Exhibit 10.2
THIS WARRANT AND THE UNDERLYING COMMON STOCK HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF.
VOID AFTER 5:00 P.M., NEW YORK TIME, ON FEBRUARY 28, 2001, OR IF
NOT A BUSINESS DAY, AS DEFINED HEREIN, AT 5:00 P.M., NEW YORK
TIME, ON THE NEXT FOLLOWING BUSINESS DAY.
WARRANT TO PURCHASE
_________ Shares of Common Stock
WARRANT TO PURCHASE COMMON STOCK
OF
WARNER INSURANCE SERVICES, INC.
TRANSFER RESTRICTED -- SEE SECTION 6.02
This certifies that, for good and valuable
consideration, pursuant to that certain Restructuring Agreement
dated as of March 1, 1996 among WARNER INSURANCE SERVICES, INC.,
a Delaware corporation (the "Company") and the Releasees listed
therein (the "Restructuring Agreement"),_______________________
________________________________________ and its registered,
permitted assigns (collectively, the "Warrantholder" or
"Holder"), is entitled to purchase from the Company, subject to
the terms and conditions hereof, at any time before 5:00 P.M.,
New York time, on February 28, 2001 (or, if such day is not a
business day, at or before 5:00 P.M., New York time on the next
following business day), the number of fully paid and
non-assessable shares of Common Stock, par value $.01 per share,
of the Company (the "Common Stock") stated above at the exercise
price of $2.00 per share (the "Exercise Price"). The Exercise
Price and the number of shares purchasable hereunder are subject
to adjustment as provided in Article II hereof. Pursuant to
Section 8.4(b) of the Restructuring Agreement, for a period of
six months after the issuance of this Warrant, the Company has
the right to acquire up to one half of the Warrants at a cash
price equal to $1.00 per Warrant. This Warrant is being issued
to the Holder in accordance with Section 1.1 of the Restructuring
Agreement and is one in a series of Warrants being similarly
issued with the Restructuring Agreement. Capitalized terms used
and not otherwise defined herein shall have the meanings ascribed
to them in the Restructuring Agreement.
THIS WARRANT IS ONE OF A SERIES OF WARRANTS WITH LIKE PROVISIONS
TO PURCHASE, IN THE AGGREGATE, 1,553,125 SHARES OF COMMON STOCK.
THE COMPANY HAS THE RIGHT, PURSUANT TO SECTION 8.4(b) OF THE
RESTRUCTURING AGREEMENT TO ACQUIRE ONE HALF OF THE WARRANTS ON A
PRO RATA BASIS AT A CASH PRICE EQUAL TO $1.00 PER WARRANT FOR A
PERIOD ENDING ON AUGUST 31, 1996, 1996
ARTICLE I
Duration and Exercise of Warrant
--------------------------------
Section 1.01: Duration of Warrant.
------------ ------------------- Subject to the terms
contained herein, this Warrant may be exercised at any time
before 5:00 P.M., New York time, on February 28, 2001 (the
"Expiration Date"), (or, if such day is not a business day, at or
before 5:00 P.M., New York time, on the next following business
day). If this Warrant is not exercised at or before 5:00 P.M.,
New York time, on the Expiration Date, it shall become void, and
all rights hereunder shall thereupon cease.
Section 1.02: Exercise of Warrant.
------------ -------------------
(a) The Warrantholder may exercise this Warrant, in
whole or in part, upon surrender of this Warrant with the
Subscription Form hereon duly executed, to the Company at its
corporate office at 00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, Xxx Xxxxxx
00000, or to such office as duly designated by the Company to the
Warrantholder, together with the full Exercise Price for each
Warrant Share to be purchased by tendering in lawful money of the
United States, or by certified check or bank draft payable in
United States Dollars to the order of the Company.
(b) Upon receipt of this Warrant with the Subscription
Form duly executed and accompanied by payment of the aggregate
Exercise Price for the Warrant Shares for which this Warrant is
then being exercised, the Company will promptly cause to be
issued certificates for the total number of whole shares of
Common Stock for which this Warrant is being exercised (adjusted
to reflect the effect of the provisions contained in Article II
hereof, if any, and as provided in Section 4.04 hereof) in such
denominations as are required for delivery to the Warrantholder,
and the Company shall thereupon deliver such certificates to the
Warrantholder. If at the time this Warrant is exercised a
registration statement is not in effect to register under the
Securities Act, the Warrant Shares issuable upon exercise of this
Warrant, the Company may place such legends on certificates
representing the Warrant Shares to indicate that the Warrant
Shares have not been registered and may not be transferred except
upon compliance with the registration requirements of the
Securities Act of 1933, as amended, and applicable state
securities laws or an opinion of counsel to the Company or of
counsel reasonably satisfactory to the Company that such
registration is not required, or such other legends as may be
reasonably required in the opinion of counsel to the Company to
permit the Warrant Shares to be issued without such registration.
From and after receipt by the Company of the duly executed
Subscription Form and the aggregate exercise prices and
notwithstanding that certificates in respect of the Warrant
Shares may not have been delivered, the Warrantholder shall be
considered a shareholder of the Company in respect of the Warrant
Shares for all intents and purpose.
(c) In case the Warrantholder shall exercise this
Warrant with respect to less than all of the Warrant Shares that
may be purchased under this Warrant, the Company will execute a
new warrant in the form of this Warrant for the balance of such
Warrant Shares and deliver such new warrant to the Warrantholder.
(d) The Company covenants and agrees that it will pay
when due and payable any and all costs, expenses, charges and
stock transfer and similar taxes which may be payable in respect
of the issue of this Warrant or in respect of the issue of any
Warrant Shares. The Company shall not, however, be required to
pay any tax imposed on income or gross receipts or any tax which
may be payable in respect of any transfer involved in the
issuance or delivery of this Warrant or at the time of surrender.
ARTICLE II
Adjustment of Warrant Shares
Purchasable and of Exercise Price
---------------------------------
The Exercise Price and the number and kind of Warrant
Shares shall be subject to adjustment from time to time upon the
happening of certain events as provided in this Article II.
Section 2.01: Mechanical Adjustments.
------------ ----------------------
(a) Anti-Dilution Provisions; Adjustment of Exercise
-------------------------------------------------------
Price.
----- The Exercise Price shall be subject to adjustment from
time to time as hereinafter provided. Upon each adjustment of
the Exercise Price, the Warrantholder shall thereafter be
entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of Warrant Shares obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment
by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(b) Exercise Price Adjustment Formulas.
---------------------------------- If and
whenever after the date of this Warrant, the Company shall issue
or sell any shares of Common Stock (except as provided in
subsection 2.01(h)) for a consideration per share less than 95%
of the Market Price on the date of such issuance or sale, then
forthwith the Exercise Price shall be reduced to the prices
(calculated to the nearest tenth of a cent) determined by
multiplying the Exercise Price in effect immediately prior to the
time of such issuance or sale by a fraction, the numerator of
which shall be (i) the sum of (A) the number of shares of Common
Stock outstanding immediately prior to such issuance or sale
(assuming the conversion of all securities convertible into
shares of Common Stock) multiplied by the Market Price
immediately prior to such issuance or sale, and (B) the
consideration, if any, received and deemed received by the
Company upon such issuance or sale, divided by (ii) the total
number of shares of Common Stock outstanding and deemed
outstanding immediately after such issuance or sale, and the
denominator of which shall be the Market Price immediately prior
to such issuance or sale.
No adjustment of the Exercise Price, however, shall be made in an
amount less than $.01 per share, but any such lesser adjustment
shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with
any adjustments so carried forward shall amount to $.01 per share
or more.
(c) Constructive Issuances of Stock; Convertible
--------------------------------------------
Securities; Rights and Options; Stock Dividends.
----------------------------------------------- For the
purposes of subsection 2.01(b) above, the following provisions
(i) to (viii), inclusive, shall also be applicable:
(i) In case at any time subsequent to the date
hereof, the Company shall in any manner grant any
rights to subscribe for or to purchase, or any options
for the purchase of, shares of Common Stock or any
stock or securities convertible into or exchangeable
for shares of Common Stock (such convertible or
exchangeable stock or securities being hereinafter
called "Convertible Securities"), whether or not such
rights or options or the right to convert or exchange
any such Convertible Securities are immediately
exercisable, and the consideration per share for which
shares of Common Stock are issued or sold upon the
exercise of such Convertible Securities (determined by
dividing (A) the total amount, if any, received or
receivable by the Company as consideration for the
granting of such rights or options, plus the minimum
aggregate amount of additional consideration, if any,
payable to the Company upon the exercise of such rights
or options, plus, in the case of any such rights or
options which relate to such Convertible Securities,
the minimum aggregate amount of additional
consideration, if any, payable upon the issuance or
sale of such Convertible Securities (and, if such
convertible securities constitute obligations of the
Company, the principal amount of such obligations so
converted) and upon the conversion or exchange thereof,
by (B) the total maximum number of shares of Common
Stock issuable upon the exercise of such rights or
options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of
such rights or options) shall be less than 95% of the
Market Price determined as of the date of granting such
price or options, as the case may be, then the total
maximum number of shares of Common Stock issuable upon
the exercise of such rights or options (or upon
conversion or exchange of the total maximum amount of
such Convertible Securities issuable upon the exercise
of such rights or options) shall be deemed to be
outstanding and to have been issued for such price per
share. Except as provided in subsection 2.01(c)(iii)
below, no further adjustments of the Exercise Price
shall be made upon the actual issuance of such shares
of Common Stock or of such Convertible Securities upon
exercise of such rights or options or upon the actual
issuance of such shares of Common Stock upon conversion
or exchange of such Convertible Securities.
(ii) In case at any time the Company shall in any
manner issue or sell any Convertible Securities,
whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price
per share for which shares of Common Stock are issuable
upon such conversion or exchange (determined by
dividing (A) the total amount received or receivable by
the Company as consideration for the issuance or sale
of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any,
payable to the Company upon the conversion or exchange
thereof, by (B) the total maximum number of shares
which would be issuable upon the conversion or exchange
of all such Convertible Securities) shall be less than
95% of the Market Price determined as of the date of
such issuance or sale, then the total maximum number of
shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall (as
of the date of the issuance or sale of such Convertible
Securities) be deemed to be outstanding and to have
been issued for such price per share; except as
otherwise specified in subsection 2.01(c)(iii) below,
no further adjustments of the Exercise Price shall be
made upon the actual issuance of such shares of Common
Stock upon conversion or exchange of such Convertible
Securities.
(iii) If the purchase price provided for in
any right or option referred to in subsection
2.01(c)(i), or the additional consideration, if any,
payable upon the conversion or exchange of any
Convertible Securities referred to in subsection
2.01(c)(ii), or the rate at which any Convertible
Securities referred to in subsections 2.01(c)(i) or
(ii) are convertible into or exchangeable for shares of
Common Stock, shall change or a different purchase
price or rate shall become effective at any time or
from time to time (other than under or by reason of
provisions designed to protect against dilution) then,
upon such change becoming effective, the Exercise Price
then in effect at the time of such event shall
forthwith be increased or decreased to such Exercise
Price as would have been obtained had the rights,
options or Convertible Securities still outstanding
provided for such changed purchase price, additional
compensation or rate of commission or exchange, as the
case may be, at the time initially granted, issued or
sold. On the expiration of any such option or right or
the termination of any such right to convert or
exchange such Convertible Securities, the Exercise
Price then in effect hereunder shall forthwith be
increased to such Exercise Price as would have been
obtained at the time of such expiration or termination
had such option, right or convertible securities never
been issued. If the purchase price provided for in any
right or option referred to in subsection 2.01(c)(i),
or the additional consideration payable upon the
exchange or conversion of any Convertible Securities
referred to in subsections 2.01(c)(i) or (ii), or the
rate at which any Convertible Securities referred to in
subsections 2.01(c)(i) or (ii) are convertible into or
exchangeable for shares of Common Stock, shall decrease
at any time under or by reason of provisions with
respect thereto designed to protect against dilution,
then, in the case of the delivery of shares of Common
Stock upon the exercise of any such right or option or
upon conversion or exchange of any such right or option
or upon conversion or exchange of any such Convertible
Securities, the Exercise Price then in effect hereunder
shall forthwith be decreased to such Exercise Price as
would have been obtained had the adjustments made upon
issuance of such right or option or Convertible
Securities been made upon the basis of the issuance of
(and the total consideration computed in accordance
with subsections 2.01(c)(i) or (ii), as the case may
be, received for) the shares of Common Stock delivered
as aforesaid.
(iv) In case of the issuance of shares of Common
Stock or Convertible Securities of the Company as a
dividend or distribution upon any shares of Common
Stock of the Company, such shares of Common Stock or
Convertible Securities, as the case may be, issuable in
payment of such dividend or distribution shall be
deemed to have been issued or sold without
consideration.
(v) In case at any time any shares of Common
Stock or Convertible Securities or any rights or
options to purchase any such shares of Common Stock or
Convertible Securities shall be issued or sold for
cash, the consideration received therefor shall be
deemed to be the amount payable to the Company
therefor, without deduction therefrom of any expenses
incurred or any underwriting or selling commissions or
concessions paid by the Company in connection therewith
or any underwriting or selling discounts allowed by the
Company in connection therewith. In case any shares of
Common Stock or Convertible Securities or any rights or
options to purchase any such shares of Common Stock or
Convertible Securities shall be issued or sold for a
consideration other than cash, the amount of the
consideration other than cash payable to the Company
shall be deemed to be the fair value of such
consideration as determined by the Board of Directors
of the Company, without deduction therefrom of any
expenses incurred or any underwriting or selling
commissions or concessions paid by the Company in
connection therewith or any underwriting or selling
discounts allowed by the Company in connection
therewith. In case any shares of Common Stock or
Convertible Securities shall be issued in connection
with any merger of another corporation into the
Company, the amount of consideration therefor shall be
deemed to be the fair value, as determined by the Board
of Directors of the Company, of such portion of the
assets of such merged corporation as such Board shall
determine to be attributable to such shares of Common
Stock, Convertible Securities, rights or options, as
the case may be.
(vi) In case at any time the Company shall take a
record of the holders of its Common Stock for the
purpose of entitling them (A) to receive a dividend or
other distribution payable in shares of Common Stock or
in Convertible Securities, or (B) to subscribe for or
purchase shares of Common Stock or Convertible
Securities, then such record date shall be deemed to be
the date of the issuance or sale of the shares of
Common Stock deemed to have been issued or sold upon
the declaration of such dividend or the making of such
other distribution or the date of the granting of such
right or subscription or purchase, as the case may be.
(vii) "Market Price" shall mean, as of any
day, the closing sale price of the shares of Common
Stock on such day on the New York Stock Exchange or the
American Stock Exchange (or if the Common Stock shall
not then be listed on either such exchange, the closing
sale price on the principal (determined by the highest
volume averaged for a period of twenty consecutive
business days prior to the day as to which "Market
Price" is being determined) national securities
exchange (as defined in the Securities Exchange Act of
1934, as amended) on which the Common Stock may then be
listed) or, if there shall have been no sales on such
exchange or exchanges on such day, the averages of the
high and low sales prices of the Common Stock on such
day on the NASDAQ National Market System or, if the
Common Stock is not included in the NASDAQ National
Market System, the average of the bid and asked prices
at the end of such day or, if the Common Stock shall
not be so listed, the average of the bid and asked
prices at the end of the day in the over-the-counter
market as reported by NASDAQ or, if the Common Stock is
not included on NASDAQ, as reported by the National
Quotation Bureau, Inc. or any successor organization,
in each such case, averaged for a period of twenty
consecutive business days prior to the day as to which
"Market Price" is being determined.
(viii) The number of shares of Common Stock
outstanding at any given time shall not include shares
owned or held by or for the account of the Company, and
the disposition of any such shares shall be considered
an issuance or sale of shares of Common Stock for the
purposes of subsection 2.01(b).
(d) Effect of Certain Dividends.
--------------------------- In case at any time
the Company shall declare a dividend upon the shares of Common
Stock payable otherwise than out of earnings or earned surplus
(other than in a partial or total liquidation or dissolution of
the Company) and otherwise than in shares of Common Stock or
Convertible Securities, the Exercise Price in effect immediately
prior to the declaration of such dividend shall be reduced by an
amount equal, in the case of a dividend in cash, to the amount
thereof payable per share of Common Stock or, in the case of any
other dividend, to the fair value thereof per share of Common
Stock as determined by the Board of Directors of the Company.
For the purposes of the foregoing, a dividend other than in cash
shall be considered payable out of earnings or earned surplus
only to the extent that such earnings or earned surplus are
charged an amount equal to the fair value of such dividend as
determined by the Board of Directors of the Company. Such
reductions shall take effect as of the date on which a record is
taken for the purpose of such dividend, or if a record is not
taken, the date as of which the holders of record of shares of
Common Stock entitled to such dividends are to be determined. As
used in this subsection 2.01(d), the term "dividend" shall mean
any distribution to the holders of shares of Common Stock.
Except as provided in this subsection 2.01(d), no adjustment in
the Exercise Price and no change in the number of Warrant Shares
so purchasable shall be made pursuant to this Section 2.01 as a
result of or by reason of any such dividend.
(e) Stock Splits and Reverse Splits.
------------------------------- In case at any
time the Company shall subdivide its outstanding shares of Common
Stock into a greater number of shares, the Exercise Price in
effect immediately prior to such subdivision shall be
proportionately reduced and the number of shares purchasable
pursuant to this Warrant immediately prior to such subdivision
shall be proportionately increased, and conversely, in case at
any time the Company shall combine its outstanding shares of
Common Stock into a smaller number of shares, the Exercise Price
in effect immediately prior to such combination shall be
proportionately increased and the number of shares of Common
Stock purchasable upon the exercise of this Warrant immediately
prior to such combination shall be proportionately reduced.
Except as provided in this subsection 2.01(e), no adjustment in
the Exercise Price and no exchange in the number of Warrant
Shares so purchasable shall be made pursuant to this Section 2.01
as a result of or by reason of any such subdivision or
combination.
(f) Effect of Reorganization and Assets Sales.
----------------------------------------- If any
capital reorganization or reclassification of the capital stock
of the Company, or consolidation of the Company with or merger of
the Company into another corporation, or the sale of all or
substantially all of its assets to another corporation, shall be
effected in such a way that holders of shares of Common Stock
shall be entitled to receive stock, securities or assets with
respect to or in exchange for shares of Common Stock, then, as a
condition of such reorganization, reclassification,
consolidation, merger or sale, lawful and adequate provision
shall be made whereby each holder of Warrants shall thereafter
have the right to receive upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common
Stock of the Company immediately theretofore receivable upon the
exercise of such Warrants, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange
for a number of outstanding stock of Common Stock equal to the
number of shares of such stock immediately theretofore so
receivable upon exercise had such reorganization,
reclassification, consolidation, merger or sale not taken place,
and in any such case appropriate provision shall be made with
respect to the rights and interests of such holder to the end
that the provisions hereof (including, without limitation,
provisions for adjustment of the Exercise Price and of the number
of shares issuable upon exercise) shall thereafter be applicable,
as nearly as may be, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise of
such Warrants. The Company shall not effect any such
consolidation, merger or sale unless prior to or simultaneously
with the consummation thereof the successor corporation (if other
than the Company) resulting from such consolidation or merger, or
of the corporation purchasing such assets shall assume by written
instrument executed and mailed or delivered to each
Warrantholder, the obligation to deliver to such Warrantholder
such shares of stock, securities or assets as, in accordance with
the foregoing provisions such Warrantholder may be entitled to
receive, and containing the express assumption of such successor
corporation of the performance and observance of the provisions
of this Warrant to be performed and observed by the Company and
of all liabilities and obligation of the Company hereunder.
(g) Accountants' Certificate.
------------------------ Upon each adjustment of
the Exercise Price and upon each change in the number of Warrant
Shares, then and in each such case, the Company will promptly
obtain a certificate of a firm of independent certified public
accountants of recognized standing selected by the Company's
Board of Directors, who may be the regular auditors of the
Company, stating the adjusted Exercise Price and the new number
of Warrant Shares so issuable, or specifying the other shares of
stock, securities or assets and the amount thereof receivable as
a result of such change in rights, and setting forth in
reasonable detail the method of calculation and the facts upon
which such calculation is based. The Company will promptly mail
a copy of such accountant's certificate to the Warrantholders,
which certificate shall be conclusive evidence of the correctness
of the computation with respect to any such adjustment of the
Exercise Price and any such change in the number of such Warrant
Shares so issuable.
(h) No Adjustments Required.
----------------------- Notwithstanding anything
herein to the contrary, there shall be no adjustment in the
Exercise Price in connection with (i) the grant of any option, or
the exercise of any option granted under any employee benefit
plan or stock option plan or (ii) upon the exercise of any
Convertible Security outstanding on the date of this Warrant
including this Warrant.
Section 2.02: Notice of Adjustment.
------------ -------------------- Whenever the number
of Warrant Shares or the Exercise Price is adjusted as herein
provided, the Company shall prepare and deliver to the
Warrantholder a certificate signed by its Chairman of the Board,
President, any Vice President, Treasurer or Secretary, setting
forth the adjusted number of Warrant Shares purchasable upon the
exercise of this Warrant and the Exercise Price of such Shares
after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation
by which adjustment was made.
Section 2.03: No Adjustment for Dividends.
------------ --------------------------- Except as
provided in Section 2.01 of this Agreement, no adjustment in
respect of any cash dividends payable out of earnings or earned
surplus shall be made during the term of this Warrant or upon the
exercise of this Warrant.
Section 2.04: Form of Warrant After Adjustments.
------------ --------------------------------- The form
of this Warrant need not be changed because of any adjustments in
the Exercise Price or the number or kind of the Warrant Shares,
and any Warrant theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are
stated in this Warrant, as initially issued.
ARTICLE III
Compliance with the Securities Act
----------------------------------
The Holder acknowledges that the Warrant Shares, in its
hands, will be restricted securities which may not be sold or
offered for sale in the absence of an effective registration
statement under the Securities Act or an opinion of counsel
satisfactory to the Company that such registration is not
required. With respect to any offer, sale or other disposition
of any Warrant Shares, the Holder will give written notice to the
Company prior thereto, describing briefly the manner thereof,
together with a written opinion of such Holder's counsel, to the
effect that such offer, sale or other distribution may be
effected without registration or qualification (under federal law
and applicable state law then in effect). Promptly upon
receiving such written notice and reasonably satisfactory
opinion, if so requested, the Company, as promptly as
practicable, shall notify such Holder that such Holder may sell
or otherwise dispose of the Warrant Shares, all in accordance
with the terms of the notice delivered to the Company. If a
determination has been made pursuant to this Article III that the
opinion of counsel for the Holder is not reasonably satisfactory
to the Company, the Company shall so notify the Holder promptly
after such determination has been made. Each certificate
representing the Warrant Shares thus transferred shall bear a
legend as to the applicable restrictions on transferability in
order to ensure compliance with the Securities Act, unless in the
opinion of counsel for the Company such legend is not required,
in order to ensure compliance with the Securities Act. The
Company may issue stop transfer instructions to its transfer
agent and registrar in connection with such restrictions. The
Warrant Shares are entitled to certain rights of registration as
provided in Section 7.2 of the Restructuring Agreement.
ARTICLE IV
Other Provisions Relating
to Rights of Warrantholder
--------------------------
Section 4.01: No Rights as Shareholder; Notice to
-----------------------------------
Warrantholder.
------------- Nothing contained in this Warrant shall be
construed as conferring upon the Warrantholder or his transferees
the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of
shareholders for the election of directors of the Company or of
any other matter or any rights whatsoever as shareholders of the
Company, except to the extent specifically provided for herein;
provided, however that the Warrantholder shall be delivered all
notices and other communications sent by the Company to its
shareholders. Without limiting the foregoing, in case at any
time: (1) the Company shall declare any dividend payable in
Common Stock or any distribution (other than cash dividends) to
the holders of the Common Stock; (2) the Company shall make an
offer for subscription pro rata to the holders of its Common
--- ----
Stock of any additional shares of stock of any class or other
rights; (3) there shall be any capital reorganization, or
reclassification of the capital stock of the Company, or
consolidation or merger of the Company with, or sale of all or
substantially all of its assets to, another corporation; or (4)
there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; then, in any one or
more of such cases, the Company shall give notice to the
Warrantholder of the date on which (a) the books of the Company
shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up shall take place, as the case may be.
Such notice shall also specify the date as of which the holders
of Common Stock of records shall participate in such dividend,
distribution or subscription rights, or shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or winding
up as the case may be. Such written notice shall be given not
less than 10 days and not more than 90 days prior to the record
date on which the Company's transfer books are closed in respect
thereto and such notice may state that the record date is subject
to the effectiveness of a registration statement under the
Securities Act, or to a favorable vote of stockholders, if either
is required.
Section 4.02: Lost, Stolen, Mutilated or Destroyed Warrant.
------------ --------------------------------------------
If this Warrant is lost, stolen, mutilated or destroyed, the
Company may, on such terms as to indemnity or otherwise as it may
in its reasonable discretion impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination and tenor as, and in substitution
for, this Warrant.
Section 4.03: Reservation of Shares.
------------ ---------------------
(a) The Company covenants and agrees that at all times
it shall reserve and keep available for the exercise of this
Warrant such number of authorized shares of Common Stock or other
securities as are sufficient to permit the exercise in full of
this Warrant.
(b) The Company shall use its best efforts to maintain
or secure the listing of the Warrant Shares upon the securities
exchange or automated quotation system, if any, upon which shares
of its Common Stock are then listed.
(c) The Company covenants that all shares of Common
Stock issued on exercise of this Warrant will be validly issued,
fully paid, non-assessable and free of preemptive rights.
Section 4.04: No Fractional Shares.
------------ -------------------- Anything contained
herein to the contrary notwithstanding, the Company shall not be
required to issue any fraction of a share in connection with the
exercise of this Warrant. In any case where the Warrantholder
would, except for the provisions of this Section 4.04, be
entitled under the terms of this Warrant to receive a fraction of
a share upon exercise of this Warrant and receipt of the Exercise
Price, the Company shall not be required to issue any fraction of
a share, but rather, will adjust the aggregate Exercise Price for
such fraction of a share to which the Warrantholder would
otherwise be entitled.
ARTICLE V
Treatment of Warrantholder
--------------------------
Prior to due presentment for registration or transfer
of this Warrant, the Company may deem and treat the Warrantholder
as the absolute owner of this Warrant (notwithstanding any
notation of ownership or other writing hereon) for the purpose of
any exercise hereof and for all other purposes of the Company
shall not be affected by any notice to the contrary.
ARTICLE VI
Split-Up, Combination,
Exchange and Transfer of Warrant
--------------------------------
Section 6.01: Split-Up, Combination, Exchange and Transfer
------------ ---------------------------------------------
of Warrant.
---------- Subject to and limited by the provisions of
Section 6.02 hereof, this Warrant may be split up, combined or
exchanged for another Warrant or Warrants containing the same
terms to purchase a like aggregate number of Warrant Shares. If
the Warrantholder desires to split up, combine or exchange this
Warrant, he shall make such request in writing delivered to the
Company and shall surrender to the Company this Warrant and any
other Warrants to be so split up, combined or exchanged. Upon
any such surrender for a split-up, combination or exchange, the
Company shall execute and deliver to the person entitled thereto
a Warrant or Warrants, as the case may be, as so requested. The
Company shall not be required to effect any split-up, combination
or exchange which will result in the issuance of a Warrant
entitling the Warrantholder to purchase upon exercise a fraction
of a share of Common Stock or a fractional Warrant. The Company
may require such Warrantholder to pay a sum sufficient to cover
any tax or governmental charge that may be imposed in connection
with any split-up, combination or exchange of Warrants.
Section 6.02: Restrictions on Transfer.
------------ ------------------------ This Warrant may
be exercised and this Warrant and the Warrant Shares may not be
sold, hypothecated, assigned or transferred (a "Transfer"),
except only in accordance with and subject to the provisions of
the Securities Act and the rules and regulations promulgated
thereunder. The Warrantholder shall have the benefit of the
certain registration rights for the Warrant Shares as provided in
the Restructuring Agreement.
ARTICLE VII
Other Matters
-------------
Section 7.01: Successors and Assigns.
------------ ---------------------- All the covenants
and provisions of this Warrant shall be binding upon and inure to
the benefit of the Company and the Holder and their respective
successors and assigns.
Section 7.02: Amendments and Waivers.
------------ ---------------------- The provisions of
this Warrant, including the provisions of this sentence, may not
be amended, modified or supplemented, and waiver or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of the Holder. The
Warrantholder shall be bound by any consent authorized by this
Section whether or not certificates representing his Warrant have
been marked to indicate such consent.
Section 7.03: Counterparts.
------------ ------------ This Warrant may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which so executed shall be deemed
to be an original and all of which taken together shall
constitute one and the same agreement.
Section 7.04: Governing Law.
------------ ------------- This Warrant shall be
governed by and construed in accordance with the laws of the
State of Delaware.
Section 7.05: Severability.
------------ ------------ In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any
such provisions in every other respect and of the remaining
provisions contained herein shall not be affected or impaired
thereby.
Section 7.06: Integration/Entire Agreement.
------------ ---------------------------- This Warrant
is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement
of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein other than as to
registration rights set forth in the Restructuring Agreement as
to which the Warrant Shares shall be entitled. This Warrant
supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
Section 7.07: Notices.
------------ ------- Any notice, request or other
communication required or permitted hereunder shall be in writing
and shall be deemed to have been duly given if personally
delivered or mailed by registered or certified mail or overnight
courier, postage prepaid, at the respective addresses of the
parties as set forth herein. Any party hereto may by notice so
given change its address for future notice hereunder. Notice
shall conclusively be deemed to have been given when delivered in
the manner set forth above and shall be deemed to have been
received when delivered. Copies of all notices to the Company
shall be given to:
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
and all notices to the Warrantholder shall be given to:
Notice or demand pursuant to this Warrant to be given or made by
the Warrantholder to or on the Company shall be sufficiently
given or made if sent by first class mail or overnight courier,
postage prepaid, to the Warrantholder at his last known address
as it shall appear on the books of the Company.
Section 7.08: Headings.
------------ -------- The Article and Section headings
herein are for convenience only and are not part of this Warrant
and shall not affect the interpretation thereof.
IN WITNESS WHEREOF, this Warrant has been duly executed
by the Company under its corporate seal as of the 1st day of
March, 1996.
WARNER INSURANCE SERVICES, INC.
By:____________________________
Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
(Corporate Seal)
ATTEST:
________________________________
Secretary
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, ____________________________ hereby
sells, assigns and transfers unto ________________________ the
within Warrant Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint _____ ____________________ attorney, to transfer said
Warrant Certificate on the books of the within-named Company with
respect to the number of Warrants set forth below, with full
power of substitution in the premises:
Name(s) of No. of
Assignee(s) Address Warrants
---------- ------- --------
And if said number of Warrants shall not be all the Warrants
represented by the Warrant Certificate, a new Warrant Certificate
is to be issued in the name of said undersigned for the balance
remaining of the Warrants represented by said Warrant
Certificate.
Dated: ________________, _____.
________________________________________
Note: The above signature should
correspond exactly with the
name on the face of this
Warrant Certificate.
SUBSCRIPTION FORM
(To be executed upon exercise of Warrant)
WARNER INSURANCE SERVICES, INC.
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant Certificate
for, and to purchase thereunder, shares of Common
Stock, as provided for therein, and tenders herewith payment of
the purchase price in full in the form of cash or a certified or
official bank check in the amount of $ .
Please issue a certificate or certificates for such Common
Stock in the name of, and pay any cash for any fractional share
to:
Name_______________________________
(Please Print Name, Address and
Social Security No.)
Signature__________________________
_
Note: The above signature should
correspond exactly with the name on
the first page of this Warrant
Certificate or with the name of the
assignee appearing in the
assignment form below.
And if said number of shares shall not be all the shares
purchasable under the within Warrant Certificate, a new Warrant
Certificate is to be issued in the name of said undersigned for
the balance remaining of the shares purchasable thereunder less
any fraction of a share paid in cash.
