15, 1996
ROM TECH, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
16
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrant
The undersigned Registered Holder hereby irrevocably
elects to exercise Warrants represented by this Warrant Certificate, and to
purchase the securities issuable upon the exercise of such Warrants, and
requests that certificates for such securities shall be issued in name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
(please print or type name and address)
and be delivered to
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Warrant Certificate for the
balance of such Warrants be registered in the name of, and delivered to, the
Registered Holder at the address stated below.
Dated:
------------------- ------------------------------
Signature
--------------------------------
Print Name
--------------------------------
Address
--------------------------------
Social Security or Taxpayer
Identification Number
--------------------------------
Signature Guaranteed
ASSIGNMENT
17
To Be Executed by the Registered Holder
In Order to Assign Warrants
FOR VALUE RECEIVED, , hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
(please print or type name and address)
________________________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitutes and appoints Attorney to
transfer this Warrant Certificate on the books of the Company, with full power
of substitution in the premises.
Dated: x
---------------------- -----------------------------
Signature Guaranteed
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST
CORRESPOND TO THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATSOEVER AND MUST BE GUARANTEED BY A COMMERCIAL BANK OR
TRUST COMPANY OR A MEMBER FIRM OF THE AMERICAN STOCK EXCHANGE, NEW YORK
STOCK EXCHANGE, PACIFIC STOCK EXCHANGE, MIDWEST STOCK EXCHANGE OR
BOSTON STOCK EXCHANGE.
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