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EXHIBIT 4.2
FORM OF
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of __________, 1999, by and between THE
PLASTIC SURGERY COMPANY, a Georgia corporation (the "Company"), and ____________
_________________ (the "Underwriter").
The Company proposes to issue to the Underwriter warrants as
hereinafter described (the "Underwriter Warrants") to purchase up to an
aggregate of _______ shares, subject to adjustment as provided in Section 8
hereof (such shares, as adjusted, being hereinafter referred to as the "Shares")
of the Company's common stock, no par value per share (the "Common Shares"),
each Underwriter Warrant entitling the holder thereof to purchase one Common
Share, subject to adjustment as hereinbefore provided. All capitalized terms
used herein and not otherwise defined herein shall have the same meanings as in
that certain underwriting agreement, of even date herewith, by and between the
Company and the Underwriter (the "Underwriting Agreement"). In this Agreement,
the singular includes the plural and the plural includes the singular.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration, the
parties hereto agree as follows:
1. Issuance of Warrants; Form of Warrant. The Company will issue,
sell and deliver the Underwriter Warrants to the Underwriter or its bona fide
officers for an aggregate price of $250.00. The form of the Underwriter Warrants
and the form of election to purchase Shares to be attached thereto shall be
substantially as set forth on Exhibit A attached hereto. The Underwriter
Warrants shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future Chief Executive Officer, President or any
Vice President of the Company, under its corporate seal, affixed or in
facsimile, and attested by the manual or facsimile signature of the present or
any future Secretary or Assistant Secretary of the Company.
2. Registration. The Underwriter Warrants shall be numbered and
shall be registered in an Underwriter Warrant register (the "Underwriter Warrant
Register"). The Company shall be entitled to treat the registered holder of any
Underwriter Warrant on the Underwriter Warrant Register (the "Holder") as the
owner in fact thereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such Underwriter Warrant on the part
of any other person, and shall not be liable for any registration of transfer of
Underwriter Warrants which are registered or are to be registered in the name of
a fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration of transfer, or with such knowledge of such facts that its
participation therein amounts to bad faith. The Underwriter Warrants shall be
registered initially in the name of "____________________________" in such
denominations as the Underwriter may request in writing to the Company;
provided, however, that the Underwriter may designate that all or a portion of
the Underwriter Warrants be issued in varying amounts directly to its bona fide
officers, and not to the Underwriter. Such designation will only be made by the
Underwriter if it determines that such issuances would not violate the
interpretation of the Board of Governors of the National Association of
Securities Dealers, Inc. (the "NASD") relating to the review of corporate
financing arrangements.
3. Transfer of Warrants. The Underwriter Warrants will not be
sold, transferred,
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assigned or hypothecated, in part or in whole the (other than by
will or pursuant to the laws of descent and distribution), except to officers of
the Underwriter and thereafter only upon delivery thereof duly endorsed by the
Holder or by his duly authorized attorney or representative, or accompanied by
proper evidence of succession, assignment or authority to transfer. In all cases
of transfer by an attorney, the original power of attorney, duly approved, or an
official copy thereof, duly certified, shall be deposited with the Company. In
case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced, and may be required to be deposited with the Company in its
discretion. Upon any registration of transfer, the Company shall deliver a new
Underwriter Warrant or Underwriter Warrants to the persons entitled thereto. The
Underwriter Warrants may be exchanged at the option of the Holder thereof for
another Underwriter Warrant, or other Underwriter Warrants, of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of Common Shares upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Underwriter Warrants to be transferred on its books to any
person if such transfer would violate the Securities Act of 1933, as amended
(the "Act").
4. Term of Warrants, Exercise of Warrants. Each Underwriter
Warrant entitles the registered owner thereof to purchase one Share at a
purchase price of $____ per Share [120% OF THE OFFERING PRICE TO THE PUBLIC]
(the "Exercise Price") at any time from the second anniversary of the effective
date of the Registration Statement until 5:00 p.m., New York City time, on
___________ ___, 2004) (the "Warrant Expiration Date"). Notwithstanding the
foregoing, if at 5:00 p.m. New York time on the Warrant Expiration Date, any
Holder or Holders of the Underwriter Warrants have not exercised their
Underwriter Warrants and the "current market price" (as such term is defined in
Section 8(d) below) for the Common Shares on the Warrant Expiration Date is
greater than the Exercise Price, then each such unexercised Underwriter Warrant
shall automatically be converted into a number of Common Shares equal to: the
number of Common Shares then issuable upon exercise of an Underwriter Warrant,
multiplied by a fraction, the numerator of which is the difference between (A)
the "current market price" for Common Shares on the Warrant Expiration Date and
(B) the Exercise Price, and the denominator of which is the "current market
price" on the Warrant Expiration Date. Prior to the Warrant Expiration Date, the
Company will not take any action which would terminate the Underwriter Warrants.
The Exercise Price and the Shares issuable upon exercise of the Underwriter
Warrants are subject to adjustment upon the occurrence of certain events
pursuant to the provisions of Section 8 of this Agreement. Subject to the
provisions of this Agreement, each Holder shall have the right, which may be
exercised as set forth in such Underwriter Warrants, to purchase from the
Company (and the Company shall issue and sell to such Holder) the number of
fully paid and nonassessable Common Shares specified in such Underwriter
Warrants, upon surrender to the Company, or its duly authorized agent, of such
Underwriter Warrants with the form of election to purchase attached thereto duly
completed and signed, with signatures guaranteed by a member firm of a national
securities exchange, a commercial bank or trust company located in the United
States or a member of the NASD and upon payment to the Company of the Exercise
Price, as adjusted in accordance with the provisions of Section 8 of this
Agreement, for the number of Shares in respect of which such Underwriter
Warrants are then exercised.
Payment of such Exercise Price may be made at the Holder's election (i)
by certified or official bank check, (ii) in the event that the Holder holds
Common Shares of the Company and such Common Shares are listed on a domestic
stock exchange or quoted in the domestic over-the-counter market, by
transferring to the Company an amount of such Common Shares which, when
multiplied by, the current market price of the Common Shares at the time of
exercise of such Underwriter Warrant, equals the aggregate amount of the
consideration payable upon such exercise, (iii) by surrendering to
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the Company the right to receive a portion of the number of Shares with respect
to which such Underwriter Warrant is then being exercised equal to the product
obtained by multiplying such number of Shares by a fraction, the numerator of
which is the Exercise Price in effect on the date of such exercise and the
denominator of which is the current market price of the Common Shares in effect
on such date, or (iv) by a combination of the foregoing methods of payment
selected by the Holder. For purposes of this paragraph, the current market price
of the Common Shares shall be calculated either (a) on the date which the form
of election to purchase attached hereto is deemed to have been sent to the
Company pursuant to Section 12 hereof ("Notice Date") or (b) as the average of
the last reported sale price for each of the five trading days preceding the
Notice Date, whichever of (a) or (b) is greater. In any case where the
consideration payable upon such exercise is being paid in whole or in part
pursuant to the provisions of clause (ii) or clause (iii) of the preceding
sentence, such exercise shall be accompanied by written notice from the Holder
specifying the manner of payment thereof, and in the case of clause (ii),
stating the amount of Common Shares of the Company to be applied to such
payment, and in the case of clause (iii), containing a calculation showing the
number of Shares with respect to which rights are being surrendered thereunder
and the net number of Shares to be issued after giving effect to such surrender.
No adjustment shall be made for any dividends on any Shares issuable upon
exercise of an Underwriter Warrant. Upon each surrender of Underwriter Warrants
and payment of the Exercise Price as aforesaid, the Company shall issue and
cause to be delivered with all reasonable dispatch to or upon the written order
of the Holder of such Underwriter Warrants and in such name or names as such
Holder may designate a certificate or certificates for the number of full Shares
so purchased upon the exercise of such Underwriter Warrants, together with cash,
as provided in Section 9 of this Agreement, in respect of any fractional Shares
otherwise issuable upon such surrender. Such certificate or certificates shall
be deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Shares as of the date
of the surrender of Underwriter Warrants and payment of the Exercise Price as
aforesaid; provided, however, that if, at the date of surrender of such
Underwriter Warrants and payment of such Exercise Price, the transfer books for
the Common Shares or other class of securities issuable upon the exercise of
such Underwriter Warrants shall be closed, the certificates for the Shares shall
be issuable as of the date on which such books shall next be opened (whether
before, on or after the Warrant Expiration Date) and until such date the Company
shall be under no duty to deliver any certificate for such Shares; provided,
further, however, that the transfer books of record, unless otherwise required
by law, shall not be closed at any one time for a period longer than twenty (20)
days. The rights of purchase represented by the Underwriter Warrants shall be
exercisable, at the election of the Holders thereof, either in full or from time
to time in part and, in the event that any Underwriter Warrant is exercised in
respect of less than all of the Shares issuable upon such exercise at any time
prior to the Warrant Expiration Date, a new Underwriter Warrant or Underwriter
Warrants will be issued for the remaining number of Shares specified in the
Underwriter Warrant so surrendered.
5. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the issuance of Shares upon the exercise of
Underwriter Warrants; 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 the issue or delivery of any certificates for Shares in a name other than
that of the Holder of Underwriter Warrants in respect of which such Shares are
issued.
6. Mutilated or Missing Warrants. In case any of the Underwriter
Warrants shall be mutilated, lost, stolen or destroyed, the Company may, in its
discretion, issue and deliver in exchange and substitution for and upon
cancellation of the mutilated Underwriter Warrant, or in lieu of and
substitution for the Underwriter Warrant lost, stolen or destroyed, a new
Underwriter Warrant of like tenor and representing an equivalent right or
interest, but only upon receipt of evidence reasonably
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satisfactory to the Company of such mutilation, loss, theft or destruction of
such Underwriter Warrant and indemnity, unless mutilated, also reasonably
satisfactory to the Company. An applicant for such substitute Underwriter
Warrants shall also comply with such other reasonable regulations and pay such
other reasonable charges as the Company may prescribe.
7. Reservation of Shares, etc. There have been reserved and the
Company shall at all times keep reserved, out of the authorized and unissued
Common Shares, a number of Common Shares sufficient to provide for the exercise
of the rights of purchase represented by the outstanding Underwriter Warrants.
American Stock Transfer and Trust Company, transfer agent for the Common Shares
(the "Transfer Agent"), and every subsequent transfer agent, if any, for the
Company's securities issuable upon the exercise of the Underwriter Warrants will
be irrevocably authorized and directed at all times until the Warrant Expiration
Date to reserve such number of authorized and unissued Common Shares as shall be
required for such purpose. The Company will keep a copy of this Agreement on
file with the Transfer Agent and with every subsequent transfer agent of the
Company's securities issuable upon the exercise of the Underwriter Warrants. The
Company will supply the Transfer Agent or any subsequent transfer agent with
duly executed certificates for such purpose and will itself provide or otherwise
make available any cash which may be distributable as provided in Section 9 of
this Agreement. All Underwriter Warrants surrendered in the exercise of the
rights thereby evidenced shall be canceled, and such canceled Underwriter
Warrants shall constitute sufficient evidence of the number of Shares that have
been issued upon the exercise of such Underwriter Warrants. No Common Shares
shall be subject to reservation in respect of unexercised Underwriter Warrants
subsequent to the Warrant Expiration Date.
8. Adjustments of Exercise Price and Number of Shares. The
Exercise Price and the number and kind of securities issuable upon exercise of
each Underwriter Warrant shall be subject to adjustment from time to time upon
the happening of certain events, as follows:
(a) In case the Company shall (i) declare a dividend on
its Common Shares in Common Shares or make a distribution of Common
Shares, (ii) subdivide its outstanding Common Shares, (iii) combine its
outstanding Common Shares into a smaller number of Common Shares or
(iv) issue by reclassification of the Common Shares other securities of
the Company (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), the number of Shares purchasable upon exercise of each
Underwriter Warrant immediately prior thereto shall be adjusted so that
the Holder of each Underwriter Warrant shall be entitled to receive the
kind and number of Shares or other securities of the Company which he
would have owned or have been entitled to receive after the happening
of any of the events described above, had such Underwriter Warrant been
exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this
paragraph (a) shall become effective immediately after the effective
date of such event retroactive to immediately after the record date, if
any, for such event.
(b) In case the Company shall issue rights, options or
warrants to all holders of its Common Shares, without any charge to
such holders, entitling them (for a period expiring within 45 days
after the record date mentioned below in this paragraph (b)) to
subscribe for or to purchase Common Shares at a price per share that is
lower at the record date mentioned below than the then current market
price per Common Share (as defined in paragraph (d) below), the number
of Shares thereafter purchasable upon exercise of each Underwriter
Warrant shall be determined by multiplying the number of Shares
theretofore purchasable upon
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exercise of each Underwriter Warrant by a fraction, of which the
numerator shall be the number of Common Shares outstanding on such
record date plus the number of additional Common Shares offered for
subscription or purchase, and of which the denominator shall be the
number of Common Shares outstanding on such record date plus the number
of shares which the aggregate offering price of the total number of
Common Shares so offered would purchase at the then current market
price per Common Share. Such adjustment shall be made whenever such
rights, options or warrants are issued, and shall become effective
retroactively to immediately after the record date for the
determination of shareholders entitled to receive such rights, options
or warrants.
(c) In case the Company shall distribute to all holders
of its Common Shares stock other than Common Shares or evidences of its
indebtedness or assets (excluding cash dividends payable out of
consolidated earnings or retained earnings and dividends or
distributions referred to in paragraph (a) above) or rights, options or
warrants or convertible or exchangeable securities containing the right
to subscribe for or purchase Common Shares (excluding those referred to
in paragraph (b) above), then in each case the number of Shares
thereafter issuable upon the exercise of each Underwriter Warrant shall
be determined by multiplying the number of Shares theretofore issuable
upon the exercise of each Underwriter Warrant, by a fraction, of which
the numerator shall be the current market price per Common Share (as
defined in paragraph (d) below) on the record date mentioned below in
this paragraph (c), and of which the denominator shall be the current
market price per Common Share on such record date, less the then fair
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the shares of
capital stock other than Common Shares or assets or evidences of
indebtedness so distributed or of such subscription rights, options or
warrants, or of such convertible or exchangeable securities applicable
to one Common Share. Such adjustment shall be made whenever any such
distribution is made, and shall become effective on the date of
distribution retroactive to immediately after the record date for the
determination of shareholders entitled to receive such distribution.
(d) For the purpose of any computation under paragraphs
(b) and (c) of this Section 8, the current market price per Common
Share at any date shall be the greater of (i) the average of the daily
closing prices for five (5) consecutive trading days commencing ten
(10) trading days before the date of such computation and (ii) the last
sale price on the date before the date of such computation. The closing
price for each day shall be the last reported sale price regular way
or, in case no such reported sale takes place on such day, the average
of the closing bid and asked prices regular way for such day, in either
case on the principal national securities exchange on which the shares
are listed or admitted to trading, or if they are not listed or
admitted to trading on any national securities exchange, but are traded
in the over-the-counter market, the closing sale price of the Common
Shares or, in case no sale is publicly reported, the average of the
representative closing bid and asked quotations for the Common Shares
on the Nasdaq SmallCap Market or any comparable system, or if the
Common Shares are not listed on the Nasdaq SmallCap Market or a
comparable system, the closing sale price of the Common Shares or, in
case no sale is publicly reported, the average of the closing bid and
asked prices as furnished by two members of the NASD selected from time
to time by the Company for that purpose.
(e) No adjustment in the number of Shares purchasable
hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of
Shares purchasable upon the exercise of each Underwriter Warrant;
provided,
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however, that any adjustments which by reason of this paragraph (e) are
not required to be made shall be carried forward and taken into account
in any subsequent adjustment, but not later than three years after the
happening of the specified event or events. All calculations shall be
made to the nearest one thousandth of a share. Anything in this Section
8 to the contrary notwithstanding, the Company shall be entitled, but
shall not be required, to make such changes in the number of Shares
purchasable upon the exercise of each Underwriter Warrant, in addition
to those required by this Section 8, as it in its discretion shall
determine to be advisable in order that any dividend or distribution in
shares of Common Shares, subdivision, reclassification or combination
of Common Shares, issuance of rights, warrants or options to purchase
Common Shares, or distribution of shares of capital stock other than
Common Shares, evidences of indebtedness or assets (other than
distributions of cash out of consolidated earnings or retained
earnings) or convertible or exchangeable securities hereafter made by
the Company to the holders of its Common Shares, shall not result in
any tax to the holders of its Common Shares or securities convertible
into Common Shares.
(f) Whenever the number of Shares purchasable upon the
exercise of each Underwriter Warrant is adjusted, as herein provided,
the Exercise Price shall be adjusted by multiplying the Exercise Price
in effect immediately prior to such adjustment by a fraction, of which
the numerator shall be the number of Shares purchasable upon the
exercise of each Underwriter Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Shares
so purchasable immediately thereafter.
(g) For the purpose of this Section 8, the term "Common
Shares" shall mean (i) the class of stock designated as the Common
Shares of the Company at the date of this Agreement or (ii) any other
class of stock resulting from successive changes or reclassifications
of such shares consisting solely of changes in par value, or from no
par value to par value, or from par value to no par value. In the event
that at any time, as a result of an adjustment made pursuant to
paragraph (a) above, the Holders shall become entitled to purchase any
shares of capital stock of the Company other than Common Shares,
thereafter the number of such other shares so purchasable upon exercise
of each Underwriter Warrant and the Exercise Price of such shares shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Shares contained in paragraphs (a) through (f), inclusive, and
paragraphs (h) through (m), inclusive, of this Section 8, and the
provisions of Sections 4, 5, 7 and 10, with respect to the Shares,
shall apply on like terms to any such other shares.
(h) Upon the expiration of any rights, options, warrants
or conversion rights or exchange privileges, if any thereof shall not
have been exercised, the Exercise Price and the number of Common Shares
purchasable upon the exercise of each Underwriter Warrant shall, upon
such expiration, be readjusted and shall thereafter be such as it would
have been had it originally been adjusted (or had the original
adjustment not been required, as the case may be) as if (i) the only
Common Shares so issued were the Common Shares, if any, actually issued
or sold upon the exercise of such rights, options, warrants or
conversion rights or exchange privileges and (ii) such Common Shares,
if any, were issued or sold for the consideration actually received by
the Company upon such exercise plus the aggregate consideration, if
any, actually received by the Company for the issuance, sale or grant
of all of such rights, options, warrants or conversion rights or
exchange privileges whether or not exercised; provided, however, that
no such readjustment shall have the effect of increasing the Exercise
Price by an amount in excess of the amount of the adjustment initially
made in respect to the issuance, sale
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or grant of such rights, options, warrants or conversion rights or
exchange privileges.
(i) The Company may, at its option, at any time during
the term of the Underwriter Warrants, reduce the then current Exercise
Price to any amount deemed appropriate by the Board of Directors of the
Company.
(j) Whenever the number of Shares issuable upon the
exercise of each Underwriter Warrant or the Exercise Price of such
Shares is adjusted, as herein provided, the Company shall promptly mail
by first class mail postage prepaid to each Holder notice of such
adjustment or adjustments. The Company shall retain a firm of
independent public accountants (who may be the regular accountants
employed by the Company) to make any computation required by this
Section 8 and shall cause such accountants to prepare a certificate
setting forth the number of Shares issuable upon the exercise of each
Underwriter 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 such adjustment
was made. Such certificate shall be conclusive on the correctness of
such adjustment and each Holder shall have the right to inspect such
certificate during reasonable business hours.
(k) Except as provided in this Section 8, no adjustment
in respect of any dividends shall be made during the term of the
Underwriter Warrants or upon the exercise of the Underwriter Warrants.
(l) In case of any consolidation of the Company with or
merger of, the Company with or into another corporation or in case of
any sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, the Company or
such successor or purchasing corporation (or an affiliate of such
successor or purchasing corporation), as the case may be, agrees that
each Holder shall have the right thereafter upon payment of the
Exercise Price in effect immediately prior to such action to purchase
upon exercise of each Underwriter Warrant the kind and amount of shares
and other securities and property (including cash) which he would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had such Underwriter Warrant
been exercised immediately prior to such action. The provisions of this
paragraph (1) shall similarly apply to successive consolidations,
mergers, sales or conveyances.
(m) Notwithstanding any adjustment in the Exercise Price
or the number or kind of shares purchasable upon the exercise of the
Underwriter Warrants pursuant to this Agreement, certificates for
Underwriter Warrants issued prior or subsequent to such adjustment may
continue to express the same price and number and kind of Shares as are
initially issuable pursuant to this Agreement.
9. Fractional Interests. The Company shall not be required to
issue fractions of Shares on the exercise of Underwriter Warrants. If more than
one Underwriter Warrant shall be presented for exercise in full at the same time
by the same Holder, the number of Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the number of Shares issuable
on exercise of the Underwriter Warrants so presented. If any fraction of a Share
would, except for the provisions of this Section 9, be issuable on the exercise
of any Underwriter Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
current market price per Common Share (determined as provided in the second
sentence of Section 8(d) of this Agreement) on the date of exercise.
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10. Registration Rights.
(a) Demand Registration Rights. The Company covenants and
agrees with the Underwriter and any other or subsequent Holders of the
Registrable Securities (as defined in paragraph (e) of this Section 10) that,
upon written request of the then Holder(s) of at least a majority of the
aggregate of the Registrable Securities which were originally issued on the date
hereof to the Underwriter or its designees, made at any time within the period
commencing two years and ending five years after the Effective Date, the Company
will file as promptly as practicable and, in any event, within 45 days after
receipt of such written request, at its sole expense, no more than once, a
post-effective amendment (the "Amendment") to the Registration Statement, or a
new Registration Statement or a Regulation A Offering Statement (an "Offering
Statement") under the Act, registering or qualifying the Registrable Securities
for sale. Within fifteen (15) days after receiving any such notice, the Company
shall give notice to the other Holders of the Registrable Securities advising
that the Company is proceeding with such Amendment, Registration Statement or
Offering Statement and offering to include therein the Registrable Securities of
such Holders. The Company shall not be obligated to any such other Holder unless
such other Holder shall accept such offer by notice in writing to the Company
within ten (10) days thereafter. No other securities of the Company shall be
entitled to be included in such Amendment, Registration Statement or Offering
Statement. The Company will use its best efforts, through its officers,
directors, auditors and counsel in all matters necessary or advisable, to file
and cause to become effective such Amendment, Registration Statement or Offering
Statement as promptly as practicable and for a period of two years thereafter to
reflect in the Amendment, Registration Statement or Offering Statement financial
statements which are prepared in accordance with Section 10(a)(3) of the Act and
any facts or events arising that, individually, or in the aggregate, represent a
fundamental and/or material change in the Amendment, Registration Statement or
Offering Statement to enable information set forth in Amendment, Registration
Statement or Offering Statement to enable any Holders of the Underwriter
Warrants to either sell such Underwriter Warrants or to exercise such
Underwriter Warrants and sell Shares, or to enable any holders of Shares to sell
such Shares, during said two-year period. The Holders may sell the Registrable
Securities pursuant to the Amendment, Registration Statement or the Offering
Statement without exercising the Underwriter Warrants. If any registration
pursuant to this paragraph (a) is an underwritten offering, the Holders of a
majority of the Registrable Securities to be included in such registration shall
be entitled to select the underwriter or managing underwriter (in the case of a
syndicated offering) of such offering.
(b) Piggyback Registration Rights. The Company covenants
and agrees with the Underwriter and any other Holders or subsequent Holders of
the Registrable Securities that if, at any time within the period commencing two
years and ending five years after the Effective Date, it proposes to file a
Registration Statement or Offering Statement with respect to any class of
security (other than in connection with an offering to the Company's employees)
under the Act in a primary registration on behalf of the Company and/or in a
secondary registration on behalf of holders of such securities and the
registration form or Offering Statement to be used may be used for registration
of the Registrable Securities, the Company will give prompt written notice
(which in the case of a Registration Statement or notification pursuant to the
exercise of demand registration rights other than those provided in Section
10(a) of this Agreement, shall be within ten (10) business days after the
Company's receipt of notice of such exercise, in any event, shall be at least 45
days prior to such filing) to, the Holders of Registrable Securities (regardless
of whether some of the Holders shall have theretofore availed themselves of the
right provided in Section 10(a) of this Agreement) at the addresses appearing on
the records of the Company of its intention to file a Registration Statement or
Offering Statement and will offer to include in such registration statement or
Offering Statement to the maximum
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extent possible, and limited, in the case of a Regulation A offering, to the
amount of the available exemption, subject to subparagraphs (i) and (ii) of this
paragraph (b), such number of Registrable Securities with respect to which the
Company has received written requests for inclusion therein within ten (10) days
after the giving of notice by the Company. All registrations requested pursuant
to this Section 10(b) are referred to herein as "Piggyback Registrations." All
Piggyback Registrations pursuant to this Section 10(b) will be made solely at
the Company's expense. This paragraph is not applicable to a Registration
Statement filed by the Company with the Commission on Forms S-4 or S-8 or any
successor forms.
(i) Priority on Primary Registrations. If a Piggyback
Registration includes an underwritten primary registration on behalf of
the Company and the underwriter(s) for the offering being registered by
the Company shall determine in good faith and advise the Company in
writing that in its/their opinion the number of Registrable Securities
requested to be included in such registration exceeds the number that
can be sold in such offering without materially adversely affecting the
distribution of such securities by the Company, the Company will
include in such registration (A) first, the securities that the Company
proposes to sell and (B) second, the Registrable Securities requested
to be included in such registration, apportioned pro rata among the
Holders of Registrable Securities and (C) third, securities of the
holders of other securities requesting registration.
(ii) Priority on Secondary Registrations. If a Piggyback
Registration consists only of an underwritten secondary registration on
behalf of holders of securities of the Company (other than pursuant to
Section 10(a)), and the underwriter(s) for the offering being
registered by the Company advise the Company in writing that in
its/their opinion the number of Registrable Securities requested to be
included in such registration exceeds the number which can be sold in
such offering without materially adversely affecting the distribution
of such securities by the Company, the Company will include in such
registration (A) first, the securities requested to be included therein
by the holders requesting such registration and the Registrable
Securities requested to be included in such registration above, pro
rata, among all such holders on the basis of the number of shares
requested to be included by each such holder and (B) second, other
securities requested to be included in such registration.
Notwithstanding the foregoing, if any such underwriter shall determine
in good faith and advise the Company in writing that the distribution of the of
the Registrable Securities requested to be included in the registration
concurrently with the securities being registered by the Company would
materially adversely affect the distribution of such securities by the Company,
then the Holders of such Registrable Securities shall delay their offering for
such period ending on the earliest of (1) 90 days following the effective date
of the Company's registration statement, (2) the day upon which the underwriting
syndicate, if any, for such offering shall have been disbanded or, (3) such date
as the Company, managing underwriter and Holders of Registrable Securities shall
otherwise agree. In the event of such delay, the Company shall file such
supplements, post-effective amendments and take any such other steps as may be
necessary to permit such Holders to take their proposed offering and sale for a
period of 120 days immediately following the end of such period of delay. If any
party disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to the Company, the underwriter, and
Underwriter. Notwithstanding the foregoing, the Company shall not be required to
file a registration statement to include Shares pursuant to this Section 10(b)
if an opinion of independent counsel, reasonably satisfactory to counsel for the
Company and counsel for Underwriter, that the Shares proposed to be disposed of
may be transferred pursuant to the provisions of Rule 144(k) under the Act,
shall have been delivered to counsel for the Company.
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(c) Other Registration Rights. In addition to the rights
above provided, the Company will cooperate with the then Holders of the
Registrable Securities in preparing and signing any Registration Statement or
Offering Statement, in addition to the Registration Statements and Offering
Statements discussed above, required in order to sell or transfer the
Registrable Securities and will supply all information required therefor, but
such additional Registration Statement or Offering Statement shall be at the
then Holders' cost, and expense; provided, however, that if the Company elects
to register or qualify additional Common Shares, the cost and expense of such
Registration Statement or Offering Statement will be pro rated between the
Company and the Holders of the Registrable Securities according to the aggregate
sales price of the securities being issued, Notwithstanding the foregoing, the
Company will not be required to file a Registration Statement or Offering
Statement at a time when the audited financial statements required to be
included therein are not available, which time shall be limited to the period
commencing 45 days after the end of a fiscal year and ending 90 days after the
end of such fiscal year.
(d) Action to be Taken by the Company. In connection with
the registration of Registrable Securities in accordance with paragraphs (a),
(b) or (c) of this Section 10, the Company agrees to:
(i) Bear the expenses of any registration or
qualification under paragraphs (a) or (b) of this Section 10,
including, but not limited to, legal accounting, and printing fees;
provided, however, that in no event shall the Company be obligated to
pay (A) any fees and disbursements of special counsel for Holders of
Registrable Securities, or (B) any underwriters' discount or commission
in respect of such Registrable Securities, or (C) upon the exercise of
and demand registration right provided for in paragraph (a) of this
Section 10, the cost of and liability or similar insurance required by
an underwriter, to the extent that such costs are attributable solely
to the offering of such Registrable Securities, payment of which shall,
in each case, be the sole responsibility of the Holders of the
Registrable Securities;
(ii) Use its best efforts to register or qualify the
Registrable Securities for offer or sale under state securities or Blue
Sky laws of such jurisdictions as Underwriter shall reasonably request
and to do any and all other acts and things which may be necessary or
advisable to enable the holders to consummate the proposed sale,
transfer or other disposition of such securities in any jurisdiction;
and
(iii) Enter into a cross-indemnity agreement, in customary
form, with each underwriter, if any, and each holder of securities
included in such Amendment, Registration Statement or Offering
Statement,
(e) For purposes of this Section 10, (i) the term
"Holder" shall include holders of Shares, and (ii) the term "Registrable
Securities" shall mean both the Underwriter Warrants and the Shares issued upon
exercise of the Underwriter Warrants.
11. Notices to Holders.
(a) Nothing contained in this Agreement or in any of the
Underwriter Warrants shall be construed as conferring upon the Holders thereof
the right to vote or to receive dividends or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company; provided, however, that in the event that a meeting
of shareholders shall be called to
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consider and take action on a proposal for the voluntary dissolution of the
Company, other than in connection with a consolidation, merger or sale of all,
or substantially all, of its property, assets, business and good will as an
entirety, then and in that event the Company shall cause a notice thereof to be
sent by first-class mail, postage prepaid, at least twenty (20) days prior to
the date filed as a record date or the date of closing, the transfer books in
relation to such meeting, to each registered Holder of Underwriter Warrants at
such Holder's address appearing in the Underwriter Warrant Register; but failure
to mail or to receive such notice or any defect therein or in the mailing
thereof shall not affect the validity of any action taken in connection with
such voluntary dissolution. If such notice shall have been so given and if such
a voluntary dissolution shall be authorized at such meeting or any adjournment
thereof, then from and after the date on which such voluntary dissolution shall
have been duly authorized by the shareholders, the purchase rights represented
by the Underwriter Warrants and all other rights with respect thereto shall
cease and terminate.
(b) In the event the Company intends to make any
distribution on its Common Shares (or other securities which may be issuable in
lieu thereof upon the exercise of Underwriter Warrants), including, without
limitation, any such distribution to be made in connection with a consolidation
or merger in which the Company is the continuing corporation, or to issue
subscription rights or warrants to holders of its Common Shares, the Company
shall cause a notice of its intention to make such distribution to be sent by
first-class mail, postage prepaid, at least twenty (20) days prior to the date
fixed as a record date or the date of closing the transfer books in relation to
such distribution, to each registered Holder of Underwriter Warrants at such
Holder's address appearing, on the Underwriter Warrant Register, but failure to
mail or to receive such notice or any defect therein or in the mailing thereof
shall not affect the validity of any action taken in correction with such
distribution.
12. Notices. Any notice pursuant to this Agreement to be given or
made by the Holder of any Underwriter Warrant and/or the holder of any Share to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed as follows or to such other address as the
Company may designate by notice given in accordance with this Section 12, to the
Holders of Underwriter Warrants and/or the holders of Shares:
The Plastic Surgery Company
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx X
Xxxxx Xxxxxxx, XX 00000
Attn: President
with a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx, Esq.
Notices or demands authorized by this Agreement to be given or made by
the Company to or on the Holder of any Underwriter Warrant and/or the holder of
any Share shall be sufficiently given or made (except as otherwise provided in
this Agreement) if sent by first-class mail, postage prepaid, addressed to such
Holder or such holder of Shares at the address of such Holder or such holder of
Shares as shown on the Underwriter Warrant Register or the books of the Company,
as the case may be.
13. Governing Law. THIS AGREEMENT AND EACH UNDERWRITER WARRANT
ISSUED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
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WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICT OF LAWS. The Company hereby agrees to accept service of
process by notice given to it pursuant to the provisions of Section 12.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
(Corporate Seal)
THE PLASTIC SURGERY COMPANY
Attest:
By:
Xxxxxx X. Xxxxxx
Secretary President
Attest:
By:
Name:
Title:
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EXHIBIT A
No.___________ _______ Warrants
VOID AFTER 5:00 P.M. NEW YORK CITY TIME
ON ___________, 2004
THE PLASTIC SURGERY COMPANY
Warrant Certificate
THIS CERTIFIES THAT for value received _________________________ or
registered assigns, is the owner of the number of warrants set forth above, each
of which entities the owner thereof to purchase at any time from _____________,
2001, until 5:00 p.m., New York City time on _______________, 2004 (the "Warrant
Expiration Date"), one fully paid and nonassessable Common Share, without par
value (the "Common Shares"), of The Plastic Surgery Company, a Georgia
corporation (the "Company"), at the purchase price of $____ per share (the
"Exercise Price") upon presentation and surrender of this Warrant Certificate
with the Form of Election to Purchase duly executed. The number of Warrants
evidenced by this Warrant Certificate (and the number of shares which may be
purchased upon exercise thereto set forth above), and the Exercise Price per
share set forth above, are the number and Exercise Price as of the date of
original issuance of the Warrants, based on the Common Shares of the Company as
constituted at such date. As provided in the Warrant Agreement referred to
below, the Exercise Price and the number or kind of shares which may be
purchased upon the exercise of the Warrants evidenced by this Warrant
Certificate are, upon the happening of certain events, subject to modification
and adjustment.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of an agreement, dated as of
_______________, 1999 (the "Warrant Agreement"), between the Company and
____________, which Warrant Agreement is hereby incorporated herein by
reference and made a part hereof and to which Warrant Agreement reference is
hereby made for a full description of the rights, limitations of rights, duties
and immunities hereunder of the Company and the holders of the Warrant
Certificates. Copies of the Warrant Agreement are on file at the principal
office of the Company.
This Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the holder to purchase a like aggregate number of
Common Shares as the Warrants evidenced by the Warrant Certificate or Warrant
Certificates surrendered entitled such holder to purchase. If this Warrant
Certificate shall be exercised in part, the holder hereof shall be entitled to
receive upon surrender hereof another Warrant Certificate or Warrant
Certificates for the number of whole Warrants not exercised.
No fractional Common Shares will be issued upon the exercise of any
Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be
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deemed the holder of Common Shares, any other securities of the Company which
may at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained in the Warrant Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger, conveyance, or otherwise) or, except as provided
in the Warrant Agreement, to receive notice of meetings, or to receive dividends
or subscription rights or otherwise, until the Warrant or Warrants evidenced by
this Warrant Certificate shall have been exercised and the shares shall have
become deliverable as provided in the Warrant Agreement.
If this Warrant shall be surrendered for exercise within any period
during which the transfer books for the Company's Common Shares or other class
of stock purchasable upon the exercise of this Warrant are closed for any
purpose, the Company shall not be required to make delivery of certificates for
shares purchasable upon such exercise until the date of the reopening of said
transfer books.
IN WITNESS WHEREOF, The Plastic Surgery Company has caused the
signature (or facsimile signature) of its President and its Secretary to be
printed hereon and its corporate seal (or facsimile) to be printed hereon.
Dated: August ___, 1999
THE PLASTIC SURGERY COMPANY
By:
Xxxxxx X. Xxxxxx
President
(Corporate Seal)
Attest:
Secretary
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FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate.)
TO:
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate to purchase the Common Shares issuable
upon the exercise of such Warrants and requests that certificates for such
shares be issued in the name of:
(Please insert social security or other identifying number)
(Please print name and address)
If such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, a new Warrant Certificate for the balance remaining of such
Warrants shall be registered in the name of and delivered to:
Please insert social security number or other identifying number
(Please print name and address)
Dated:
Signature
(signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate)
Signature Guaranteed:
------------------------------
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FORM OF
ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Warrant Certificates.)
FOR VALUE RECEIVED, _____________________ hereby sells, assigns and
transfers unto ______________________________________ this Warrant Certificate,
together with all right, title and interest herein, and does hereby irrevocably
constitute and appoint ________________, to transfer the within Warrant
Certificate on the books of the within-named Company, with full power of
substitution.
Dated:
Signature:
Signature Guaranteed:
------------------------------
NOTICE
The signature of the foregoing Assignment must correspond to the name
as written upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatsoever.
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