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EXHIBIT 10.92(f)
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION TO THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS. THIS WARRANT AND SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS WARRANT, COPIES OF WHICH WILL
BE MADE AVAILABLE UPON REQUEST.
OUTSOURCE INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
No. W-4 August 15, 2000
Warrant to Purchase up to 200,000
Shares of Common Stock
OUTSOURCE INTERNATIONAL, INC., a Florida corporation (the
"Corporation"), for value received, hereby certifies that ABLECO HOLDING LLC, a
Delaware limited liability company, or its registered assigns (the "Holder"), is
entitled to purchase from the Corporation the number of duly authorized, validly
issued, fully paid and nonassessable shares of Common Stock, par value $0.001
per share, of the Corporation (the "Common Stock"), equal to the Warrant
Quantity, at a purchase price of $0.01 per share (the "Warrant"), at any time or
from time to time on and after the date that any Letter of Credit (as defined in
the Financing Agreement) is first drawn upon (the "Exercise Date"), but prior to
5:00 P.M., New York City time, on August 15, 2005 (the "Expiration Date"),
subject to the terms, conditions and adjustments set forth below in this
Warrant; provided, that if all of the Letters of Credit have expired without
having been drawn upon, the Expiration Date shall be the date of expiration of
all such Letters of Credit.
1. Definitions. As used herein, unless the context otherwise
requires, the following terms shall have the meanings indicated:
"Additional Shares of Common Stock" shall mean all shares
(including treasury shares) of Common Stock issued or sold (or, pursuant to
Section 3.3 or 3.4, deemed to be issued) by the Corporation after the date
hereof, whether or not subsequently reacquired or retired by the Corporation,
other than
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(a) shares issued upon the exercise of this Warrant,
(b) such number of additional shares as may become issuable
upon the exercise of this Warrant by reason of adjustments required pursuant to
the anti-dilution provisions applicable to this Warrant as in effect on the date
hereof,
(c) shares, warrants, options and other securities issued by
the Corporation at any time to the Holder or any Affiliate thereof,
(d) (i) shares of Common Stock or options exercisable
therefor, issued or to be issued under any employee stock option, purchase or
bonus plan or plans (including without limitation any profit sharing or 401(k)
matching plans), or pursuant to compensatory or incentive agreements, for
directors, officers, employees or consultants of the Corporation or any of its
Subsidiaries, in each case adopted or assumed after such date by the
Corporation's Board of Directors and stockholders; provided in each case that
the exercise or purchase price or other consideration for any such share shall
not be less than 85% of the fair market value of the Common Stock (as determined
in the reasonable business judgment of the Corporation's Board of Directors) on
the date of the grant, and (ii) such additional number of shares as may become
issuable pursuant to the terms of any such plans or agreements by reason of
adjustments required pursuant to antidilution provisions applicable to such
securities in order to reflect any subdivision or combination of Common Stock,
by reclassification or otherwise, or any dividend on Common Stock payable in
Common Stock,
(e) shares of Common Stock issuable upon the exercise of
currently outstanding warrants, as set forth in the Financing Agreement, to
purchase Common Stock,
(f) shares of Common Stock issued at a price per share of not
less than the Current Market Price at the time of issuance and having an
aggregate market value (based on such Current Market Price) not in excess of
$2,000,000, which is used by the Company to satisfy certain tax indemnification
obligations owing by the Company to the initial shareholders of the Company, or
(g) shares of Common Stock issued at a price per share of not
less than $7.00 per share in exchange for the cancellation of subordinated
promissory notes issued in connection with past acquisitions.
"Business Day" shall mean any day other than a Saturday or a
Sunday or any day on which national banks are authorized or required by law to
close. Any reference to "days" (unless Business Days are specified) shall mean
calendar days.
"Commission" shall mean the Securities and Exchange Commission
or any successor agency having jurisdiction to enforce the Securities Act.
"Common Stock" shall have the meaning assigned to it in the
introduction to this Warrant, such term to include any stock into which such
Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock, and all other stock of
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any class or classes (however designated) of the Corporation the holders of
which 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.
"Corporation" shall have the meaning assigned to it in the
introduction to this Warrant, such term to include any corporation or other
entity which shall succeed to or assume the obligations of the Corporation
hereunder in compliance with Section 4.
"Convertible Securities" shall mean any evidences of
indebtedness, shares of stock (other than Common Stock) or other securities
directly or indirectly convertible into or exchangeable for Additional Shares of
Common Stock.
"Current Market Price" shall mean, on any date specified
herein, the average of the daily Market Price during the 10 consecutive trading
days commencing 15 trading days before such date, except that, if on any such
date the shares of Common Stock are not listed or admitted for trading on any
national securities exchange or quoted in the over-the-counter market, the
Current Market Price shall be the Market Price on such date; provided, that in
respect of shares of Common Stock issued under any plans or arrangements of the
types referred to in clause (d) of the definition of "Additional Shares of
Common Stock," Current Market Value shall mean the "current market value," "fair
market value" or comparable term (if any) that is defined in such plan.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"Exercise Date" shall have the meaning assigned to it in the
introduction to this Warrant.
"Expiration Date" shall have the meaning assigned to it in the
introduction to this Warrant.
"Fair Value" shall mean, on any date specified herein (i) in
the case of cash, the dollar amount thereof, (ii) in the case of a security, the
Current Market Price, and (iii) in all other cases, the fair value thereof (as
of a date which is within 20 days of the date as of which the determination is
to be made) determined jointly by the Corporation and the Holder; provided,
however, that if such parties are unable to reach agreement within a reasonable
period of time, the Fair Value shall be determined in good faith, by an
independent investment banking firm selected jointly by the Corporation and the
Holder or, if that selection cannot be made within ten days, by an independent
investment banking firm selected by the American Arbitration Association in
accordance with its rules, and provided further, that the Corporation shall pay
all of the fees and expenses of any third parties incurred in connection with
determining the Fair Value.
"Financing Agreement" shall mean that certain Financing
Agreement, dated as of the date hereof, as amended or otherwise modified from
time to time, among the Corporation,
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Outsource International of America, Inc., Outsource Franchising, Inc., Guardian
Employer East, LLC, Guardian Employer West, LLC, the guarantors party thereto,
Ableco Finance LLC, as collateral agent and The CIT Group/Business Credit, Inc.,
as the administrative agent.
"Holder" shall have the meaning assigned to it in the
introduction to this Warrant.
"Initial Warrant Quantity" shall mean, at any time of
determination, that amount of shares of Common Stock equal to (a) the product
obtained by multiplying (i) 200,000 shares by (ii) a fraction (A) the numerator
of which shall be the aggregate amount drawn (without duplication) under all
Letters of Credit on or prior to the date of determination and (B) the
denominator of which shall be the initial aggregate stated amounts of all such
Letters of Credit, minus (b) the aggregate amount of shares of Common Stock
already issued upon the exercise of this Warrant on or prior to the date of
determination; provided, however, that if a draw occurs under any Letter of
Credit at any time that an Event of Default (as defined in the Financing
Agreement) has occurred and is continuing, the Initial Warrant Quantity shall be
equal to 200,000 shares of Common Stock minus the aggregate amount of shares of
Common Stock already issued upon the exercise of this Warrant on or prior to the
date of determination pursuant to the terms hereof without regard to the amount
drawn upon under such Letters of Credit.
"Market Price" shall mean, on any date specified herein, the
amount per share of the Common Stock, equal to (i) the last reported sale price
of such Common Stock, regular way, on such date or, in case no such sale takes
place on such date, the average of the closing bid and asked prices thereof
regular way on such date, in either case as officially reported on the principal
national securities exchange on which such Common Stock is then listed or
admitted for trading, (ii) if such Common Stock is not then listed or admitted
for trading on any national securities exchange but is designated as a national
market system security by the NASD, the last reported trading price of the
Common Stock on such date, (iii) if there shall have been no trading on such
date or if the Common Stock is not so designated, the average of the closing bid
and asked prices of the Common Stock on such date as shown by the NASD automated
quotation system, or (iv) if such Common Stock is not then listed or admitted
for trading on any national exchange or quoted in the over-the-counter market,
the fair value thereof (as of a date which is within 20 days of the date as of
which the determination is to be made) determined in good faith by an
independent investment banking firm selected jointly by the Corporation and the
Holder or, if that selection cannot be made within ten days, by an independent
investment banking firm selected by the American Arbitration Association in
accordance with its rules, and provided further, that the Corporation shall pay
all of the fees and expenses of any third parties incurred in connection with
determining the Market Price.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Options" shall mean any rights, options or warrants to
subscribe for, purchase or otherwise acquire either Additional Shares of Common
Stock or Convertible Securities.
"Other Securities" shall mean any stock (other than Common
Stock) and other securities of the Corporation or any other Person (corporate or
otherwise) which the holders of this Warrant at any time shall be entitled to
receive, or shall have received, upon the exercise of
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this Warrant, in lieu of or in addition to Common Stock, or which at any time
shall be issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to Section 4 or otherwise.
"Person" shall mean any individual, firm, partnership,
corporation, trust, joint venture, association, joint stock company, limited
liability company, unincorporated organization or any other entity or
organization, including a government or agency or political subdivision thereof,
and shall include any successor (by merger or otherwise) of such entity.
"Purchase Price" shall mean $0.01 per share.
"Registration Rights Agreement" shall mean the Registration
Rights Agreement dated as of the date hereof between the Corporation and the
Holder.
"Restricted Securities" shall mean (i) any warrants bearing
the applicable legend set forth in Section 10.1, (ii) any shares of Common Stock
(or Other Securities) issued or issuable upon the exercise of this Warrant which
are (or, upon issuance, will be) evidenced by a certificate or certificates
bearing the applicable legend set forth in such Section, and (iii) any shares of
Common Stock (or Other Securities) issued subsequent to the exercise of this
Warrant as a dividend or other distribution with respect to, or resulting from a
subdivision of the outstanding shares of Common Stock (or other Securities) into
a greater number of shares by reclassification, stock splits or otherwise, or in
exchange for or in replacement of the Common Stock (or Other Securities) issued
upon such exercise, which are evidenced by a certificate or certificates bearing
the applicable legend set forth in such Section.
"Rights" shall have the meaning assigned to it in Section
3.10.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"Warrant Quantity" initially shall mean the Initial Warrant
Quantity, which amount shall be subject to adjustment and readjustment from time
to time as provided in Section 3, and, as so adjusted or readjusted, shall
remain in effect until a further adjustment or readjustment is required by
Section 3.
"Warrant" shall have the meaning assigned to it in the
introduction to this Warrant.
2. Exercise of Warrant.
2.1. Manner of Exercise; Payment of the Purchase Price. (a)
This Warrant may be exercised by the Holder hereof, in whole or in part, at any
time or from time to time after the Exercise Date through the Expiration Date,
by surrendering to the Corporation at its principal office this Warrant, with
the form of Election to Purchase Shares attached hereto as Exhibit A (or a
reasonable facsimile thereof) duly executed by the Holder and accompanied by
payment of the Purchase Price for the number of shares of Common Stock specified
in such form.
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(b) Payment of the Purchase Price may be made as follows (or
by any combination of the following): (i) in United States currency by cash or
delivery of a certified check or bank draft payable to the order of the
Corporation or by wire transfer to the Corporation, (ii) by cancellation of all
or any part of the unpaid principal amount of the then-outstanding Obligations
(as defined in the Financing Agreement) in an amount equal to the Purchase
Price, (iii) by cancellation of such number of the shares of Common Stock
otherwise issuable to the Holder upon such exercise as shall be specified in
such Election to Purchase Shares, such that the excess of the aggregate Current
Market Price of such specified number of shares on the date of exercise over the
portion of the Purchase Price attributable to such shares shall equal the
Purchase Price attributable to the shares of Common Stock to be issued upon such
exercise, in which case such amount shall be deemed to have been paid to the
Corporation and the number of shares issuable upon such exercise shall be
reduced by such specified number, or (iv) by surrender to the Corporation for
cancellation certificates representing shares of Common Stock of the Corporation
owned by the Holder (properly endorsed for transfer in blank) having a Current
Market Price on the date of Warrant exercise equal to the Purchase Price.
2.2. When Exercise Effective. Each exercise of this Warrant
shall be deemed to have been effected immediately prior to the close of business
on the Business Day on which this Warrant shall have been surrendered to, and
the Purchase Price shall have been received by, the Corporation as provided in
Section 2.1, and at such time the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock (or Other Securities)
shall be issuable upon such exercise as provided in Section 2.3 shall be deemed
to have become the holder or holders of record thereof for all purposes.
2.3. Delivery of Stock Certificates, etc.; Charges, Taxes and
Expenses. (a) As soon as practicable after each exercise of this Warrant, in
whole or in part, and in any event within ten days thereafter, the Corporation
shall cause to be issued in the name of and delivered to the Holder hereof or,
subject to Section 10, as the Holder may direct,
(i) a certificate or certificates for the number of
shares of Common Stock (or Other Securities) to which the Holder shall
be entitled upon such exercise plus, in lieu of issuance of any
fractional share to which the Holder would otherwise be entitled, if
any, a check for the amount of cash equal to the same fraction
multiplied by the Current Market Price per share on the date of Warrant
exercise, and
(ii) in case such exercise is for less than all of
the shares of Common Stock purchasable under this Warrant, a new
Warrant or Warrants of like tenor, for the balance of the shares of
Common Stock purchasable hereunder.
(b) Issuance of certificates for shares of Common Stock upon
the exercise of this Warrant shall be made without charge to the Holder hereof
for any issue or other incidental expense, in respect of the issuance of such
certificates, all of which such taxes and expenses shall be paid by the
Corporation; provided, however, that in the event certificates for shares of
Common Stock (or Other Securities) are to be issued in a name other than the
name of the
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Holder, the Corporation may require as a condition thereof, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
2.4. Corporation to Reaffirm Obligations. The Corporation
shall, at the time of each exercise of this Warrant, upon the request of the
Holder hereof, acknowledge in writing its continuing obligation to afford to
such Holder all rights to which such Holder shall continue to be entitled after
such exercise in accordance with the terms of this Warrant, provided that if the
Holder of this Warrant shall fail to make any such request, such failure shall
not affect the continuing obligation of the Corporation to afford such rights to
the Holder.
2.5. Tax Basis. The Corporation and the Holder hereby agree
that the tax basis of this Warrant for purposes of the Internal Revenue Code of
1986, as amended, shall be $1,000, and the treatment of this Warrant under such
Code by each of the Corporation and the Holder shall be consistent with such
agreement.
3. Adjustment of Common Stock Issuable Upon Exercise.
3.1. General; Warrant Quantity. This Warrant evidences the
right to purchase a number of shares of Common Stock equal to the Warrant
Quantity, subject to adjustment and readjustment as provided in this Section 3.
3.2. Adjustment of Warrant Quantity.
3.2.1. Issuance of Additional Shares of Common Stock. In case
the Corporation at any time or from time to time after the date hereof shall
issue or sell Additional Shares of Common Stock (including Additional Shares of
Common Stock deemed to be issued pursuant to Section 3.3 or 3.4, but excluding
Additional Shares of Common Stock purchasable upon exercise of Rights referred
to in Section 3.10), the Warrant Quantity shall be increased, concurrently with
such issue or sale, to an amount determined by multiplying such Warrant Quantity
by a fraction
(a) the numerator of which shall be the number of shares of
Common Stock outstanding immediately after such issue or sale, provided that,
for the purposes of this Section 3.2.1, (i) immediately after any Additional
Shares of Common Stock are deemed to have been issued pursuant to Section 3.3 or
3.4, such Additional Shares shall be deemed to be outstanding, and (ii) treasury
shares shall not be deemed to be outstanding, and
(b) the denominator of which shall be the sum of (x) the
number of shares of Common Stock outstanding immediately prior to such issue or
sale and (y) the number of shares of Common Stock which the aggregate
consideration received by the Corporation for the total number of such
Additional Shares of Common Stock so issued or sold would purchase at such
Current Market Price.
3.2.2. Extraordinary Dividends and Distributions. In case the
Corporation at any time or from time to time after the date hereof shall
declare, order, pay or make a dividend or other distribution (including, without
limitation, any distribution of other or additional stock or other securities or
property or Options by way of dividend or spin-off, reclassification,
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recapitalization or similar corporate rearrangement) on the Common Stock other
than (a) a dividend payable in Additional Shares of Common Stock or (b) a
dividend of Rights referred to in Section 3.10 hereof, then, in each such case,
the Corporation shall pay to the Holder of this Warrant, at the time such
dividend or distribution is paid to the holders of the Common Stock, an amount
equal to the product of (i) the Warrant Quantity and (ii) the Fair Value of such
dividend or distribution at the time of such dividend or distribution applicable
to one share of Common Stock; provided, that payment in respect of a dividend or
distribution made prior to the Exercise Date shall only be made by the
Corporation to the Holder if and when this Warrant becomes exercisable.
3.3. Treatment of Options and Convertible Securities. In case
the Corporation at any time or from time to time after the date hereof shall
issue, sell, grant or assume, or shall fix a record date for the determination
of holders of any class of securities of the Corporation entitled to receive,
any Options or Convertible Securities (whether or not the rights thereunder are
immediately exercisable), then, and in each such case, the maximum number of
Additional Shares of Common Stock (as set forth in the instrument relating
thereto, without regard to any provisions contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such Options or, in the
case of Convertible Securities and Options therefor, the conversion or exchange
of such Convertible Securities, shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issue, sale, grant or assumption or,
in case such a record date shall have been fixed, as of the close of business on
such record date (or, if the Common Stock trades on an ex-dividend basis, on the
date prior to the commencement of ex-dividend trading), provided, that, such
Additional Shares of Common Stock shall not be deemed to have been issued unless
(i) the consideration per share (determined pursuant to Section 3.5) of such
shares would be less than the Current Market Price in effect on the date of and
immediately prior to such issue, sale, grant or assumption or immediately prior
to the close of business on such record date (or, if the Common Stock trades on
an ex-dividend basis, on the date prior to the commencement of ex-dividend
trading), as the case may be, and (ii) such Additional Shares of Common Stock
are not purchasable pursuant to Rights referred to in Section 3.10, and
provided, further, that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
(a) whether or not the Additional Shares of Common Stock
underlying such Options or Convertible Securities are deemed to be issued, no
further adjustment of the Warrant Quantity shall be made upon the subsequent
issue or sale of Convertible Securities or shares of Common Stock upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities, except in the case of any such Options or Convertible Securities
which contain provisions requiring an adjustment, subsequent to the date of the
issue or sale thereof, of the number of Additional Shares of Common Stock
issuable upon the exercise of such Options or the conversion or exchange of such
Convertible Securities by reason of (x) a change of control of the Corporation,
(y) the acquisition by any Person or group of Persons of any specified number or
percentage of the voting securities of the Corporation or (z) any similar event
or occurrence, each such case to be deemed hereunder to involve a separate
issuance of Additional Shares of Common Stock, Options or Convertible
Securities, as the case may be;
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(b) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Corporation, or decrease in the number of
Additional Shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof (by change of rate or otherwise), the Warrant Quantity computed
upon the original issue, sale, grant or assumption thereof (or upon the
occurrence of the record date, or date prior to the commencement of ex-dividend
trading, as the case may be, with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options, or the rights of conversion or exchange under such
Convertible Securities, which are outstanding at such time;
(c) upon the expiration (or purchase by the Corporation and
cancellation or retirement) of any such Options which shall not have been
exercised or the expiration of any rights of conversion or exchange under any
such Convertible Securities which (or purchase by the Corporation and
cancellation or retirement of any such Convertible Securities the rights of
conversion or exchange under which) shall not have been exercised, the Warrant
Quantity computed upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of the record date, or date prior to the commencement of
ex-dividend trading, as the case may be, with respect thereto), and any
subsequent adjustments based thereon, shall, upon such expiration (or such
cancellation or retirement, as the case may be), be recomputed as if:
(i) in the case of Options for Common Stock or
Convertible Securities, the only Additional Shares of Common Stock
issued or sold were the Additional Shares of Common Stock, if any,
actually issued or sold upon the exercise of such Options or the
conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually received
by the Corporation for the issue, sale, grant or assumption of all such
Options, whether or not exercised, plus the consideration actually
received by the Corporation (pursuant to Section 3.5) upon such
exercise, or for the issue or sale of all such Convertible Securities
which were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Corporation upon such
conversion or exchange, and
(ii) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually issued or
sold upon the exercise of such Options were issued at the time of the
issue or sale, grant or assumption of such Options, and the
consideration received by the Corporation for the Additional Shares of
Common Stock deemed to have then been issued was the consideration
actually received by the Corporation for the issue, sale, grant or
assumption of all such Options, whether or not exercised, plus the
consideration deemed to have been received by the Corporation (pursuant
to Section 3.5) upon the issue or sale of such Convertible Securities
with respect to which such Options were actually exercised;
(d) no readjustment pursuant to subdivision (b) or (c) above
shall have the effect of decreasing the Warrant Quantity by an amount in excess
of the amount of the
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adjustment thereof originally made in respect of the issue, sale, grant or
assumption of such Options or Convertible Securities; and
(e) in the case of any such Options which expire by their
terms not more than 30 days after the date of issue, sale, grant or assumption
thereof, no adjustment of the Warrant Quantity shall be made until the
expiration or exercise of all such Options, whereupon such adjustment shall be
made in the manner provided in subdivision (c) above.
3.4. Treatment of Stock Dividends, Stock Splits, etc. In case
the Corporation at any time or from time to time after the date hereof shall
declare or pay any dividend on the Common Stock payable in Common Stock, or
shall effect a subdivision of the outstanding shares of Common Stock into a
greater number of shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in Common Stock), then, and in each such case,
Additional Shares of Common Stock shall be deemed to have been issued (a) in the
case of any such dividend, immediately after the close of business on the record
date for the determination of holders of any class of securities entitled to
receive such dividend, or (b) in the case of any such subdivision, at the close
of business on the day immediately prior to the day upon which such corporate
action becomes effective.
3.5. Computation of Consideration. For the purposes of this
Section 3,
(a) the consideration for the issue or sale of any Additional
Shares of Common Stock shall, irrespective of the accounting treatment of such
consideration,
(i) insofar as it consists of cash, be computed at the
amount of cash received by the Corporation, without deducting any
expenses paid or incurred by the Corporation or any commissions or
compensations paid or concessions or discounts allowed to underwriters,
dealers or others performing similar services in connection with such
issue or sale,
(ii) insofar as it consists of property (including
securities) other than cash, be computed at the Fair Value thereof at
the time of such issue or sale, and
(iii) in case Additional Shares of Common Stock are issued
or sold together with other stock or securities or other assets of the
Corporation for a consideration which covers both, be the portion of
such consideration so received, computed as provided in clauses (i) and
(ii) above, allocable to such Additional Shares of Common Stock, such
allocation to be determined in the same manner that the Fair Value of
property not consisting of cash or securities is to be determined as
provided in the definition of "Fair Value" herein;
(b) Additional Shares of Common Stock deemed to have been
issued pursuant to Section 3.3, relating to Options and Convertible Securities,
shall be deemed to have been issued for a consideration per share determined by
dividing
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(i) the total amount, if any, received and receivable by
the Corporation as consideration for the issue, sale, grant or
assumption of the Options or Convertible Securities in question, plus
the minimum aggregate amount of additional consideration (as set forth
in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration)
payable to the Corporation upon the exercise in full of such Options or
the conversion or exchange of such Convertible Securities or, in the
case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of
such Convertible Securities, in each case computing such consideration
as provided in the foregoing subdivision (a),
by
(ii) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the conversion or
exchange of such Convertible Securities; and
(c) Additional Shares of Common Stock deemed to have been
issued pursuant to Section 3.4, relating to stock dividends, stock splits, etc.,
shall be deemed to have been issued for no consideration.
3.6. Adjustments for Combinations, etc. In case the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Warrant Quantity in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately decreased.
3.7. Dilution in Case of Other Securities. In case any Other
Securities shall be issued or sold or shall become subject to issue or sale upon
the conversion or exchange of any stock (or Other Securities) of the Corporation
(or any issuer of Other Securities or any other Person referred to in Section 4)
or to subscription, purchase or other acquisition pursuant to any Options issued
or granted by the Corporation (or any such other issuer or Person) for a
consideration such as to dilute, on a basis consistent with the standards
established in the other provisions of this Section 3, the purchase rights
granted by this Warrant, then, and in each such case, the computations,
adjustments and readjustments provided for in this Section 3 with respect to the
Warrant Quantity shall be made as nearly as possible in the manner so provided
and applied to determine the amount of Other Securities from time to time
receivable upon the exercise of this Warrant, so as to protect the Holder of
this Warrant against the effect of such dilution.
3.8. De Minimis Adjustments. If the amount of any adjustment
of the Warrant Quantity required pursuant to this Section 3 would be less than
one-tenth (1/10) of one percent (1%) of the Warrant Quantity in effect at the
time such adjustment is otherwise so required to be made, such amount shall be
carried forward, and adjustment with respect thereto made, at the time of and
together with any subsequent adjustment which, together with such amount and any
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other amount or amounts so carried forward, shall aggregate a change in the
Warrant Quantity of at least one-tenth (1/10) of one percent (1%) of such
Warrant Quantity. All calculations under this Warrant shall be made to the
nearest one-hundredth of a share.
3.9. Abandoned Dividend or Distribution. If the Corporation
shall take a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend or other distribution (which results in an
adjustment to the Warrant Quantity under the terms of this Warrant) and shall,
thereafter, and before such dividend or distribution is paid or delivered to
stockholders entitled thereto, legally abandon its plan to pay or deliver such
dividend or distribution, then any adjustment made to the Warrant Quantity by
reason of the taking of such record shall be reversed, and any subsequent
adjustments, based thereon, shall be recomputed.
3.10. Stockholder Rights Plan. Notwithstanding the foregoing,
in the event that the Corporation shall distribute "poison pill" rights pursuant
to a "poison pill" stockholder rights plan (the "Rights"), the Corporation
shall, in lieu of making any adjustment pursuant to Section 3.2.1 or Section
3.2.2 hereof, make proper provision so that each Holder who exercises a Warrant
after the record date for such distribution and prior to the expiration or
redemption of the Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, a number of
Rights to be determined as follows: (i) if such exercise occurs on or prior to
the date for the distribution to the holders of Rights of separate certificates
evidencing such Rights (the "Distribution Date"), the same number of Rights to
which a holder of a number of shares of Common Stock equal to the number of
shares of Common Stock issuable upon such exercise at the time of such exercise
would be entitled in accordance with the terms and provisions of, and applicable
to, the Rights; and (ii) if such exercise occurs after the Distribution Date,
the same number of Rights to which a holder of the number of shares into which
this Warrant so exercised was exercisable immediately prior to the Distribution
Date would have been entitled on the Distribution Date in accordance with the
terms and provisions of and applicable to the Rights.
4. Consolidation, Merger, etc.
4.1. Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. In case the Corporation after the date hereof (a) shall
consolidate with or merge into any other Person and shall not be the continuing
or surviving corporation of such consolidation or merger, (b) shall permit any
other Person to consolidate with or merge into the Corporation and the
Corporation shall be the continuing or surviving Person but, in connection with
such consolidation or merger, the Common Stock or Other Securities shall be
changed into or exchanged for stock or other securities of any other Person or
cash or any other property, (c) shall transfer all or substantially all of its
properties or assets to any other Person, or (d) shall effect a capital
reorganization or reclassification of the Common Stock or Other Securities
(other than a capital reorganization or reclassification resulting in the issue
of Additional Shares of Common Stock for which adjustment in the Warrant
Quantity is provided in Section 3.2.1 or 3.2.2), then, and in the case of each
such transaction, proper provision shall be made so that, upon the basis and the
terms and in the manner provided in this Warrant, the Holder of this Warrant,
upon the exercise hereof at any time after the consummation of such transaction,
shall
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be entitled to receive (at the aggregate Purchase Price in effect at the time of
such consummation for all Common Stock or Other Securities issuable upon such
exercise immediately prior to such consummation), in lieu of the Common Stock or
Other Securities issuable upon such exercise prior to such consummation, the
highest amount of securities, cash or other property to which such Holder would
actually have been entitled as a stockholder upon such consummation if such
Holder had exercised this Warrant immediately prior thereto, subject to
adjustments (subsequent to such consummation) as nearly equivalent as possible
to the adjustments provided for in Sections 3 through 5.
4.2. Assumption of Obligations. Notwithstanding anything
contained in this Warrant or in the Financing Agreement to the contrary, the
Corporation shall not effect any of the transactions described in clauses (a)
through (d) of Section 4.1 unless, prior to the consummation thereof, each
Person (other than the Corporation) which may be required to deliver any stock,
securities, cash or property upon the exercise of this Warrant as provided
herein shall assume, by written instrument delivered to, and reasonably
satisfactory to, the Holder of this Warrant, (a) the obligations of the
Corporation under this Warrant (and if the Corporation shall survive the
consummation of such transaction, such assumption shall be in addition to, and
shall not release the Corporation from, any continuing obligations of the
Corporation under this Warrant), (b) the obligations of the Corporation under
the Registration Rights Agreement and (c) the obligation to deliver to the
Holder such shares of stock, securities, cash or property as, in accordance with
the foregoing provisions of this Section 4, the Holder may be entitled to
receive and such Person shall have similarly delivered to the Holder an opinion
of counsel for such Person, which counsel shall be reasonably satisfactory to
the Holder, stating that this Warrant shall thereafter continue in full force
and effect and the terms hereof (including, without limitation, all of the
provisions of this Section 4) shall be applicable to the stock, securities, cash
or property which such Person may be required to deliver upon any exercise of
this Warrant or the exercise of any rights pursuant hereto. Nothing in this
Section 4 shall be deemed to authorize the Corporation to enter into any
transaction not otherwise permitted by the Financing Agreement.
5. Other Dilutive Events. In case any event shall occur as
to which, the provisions of Section 3 or Section 4 hereof are not strictly
applicable or if strictly applicable would not fairly protect the purchase
rights of the Holder in accordance with the essential intent and principles of
such Sections, then, in each such case, the Board of Directors of the
Corporation shall make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to preserve, without
dilution, the purchase rights represented by this Warrant.
6. No Dilution or Impairment. The Corporation shall not, by
amendment of its certificate of incorporation or through any consolidation,
merger, reorganization, transfer of assets, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms, and in the taking of
all such action, as may be necessary or appropriate in order to protect the
rights of the Holder of this Warrant against dilution or other impairment.
Without limiting the generality of the
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foregoing, the Corporation (a) shall not permit the par value of any shares of
stock receivable upon the exercise of this Warrant to exceed the amount payable
therefor upon such exercise, (b) shall take all such action as may be necessary
or appropriate in order that the Corporation may validly and legally issue fully
paid and nonassessable shares of stock, free from all taxes, liens, security
interests, encumbrances, preemptive rights and charges on the exercise of this
Warrant from time to time outstanding, (c) shall not take any action which
results in any adjustment of the Warrant Quantity if the total number of shares
of Common Stock (or Other Securities) issuable after the action upon the
exercise of all of this Warrant would exceed the total number of shares of
Common Stock (or Other Securities) then authorized by the Corporation's
certificate of incorporation and available for the purpose of issue upon such
exercise, and (d) shall not issue any capital stock of any class which is
preferred as to dividends or as to the distribution of assets upon voluntary or
involuntary dissolution, liquidation or winding up, unless the rights of the
holders thereof shall be limited to a fixed sum or percentage of par value or a
sum determined by reference to a formula based on a published index of interest
rates, an interest rate publicly announced by a financial institution or a
similar indicator of interest rates in respect of participation in dividends and
to a fixed sum or percentage of par value in any such distribution of assets.
7. ACCOUNTANTS' REPORT. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable upon
the exercise of this Warrant, the Corporation, at its sole expense, shall
promptly compute such adjustment or readjustment in accordance with the terms of
this Warrant and cause independent certified public accountants of recognized
national standing (which may be the regular auditors of the Corporation)
selected by the Corporation to verify such computation (other than any
computation of the Fair Value of property) and prepare a report setting forth
such adjustment or readjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which such adjustment or readjustment is
based, including a statement of (a) the consideration received or to be received
by the Corporation for any Additional Shares of Common Stock issued or sold or
deemed to have been issued, (b) the number of shares of Common Stock outstanding
or deemed to be outstanding, and (c) the Warrant Quantity in effect immediately
prior to such issue or sale and as adjusted and readjusted (if required by
Section 3) on account thereof. The Corporation shall forthwith mail a copy of
each such report to each holder of a Warrant and shall, upon the written request
at any time of any holder of a Warrant, furnish to such holder a like report.
The Corporation shall also keep copies of all such reports at its principal
office and shall cause the same to be available for inspection at such office
during normal business hours by any holder of a Warrant or any prospective
purchaser of a Warrant designated by the holder thereof.
8. Notices of Corporate Action. In the event of:
(a) any taking by the Corporation of a record of the holders
of any class of securities 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 stock of any class or
any other securities or property, or to receive any other right, or
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(b) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the Corporation,
any consolidation or merger involving the Corporation and any other Person, any
transaction or series of transactions by the Corporation in which more than 50%
of the voting securities of the Corporation are transferred to another Person,
or any transfer, sale or other disposition of all or substantially all the
assets of the Corporation to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation,
the Corporation shall mail to each holder of a Warrant a notice specifying (i)
the date or expected date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and character of
such dividend, distribution or right, and (ii) the date or expected date on
which any such reorganization, reclassification, recapitalization,
consolidation, merger, transfer, sale, disposition, dissolution, liquidation or
winding-up is to take place and the time, if any such time is to be fixed, as of
which the holders of record of Common Stock (or Other Securities) shall be
entitled to exchange their shares of Common Stock (or Other Securities) for the
securities or other property deliverable upon such reorganization,
reclassification, recapitalization, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 30
days prior to the date therein specified.
9. Registration of Common Stock. If any shares of Common
Stock required to be reserved for purposes of exercise of this Warrant require
registration with or approval of any governmental authority under any federal or
state law (other than the Securities Act) before such shares may be issued upon
exercise, the Corporation shall, at its expense and as expeditiously as
possible, use its best efforts to cause such shares to be duly registered or
approved, as the case may be. At any such time as Common Stock is listed on any
national securities exchange, the Corporation shall, at its expense, obtain
promptly and maintain the approval for listing on each such exchange, upon
official notice of issuance, the shares of Common Stock issuable upon exercise
of the then outstanding warrants and maintain the listing of such shares after
their issuance; and the Corporation shall also list on such national securities
exchange, shall register under the Exchange Act and shall maintain such listing
of, any Other Securities that at any time are issuable upon exercise of the
warrants, if and at the time that any securities of the same class shall be
listed on such national securities exchange by the Corporation.
10. Restrictions on Transfer.
10.1. Restrictive Legends. Except as otherwise permitted by
this Section 10, each Warrant (including each Warrant issued upon the transfer
of any Warrant) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
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PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION
TO THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS. THIS
WARRANT AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS
WARRANT, COPIES OF WHICH WILL BE MADE AVAILABLE UPON REQUEST."
Except as otherwise permitted by this Section 10, each certificate for Common
Stock (or Other Securities) issued upon the exercise of any Warrant, and each
certificate issued upon the transfer of any such Common Stock (or Other
Securities), shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND SUCH LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE CONDITIONS
SPECIFIED IN THE COMMON STOCK PURCHASE WARRANT ISSUED BY OUTSOURCE
INTERNATIONAL, INC., PURSUANT TO THE FINANCING AGREEMENT, DATED AS OF
AUGUST 15, 2000, AS AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME,
AMONG OUTSOURCE INTERNATIONAL, INC., OUTSOURCE INTERNATIONAL OF
AMERICA, INC., GUARDIAN EMPLOYER EAST, LLC, GUARDIAN WEST, LLC, THE
GUARANTORS PARTY THERETO, ABLECO FINANCE LLC, AS COLLATERAL AGENT AND
THE CIT GROUP/BUSINESS CREDIT, INC., AS ADMINISTRATIVE AGENT, A
COMPLETE AND CORRECT COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE
PRINCIPAL OFFICE OF THE ISSUER HEREOF AND WILL BE FURNISHED TO THE
HOLDER OF SUCH SECURITIES UPON WRITTEN REQUEST AND WITHOUT CHARGE."
10.2. Transfer to Comply With the Securities Act. Restricted
Securities may not be sold, assigned, pledged, hypothecated, encumbered or in
any manner transferred or disposed of, in whole or in part, except pursuant to
(i) an effective registration statement under the Securities Act and/or
applicable state securities or Blue Sky laws or (ii) an exemption from
registration under the Securities Act and such laws which, in the opinion of
counsel for the Holder, which counsel and opinion are reasonably satisfactory to
the Company, is available; provided, that no opinion of counsel shall be
required for any transfer to an affiliate of the Holder.
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10.3. Termination of Restrictions. The restrictions imposed by
this Section 10 on the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) when a registration
statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (b) when such securities are
sold pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, or (c) when, in the opinion of both counsel for the Holder and
counsel for the Corporation, such restrictions are no longer required or
necessary in order to protect the Corporation against a violation of the
Securities Act upon any sale or other disposition of such securities without
registration thereunder. Whenever such restrictions shall cease and terminate as
to any Restricted Securities, the Holder shall be entitled to receive from the
Corporation, without expense, new securities of like tenor not bearing the
applicable legends required by Section 10.1.
11. REPRESENTATIONS OF THE CORPORATION.
11.1. Organization and Qualification. The Corporation is a
corporation duly organized and validly existing in good standing under the laws
of the jurisdiction in which it is incorporated, and has the requisite corporate
power to own its properties and to carry on its business as now being conducted.
The Corporation is duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary.
11.2 Authorization; Enforcement; Compliance with Other
Instruments. (i) The Corporation has the requisite corporate power and authority
to enter into and perform its obligations under this Warrant and the
Registration Rights Agreement and to issue the shares of Common Stock issuable
upon exercise of this Warrant, (the "Warrant Shares") upon the exercise of this
Warrant, in accordance with the terms hereof, (ii) the execution and delivery of
this Warrant and the Registration Rights Agreement by the Corporation and the
consummation by it of the transactions contemplated hereby and thereby,
including, without limitation, the issuance of this Warrant and the reservation
for issuance and the issuance of the Warrant Shares, upon exercise of this
Warrant, have been duly authorized by the Corporation's Board of Directors and
no further consent or authorization is required by the Corporation, its Board of
Directors or its stockholders, (iii) this Warrant and the Registration Rights
Agreement have been duly executed and delivered by the Corporation, and (iv)
this Warrant and the Registration Rights Agreement constitute valid and binding
obligations of the Corporation enforceable against the Corporation in accordance
with their terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the
enforcement of creditors' rights and remedies.
11.3. Capitalization and Indebtedness. As of the date hereof,
the authorized capital stock of the Corporation consists of (i) 100,000,000
shares of Common Stock, par value $0.001 per share, of which, as of the date
hereof, 8,657,913 shares are issued and outstanding, plus 29,575 additional
shares authorized for issuance, but not yet issued and outstanding, 1,853,767
shares of Common Stock are issuable upon the exercise of outstanding stock
options and 1,179,413 shares of Common Stock are issuable upon the exercise of
outstanding warrants
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and (ii) 10,000,000 shares of Preferred Stock, par value $0.001 per share, of
which, as of the date hereof, none of which are issued and outstanding. All of
the outstanding shares of Common Stock have been validly issued and are fully
paid and nonassessable. Except as set forth in the Financing Agreement, no
shares of Common Stock are subject to preemptive rights or any other similar
rights or any liens or encumbrances suffered or permitted by the Corporation.
Except as set forth in the Financing Agreement and as contemplated by this
Warrant, as of the date hereof, (i) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Corporation or any of its subsidiaries, or contracts, commitments,
understandings or arrangements by which the Corporation or any of its
subsidiaries is or may become bound to issue additional shares of capital stock
of the Corporation or any of its subsidiaries or options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Corporation or any of its subsidiaries, and (ii) there are no
agreements or arrangements under which the Corporation or any of its
subsidiaries is obligated to register the sale of any of their securities under
the Securities Act (except the Registration Rights Agreement). Except as set
forth in the Financing Agreement, there are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by the
issuance of this Warrant or, upon exercise of this Warrant, the issuance of the
Warrant Shares.
11.4 Issuance of Warrant and Warrant Shares. This Warrant is
duly authorized and, except as set forth in the Financing Agreement, shall not
be subject to preemptive rights or other similar rights of stockholders of the
Corporation. The Warrant Shares have been duly authorized and reserved for
issuance upon exercise of this Warrant, and upon such exercise, will be validly
issued, fully paid and non-assessable, free from all taxes, liens and charges
with respect to the issue thereof, and will not be subject to preemptive rights
or other similar rights of stockholders of the Corporation.
11.5 No Conflicts. The execution, delivery and performance of
this Warrant and the Registration Rights Agreement by the Corporation, and the
consummation by the Corporation of the transactions contemplated hereby and
thereby (including, without limitation, the issuance of the Warrant Shares) will
not (i) result in a violation of any organizational documents governing the
Corporation or (ii) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material agreement,
indenture or instrument to which the Corporation or any of its subsidiaries is a
party, or result in a violation of any law, rule, regulation, order, judgment or
decree applicable to the Corporation or any of its subsidiaries or by which any
property or asset of the Corporation or any of its subsidiaries is bound or
affected. The Corporation is not required to obtain any consent, authorization
or order of, or make any filing or registration with, any court or governmental
or regulatory or self-regulatory agency in order for it to execute, deliver or
perform any of its obligations under or contemplated by this Warrant or the
Registration Rights Agreement in accordance with the terms hereof or thereof.
All consents, authorizations, orders, filings and registrations which the
Corporation is required to obtain pursuant to the preceding sentence have been
obtained or effected on or prior to the date hereof.
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11.6. Investment Company Status. The Corporation is not and,
upon issuance of this Warrant or the Warrant Shares, will not be an "investment
company," a company controlled by an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended.
12. Reservation of Stock, etc. The Corporation shall at all
times reserve and keep available, solely for issuance and delivery upon exercise
of this Warrant, the number of shares of Common Stock (or Other Securities) from
time to time issuable upon exercise of this Warrant. All shares of Common Stock
(or Other Securities) issuable upon exercise of this Warrant shall be duly
authorized and, when issued upon such exercise, shall be validly issued and, in
the case of shares, fully paid and nonassessable, with no liability on the part
of the holders thereof, and, in the case of all securities, shall be free from
all taxes, liens, security interests, encumbrances, preemptive rights and
charges. The transfer agent for the Common Stock, which may be the Corporation
("Transfer Agent"), and every subsequent Transfer Agent for any shares of the
Corporation's capital stock issuable upon the exercise of any of the purchase
rights represented by this Warrant, are hereby irrevocably authorized and
directed at all times until the Expiration Date to reserve such number of
authorized and unissued shares as shall be requisite for such purpose. The
Corporation shall keep copies of this Warrant on file with the Transfer Agent
for the Common Stock and with every subsequent Transfer Agent for any shares of
the Corporation's capital stock issuable upon the exercise of the rights of
purchase represented by this Warrant. The Corporation shall supply such Transfer
Agent with duly executed stock certificates for such purpose.
13. Registration and Transfer of Warrants, etc.
13.1. Warrant Register; Ownership of Warrants. Each Warrant
issued by the Corporation shall be numbered and shall be registered in a warrant
register (the "Warrant Register") as it is issued and transferred, which Warrant
Register shall be maintained by the Corporation at its principal office or, at
the Corporation's election and expense, by a Warrant Agent or the Transfer
Agent. The Corporation shall be entitled to treat the registered holder of any
Warrant on the Warrant Register as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other Person, and shall not be affected by
any notice to the contrary, except that, if and when any Warrant is properly
assigned in blank, the Corporation may (but shall not be obligated to) treat the
bearer thereof as the owner of such Warrant for all purposes. Subject to Section
10, a Warrant, if properly assigned, may be exercised by a new holder without a
new Warrant first having been issued.
13.2. Transfer of Warrants. Subject to compliance with Section
10, if applicable, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the Holder hereof (other than transfer
taxes), upon surrender of this Warrant with a properly executed Form of
Assignment, attached hereto as Exhibit B, at the principal office of the
Corporation. Upon any partial transfer permitted by this Section 13.2, the
Corporation shall, at its expense (other than transfer taxes), issue and deliver
to the Holder a new Warrant of like
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tenor, in the name of the Holder, which shall be exercisable for such number of
shares of Common Stock with respect to which rights under this Warrant were not
so transferred.
13.3. Replacement of Warrants. On receipt by the Corporation
of evidence reasonably satisfactory to the Corporation of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction of this Warrant, on delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Corporation or, in the case of
any such mutilation, on surrender of such Warrant to the Corporation at its
principal office and cancellation thereof, the Corporation, at its expense,
shall execute and deliver, in lieu thereof, a new Warrant of like tenor.
13.4. Adjustments To Number of Shares. Notwithstanding the
number or kind of shares of Common Stock purchasable upon exercise of this
Warrant, any Warrant theretofore or thereafter issued may continue to express
the same number and kind of shares of Common Stock as are stated in this
Warrant, as initially issued.
13.5. Fractional Shares. Notwithstanding any adjustment
pursuant to Section 3 in the number of shares of Common Stock covered by this
Warrant or any other provision of this Warrant, the Corporation shall not be
required to issue fractions of shares upon exercise of this Warrant or to
distribute certificates which evidence fractional shares. In lieu of fractional
shares, the Corporation shall make payment to the Holder, at the time of
exercise of this Warrant as herein provided, in an amount in cash equal to such
fraction (after aggregation of all shares and fractional shares to be issued
upon such exercise) multiplied by the Current Market Price of a share of Common
Stock on the date of Warrant exercise.
14. Remedies; Specific Performance. The Corporation stipulates
that there would be no adequate remedy at law to the Holder of this Warrant in
the event of any default or threatened default by the Corporation in the
performance of or compliance with any of the terms of this Warrant and
accordingly, the Corporation agrees that, in addition to any other remedy to
which the Holder may be entitled at law or in equity, the Holder shall be
entitled to seek to compel specific performance of the obligations of the
Corporation under this Warrant, without the posting of any bond, in accordance
with the terms and conditions of this Warrant in any court of the United States
or any State thereof having jurisdiction, and if any action should be brought in
equity to enforce any of the provisions of this Warrant, the Corporation shall
not raise the defense that there is an adequate remedy at law. Except as
otherwise provided by law, a delay or omission by the Holder hereto in
exercising any right or remedy accruing upon any such breach shall not impair
the right or remedy or constitute a waiver of or acquiescence in any such
breach. No remedy shall be exclusive of any other remedy. All available remedies
shall be cumulative.
15. No Rights or Liabilities as Stockholder. Nothing contained
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a stockholder of the Corporation or as imposing any obligation on the
Holder to purchase any securities or as imposing any liabilities on the Holder
as a stockholder of the Corporation,
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whether such obligation or liabilities are asserted by the Corporation or by
creditors of the Corporation.
16. Notices. All notices and other communications (and
deliveries) provided for or permitted hereunder shall be made in writing by hand
delivery, telecopier, any courier guaranteeing overnight delivery or first class
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Corporation: Outsource International, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx
Fax No. (000) 000-0000
with copies to: Akerman Senterfitt
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx, Esq.
Fax No. (000) 000-0000
If to Holder: Ableco Holding LLC
c/o Ableco Finance LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Fax No. (000) 000-0000
with copies to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Fax No. 000-000-0000
All such notices and communications (and deliveries) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; when receipt is acknowledged, if telecopied; on the next Business
Day, if timely delivered to a courier guaranteeing overnight delivery; and five
days after being deposited in the mail, if sent first class registered or
certified mail, return receipt requested, postage prepaid; provided, that, the
exercise of any Warrant shall be effective in the manner provided in Section 2.
17. Amendments. This Warrant and any term hereof may not be
amended, modified, supplemented or terminated, and waivers or consents to
departures from the provisions hereof may not be given, except by written
instrument duly executed by the party
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against which enforcement of such amendment, modification, supplement,
termination or consent to departure is sought.
18. Descriptive Headings, Etc. The headings in this Warrant
are for convenience of reference only and shall not limit or otherwise affect
the meaning of terms contained herein. Unless the context of this Warrant
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Warrant shall
refer to this Warrant as a whole and not to any particular provision of this
Warrant, and Section and paragraph references are to the Sections and paragraphs
of this Warrant unless otherwise specified; (4) the word "including" and words
of similar import when used in this Warrant shall mean "including, without
limitation," unless otherwise specified; (5) "or" is not exclusive; and (6)
provisions apply to successive events and transactions.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. THE VALIDITY
OF THIS WARRANT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER
OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS WARRANT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. THE PARTIES
WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 19.
THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS WARRANT
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. THE
CORPORATION AND HOLDER REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS WARRANT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
20. Registration Rights Agreement. The shares of Common Stock
(and Other Securities) issuable upon exercise of this Warrant (or upon
conversion of any shares of Common Stock issued upon such exercise) shall
constitute Registrable Securities (as
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such term is defined in the Registration Rights Agreement). Each holder of this
Warrant shall be entitled to all of the benefits afforded to a holder of any
such Registrable Securities under the Registration Rights Agreement and such
holder, by its acceptance of this Warrant, agrees to be bound by and to comply
with the terms and conditions of the Registration Rights Agreement applicable to
such holder as a holder of such Registrable Securities.
21. Costs and Attorneys' Fees. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Warrant, the Corporation agrees and the Holder, by taking and holding this
Warrant agrees, that the prevailing party shall recover from the non-prevailing
party all of such prevailing party's costs and reasonable attorneys' fees
incurred in each and every such action, suit or other proceeding, including any
and all appeals or petitions therefrom.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Corporation has executed and delivered
this Warrant as of the date first above written.
OUTSOURCE INTERNATIONAL, INC.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
[Signature page to the Warrant]
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EXHIBIT A to
Common Stock Purchase Warrant
FORM OF
ELECTION TO PURCHASE SHARES
The undersigned hereby irrevocably elects to exercise the
Warrant to purchase ____ shares of Common Stock, par value $0.001 per share
("Common Stock"), of OUTSOURCE INTERNATIONAL, INC. and hereby [makes payment of
$________ therefor] [or] [makes payment therefor by application pursuant to
Section 2.1(b)(ii) of the Warrant of $_______ aggregate principal amount of the
then-outstanding Obligations (as defined in the Financing Agreement) [or] [makes
payment therefor by reduction pursuant to Section 2.1(b)(iii) of the Warrant of
the number of shares of Common Stock otherwise issuable to the Holder upon
Warrant exercise by ___ shares] [or] [makes payment therefor by delivery of the
following Common Stock Certificates of the Corporation (properly endorsed for
transfer in blank) for cancellation by the Corporation pursuant to Section
2.1(b)(iv) of the Warrant, certificates of which are attached hereto for
cancellation __________ [list certificates by number and amount]]. The
undersigned hereby requests that certificates for such shares be issued and
delivered as follows:
ISSUE TO:
-----------------------------------------------------------------------
(NAME)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
--------------------------------------------------------------------------------
(SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER)
DELIVER TO:
---------------------------------------------------------------------
(NAME)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
If the number of shares of Common Stock purchased (and/or
reduced) hereby is less than the number of shares of Common Stock covered by the
Warrant, the undersigned requests that a new Warrant representing the number of
shares of Common Stock not so purchased (or reduced) be issued and delivered as
follows:
ISSUE TO:
----------------------------------------------------------------------
(NAME OF HOLDER)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
DELIVER TO:
---------------------------------------------------------------------
(NAME OF HOLDER)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
Dated: , 20 [NAME OF HOLDER]
------------- ---
By
-------------------------------
Name:
Title:
2
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EXHIBIT B to
Common Stock Purchase Warrant
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto the Assignee named below all of the rights of the undersigned to
purchase Common Stock, par value $_____ per share ("Common Stock") of OUTSOURCE
INTERNATIONAL, INC. represented by the Warrant, with respect to the number of
shares of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint ________ Attorney to make
such transfer on the books of maintained for that purpose, with full power of
substitution in the premises.
Dated: , 20 [NAME OF HOLDER]
--------------- ---
By
------------------------------
Name:
Title:
3
