Exhibit 4.3
GENISYS RESERVATION SYSTEMS, INC.
AND
X.X. XXXXX & CO., INC.
UNDERWRITER'S
WARRANT AGREEMENT
Dated as of , 1996
UNDERWRITER'S WARRANT AGREEMENT dated as of , 1996 between GENISYS RESERVATION
SYSTEMS, INC., a New Jersey corporation (the "Company") and X.X. XXXXX & CO.,
INC., its successors, designees and assigns (hereinafter referred to as the
"Underwriter"). W I T N E S S E T H:
WHEREAS, the Company proposes to issue to the Underwriter warrants ("Warrants")
to purchase up to an aggregate of 80,000 shares of common stock, $.0001 par
value, of the Company's ("Common Stock") and/or up to 210,000 warrants
consisting of 130,000 Class A Warrants and 80,000 Class B Warrants ("Underlying
Warrants"), each Underlying Warrant entitling the holder to purchase one share
of Common Stock. (One share of Common Stock and one Underlying Warrant are each
hereinafter referred to as a "Warrant Security" and more than one collectively
referred to as the "Warrant Securities"); and
WHEREAS, the Underwriter has agreed pursuant to the underwriting agreement (the
"Underwriting Agreement") dated as of the date hereof among the Underwriter and
the Company to act as the Underwriter in connection with the Company's proposed
public offering of up to 800,000 shares of Common Stock and 2,100,000 redeemable
warrants consisting of 1,300,000 Class A Warrants and 800,000 Class B Warrants
(collectively the "Redeemable Warrants") at a public offering price of $5.00 per
share of Common Stock and $.20 per Class A Redeemable Warrant and $.10 per Class
B Redeemable Warrant (the "Public Offering"); and WHEREAS, the Warrants to be
issued pursuant to this Agreement will be issued on the Closing Date (as such
term is defined in the Underwriting Agreement) by the Company to the Underwriter
in consideration for, and as part of the Underwriter's compensation in
connection with, the Underwriter acting as the Underwriter pursuant to the
Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the Underwriter
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to the Company of an aggregate twenty-one dollars ($21.00), the agreements
herein set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows: 1. Grant The Underwriter is hereby granted the right to purchase, at
any time from , 1997 until 5:00 P.M., New York time, on , 2001, up to an
aggregate of 80,000 shares of Common Stock (the "Shares") and/or 210,000
Underlying Warrants at an initial exercise price (subject to adjustment as
provided in Section 8 hereof) of $6.00 per Share and $.24 per Class A Warrant
and $.12 per Class B Warrant, subject to the terms and conditions of this
Agreement. Each Underlying Warrant is exercisable to purchase one additional
share of Common Stock at an initial exercise price of $6.90 per Class A Warrant
from , 1997 until 5:00 P.M. New York time on , 2001 at which time the Class A
Underlying Warrants will expire and $ 8.10 per Class B Warrant from , 1997 until
5:00 P.M. New York time on , 2001 at which time the Class B Underlying Warrants
will expire. Except as set forth herein, the Underlying Warrants issuable upon
exercise of the Warrants are in all respects identical to the Redeemable
Warrants being purchased by the Underwriter for resale to the public pursuant to
the terms and provisions of the Underwriting Agreement and the Redeemable
Warrant Agreement dated 1996 between the Company and Continental Stock Transfer
& Trust Company ("Redeemable Warrant Agreement"). Except as set forth herein,
the shares issuable upon exercise of the Warrants are in all respects identical
to the shares of Common Stock being purchased by the Underwriter for resale to
the public pursuant to the terms and provisions of the Underwriting Agreement
writer for resale to the public pursuant to the
terms and provisions of the Underwriting Agreement.
2. Warrant Certificates. The warrant certificates (the "Warrant Certificates")
delivered and to be delivered pursuant to this Agreement shall be (i) in the
form set forth in Exhibit A, with respect to Class A Warrants to purchase
Shares; (ii) in the form set forth in Exhibit B, with respect to Class B
Warrants to purchase Shares; (iii) in the form set forth in Exhibit C with
respect to Class A Warrants to purchase Underlying Warrants; and (iv) in the
form set forth in Exhibit D with respect to Class B Warrants to purchase
Underlying Warrants, each attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations as 2
required or permitted by this Agreement. 3. Exercise of Warrant. 3.1 Method of
Exercise. The Warrants initially are exercisable at the initial exercise prices
(subject to adjustment as provided in Section 8 hereof) per Share and per
Underlying Warrant as set forth in Section 6 hereof payable by certified or
official bank check in New York Clearing House funds, subject to adjustment as
provided in Section 8 hereof. Upon surrender of a Warrant Certificate with the
annexed Form of Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined) for the Warrant Securities purchased at
the Company's principal offices (presently located at
_______________________________________________) the registered holder of a
Warrant Certificate ("Holder" or "Holders") shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased and/or a
certificate or certificates for the Underlying Warrants so purchased. The
purchase rights represented by each Warrant Certificate are exercisable at the
option of the Holders thereof, in whole or part (but not as to fractional shares
of the Common Stock and/or Underlying Warrants). In the case of the purchase of
less than all Warrant Securities purchasable under any Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the Warrant Securities purchasable thereunder. 3.2 Exercise by
Surrender of Warrant. In addition to the method of payment set forth in Section
3.1 and in lieu of any cash payment required thereunder, the Holder(s) of the
Warrants shall have the right at any time and from time to time to exercise the
Warrants in full or in part by surrendering the applicable Warrant Certificates
in the manner specified in Section 3.1. The number of shares of Common Stock to
be issued pursuant to this Section 3.2 shall be equal to the difference between
(a) the number of shares of Common Stock in respect of which the Warrants are
exercised and (b) a fraction, the numerator of which shall be the number of
shares of Common Stock in respect of which the Warrants are exercised multiplied
by the Exercise Price (as hereinafter defined) and the denominator of which
shall be the Market Price. The number of Underlying Warrants to be issued
pursuant to this Section 3.2 shall be equal to the difference between (a) the
number of Underlying Warrants in respect of which the Warrants are exercised and
(b) a fraction, the numerator of which 3
shall be the number of Underlying
Warrants in respect of which the Warrants are exercised shall be the number of
Underlying Warrants in respect of which the Warrants are exercised multiplied by
the Exercise Price (as hereinafter defined) and the denominator of which shall
be the Market Price. 3.3 Definition of Market Price. As used herein, the phrase
"Market Price" at any date shall be deemed to be (i) when referring to the
Common Stock, the last reported sale price, or, in case no such reported sale
takes place on such day, the average of the last reported sale prices for the
last three (3) trading days, in either case as officially reported by the
principal securities exchange on which the Common Stock is listed or admitted to
trading or by the Nasdaq National Market ("NNM"), or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted by
NNM, the average closing bid price as furnished by the National Association of
Securities Dealers, Inc. ("NASD") through Nasdaq or similar organization if
Nasdaq is no longer reporting such information, or if the Common Stock is not
quoted on Nasdaq, or such similar organization as determined in good faith by
resolution of the Board of Directors of the Company, based on the best
information available to it or (ii) when referring to an Underlying Warrant, the
last reported sale price, or, in the case no such reported sale takes place on
such day, the average of the last reported sale prices for the last three (3)
trading days, in either case as officially reported by the principal securities
exchange on which the Underlying Warrants are listed or admitted to trading or
by NNM, or, if the Underlying Warrants are not listed or admitted to trading on
any national securities exchange or quoted by NNM, the average closing bid price
as furnished by the NASD through Nasdaq or similar organization if Nasdaq is no
longer reporting such information, or if the Underlying Warrant is not quoted on
Nasdaq or such similar organization, the Market Price of an Underlying Warrant
shall equal the difference between the Market Price of the Common Stock and the
Exercise Price (as hereinafter defined) of the Underlying Warrant.
Notwithstanding the foregoing, for purposes of Section 8, the Market Price of a
share of Common Stock or an Underlying Warrant shall be determined by reference
to the relevant information set forth above during the thirty (30) trading days
immediately preceding the date of the event requiring the determination of the
Market Price (except that, in the event of a public offering of shares of Common
Stock, the Market Price of a share of Common Stock or an Underlying Warrant
shall be determined by reference to the trading day immediately preceding the
effective date of the public offering and not such thirty (30) 4
trading day
period). 4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock and Underlying Warrants
and/or other securities, properties or rights underlying such Warrants and, upon
the exercise of the Underlying Warrants, the issuance of certificates for shares
of Common Stock and/or other securities, properties or rights underlying such
Underlying Warrants, shall be made forthwith (and in any event within five (5)
business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Sections 5
and 7 hereof) be issued in the name of, or in such names as may be directed by,
the Holder thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
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. The
Warrant Certificates and the certificates representing the Shares, Underlying
Warrants and the shares of Common Stock underlying such Underlying Warrants
(and/or other securities, property or rights issuable upon the exercise of the
Warrants or the Underlying Warrants) shall be executed on behalf of the Company
by the manual or facsimile signature of the then present Chairman or Vice
Chairman of the Board of Directors or President or Vice President of the Company
under its corporate seal reproduced thereon, attested to by the manual or
facsimile signature of the then present Secretary or Assistant Secretary of the
Company. Warrant Certificates shall be dated the date of execution by the
Company upon initial issuance, division, exchange, substitution or transfer. 5.
Restriction On Transfer of Warrants. The Holder of a Warrant Certificate, by its
acceptance thereof, covenants and agrees that the Warrants are being acquired as
an investment and not with a view to the distribution thereof; that the Warrants
may not be sold, transferred,
assigned, hypothecated or otherwise disposed
of, in whole or in part, for a period of one (1) year from the date hereof,
except to officers of the Underwriter. 6. Exercise Price. 6.1 Initial and
Adjusted Exercise Price. Except as otherwise provided in Section 8 hereof, the
initial exercise price of each Class A Warrant to purchase Common Stock shall be
6.1 Initial and Adjusted Exercise Price. Except as otherwise provided in Section
8 hereof, the initial exercise price of each Class A Warrant to purchase Common
Stock shall be $6.90 per share of Common Stock and each Class B Warrant to
purchase Common Stock shall be $8.10 per share of Common Stock and the initial
exercise price of each Warrant to purchase Underlying Warrants shall be $.24 per
Class A Underlying Warrant and $.12 per Class B Underlying Warrant. The adjusted
exercise price shall be the price which shall result from time to time from any
and all adjustments of the initial exercise price in accordance with the
provisions of Section 8 hereof and/or in accordance with a reduction by the
Company, in its sole discretion, of the exercise price of each Warrant to
purchase Common Stock. 6.2 Exercise Price. The term "Exercise Price" herein
shall mean the applicable initial exercise price or with respect to Warrants to
purchase Common Stock the adjusted exercise price, depending upon the context.
7. Registration Rights. 7.1 Current Registration Under the Securities Act of
1933. The Warrants, the Shares, the Underlying Warrants issuable upon exercise
of the applicable Warrants and the shares of Common Stock issuable upon exercise
of such Underlying Warrants have been registered under the Securities Act of
1933, as amended (the "Act"), pursuant to the Company's Registration Statement
on Form SB-2 (Registration No.333- ) (the "Registration Statement"). The Company
covenants and agrees to use its best efforts to maintain the effectiveness of
the Registration Statement for a period of five (5) years from its effective
date. 7.2 Contingent Registration Rights. In the event that, for any reason
whatsoever, the Company shall fail to maintain the effectiveness of the
Registration Statement for a period of five (5) years from its effective date
and, in any event, from and after the fifth (5th) anniversary of the effective
date of the Registration Statement, the Underwriter shall have commencing the
date of any
such occasion, the contingent registration rights ("Registration
Rights") set forth in Sections 7.3 and 7.4 hereof. 7.3 Piggyback Registration.
(a) If, at any time commencing after the effective date of the Registration
Rights and expiring on the seventh (7th) anniversary of the effective date of
the Registration Statement, the Company proposes to register any of its
securities under the Act, either for its own account or the account of any other
security holder or holders of the Company possessing registration rights ("Other
Stockholders") (other than pursuant to Form S-4, Form S-8 or comparable
registration statement), it shall give written notice, at least thirty (30) days
prior to the filing of each such registration statement, to the Underwriter and
to all other Holders of Warrants, Shares, Underlying Warrants and/or shares of
Common Stock issuable upon exercise of the Underlying Warrants (collectively,
"Registrable Securities") of its intention to do so. If the Underwriter or other
Holders of Registrable Securities notify the Company within twenty-one (21) days
after the receipt of any such notice of its or their desire to include any such
securities in such proposed registration statement, the Company shall afford the
Underwriter and such other Holders of such securities the opportunity to have
any such securities registered under such registration statement. (b) If the
registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise the Underwriter
and such other Holders as part of the written notice given pursuant to Section
7.3(a) hereof. The right of the Underwriter or any such other Holder to
registration pursuant to this Section 7.3 shall be conditioned upon their
participation in such underwriting and the inclusion of their Registrable
Securities in the underwriting to the extent hereinafter provided. The
Underwriter and all other Holders proposing to distribute their securities
through such underwriting shall (together with the Company and any officer,
directors or Other Stockholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected by the Company. Notwithstanding any other
provision of this Section 7.3, if the underwriter or underwriters advises the
Company in writing that marketing factors require a limitation or elimination of
the number of shares of Common Stock or other securities to be underwritten, the
Underwriter may limit the number of shares of Common Stock or other securities
to be included in
7
the registration and underwriting. The Company shall so advise the Underwriter
and all other Holders of Registrable Securities requesting registration, and the
number of shares of Common Stock or other securities that are entitled to be
included in the registration and underwriting shall be allocated among the
Underwriter and other Holders requesting registration, in each case, in
proportion, as nearly as practicable, to the respective amounts of securities
which they had requested to be included in such registration at the time of
filing the registration statement. (c) Notwithstanding the provisions of this
Section 7.3, the Company shall have the right at any time after it shall have
given written notice pursuant to Section 7.3(a) hereof (irrespective of whether
a written request for inclusion of any such securities shall have been made) to
elect not to file any such proposed registration statement, or to withdraw the
same after the filing but prior to the effective date thereof. 7.4 Demand
Registration. (a) At any time commencing after the effective date of the
Registration Rights and ending on the fifth (5th) anniversary of the effective
date of the Registration Statement, the Underwriter and Holders of Registrable
Securities representing a "Majority" (as hereinafter defined) of such securities
(assuming the exercise of all of the Warrants and Underlying Warrants) (the
"Initiating Holders") shall have the right (which right is in addition to the
registration rights under Section 7.3 hereof), exercisable by written notice to
the Company, to have the Company prepare and file with the Commission, on one
occasion, a registration statement and such other documents, including a
prospectus, as may be necessary in the opinion of both counsel for the Company
and counsel for the Holders, in order to comply with the provisions of the Act,
so as to permit a public offering and sale of their respective Registrable
Securities for up to two hundred and seventy (270) days by such Holders and any
other Holders of Registrable Securities, as well as any other security holders
possessing similar registration rights, who notify the Company within twenty-one
(21) days after receiving notice from the Company of such request. (b) The
Company covenants and agrees to give written notice of any registration request
under this Section 7.4 by any Holder or Holders to all other registered Holders
of Registrable Securities, as well as any other security holders possessing
similar registration rights, within ten (10) days after the date of the receipt
of any such registration request.
(c) If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 7.4(a) hereof. The right of any Holder to registration
pursuant to this Section 7.4 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent and subject to the
limitations provided herein. A Holder may elect to include in such underwriting
all or a part of the Registrable Securities it holds. (d) The Company shall
(together with all Holders, officers, directors and Other Stockholders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the Underwriter of the underwriter
of underwriters selected for such underwriting by the Initiating Holders, which
underwriter(s) shall be reasonably acceptable to the Underwriter.
Notwithstanding any other provision of this Section 7.4, if the Underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation or elimination of the number of shares of Common Stock or other
securities to be underwritten, the Underwriter may limit the number of shares of
Common Stock or other securities to be included in the registration and
underwriting. The Company shall so advise the Underwriter and all Holders of
Registrable Securities requesting registration, and the number of shares of
Common Stock or other securities that are entitled to be included in the
registration and underwriting shall be allocated among the Underwriter and other
Holders requesting registration, in each case, in proportion, as nearly as
practicable, to the respective amounts of securities which they had requested to
be included in such registration at the time of filing the registration
statement. If the Company or any Holder of Registrable Securities who has
requested inclusion in such registration as provided above disapproves of the
terms of any such underwriting, such person may elect to withdraw its securities
therefrom by written notice to the Company, the underwriter and the Initiating
Holders. Any securities so excluded shall be withdrawn from such registration.
No securities excluded from such registration by reason of such underwriters'
marketing limitations shall be included in suchom such
registration by reason of such underwriters' marketing limitations shall be
included in such registration. To facilitate the allocation of shares in
accordance with this Section 7.4(d), the Company or underwriter or underwriters
selected as provided above may round the number of securities of any holder
which may be included in such registration to the nearest 100 shares.
(e) In
the event that the Initiating Holders are unable to sell all of the Registrable
Securities for which they have requested registration due to the provisions of
Section 7.4(d) hereof and if, at that time, the Initiating Holders are not
permitted to sell Registrable Securities under Rule 144(k), the Initiating
Holders shall be entitled to require the Company to afford the Initiating
Holders an opportunity to effect one additional demand registration under this
Section 7.4. (f) In addition to the registration rights under Section 7.3 and
subsection (a) of Section 7.4 hereof, at any time commencing on the date hereof
and expiring five (5) years thereafter any Holder of Registrable Securities
shall have the right, exercisable by written request to the Company, to have the
Company prepare and file, on one occasion, with the Commission a registration
statement so as to permit a public offering and sale for 270 days by any such
Holder of its Registrable Securities provided, however, that the provisions of
Section 7.5(b) hereof, shall not apply to any such registration request and
registration and all costs incident thereto shall be at the expense of the
Holder or Holder's making such request. (g) Notwithstanding anything to the
contrary contained herein, if the Company shall not have filed a registration
statement for the Registrable Securities of the Initiating Holders or the
Holder(s) referred to in Section 7.5(f) above (the "Paying Holders"), within the
time period specified in Section 7.5(a) below, the Company shall upon the
written notice of election of the Initiating Holders or the Paying Holders, as
the case may be, repurchase (i) any and all Shares and/or Underlying Warrants at
the higher of the Market Price per share of Common Stock or per Underlying
Warrant, as the case may be, on (x) the date of the notice sent to the Company
under Section 7.4(a) or (f), as the case may be, or (y) the expiration of the
period specified in Section 7.5(a) and (ii) any and all Warrants at such Market
Price less the Exercise Price of such Warrant. Such repurchase shall be in
immediately available funds and shall close within five (5) business days after
the expiration of the period specified in Section 7.5(a). 7.5 Covenants of the
Company With Respect to Registration. In connection with any registration under
Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows: (a)
The Company shall use its best efforts to file a registration statement within
thirty (30) days of receipt of any demand therefor, shall use its best efforts
to have any registration
statements declared effective at the earliest
possible time, and shall furnish each Holder desiring to sell Registrable
Securities such number of prospectuses as shall reasonably be requested. (b) The
Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel
and any underwriting or selling commissions), fees and expenses in connection
with all registration statements filed pursuant to Sections 7.3 and 7.4 hereof
including, without limitation, the Company's legal and accounting fees, printing
expenses, blue sky fees and expenses. If the Company shall fail to comply with
the provisions of Section 7.5(a), the Company shall, in addition to any other
equitable or other relief available to the Holder(s), extend the exercise period
of the Warrants by such number of days as shall equal the delay caused by the
Company's failure. addition to any other equitable or other relief available to
the Holder(s), extend the exercise period of the Warrants by such number of days
as shall equal the delay caused by the Company's failure. (c) The Company will
take all necessary action which may be required in qualifying or registering the
Registrable Securities included in a registration statement for offering and
sale under the securities or blue sky laws of such states as reasonably are
requested by the Holder(s); provided that the Company shall not be obligated to
execute or file any general consent to service of process or to qualify as a
foreign corporation to do business under the laws of any such jurisdiction. (d)
The Company shall indemnify the Holder(s) of the Registrable Securities to be
sold pursuant to any registration statement and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement but only to the same
extent and with the same effect as the provisions pursuant to which the Company
has agreed to indemnify each of the Underwriters contained in Section 7 of the
Underwriting Agreement.
(e) The Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or
defending against any claim whatsoever) to which they may
become subject under the Act, the exchange Act or otherwise, arising from
information furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such registration statement to the same
extent and with the same effect as the provisions contained in Section 7 of the
Underwriting Agreement pursuant to which the Underwriters have agreed to
indemnify the Company. (f) For a period of one hundred eighty (180) days after
the effectiveness of any registration statement filed pursuant to Section 7.4
hereof, the Company shall not permit any other registration statement (other
than (1) a registration statement relating to the securities for which the
Company has granted demand registration rights, as described in the Prospectus
included in the Registration Statement, (2) a registration statement relating to
the shares of Common Stock issuable upon exercise of the Redeemable Warrants
issued to the public pursuant to the Registration Statement, (3) a registration
statement relating to the securities for which the Company has granted piggyback
registration rights, as described in the Prospectus included in the Registration
Statement and (4) a registration statement filed on Forms S-4 or S-8) to be or
remain effective during the effectiveness of a registration statement filed
pursuant to Section 7.4 hereof, without the prior written consent of the Holders
of the Registrable Securities representing a Majority of such securities. (g)
The Company shall furnish to each Holder participating in the offering and to
each underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(h) The
Company shall as soon as practicable after the effective date of any
registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any
event within 15 months thereafter, make "generally available to its security
holders" (within the meaning of Rule 158 under the Act) an earnings statement
(which need not be audited) complying with Section 11(a) of the act and covering
a period of at least 12 consecutive months beginning after the effective date of
the registration statement. (i) The Company shall deliver promptly to each
Holder participating in the offering requesting the correspondence and memoranda
described below and to the managing underwriters, copies of all written
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the registration statement and permit each Holder and underwriters to
do such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as it deems
reasonably necessary to comply with applicable securities laws or rules of the
NASD. Such investigation shall include access to books, records and properties
and opportunities to discuss the business of the Company with its officers and
independent auditors, all to such reasonable extent and at such reasonable times
and as often as any such Holder or underwriter shall reasonably request. (j)
With respect to any registration under Section 7.4 hereof, the Company shall
enter into an underwriting agreement with the managing underwriter selected for
such underwriting by the Initiating Holders or the Paying Holders, as the case
may be, which may be the Underwriter. Such agreement shall be satisfactory in
form and substance to the Company, each Holder and such managing underwriters,
and shall contain such representations, warranties and covenants by the Company
and such other terms as are customarily contained in agreements of that type
used by the managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties to
or agreements with the Company or the underwriters, except as they may relate to
such Holders and their intended methods of distribution.
(k) For purposes
of this Agreement, the term "Majority" in reference to the Holders of
Registrable Securities, shall mean in excess of fifty percent (50%) of the then
outstanding Warrants, Shares, Underlying Warrants and/or shares of Common Stock
issued upon exercise of the Underlying Warrants that (i) are not held by the
Company, an affiliate, officer, creditor, employee or agent thereof or any of
their respective affiliates, members of their family, persons acting as nominees
or in conjunction therewith and (ii) have not been resold to the public pursuant
to a registration statement filed with the Commission under the Act. (l) Nothing
contained in this Agreement shall be construed as requiring the Holder(s) to
exercise their Warrants or Underlying Warrants prior to the initial filing of
any registration statement or the effectiveness thereof. (m) In addition to the
Registrable Securities, upon the written request therefor, bych registration
statement, including without limitation restricted shares of Common Stock,
options, warrants or any other securities convertible into shares of Common
Stock. 7.6 Restrictive Legends. In the event that the Company fails to maintain
the effectiveness of the Registration Statement, such that the exercise, in part
or in whole, of the Warrants and/or the Underlying Warrants are not, at the time
of such exercise, registered under the Act, any certificates representing the
Shares underlying the Warrants, the Underlying Warrants underlying the Warrants
and/or the shares of Common Stock underlying the Underlying Warrants, and any of
the other securities issuable upon exercise of the Warrants shall bear the
following restrictive legend: The securities represented by this certificate
have not been registered under the Securities Act of 1933, as amended ("Act"),
and may not be offered or sold except pursuant to (i) an effective registration
statement under the Act, (ii) to the extent applicable, Rule 144 under the Act
(or any similar rule under such Act relating to the disposition of securities),
or (iii) an opinion of counsel, if such opinion shall be reasonably satisfactory
to counsel to the issuer, that an exemption from registration under such Act is
available.
8. Adjustments to Exercise Price and Number of Securities. 8.1
Computation of Adjusted Exercise Price. Except as hereinafter provided, in the
event the Company shall at any time after the date hereof issue or sell any
shares of Common Stock (other than the issuances or sales referred to in Section
8.7 hereof), including shares held in the Company's treasury and shares of
Common Stock issued upon the exercise of any options, rights or warrants to
subscribe for shares of Common Stock and shares of Common Stock issued upon the
direct or indirect conversion or exchange of securities for shares of Common
Stock, for a consideration per share less than the Market Price in effect
immediately prior to the issuance or sale of such shares, or without
consideration, then forthwith upon such issuance or sale, the Exercise Price
shall (until another such issuance or sale) be reduced to the price (calculated
to the nearest full cent) equal to the quotient derived by dividing (i) an
amount equal to the sum of (a) the total number of shares of Common Stock
outstanding immediately prior to the issuance or sale of such shares, multiplied
by the Exercise Price in effect immediately prior to such issuance or sale, and
(b) the aggregate of the amount of all consideration, if any, received by the
Company upon such issuance or sale, by (ii) the total number of shares of Common
Stock outstanding immediately after such issuance or sale; provided, however,
that in no event shall the Exercise Price be adjusted pursuant to this
computation to an amount in excess of the Exercise Price in effect immediately
prior to such computation, except in the case of a combination of outstanding
shares of Common Stock, as provided by Section 8.3 hereof. For the purposes of
this Section 8 the term Exercise Price shall mean the Exercise Price per share
of Common Stock set forth in Section 6 hereof, as adjusted from time to time
pursuant to the provisions of this Section 8. For the purposes of any
computation to be made in accordance with this Section 8.1, the following
provisions shall be applicable: (i) In case of the issuance or sale of shares of
Common Stock for a consideration part or all of which shall be cash, the amount
of the cash consideration therefor shall be deemed to be the amount of cash
received by the Company for such shares (or, if shares of Common Stock are
offered by the Company for subscription, the subscription price, or, if either
of such securities shall be sold to underwriters or dealers for public offering
without a subscription offering, the initial
public offering price) before
deducting therefrom any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or other performing
similar services, or any expenses incurred in connection therewith. (ii) In case
of the issuance or sale (other than as a dividend or other distribution on any
stock of the Company) of shares of Common Stock for a consideration part or all
of which shall be other than cash, the amount of the consideration therefor
other than cash shall be deemed to be the value of such consideration as
determined in good faith by the Board of Directors of the Company and shall
include any amounts payable to security holders or any affiliates thereof,
including without limitation, pursuant to any employment agreement, royalty,
consulting agreement, covenant not to compete, earnout or contingent payment
right or similar arrangement, agreement or understanding, whether oral or
written; all such amounts being valued for the purposes hereof at the aggregate
amount payable thereunder, whether such payments are absolute or contingent, and
irrespective of the period or uncertainty of payment, the rate of interest, if
any, or the contingent nature thereof; provided, however, that if any Holder(s)
does not agree with such evaluation, a mutually acceptable independent appraiser
shall make such evaluation, the cost of which shall be borne by the Company.
(iii) Shares of Common Stock issuable by way of dividend or other distribution
on any stock of the Company shall be deemed to have been issued immediately
after the opening of business on the day following the record date for the
determination of stockholders entitled to receive such dividend or other
distribution and shall be deemed to have been issued without consideration. (iv)
The reclassification of securities of the Company other than shares of Common
Stock into securities including shares of Common Stock shall be deemed to
involve the issuance of such shares of Common Stock for a consideration other
than cash immediately prior to the close of business on the date fixed for the
determination of security holders entitled to receive such shares, and the value
of the consideration allocable to such shares of Common Stock shall be
determined as provided in subsection (ii) of this Section 8.1. (v) The number of
shares of Common Stock at any one time outstanding shall include the aggregate
number of shares issued or issuable (subject to readjustment upon the actual
issuance thereof) upon the exercise of options, rights, warrants and upon the
conversion or exchange of convertible or exchangeable securities. 8.2 Options,
Rights, Warrants and Convertible and Exchangeable Securities. In case the
Company shall at any time after the date hereof issue options, rights or
warrants to subscribe for shares of Common Stock, or issue any securities
convertible into or exchangeable for shares of Common Stock, for a consideration
per share less than the Market Price in effect immediately prior to the issuance
of such options, rights or warrants, or such convertible or exchangeable
securities, or without consideration, the Exercise Price in effect immediately
prior to the issuance of such options, rights or warrants, or such convertible
or exchangeable securities, as the case may be, shall be reduced to a price
determined by making a computation in accordance with the provisions of Section
8.1 hereof, provided that: (a) The aggregate maximum number of shares of Common
Stock, as the case may be, issuable under such options, rights or warrants shall
be deemed to be issued and outstanding at the time such options, rights or
warrants were issued, and for a consideration equal to the minimum purchase
price per share provided for in such options, rights or warrants at the time of
issuance, plus the consideration (determined in the same manner as consideration
received on the issue or sale of shares in accordance with the terms of the
Warrants), if any, received by the Company for such options, rights or warrants.
(b) The aggregate maximum number of shares of Common Stock issuable upon
conversion or exchange of any convertible or exchangeable securities shall be
deemed to be issued and outstanding at the time of issuance of such securities,
and for a consideration equal to the consideration (determined in the same
manner as consideration received on the issue or sale of shares of Common Stock
in accordance with the terms of the Warrants) received by the Company for such
securities, plus the minimum consideration, if any, receivable by the Company
upon the conversion or exchange thereof. (c) If any change shall occur in the
price per share provided for in any of the options, rights or warrants referred
to in subsection (a) of this Section 8.2, or in the price per share at which the
securities referred to in subsection (b) of this Section 8.2 are convertible or
exchangeable, such options, rights or warrants or conversion or exchange rights,
as the case may be,
shall be deemed to have expired or terminated on the
date when such price change became effective in respect of shares not
theretofore issued pursuant to the exercise or conversion or exchange thereof,
and the Company shall be deemed to have issued upon such date new options,
rights or warrants or convertible or exchangeable securities at the new price in
respect of the number of shares issuable upon the exercise of such options,
rights or warrants or the conversion or exchange of such convertible or
exchangeable securities. 8.3 Subdivision and Combination. In case the Company
shall at any time subdivide or combine the outstanding shares of Common Stock,
the Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination. 8.4 Adjustment in Number of
Securities. Upon each adjustment of the Exercise Price pursuant to the
provisions of this Section 8, the number of Warrant Securities issuable upon the
exercise at the adjusted exercise price of each Warrant shall be adjusted to the
nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Warrant Securities
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price. 8.5 Definition
of Common Stock. For the purpose of this Agreement, the term "Common Stock"
shall mean (i) the class of stock designated as Common Stock in the Certificate
of Incorporation of the Company as amended as of the date hereof, or (ii) any
other class of stock resulting from successive changes or reclassifications of
such Common Stock consisting solely of changes in par value, or from par value
to no par value, or from no par value to par value. The Company covenants that
so long as any of the Warrants are outstanding, the Company shall not without
the prior written consent of the Underwriter issue any securities whatsoever
other than Common Stock. In the event that the Company shall, upon the consent
of the Underwriter, after the date hereof issue securities with greater or
superior voting rights than the shares of Common Stock outstanding as of the
date hereof, the Holder, at its option, may receive upon exercise of any Warrant
either shares of Common Stock or a like number of such securities with greater
or superior voting rights. 8.6 Merger or Consolidation. In case of any
consolidation of the Company with, or merger of the Company with, or merger of
the Company into, another corporation (other than a
consolidation or merger
which does not result in any reclassification or change of the outstanding
Common Stock), the corporation formed by such consolidation or merger shall
execute and deliver to the Holder a supplemental warrant
consolidation or merger which does not result in any reclassification or change
of the outstanding Common Stock), the corporation formed by such consolidation
or merger shall execute and deliver to the Holder a supplemental warrant
agreement providing that the holder of each Warrant then outstanding or to be
outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation or merger, by a holder of the number of shares of Common Stock of
the Company for which such warrant might have been exercised immediately prior
to such consolidation, merger, sale or transfer. Such supplemental warrant
agreement shall provide for adjustments which shall be identical to the
adjustments provided in Section 8. The above provision of this subsection shall
similarly apply to successive consolidations or mergers. 8.7 No Adjustment of
Exercise Price in Certain Cases. No adjustment of the Exercise Price shall be
made: (a) Upon the issuance or sale of the Warrants, Underlying Warrants,
Redeemable Warrants or the shares of Common Stock issuable upon the exercise of
(i) the Warrants, (ii) the Underlying Warrants, or (iii) the Redeemable
Warrants; or (b) If the amount of said adjustment shall be less than two (2)
cents per Warrant Security, provided, however, that in such case any adjustment
that would otherwise be required then to be made shall be carried forward and
shall be made at the time of and together with the next subsequent adjustment
which, together with any adjustment so carried forward, shall amount to at least
two (2) cents per Warrant Security. 8.8 Dividends and Other Distributions. In
the event that the Company shall at any time prior to the exercise of all
Warrants declare a dividend (other than a dividend consisting solely of shares
of Common Stock) or otherwise distribute to its stockholders any assets,
property, rights, evidences of indebtedness, securities (other than shares of
Common Stock), whether issued by the Company or by another, or any other thing
of value, the Holders of the unexercised Warrants shall thereafter be entitled,
in addition to the shares of Common Stock or other securities and property
receivable upon the exercise thereof, to receive, upon the exercise of such
Warrants, the same property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been entitled to
receive at the time of such dividend or distribution as if the
19
Warrants had been exercised immediately prior to such dividend or distribution.
At the time of any such dividend or distribution, the Company shall make
appropriate reserves to ensure the timely performance of the provisions of this
subsection 8.8. 9. Exchange and Replacement of Warrant Certificates. Each
Warrant Certificate is exchangeable without expense, upon the surrender thereof
by the registered Holder at the principal executive office of the Company, for a
new Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Warrant Securities in such denominations as
shall be designed by the Holder thereof at the time of such surrender. Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of any Warrant Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it, and reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of the Warrants, if mutilated, the
Company will make and deliver a new Warrant Certificate of like tenor, in lieu
thereof. 10. Elimination of Fractional Interests. The Company shall not be
required to issue fractional shares of Common Stock or Underlying Warrants upon
the exercise of Warrants. Warrants may only be exercised in such multiples as
are required to permit the issuance by the Company of one or more whole shares
of Common Stock and/or Underlying Warrants. If one or more Warrants shall be
presented for exercise in full at the same time by the same Holder, the number
of whole shares of Common Stock or Underlying Warrants which shall be issuable
upon such exercise thereof shall be computed on the basis of the aggregate
number of shares of Common Stock and/or Underlying Warrants purchasable on
exercise of the Warrants so presented. If any fraction of a share of Common
Stock or Underlying Warrants would, except for the provisions provided herein,
be issuable on the exercise of any Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to such fraction multiplied by the
then current market value of a share of Common Stock or Underlying Warrants,
determined as follows: (1) If the Common Stock or Underlying Warrant, as the
case may be, is listed,
or admitted to unlisted trading privileges on the
New York Stock Exchange ("NYSE") or the American Stock Exchange ("AMEX"), or is
traded on the NNM, the current market value of a share of Common Stock or
Underlying Warrant, as the case may be, shall be the closing sale price of the
Common Stock or the Underlying Warrant, as the case may be, at the end of the
regular trading session on the last business day prior to the date of exercise
of the Warrants on whichever of such exchanges or NNM had the highest average
daily trading volume for the Common Stock or the Underlying Warrant, as the case
may be, on such day; or (2) If the Common Stock or the Underlying Warrant, as
the case may be, is not listed or admitted to unlisted trading privileges, on
either the NYSE or the AMEX and is not traded on NNM, but is quoted or reported
on Nasdaq, the current market value of a share of Common Stock or the Underlying
Warrant, as the case may be, shall be the average of the Underwriter closing bid
and asked prices (or the last sale price, if then reported by Nasdaq) of the
Common Stock or the Underlying Warrant, as the case may be, at the end of the
regular trading session on the last business day prior to the date of exercise
of the Warrants as quoted or reported on Nasdaq, as the case may be; or (3) If
the Common Stock or the Underlying Warrant, as the case may be, is not listed,
or admitted to unlisted trading privileges, on either of the NYSE or the AMEX,
and is not traded on NNM or quoted or reported on Nasdaq, but is listed or
admitted to unlisted trading privileges on the BSE or another national
securities exchange (other than the NYSE or the AMEX), the current market value
of a share of Common Stock or Underlying Warrant, as the case may be, shall be
the closing sale price of the Common Stock or the Underlying Warrant, as the
case may be, at the end of the regular trading session on the last business day
prior to the date of exercise of the Warrants on whichever of such exchanges has
the highest average daily trading volume for the Common Stock or the Underlying
Warrant, as the case may be, on such day; or (4) If the Common Stock or the
Underlying Warrant, as the case may be, is not listed or admitted to unlisted
trading privileges on any national securities exchange, or listed for trading on
NNM or quoted or reported on Nasdaq, but is traded in the over-the-counter
market, the current market value of a share of Common Stock or the Underlying
Warrant, as the case may be, shall be the average of the last reported bid and
asked prices of the Common Stock or the Underlying
Warrant, as the case may
be, reported by the National Quotation Bureau, Inc. on the last business day
prior to the date of exercise of the Warrants; or (5) If the Common Stock or the
Underlying Warrant, as the case may be, is not listed, admitted to unlisted
trading privileges on any national securities exchange, or listed for trading on
NNM or quoted or reported on Nasdaq, and bid and asked prices of the Common
Stock or the Underlying Warrant, as the case may be, are not reported by the
National Quotation Bureau, Inc., the current market value of a share of Common
Stock or the Underlying Warrant, as the case may be, shall be an amount, not
less than the book value thereof as of the end of the most recently completed
fiscal quarter of the Company ending prior to the date of exercise, determined
in accordance with generally acceptable accounting principles, consistently
applied. 11. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants and the
Underlying Warrants, such number of shares of Common Stock or other securities,
properties or rights as shall be issuable upon the exercise thereof. The Company
covenants and agrees that, upon exercise of the Warrants and payment of the
Exercise Price therefor, all shares of Common Stock and other Securities
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. The
Company further covenants and agrees that upon exercise of the Underlying
Warrants underlying the Warrants and payment of the respective Underlying
Warrant exercise price therefor, all shares of Common Stock and other securities
issuable upon such exercises shall be duly and validly issued, fully paid, non-
assessable and not subject to the preemptive rights of any stockholder. As long
as the Warrants shall be outstanding, the Company shall use its best efforts to
cause all shares of Common Stock issuable upon the exercise of the Warrants and
Underlying Warrants and all Underlying Warrants underlying the Warrants to be
listed (subject to official notice of issuance) on all securities exchanges on
which the Common Stock or the Underlying Warrants issued to the public in
connection herewith may then be listed and/or quoted on NNM. 12. Notices to
Warrant Holders. Nothing contained in this Agreement shall be
construed as
conferring upon the Holders the right to vote or to consent or to receive notice
as a stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the expiration of
the Warrants and their exercise, any of the following events shall occur: (a)
the Company shall take a record of the holders of its shares of Common Stock for
the purpose of entitling them to receive a dividend or distribution payable
other than in cash, or a cash dividend or distribution payable other than out of
current or retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or (b) the Company shall
offer to all the holders of its Common Stock any additional shares of capital
stock of the Company or securities convertible into or exchangeable for shares
of capital stock of the Company, or any option, right or warrant to subscribe
therefor; or (c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed; then, in any one or more of said events, the Company shall give
written notice of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer book, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale. 13. Underlying Warrants. The form of the
certificates representing Class A and Class B Underlying Warrants (and the form
of election to purchase shares of Common Stock upon the exercise of Underlying
Warrants and the form of assignment printed on the reverse thereof) shall be
substantially as set forth in Exhibits "A" and "B" to the Redeemable Warrant
Agreement provided, however, that the Underlying
Warrants will be subject
to redemption only after the Warrants have been exercised and the Underlying
Warrants are outstanding. Each Class A Underlying Warrant shall entitle the
Holder to purchase one fully paid and non-assessable share of Common Stock at an
initial purchase price of $6.90 from , 1997 until 5:00 P.M. New York time on ,
2001 at which time the Class A Underlying Warrants shall expire. Each Class B
Underlying Warrant shall entitle the Holder to purchase one fully paid and
non-assessable share of Common Stock at an initial purchase price of $8.10 from
, 1997 until 5:00 P.M. New York time on , 2001 at which time the Class B
Underlying Warrants shall expire. The exercise price of the Underlying Warrants
and the number of shares of Common Stock issuable upon the exercise of the
Underlying Warrants are subject to adjustment, whether or not the Warrants have
been exercised and the Underlying Warrants have been issued, in the manner and
upon the occurrence of the events set forth in Section 8 of the Redeemable
Warrant Agreement, which is hereby incorporated herein by reference and made a
part hereof as if set forth in its entirety herein. Subject to the provisions of
this Agreement and upon issuance of the Underlying Warrants, each registered
holder of such Underlying Warrant shall have the right to purchase from the
Company (and the Company shall issue to such registered holders) up to the
number of fully paid and non-assessable shares of Common Stock (subject to
adjustment as provided herein and in the Redeemable Warrant Agreement), free and
clear of all preemptive rights of stockholders, provided that such registered
holder complies with the terms governing exercise of the Underlying Warrant set
forth in the Redeemable Warrant Agreement, and pays the applicable exercise
price, determined in accordance with the terms of the Redeemable Warrant
Agreement. Upon exercise of the Underlying Warrants, the Company shall forthwith
issue to the registered holder of any such Underlying Warrant in his name or in
such name as may be directed by him, certificates for the number of shares of
Common Stock so purchased. Except as otherwise provided herein and in Section
6.1 hereof, the Underlying Warrants shall be governed in all respects by the
terms of the Redeemable Warrant Agreement except that any notice of redemption
that the Company may issue with respect to the Redeemable Warrants shall not be
applicable to the Underlying Warrants. The Underlying Warrants shall be
transferable in the manner provided in the Redeemable Warrant Agreement, and
upon any such transfer, a new Underlying Warrant Certificate shall be issued
promptly to the transferee. The Company covenants to, and agrees with, the
Holder(s) that
without the prior written consent of the Holder(s), which
will not be unreasonably withheld, the Redeemable Warrant Agreement will not be
modified, amended, canceled, altered or superseded, and that the company will
send to each Holder, irrespective of whether or not the Warrants have been
exercised, any and all notices required by the Redeemable Warrant Agreement to
be sent to holders of Underlying Warrants. 14. Notices. All notices, requests,
consents and other communications hereunder shall be in writing and shall be
deemed to have been duly made and sent when delivered, or mailed by registered
or certified mail, return receipt requested: (a) If to the registered Holder of
the Warrants, to the address of such Holder as shown on the books of the
Company; or (b) If to the Company, to the address set forth in Section 3 hereof
or to such other address as the Company may designate by notice to the Holders.
15. Supplements and Amendments. The Company and the Underwriter may from time to
time supplement or amend this Agreement without the approval of any Holders of
Warrant Certificates in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with any
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Underwriter may deem
necessary or desirable and which the Company and the Underwriter deem shall not
adversely affect the interests of the Holders of Warrant Certificates. 16.
Successors. All the covenants and provisions of this Agreement shall be binding
upon and inure to the benefit of the Company, the Holders and their respective
successors and assigns hereunder. 17. Termination. This Agreement shall
terminate at the close of business on , 2003. Notwithstanding the foregoing, the
indemnification provisions of Section 7 shall survive
such termination
until the close of business on , 2005. 18. Governing Law; Submission to
Jurisdiction. This Agreement and each Warrant Certificate issued hereunder shall
be deemed to be a contract made under the laws of the State of New York and for
all purposes shall be construed in accordance with the laws of said State
without giving effect to the rules of said State governing the conflicts of
laws. The Company, the Underwriter and any other registered Holders hereby agree
that any action, proceeding or claim against it arising out of, or relating in
any way to, this Agreement shall be brought and enforced in the courts of the
State of New York or of the United States of America for the Southern District
of New York, and irrevocably submits to such jurisdiction, which jurisdiction
shall be exclusive. The Company, the Underwriter and any other registered
Holders hereby irrevocably waive any objection to such exclusive jurisdiction or
inconvenient forum. Any such process or summons to be served upon any of the
Company, the Underwriter and the Holders (at the option of the party bringing
such action, proceeding or claim) may be served by transmitting a copy thereof,
by registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 14 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the party
so served in any action, proceeding or claim. The Company, the Underwriter and
any other registered Holders agree that the prevailing party(ies) in any such
action or proceeding shall be entitled to recover from the other party(ies) all
of its'/their reasonable legal costs and expenses relating to such action or
proceeding and/or incurred in connection with the preparation therefor. 19.
Entire Agreement; Modification. This Agreement (including the Underwriting
Agreement and the Redeemable Warrant Agreement to the extent portions thereof
are referred to herein) contains the entire understanding between the parties
hereto with respect to the subject matter hereof and may not be modified or
amended except by a writing duly signed by the party against whom enforcement of
the modification or amendment is sought. 20. Severability. If any provision of
this Agreement shall be held to be invalid or
unenforceable, such
invalidity or unenforceability shall not affect any other provision of this
Agreement. 21. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
22. Benefits of this Agreement. Nothing in this Agreement shall be construed to
give to any person or corporation other than the Company and the Underwriter and
any other registered Holder(s) of the Warrant Certificates or Warrants
Securities any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole benefit of the Company and the
Underwriter and any other registered Holders of Warrant Certificates or Warrant
Securities. 23. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument. IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
GENISYS RESERVATION SYSTEMS, INC. By: Name: Title: X.X. XXXXX & CO., INC. By:
Name: Title:
EXHIBIT A [FORM OF CLASS A WARRANT CERTIFICATE] THE WARRANTS
REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE UPON EXERCISE
THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE. THE TRANSFER OR
EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN
ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN. EXERCISABLE ON OR
BEFORE 5:00 P.M., NEW YORK TIME, , 2001 No. UW- Class A Warrants to Purchase
Shares of Common Stock CLASS A WARRANT CERTIFICATE This Warrant Certificate
certifies that , or registered assigns, is the registered holder of Warrants to
purchase initially, at any time from , 1997 until 5:00 p.m. New York time on ,
2001 ("Expiration Date"), up to fully-paid and non-assessable shares of common
stock, $.0001 par value ("Common Stock") of Genisys Reservation Systems, Inc., a
New Jersey corporation (the "Company"), at the initial exercise price, subject
to adjustment in certain events (the "Exercise Price"), of $6.90 per share of
Common Stock upon surrender of this Warrant Certificate and payment of the
Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Underwriter's Warrant Agreement dated as
of , 1996 between the Company and X.X. XXXXX & CO., INC. (the "Underwriter's
Warrant Agreement"). Payment of the Exercise Price shall be made by certified or
official bank check in New York Clearing House funds payable to the order of the
Company or by surrender of this Warrant Certificate. No Warrant may be exercised
after 5:00 p.m., New York time, on the Expiration Date, at which time all
Warrants evidenced hereby, unless exercised prior thereto, hereby shall
thereafter be void.
The Warrants evidenced by this Warrant Certificate are
part of a duly authorized issue of Warrants issued pursuant to the Underwriter's
Warrant Agreement, which Underwriter's Warrant Agreement is hereby incorporated
by reference in and made a part of this instrument and is hereby referred to for
a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the Warrants.
The Underwriter's Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Underwriter's Warrant Agreement. Upon due presentment
for registration of transfer of this Warrant Certificate at an office or agency
of the Company, a new Warrant Certificate of Warrant Certificates of like tenor
and evidencing in the aggregate a like number of Warrants shall be issued to the
transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided herein and in the Underwriter's Warrant Agreement, without
any charge except for any tax or other governmental charge imposed in connection
with such transfer. Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such numbered unexercised Warrants. The
Company may deem and treat the registered holder(s) hereof as the absolute
owner(s) of this Warrant Certificate (notwithstanding any notation of ownership
or other writing hereon made by anyone), for the purpose of any exercise hereof,
and of any distribution to the holder(s) hereof, and for all other purposes, and
the Company shall not be affected by any notice to the contrary. All terms used
in this Warrant Certificate which are defined in the Underwriter's Warrantpany
shall forthwith issue to the holder hereof a new Warrant Certificate
representing such numbered
unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s)
of this Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone), for the purpose of any exercise hereof, and of
any distribution to the holder(s) hereof, and for all other purposes, and the
Company shall not be affected by any notice to the contrary. All terms used in
this Warrant Certificate which are defined in the Underwriter's Warrant
Agreement shall have the meanings assigned to them in the Underwriter's Warrant
Agreement. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal. Dated as of , 1996 Attest: GENISYS
RESERVATION SYSTEMS, INC. By: Name: Name: Title: Title:
29
EXHIBIT B
[FORM OF CLASS B WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH
ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT
REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, , 2001
No. UW- Class B Warrants to Purchase
Shares of Common Stock
CLASS B WARRANT CERTIFICATE
This Warrant Certificate certifies that , or registered assigns, is the
registered holder of Warrants to purchase initially, at any time from , 1997
until 5:00 p.m. New York time on , 2001 ("Expiration Date"), up to fully-paid
and non-assessable shares of common stock, $.0001 par value ("Common Stock") of
Genisys Reservation Systems, Inc., a New Jersey corporation (the "Company"), at
the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $8.10 per share of Common Stock upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the
Underwriter's Warrant Agreement dated as of , 1996 between the Company and X.X.
XXXXX & CO., INC. (the "Underwriter's Warrant Agreement"). Payment of the
Exercise Price shall be made by certified or official bank check in New York
Clearing House funds payable to the order of the Company or by surrender of this
Warrant Certificate. No Warrant may be exercised after 5:00 p.m., New York time,
on the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, hereby shall thereafter be void.
The Warrants
evidenced by this Warrant Certificate are part of a duly authorized issue of
Warrants issued pursuant to the Underwriter's Warrant Agreement, which
Underwriter's Warrant Agreement is hereby incorporated by reference in and made
a part of this instrument and is hereby referred to for a description of the
rights, limitation of rights, obligations, duties and immunities thereunder of
the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants. The Underwriter's
Warrant Agreement provides that upon the occurrence of certain events the
Exercise Price and the type and/or number of the Company's securities issuable
thereupon may, subject to certain conditions, be adjusted. In such event, the
Company will, at the request of the holder, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and/or type of
securities issuable upon the exercise of the Warrants; provided, however, that
the failure of the Company to issue such new Warrant Certificates shall not in
any way change, alter, or otherwise impair, the rights of the holder as set
forth in the Underwriter's Warrant Agreement. Upon due presentment for
registration of transfer of this Warrant Certificate at an office or agency of
the Company, a new Warrant Certificate of Warrant Certificates of like tenor and
evidencing in the aggregate a like number of Warrants shall be issued to the
transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided herein and in the Underwriter's Warrant Agreement, without
any charge except for any tax or other governmental charge imposed in connection
with such transfer. Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such numbered unexercised Warrants. The
Company may deem and treat the registered holder(s) hereof as the absolute
owner(s) of this Warrant Certificate (notwithstanding any notation of ownership
or other writing hereon made by anyone), for the purpose of any exercise hereof,
and of any distribution to the holder(s) hereof, and for all other purposes, and
the Company shall not be affected by any notice to the contrary. All terms used
in this Warrant Certificate which are defined in the Underwriter's Warrant
Agreement shall have the meanings assigned to them in the Underwriter's Warrant
Agreement. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal. Dated as of , 1996 Attest: GENISYS
RESERVATION SYSTEMS, INC. By: Name: Name: Title: Title: 31
EXHIBIT C [FORM OF
CLASS A WARRANT CERTIFICATE] THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND
THE OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY
SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE. THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN. EXERCISABLE ON OR BEFORE 5:00 P.M., NEW YORK TIME, , 2001 No. W- Class A
Warrants to Purchase Underlying Warrants CLASS A WARRANT CERTIFICATE This
Warrant Certificate certifies that , or registered assigns, is the registered
holder of Warrants to purchase initially, at any time from , 1997 until 5:00
p.m. New York time on , 2001 ("Expiration Date"), up to warrants (each such
Underlying Warrant entitling the owner to purchase one fully-paid and
non-assessable share of common stock, $.0001 par value ("Common Stock") of
Genisys Reservation Systems, Inc., a New Jersey corporation (the "Company")), at
the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $.24 per Underlying Warrant upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the Underwriter's
Warrant Agreement dated as of , 1996 between the Company and X.X. XXXXX & CO.,
INC. (the "Underwriter's Warrant Agreement"). Payment of the Exercise Price
shall be made by certified or official bank check in New York Clearing House
funds payable to the order of the Company or by surrender of this Warrant
Certificate. No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by
this Warrant Certificate are part of a duly authorized issue of Warrants issued
pursuant to the Underwriter's Warrant Agreement, which Underwriter's Warrant
Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants. The Underwriter's Warrant Agreement provides
that upon the occurrence of certain events the Exercise Price and the type
and/or number of the Company's securities issuable thereupon may, subject to
certain conditions, be adjusted. In such event, the Company will, at the request
of the holder, issue a new Warrant Certificate evidencing the adjustment in the
Exercise Price and the number and/or type of securities issuable upon the
exercise of the Warrants; provided, however, that the failure of the Company to
issue such new Warrant Certificates shall not in any way change, alter, or
otherwise impair, the rights of the holder as set forth in the Underwriter's
Warrant Agreement. Upon due presentment for registration of transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate of Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the office or
agency of the Company, a new Warrant Certificate of Warrant Certificates of like
tenor and evidencing in the aggregate a like number of Warrants shall be issued
to the transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided herein and in the Underwriter's Warrant Agreement, without
any charge except for any tax or other governmental charge imposed in connection
with such transfer. Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such numbered unexercised Warrants. The
Company may deem and treat the registered holder(s) hereof as the absolute
owner(s) of this Warrant Certificate (notwithstanding any notation of ownership
or other writing hereon made by anyone), for the purpose of any exercise hereof,
and of any distribution to the holder(s) hereof, and for all other purposes, and
the Company shall not be affected by any notice to the contrary. All terms used
in this Warrant Certificate which are defined in the Underwriter's Warrant
Agreement shall have the meanings assigned to them in the Underwriter's Warrant
Agreement. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal. Dated as of , 1996 Attest: GENISYS
RESERVATION SYSTEMS, INC. By: Name: Name: Title: Title: 33
EXHIBIT D [FORM OF
CLASS A WARRANT CERTIFICATE] THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND
THE OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY
SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE. THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN. EXERCISABLE ON OR BEFORE 5:00 P.M., NEW YORK TIME, , 2001 No. W- Class B
Warrants to Purchase Underlying Warrants CLASS B WARRANT CERTIFICATE This
Warrant Certificate certifies that , or registered assigns, is the registered
holder of Warrants to purchase initially, at any time from , 1997 until 5:00
p.m. New York time on , 2001 ("Expiration Date"), up to warrants (each such
Underlying Warrant entitling the owner to purchase one fully-paid and
non-assessable share of common stock, $.0001 par value ("Common Stock") of
Genisys Reservation Systems, Inc., a New Jersey corporation (the "Company")), at
the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $.12 per Underlying Warrant upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the Underwriter's
Warrant Agreement dated as of , 1996 between the Company and X.X. XXXXX & CO.,
INC. (the "Underwriter's Warrant Agreement"). Payment of the Exercise Price
shall be made by certified or official bank check in New York Clearing House
funds payable to the order of the Company or by surrender of this Warrant
Certificate. No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by
this Warrant Certificate are part of a duly authorized issue of Warrants issued
pursuant to the Underwriter's Warrant Agreement, which Underwriter's Warrant
Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants. The Underwriter's Warrant Agreement provides
that upon the occurrence of certain events the Exercise Price and the type
and/or number of the Company's securities issuable thereupon may, subject to
certain conditions, be adjusted. In such event, the Company will, at the request
of the holder, issue a new Warrant Certificate evidencing the adjustment in the
Exercise Price and the number and/or type of securities issuable upon the
exercise of the Warrants; provided, however, that the failure of the Company to
issue such new Warrant Certificates shall not in any way change, alter, or
otherwise impair, the rights of the holder as set forth in the Underwriter's
Warrant Agreement. Upon due presentment for registration of transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate of Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Underwriter's Warrant Agreement, without any charge except for
any tax or other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered unexercised Warrants. The Company
may deem and treat the registered holder(s) hereof as the absolute owner(s) of
this Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made
The Company may deem and treat the registered holder(s) hereof as the absolute
owner(s) of this Warrant Certificate (notwithstanding any notation of ownership
or other writing hereon made by anyone), for the purpose of any exercise hereof,
and of any distribution to the holder(s) hereof, and for all other purposes, and
the Company shall not be affected by any notice to the contrary. All terms used
in this Warrant Certificate which are defined in the Underwriter's Warrant
Agreement shall have the meanings assigned to them in the Underwriter's Warrant
Agreement. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal. Dated as of , 1996 Attest: GENISYS
RESERVATION SYSTEMS, INC.
By:
Name: Name:
Title: Title:
35
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1] The undersigned hereby
irrevocably elects to exercise the right, represented by this Warrant
Certificate, to purchase: Shares Class A Underlying Warrants Class B Underlying
Warrants and herewith tenders in payment for such securities a certified or
official bank check payable in New York Clearing House Funds to the order of
Genisys Reservation Systems, Inc., in the amount of $ , all in accordance with
the terms of Section 3.1 of the Underwriter's Warrant Agreement dated as of ,
1996 between Genisys Reservation Systems, Inc., and X.X. Xxxxx & Co., Inc. The
undersigned request that a certificate for such Securities be registered in the
name of whose address is and that such Certificate be delivered to whose address
is . Signature (Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.) (Insert Social Security or
Other Identifying Number of Holder)
[FORM OF ASSIGNMENT] (To be executed by
the registered holder if such holder desires to transfer the Warrant
Certificate.) FOR VALUE RECEIVED hereby sells, assigns and unto (Please print
name and address of transferee) Warrant Certificate, together with all right,
title and interest therein, and does hereby reasonably constitute and appoint ,
as Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution. Date: Signature:
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.) (Insert Social Security or Other Identifying
Number of Assignee)
EXHIBIT 8 SCRIPT SERVICES AGREEMENT THIS Script Services Agreement
("Agreement') is made this 21st day of June, 1995, by and between WORLDSPAN,
L.P., a Delaware limited partnership ("WORLDSPAN", 000 Xxxxxxxx Xxxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000 and Corporate Travel Link, Incorporated located at 00
Xxxxxxx Xxxxx Xx., Xxxxx Xxxxxx,-XX 00000 (Customer"). W I T N E S S E T H:
WHEREAS, WORLDSPAN is a computer reservation system ("CRS") vendor providing
access to its WORLDSPAN System to travel agencies and others in the travel
industry; WHEREAS, Customer has arranged with WORLDSPAN for the use of
WORLDSPAN's CRS, equipment and products; and WHEREAS, Customer desires to retain
WORLDSPAN to write one or more software programs (hereinafter referred to as the
'Scripts@ that may be used with WORLDSPAN's Scripting product, used by Customer
in conjunction with the WORLDSPAN CRS. NOW, THEREFORE, it is agreed: 1. Scripts
to be Provided by WORLDSPAN. WORLDSPAN shall prepare and provide to Customer the
Scripts as outlined in Exhibit A attached hereto and incorporated herein.
WORLDSPAN shall create and provide the Scripts to Customer pursuant to this
Agreement. Preparation of the Scripts by WORLDSPAN may be carried out at
WORLDSPAN's facilities or at Customer's offices, provided that the completed
Scripts shall be provided to Customer at the address set forth above. 2. Access.
Customer agrees to make available to WORLDSPAN reasonable access to Customer's
equipment and staff, and provide such other assistance as shall be reasonably
necessary to permit WORLDSPAN to provide the Scripts according to this
Agreement, including but not limited to access to a WORLDSPAN Scripting
workstation and assistance from a Customer designee familiar with the design
specifications and host functionality of the proposed Script project. 3. Fees.
In consideration of the services provided by WORLDSPAN hereunder and the license
to the Scripts, Customer shall pay WORLDSPAN a fee of three thousand dollars ($
3,000.09). Fees shall be paid by Customer within thirty (30) days of the date of
invoice.
WORLDSPAN may impose a late payment fee at the rate of one
percent (I%) per month for any amount that has not been received within thirty
(30) days after the date of such-invoice. In addition to any other charges set
forth herein, Customer shall pay to WORLDSPAN or reimburse WORLDSPAN, as
appropriate, for all sales, use, excise, property, or other similar taxes now or
hereafter imposed by any federal, state or local taxing authority on amounts
paid to WORLDSPAN by Customer. Notwithstanding the foregoing, Customer shall
not, in any event, be responsible for any taxes payable on WORLDSPAN's net
income or taxes in lieu of net income taxes, or for charges imposed on WORLDSPAN
for the privilege of doing business. 4. Termination of Agreement. Either party
may terminate this Agreement in its sole discretion by providing the other party
with one day advance written notice. Should Customer terminate this Agreement,
Customer will be obligated to pay WORLDSPAN the entire fee identified in Section
3 above. Should WORLDSPAN terminate this Agreement, Customer will not be
obligated to pay WORLDSPAN any of the fee identified in Section 3 above. 5.
Confidentiality. Each of the parties shall ensure that any Confidential
Information which it may become aware of or use during the performance of this
Agreement is treated by it in strictest confidence, and is not disclosed to
third parties or used except as expressly permitted by this Agreement.
"Confidential Information" shall mean information that is proprietary and
confidential to the party disclosing such information including, but not limited
to, software, specifications, customer information, scripting code, business
plans, financial information, and other information of a sensitive or
confidential nature whether oral or written, except (a) information known to the
receiving party prior to disclosure by the disclosing party; (b) information
which is widely known to the public in the relevant industry or trade; or (C)
information which is developed by the receiving party independent of any
Confidential Information provided by the disclosing party. Each party will treat
the other party's Confidential Information with at least the same concern and
protective measures accorded any of its own trade secrets and confidential
information. 6. License. Title and full and complete ownership rights to all
WORLDSPAN owned or developed software including but not limited to the Scripts,
shall remain with WORLDSPAN. Customer understands and agrees that WORLDSPAN's
owned or developed software is WORLDSPAN's trade secret, proprietary
information, and confidential information whether any portion thereof is or may
be validly copyrighted or patented. Any software provided to Customer is
provided by license only and such license is non-exclusive, non transferable and
limited to the right to use such software. Under no circumstances may a Script
be , copied for, duplicated for, provided to, or sold to any third party
including but not limited
to any member of an agency consortium.
Customer's license shall include the right for Customer to modify the Scripts as
needed. 7. Limited Warranty. WORLDSPAN makes no representation or warranty with
regard to the accuracy or completeness of the Scripts or that the Scripts shall
be suitable for Customer for all purposes. WORLDSPAN warrants that the Scripts
shall operate substantially according to the design specifications outlined in
Exhibit A for a period of thirty(30)days following delivery of the Scripts to
Customer. In the event of any breach of the foregoing warranty, Customer's sole
remedy, and WORLDSPAN's sole obligation, shall be for WORLDSPAN to correct any
defective Script so that it shall operate substantially according to the design
specifications outlined in Exhibit A. 8. Indemnification. A. Each party shall
indemnify, defend and hold harmless the other party, its directors, affiliates,
partners, officers, employees and agents, from and against all liabilities,
damages and expenses, and claims for damages, suits, proceedings, recoveries,
judgments or executions including but not limited to litigation costs, expenses,
and reasonable attorneys' fees) arising out of or in connection with any claim
that the use of the indemnifying party's system or data (including, without
limitation, software) by the other party infringes any third party patent,
copyright, trademark or other property right. B. Each party shall indemnify,
defend and hold harmless the other party, its directors, affiliates, partners,
officers, employees and agents from and against all liabilities, damages and
expenses, and claims for damages, suits, proceedings, recoveries, judgments or
executions (including but not limited to litigation costs, expenses, and
reasonable attorneys' fees) which may be suffered by' accrued against, charged
to or recoverable from the other party, its past and present directors,
affiliates, partners, officers, employees or agents by reason of or in
connection with the party's performance or failure to perform, or improper
performance of any of the party's obligations under this Agreement. 9.
Disclaimer. OTHER THAN THE WARRANTIES AND REMEDIES SET FORTH IMMEDIATELY ABOVE,
WORLDSPAN DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL WARRANTIES, EXPRESSED OR
IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, RELATING TO
THE SCRIPTS OR SERVICES PROVIDED BY WORLDSPAN HEREUNDER. WORLDSPAN SHALL NOT BE
LIABLE TO CUSTOMER OR TO ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, REGARDLESS OF WHETHER CUSTOMER'S
CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. WORLDSPAN'S
TOTAL LIABILITY TO CUSTOMER OR ANY THIRD
PARTY SHALL NOT EXCEED THE
AMOUNT PAID BY CUSTOMER TO WORLDSPAN PURSUANT TO THIS AGREEMENT. 10. Notice. All
notices, requests, demands or other communications hereunder shall be in
writing, hand delivered, sent by first class mail, overnight mail, facsimile or
All notices, requests, demands or other communications hereunder shall be in
writing, hand delivered, sent by first class mail, overnight mail, facsimile or
teletype and shall be deemed to have been given when received at the following
addresses:
If to WORLDSPAN:
WORLDSPAN. L.P.
000 Xxxxxxxx Xxxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
X.X.X.
Facsimile:(000) 000-0000
ATTN: Supervisor - Customer Service Programming
If to Customer:
Corporate Travel Link, Incorporated
X.X. Xxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
ATTN: Xxxxxx Xxxxxxx
Any notice provided by facsimile or teletype which is received after 4:00 p.m.
local time shall be deemed received the following business day. A party may
change its addresses for notice on not less than ten (10) days'- prior written
notice to the other party.
ii. General Provisions.
A. Nothing in this Agreement is intended or shall be construed
to create or establish an agency, partnership, or joint
venture relationship between the parties.
B. The captions in this Agreement are for convenience only and
in no way define, limit, or enlarge the scope of this
Agreement or any of the provisions therein. Capitalized
terms shall have the meanings assigned in this Agreement.
C. No waiver by either party of any provision or any breach of this
Agreement constitutes a waiver of any other provision or breach of
this Agreement and no waiver shall be effective unless made in
writing. The right of either party to require strict performance and
observance of any obligations hereunder shall not be affected in any
way by any previous waiver, forbearance or course of dealing.
D. Except for Customer's obligation to make payments hereunder,
neither party will be deemed in default of this Agreement as a result
of a delay in performance or failure to perform its obligations
caused by acts of God or governmental authority, strikes or label,
disputes, fire, acts of war, failure of third party suppliers, or for
any other cause beyond the control of that party.
E. Customer shall not sell, assign, license, sub-license, franchise
or otherwise convey in whole or in part to any third party this
Agreement or the services provided hereunder without the prior
written consent of WORLDSPAN.
F. This is a non-exclusive agreement. Similar agreements may be
entered into by either party with any other person.
G. This Agreement shall be governed by, construed, interpreted and
enforced according to the laws of the State of Georgia and of the
United States of America, without regard to principles of conflict of
laws and rules. Each party hereby consents to the non-exclusive
jurisdiction of the courts of the State of Georgia and United States
Federal Courts located in Georgia to resolve any dispute arising out
of this Agreement, and waives any objection relating to improper
venue or forum nonconveniens to the conduct of any proceeding in any
such court.
H. In the event that any material provision of this Agreement is
determined to be invalid, unenforceable or illegal, then such
provision shall be deemed to be superseded and the Agreement modified
with a provision which most nearly corresponds to the intent of the
parties and is valid, enforceable and legal.
I This Agreement constitutes the final and complete understanding and
agreement between the parties concerning the subject matter hereof.
Any prior agreements, understandings negotiations or communications
written or otherwise concerning the subject matter hereof are deemed
superseded by this Agreement. This Agreement may be modified only by
a further written agreement executed by an authorized representative
of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their under-signed duly authorized representatives as of the day and
year first written above.
CUSTOMER: WORLDSPAN, L.P.
Corporate Travel Link,
Incorporated
______________________ By:_____________________
(Customer Legal Name) Xxxxx Xxxxxxxx
Corporate Travel Link,
Incorporated
(Doing Business As)
By:______________________
(signature)
Xxxxxx Xxxxxxx
(Print Name)
Title: President
