Exhibit 1.3
AMERICAN HOME MORTGAGE HOLDINGS, INC.
FORM OF WARRANT AGREEMENT
PREFERRED STOCK
Dated as of ______________
Exhibit 1.2
FORM OF WARRANT AGREEMENT FOR PREFERRED STOCK
This Agreement is made as of ______________ between American
Home Mortgage Holdings, Inc., a Delaware corporation (the "COMPANY"), and [ ],
(the "HOLDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company deems it advisable to issue Holder
warrants (the "WARRANTS") entitling the Holder to purchase an aggregate of [ ]
shares of Preferred Stock. The shares of Preferred Stock issued upon exercise of
the Warrants are referred to as the "WARRANT SHARES".
WHEREAS, the Company desires to enter into this Agreement to
set forth the terms and conditions of the Warrants and the rights of the holders
thereof.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION, EXPIRATION AND TRANSFER OF WARRANT CERTIFICATES
Section 1.01 Form of Warrant Certificates. The Warrants shall
be evidenced by certificates in temporary or definitive fully registered form
(the "WARRANT CERTIFICATES") substantially in the form of Exhibit A and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any securities exchange, or to conform to usage, or as consistently herewith may
be determined by the officers executing such Warrant Certificates as evidenced
by their execution of the Warrant Certificates. Each Warrant Certificate shall
evidence the right, subject to the provisions of this Agreement and of the
Warrant Certificate, to purchase the number of shares of Preferred Stock stated
therein, adjusted as provided for in Article III hereof, upon payment of the
Exercise Price (as defined in Section 2.01).
Section 1.02 Execution of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be dated as of the date of signature thereof
by the Company either upon initial issuance or upon exchange, substitution or
transfer, shall be signed manually by, or bear the facsimile signature of, the
Chairman of the Board or the President or a Treasurer or a Vice President of the
Company, shall have the Company's seal or a facsimile thereof affixed or
imprinted thereon and shall be attested by the manual or facsimile signature of
the Secretary or an Assistant Secretary of the Company. In case any officer of
the Company whose manual or facsimile signature has been placed upon any Warrant
Certificate shall have ceased to be such before such Warrant Certificate is
issued, it may be issued with the same effect as if such officer had not ceased
to be such at the date of issuance. Any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement any
such person was not such an officer.
Section 1.03 Issuance, Delivery and Registration of Warrant
Certificates. The Company shall issue and deliver, at the closing of the sale of
the Initial Shares to the Underwriters as provided in the Underwriting
Agreement, to the Representative or its designees, a Warrant Certificate
representing the Warrants, in substantially the form of Exhibit A. Additionally,
the Company shall sign and deliver Warrant Certificates upon exchange, transfer
or substitution for one or more previously signed Warrant Certificates as
hereinafter provided. The Company shall maintain books for the registration of
transfer and registration of Warrant Certificates (the "WARRANT REGISTER").
Section 1.04 Transfer and Exchange of Warrant Certificates.
The Company, from time to time, shall register the transfer of any outstanding
Warrant Certificates in the Warrant Register upon surrender at the principal
office of the Company of Warrant Certificates accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company, duly
executed by the Warrantholder or the Warrantholder's attorney duly authorized in
writing, and evidence, satisfactory to the Company, of compliance with the
provisions of this Section 1.04. Upon any such registration of transfer, a new
Warrant Certificate shall be signed by the Company and issued to the transferee
and the surrendered Warrant Certificate shall be canceled by the Company.
Warrant Certificates may be exchanged at the option of the holder thereof, upon
surrender, properly endorsed, at the principal office of the Company, with
written instructions, for other Warrant Certificates signed by the Company
entitling the registered holder thereof, subject to the provisions thereof and
of this Agreement, to purchase in the aggregate a like number of shares of
Preferred Stock as the Warrant Certificate so surrendered. The Company may
require the payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any such exchange or transfer.
ARTICLE II
SHARES OF PREFERRED STOCK ISSUABLE, EXERCISE PRICE, EXPIRATION
DATE AND EXERCISE OF WARRANTS
Section 2.01 Warrant Shares Issuable; Exercise Price;
Expiration Date. Each Warrant Certificate shall entitle the registered holder
thereof, subject to the provisions thereof and of this Agreement, to purchase
from the Company at any time from [ ], the effective date (the "EFFECTIVE DATE")
of the registration statement (No. 333- ) filed by the Company on Form S-3 under
the Securities Act of 1933, as amended (the "SECURITIES ACT") to the close of
business on the [ ] anniversary of such date (or, if such date is not a Business
Day (as defined below), the first following Business Day) the number of shares
of Preferred Stock stated therein, adjusted as provided in Article III, upon
payment of $_____ per share, adjusted as provided in Article III. Such price, as
in effect from time to time as provided in Article III, is referred to as the
"Exercise Price". Each share of Preferred Stock issuable upon exercise of a
Warrant is referred to as a "Warrant Share". Each Warrant not exercised during
the period set forth above shall become void, and all rights thereunder and all
rights in respect thereof under this Agreement shall cease, at the end of such
period. For purposes of this Agreement, the term "Business Day" means any day of
the week other than a Saturday, Sunday or a day which in the City of New York or
in the city in which the principal office of the Company is located shall be a
legal holiday or a day on which banking institutions are authorized or required
by law to close.
Section 2.02 Exercise of Warrants. (a) Warrants may be
exercised by surrendering the Warrant Certificate evidencing such Warrants at
the principal office of the Company, with the Election to Exercise form set
forth on the reverse of the Warrant Certificate duly completed and signed, and
by paying in full to the Company (i) in cash, or (ii) by certified or official
bank check, or (iii) by any combination of the foregoing, the Exercise Price for
each Warrant Share as to which Warrants are then being exercised and any
applicable taxes, other than taxes that the Company is required to pay
hereunder. A Warrantholder may exercise such holder's Warrant for the full
number of Warrant Shares issuable upon exercise thereof or any lesser number of
whole Warrant Shares.
(b) As soon as practicable after the exercise of any Warrants
and payment by the Warrantholder of the full Exercise Price for the Warrant
Shares as to which such Warrants are then being exercised, the Company shall
requisition from the transfer agent of the shares of Preferred Stock and deliver
to or upon the order of such Warrantholder a certificate or certificates for the
number of full Warrant Shares to which such Warrantholder is entitled,
registered in the name of such Warrantholder or as such Warrantholder shall
direct. Fractional Warrant Shares that otherwise would be issuable in respect of
such exercise shall be paid in cash as provided in Section 2.03, and the number
of Warrant Shares issuable to such Warrantholder shall be rounded down to the
next nearest whole number. If such Warrant Certificate shall not have been
exercised in full, the Company will issue to such Warrantholder a new Warrant
Certificate exercisable for the number of shares of Preferred Stock as to which
such Warrant shall not have been exercised. The Company will cancel all Warrants
so surrendered.
(c) Each person in whose name any such certificate for Warrant
Shares is issued shall for all purposes be deemed to have become the holder of
record of such Warrant Shares on the date on which the Warrant Certificate was
surrendered to the Company and payment of the Exercise Price and any applicable
taxes was made to the Company, irrespective of the date of delivery of such
certificate for Warrant Shares.
(d) All Warrant Shares will be duly authorized, validly
issued, fully paid and nonassessable. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrant Shares. The Company will
not be required, however, to pay any tax imposed in connection with any transfer
involved in the issue of the Warrant Shares in a name other than that of the
Warrantholder. In such case, the Company will not be required to issue any
certificate for Warrant Shares until the person or persons requesting the same
shall have paid to the Company the amount of any such tax or shall have
established to the Company's satisfaction that the tax has been paid or that no
tax is due.
Section 2.03 No Fractional Shares to Be Issued. If more than
one Warrant Certificate shall be surrendered for exercise at one time by the
same holder, the number of full Warrant Shares which shall be issuable upon
exercise thereof shall be computed on the basis of the aggregate number of
Warrants so surrendered. The Warrantholders, by their acceptance of the Warrant
Certificates, expressly waive their right to receive any fraction of a Warrant
Share or a share certificate representing a fraction of a Warrant Share. In lieu
thereof, the Company will purchase such fractional interest for an amount in
cash equal to the current market value of such fractional interest, as
reasonably determined by the Board of Directors of the Company.
Section 2.04 Cancellation of Warrants. The Company shall
cancel any Warrant Certificate delivered to it for exercise, in whole or in
part, or delivered to it for transfer, exchange or substitution, and no Warrant
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall destroy canceled
Warrant Certificates. If the Company shall acquire any of the Warrants, such
acquisition shall not operate as a redemption or termination of the right
represented by such Warrants unless and until the Warrant Certificates
evidencing such Warrants are surrendered to the Company for cancellation.
ARTICLE III
ADJUSTMENT OF EXERCISE PRICE; MERGER, ACQUISITION, ETC.;
RESERVATION OF SHARES OF PREFERRED STOCK; PAYMENT OF TAXES
Section 3.01 Adjustment of Exercise Price and Number of
Warrant Shares. The Exercise Price shall be subject to adjustment from time to
time as provided in this Article III. After each adjustment of the Exercise
Price, each Warrantholder shall at any time thereafter be entitled to purchase,
at the Exercise Price resulting from such adjustment, the number of Warrant
Shares obtained by multiplying the Exercise Price in effect immediately prior to
such adjustment by the number of Warrant Shares purchasable pursuant to the
provisions of such Warrant immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment.
Section 3.02 Stock Dividends. If the Company shall declare a
dividend or any other distribution upon any capital stock which is payable in
shares of Preferred Stock or securities convertible into shares of Preferred
Stock, the Exercise Price shall be reduced to the quotient obtained by dividing
(i) the number of shares of Preferred Stock outstanding immediately prior to
such declaration multiplied by the then effective Exercise Price by (ii) the
total number of shares of Preferred Stock outstanding immediately after such
declaration. All shares of Preferred Stock and all convertible securities
issuable in payment of any dividend or other distribution upon the capital stock
of the Company shall be deemed to have been issued or sold without
consideration.
Section 3.03 Stock Splits and Reverse Stock Splits. If the
Company shall subdivide its outstanding shares of Preferred Stock into a greater
number of shares, the Exercise Price shall be proportionately reduced and the
number of Warrant Shares issuable upon exercise of each Warrant shall be
proportionately increased. If the Company shall combine the outstanding shares
of Preferred Stock into a smaller number of shares, the Exercise Price shall be
proportionately increased and the number of Warrant Shares issuable upon
exercise of each Warrant shall be proportionately decreased.
Section 3.04 Reorganizations and Asset Sales. If any capital
reorganization or reclassification of the Company, or any consolidation or
merger of the Company with another corporation, or the sale of all or
substantially all of the assets of the Company shall be effected in such a way
that the holders of the shares of Preferred Stock shall be entitled to receive
securities or assets with respect to or in exchange for shares of Preferred
Stock, adequate provision shall be made, prior to and as a condition of such
reorganization, reclassification, consolidation, merger or sale, whereby each
Warrantholder shall have the right to receive, upon the terms and conditions
specified herein and in lieu of the Warrant Shares otherwise receivable upon the
exercise of such Warrants, such securities or assets as may be issued or payable
with respect to or in exchange for the number of outstanding shares of Preferred
Stock equal to the number of Warrant Shares otherwise receivable had such
reorganization, reclassification, consolidation, merger or sale not taken place.
In any such case appropriate provision shall be made with respect to the rights
and interests of such Warrantholder so that the provisions of this Agreement
shall be applicable with respect to any securities or assets thereafter
deliverable upon exercise of the Warrants. The Company shall not effect any such
consolidation, merger or sale unless prior to or simultaneously with the
consummation thereof the survivor or successor corporation resulting from such
consolidation or merger or the purchaser of such assets shall assume by written
instrument delivered to each holder of Warrants the obligation to deliver to
such holder such securities or assets as such holder may be entitled to receive,
subject to payment of the Exercise Price. Notwithstanding any other provision
contained herein, the Company may, upon notice and subject to the provisions of
Section 4.03 hereof, terminate the Warrants in the event of a consolidation or
merger described in this Section 3.04.
Section 3.05 Covenant to Reserve Shares for Issuance on
Exercise. (a) The Company will cause an appropriate number of shares of
Preferred Stock to be duly and validly authorized and reserved and will keep
available out of its authorized shares of Preferred Stock, solely for the
purpose of issue upon exercise of Warrants as herein provided, the full number
of shares of Preferred Stock, if any, then issuable if all outstanding Warrants
then exercisable were to be exercised. The Company covenants that all shares of
Preferred Stock that shall be so issuable shall be duly and validly issued and,
upon payment of the Exercise Price, fully paid and non-assessable. If at any
time the number of authorized but unissued shares of Preferred Stock shall not
be sufficient for such purpose, the Company will take such action as, in the
opinion of its counsel, may be necessary to increase its authorized but unissued
Preferred Stock to such number of shares as shall be sufficient for such
purpose. Prior to the issuance of any Warrant Shares, the Company shall secure
the listing of such Warrant Shares upon any securities exchange upon which
shares of Preferred Stock are then listed, if any.
(b) The Company hereby authorizes and directs its current and
future transfer agents for the shares of Preferred Stock at all times to reserve
such number of authorized shares as shall be requisite for such purpose. The
Company will supply such transfer agents with duly executed stock certificates
for such purposes. Promptly after the date of expiration of the Warrants, no
shares shall be reserved in respect of such Warrants.
Section 3.06 Statements on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article III, and Warrant Certificates issued after such adjustment may state the
same Exercise Price and the same number of shares of Preferred Stock as are
stated in the Warrant Certificates initially issued pursuant to this Agreement.
The Company, however, may at any time in its sole discretion (which shall be
conclusive) make any change in the form of Warrant Certificate that it may deem
appropriate and that does not affect the substance thereof; and any Warrant
Certificates thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
Section 3.07 Notice of Change in Securities Issuable, etc.
Whenever the securities issuable or deliverable in exchange for Warrants are
changed pursuant to this Article III, the Company promptly shall mail to each
Warrantholder a notice, executed by its chief financial officer, setting forth
in reasonable detail the facts requiring the change and specifying the effective
date of such change and the number or amount of, and describing the shares or
other securities issuable or deliverable in exchange for, each Warrant as so
changed. Failure to publish such notice, or any defect in such notice, shall not
affect the legality or validity of any such change.
Section 3.08 References to Preferred Stock. Unless the context
otherwise indicates, all references to Preferred Stock in this Agreement and in
the Warrant Certificates, in the event of a change under this Article III, shall
be deemed to refer also to any other securities issuable or deliverable in
exchange for Warrants pursuant to such change.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS
Section 4.01 No Rights as Shareholders. Nothing contained in
this Agreement or in any Warrant Certificate shall be construed as conferring on
any Warrantholder any rights whatsoever as a shareholder of the Company,
including the right to vote at, or to receive notice of, any meeting of
shareholders of the Company; nor shall the consent of any such holder be
required with respect to any action or proceeding of the Company; nor shall any
such holder, by reason of the ownership or possession of a Warrant or the
Warrant Certificate representing the same, either at, before or after exercising
such Warrant, have any right to receive any cash dividends, stock dividends,
allotments or rights, or other distributions (except as specifically provided
herein), paid, allotted or distributed or distributable to the shareholders of
the Company prior to the date of the exercise of such Warrant, nor shall such
holder have any right not expressly conferred by such holder's Warrant or
Warrant Certificate.
Section 4.02 Mutilated or Missing Warrant Certificates. If any
Warrant Certificate is lost, stolen, mutilated or destroyed, the Company in its
discretion may issue, in exchange and substitution for and upon cancellation of
the mutilated Warrant Certificate, or in lieu of and substitution for the
Warrant Certificate lost, stolen or destroyed, upon receipt of a proper
affidavit or other evidence satisfactory to the Company (and surrender of any
mutilated Warrant Certificate) and bond of indemnity in form and amount and with
corporate surety satisfactory to the Company in each instance protecting the
Company, a new Warrant Certificate of like tenor and exercisable for an
equivalent number of shares of Preferred Stock as the Warrant Certificate so
lost, stolen, mutilated or destroyed. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant Certificate at any time
shall be enforceable by anyone. An applicant for such a substitute Warrant
Certificate also shall comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe. All Warrant
Certificates shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement of lost,
stolen, mutilated or destroyed Warrant Certificates, and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement of negotiable
instruments or other securities without their surrender.
Section 4.03 Liquidation, Merger, etc.; Notice to
Warrantholders. If: (a) the Company shall authorize the issuance to all holders
of Preferred Stock of rights or warrants to subscribe for or purchase capital
stock of the Company or of any other subscription rights or warrants; or
(b) the Company shall authorize the distribution to all
holders of Preferred Stock of evidences of its indebtedness or assets (other
than cash dividends or cash distributions payable out of current earnings,
retained earnings or earned surplus or dividends payable in Preferred Stock); or
(c) there shall be proposed any consolidation or merger to
which the Company is to be a party and for which approval of the holders of
Preferred Stock is required, or the conveyance or transfer of the properties and
assets of the Company substantially as an entirety, or such other merger or
transaction described in Section 3.04 hereof; or
(d) there shall be proposed the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
the Company shall cause to be given to each Warrantholder, by first-class mail,
postage prepaid, a written notice stating (i) the date as of which the holders
of record of shares of Preferred Stock to be entitled to receive any such
rights, warrants or distribution are to be determined or (ii) the date on which
any consolidation, merger, conveyance, transfer, reorganization,
reclassification, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of record of
shares of Preferred Stock shall be entitled to exchange the shares for
securities or other property, if any, deliverable upon the consolidation,
merger, conveyance, transfer, reorganization, reclassification, dissolution,
liquidation or winding up. Such notice shall be filed and mailed in the case of
a notice pursuant to (i) above at least ten calendar days before the record date
specified and in the case of a notice pursuant to clause (ii) above at least 20
calendar days before the earlier of the dates specified. From the time notice is
required to be given pursuant to this Section 4.03, the holders of Warrants
shall be entitled to exercise such Warrants regardless of the provisions of
Section 2.01. Unless assumed by the survivor or successor corporation resulting
from any transaction described in Section 4.03(c) hereof, the Warrants shall
expire and be of no further force or effect upon consummation of such
transaction.
ARTICLE V
MISCELLANEOUS
Section 5.01 Registration of Warrant Shares. (a) If, at any
time prior to the close of business on the [ ] anniversary of the Effective
Date, there is no registration statement in effect for the Warrant Shares, the
Company, upon the written request of holders of Warrants and of Warrant Shares
representing an aggregate of 50% or more of the Warrant Shares, will file with
the Securities and Exchange Commission under the Securities Act, such
registration statements and amendments thereto and such other filings as may be
required to permit the public offering and sale of such Warrant Shares in
compliance with the Securities Act. The Company shall be required to register
Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) The Company will permit, subject to the last sentence of
this Section 5.01(b), any Warrant Shares to be included, at the request of the
holders of such Warrant Shares, in any registration of securities of the Company
(other than shares of Preferred Stock for an employees' option or stock purchase
plan or shares registered on Form S-4 in connection with an arms-length merger
transaction) under a registration statement filed by the Company under the
Securities Act at any time prior to the close of business on the [ ] anniversary
of the Effective Date. The Company shall provide written notice to the record
holders of all Warrants and Warrant Shares at least 30 days prior to the filing
of any such registration statement sent by registered mail to the address of
record of each such holder. If the offering pursuant to any registration
statement described in this Section 5.01(b) is made through underwriters and the
managing underwriter of such offering shall advise the Company in writing that,
in its opinion, the distribution of the number of Warrant Shares requested to be
included in the registration concurrently with the securities being registered
by the Company would materially and adversely affect the distribution of such
securities by the Company, then all selling security holders (but not the
Company) shall reduce the amount of securities each intended to distribute
through such offering on a pro rata basis.
(c) Each such holder shall pay the underwriting discount
attributable to such holder's Warrant Shares, any transfer tax payable with
respect thereto and the fees and expenses of such holder's counsel. All other
expenses of registration under Section 5.01(a) or Section 5.01(b) shall be borne
by the Company.
(d) The Company will agree to indemnify the holders of Warrant
Shares that are included in a registration statement or amendments to existing
registration statements pursuant to this Section 5.01 substantially to the same
extent as the Company has agreed to indemnify the Underwriters in the
Underwriting Agreement and such holders will agree to indemnify the Company and
any underwriter with respect to information furnished by them in writing to the
Company for inclusion therein substantially to the same extent as the
Underwriters have indemnified the Company in the Underwriting Agreement.
(e) If the offering pursuant to any registration statement
provided for herein is made through underwriters, the Company will enter into an
underwriting agreement in customary form and indemnify, in customary form, such
underwriters and each person who controls any such underwriter within the
meaning of the Securities Act. Such underwriting agreement shall contain
provisions for the indemnification of the Company in customary form, provided
that the aggregate amount that may be recovered from any such underwriter
pursuant to such provisions shall be limited to the total price at which the
Warrant Shares purchased by any such underwriter under such underwriting
agreement were offered to the public.
Section 5.02 Enforcement of Warrant Rights. All rights of
action are vested in the respective Warrantholders. Any holder of any Warrant,
in his own behalf and for his own benefit, may enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise his Warrant for the purchase
of the number of Warrant Shares issuable or deliverable in exchange therefor, in
the manner provided in the Warrant and in this Agreement.
Section 5.03 Negotiability and Ownership. The Warrants issued
hereunder shall not, for a period of [ ] following the Effective Date, be sold,
transferred, assigned or hypothecated by the holders thereof except (a) to
persons who are officers or partners of [ ] and members of the selling group
and/or their officers and partners or (b) in the case of an individual, pursuant
to such individual's last will and testament or the laws of descent and
distribution and, in any case, only in compliance with the Securities Act. For
the period commencing [ ] after the Effective Date until the expiration of the
Warrants, the Warrants issued hereunder shall not be sold, transferred, assigned
or hypothecated by the holders thereof except (a) to [ ], and any of its
affiliates, or any officers, directors, employees or representatives of the
foregoing or (b) in the case of an individual, pursuant to such individual's
last will and testament or the laws of descent and distribution and, in any
case, only in compliance with the Securities Act.
Section 5.04 Warrant Legend. (a) Each Warrant shall contain a
legend in substantially the following form:
"THIS WARRANT AND THE SHARES OF PREFERRED STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT ARE SUBJECT TO THE CONDITIONS SPECIFIED IN THE
AGREEMENT, DATED [ ], BETWEEN AMERICAN HOME MORTGAGE HOLDINGS, INC. AND [ ] ANY
ATTEMPT TO TRANSFER THIS WARRANT OR ANY SHARE OF PREFERRED STOCK ISSUED UPON
EXERCISE OF THIS WARRANT TO ANY UNAUTHORIZED TRANSFEREE, SHALL BE NULL AND VOID.
NO TRANSFER IN VIOLATION OF SAID AGREEMENT SHALL BE EFFECTIVE. THIS WARRANT MAY
NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE AND CURRENT
REGISTRATION STATEMENT OR POSTEFFECTIVE AMENDMENT THERETO FOR SUCH SHARES UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") OR AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER THE
ACT. THE SHARES OF PREFERRED STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY
NOT BE SOLD OR TRANSFERRED WITHOUT AN EFFECTIVE AND CURRENT REGISTRATION
STATEMENT OR POSTEFFECTIVE AMENDMENT THERETO FOR SUCH SHARES UNDER THE ACT OR AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER THIS ACT."
(b) Each certificate representing Warrant Shares, unless
registered pursuant to Section 5.01, shall contain a legend substantially in the
following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR
TRANSFERRED WITHOUT AN EFFECTIVE AND CURRENT REGISTRATION STATEMENT OR
POSTEFFECTIVE AMENDMENT THERETO FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933
OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER THAT ACT. THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE CONDITIONS SPECIFIED IN THE AGREEMENT, DATED
SEPTEMBER __, 1999, BETWEEN AMERICAN HOME MORTGAGE HOLDINGS, INC. AND [ ] ANY
ATTEMPT TO TRANSFER THE SHARES REPRESENTED BY THIS CERTIFICATE TO ANY
UNAUTHORIZED TRANSFEREE, SHALL BE NULL AND VOID. NO TRANSFER IN VIOLATION OF
SAID AGREEMENT SHALL BE EFFECTIVE."
Section 5.05 Supplements and Amendments. (a) Notwithstanding
the provisions of Section 5.05(b), the Representative, without the consent or
concurrence of the registered holders of the Warrants, may enter into one or
more supplemental agreements or amendments with the Company for the purpose of
evidencing the rights of Warrantholders upon consolidation, merger, sale,
transfer or reclassification pursuant to Section 3.04, making any changes or
corrections in this Agreement that are required to cure any ambiguity, to
correct or supplement any provision contained herein that may be defective or
inconsistent with any other provision herein or any clerical omission or mistake
or manifest error herein contained, or making such other provisions in regard to
matters or questions arising under this Agreement as shall not adversely affect
the interests of the holders of the Warrants or be inconsistent with this
Agreement or any supplemental agreement or amendment.
(b) With the consent of the registered holders of at least a
majority in number of the Warrants at the time outstanding, the Company and the
Representative at any time and from time to time by supplemental agreement or
amendment may add any provisions to or change in any manner or eliminate any of
the provisions of this Agreement or of any supplemental agreement or modify in
any manner the rights and obligations of the Warrantholders and of the Company;
provided, however, that no such supplemental agreement or amendment, without the
consent of the registered holder of each outstanding Warrant affected thereby,
shall:
(i) alter the provisions of this Agreement so as to affect
adversely the terms upon which the Warrants are exercisable or may be
redeemed; or
(ii) reduce the number of Warrants outstanding the consent
of whose holders is required for any such supplemental agreement or
amendment.
Section 5.06 Covenant as to No Investment Company Status. The
Company shall use its best efforts, until the [ ] anniversary of the Effective
Date, to maintain its status that it is not an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940.
Section 5.07 Successors and Assigns. All the covenants and
provisions of this Agreement by or for the benefit of the Company or the
Representative shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 5.08 Notices. Any notice or demand authorized by this
Agreement to be given or made by the holder of any Warrant to or on the Company
shall be sufficiently given or made if sent by mail first-class, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Representative), as follows:
American Home Mortgage Holdings, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx
Attention: Xxxxxxx Xxxxxxx, President
Any notice or demand authorized by this Agreement to be given
or made by the holder of any Warrant or by the Company to or on the
Representative shall be sufficiently given or made if sent by mail first-class,
postage prepaid, addressed (until another address is filed in writing by the
Representative with the Company), as follows:
[**INSERT ADDRESS**]
Any notice or demand authorized by this Agreement to be given
or made to the holder of any Warrants shall be sufficiently given or made if
sent by first-class mail, postage prepaid to the last address of such holder as
it shall appear on the Warrant Register.
Section 5.09 Applicable Law. The validity, interpretation and
performance of this Agreement and of the Warrant Certificate shall be governed
by the law of the State of New York without giving effect to the principles of
conflicts of laws thereof.
Section 5.10 Benefits of this Agreement. Nothing in this
Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the parties hereto and the holders of the
Warrants any right, remedy or claim under or by reason of this Agreement or of
any covenant, condition, stipulation, promise or agreement hereof, and all
covenants, conditions, stipulations, promises and agreements in this Agreement
contained shall be for the sole and exclusive benefit of the parties hereto and
their successors and of the holders of the Warrants.
Section 5.11 Registered Warrantholders. Prior to due
presentment for registration of transfer, the Company may deem and treat the
person in whose name any Warrants are registered in the Warrant Register as the
absolute owner thereof for all purposes whatever (notwithstanding any notation
of ownership or other writing thereon made by anyone other than the Company) and
the Company shall not be affected by any notice to the contrary or be bound to
recognize any equitable or other claim to or interest in any Warrants on the
part of any other person and shall not be liable for any registration of
transfer of Warrants that are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with actual knowledge that a
fiduciary or nominee is committing a breach of trust in requesting such
registration of transfer or with such knowledge of such facts that its
participation therein amounts to bad faith. The terms "Warrantholder" and
"holder of any "Warrants" and all other similar terms used herein shall mean
such person in whose name Warrants are registered in the Warrant Register.
Section 5.12 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times for inspection by any Warrantholder
at the principal office of the Company. The Company may require any such
Warrantholder to submit his Warrant Certificate for inspection by it before
allowing such Warrantholder to inspect a copy of this Agreement.
Section 5.13 Headings. The Article and Section headings herein
are for convenience only and are not a part of this Agreement and shall not
affect the interpretation thereof.
Section 5.14 Counterparts. The Agreement may be executed in
any number of counterparts each of which so executed shall be deemed to be an
original.
[THERE IS NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto under their respective seals as of the day and year first
above written.
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: ________________________________
Name:
Title:
[CORPORATE SEAL]
Attest: ____________________________
Name:
Title:
HOLDER
By: ________________________________
Name:
Title:
[CORPORATE SEAL]
Attest: ____________________________
Name:
Title:
EXHIBIT A
FORM OF WARRANT CERTIFICATE
No. __________ _________ Warrants
WARRANTS TO PURCHASE SHARES OF PREFERRED STOCK
OF AMERICAN HOME MORTGAGE HOLDINGS, INC.
American Home Mortgage Holdings, Inc., a Delaware corporation
(the "COMPANY"), for value received, hereby certifies that or registered
assigns, is the owner of the number of Warrants, set forth above, each of which
represents the right, subject to the terms and conditions hereof and of the
Warrant Agreement hereafter referred to (the "WARRANT AGREEMENT"), to purchase
from the Company at any time, or from time to time, from the [ ] anniversary of
the date of original issuance of the Warrants to the close of business on the [
] anniversary of such date (or, if such date is not a Business Day (as defined
below), the first following Business Day) (the "EXERCISE PERIOD"), the number of
shares of Preferred Stock, par value $.01 per share, of the Company (the
"PREFERRED STOCK") described in the Warrant Agreement (each share of Preferred
Stock issuable upon exercise of a Warrant is referred to as a "WARRANT SHARE").
Subject to the terms and conditions of the Warrant Agreement, the exercise price
per Warrant represented by this Warrant Certificate shall be $____ per share,
adjusted as provided in Article III of the Warrant Agreement, payable in full as
to each Warrant exercised at the time of purchase. The term "UNDERWRITING
AGREEMENT" as used herein refers to the Underwriting Agreement dated [ ] between
the Company and [ ]. The term "EXERCISE PRICE" as used herein refers to the
foregoing price per share in effect at any time.
This Warrant may be exercised in whole or in part at any time
or from time to time during the Exercise Period. The portion of any Warrant not
exercised during the Exercise Period shall become void, and all rights hereunder
and all rights in respect hereof and under the Warrant Agreement shall cease at
the end of the Exercise Period.
Each such purchase of Warrant Shares shall be made, and shall
be deemed effective for the purpose of determining the date of exercise, only
upon surrender hereof to the Company at the principal office of the Company,
with the form of Election to Exercise on the reverse hereof duly filled in and
signed, and upon payment in full to the Company of the Exercise Price (i) in
cash or (ii) by certified or official bank check or (iii) by any combination of
the foregoing, all as provided in the Warrant Agreement and upon compliance with
and subject to the conditions set forth herein and in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of [ ] (the "WARRANT AGREEMENT"), between
the Company and [ ], as representative for the holders, and is subject to the
terms and provisions of the Warrant Agreement, which terms and provisions are
hereby incorporated by reference herein and made a part hereof. Copies of the
Warrant Agreement and of the Underwriting Agreement are available for inspection
by the registered holder at the principal office of the Company.
The Company shall not be required upon the exercise of the
Warrants represented hereby to issue fractions of Warrant Shares or to
distribute share certificates that evidence fractional Warrant Shares. Every
holder of this Warrant Certificate expressly waives its right to receive any
fraction of a Warrant Share or a share certificate representing a fraction of a
Warrant Share. Fractional Warrant Shares that otherwise would be issuable in
respect of such exercise shall be paid in cash as provided in the Warrant
Agreement, and the number of Warrant Shares issuable to such Warrantholder shall
be rounded down to the next nearest whole number. If such Warrant Certificate
shall not have been exercised in full, the Company will issue to such
Warrantholder a new Warrant Certificate exercisable for the number of shares of
Preferred Stock as to which such Warrant shall not have been exercised.
This Warrant Certificate may be exchanged either separately or
in combination with other Warrant Certificates at the principal office of the
Company for new Warrant Certificates representing the same aggregate number of
Warrants as were evidenced by the Warrant Certificate or Warrant Certificates
exchanged, upon surrender of this Warrant Certificate and upon compliance with
and subject to the conditions set forth herein and in the Warrant Agreement.
This Warrant Certificate is transferable (subject to
restrictions set forth in the Warrant Agreement) at the principal office of the
Company by the registered holder hereof in person or by his attorney duly
authorized in writing, upon (i) surrender of this Warrant Certificate and (ii)
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement. Upon any such transfer, a new Warrant Certificate or new
Warrant Certificates of different denominations, representing in the aggregate a
like number of Warrants, will be issued to the transferee. Every holder of
Warrants, by accepting this Warrant Certificate, consents and agrees with the
Company and with every subsequent holder of this Warrant Certificate that until
due presentation for the registration of transfer of this Warrant Certificate on
the Warrant Register maintained by the Company, the Company may deem and treat
the person in whose name this Warrant Certificate is registered as the absolute
and lawful owner for all purposes whatsoever and the Company shall not be
affected by any notice to the contrary.
Nothing contained in the Warrant Agreement or in this Warrant
Certificate shall be construed as conferring on the holder of any Warrants or
his transferee any rights whatsoever as a shareholder of the Company.
The Warrant Agreement and each Warrant Certificate, including
this Warrant Certificate, shall be deemed a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated:
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: ________________________________
Name:
Title:
[CORPORATE SEAL]
Attest: ____________________________
ELECTION TO EXERCISE
(To be executed upon exercise of Warrant)
TO AMERICAN HOME MORTGAGE HOLDINGS, INC.:
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant Certificate for, and to
purchase thereunder, ____________ shares of Preferred Stock, as provided for
therein, and tenders herewith payment of the purchase price in full in the form
of cash or a certified or official bank check (or combination thereof) in the
amount of $_______________________.
Please issue a certificate or certificates for such shares of
Preferred Stock in the name of:
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE:
_______________________________
Name _________________________________
Address ______________________________
Signature ____________________________
Note: The above signature should
correspond exactly with the name on
the face of this Warrant Certificate
or with the name of assignee appearing
in the assignment form below.
Dated: _________________, ______
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, __________________________ hereby sells,
assigns and transfer unto ___________________________ the within Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ______________________ attorney, to
transfer said Warrant Certificate on the books of the within-named Company, with
full power of substitution in the premises.
Dated: ________________, ______
______________________________________
NOTE: The above signature should
correspond exactly with the name on
the face of this Warrant Certificate
