THIS WARRANT HAS BEEN ISSUED TO THE HOLDER THEREOF IN RELIANCE UPON ITS
INVESTMENT REPRESENTATIONS TO THE COMPANY AND MAY NOT BE TRANSFERRED TO ANOTHER
PERSON EXCEPT IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS SET FORTH IN SECTION
2.
THE TRANSFER OF THIS WARRANT IS SUBJECT TO A RIGHT OF FIRST REFUSAL IN FAVOR OF
THE COMPANY SET FORTH IN AN AGREEMENT DATED APRIL 1, 1998 BETWEEN THE COMPANY
AND SUPERIOR BANK, FSB.
April 1, 1998
COMMON STOCK WARRANT
To Purchase 200,000 Shares of Common Stock of
XXXXXXXX.XXX, INC.
(formerly known as First Mortgage Network, Inc.)
THIS CERTIFIES THAT, in consideration for payment of good and valuable
consideration to Xxxxxxxx.xxx, Inc., a Florida corporation (the "Company"),
Superior Bank, FSB, a federally chartered savings bank or registered assigns is
entitled to subscribe for and purchase from the Company, subject to the
following terms and conditions, at any time in perpetuity, TWO HUNDRED THOUSAND
(200,000) fully-paid and nonassessable shares (the "Shares") of the Company's
Common Stock, $0.01 par value, at the price of FIVE DOLLARS AND N0/100 ($5.00)
per share, subject to adjustments described herein.
1. Exercise. The rights represented by this Warrant may be exercised by
the registered holder hereof, in whole or in part (but not as to a fractional
share of Common Stock), by the surrender of this Warrant at the principal office
of the Company, on the intended date of the exercise, together with a duly
completed form of exercise and a check for the purchase price for the number of
Shares being purchased.
As a condition to the issuance by the Company of the Shares pursuant to
this Warrant, the holder, if requested by the Company, shall provide a letter in
which the holder (a) represents that the Shares are being acquired for
investment and not resale and makes such other representations as may be
necessary or appropriate to qualify the issuance of the Shares as exempt from
the Securities Act of 1933 and any other applicable securities laws, and (b)
represents that the holder shall not dispose of the Shares in violation of the
Securities Act of 1933 or any other applicable securities laws. The Company
reserves the right to place a legend on all stock certificates issued pursuant
to the exercise of this Warrant to assure compliance with the foregoing.
The holder is aware that the Company is relying, and presently intends
to continue relying, upon exemptions from the securities registration
requirements of
federal and state securities laws in the issuance of this Warrant and in the
issuance of the Shares. If, when this Warrant is exercised, appropriate
exemptions from registration are not available under federal and state
securities laws, the exercise shall not be consummated on the intended date of
exercise specified in the holder's written notice of exercise and no Shares
shall be issued to the holder unless and until such exemptions are available.
The holder agrees to execute such documents and make such representations,
warranties and agreements as may be required in order to comply with the
exemption(s) relied upon by the Company for the issuance of Shares.
2. Transferability. This Warrant may be transferred or divided into two
or more Warrants of smaller denomination, subject to (a) a right of first
refusal in favor of the Company set forth in an Agreement dated April 1, 1998
between the Company and Superior Bank, FSB, and (b) the following conditions.
The holder of this Warrant, by acceptance hereof, agrees to give written notice
to the Company before transferring this Warrant, or transferring any Shares, of
such holder's intention to do so, describing briefly the manner of the proposed
transfer. Promptly upon receiving such written notice, the Company shall present
copies thereof to the Company's counsel. If in the opinion of the Company's
counsel the proposed transfer may be effected without constituting a violation
of applicable federal and state securities laws, then the Company, as promptly
as practicable, shall notify such holder of such opinion, whereupon such holder
shall be entitled to transfer this Warrant or to dispose of any of the Shares
received upon the previous exercise of the Warrant, provided that an appropriate
legend may be endorsed on this Warrant or the certificates for any of the Shares
respecting restrictions upon transfer thereof necessary or advisable in the
opinion of the Company's counsel to prevent further transfers which would be in
violation of the securities laws or adversely affect the exemptions relied upon
by the Company. To such effect, the Company may request that the intended
transferee execute an investment letter reasonably satisfactory to the Company
and its counsel.
A register of the issuance and transfer of this Warrant shall be kept
at the offices of the Company, and this Warrant may be transferred only on the
books of the Company maintained at its office. Each transfer shall be in writing
signed by the then-registered holder hereof or the holder's legal
representatives or successors, and no transfer hereof shall be binding upon the
Company unless in writing and duly registered on the register maintained at the
Company's offices. Upon transfer of this Warrant, the transferee, by accepting
the Warrant, agrees to be bound by the terms and conditions of this Warrant and
the investment letter, if any, required by the Company.
If in the opinion of the Company's counsel the proposed transfer or
disposition of the Warrant or the Shares described in the holder's written
notice given pursuant to this Section 2 may not be effected without registration
or without adversely affecting the exemptions relied upon by the Company, the
Company shall promptly give written notice to the holder and the holder will
limit its activities and restrict its transfer accordingly.
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3. Issuance of Shares. The Company agrees that the Shares purchased
upon exercise of this Warrant shall be deemed to be issued to the record holder
hereof as of the close of business on the date on which this Warrant shall have
been surrendered and the payment made for such Shares as aforesaid. Subject to
the provisions of Section 4, certificates for the Shares so purchased shall be
delivered to the holder hereof within a reasonable time after the exercise of
this Warrant has been so consummated, and a new Warrant representing the number
of Shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be delivered to the holder hereof within such time.
Notwithstanding the foregoing, however, the Company shall not be
required to deliver any certificate for Shares upon exercise of this Warrant,
except in accordance with the provisions, and subject to the limitations, of
Section 1 hereof.
4. Covenants of Company. The Company covenants and agrees that all
Shares which may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be duly authorized and issued, fully paid,
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof, and without limiting the generality of the foregoing, the Company
covenants and agrees that it will from time to time take all such action as may
be required to assure that the par value per share of the Common Stock is at all
times equal to or less than the then-effective purchase price per share of the
Common Stock issuable upon exercise of this Warrant. The Company further
covenants and agrees that the Company will at all times have authorized, and
reserved for issuance upon exercise of the subscription rights evidenced by this
Warrant, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant.
5. Anti-Dilution Adjustments. The above provisions are, however,
subject to the following:
(a) In case the Company shall (i) pay a stock dividend or make a
distribution to holders of its Common Stock in shares of Common Stock or in
securities or debt convertible into Common Stock, (ii) subdivide outstanding
shares of Common Stock into a larger number of shares or (iii) combine
outstanding shares of Common Stock into a smaller number of shares, the number
of Shares purchasable upon exercise of this Warrant immediately prior thereto
shall be adjusted retroactively so that when thereafter exercised this Warrant
shall entitle the holder to receive the number of Shares which the holder would
have owned immediately following such event had such Warrant been exercised
immediately prior to the happening of such event (or prior to the record date
with respect thereto). An adjustment made pursuant to this subsection (a) shall
become effective retroactively immediately after the record date in the case of
a dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) Whenever the number of Shares purchasable upon the exercise of
any Warrant is adjusted, as provided in subsection (a) above, the exercise price
of this
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Warrant shall be adjusted by multiplying the exercise price in effect
immediately prior to such adjustment by a fraction, the numerator of which shall
be the number of Shares purchasable upon the exercise of this Warrant
immediately prior to such adjustment, and the denominator of which shall be the
number of Shares so purchasable immediately thereafter.
(c) In case of any recapitalization of the Company or any
reclassification of the capital stock of the Company (other than a subdivision
or combination of outstanding shares or a change in par value or from par value
to no par value), or in case of the consolidation of the Company with or the
merger of the Company with or into any other corporation or entity, this Warrant
shall, after such recapitalization, reclassification, consolidation or merger be
exercisable, upon the terms and conditions specified in this Warrant and upon
payment of the exercise price in effect immediately prior to such action, for
the kind and amount of shares of stock or other securities or property to which
the Shares issuable (at the time of such recapitalization, reclassification,
consolidation or merger) upon exercise of this Warrant would have been entitled
upon such recapitalization, reclassification, consolidation or merger if such
exercise had taken place immediately prior to such action; and in any case, if
necessary, the provisions set forth in this Section 5 with respect to the rights
and interests thereafter of the holders of this Warrant shall be appropriately
adjusted so as to be applicable, as nearly as may reasonably be, to any shares
of stock or other securities or property thereafter deliverable on the exercise
of this Warrant.
In case of any consolidation of the Company with, or merger of the
Company with or into any other corporation or entity (excluding a consolidation
or merger which does not result in any substantive reclassification or change of
the outstanding shares of Common Stock of the Company), such successor shall, as
a condition to such transaction, execute with the holder a supplemental warrant
agreement (i) providing that the holder of this Warrant shall thereafter have
the right to purchase the kind and amount of shares of stock or other securities
or property provided in this subsection (c), (ii) setting forth the exercise
price for the securities, and property if any, so issuable, which shall be an
amount equal to the exercise price immediately prior to such event and (iii)
providing that such successor or purchasing entity assumes the due and punctual
performance and observance of each and every covenant and condition of this
Agreement to be performed or observed by the Company.
(d) Upon any adjustment provided for in this Section 5, the Company
shall give written notice thereof, by first class mail, postage prepaid,
addressed to the registered holder of this Warrant at the address of such holder
as shown on the books of the Company, which notice shall state the Warrant
exercise price resulting from such adjustment and the increase or decrease, if
any, in the number of Shares purchasable at such price upon the exercise of this
Warrant, and shall set forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
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6. No Voting or Other Rights. This Warrant shall not entitle the holder
hereof to any voting rights or other rights as a stockholder of the Company.
IN WITNESS WHEREOF, Xxxxxxx.xxx, Inc. has caused this Warrant to be
signed by its duly authorized officer and this Warrant to be dated the date
first above written.
XXXXXXXX.XXX, INC.
By:
------------------------------
Xxxx X. Xxxxxx, Chairman
and Chief Executive Officer
ATTEST:
By:
---------------------------------
Secretary
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SUBSCRIPTION FORM TO BE EXECUTED UPON
EXERCISE OF WARRANT
The undersigned registered holder hereby irrevocably elects to exercise
the right of purchase represented by the within Warrant for, and to purchase
thereunder, ______ full Shares of Common Stock provided for therein, and, if
said number of Shares shall not be all the Shares purchasable thereunder, that a
new Warrant for the unexercised portion of the within Warrant be delivered to
the undersigned.
DATED: , 199 .
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Signature
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