EXHIBIT 4.f
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
Corporation: AFP Imaging Corporation, a New York corporation
Number of Shares: 100,000
Class of Stock: common
Initial Exercise Price: $0.32 per share
Issue Date: As of September 21, 2001
Expiration Date: September 21, 2006
THIS WARRANT CERTIFIES THAT, in consideration of the payment of $1.00 and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, Keltic Financial Partners, LP or registered assignee ("Holder") is
entitled to purchase the number of fully paid and non-assessable shares of the
Class of Stock (the "Shares") of the corporation (the "Company") at the Initial
Exercise Price per Share (the "Warrant Price") all as set forth above and as
adjusted pursuant to Article 2 of this Warrant, subject to the provisions and
upon the terms and conditions set forth of this Warrant.
ARTICLE 1. EXERCISE
1.1 Method of Exercise. Holder may exercise this Warrant in whole or in
part at any time and from time to time prior to the Expiration Date by
delivering this Warrant and a duly executed Notice of Exercise in substantially
the form attached as Appendix I to the principal office of the Company located
at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx, XX 00000, or such other office as
the Company shall advise Holder, as herein provided. Unless Holder is exercising
the conversion right set forth in Section 1.2, Holder shall also deliver to the
Company a check for the aggregate Warrant Price for the Shares being purchased.
In the event the Warrant is not exercised in full, the Company, at its expense,
shall forthwith issue and deliver to or upon the order of Holder a new Warrant
of like tenor and date in the name of Holder or as Holder may request, calling
in the aggregate on the face thereof for the number of Shares equal (without
giving effect to any adjustment therein) to (i) the number of Shares called for
on the face of this Warrant minus (ii) the number of Shares for which this
Warrant shall have been exercised without giving effect to any adjustment in the
number as a result of changes in the Warrant Price.
1.2 Conversion Right. (a) In lieu of exercising this Warrant as
specified in Section 1.1, Holder may from time to time convert this Warrant (the
"Conversion Right"), in whole or in part, into a number of Shares determined by
dividing (a) the aggregate fair market value of the Shares or other securities
otherwise issuable upon in full or such part of this Warrant exercise of this
Warrant minus the aggregate Warrant Price of such Shares by (b) the fair market
value of one Share. The fair market value of the Shares shall be determined
pursuant to Section 1.5. (b). The Conversion Right may be exercised by Holder,
at any time, or from time to time, prior to the Expiration Date, on any business
day by delivering a written notice (the "Conversion Notice") in the form
attached as Appendix II to the Company at its principal office exercising the
Conversion Right and specifying (i) the total number of Shares Holder will
purchase pursuant to such conversion and (ii) a place and date not less than
three nor more than 20 business days from the date of the Conversion Notice to
the closing of such purchase.
1.3 Payment of Taxes. The Company shall pay all documentary stamp
taxes, if any, attributable to the issuance of the Warrant and the Shares;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in (a) the
issuance of any Warrant in the name other than Holder (b) the issue of any
certificates for Shares in a name other than that of Holder upon exercise of the
Warrant, or any portion thereof or (c) upon exercise of any new warrant issued
in accordance with Section 1.1, and the Company shall not be required to issue
or deliver such certificates unless and until the persons requesting the
issuance thereof have paid to the Company the amount of such tax or shall have
established to the reasonable satisfaction of the Company that such tax has been
paid.
1.4 Intentionally Omitted
1.5 Fair Market Value. If the Shares are traded regularly in a public
market, the fair market value of the Shares shall be the closing price of the
Shares (or the closing price of the Company's stock into which the Shares are
convertible) reported for the business day immediately before Holder delivers
its Notice of Exercise to the Company. If the Shares are not regularly traded in
a public market, the Board of Directors of the Company shall determine fair
market value in its reasonable good faith judgment. The foregoing
notwithstanding, if Holder advises the Board of Directors in writing that Holder
disagrees with such determination, then the Company and Holder shall promptly
agree upon a reputable investment banking firm to undertake such valuation. If
the valuation of such investment banking firm is greater than that determined by
the Board of Directors, then all fees and expenses of such investment banking
firm shall be paid by the Company. In all other circumstances, such fees and
expenses shall be paid by Holder.
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1.6 Delivery of Certificate. Promptly after Holder exercises or
converts this Warrant, the Company shall deliver to Holder certificates for the
number of fully paid and non-assessable Shares acquired in the name of Holder or
its designee(s).
1.7 Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, or surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant a
new warrant of like tenor.
1.8 Repurchase on Sale, Merger, or Consolidation of the Company.
1.8.1 "Acquisition." For the purpose of this Warrant,
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets (including intellectual property) of the
Company, or any reorganization, consolidation, or merger of the Company where
the holders of the Company's securities before the transaction beneficially own
less than 50% of the outstanding voting securities of the surviving entity after
the transaction.
1.8.2 Assumption of Warrant. Upon the closing of any Acquisition
the successor entity assumes the obligations of this Warrant, then this Warrant
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 the
Acquisition and subsequent closing. The Warrant Price shall be adjusted
accordingly. The Company shall not consummate any Acquisition unless the
acquiring or surviving entity assumes, by written instrument executed and
delivered to Holder, the obligations of this Warrant.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Etc. If the Company declares and pays a
dividend on its common stock payable in common stock or other securities or
subdivides the outstanding common stock into a greater amount of common stock,
then upon exercise or conversion of this Warrant, for each Share acquired,
Holder shall receive, without cost to Holder, the total number and kind of
securities to which Holder would have been entitled had Holder owned the Shares
of record as of the date the dividend or subdivision occurred.
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2.2 Reclassification, Exchange or Substitution. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant. the number and kind of securities and property
that Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event. The Company or its successor shall promptly issue to Holder a new
Warrant for such new securities or other property. The new Warrant shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2 including, without limitation,
adjustments to the Warrant Price and to the number of securities or property
issuable upon exercise of the new Warrant. The provisions of this Section 2.2
shall similarly apply to successive reclassifications, exchanges, substitutions,
or other events.
2.3 Adjustments for Combinations, Etc. If the outstanding Shares are
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the number of Shares subject to this Warrant shall be proportionately
decreased and the Warrant Price shall be proportionately increased.
2.4 Treasury Shares. For the purposes of this Article 2, the number of
Shares at any time outstanding shall not include the Shares held in the treasury
of the Company.
2.5 No Impairment, The Company shall not, by amendment of its
Certificate of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue, or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out all the provisions of
this Article 2 and in taking all such action as may be necessary or appropriate
to protect Holder's rights under this Article against impairment. If the Company
takes any action affecting the Shares or its common stock other than as
described above that adversely affects Holder's rights under this Warrant,
including the issuance of additional shares of Common Stock, the Warrant Price
shall be adjusted downward and the number of Shares issuable upon exercise of
this Warrant shall be adjusted upward in such a manner that the aggregate
Warrant Price of this Warrant is unchanged but the number of Shares is increased
so that if this Warrant was exercised in full Holder would receive shares of
Common Stock equal in percentage to the percentage that the Shares bear to the
outstanding shares of Common Stock on the original issuance date of this
Warrant.
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2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant
Price, the Company at its expense shall promptly compute such adjustment, and
furnish Holder with a certificate of its Chief Financial Officer setting forth
such adjustment and the reasonable details upon which such adjustment is based.
The Company shall, as soon as practicable after such adjustment, furnish Holder
a certificate setting forth the Warrant Price.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY
3.1 Representations and Warranties. The Company hereby represents and
warrants to Holder as follows:
(1) Reservation of Shares. The Company shall, at all times, reserve and
keep available out of its authorized and unissued Common Stock or out of shares
of its treasury stock, solely for the purpose of issue upon exercise of the
purchase rights evidenced by this Warrant, the number of Shares for which this
Warrant can be exercised.
(2) All Shares which may be issued upon the exercise of the purchase
right represented by this Warrant, shall, upon issuance and payment therefor
pursuant to the terms hereof, be duly authorized, validly issued, fully paid and
non-assessable, and free of any liens and encumbrances except for restrictions
on transfer provided for herein or under applicable federal and state securities
laws.
(3) No Valuation or Impairment. The Company shall not, by amendment of
its Certificate of Incorporation, including without limitation, amendment of the
par value of its Common Stock, or through reorganization, consolidation, merger,
dissolution, issuance of capital stock or sale of treasury stock (otherwise than
upon exercise of this Warrant) or sale of assets, by effecting any subdivision
of or stock split or stock dividend with respect to its Common Stock, or by any
other voluntary act or deed, avoid or seek to avoid the material performance or
observance of any of the stipulations or conditions in this Warrant to be
observed or performed by the Company. The Company shall, at all times, act in
good faith to assist in the carrying out of all of the provisions of this
Warrant and in taking all other action that may be necessary in order to protect
the rights of Holder as set forth in this Warrant.
(4) Maintenance of Office. The Company shall maintain an office where
presentation of this Warrant may be made. The Company shall give notice, in
writing, to Holder of each change in the location of such office.
3.2 Notice Of Certain Events. If the Company proposes at any time (a)
to declare any dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro
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rata to the holders of any class or series of its stock any additional shares of
stock of other rights; (c) to effect any reclassification or recapitalization of
common stock; (d) to merge or consolidate with or into any other corporation, or
sell, lease, license, or convey all or substantially all of its assets, or to
liquidate, dissolve or wind up; or (e) offer holders of registration rights the
opportunity to participate in an underwritten public offering of the Company's
securities for cash, then, in connection with each such event, the Company shall
give Holder (1) at least 20 days prior written notice of the date on which a
record will be taken for such dividend, distribution, or subscription rights
(and specifying the date on which the holders of common stock will be entitled
thereto) or for determining rights to vote, if any, the matters referred to in
(c) and (d) above; (2) in the case of the matters referred to in (c) and (d)
above at least 20 days prior written notice of the date when the same will take
place (and specifying the date on which the holders of common stock will be
entitled to exchange their common stock for securities or other property
deliverable upon the occurrence of such event); and (3) in the case of the
matter referred to in (e) above, the same notice as is given to the holders of
such registration rights.
3.3 Information Rights. So long as Holder holds this Warrant and/or any
of the Shares, the Company shall deliver to Holder (a) promptly after mailing,
copies of all communiques to the shareholders of the Company, (b) within ninety
(90) days after the end of each fiscal year of the Company the annual audited
financial statements of the Company certified by independent public accountants
of recognized standing and (c) within forty-five (45) days after the end of each
of the first three quarters of each Fiscal year, the Company's quarterly,
unaudited financial statements.
3.4 Registration Under Securities Act of 1933, as amended. The Company
agrees that the Shares shall be subject to the registration rights set forth on
Exhibit A.
ARTICLE 4. MISCELLANEOUS.
4.1 Term: Notice of Expiration. This Warrant is exercisable, in whole
or in part, at any time and from time to time on or before the Expiration Date
set forth above. The Company shall give Holder written notice of Holder's right
to exercise this Warrant in the form attached as Appendix III not more than 90
days and not less than 30 days before the Expiration Date. If the notice is not
so given, the Expiration Date shall automatically be extended until 30 days
after the date the Company delivers the notice to Holder.
4.2 Legend. This Warrant and the Shares shall be imprinted with a
legend in substantially the following form:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.3 Compliance with Securities Laws on Transfer. This Warrant and the
Shares issuable upon exercise of this Warrant may not be transferred or assigned
in whole or in part without compliance with applicable federal and state
securities laws by the transferor and the transferee (including, without
limitation, the delivery of investment representation letters and legal opinions
reasonably satisfactory to the Company). The Company shall not require Holder to
provide an opinion of counsel if the transfer is to an affiliate of Holder or if
there is no material question as to the availability of current information as
referenced in Rule 144(c), Holder represents that it has complied with Rule
144(d) and (e) in reasonable detail, the selling broker represents that it has
complied with Rule 144(f), and the Company is provided with a copy of Holder's
notice of proposed sale.
4.4 Transfer Procedure. Subject to the provisions of Section 4.3,
Holder may transfer all or part of this Warrant by giving the Company notice of
the Warrant being transferred setting forth the name, address and taxpayer
identification number of the transferee and surrendering this Warrant to the
Company for reissuance to the transferee(s). Unless the Company is filing
financial information with the SEC pursuant to the Securities Exchange Act of
1934, the Company shall have the right to refuse to transfer this Warrant to any
person who directly competes with the Company.
4.5 Notices. All notices and other communications from the Company to
Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company or Holder, as
the case may be, in writing by the Company or such Holder from time to time.
4.6 Waiver. This Warrant and any term hereof may not be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against which enforcement of such change, waiver, discharge or
termination is sought.
4.7 Attorneys' Fees. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
4.8 Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
principles of conflicts of law.
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AFP Imaging Corporation
By: ___________________________________
Xxxxx Xxxxxx, Vice President
By: ___________________________________
Xxxxx Xxxxxx, Secretary
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APPENDIX I
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase _____ shares of the Common
Stock of _________ issuable pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such shares in full.
2. The undersigned hereby elects to convert the attached Warrant into
_____ number of Shares in the manner specified in the Warrant. This conversion
is exercised with respect to ____ Shares covered by the Warrant
[Strike paragraph that does not apply.]
3. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
4. The undersigned represents it is acquiring the shares solely for its
own account and not as a nominee for any other party and not with a view toward
the resale or distribution thereof except in compliance with applicable
securities laws.
-----------------------------------
-----------------------------------
(Signature)
-----------------------------------
(Date)
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APPENDIX II
CONVERSION NOTICE
See Appendix I
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APPENDIX III
NOTICE THAT WARRANT IS ABOUT TO EXPIRE
----------------------------
__________________________________
__________________________________
__________________________________
__________________________________
Gentleperson:
This is to advise you that the Warrant issued to you described below
will expire on _________, 20__.
Issuer:
Issue Date: ______ __, 20__
Class of Security Issuable:
Exercise Prize Per Share: $____________
Number of Shares Issuable:
Procedure for Exercise:
Please contact [name of contact person at (phone number)) with any
questions you may have concerning exercise of the Warrant. This is your
only notice of pending expiration.
[COMPANY]
By: ____________________________________
Its: ____________________________________
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EXHIBIT C
Registration Rights
Holder shall have the following Registration Rights relating to shares
held by Holder pursuant to exercise of this Warrant ("Holder Shares").
(1) Registration. If the Company at any time proposes for any reason to
register authorized but unissued shares of Common Stock held by the Company in
its treasury ("Primary Shares") or shares issued to ______________ ("Registrable
Shares") under the Securities Act (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms thereto), it shall
promptly give written notice to holders of the Company's Common Stock that are
contractually entitled to request registration of shares of Common Stock, of its
intention to so register the Primary Shares or Registrable Shares and, upon the
written request, given within 20 days after delivery of any such notice by the
Company, of Holder to include in such registration Holder Shares (which request
shall specify the number of Holder Shares proposed to be included in such
registration), the Company shall use its best efforts to cause all such Holder
Shares to be included in such registration on the same terms and conditions as
the securities otherwise being sold in such registration; provided, however,
that if the managing underwriter advises the Company that the inclusion of all
of the Primary Shares, Holder Shares and other unregistered shares ("Other
Shares") proposed to be included in such registration would interfere with the
successful marketing (including pricing) of Primary Shares or Registrable Shares
proposed to be registered by the Company, then the number of Primary Shares,
Registrable Shares, Holder Shares and Other Shares proposed to be included in
such registration shall be included in the following order:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares, and
(iii) third, the Holder Shares and Other Shares.
(2) Expenses. With respect to each registration effected, all fees,
costs and expenses of and incidental to such registration and the public
offering in connection therewith shall be borne by the Company; provided,
however, that the Holder participating in any such registration shall bear the
underwriting discounts and selling commissions attributable to the shares of
Holder's Registrable Stock sold in such public offering.
(3) Indemnification and Contribution.
(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless Holder and any underwriter (as defined in
the Securities Act of 1993, as amended (the "Securities Act") acting
for Holder, and any person who controls such Holder or such underwriter
within the meaning of the Securities Act, from and against, and will
reimburse
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Holder and each such underwriter and controlling person with
respect to, any and all claims, actions, demands, losses, damages,
liabilities, costs and expenses to which Holder or any such underwriter
or controlling person may become subject under the Securities Act or
otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, any prospectus contained
therein or any amendment or supplement thereto in which shares of the
Holder are included, or arise out of or are based upon 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
arise out of any violation by the Company of any rule or regulation
under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with such
registration; provided, however, that the Company will not be liable in
any such case to the extent that any such claim, action, demand, loss,
damage, liability, cost or expense is caused by an untrue statement or
alleged untrue statement or omission or alleged omission so made in
reliance upon and in strict conformity with information furnished by
Holder, such underwriter or such controlling person in writing
specifically for use in the preparation thereof.
(b) If shares of Holder are included in a registration, Holder will
indemnify and hold harmless the Company from and against, and will
reimburse the Company with respect to, any and all losses, damages,
liabilities, costs or expenses to which the Company may become subject
under the Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged
untrue statement of any material fact contained therein or any
amendment or supplement thereto, or are caused by the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was so made in
reliance upon and in strict conformity with written information
furnished by Holder specifically for use in the preparation thereof.
(c) Promptly after receipt by a party to be indemnified pursuant to the
provisions of paragraph (a) or (b) (an indemnified party) of notice of
the commencement of any action involving the subject matter of the
foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the
provisions of paragraph (a) or (b), notify the indemnifying party of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to an indemnified party otherwise than under the provisions of
this paragraph and shall not relieve the indemnifying party from
liability under the provisions of this paragraph unless such
indemnifying party is prejudiced by such omission. In case such action
is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party,
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and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party pursuant to the
provisions of such paragraphs (a) and (b) for any legal or other
expense subsequently incurred by indemnified party in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall be liable to an indemnified party for any
settlement of any action or claim without the consent of the
indemnifying party; no indemnifying party may unreasonably withhold its
consent to any such settlement. No indemnifying party will consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation.
(4) Lock-Up Agreement. In consideration of the assumption by the
Company of its obligations hereunder, Holder agrees in connection with
any registration of the Company's securities that, upon the request of
the Company or the underwriter or any underwritten offering of the
Company's securities, not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any Registrable
Stock (other than those included in the registration) without the prior
written consent of the Company or such underwriters, as the case may
be, for such period of time (not to exceed one hundred eighty (180)
days) from the effective date of such registration as the Company or
the underwriters may reasonable specify.
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