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EXHIBIT 10.22
NEITHER THIS WARRANT, NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF,
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES
ACT"), OR QUALIFIED OR REGISTERED UNDER CALIFORNIA OR OTHER APPLICABLE
SECURITIES LAWS, AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE ISSUED
UPON EXERCISE HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR
FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER
DISPOSITION MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND COMPLIANCE WITH THE APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER AND ITS COUNSEL, THAT
SAID REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND THAT APPLICABLE
STATE SECURITIES LAWS HAVE BEEN SATISFIED.
Issued as of the 8th day of September, 2000
Initial Warrant Price: $1.92
Number of Shares Initially Subject to Warrant: 1,050,000
CLASS A COMMON STOCK WARRANT
of
XXXXXXXXXXXXXXX.XXX
THIS CERTIFIES THAT LEASE MANAGEMENT ASSOCIATES, INC. (the "Holder") is
entitled to purchase from XxXxxxxxXxxxxxx.xxx, a Delaware corporation (the
"Company"), during the Exercise Period 1,050,000 shares of fully-paid and
non-assessable shares of Company's Class A Common Stock (the "Common"), at a
price of $1.92 per share (the "Warrant Price"), provided, however, that for each
$100,000 of the $7,000,000 Commitment Amount under the Loan (hereinafter
defined) not utilized by the ReSource/Phoenix, Inc. ("RPI") as of the earlier to
occur of (a) the date RPI has borrowed all amounts available under the Senior
Loan and Security Agreement dated as of August 31, 2000, between Lease
Management Associates, Inc. and RPI (the "Loan"), and (b) February 28, 2002 (the
"Commitment Termination Date"), the number of Warrant Shares purchasable
hereunder, commencing as of the Commitment Termination Date, shall be reduced by
10% of the number of Warrant Shares that would be purchasable hereunder. The
possible reduction in the number of Warrant Shares as of the Commitment
Termination Date in accordance with the preceding sentence shall not affect the
holder's right to exercise this Warrant, in whole or in part, based on 100% of
the Warrant Shares subject hereto as of the Closing Date, prior to the
Commitment Termination Date in connection with a bona fide sale to the third
party of the Warrant Shares or the Common Stock acquired upon exercise of the
Warrant Shares, whether such sale is in connection with a Registration, merger,
sale or consolidation of the Company or otherwise. The Warrant Price and number
of shares are subject to adjustment as set forth herein. The "Exercise
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Period" commences on September 8, 2000 (the "Effective Date") and terminates on
the third anniversary of the Effective Date.
This Warrant is subject to the following terms and conditions:
1. Exercise of Warrant. Holder may exercise this Warrant in whole or in
part, at any time during the Exercise Period, by surrendering this Warrant
together with the "Notice of Exercise" and "Investment Representation Statement"
attached hereto as Exhibits "A" and "B", respectively, duly completed and
executed, at Company's address set forth below its signature hereto (the
"Principal Office") and by paying Company, in the manner provided for in the
following paragraph, the Warrant Price for the Common purchased.
In lieu of exercising this Warrant for cash, Holder may elect to receive shares
of Common equal to the value of this Warrant determined in the manner described
below (or of any portion thereof remaining unexercised) by surrender of this
Warrant at the Principal Office of the Company together with the "Notice of
Exercise" and "Investment Representation Statement" attached hereto as Exhibits
"A" and "B", respectively, in which event the Company shall issue to Holder a
number of shares of Common computed using the following formula:
X = Y (A-B)
-------
A
Where: X = the number of shares of Common to be issued to Holder.
Y= the number of shares of Common purchasable under this Warrant
(at the date of such calculation).
A= the fair market value of one share of Common (at the date of
such calculation).
B = Warrant Price.
For purposes of converting this Warrant in accordance with the
preceding paragraph, the fair market value per share of the Common on any
particular date shall be (a) the average of the daily closing prices per share
of the Common for the thirty (30) trading days ending on such date. The closing
price for each day shall be the last sale price on such date, or, if no such
sale takes place on such date, the average of the closing bid and asked prices
on such date, in each case as officially reported on the NASDAQ National Market
or other registered national stock exchange on which the Common is then listed.
If there is no such price on such date, then the closing bid price on such
exchange or quotation system on the date nearest preceding such date, or (b) if
the Common is not then listed on any registered national stock exchange, the
closing bid price for a share of Common in the over-the-counter market, as
reported by NASDAQ or in the National Quotation Bureau Incorporated or similar
organization or agency succeeding to its functions of reporting prices at the
close of business on such date, or (c) if the Common is not then reported by
NASDAQ or the National Quotation Bureau Incorporated or similar organization or
agency succeeding to its functions of reporting prices, then the "Pink Sheets"
quote for the Common, or (d) if the Common is not then
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publicly traded, the fair market value of a share of Common as determined in
good faith by the Company's Board of Directors.
Holder may make the exercise of this Warrant contingent upon (i) the
closing of any consolidation or merger of Company with or into any other
unaffiliated party or any other reorganization in which Company will not be the
continuing or surviving entity of such consolidation, merger or reorganization
(a "Merger"), or (ii) the sale of all or substantially all of Company's assets
(a "Sale"). Company shall notify Holder if an event or transaction of the kind
described in this section is proposed at least fifteen (15) days prior to the
closing of such event or transaction; such notice shall also contain such
details of the proposed event or transaction as are reasonable in the
circumstances.
Upon exercise of this Warrant in connection with a Sale or Merger, the
successor entity in a Sale or Merger shall assume the obligations of this
Warrant, and this Warrant shall survive such Sale or Merger and shall be
exercisable for the same securities, cash, and property as would be payable for
the shares issuable upon exercise of the unexercised portion of this Warrant as
if such shares were outstanding on the record date for such Sale or Merger and
subsequent closing. The Warrant Price shall be adjusted accordingly.
Notwithstanding anything to the contrary contained herein, unless expressly
assumed in connection with a Sale or Merger, this Warrant shall terminate upon
such Sale or Merger in the event that Holder fails to exercise this Warrant.
Certificates for the shares issuable upon exercise of this Warrant and,
if applicable, a new warrant evidencing the balance of the shares remaining
subject to this Warrant shall be issued as of the Exercise Date and shall be
delivered to Holder within thirty (30) days following the Exercise Date (subject
to the transfer restrictions contained herein and upon Holder paying applicable
transfer taxes). All shares of Common issued upon the exercise hereof shall be
fully paid and non-assessable and shall be free from all taxes, liens and
charges with respect thereto except with respect to restrictions on transfer of
such securities under federal and state securities laws.
2. Transfer and Exercise Conditions. This Warrant may be transferred or
exercised only if (i) Company receives, at the time of such transfer or
exercise, a representation in writing that this Warrant (or portion hereof
transferred) or the shares of Common or other securities being issued upon such
exercise, as applicable, are being acquired for investment not with a view to
any sale or distribution thereof, or a statement of the pertinent facts covering
any proposed distribution thereof, and (ii) other than a transfer registered
under the Securities Act, Company receives a legal opinion, in form and
substance satisfactory to it, reciting the pertinent circumstances surrounding
the proposed transfer and stating that it is exempt from the Securities Act's
prospectus and registration requirements. The opinion requirement may be waived
by Company in connection with a transfer to an affiliate of Holder, so long as
the transfer complies with applicable securities laws and such affiliate is an
accredited investor. Each certificate evidencing the shares of Common issued
upon exercise of this Warrant or upon any transfer of such shares (other than a
transfer registered under the Securities Act or any subsequent transfer of
shares so registered) shall, at Company's option, contain a legend, in form and
substance satisfactory to Company, restricting the transfer of such shares to
sales or other dispositions exempt from the Act's requirements.
3. Adjustment of Warrant Price and Shares. The Warrant Price and the
number of shares purchasable hereunder shall be adjusted from time to time as
follows:
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(a) Subdivisions or Combinations. If outstanding shares of the
Common are subdivided, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately decreased, and if the outstanding shares of
the Common are combined, the Warrant Price in effect immediately prior to such
combination shall be proportionately increased, effective at the close of
business on the date of such subdivision or combination, as applicable.
(b) Stock Dividends. If a dividend is paid with respect to Class
A Common Stock in Class A Common Stock, then the Warrant Price in effect
immediately prior to the record date for distribution of such dividend shall be
adjusted to the price determined by multiplying the Warrant Price in effect
immediately prior to such date by a fraction (i) the numerator of which is the
total number of shares of Common outstanding immediately prior to such dividend
and (ii) the denominator of which is the total number of shares of Common
outstanding immediately after such dividend.
(c) Reclassification. In case of any reclassification, change or
conversion of securities of the class or series issuable upon exercise hereof
(other than as a result of a Merger or Sale or a subdivision or combination
described above), or in case of any Merger or Sale where the successor entity is
obligated to assume or agrees to assume the obligations of this Warrant, Company
or such successor entity, as applicable, shall duly execute and deliver to
Holder a new warrant so that Holder shall have the right to receive, at a total
purchase price not to exceed that payable upon the exercise of the unexercised
portion of this Warrant, upon exercise of this Warrant and in lieu of the shares
of Common theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable upon
such reclassification, change or conversion by a holder of the number of shares
of Common then purchasable under this Warrant. Such new warrant shall provide
for adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this section. The provisions of this subsection
shall similarly apply to successive reclassifications, changes, and conversions.
(d) Adjustment of Number of Shares. Upon each adjustment of the
Warrant Price pursuant to paragraphs (a) and (b) of this Section 3, the number
of shares of Common Stock purchasable hereunder shall be adjusted to the nearest
whole share, to the number obtained by dividing the aggregate Warrant Price in
effect (prior to the adjustment of the Warrant Price) by the Warrant Price as
adjusted.
(e) Notices. Within thirty (30) days after any adjustment of the
Warrant Price or the number of shares of Common purchasable hereunder, Company
shall give written notice to Holder of the adjusted Warrant Price and any
increase or decrease in the number of shares purchasable hereunder, setting
forth in reasonable detail the method of calculation of each.
4. Registration Rights.
(a) Piggyback Registrations. The Company shall notify Holder in
writing at least twenty (20) days prior to filing any registration statement
under the Securities Act for purposes of effecting a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company but
excluding registration statements relating solely to any employee benefit plan
or a corporate reorganization) and will afford Holder an opportunity to include
in such registration statement all or any part of the Common Stock of the
Company issuable upon exercise of this Warrant ("Registrable Securities").
Subject to clause (i) of this Section 4(a), in the event that Holder desires to
include in any such registration statement all
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or any part of the Registrable Securities Holder shall, within twenty (20) days
after receipt of the above-described notice from the Company, so notify the
Company in writing, and in such notice shall inform the Company of the number of
Registrable Securities such Holder wishes to include in such registration
statement. If Holder is not permitted to include all of its Registrable
Securities in any registration statement thereafter filed by the Company, Holder
shall nevertheless continue to have the right to include any Registrable
Securities in any subsequent registration statement or registration statements
as may be filed by the Company with respect to offerings of its securities, all
upon the terms and conditions set forth herein. Not withstanding anything to the
contrary contained in this Section 4, Holder shall have no registration or
related rights with respect to the S-1 registration statement filed by the
Company on June 12, 2000.
(i) Underwriting. If a registration statement under which
the Company gives notice under this Section 4 is for an underwritten offering,
then the Company shall so advise the Holder. In such event, the right of Holder
to have its Registrable Securities included in a registration pursuant to this
Section 4 shall be conditioned upon Holder's participation in such underwriting
and the inclusion of Holder's Registrable Securities in the underwriting to the
extent provided herein. In the event that Holder proposes to distribute its
Registrable Securities through such underwriting, it shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriter(s) selected for such underwriting. Notwithstanding any other
provision of this Warrant, if the managing underwriter determine(s) in good
faith that marketing factors require a limitation of the number of shares to be
underwritten, then the managing underwriter(s) may exclude shares (including
Registrable Securities) from the registration and the underwriting, and the
number of shares that may be included in the registration and the underwriting
shall be allocated, first, to the Company and/or any person or entity exercising
demand registration rights in the offering, if any, and second, to Holder. If
Holder disapproves of the terms of any such underwriting, Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration.
(ii) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 4 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal and "blue
sky" registration and qualification fees, printers' and accounting fees and fees
and disbursements of counsel for the Company shall be borne on a pro rata basis
by Company and all holders of piggyback registration rights.
(b) Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Warrant, the Company
shall, as expeditiously as reasonably possible:
(i) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of
Holder, use its best efforts to keep such registration statement effective for a
period of 180 days or until Holder has completed the distribution described in
the registration statement relating thereto, whichever first occurs;
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
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(iii) Furnish to Holder such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by it that are included in such registration;
(iv) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by Holder;
(v) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter(s) of such offering and Holder
shall also enter into and perform its obligations under such an agreement;
(vi) Notify Holder at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, may be deemed to include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing and Holder, upon receipt of any such notice from the
Company, shall refrain from selling any securities pursuant to such prospectus
until notified by the Company that trading may resume.
(c) Furnish Information. Holder shall furnish to the Company such
information regarding Holder, the Registrable Securities held by Holder, and the
intended method of disposition of such securities as shall be required to timely
effect the registration of Holder's Registrable Securities.
(d) Delay of Registration. Holder shall have no right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 4.
(e) Indemnification. In the event any Registrable Securities are
included in a registration statement under Section 4, the following shall apply.
(i) By the Company. To the extent permitted by law, the
Company will indemnify and hold harmless Holder, the partners, officers and
directors of Holder, any underwriter (as defined in the Securities Act) for
Holder and each person, if any, who controls Holder or underwriter within the
meaning of the Securities Act or the 1934 Act against any losses, claims,
damages or liabilities (joint or several) to which they may become subject under
the Securities Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (each a "Violation"):
(A) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto;
(B) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading; or
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(C) any violation or alleged violation by the Company
of the Securities Act, the 1934 Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or any
federal or state securities law in connection with the offering covered by such
registration statement;
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 2.8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with duly executed written information furnished expressly for use in
connection with such registration by such Holder, partner, officer, director,
underwriter or controlling person of Holder.
(ii) By Selling Holder. To the extent permitted by law,
Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who have signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter and any other party selling securities under such registration
statement or any of such other party's partners, directors or officers or any
person who controls such party within the meaning of the Securities Act or the
1934 Act, against any losses, claims, damages or liabilities (joint or several)
to which the Company or any such director, officer, controlling person,
underwriter or other such party, partner or director, officer or controlling
person of such party may become subject under the Securities Act, the 1934 Act
or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with duly executed written
information furnished by Holder expressly for use in connection with such
registration; and Holder will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter or other party, partner, officer, director or controlling person of
such other party in connection with investigating or defending any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of Holder, which consent shall not be unreasonably withheld; and
provided further, that the total amounts payable in indemnity by Holder under
this Section 4(e)(ii) in respect of any Violation or Violations shall not exceed
the net proceeds received by such Holder in the registered offering out of which
such Violation arises.
(iii) Notice. Promptly after receipt by an indemnified
party under this Section 4 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
4, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained, by the indemnifying party would be inappropriate
due to actual or potential conflict of interests between such indemnified party
and any other party represented by such counsel in such proceeding. The
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failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 4, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 4.
(iv) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of the Company and Holder are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(v) Survival. The obligations of the Company and Holder
under this Section 4 shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
(f) Termination of Registration Rights. The rights of Holder
under this Section 4 shall terminate upon the earliest to occur of (i) effective
registration of the Registrable Securities and resale in accordance with the
registration statement governing such sale, (ii) expiration of the holding
period that would be applicable to the Registrable Securities under Rule 144(k)
promulgated under the Securities Act were the Registrable Securities not held by
an affiliate of Company and (iii) resale of the Registrable Securities under
Rule 144 promulgated under the Securities Act.
5. Holder Representations. Concurrently herewith, Holder shall have
executed the Investment Representation Statement.
6. Company Representations. Company represents and warrants to Holder,
as of the Effective Date:
(a) This Warrant has been duly authorized and executed by Company
and is a valid and binding obligation of Company, enforceable in accordance with
its terms except as to the effect of (i) applicable bankruptcy and similar laws
affecting the rights of creditors generally, and (ii) rules of law governing
specific performance, injunctive relief and other equitable remedies.
(b) The Common, when issued in accordance with the terms hereof,
will be validly issued, fully paid and non-assessable, and free from all taxes,
liens and charges with respect to the issue of such shares, except with respect
to restrictions on transfer of such securities under federal and state
securities laws.
(c) Company's execution and delivery of this Warrant does not,
and the issuance of the Common upon exercise of this Warrant in accordance with
the terms hereof does not, (i) conflict with Company's Articles or Bylaws, (ii)
contravene any law, governmental rule or regulation, judgment or order
applicable to Company, or (iii) conflict with or constitute a default under any
contract to which Company is a party or by which it is bound or require the
consent or approval of, the giving of notice to, the registration or filing with
or the taking of any action in respect of or by,
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any federal, state or local government authority or agency or other person,
other than state or federal securities law filings.
During the period within which this Warrant may be exercised, Company will at
all times have authorized and reserved for the purpose of the issue upon
exercise of this Warrant a sufficient number of shares of Common to provide for
the exercise of this Warrant.
7. Miscellaneous.
(a) The terms of this Warrant shall be binding upon and shall
inure to the benefit of the successors or assigns of Company and of Holder,
subject to compliance by Holder with the provisions hereof, and of the Common
issued or issuable upon the exercise hereof, and Company's obligations relating
to the Common issuable upon exercise of this Warrant shall survive such
exercise.
(b) Any communication pursuant hereto will be sufficiently given
if sent by first class mail, postage prepaid, addressed to (a) Holder at its
last known address appearing on Company's books or (b) Company at the Principal
Office. A party may designate a different address (and Company may change the
Principal Office) by notice to the other pursuant to this subsection. A notice
shall be deemed effective upon the earlier of (i) receipt or (ii) the third day
after mailing in accordance with the terms of this subsection.
(c) Company shall not, by amendment of the Articles or otherwise,
avoid or seek to avoid the observance or performance of any of the terms hereof,
but shall at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action needed or appropriate to protect
Holder's rights against impairment.
(d) Upon receipt of evidence reasonably satisfactory to Company
of the loss, theft, destruction or mutilation of this Warrant and, in the case
of any such loss, theft or destruction, upon delivery of an indemnity agreement
reasonably satisfactory in form and amount to Company, or in the case of any
such mutilation, upon surrender and cancellation of such Warrant, Company, at
its expense, shall execute and deliver, in lieu thereof, a new Warrant of like
date and tenor.
(e) This Warrant shall be governed by the laws of the State of
California, without giving effect to conflicts of law principles.
IN WITNESS WHEREOF, Company has caused this Warrant to be signed by its
duly authorized officer.
XXXXXXXXXXXXXXX.XXX
By: /s/ Xxxx Xxxxxxxx
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Print Name: Xxxx Xxxxxxxx
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Title: Chief Financial Officer
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Address: 0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxxx, XX 00000
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ACCEPTED AND AGREED:
LEASE MANAGEMENT ASSOCIATES, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President & Treasurer
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EXHIBIT A
Notice of Exercise
(To be executed only upon exercise of Warrant)
The undersigned Holder of this Warrant (the "Holder") irrevocably
exercises this Warrant for __________ shares of the Class A Common Stock of
ReSource Xxxxxxx.xxx (the "Exercise Shares"), on the terms and conditions
specified in this Warrant, and requests that a certificate for the Exercise
Shares hereby purchased be issued in the name of and delivered to
______________________________ whose address is
______________________________________, and, if such shares shall not include
all of the shares for which this Warrant is exercisable, that a new Warrant of
like tenor and date for the balance of the shares issuable hereunder (properly
reduced to reflect cashless exercise, if applicable) be delivered to the
undersigned.
The Holder wishes to utilize cashless exercise in payment of the
exercise price for the Exercise Shares and hereby authorizes the Company to
adjust the number of shares for which this Warrant may be exercised in the
future to properly reflect such cashless exercise:
Yes, for shares No
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Dated:
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Signature of Registered Owner
Title:
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(Street Address)
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(City) (State) (Zip Code)
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
Warrant to Purchase
Shares of Class A Common
Stock of XxXxxxxxXxxxxxx.xxx
In connection with the purchase of the above-listed securities the
undersigned hereby represents to XxXxxxxxXxxxxxx.xxx ("Company"):
1. Receipt of Information. It has received all the information it
considers necessary or appropriate for deciding whether to purchase Company's
Class A Common Stock issuable upon exercise of the Warrant, dated September 8,
2000 (the "Warrant"), issued by Company to it, and it has examined any
information furnished to it by Company in connection therewith.
2. Investment Representation.
(a) The Warrant and the shares of stock to be received by it upon
exercising the Warrant (the "Securities") will be acquired for investment for
its own account, not as a nominee or agent, and not with a view to the sale or
distribution of any part thereof, and it has no present intention of selling,
granting participation in or otherwise distributing the same, but subject,
nevertheless, to any requirement of law that the disposition of its property
shall at all times be within its control. By executing this Statement, it
further represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participations with
respect to any Securities.
(b) It understands that the Securities may not be registered
under the Securities Act of 1933, as amended (the "Act"), and applicable state
securities laws, on the ground that the issuance of such Securities is exempt
pursuant to Section 4(2) of the Act and state law exemptions relating to offers
and sales not by means of a public offering, and that Company's reliance on such
exemptions is predicated on the undersigned's representations set forth herein.
It is an "Accredited Investor", as defined in Rule 501 of Regulation D
promulgated by the Securities and Exchange Commission.
(c) It will not make a disposition of any Securities until it has
(i) notified Company of the proposed disposition and has furnished Company with
a statement of the circumstances surrounding the proposed disposition, and (ii)
has furnished Company with an opinion of counsel satisfactory to Company and
Company's counsel to the effect that (a) appropriate action for complying with
the Act and any applicable state securities laws has been taken or an exemption
from the registration requirements of the Act and such laws is available, and
(b) the proposed transfer will not violate any of said laws.
(d) It is able to fend for itself in the transactions
contemplated by this Statement, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investments, and has the ability to bear the economic risks (including the risk
of a total loss) of its investment. It has had the opportunity to ask questions
of Company concerning Company's business and assets and to obtain any additional
information which it
13
considered necessary to verify the accuracy of or to amplify Company's
disclosures, and has had all questions which have been asked by it
satisfactorily answered by Company.
(e) It acknowledges that the Securities must be held indefinitely
unless subsequently registered under the Act or an exemption from such
registration is available. It is aware of the provisions of Rule 144 promulgated
under the Act which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things, the existence of a public market for the shares, the availability
of certain current public information about Company, the resale occurring not
less than one year after a party has purchased and paid for the security to be
sold, the sale being through a "broker's transaction" or in transactions
directly with a "market maker" (as provided by Rule 144(f)) and the number of
shares being sold during any three-month period not exceeding specified
limitations.
(f) It represents that at no time was it presented with or
solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and purchase of the Securities.
(g) If it is the original holder of the Warrant, it has a
preexisting business or personal relationship with Company or any of its
officers, directors or controlling persons, or by reason of its business or
financial experience or the business or financial experience of its professional
advisors who are unaffiliated with and who are not compensated by Company or any
affiliate or selling agent of Company, directly or indirectly, has, and could be
reasonably assumed to have, the capacity to protect its own interests in
connection with the purchase of the Securities.
Dated:
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[Signature]
