1
EXHIBIT 10.4
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of November 19, 1996, between HALIS, Inc.
(formerly Xxxxxx Business Systems, Inc.), a Georgia corporation (the "Company"),
and SunTrust Bank, Atlanta, a Georgia banking corporation, as warrant agent (the
"Warrant Agent").
WITNESSETH:
WHEREAS, the Company proposes to issue up to 2,166,667 Common Stock
Purchase Warrants (the "Warrants"); and
WHEREAS, the Warrants are being offered in a private placement to
accredited investors without registration under the Securities Act of 1933, as
amended (the "Act") or the securities laws of any state, in reliance upon
Regulation D promulgated by the Securities and Exchange Commission under the Act
and on similar exemptions under applicable state laws; and
WHEREAS, the Warrants will be evidenced by separate warrant
certificates. Each definitive Warrant will provide that the registered holder
thereof may exercise that Warrant, in whole or in part in the manner set forth
herein, to purchase, at the Exercise Price per share (as defined in Section 6
hereof), the number of shares of common stock set forth in the Warrant (both the
number of the shares and the Exercise Price subject to adjustment as set forth
in Section 11 hereof); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, transfer, exchange, replacement and exercise of warrant certificates
and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, and intending to be legally bound, the parties hereto agree as
follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement and the Warrant Agent
hereby accepts that appointment.
Section 2. Form of Warrants. The definitive Warrants to be delivered
pursuant to this Agreement shall be substantially in the form set forth in
Exhibit A attached hereto.
Section 3. Execution of Warrants. (a) The Warrants in definitive form
shall be signed on behalf of the Company, manually or by facsimile signature, by
its Chairman of the Board or President under its corporate seal, and shall be
manually countersigned by the Warrant Agent. A Warrant signed on behalf of the
Company as aforesaid by an incumbent in office at the time of signature shall be
valid, and may be countersigned and issued by the Warrant Agent, notwithstanding
the fact that at the time of countersignature and issuance by the Warrant Agent
such signatory shall have ceased to be the incumbent in such office. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrants. No Warrant shall be
valid for any purpose unless countersigned manually by the Warrant Agent.
(b) Warrants shall be dated the date of countersignature by
the Warrant Agent.
2
Section 4. Registered Owners. The Company and the Warrant Agent may
deem and treat the registered holder of a Warrant as the absolute owner thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for the purpose of any exercise thereof and any distribution to the
holder thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
Section 5. Registration of Warrants; Transfers and Exchanges. (a) The
Warrant Agent shall register the transfer, split-up, combination or exchange of
any outstanding Warrant upon the records to be maintained by it for that
purpose, upon surrender thereof accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly executed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any registration
of transfer, a new Warrant shall be issued to the transferee and the surrendered
Warrant shall be cancelled by the Warrant Agent. Cancelled Warrants shall
thereafter be disposed of in a manner satisfactory to the Company.
(b) Any Warrant may be split up, combined or otherwise
exchanged at the option of the holder thereof, upon surrender to the Warrant
Agent at its office or agency maintained for the purpose of exchanging,
transferring, exercising or converting the Warrants in Atlanta, Georgia (each
office being referred to herein as a "Warrant Agent Office"), for another
Warrant or other Warrants of like tenor and for the purchase, in the aggregate,
of a like number of Shares. Warrants so surrendered shall be cancelled by the
Warrant Agent. Cancelled Warrants shall then be disposed of by the Warrant Agent
in a manner satisfactory to the Company.
(c) The Warrant Agent is hereby authorized to countersign, in
accordance with the provisions of Section 3 hereof, and deliver any new Warrants
required pursuant to the provisions of this Section 5.
Section 6. Duration and Exercise of Warrants. (a) The Warrants shall
expire at 5:00 p.m. E.S.T. on December 31, 1999 (the "Expiration Date"). The
Company may, in its sole discretion, extend the Expiration Date upon notice
thereof to the Warrant Agent. Each Warrant may be exercised on any business day
prior to the close of business on the Expiration Date by delivery of the Warrant
to the Warrant Agent no later than the Expiration Date and by satisfaction of
the other terms and conditions as set forth herein.
(b) No fractional shares shall be issued upon surrender of a
Warrant for exercise but, in lieu of fractional shares, the Company shall pay to
the registered holder of a surrendered Warrant, as soon as practicable after the
date of surrender, an amount in cash obtained by multiplying the current market
value of a share by the fraction of the share to which such Warrant relates. The
current market value of a share shall be (i) if the common stock is listed on a
national securities exchange or admitted to unlisted trading privileges on such
an exchange, the last reported sale price of a share of common stock on such
exchange on the last business day prior to the date of the exercise of the
Warrant or if no such sale is made on such day, the average of the closing bid
and asked prices of a share on such exchange; (ii) if the common stock is
included on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), the last sale price reported by NASDAQ on the last business
day prior to the date of exercise of the Warrant or if last sale prices of the
common stock are not so reported, the average of the closing bid and asked
prices of a share for such day reported by NASDAQ; (iii) if the common stock is
not listed or admitted to unlisted trading privileges on an exchange, or
included on NASDAQ, the average of the highest reported bid and lowest reported
asked prices of a share as furnished by the National Quotation Bureau on the
last business day prior to the date of exercise of the
-2-
3
Warrant; or (iv) in all other cases, an amount determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company.
(c) Subject to the provisions of this Agreement, including
Sections 6(e) and 11 hereof, the holder of a Warrant shall have the right to
purchase from the Company (and the Company shall issue and sell to that holder)
the number of fully paid and nonassessable shares set forth in the Warrant at
the exercise price of $1.75 per share (the "Exercise Price") (the number of
shares and Exercise Price being subject to adjustment as provided in this
Section 6(c) and in Section 11 hereof) upon the surrender of that Warrant to the
Warrant Agent on any business day prior to the close of business on the
Expiration Date, at the Warrant Agent's Office described in paragraph 16, with
the form of election to purchase on the reverse thereof duly filled in and
signed, and payment of the Exercise Price in lawful money of the United States
of America by certified check payable to the Company. The Warrants shall be so
exercisable at any time prior to the close of business on the Expiration Date,
at the election of the registered holder thereof, either as an entirety or from
time to time in part. In the event that fewer than all the shares purchasable
upon the exercise of a Warrant are purchased at any time prior to the close of
business on the Expiration Date, a new Warrant will be issued for the remaining
number of shares purchasable upon the exercise of the Warrant so surrendered. No
adjustments shall be made for any cash dividends on shares issuable on the
exercise of a Warrant.
The Company may in its sole discretion, reduce the Exercise Price upon
notice thereof to the Warrant Agent.
(d) Subject to Section 7 hereof, upon surrender of a Warrant
and receipt of payment of the Exercise Price, the Warrant Agent shall
requisition from the transfer agent for the common stock, for issuance and
delivery to or upon the written order of the registered holder of that Warrant
and in such name or names as the registered holder may designate, the shares
issuable upon exercise. Shares shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become the
holder of record of those shares as of the date of the surrender of a Warrant
and payment of the appropriate Exercise Price. The Warrant Agent is hereby
authorized to countersign and deliver, in accordance with the provisions of
Section 3 hereof, any Warrant required pursuant to the provisions of this
Section 6.
(e) The Company represents and warrants to the Warrant Agent
that it has agreed to register with the Securities and Exchange Commission (the
"SEC"), at its sole expense, the shares of Common Stock issuable upon the
exercise of the Warrants. The Company agrees that, from and after the
Registration Date (A) so long as any unexpired Warrants remain outstanding the
Company will (i) file such post-effective amendments to the Registration
Statement, and provide such supplements to the Prospectus included in the
Registration Statement, as may be necessary to keep the Registration Statement
in effect and to permit it to deliver to each person exercising a Warrant a
Prospectus meeting the requirements of Section 10(a) of the Act and otherwise
complying therewith, and will deliver such a Prospectus to each such person, and
(ii) take such other action in each state in which the Warrants were publicly
offered for sale by the Company as from time to time may be required under the
securities laws of such state to permit the Shares issuable upon exercise of the
Warrants to be lawfully issued and sold in such state upon exercise of the
Warrants; and (B) it will furnish to the Warrant Agent, upon request, an opinion
of counsel to the effect that the Registration Statement is then in effect and
that the Prospectus complies as to form in all material respects (except as to
financial statements as to which such counsel need express no opinion) with the
requirements of the Act and the rules and regulations of the SEC thereunder. The
Company may authorize the Warrant Agent to suspend the exercise of any of the
Warrants during such period as is necessary to obtain or keep effective any
registration, qualification, or other governmental approval under federal and
applicable state securities laws required in connection
-3-
4
with the exercise of the Warrants. The exercise of any Warrant for which an
election exercise is received by the Warrant Agent prior to the Expiration Date
during the period of such a suspension shall be effective immediately upon
notice to he Warrant Agent of the removal of such suspension, notwithstanding
that the removal of the suspension occurs after the Effective Date.
Section 7. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of shares upon the exercise of a
Warrant prior to the close of business on the Expiration Date; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue of any Warrant
or any certificates for shares in a name other than that of the registered
holder of the Warrant surrendered upon the exercise of a Warrant, and neither
the Company nor the Warrant Agent shall be required to issue or deliver such
Warrant or stock certificates unless or until the person or persons requesting
the issuance thereof shall have paid to the Company the amount of such tax or
shall have established to the satisfaction of the Company that such tax has been
paid.
Section 8. Mutilated or Missing Warrant Certificates. In case a Warrant
shall be mutilated, lost, stolen or destroyed, the Company shall issue, and the
Warrant Agent shall countersign and deliver, in exchange and substitution for
and upon cancellation of the mutilated Warrant, or in lieu of and substitution
for the Warrant lost, stolen or destroyed, a new Warrant of like tenor and for
the purchase of a like number of shares, but only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of loss, theft or destruction
of that Warrant, and an indemnity bond, if requested, satisfactory to the
Company and the Warrant Agent, the expense of which shall be borne by the
Warrant holder. A Warrant holder requesting a substitute Warrant shall also
comply with all other reasonable regulations and pay all other reasonable
charges as the Company or the Warrant Agent may prescribe.
Section 9. Reservation of Shares. (a) The Company will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued common stock, for the purpose of enabling it to
satisfy any obligation to issue shares upon exercise of Warrants, through the
close of business on the Expiration Date, the number of shares deliverable upon
the exercise of all outstanding Warrants, and the transfer agent for the common
stock is hereby irrevocably authorized and directed at all times to reserve that
number of authorized and unissued shares of common stock as shall be required
for that purpose. The Company will keep a copy of this Agreement on file with
that transfer agent. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from the transfer agent certificates for shares
issuable upon exercise of outstanding Warrants, and the Company will supply such
transfer agent with duly executed stock certificates for such purpose.
(b) Before taking any action which would cause an adjustment
pursuant to Section 11 hereof reducing the Exercise Price below the then par
value (if any) of the shares issuable upon exercise of the Warrants, the Company
will take any corporate action which may, in the opinion of its counsel (which
may be counsel employed by the Company), be necessary in order that the Company
may validly and legally issue fully paid and nonassessable shares at the
Exercise Price as so adjusted.
(c) The Company covenants that all shares issued upon exercise
of the Warrants will, upon issuance in accordance with the terms of this
Agreement, be fully paid and nonassessable and free from all liens, charges and
security interests created by the Company with respect to the issuance thereof.
Section 10. Obtaining of Governmental Approvals. The Company from time
to time will use its best efforts to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and to
make securities acts filings under federal and state laws,
-4-
5
which may be or become requisite in connection with the issuance, sale,
transfer, delivery or exercise of the Warrants.
Section 11. Adjustment of Exercise Price and Number of Shares
Purchasable Hereunder. The Exercise Price and the number of Warrant shares
purchasable upon the exercise of the Warrants are subject to adjustment from
time to time upon the occurrence of the events enumerated in this Section 11.
(a) In case the Company shall at any time after the date of
this Agreement (i) declare a dividend on its capital stock payable in shares of
its capital stock (whether shares of common stock or of capital stock of any
other class), (ii) subdivide the outstanding common stock, (iii) combine the
outstanding common stock into a smaller number of shares, or (iv) engage in any
other recapitalization, the Exercise Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision,
combination, reclassification or recapitalization, shall be proportionately
adjusted so that the holder of the Warrant exercised after such time shall be
entitled to receive the aggregate number and kind of shares of capital stock
which, if such Warrant had been exercised immediately prior to such date, he
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination, reclassification or recapitalization.
Such adjustment shall be made successively whenever any event listed above shall
occur and notice of same shall be promptly provided by the Company to the
Warrant Agent accompanied by the appropriately converted numbers of Warrants and
Shares.
(b) In case the Company shall fix a record date for the making
of a distribution to all holders of common stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends payable in common stock) or subscription
rights or warrants, the Exercise Price to be in effect after such record date
shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, of which (i) the numerator shall be the
current market price per share of common stock (as defined in Section 11(c)), on
such record date, less the fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of the
portion of the assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one share of common stock,
and of which (ii) the denominator shall be such current market price per share
of common stock. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so made,
the Exercise Price shall again be adjusted to be the Exercise Price which would
then be in effect if such record date had not been fixed, but such subsequent
adjustment shall not affect the number of Warrant shares issued upon any
exercise of a Warrant prior to the date such adjustment is made.
(c) For the purpose of any computation under Section 11(b) the
current market price per share of common stock on any date shall be deemed to be
the average of the daily closing prices for the 30 consecutive trading days
immediately preceding the date of determination. The closing price for each day
shall be the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular way, on
the principal national securities exchange on which the common stock is listed
or admitted to trading, or if the common stock is not listed or admitted to
trading on any national securities exchange, the average of the highest reported
bid and lowest reported asked prices as furnished by the National Association of
Securities Dealers ("NASD") or similar organization if the NASD is no longer
reporting such information, or, if not so available, the fair market price as
determined by the Board of Directors of the Company.
-5-
6
(d) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least five
cents ($.05) in such price; provided, however, that any adjustments which by
reason of this Section 11(d) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 11 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(e) In the event that at any time, as a result of an
adjustment made pursuant to Section 11(a) the holder of the Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of common stock, thereafter the number of such other
shares so receivable upon exercise of the Warrant shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the common stock purchasable pursuant to this
Warrant as determined by the Company.
(f) Upon each adjustment of the Exercise Price as a result of
the calculations made in Section 11(a) or (b), the Warrant outstanding
immediately prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Exercise Price, that number of Warrant shares
(calculated to the nearest hundredth) obtained by (i) multiplying the number of
Warrant shares purchasable upon exercise of the Warrant immediately prior to
such adjustment of the number of Warrant shares by the Exercise Price in effect
immediately prior to such adjustment of the Exercise Price and (ii) dividing the
product so obtained by the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
(g) In case of any capital reorganization of the Company, or
of any reclassification of the common stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of subdivision or combination), or in case of the consolidation of the
Company with or the merger of the Company with any other corporation or
association (other than a consolidation or merger in which (i) the Company is
the continuing corporation and (ii) the holders of the Company's common stock
immediately prior to such merger or consolidation continue as holders of common
stock after such merger or consolidation) or of the sale of the properties and
assets of the Company as, or substantially as, an entirety to any other
corporation or association, the Warrant shall after such reorganization,
reclassification, consolidation, merger or sale be exercisable, upon the terms
and conditions specified in this Agreement, for the number of shares of stock or
other securities or property to which a holder of the number of Warrant shares
purchasable (at the time of such reorganization, reclassification,
consolidation, merger or sale) upon exercise of such Warrant would have been
entitled upon such reorganization, reclassification, consolidation, merger or
sale; and in any such case, if necessary, the provisions set forth in this
Section 11 with respect to the rights and interests thereafter of the holder of
the Warrant shall be appropriately adjusted by the Company 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 the Warrant.
The subdivision or combination of shares of common stock at any time outstanding
into a greater or lesser number of shares shall not be deemed to be a
reclassification of the common stock for the purposes of this Section 11(g). The
Company shall not effect any such consolidation, merger or sale, unless prior to
or simultaneously with the consummation thereof the successor corporation or
association (if other than the Company) resulting from such consolidation or
merger or the entity purchasing such assets or other appropriate entity shall
assume, by written instrument executed and delivered to the Company, the
obligation to deliver to the holder of the Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase and the other obligations under this
Agreement.
Section 12. Merger, Consolidation or Change of Name of Warrant Agent.
Any corporation or entity into which the Warrant Agent may be merged or
converted or with which it may be
-6-
7
consolidated, or any corporation or entity resulting from any merger, conversion
or consolidation to which the Warrant Agent shall be a party, or any corporation
or entity succeeding to the corporate trust business of the Warrant Agent, shall
be the successor to the Warrant Agent hereunder without the execution or filing
of any paper or any further action on the part of any of the parties hereto,
provided that such corporation or entity would be eligible for appointment as a
successor Warrant Agent under the provisions of Section 15 hereof. In case at
the time the successor to the Warrant Agent shall succeed under this Agreement
any Warrants shall have been countersigned but not delivered, the successor to
the Warrant Agent may adopt the countersignature of the original Warrant Agent,
and in case at that time any Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in the name
of the predecessor Warrant Agent or in the name of the successor Warrant Agent;
and in all the foregoing cases Warrants shall have the full force provided in
the Warrant certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name, and in case at that time any Warrants
shall not have been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name, and in all such cases
such Warrants shall have the full force provided in the Warrants and in this
Agreement.
Section 13. Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
(a) the statements contained herein and in the Warrants shall
be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as described
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the execution, delivery or
distribution of the Warrants except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this Agreement
or in the Warrants to be complied with by the Company nor shall it at any time
be under any duty or responsibility to any holder of a Warrant to make or cause
to be made any adjustment in the Exercise Price or in the number of shares
issuable (except as instructed in writing by the Company), or to determine
whether any facts exist which may require any adjustments, or with respect to
the nature or extent of or method employed in making any adjustments when made,
or to verify the accuracy of any representation made to it by the Company as to
a change in the Exercise Price or the amount of shares which may be purchased
with a warrant.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company or an employee of the
Warrant Agent) and the Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant holder for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or other
paper, document or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
-7-
8
(e) The Company shall pay to the Warrant Agent for its
services under this Agreement such compensation as they shall agree upon, to
reimburse the Warrant Agent upon demand for all expenses, taxes and governmental
charges and other charges of any kind and nature incurred by the Warrant Agent
in the execution of its duties under this Agreement and to indemnify the Warrant
Agent and hold it harmless against any and all losses, liability and expenses,
including, but not limited to any judgments, costs and counsel fees, or anything
done or omitted by the Warrant Agent arising out of or in connection with this
Agreement except as a result of its gross negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceedings or to take any other action
likely to involve expenses unless the Company or one or more registered holders
of Warrants shall furnish the Warrant Agent with reasonable security and
indemnify the Warrant Agent for any costs and expenses which may be incurred and
promptly pay such costs as they are incurred. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any Warrants or the production thereof at any trial or
other proceeding relative thereto, and any action, suit or proceeding instituted
by the Warrant Agent shall be brought in its name as Warrant Agent, and any
recovery of judgment shall be for the ratable benefit of the registered holders
of the Warrants, as their respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer
or employee thereof, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as thought it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for its own gross negligence
or bad faith.
(i) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant (except its countersignature thereof); nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the Shares
to be issued pursuant to this Agreement or any Warrant or as to whether the
Shares will when issued be validly issued, fully paid and nonassessable or as to
the Exercise Price or the number of Shares issuable upon the exercise of any
Warrant.
(k) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the President, the Secretary or an Assistant
Secretary of the Company, and to apply to those officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instruments of any of those officers or in good faith reliance upon any
statement signed by any one of those officers of the Company with respect to any
fact or matter
-8-
9
(unless other evidence in respect thereof is herein specifically prescribed)
which may be deemed to be conclusively proved and established by such signed
statement.
Section 14. Disposition of Proceeds from Exercise of Warrants. The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent on the purchase of the Shares through the exercise of Warrants.
Section 15. Change of Warrant Agent. If the Warrant Agent shall resign
(such resignation to become effective not earlier than 30 days after the giving
of written notice thereof to the Company and the registered holders of Warrant
certificates) or shall become incapable of acting as Warrant Agent, the Company
shall appoint a successor. If the Company shall fail to make that appointment
within a period of 30 days after it has been so notified in writing by the
Warrant Agent or by the registered holder of a Warrant (in the case of
incapacity), then the registered holder of any Warrant may apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant Agent.
Pending appointment of a successor to the Warrant Agent, either by the Company
or by such a court, the duties of Warrant Agent shall be carried out by the
Company. Any successor Warrant Agent whether appointed by the Company or by a
court, shall be a bank or trust company, in good standing, incorporated under
the laws of the State of Georgia or of the United States of America, and must
have at the time of its appointment as Warrant Agent a net worth of at least $25
million. After appointment, the successor Warrant Agent shall be vested with the
same powers, right, duties and responsibilities as if it had been originally
named as Warrant Agent without further act or deed; but the former Warrant Agent
shall deliver and transfer to the successor Warrant Agent any property at the
time held by it hereunder and execute and deliver, at the expense of the
Company, any further assurance, conveyance, act or deed necessary for the
purpose. Failure to give any notice provided for in this Section 15, however, or
any defect therein shall not affect the legality or validity of the removal of
the Warrant Agent or the appointment of a successor Warrant Agent as the case
may be.
Section 16. Notices to Company and Warrant Agent. Any notice or demand
authorized by this Agreement to be given or made by the Warrant Agent or by the
registered holder of any Warrant to or on the Company shall be sufficiently
given or made if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent) as follows:
HALIS, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx, 00000
Attention: Xxxxx Xxxxxx
President
Copy to: Xxxxx, Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esquire
In case the Company shall fail to maintain that office or agency or
shall fail to give notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
Warrant Agent's Office.
-9-
10
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if sent by first class mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) to the
Warrant Agent as follows:
SunTrust Bank, Atlanta
Corporate Trust Department
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Section 17. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
consent or concurrence of any holders of Warrants in order to cure the
ambiguity, manifest error or other mistake in this Agreement, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not adversely affect, alter or change the interest of the holders of Warrants.
Section 18. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company and of the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 19. Termination. This Agreement shall terminate at the close of
business within a reasonable time, after the Expiration Date. Notwithstanding
the foregoing, this Agreement will terminate on any earlier date if all Warrants
have been exercised. The provisions of Section 13 hereof shall survive the
termination.
Section 20. Governing Law. This Agreement and each Warrant issued
hereunder shall be deemed to be a contract made under the laws of the State of
Georgia and for all purposes shall be construed in accordance with the laws of
said State.
Section 21. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrants any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrants.
Section 22. Counterparts. This Agreement may be executed in any number
of counterparts and each of the counterparts shall for all purposes be deemed to
be an original, and all the counterparts shall together constitute but one and
the same instrument.
-10-
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
HALIS, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx, President
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
--------------------------------------
-11-
12
WARRANT TO PURCHASE COMMON STOCK OF
NO. W-__________ HALIS, INC. __________ WARRANTS
THIS CERTIFIES that _________________, or registered assigns, is the owner of
the number of Warrants set forth above, each represents the right to purchase
from HALIS, Inc., a Georgia corporation (herein called the "Corporation") at a
purchase price of $1.75 per share, subject to adjustment upon the occurrence of
certain events, at any time on or after November 19, 1996 and on or before 5:00
P.M. local time on December 31, 1999 in the City of Atlanta, Georgia, one share
of the Common Stock, $.01 par value, of the Corporation (such shares purchasable
upon exercise of the Warrants being herein called "Shares of Common Stock"), by
surrendering this Warrant Certificate, with the Purchase Form attached hereto
duly executed, at the principal office of SunTrust Bank, Atlanta or its
successor, as warrant agent, in the City of Atlanta, Georgia (any such warrant
agent being herein called the "Warrant Agent") and by paying in full, in lawful
money of the United States of America, the purchase price for the Shares of
Common Stock as to which this Warrant Certificate is exercised, and upon
compliance with and subject to the conditions set forth herein and in Warrant
Agreement referred to herein (the "Warrant Agreement").
This Warrant Certificate is transferable by the registered holder
hereof, upon surrender of this Warrant Certificate for registration of transfer
at the principal office of the Warrant Agent in the City of Atlanta, Georgia
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation duly executed by, the registered holder or his
attorney duly authorized in writing and thereupon one or more new Warrant
Certificates for a like aggregate number of Shares of Common Stock will be
issued to the designated transferee or transferees.
The Warrant Certificates are issued only as registered Warrant
Certificates. This Warrant Certificate is issued under the Warrant Agreement and
is subject to the terms and provisions contained in the Warrant Agreement.
Copies of the Warrant Agreement are on file at the principal office of the
Warrant Agent in the City of Atlanta, Georgia and may be obtained by writing to
the Warrant Agent.
In certain events provided for in the Warrant Agreement, the number of
Shares of Common Stock purchasable upon such exercise, or the purchase price
thereof, are required to be adjusted. No fractional shares will be issued upon
the exercise of rights to purchase hereunder, but in lieu thereof, there shall
be paid to the registered holder of surrendered Warrant Certificates an amount
of cash determined as provided in the Warrant Agreement.
This Warrant Certificate shall not entitle the registered holder hereof
to any of the rights of a holder of a share of Common Stock of the Corporation,
including without limitation, the right to vote, to receive dividends and other
distributions, to exercise any pre-emptive right, or to receive any notice of,
or to attend, meetings of holders of Common Stock or any other proceedings of
the Corporation.
This Warrant Certificate shall be void and all rights represented
hereby shall cease unless exercised on or before 5:00 P.M. local time in the
City of Atlanta, Georgia on December 31, 1999.
Reference is made to the further provisions of the Warrants set forth
herein, which shall have the same effect as though fully set forth on the face
hereof.
The holder hereof has certain registration rights, pursuant to which
the shares of Common Stock issuable upon exercise of this Warrant shall be
registered at the expense of the Corporation.
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
13
WITNESS the facsimile seal of the Corporation and the facsimile
signature of its duly authorized officer.
Dated: November 19, 1996 HALIS, INC.
Countersigned:
-----------------------------
Xxxxx Xxxxxx, President
[CORPORATE SEAL]
SUNTRUST BANK, ATLANTA
as Warrant Agent
By:
---------------------------
Authorized Signature
The securities evidenced hereby were issued and sold without registration under
the Federal Securities Act of 1933, as amended (the "Federal Act"), or the
securities laws of any state, in reliance upon certain exemptive provisions of
said acts. Said securities cannot be sold or transferred except if, in the
opinion of counsel reasonably acceptable to the issuer, any such sale or
transfer would be: (1) pursuant to an effective registration statement under the
Federal Act or pursuant to an exemption from such registration; and (2) in a
transaction which is exempt under applicable state securities laws or pursuant
to an effective registration statement under such laws, or in a transaction
which is otherwise in compliance with such laws.
-2-
14
HALIS, INC.
This Warrant is part of a duly authorized issue of Warrants expiring on
December 31, 1999 (the "Expiration Date"), to purchase, in the aggregate, up to
the number of Shares of Common Stock $.01 par value, of HALIS, Inc. (formerly
known as Xxxxxx Business Systems, Inc.), a Georgia corporation (the
"Corporation"), shown on the face hereof, and is issued pursuant to a Warrant
Agreement dated as of November 19, 1996 (the "Warrant Agreement") between the
Corporation and SunTrust Bank, Atlanta as Warrant Agent (the "Warrant Agent"),
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,
limitations of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Corporation and the holders (the words "holders" or "holder"
meaning the registered holders or registered holder) of the Warrants.
The Warrant evidenced by this Warrant Certificate may be exercised to
purchase Shares of Common Stock from the Corporation on and after November 19,
1996 and on or before the close of business on the Expiration Date, at the
Exercise Price per share set forth on the face hereof, subject to adjustment in
the Exercise Price and the number of Shares of Common Stock purchasable
hereunder as hereinafter referred to, by surrendering this Warrant Certificate,
with the form of election to purchase set forth hereon properly completed and
executed, together with payment of the Exercise Price by cash or certified check
at the principal office of the Warrant Agent in Atlanta, Georgia (the "Warrant
Agent Office"). In the event that upon any exercise of this Warrant the number
of Shares of Common Stock purchased hereunder shall be fewer than the total
number of Shares of Common Stock purchasable upon the exercise hereof there
shall be issued to the holder hereof or his assignee a new Warrant Certificate
evidencing the number of Warrants that have not been exercised. No adjustment
shall be made for any cash dividend on any Shares of Common Stock issuable upon
exercise of this Warrant.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth herein may, subject to specified
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, under certain circumstances, the number of Shares of
Common Stock purchasable upon exercise of this Warrant shall be proportionately
adjusted.
This Warrant shall not be exercisable by a registered holder in any
state where such exercise would be unlawful.
The Corporation shall not be required to issue fractions of Shares of
Common Stock or any certificates which evidence fractional Shares of Common
Stock. In lieu of fractional Share of Common Stock there shall be paid to the
registered holder of a Warrant with regard to which the fractional Share of
Common Stock would otherwise be issuable an amount in cash equal to the same
fraction of the current market value (as determined pursuant to the Warrant
Agreement) of a share of Common Stock.
Warrant Certificates, when surrendered at the Warrant Agent Office by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing, may be combined, split-up or otherwise
exchanged, in the manner and subject to the limitations provided in the Warrant
Agreement, but without payment of any service charge, for another Warrant
Certificate or Warrant Certificates of like tenor evidencing in the aggregate a
like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate the right to purchase
a like number of Shares of Common Stock shall be issued to the transferee in
exchange for this Warrant, subject to the limitations provided in the Warrant
Agreement, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Corporation and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant (notwithstanding any
notation of ownership or other writing thereon made by anyone) for the purpose
of any exercise hereof and any distribution to the holder hereof and for all
other purposes, and neither the Corporation nor the Warrant Agent shall be
affected by any notice to the contrary.
15
ELECTION TO EXERCISE
(To be executed upon exercise of Warrant
prior to the close of business on the Expiration Date)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ______ Shares of Common
Stock and herewith tenders payment for the Shares of Common Stock in the amount
of $________ in accordance with the terms hereof. The undersigned requests that
a certificate representing the Shares of Common Stock be registered in the name
of ______________________________________________ and that the certificate be
delivered to whose address is _________________________________. If said number
of Shares of Common Stock is fewer than all the Shares of Common Stock
purchasable hereunder, the undersigned requests that a new Warrant Certificate
evidencing the right to purchase the balance of the Shares of Common Stock be
registered in the name of whose address is _____________________________________
and that such Warrant Certificate be delivered to_______________________________
whose address is _____________________________________________________.
Any cash payments to be paid in lieu of a fractional Share of Common
Stock should be made to ____________________________________ whose address is .
The check representing payment thereof should be delivered to whose address is
_________________________________________________. Dated this _____ day of
________________, 19____
Name of Registered Holder of Warrant Certificate: ______________________________
Address: __________________________________________________________
_______________________________________________
Social Security Number
Signature: ____________________________________
Signature Guaranteed:
Note: The above signature must correspond with the name as written on the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever and if the Warrant Certificate representing
the right to purchase any Shares of Common Stock to which this Warrant is not
being exercised is to be registered in the name other than that in which this
Warrant Certificate is registered, the signature of the holder hereof must be
guaranteed.
16
ASSIGNMENT FORM
For value received ___________________ hereby sells, assigns and
transfers unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
REGISTERED ASSIGNEE
___________________________________
________________________________________________________________________________
(Please print name and address including zip code of assignee)
________________________________________________________________________________
________________________________________________________________________________
the within Warrant Certificate together with all right, title and interest in
the Warrant evidenced thereby, and does hereby irrevocably constitute and
appoint ______________________________ attorney, to transfer Warrant Certificate
number ______ of HALIS, Inc., on the books of HALIS, Inc. with full power of
substitution in the premises. Dated this ____ day of ______________, 19__
Signature:_____________________________________ Signature Guaranteed:
Note: The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
