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EXHIBIT 4.1
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WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement") dated as of September 30, 1996
between RailAmerica, Inc., a Delaware corporation (the "Company") and First
London Securities Corporation, a Texas corporation (the "Holder").
WITNESSETH:
WHEREAS, the Holder agreed pursuant to a Placement Agency Agreement (the
"Placement Agreement") with the Company to act as the exclusive agent of the
Company in connection with the private placement of securities for the Company,
as set forth in the Placement Agreement dated September 13, 1996 between the
Holder and the Company attached hereto as Exhibit A; and
WHEREAS, in connection with the execution and delivery of, in
consideration for, and as part of the Holder's compensation in connection with
the Placement Agreement, the Company agreed to issue to the Holder warrants
(the "Warrants") to purchase one hundred twenty-five thousand (125,000) shares
(the "Shares") of common stock, par value $.001 per share (the "Common Stock")
of the Company; and
WHEREAS, the Holder has agreed to execute and deliver to the Company the
Access Letter attached hereto as Exhibit B upon the issuance of the Warrants.
NOW, THEREFORE, in consideration of the premises and the agreements herein
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. Subject to the terms and conditions hereof, the Holder is
hereby granted the right to purchase, at any time from September 30, 1996 until
5:00 P.M., Miami, Florida time, on September 30, 1997 (the "Warrant Exercise
Term"), up to 125,000 shares of Common Stock.
2. Warrant Certificates. The warrant certificate (the "Warrant
Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth as Exhibit C attached hereto with such appropriate
insertions, omissions, substitutions and other variations as required or
permitted by this Agreement.
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3. Exercise of Warrants. The Warrants are exercisable at a price of $4.60
per share, payable in cash or by check to the order of the Company, or any
combination of cash or check, subject to adjustment as provided in Articles 6
and 7 hereof. Subject to the terms and conditions hereof, upon surrender of
the Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter defined)
for the Shares purchased, at the Company's principal offices (presently located
at 000 Xxxxxx Xxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxxxx 33431) the Holder shall be
entitled to receive a certificate or certificates for such shares of Common
Stock so purchased. The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holder hereof, in whole or in
part (but not as to fractional shares of the Common Stock). In the case of the
purchase of less than all the Shares purchasable under any Warrant Certificate,
the Company shall cancel said Warrant Certificate upon the surrender thereof
and shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the Shares purchasable thereunder.
4. Issuance of Certificates. Upon the exercise of the Warrants in
accordance with the terms of this Agreement, the issuance of certificates for
the Shares so purchased shall be made within ten business days thereafter
without charge to the Holder including, without limitation, any tax which may
be payable in respect of the issuance thereof, and such certificates shall
(subject to the provisions of Article 5 hereof) be issued in the name of the
Holder.
The Warrant Certificates and the certificates representing the Shares
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future Chairman or Vice Chairman of the Board of
Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company.
The Warrant Certificates and, upon exercise of the Warrants, in part or in
whole, the certificates representing the Shares shall bear a legend
substantially similar to the following:
"The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended (the "Act"), and may not be offered or sold
except (i) pursuant to an effective registration
statement under the Act, (ii) to the extent
applicable, pursuant to Rule 144 under the Act (or any
similar rule under such Act relating to the
disposition of securities), or (iii) upon the
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delivery by the holder to the Company of an opinion of counsel,
reasonably satisfactory to counsel to the issuer, stating that an
exemption from registration under such Act is available."
5. Restriction on Transfer of Warrants. The Holder of the Warrant
Certificate covenants and agrees that the Warrants are being acquired as an
investment and not with a view to the distribution thereof and that the Holder
will comply with all applicable securities laws, rules and regulations in
connection therewith.
6. Price.
6.1 Initial and Adjusted Purchase Price. The initial purchase price of
each Warrant shall be $4.60 per Share ("Exercise Price"). The adjusted
purchase price shall be the price which shall result from time to time from any
and all adjustments of the initial purchase price in accordance with the
provisions of Article 7 hereof.
6.2 Purchase Price. The term "Exercise Price" herein shall mean the
initial purchase price or the adjusted purchase price, depending upon the
context.
7. Adjustments of Exercise Price and Number of Shares.
7.1 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination. Upon each adjustment of the Exercise
Price pursuant to the provisions of this Section 7.1, the number of Shares
issuable upon the exercise of each Warrant shall be adjusted to the nearest
full Share by multiplying a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of Shares issuable upon
exercise of the Options immediately prior to such adjustment and dividing the
product so obtained by the adjusted Exercise Price.
7.2 Reclassification, Consolidation, Merger, etc. In case of any
reclassification of the outstanding shares of Common Stock (other than a change
in par value to no par value, or from no par value to par value, or as a result
of a subdivision or combination), or in the case of any consolidation of the
Company with, or merger of the Company into, another corporation (excluding a
consolidation or merger in which the Company is the surviving corporation and
which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par
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value, as aforesaid), or in the case of a sale or conveyance to another
corporation of the property of the Company as an entirety, the Holder shall
thereafter have the right to purchase the kind and number of shares of stock and
other securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as if the Holder was the owner of the
shares of Common Stock underlying the Warrants immediately prior to any such
events, at a price equal to the product of (x) the number of shares issuable
upon exercise of the Warrants and (y) the Exercise Price in effect immediately
prior to the record date for such reclassification, change, consolidation,
merger, sale or conveyance.
8. Exchange and Replacement of Warrant Certificates. The Warrant Certificate
is exchangeable without expense, upon the surrender thereof by the
Holder at the principal executive office of the Company, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of Shares in such denominations as shall be designated
by the Holder thereof at the time of such surrender. Upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any Warrant Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of the Warrants, if mutilated, the Company will
make and deliver a new Warrant Certificate of like tenor, in lieu thereof to the
Holder.
9. Elimination of Fractional Interests. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock
and shall not be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up to the nearest whole number of
shares of Common Stock.
10. Reservation and Listing of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrants,
such number of shares of Common Stock as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of the Warrants
and payment of the Exercise Price therefor, all Shares of Common Stock issuable
upon such exercise shall be duly and validly issued, fully paid, non-assessable
and not subject to the preemptive rights of any shareholder. Although the
Common Stock is currently quoted on the Nasdaq SmallCap
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Market, as long as the Warrants shall be outstanding, the Company shall
continue its efforts to cause all Shares of Common Stock issuable upon the
exercise of the Warrants to be quoted on the Nasdaq National Market.
11. Piggyback Registration.
(a) For a period of one year from the date of this Agreement, if the
Company proposes to register any of its securities under the Securities Act of
1933, as amended (the "Act"), other than in connection with a merger or
pursuant to Form S-8, it will give written notice to the Holder at least
fifteen days prior to the filing of each such registration statement of its
intention to do so. If the Holder notifies the Company within five days after
receipt of any such notice of its desire to include the Warrants and/or the
Shares of Common Stock issuable upon the exercise of the Warrants in such
proposed registration statement, the Company shall afford the Holder the
opportunity to do so. The obligation of the Company to give such notice shall
be limited to the Holder.
(b) Notwithstanding the provisions of this Section 11, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 11 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw same after the filing but prior to the
effective date thereof.
(c) The obligations of the Company identified in this Section 11 shall be
suspended and tolled for such periods of time (the "Registration Suspension
Period") as is necessary so that under no circumstances shall the registered
resale of Shares of Common Stock issuable upon the exercise of the Warrants
commence within ninety days after the commencement of an underwritten primary
public offering of the Company's equity securities (a "Public Offering"). The
Holder acknowledges and agrees that during the Registration Suspension Period
it shall not resell the Shares issuable upon the exercise of the Warrants.
12. Covenants of the Company with Respect to Registration.
(a) In connection with any registration under Section 11 hereof the
Company agrees as follows:
(i) to prepare and file with the SEC a registration statement
with respect to such securities and use its best efforts to
cause such registration statement to become and remain
effective;
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(ii) to prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the
requirements of the Act and the rules and regulations
promulgated by the SEC thereunder relating to the sale or
other disposition of the securities covered by such
registration statement;
(iii) to furnish to Holder such numbers of copies of a
prospectus, including a preliminary prospectus, complying
with the requirements of the Act, and such other documents as
the Holder may reasonably request in order to facilitate the
public sale or other disposition of the securities owned by
Holder, but the Holder shall not be entitled to use any
selling materials other than a prospectus and such other
materials as may be approved by the Company, which approval
will not be unreasonably withheld; and
(iv) to use its best efforts to register or qualify the
securities covered by such registration statement under the
Securities Acts of such states as the Holder shall reasonably
request ("State Acts"), and do any and all such other acts
and things as may be necessary or advisable to enable the
Holder to consummate the public sale or other disposition of
the securities owned by such Holder in such states; provided,
however, that the Company shall not be obligated to register
or qualify such securities in any jurisdiction in which such
registration or qualification would require the Company to
qualify as a foreign corporation or file any general consent
to service of process where it is not then so qualified or
has not theretofore so consented.
(b) Except as provided below in this Section 12, the expenses
incurred by the Company in connection with action taken by the Company to
comply with this Section 12, including, without limitation, all
registration and filing fees, printing and delivery expenses, accounting
fees, fees and disbursements of counsel, consultant and expert fees,
premiums for liability insurance, if the Company chooses to obtain such
insurance, obtained in connection with a registration statement filed to
effect such compliance and all expenses, including counsel fees, of
complying with State Acts, shall be paid by the Company, provided,
however, that all such expenses in connection with any amendment or
supplement to any registration statement filed by the Company hereunder
or the related prospectus which is required to be filed more than nine
months after the effective date of such registration statement because
the Holder or any underwriter of the Holder's securities has not effected
the disposition of the securities required to be registered shall be paid
by the Holder pro rata. All fees and disbursements of any counsel,
experts, or consultants employed by the Holder shall be borne by the
Holder. The Company shall not be obligated in any way in connection with
any registration pursuant to this Section 12 for any selling commissions
or discounts payable by the Holder to any underwriter of securities to be
sold by the Holder. It shall be a
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condition precedent to the obligation of the Company to take any action
pursuant to this Section 12 that the Company shall have received an
undertaking satisfactory to it from the Holder to pay all expenses
required to be borne by the Holder and to furnish or cause to be
furnished to the Company specifically for use in the preparation of the
registration statement and prospectus written information concerning the
securities held by the Holder and also concerning any underwriter of such
securities and the intended method of disposition thereof and any
additional information or documentation as the Company shall reasonably
request and as may be required by administrators of the Act or State Acts
in connection with the action to be taken by the Company hereunder
pursuant to such registration.
(c) In the event of any registration of the Holder's securities
under the Act pursuant to this Section 12, the Company will indemnify and
hold harmless the Holder, its officers, directors and each underwriter of
such securities, and any person who controls the Holder or any
underwriter within the meaning of Section 15 of the Act, against all
claims, actions, losses, damages, liabilities and expenses, joint or
several, to which any of such persons may become subject under the Act or
otherwise, insofar as such losses, claims, damages, liabilities, or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Act, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Holder, its officers, directors and
each underwriter of such securities, and each such controlling person or
entity for any legal and any other expenses reasonably incurred by the
Holder, such underwriter, or such controlling person or entity in
connection with investigating or defending any such loss, action, claim,
damage, liability, or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or its based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in said registration statement, said preliminary prospectus or said
prospectus, or said amendment or supplement in reliance upon and in
conformity with written information
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furnished to the Company through an instrument duly executed by the
Holder or such underwriter specifically for use in the preparation
thereof.
(d) In the event of any registration of any securities under the Act
pursuant to this Section 12, the Holder will, or will furnish the written
undertaking of such other person or entity as shall be acceptable to the
Company to, indemnify and hold harmless the Company, its officers,
directors and any person who controls such Company within the meaning of
Section 15 of the Act, against losses, claims, damages, liabilities, or
actions, joint or several, to which the Company, its officers, directors,
or such controlling person or entity may become subject under the Act or
otherwise, insofar as such losses, claims, damages, liabilities, or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Act, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent and only to the extent that any
such loss, claim, damage, liability, or action arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in said registration statement, said preliminary
prospectus or said prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished to the Company
through an instrument duly executed by the Holder or any underwriter of
such Holder's securities specifically for use in the preparation thereof.
13. Notices to Holder. Nothing contained in this Agreement shall be
construed as conferring upon the Holder the right to vote or to consent or to
receive notice as a shareholder in respect of any meetings of shareholders for
the election of directors or any other matter, or as having any rights
whatsoever as a shareholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur
(a) the Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or
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distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor, including the occurrence of any of the
events set forth in Section 7.2 hereof; or
(c) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially
all of its property, assets and business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, options or warrants, or
entitled to vote on such proposed dissolution, liquidation, winding up or sale.
Such notice shall specify such record date or the date of closing the transfer
books, as the case may be. Failure to give such notice or any defect therein
shall not affect the validity of any action taken in connection with the
declaration or payment of any such dividend or distribution, or the issuance of
any convertible or exchangeable securities or subscription rights, options or
warrants, or any proposed dissolution, liquidation, winding up or sale.
14. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the Holder of the Warrants, to the address of such Holder as
shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 of this
Agreement or to such other address as the Company may designate by notice to
the Holders.
15. Supplements and Amendments. The Company and the Holder may from time
to time supplement or amend this Agreement in order to cure any ambiguity, to
correct or supplement any provision
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contained herein which may be defective or inconsistent with any
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Holder may deem necessary
or desirable.
16. Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company and the Holder inure to the benefit of their
respective successors and assigns hereunder.
17. Termination. This Agreement shall terminate at the close of business
on September 30, 1997.
18. Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Florida and for all purposes shall be construed in accordance with the laws of
the State of Florida. The Company and the Holder do hereby confer exclusive
jurisdiction to enforce or resolve any problems or disputes arising in
connection with this Agreement, each Warrant Certificate and all matters
arising out of or in connection therewith, upon the Florida State courts or the
Federal courts sitting in Dade County, Florida and the Company and the Holder
hereby consent to personal jurisdiction in such jurisdiction, consent to
service of process by certified mail in such jurisdiction, waive any objections
to venue in such jurisdiction, and waive any claim that any such court is an
inconvenient forum.
19. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holder any legal or equitable right, remedy or claim under this Agreement, and
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holder.
20. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
THE COMPANY:
[SEAL] RAIL AMERICA, INC.
By: /s/Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Chairman of the Board,
President and Chief Executive
Officer
THE HOLDER:
[SEAL] FIRST LONDON SECURITIES CORPORATION
By: /s/Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
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EXHIBIT A
TO
WARRANT AGREEMENT
EXHIBIT B
TO
WARRANT AGREEMENT
ACCESS LETTER
September 30, 1996
RailAmerica, Inc.
000 Xxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Chairman of the Board,
President and Chief
Executive Officer
Dear Xx. Xxxxxx:
This letter is in reference to the acquisition by First London Securities
Corporation ("Holder") of certain warrants (the "Warrants") to purchase shares
(the "Shares") of common stock, par value $.001 per share, of RailAmerica, Inc.
(the "Company"), pursuant to a Warrant Agreement (the "Agreement") with the
Company. In connection with such Warrant purchase and any purchase of Shares
pursuant to the execution of the Warrants, the following acknowledgments,
representations and agreements are hereby made by the undersigned on behalf of
the Holder:
I currently serve as the _____________________, of the Holder.
I represent and acknowledge that all matters relating to the Company, the
Agreement and the Holder's investment in the Warrants have been explained to
the Holder to its satisfaction and that Holder understands the speculative
nature and risks involved in this investment.
I understand that the Company has relied on the information and
representations with respect to the Holder set forth in this letter in
determining whether an investment in the Company is suitable for the Holder,
and I represent and warrant that all such information is true and correct as of
the date hereof.
Holder is acquiring the Warrants for investment solely for its own account
and not for distribution, transfer, or resale to others.
Holder understands that it must bear the economic risk of the acquisition
of the Warrants and any Shares for the foreseeable future because (a) neither
the offer and sale of the Warrants nor the offer and sale of the Shares has
been registered under the Securities Act of 1933, as amended (the "Act"), and
applicable state securities laws;
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(b) the Warrants and the Shares may therefore not be sold, transferred,
pledged, or otherwise disposed of unless subsequently so registered or, an
opinion satisfactory to the Company and to counsel for the Company rendered to
the Company that registration under the Act or any applicable state securities
laws is not required; (c) the Company does not have an obligation to register a
resale of the Warrants or the Shares; and (d) the Company is under no
obligation to perfect any exemption for resale of the Warrants or the Shares.
In the event the Shares purchasable pursuant to the exercise of the
Warrants have not been registered under the Act or the securities laws of any
state or other jurisdiction, at the time the Warrants are exercised, Holder
agrees to make any investment representation and warranty to the Company as the
Company may reasonably require to ensure compliance with any applicable federal
or state securities law or regulation.
Holder understands that the certificates evidencing the Warrants and the
Shares will bear a restrictive legend prohibiting the transfer thereof except
in compliance with applicable state and federal securities laws and may not be
transferred of record except in compliance therewith.
Holder understands that the certificates evidencing the Warrants and the
Shares will contain provisions limiting the transfer thereof.
Holder has been afforded the opportunity to ask questions of, and receive
answers from, the Company and to obtain any additional information, to the
extent that the Company possesses such information or could have acquired it
without unreasonable effort or expense, necessary to verify the accuracy of the
information contained in the documents delivered to Holder and has in general
had access to all information deemed material to an investment decision with
respect to Holder's acquisition of the Warrants.
Holder is an "Accredited Investor" as defined in Rule 501 of Regulation X.
Xxxxxx has adequate means of providing for its current financial needs and
possible contingencies and has no need for liquidity in its investment in the
Company.
Holder is able to bear the economic risks inherent in its investment in
the Company. Holder further acknowledges that an important consideration
bearing on its ability to bear the economic risk of its acquisition of the
Warrants is whether Holder can afford a complete loss of its entire investment
in the Company, and that Holder can afford a complete loss of its entire
investment in the Company.
Holder has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of an investment in the
Company and of making an informed investment decision.
Holder acknowledges that it has discussed this letter with counsel and
understands the meaning and legal consequences of the representations and
warranties hereof, and Holder hereby agrees to indemnify and hold harmless the
Company and its controlling persons from and against any and all loss, damage
or liability due to or arising out of any misrepresentation or a breach of any
warranties contained herein.
This letter and the representations herein shall be governed by and
construed under the laws of the State of Florida and shall be binding upon
Holder's successors and assigns, and inure to the benefit of the Company's
successors and assigns.
Holder further acknowledges and understands the following:
THE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE
SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
LAWS. THE WARRANTS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY
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AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
THE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE PURCHASER SHOULD BE AWARE THAT IT MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
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THE PURCHASER SHOULD REVIEW EXHIBIT B.1 TO THIS AGREEMENT WHEREIN NOTICES
TO RESIDENTS OF CERTAIN STATES ARE SET FORTH IN ACCORDANCE WITH SECURITIES LAWS
OF SUCH STATES.
FIRST LONDON SECURITIES CORPORATION
By:
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Name:
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Title:
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EXHIBIT C
TO
WARRANT AGREEMENT
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE
EXTENT APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE
UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE
DELIVERY BY THE HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., MIAMI, FLORIDA TIME, SEPTEMBER 30, 1997
No. W-1 125,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that FIRST LONDON SECURITIES
CORPORATION (the "Holder") is the registered holder of 125,000 Warrants to
purchase, at any time from September 30, 1996 until 5:00 P.M. Miami, Florida
time on September 30, 1997 ("Expiration Date"), up to 125,000 shares (the
"Shares") of fully-paid and non-assessable common stock, par value $.001 (the
"Common Stock"), of RailAmerica, Inc., a Delaware corporation (the "Company"),
at the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $4.60 per Share upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the Warrant
Agreement dated as of September 30, 1996 between the Company and the Holder
(the "Warrant Agreement"). Payment of the Exercise Price may be made in cash,
or by certified or official bank check in New York Clearing House funds payable
to the order of the Company, or any combination of cash or check.
No Warrant may be exercised after 5:00 P.M., Miami, Florida time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall expire and thereafter be null and void.
The Warrants evidenced by this Warrant Certificate are issued pursuant to
the Warrant Agreement, which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the Holder.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and/or number of the Company's securities issuable thereupon
may, subject to certain conditions, be adjusted. In such event, the Company
will, at the request of the Holder, issue a new Warrant Certificate evidencing
the adjustment in the Exercise Price and the number and/or type of securities
issuable upon the exercise of the Warrants.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall issue to the Holder hereof a new Warrant
Certificate representing such number of unexercised Warrants.
The Company may deem and treat the Holder as the absolute owner of this
Warrant Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone), for the purpose of any exercise hereof, and of any
distribution to the Holder hereof, and for all other purposes, and the Company
shall not be affected by any notice to the contrary.
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All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
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19
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: As of September 30, 1996 RAILAMERICA, INC.
[SEAL] By:
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
Attest:
--------------------------------
C-3
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FORM OF ELECTION TO PURCHASE SHARES OF COMMON STOCK
OF
RAILAMERICA, INC.
NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _______________________
(___________) shares ("Shares") of Common Stock, par value $.001 per share of
RailAmerica, Inc. and herewith tenders in payment for such Shares, cash or a
certified or official bank check payable in New York Clearing House Funds to
the order of RailAmerica, Inc. in the amount of $________, all in accordance
with the terms hereof. The undersigned requests that a certificate for such
Shares be registered in the name of the undersigned, whose address is
________________________________________, and that such Certificate be
delivered to ________________________, whose address is
____________________________________.
Dated: Signature:
---------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate.)
------------------------------
------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
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[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED
---------------------------------------------------------
hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ,
------------------------
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated: Signature:
--------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate)
--------------------------------
--------------------------------
(Insert Social Security or Other
Identifying Number of Assignee)
C-5
