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EXHIBIT 4.9
FORM OF CAPITAL STOCK PURCHASE WARRANT
TO SUBSCRIBE FOR AND PURCHASE CAPITAL STOCK OF
BALANCED CARE CORPORATION
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THIS CERTIFIES that, for value received,___________________,
(together with any subsequent transferees of all or any portion of this Warrant,
the "Holder"), is entitled, upon the terms and subject to the conditions
hereinafter set forth, to subscribe for and purchase from Balanced Care
Corporation, a Delaware corporation (hereinafter called the "Company"), at the
Exercise Price as defined in Section 3, up to that number of fully paid and
non-assessable shares of the Company's Capital Stock as set forth in Section 2.
1. Definitions. As used herein the following terms
shall have the following meanings:
"Capital Stock" means each and every class or series
of authorized capital stock and Convertible Securities of the Company,
including but not limited to common stock, preferred stock or any form of
convertible capital stock, regardless of voting, dividend and liquidation
rights and regardless of any other powers, preferences and relative
participating, optional or other special rights, qualifications, limitations or
restrictions.
"Common Stock" means all stock of any class or
classes (however designated) of the Company, authorized upon the date hereof or
thereafter, the holders of which shall have the right, without limitation as to
amount, either to all or to a share of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on any
shares entitled to preference, and the holders of which shall ordinarily, in
the absence of contingencies, be entitled to vote for the election of a
majority of directors of the Company (even though the right so to vote has been
suspended by the happening of such a contingency).
"Convertible Securities" means any evidences of
indebtedness, shares (other than shares of Capital Stock) or other securities
convertible into or exchangeable for Capital Stock.
"Person" means, without limitation, an individual, a
partnership, a corporation, a limited liability company, a trust, a joint
venture, an unincorporated organization, a government or any department or
agency thereof or any other entity.
"Shares" means the shares of the Company's Capital
Stock as set forth in Section 2 issued or issuable to the Holder upon the
exercise of this Warrant and any other shares of capital stock of the Company
issued with respect to such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations, mergers, consolidations, or similar
events) as provided in Section 8 hereof.
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2. The Shares Subject to this Warrant. This Warrant
shall be exercisable for up to ______ shares of Common Stock, as the same may
be adjusted pursuant to the terms of this Warrant.
3. The Exercise Price. The exercise price per share of
the Shares subject to this Warrant shall be $________ per share subject to
adjustment in accordance with Section 8 hereof (the "Exercise Price").
4. Term. The purchase rights represented by this
Warrant are exercisable by the Holder, in whole or in part, at any time and
from time to time commencing on the date hereof and ending on the tenth
anniversary of the date hereof.
5. Method of Exercise, Payment and Issuance. Subject to
Section 4 above, the purchase rights represented by this Warrant may be
exercised, in whole or in part and from time to time, by (a) the surrender of
this Warrant and the duly executed Notice of Exercise (the form of which is
attached hereto as Exhibit A) at the principal office of the Company and by the
payment to the Company, by check or wire transfer, in an amount equal to the
Exercise Price multiplied by the number of Shares then being purchased or (b)
if in connection with a registered public offering of the Company's securities,
the surrender of this Warrant and the duly executed Notice of Exercise (the
form of which is attached as Exhibit A-1) at the principal office of the
Company together with notice of arrangements reasonably satisfactory to the
Company for payment to the Company either by check or wire transfer or from the
proceeds received from the sale of Shares to be sold by the Holder in such
public offering of an amount equal to the then applicable Exercise Price
multiplied by the number of Shares then being purchased. Upon exercise, the
Holder shall be entitled to receive, within a reasonable time, and in any event
within thirty (30) days of receipt of such Notice, a certificate or
certificates, issued in the Holder's name or in such name or names as the
Holder may direct, for the number of Shares so purchased, and, unless this
Warrant has been fully exercised or expired, a new Warrant representing the
portion of the Shares, if any, with respect to which this Warrant shall not
then have been exercised shall also be issued to the Holder as soon as possible
and in any event within such thirty (30) day period. The Shares so purchased
shall be deemed to be issued as of the close of business on the date on which
this Warrant shall have been exercised.
6. Shares to be Issued; Reservation of Shares. The Company
covenants that all Shares that may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon issuance, be fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the purchase rights represented
by this Warrant may be exercised, the Company will at all times have authorized
and reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Capital Stock
to provide for the exercise of the rights represented by this Warrant. The
Company represents to the Holder that Xxxx Xxxxxxx has consented to the
issuance of this Warrant and the Shares issuable upon exercise of this Warrant
and has waived any right of first offer, first refusal or preemption that he
might have pursuant to that certain Shareholders' Agreement dated September 20,
1995 among the shareholder of the Company (the "Shareholders' Agreement").
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7. No Fractional Shares. No fractional shares shall be
issued upon the exercise of this Warrant. In lieu thereof, a cash payment shall
be made equal to such fractional multiplied by the fair market value of such
shares of Capital Stock, as determined in good faith by the Company's Board of
Directors.
8. Adjustments of Number of Shares. In the event of any
subdivision or combination of the outstanding shares of Common Stock, stock
dividend in respect to its Common Stock, recapitalization, or reclassification
of shares of Common Stock, the number of and kind of shares issuable upon
exercise of this Warrant, and the Exercise Price per share, shall be equitably
adjusted by the Company's Board of Directors as the Board deems necessary to
prevent dilution of the rights of the Holder set forth in this Warrant.
Promptly following any such adjustment, the Company shall provide the Holder
with a certificate stating the nature of the event giving rise to the
adjustment and setting forth the adjusted Exercise Price and number and kind of
shares for which this Warrant is then exercisable. Provided, however, the
Holder hereof shall have no right to any adjustment of the number of Shares
associated with the issuance by the Company of any Preferred Stock.
9. Notices of Record Date, etc. In the event of:
a. any taking by the Company of a record of the
holders of any Capital Stock for the purpose of determining the holders thereof
who are entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase, or otherwise acquire any shares of Capital Stock or any
other securities or property, or to receive any other right; or
b. any capital reorganization of the Company, any
reclassification or recapitalization of the Capital Stock or any transfer of all
or substantially all of the assets of the Company to or consolidation or merger
of the Company with or into any other Person; or
c. any voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then and in each such event the Company will mail or cause to be mailed to the
Holder of this Warrant a notice specifying (i) the date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right,
and (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up. Such notice shall be mailed at
least twenty (20) days prior to the date therein specified.
10. No Rights as Stockholder. This Warrant does not entitle
the Holder to any voting rights or other rights as a stockholder of the Company
prior to exercise of this
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Warrant and the payment for the shares of Capital Stock so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are distributed to holders of the Capital
Stock of the Company concurrently with the distribution thereof to the
stockholders. Upon valid exercise of this Warrant and payment for the shares of
Capital Stock so purchased in accordance with the terms of the Warrant, the
Holder or the Holder's designee, as the case may be, shall be deemed a
stockholder of the Company.
11. Modifications and Waivers. This Warrant may not be
changed, waived, discharged or terminated except by an instrument in writing
signed by the party against which enforcement of the same is sought.
12. Notices. Any notice, request or other document required
or permitted to be given or delivered to the Holder hereof or the Company shall
be delivered or shall be sent by certified or registered mail, postage prepaid,
if to the Holder, at its address shown on the books of the Company and if to
the Company, at the address indicated therefor on the signature page of this
Warrant.
13. Loss, Theft, Destruction or Mutilation of Warrant. The
Company covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and of an indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new warrant, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated Warrant.
14. Binding Effect on Successors. This Warrant shall be
binding upon any corporation succeeding the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets, and all of the
obligations of the Company relating to the Shares issuable upon exercise of
this Warrant shall survive the exercise and termination of this Warrant and all
of the covenants and agreements of the Company shall inure to the benefit of
the successors and assigns of the Holder. This Warrant is fully transferable
and the Company may treat the registered Holder of this Warrant as such Holder
appears on the Company's books at any time as the Holder for all purposes.
15. Governing Law. This Warrant shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Delaware.
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IN WITNESS WHEREOF, Balanced Care Corporation has caused this
Warrant to be executed under seal by its officer thereunto duly authorized.
Dated: _________, 1996
CORPORATE BALANCED CARE CORPORATION
SEAL
By:
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Name:
Title:
ATTEST
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Name:
Title:
Address:
0000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
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SCHEDULE TO EXHIBIT 4.9 FILED PURSUANT TO INSTRUCTION 2 TO ITEM 601(A) OF
REGULATION S-K
CAPITAL STOCK WARRANT
Purchase Exercise
Holder Shares Date/Term Price Schedule
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Xxxxx XxXxxxx 10,000 10/1/96; $2.50/share
5 years
Xxxxxx Xxxxxx 35,000 10/1/96; $2.50/share 3/26/97 -
10 years 35,000 warrants
Xxxxx Xxxxx 21,972 10/1/96; $2.50/share 4/1/97 -
5 years 21,972 warrants
