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Exhibit 4.3
STOCK PURCHASE WARRANT
VOID AFTER 5:00 P.M., EASTERN STANDARD TIME
ON
Date of Issuance: Certificate No. W-
FOR VALUE RECEIVED, Balanced Care Corporation, a Delaware
corporation (the "Company"), hereby grants to Hakman & Company, Inc., or its
registered assigns (the "Holder") the right to purchase from the Company shares
of Common Stock at the price per share of (as adjusted from time to time
hereunder) subject to the terms and conditions contained herein. Certain
capitalized terms used herein are defined in Section 1 hereof. The amount and
kind of securities obtainable pursuant to the rights granted hereunder and the
purchase price for such securities are subject to adjustment pursuant to the
provisions contained in this Warrant.
This Warrant is subject to the following terms and conditions:
1. Definitions. As used herein the following terms shall have the
following meanings:
"Common Stock" means the common stock, par value $0.001 per share of
the Company.
"Date of Issuance" means .
"Exercise Period" has the meaning ascribed thereto in Section 4.
"Exercise Price" has the meaning ascribed thereto in Section 3.
"Person" means an individual, a partnership, a corporation, a
limited partnership, a limited liability company, a trust, a joint venture, an
unincorporated organization, a government or any department or agency thereof or
any other entity whether domestic or foreign.
"Purchaser" means a completed Exercise Agreement, as described in
Exhibit A below, executed by the Person exercising all or part of the purchase
rights represented by this Warrant.
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"Shares" means the shares of Common Stock subject to this
Warrant.
"Vesting Date" has the meaning ascribed thereto in Section 4.
2. Shares Subject to this Warrant. This Warrant shall be
exercisable for up to ( ) shares of Common Stock, as the
same may be adjusted in accordance with Section 9 hereof.
3. Exercise Price. The exercise price per share of the Shares
subject to this Warrant shall be $ per share, subject to adjustment in
accordance with Section 9 hereof (the "Exercise Price").
4. Vesting; Term. The purchase rights represented by this Warrant shall
immediately vest on (the "Vesting Date"). The purchase rights are
exercisable by the Holder, in whole or in part, at any time and from time to
time commencing on the Vesting Date and ending on the third anniversary of the
Date of Issuance (the "Exercise Period").
5. Method of Exercise Payment and Issuance. Subject to Section 4 above,
the purchase rights represented by this Warrant may be exercised, in whole or in
part and from time to time, by the surrender of this Warrant and the duly
executed Exercise Agreement (the form of which is attached hereto as Exhibit A)
at the principal office of the Company and by the payment to the Company by wire
transfer, in immediately available funds, in an amount equal to the Exercise
Price multiplied by the number of Shares being purchased. Upon exercise, the
Holder shall be entitled to receive, within a reasonable time, and in any event
within thirty (30) days of receipt of the Exercise Agreement by the Company, a
certificate or certificates, issued in the Holder's name or in such name or
names as the Holder may direct, for the number of Shares so purchased, and,
unless this Warrant has been fully exercised or expired, a new Warrant
representing the portion of the Shares, if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder
within such thirty (30) day period. The Shares so purchased shall be deemed to
be issued as of the close of business on the date that this Warrant shall have
been exercised.
6. Legend. Each certificate evidencing any of the Shares
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shall bear a legend substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, ANY MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT
OF 1933, OR AN OPINION OF COUNSEL FOR THE COMPANY THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT.
7. Shares to be Issued; Reservation of Shares. The Company covenants that
all Shares issued upon the exercise of the purchase rights represented by this
Warrant shall, upon issuance, be fully paid and non-assessable, and free from
all liens and charges with respect to the issue thereof. During the Exercise
Period, the Company shall at all times have authorized and reserved, for the
purpose of issuance upon exercise of the purchase rights represented by this
Warrant, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant.
8. No Fractional Shares. No fractional shares will be issued upon the
exercise of this Warrant. In lieu thereof, the Company shall make a cash payment
equal to the product of the fractional number of shares multiplied by the fair
market value of the Common Stock equal to the closing market price of the Common
Stock as reported on AMEX on the Exercise Date.
9. Adjustments of Number of Shares/Price. In the event of a stock split,
subdivision or combination of the Common Stock, a stock dividend with respect to
the Common Stock, a recapitalization, or a reclassification of the Common Stock,
the number of and kind of shares issuable upon exercise of this Warrant, and the
Exercise Price per share, shall be equitably adjusted by the Company's Board of
Directors as it deems necessary, and in its sole discretion, to prevent dilution
of the rights of the Holder set forth in this Warrant. Promptly following any
such adjustment, the Company shall provide the Holder with a certificate stating
the nature of the event giving rise to the adjustment and setting forth the
adjusted Exercise Price and the number and kind of shares for which this Warrant
shall then be exercisable.
10. Notices of Record. In the event of:
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(a) any taking by the Company of a record of the holders of Common
Stock for the purpose of determining the holders thereof that are entitled
to receive any dividend or other distribution, or any right to subscribe
for, purchase, or otherwise acquire any shares of Common Stock or any
other securities or property, or to receive any other right; or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the Company involving the Common Stock or any
transfer of all or substantially all of the assets of the Company or
consolidation or merger of the Company with or into any other Person; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then the Company shall mail or cause to be mailed to the Holder a notice
specifying (i) the date that any such record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, and (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of the Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up. Such
notice shall be mailed at least ten (10) days prior to the date therein
specified.
11. No Rights as Stockholder. This Warrant does not entitle the Holder to
any voting rights or other rights as a stockholder of the Company. Upon valid
exercise of this Warrant and payment for the Common Stock purchased in
accordance with the terms of the Warrant, the Holder shall be deemed a
stockholder of the Company.
12. Modifications and Waivers . This Warrant may not be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against whom enforcement of the same is sought.
13. Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder hereof or the Company shall
be delivered or shall be sent by certified or registered mail, postage
prepaid, if
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to the Company:
Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
to the Holder:
Hakman & Company, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: X. Xxxxx Xxxx
Xxxxxxxxx No: (000) 000-0000
14. Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and of an
indemnity or security reasonably satisfactory to it, and upon reimbursement to
the Company of all reasonable expenses incidental thereto, and upon surrender
and cancellation of this Warrant, if mutilated, the Company will make and
deliver a new warrant, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant.
15. Binding Effect on Successors. This Warrant shall be binding upon any
party succeeding the Company by merger, consolidation or acquisition of all or
substantially all of the Company's assets, and all of the obligations of the
Company relating to the Shares shall survive the exercise and termination of
this Warrant and all of the covenants and agreements of the Company shall inure
to the benefit of the successors and assigns of the Holder. This Warrant is
fully transferable upon the prior written consent of the Company (which consent
will not be unreasonably conditioned, withheld or delayed) and the Company shall
treat any assignee of this Warrant as the Holder for all purposes; provided,
however, no such assignment shall be valid or binding as to the Company unless
this Warrant is returned to the Company with an executed Assignment Agreement
(attached as Exhibit B) within five days of such assignment.
16. Governing Law. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws
of the State of Delaware.
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IN WITNESS WHEREOF, Balanced Care Corporation has caused this
Warrant to be executed under seal by its officer thereunto duly authorized.
Dated:
CORPORATE BALANCED CARE CORPORATION
SEAL
By:
Xxxx X. Xxxxxxxxx
President and CEO
ATTEST
By
Xxxxx Xxxxxx
Assistant Secretary
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EXHIBIT A
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W- ), xxxxxx agrees to subscribe for the
purchase of shares of the Common Stock covered by such Warrant and
makes payment herewith in full therefore at the Exercise Price.
Signature
Address
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EXHIBIT B
ASSIGNMENT
FOR VALUE RECEIVED, Hakman & Company, Inc. hereby sells, assigns and
transfers all of its rights and obligations under the attached Warrant
(Certificate No. W- ) with respect to the number of shares of the Common Stock
covered thereby on and as of the date of this Assignment as set forth below,
unto:
Name(s) of Assignee(s) Address No. of Shares
Dated: Signature
Witness
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SCHEDULE TO FORM OF CAPITAL STOCK PURCHASE WARRANT
FILED AS EXHIBIT 4.3 FILED PURSUANT TO INSTRUCTION 2
TO ITEM 601(A) OF REGULATION S-K
SHARES DATE/TERM PRICE EXERCISE SCHEDULE
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40,250 4/24/98; $8.88 per share
4 years
3,000 8/17/98; $5.56 per share
3 years
3,000 9/15/98; $4.94 per share
3 years
3,500 11/3/98; $7.19 per share
3 years
500 12/23/98; $6.81 per share
3 years
3,650 7/7/99; $1.94 per share
3 years
250 7/14/99; $2.00 per share
3 years
1,500 7/23/99; $2.00 per share
3 years
4,000 7/29/99; $1.94 per share
3 years
2,500 9/27/99; $1.19 per share
3 years
500 10/5/99; $1.03 per share
3 years
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