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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Building One Services Corporation
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(Name of Issuer)
Common Stock, Par Value $.001
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(Title of Class of Securities)
120114103
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(CUSIP Number)
Mr. Andrew Africk
Boss Investment LLC
c/o Apollo Management, L.P.
1301 Avenue of the Americas, 38th Floor
New York, NY 10019
(212) 261-4000
with copies to:
Michael D. Weiner, Esq. John J. Suydam, Esq.
Apollo Management, L.P. O'Sullivan Graev & Karabell, LLP
1999 Avenue of the Stars, Suite 1900 30 Rockefeller Plaza, 24th Floor
Los Angeles, CA 90067 New York, NY 10012
(310) 201-4100 (212) 408-2400
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 30, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of (S)(S)240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [_]
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See (S)240.13d-7 for
other parties to whom copies of this statement are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Convertible Notes).
Potential persons who are to respond to the collection of information
contained in this form are not required to respond unless the form displays
a currently valid OMB control number.
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CUSIP NO. 120114103
- -----------------------
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Boss Investment LLC*
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
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SOLE VOTING POWER
7
NUMBER OF 5,474,444 shares of Common Stock
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
-0-
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 5,474,444 shares of Common Stock
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
5,474,444 shares of Common Stock
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
19.9%
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TYPE OF REPORTING PERSON (See Instructions)
14
OO
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2
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CUSIP NO. 120114103
- -----------------------
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Apollo Investment Fund IV, L.P.*
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 5,195,795 shares of Common Stock**
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
5,474,444 shares of Common Stock**
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 5,195,795 shares of Common Stock**
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
5,474,444 shares of Common Stock**
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
5,474,444 shares of Common Stock**
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (See Instructions)
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
19.9%
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TYPE OF REPORTING PERSON (See Instructions)
14
PN
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3
<PAGE>
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CUSIP NO. 120114103
- -----------------------
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Apollo Overseas Partners IV, L.P.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [X]
(b) [_]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
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SOLE VOTING POWER
7
NUMBER OF 278,649 shares of Common Stock**
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
5,474,444 shares of Common Stock**
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 278,649 shares of Common Stock**
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
5,474,444 shares of Common Stock**
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
5,474,444 shares of Common Stock**
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 (See Instructions)
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
19.9%
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TYPE OF REPORTING PERSON (See Instructions)
14
PN
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4
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CUSIP NO. 120114103
- -----------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Apollo Advisors IV, L.P.*
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
2 (a) [X]
(b) [_]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF -0-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
5,474,444 shares of Common Stock
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING -0-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
5,474,444 shares of Common Stock
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
5,474,444 shares of Common Stock
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 (See Instructions)
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
19.9%
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TYPE OF REPORTING PERSON (See Instructions)
14
PN
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5
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* On March 22, 1999 Boss Investment LLC, a Delaware limited liability
company owned by certain Reporting Entities (as defined in Item 2) (the
"Investor"), entered into a Securities Purchase Agreement (the "Purchase
- --------- --------
Agreement"), with Building One Services Corporation, a Delaware corporation (the
- ---------
"Issuer"). Pursuant to the Purchase Agreement, on April 30, 1999 the Investor
------
acquired approximately $100.0 million of the Issuer's 7.5% Junior Subordinated
Convertible Debentures (the "Convertible Notes"). Assuming conversion of the
-----------------
principal amount of the Convertible Notes and assuming that all interest is paid
in cash, the Convertible Notes are convertible into 4,444,444 shares of common
stock of the Issuer, par value $.001 per share (the "Common Stock").
------------
On June 30, 1999, the Investor acquired from Friedman, Billings, Ramsey &
Co., Inc. warrants to purchase 1,030,000 shares of the Issuer's Common Stock
(the "Warrants"). Assuming the Investor exercised the Warrants and converted the
--------
Convertible Notes, and assuming that all interest payments are paid in cash, the
Investor would own 5,474,444 shares of the Issuer's Common Stock, or
approximately 19.9% based on Building One's outstanding shares as of July 1,
1999.
**The Investor will be dissolved and will distribute the Convertible Notes
and Warrants to its members, each of whom is a Reporting Entity, resulting in
direct beneficial ownership by Apollo Investment Fund IV, L.P. and Apollo
Overseas Partners IV, L.P. of $94.9 million and $5.1 million, respectively, of
the Convertible Notes corresponding to 4,218,222 shares and 226,222 shares of
Common Stock upon conversion, respectively. The distribution will also result
in direct beneficial ownership by AIF IV and Overseas Partners of warrants to
purchase 977,573 and 52,427 shares of Common Stock, respectively.
6
<PAGE>
ITEM 1. SECURITY AND ISSUER
This Statement relates to the Common Stock of the Issuer. The address
of the principal executive office of the Issuer is 800 Connecticut Avenue, N.W.,
Suite 1111, Washington, D.C. 20006.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The Investor obtained financing from its members for the purchase of
the Warrants (as defined in Item 4). The members (Apollo Investment Fund IV,
L.P. and Apollo Overseas Partners IV, L.P.), in turn, obtained their respective
funds from capital contributions of their partners.
ITEM 4. PURPOSE OF THE TRANSACTION
The purpose of the transaction was to acquire warrants to purchase
1,030,000 shares of the Issuer's common stock, par value $.001 (the "Warrants").
--------
On June 30, 1999, the Investor entered into two letter agreements (the
"FBR Letter Agreements") with Friedman, Billings, Ramsey & Co., Inc. ("FBR"),
--------------------- ---
pursuant to which the Investor acquired the Warrants. In connection with the
sale of the Warrants, FBR waived its rights to have the Company use its best
efforts to cause the election of two FBR-designees to the board of directors of
the Company.
The Investor is expected to be dissolved, pursuant to which it will
distribute the Convertible Notes and Warrants to its members, each of whom is a
Reporting Entity. The distribution will result in direct beneficial ownership
by AIF IV and Overseas Partners of $94.9 million and $5.1 million, respectively,
of the Convertible Notes corresponding to 4,218,222 shares and 226,222 shares of
Common Stock upon conversion, respectively. The distribution will also result
in direct beneficial ownership by AIF IV and Overseas Partners of warrants to
purchase 977,573 and 52,427 shares of Common Stock, respectively.
Each of the FBR Letter Agreements contains other terms and conditions.
The foregoing description of such agreements is qualified in its entirety by
reference to the text of such agreements, which are filed as exhibits to this
Schedule 13D and are incorporated herein by reference. In addition, the terms
of the warrants are set forth in Warrant Certificate No. W-1 dated November 25,
1997 issued by the Issuer and the Warrant Agreement dated November 25, 1997,
between the Issuer and FBR, each of which are filed as exhibits to this Schedule
13D and are incorporated herein by reference.
Except as set forth in this Item 4, the Reporting Entities have no
present plans or proposals to acquire additional securities of the Issuer.
However, the Reporting Entities reserve the right from time to time to acquire
additional securities and/or to dispose of securities and to participate in
future transactions with respect to the Issuer's Securities. Upon a material
change
7
<PAGE>
in the beneficial ownership of the Reporting Persons, the Reporting Persons will
amend this Schedule 13D.
ITEM 5. INTEREST IN THE SECURITIES OF THE ISSUER
(a) Assuming the Investor exercised the Warrants and converted the
Convertible Notes, and assuming that all interest payments are paid in
cash, the Investor would own 5,474,444 shares of the Issuer's Common
Stock, or approximately 19.9% based on Building One's outstanding
shares as of July 1, 1999.
(c) The responses set forth in Item 4 are incorporated herein.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The responses set forth in Item 4 are incorporated herein.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1. Securities Purchase Agreement, dated as of March 22, 1999,
between Boss Investment LLC, a Delaware limited liability company, and
Building One Services Corporation, a Delaware corporation. *
2. Investors' Rights Agreement, dated as of March 22, 1999, among
Building One Services Corporation, a Delaware corporation, and Boss
Investment LLC, a Delaware limited liability company. *
3. Amendment No. 1, dated as of April 6, 1999, to the Investors'
Rights Agreement, dated March 22, 1999, among Building One Services
Corporation, a Delaware Corporation and Boss Investment LLC, a
Delaware Limited Liability Company. *
4. Indenture, dated as of April 30, 1999, between Building One
Services Corporation, a Delaware corporation, and United States Trust
Company of New York, a national banking association, as Trustee. *
5. Press Release, dated March 23, 1999. *
6. Press Release, dated April 30, 1999. *
7. Warrant Certificate No. W-1 dated November 25, 1997.
8. Warrant Agreement dated November 25, 1997, between Building
One Services Corporation and Friedman, Billings, Ramsey & Co., Inc.
- ---------
* Previously filed.
8
<PAGE>
9. Letter Agreement dated June 30, 1999, between Boss Investment
LLC and Friedman, Billings, Ramsey & Co., Inc. ("FBR") relating to the
sale of the Warrant.
10. Letter Agreement dated June 30, 1999, between Boss Investment
LLC and FBR relating to FBR's right to elect directors to the Board.
9
<PAGE>
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct. In addition, by signing below, the undersigned
agrees that this Schedule 13D may be filed jointly on behalf of each of Boss
Investment LLC, Apollo Investment Fund IV, L.P., Apollo Advisors IV, L.P. and
Apollo Overseas Partners IV, L.P.
Dated as of the 6th day of July, 1999.
BOSS INVESTMENT LLC APOLLO ADVISORS IV, L.P.
By: /s/ Andrew Africk By: Apollo Capital Management IV, Inc.,
-------------------------- its General Partner
Name: Andrew Africk
Title: Manager By: /s/ Michael D. Weiner
Name: Michael D. Weiner
Title: Vice President
APOLLO INVESTMENT FUND IV, L.P. APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P., By: Apollo Advisors IV, L.P.,
its General Partner its General Partner
By: Apollo Capital Management IV, By: Apollo Capital Management IV, Inc.,
Inc., its General Partner its General Partner
By: /s/ Michael D. Weiner By: /s/ Michael D. Weiner
------------------------------- ----------------------------------
Name: Michael D. Weiner Name: Michael D. Weiner
Title: Vice President Title: Vice President
10
<PAGE>
EXHIBIT 7
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO
AND EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT
APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH
ACT RELATING TO THE DISPOSITION OF SECURITIES), (iii) UPON THE DELIVERY BY THE
HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL FOR THE COMPANY, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE 5:00 P.M., NEW YORK TIME, November 25, 2002
No. W-1 1,130,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Friedman, Billings, Ramsey &
Co., Inc. or registered assigns, is the registered holder of 1,130,000 Warrants
to purchase, at any time from November 25, 1998 until 5:00 P.M. New York City
time on November 25, 2002 ("Expiration Date"), up to 1,130,000 fully paid and
non-assessable shares ("Shares") of the Common Stock, par value $.001 per share
("Common Stock"), of Consolidation Capital Corporation, a Delaware corporation
(the "Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $20.00 per Share, upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the warrant
agreement dated as of November 25, 1997 between the Company and Friedman,
Billings, Ramsey & Co., Inc. (the "Warrant Agreement"). Payment of the Exercise
Price may be made in cash, or by check payable to Section 3.2 of the Warrant
Agreement.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to in a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events, the Exercise Price and/or number of the Company's securities issuable
thereupon may, subject to certain conditions, be adjusted. In such event, the
Company will, at the request of the holder, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and/or type of
securities issuable upon the exercise of the Warrants; provided, however, that
the failure of the Company to issue such new Warrant Certificates shall not in
any way change, alter, or otherwise impair, the rights of the holder as set
forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate of
like tenor and evidencing in the aggregate a like number of Warrants shall be
issued to the transferee(s) in exchange for this Warrant Certificate, subject
to the limitations provided herein and in the Warrant Agreement, without any
charge except for any tax, or other governmental charge imposed in connection
therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated: November 25, 1997 CONSOLIDATION CAPITAL CORPORATION
-----------
[SEAL] By:
------------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated: November 25, 1997 CONSOLIDATION CAPITAL CORPORATION
------------
[SEAL] By: Jonathan J. Ledecky
------------------------------
Name: Jonathan J. Ledecky
Title: Chairman and Chief Executive
Officer
<PAGE>
EXHIBIT 8
WARRANT AGREEMENT dated as of November 25, 1997 between Consolidation
Capital Corporation, a Delaware corporation (the "Company"), and Friedman,
Billings, Ramsey & Co., (hereinafter referred to as the "Representative").
WITNESSETH:
WHEREAS, the Representative has agreed, pursuant to the underwriting
agreement (the "Underwriting Agreement") dated November 25, 1997 between the
Representative, as representative of the several Underwriters named in the
Underwriting Agreement (the "Underwriters") and the Company, to act as one of
the underwriters in connection with the Company's proposed initial public
offering (the "Public Offering") of 24,000,000 shares of Common Stock ("Public
Shares") at an initial public offering price $20,00 per Public Share; and
WHEREAS, the Company proposes to issue to the Representative, in its
individual capacity and not as representative of the several Underwriters
(defined below) warrants ("Warrants") to purchase up to 1,130,000 shares of
common stock, par value $.001 per share ("Common Stock") (the shares of Common
Stock covered by the Warrants are referred to as "Shares"); and
WHEREAS, the Warrants issued pursuant to this Agreement are being issued
by the Company to the Representative or officers or partners of the
Representative in consideration for, and as part of the Representative's
compensation in connection with, the Representative acting as one of the
underwriters pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. GRANT.
The Representative, and/or any of its designees who are officers or
partners of the Representative is hereby granted the right to purchase, at any
time from November 25, 1998 until 5:00 P.M., New York City time, on November 25,
2002 (the "Warrant Exercise Term"), up to 1,130,000 shares of Common Stock at
an initial exercise price (subject to adjustment as provided in Article 8
hereof) of $20.00 per Share. Except as provided in Section 13 hereof, the Shares
are in all respects identical to the Public Shares being sold to the public
pursuant to the terms and provisions of the Underwriting Agreement.
2. WARRANT CERTIFICATES.
The warrant certificates (the "Warrant Certificates") delivered and to
be delivered pursuant to this Agreement shall be in the form set forth as
Exhibit A, attached hereto and made a part
<PAGE>
hereof, with such appropriate insertions, omissions, substitution or and other
variations as required or permitted by this Agreement.
3. EXERCISE OF WARRANTS.
3.1 CASH EXERCISE. The Warrants initially are exercisable at a price of
$20.00 per Share purchased, payable in cash or by check to the order of the
Company, or any combination of cash or check, subject to adjustment as provided
in Article 8 hereof. Upon surrender of the Warrant Certificate with the annexed
Form of Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined) for the Shares purchased, at the
principal office of the Company (presently located at 1747 Pennsylvania Avenue,
NW, Suite 900, Washington, DC 20006) or at the office of its transfer agent, the
registered holder(s) of a Warrant Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or certificates for the Shares so purchased.
The purchase rights represented by each Warrant Certificate are exercisable at
the option of the Holder hereof, in whole or in part (but not as to fractional
Shares). In the case of the purchase of less than all of the Shares purchasable
under any Warrant Certificate, the Company shall cancel said Warrant Certificate
upon the surrender thereof and shall execute and deliver a new Warrant
Certificate of like tenor for the balance of the Shares purchasable thereunder.
3.2 CASHLESS EXERCISE. At any time during the Warrant Exercise Term, the
Holder may, at its option, exchange this Warrant, in whole or in part (a
"Warrant Exchange"), into the number of Shares determined in accordance with
this Section 3.2, by surrendering this Warrant at the principal office of the
Company or at the office of its transfer agent, accompanied by a notice stating
such Holder's intent to effect such exchange, the number of Shares to be
exchanged and the date on which the Holder requests that such Warrant Exchange
occur the ("Notice of Exchange"). The Warrant Exchange shall take place on the
date specified in the Notice of Exchange or, if later, the date the Notice of
Exchange is received by the Company (the "Exchange Date"). Certificates for the
Shares issuable upon such Warrant Exchange and, if applicable, a new warrant of
like tenor evidencing the balance of the Shares remaining subject to this
Warrant, shall be issued as of the Exchange Date and delivered to the Holder
within three (3) days following the Exchange Date. In connection with any
Warrant Exchange, this Warrant shall represent the right to subscribe for and
acquire the number of Shares (rounded to the next highest integer) equal to (i)
the number of Shares specified by the Holder in its Notice of Exchange (the
"Total Number"), but in no case more than the number of shares equal to the
number of shares listed on the warrant certificate, less (ii) the number of
Shares equal to the quotient obtained by dividing (A) the product of the Total
Number and the existing Exercise Price (as hereinafter defined) by (B) the
current market value of a Public Share.
4. ISSUANCE OF CERTIFICATES.
Upon the exercise of the Warrants, the issuance of certificates for the
Shares purchased shall be made forthwith (and in any event within three business
days thereafter) without charge to the
<PAGE>
Holder thereof including, without limitation any tax which may be payable in
respect of the issuance thereof, and such certificates shall subject to the
provisions of Article 5 hereof) be issued in the name of, or in such names as
may be directed by, the Holder thereof; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificates in a
name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
The Warrant Certificates and the certificates representing the Shares
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future Chairman or Vice Chairman of the Board of Directors
or President or Vice President of the Company under its corporate seal
reproduced thereon, attested to by the manual or facsimile signature of the
present or any future Secretary or Assistant Secretary of the Company. Warrant
Certificates shall be dated the date of execution by the Company upon initial
issuance, division, exchange substitution or transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Shares shall bear a legend substantially similar to the
following:
"The securities represented by this certificate and the other securities
issuable upon exercise thereof have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be offered
or sold except (i) pursuant to an effective registration statement
under the Act, (ii), to the extent applicable, pursuant to Rule 144
under the Act (or any similar rule under such Act relating to the
disposition of securities), or (iii) upon the delivery by the holder to
the Company of an opinion of counsel, reasonably satisfactory to counsel
to the Company, stating that an exemption from registration under such
Act is available."
5. RESTRICTION ON TRANSFER OF WARRANTS.
The Holder of a Warrant Certificate, by its acceptance thereof,
covenants and agrees that the Warrants are being acquired as an investment and
not with a view to the distribution thereof, and that the Warrants may not be
sold, transferred, assigned, hypothecated or otherwise disposed of, in whole or
in part, except (i) to officers, directors or affiliates of the Representative,
and (ii) to transferees with the opinion of counsel, acceptable to the Company
and the transferor, that such transfer is exempt from registration under the
Act. The Warrant Certificate issued pursuant to (ii) above will bear a legend
stating that the Warrants may only be exercised if there is an applicable
exemption under the Act for the issuance of the shares of Common Stock of the
Company upon the exercise of the Warrants.
6. PRICE
<PAGE>
6.1 INITIAL AND ADJUSTED EXERCISE PRICE. The initial exercise price of
each Warrant shall be $20.00 per Share. The adjusted exercise price shall be
the price which shall result from time to time from any and all adjustments of
the initial exercise price in accordance with the provisions of Article 8
hereof.
6.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. REGISTRATION RIGHTS.
7.1 REGISTRATION UNDER THE SECURITIES ACT OF 1933. None of the
Warrants nor the Shares have been registered for purposes of public distribution
under the Securities Act of 1933, as amended (the "Act").
7.2 REGISTRABLE SECURITIES. As used herein the term "Registrable
Security" means each of the Shares and any Common Stock issued upon any stock
split or stock dividend in respect of such Shares; provided, however, that with
respect to any particular Registrable Security, such security shall cease to be
a Registrable Security when, as of the date of determination, (i) it has been
effectively registered under the Act and disposed of pursuant thereto, (ii)
registration under the Act is no longer required for subsequent sale of such
security or (iii) it has ceased to be outstanding. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a "Registrable Security." In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be made in the
definition of "Registrable Security" as is appropriate in order to prevent any
dilution or enlargement of the rights granted pursuant to this Article 7.
7.3 PIGGYBANK REGISTRATION.
(a) If, at any time during the seven years following the date of
this Agreement, the Company proposes to prepare and file one or more
registration statement(s) filed in connection with a public offering covering
equity securities of the Company, or any such securities of the Company held by
its shareholders (other than in connection with an exchange offer, a "rights"
offering to shareholders, an offering relating to an employee benefit plan,
dividend reinvestment plan, an acquisition, a merger, the conversion of any
convertible securities, an exchange of a security, or a stand-by underwriting
with respect to the call of a warrant, option, right or convertible security for
redemption), (for purposes of this Article 7, collectively, a "Registration
Statement"), it will give written notice of its intention to do so by registered
mail ("Notice"), at least thirty (30) business days prior to the filing of such
Registration Statement, to all holders of the Registrable Securities or, in the
event that the Company has not formulated its intent to file such Registration
Statement at least thirty (30) calendar days before the anticipated filing date
of the Registration Statement, as soon as practicable upon the formation by the
Company of such intent. However, no
<PAGE>
such Notice need be given if the Registration Statement is for an underwritten
offering of securities other than equity securities or securities convertible
into equity securities. Upon the written request of such a holder (a
"Requesting Holder"), made within twenty (20) business days after receipt of the
Notice, that the Company included any of the Requesting Holder's Registrable
Securities in the proposed Registration Statement, the Company shall, as to each
such Requesting Holder, use its best efforts to effect the registration under
the Act of the Registrable Securities which it has been so requested to register
("Piggyback Registration"), at the Company's sole cost and expense and at no
cost or expense to the Requesting Holders. The Company shall not be required to
honor any such request (i) if, in opinion of counsel to the Company reasonably
acceptable to such Holder who wishes to have such Registrable Securities
included in such Registration Statement, registration under the Act is not
required for the transfer of the Registrable Securities in the manner proposed
by such Holder; or (ii) to register in the aggregate fewer than 25,000 Shares
held by the Holders. The Company shall permit, or shall use its best efforts to
cause the managing underwriter of a proposed offering to permit, the Holders of
Registrable Securities requested to be included in the registration (the "Piggy-
Back Shares") to include such Piggy-Back Shares in the proposed offering on the
same terms and conditions as applicable to the shares of Common Stock offered by
the Company and for the account of any person other than the Company, as the
case may be.
(b) Notwithstanding the foregoing, if any such managing
underwriter shall advise the Company in writing that, in its opinion, the
distribution of all or a portion of the Registrable Securities requested to be
included in the Registration Statement concurrently with the shares of Common
Stock being registered by the Company would materially adversely affect the
distribution of such securities by the Company for its own account, or for the
account of any person or persons other than the Company that have asserted, with
respect to such registration, demand registration rights under any other
agreement, then such inclusion of Registrable Securities shall be made pro rata
--------
among the aggregate of the Registrable Securities for which a proper request
was made under this subsection 7.3 and any other securities properly requested
to be included in the registration by other holders pursuant to piggy-bank or
incidental registration rights under any other agreement.
7.4 DEMAND REGISTRATION.
(a) At any time during the Warrant Exercise Term, any "Majority
Holder" (as such term is defined in Section 7.4(c) below) of the Registrable
Securities shall have the right (which right is in addition to the piggybank
registration rights provided for under Section 7.3 hereof), exercisable by
written notice to the Company (the "Demand Registration Request"), to have the
Company prepare and file with the Securities and Exchange Commission (the
"Commission"), on one occasion, at the sole expense of the Company, a
Registration Statement and such other documents, including a prospectus, as may
be necessary (in the opinion both counsel for the Company and counsel for such
Majority Holder), in order to comply with the provisions of the Act, so as to
permit a public offering and sale of the Registrable Securities by the holders
thereof, for twelve (12) consecutive months. The Company shall not be required
to filed any amendments to the Registration Statement required by this
subsection 7.4(a) except as is necessary to keep the
<PAGE>
disclosure about the Company current.
(b) The Company covenants and agrees to give written notice of
any Demand Registration Request to all holders of the Registrable Securities
within ten (10) days from the date of the Company's receipt of any such Demand
Registration Request. After receiving notice from the Company as provided in
this Section 7.4(b), holders of Registrable Securities may request the Company
to include their Registrable Securities in the Registration Statement to be
filed pursuant to Section 7.4(a) hereof by notifying the Company of their
decision to include such securities within ten (10) days of their receipt of the
Company's notice.
(c) The term "Majority Holder" as used in this Section 7.4 shall
mean any holder or any combination of holders of Registrable Securities, if
included in such holders' Registrable Securities are that aggregate number of
Shares (including Shares already issued and Shares issuable pursuant to the
exercise of outstanding Warrants) as would constitute a majority of the
aggregate number of Shares (including Shares already issued and Shares issuable
pursuant to the exercise of outstanding Warrants) included in all of the
Registrable Securities.
7.5 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. The Company
covenants and agrees as follows:
(a) In connection with any registration under Section 7.4
hereof, the Company shall file the Registration Statement as expeditiously as
possible, but in no event later than thirty (30) days following receipt of any
demand therefor, shall use its best efforts to have any such Registration
Statements declared effective at the earliest possible time. If a written
request, however, is received by the Company that would require the filing of a
Registration Statement between 45 and 105 days after the end of its fiscal year,
the deadline for the filing of the Registration Statement shall be extended
until the 106th day of such fiscal year. The Company shall furnish each holder
of Registrable Statement such number of prospectuses as shall reasonably be
requested. However, in connection with any registration under Sections 7.3 and
7.4 hereof, the Company shall have sole control in connection with the
preparation, filing, amending and supplementing of the Registration Statement,
including the right to withdraw the same or delay the filing or effectiveness
thereof when, in the sole judgment of the Board of Directors of the Company, the
filing or pendency of such registration statement or the effectiveness thereof
would impose an undue burden upon the ability by the Company to proceed with any
other material financing for its own account or any material corporate
transaction, including, but not limited to, a reorganization, recapitalization,
merger, consolidation or material acquisition of the securities or assets of
another firm or corporation; provided, however, that the Company's exercise of
-------- -------
any such right of withdrawal or delay shall not be deemed a waiver of the rights
of the Holders, and the Company shall be required to file a new Registration
Statement or to proceed with such actions as reasonably may be required to cause
the Registration Statement to become effective within a reasonable time after
the consummation of the event or transaction which required such withdrawal or
delay.
<PAGE>
(b) The Company shall pay all costs fees and expenses
in connection with all Registration Statements filed pursuant to Sections 7.3
and 7.4(a) hereof including, without limitation, the Company's legal and
accounting fees, printing expenses, and blue sky fees and expenses. Each Holder
however, shall pay the underwriting discount attributable to such Holder's
Registrable Securities, any transfer tax payable with respect thereto and the
fees and expenses of such Holder's counsel.
(c) The Company will take all necessary action which may be
required in qualifying or registering the Registrable Securities included in a
Registration Statement for offering and sale under the securities or blue sky
laws of such states as are requested by the holders of such securities, provided
that the Company shall not be obligated to execute or file any general consent
to service of process or to qualify as a foreign corporation to do business
under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable
Securities to be sold pursuant to any Registration Statement and any underwriter
or person deemed to be an underwriter under the Act and each person, if any, who
controls such holder or underwriter or person deemed to be an underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage,
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Act, the Exchange Act or otherwise, arising
from such Registration Statement to the same extent and with the same effect as
the provisions pursuant to which the Company has agreed to indemnify the
Underwriters contained in Section 8 of the Underwriting Agreement and shall
provide for just and equitable contributions as set forth in Section 8 of the
Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to
a Registration Statement, and its successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished in writing by or on behalf of such holder, or its successors or
assigns, for specific inclusion in such Registration Statement to the same
extent and with the same effect as the provisions contained in Section 8 of the
Underwriting Agreement pursuant to which the Underwriters have agreed to
indemnify the Company and shall provide for just and equitable contribution as
set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as
requiring any Holder to exercise his Warrants prior to the initial filing of any
Registration Statement or the effectiveness thereof.
<PAGE>
(g) If the Company shall fail to comply with the provisions of
this Article 7, the Company shall, in addition to any other equitable or other
relief available to the holders of Registrable Securities, be liable for any or
all incidental, special and consequential damages sustained by the holders of
Registrable Securities that request registration of their Registrable
Securities.
(h) Except as set forth in Section 7.5(j) hereof, the Company
shall not permit the inclusion of any securities other than the Registrable
Securities to be included in any Registration Statement filed pursuant to
Section 7.4 hereof, or permit a Registration Statement relating to an
underwritten offering of the same securities as the Registrable Securities to be
filed during an underwritten offering of the Registrable Securities covered by a
Registration Statement filed pursuant to Section 7.4 hereof, without the prior
written consent of the Majority Holders, which consent shall not be unreasonably
withheld.
(i) The Company shall deliver promptly to each holder of
Registrable Securities participating in the offering in which such Holder's
shares are being registered pursuant to Section 7.3 hereof requesting the
correspondence and memoranda described in this Section 7.5(i) and to the
managing underwriter, if any, copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda relating
to discussions with the Commission or its staff with respect to the Registration
Statement and permit each holder of Registrable Securities and underwriters to
do such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the Registration Statement as it deems
reasonably necessary to comply with applicable securities laws or rules of the
National Associaton of Securities Dealers, Inc. Such investigation shall
include access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any such holder
of Registrable Securities or underwriter shall reasonably request.
(j) Upon the written request therfor by any holders of
Registrable Securities, the Company shall include in the Registration
Statement filed for an underwritten offering covering any such holders
Registrable Securities, any additional shares of Common Stock of the Company or,
with the approval of the managing underwriter, any additional securities, held
by such holders as of the date of filing of such Registration Statement.
Notwithstanding Section 7.5(b) hereof, the holders shall pay any additional
costs, fees and expenses associated with the inclusion on such Registration
Statement of any of such holders' shares of Common Stock or other securities
that are not Registrable Securities which are included on the Registration
Statement. Notwithstanding the foregoing, if any such managing underwriter shall
advise the Company in writing that, in its opinion, the distribution of all or a
portion of the Common Stock that are not Registrable Securities requested to be
included in the Registration Statement concurrently with the Registrable
Securities being registered by such holders would materially adversely affect
the distribution of such offering, then such additional shares of Common Stock
shall be excluded from the Registration Statement.
<PAGE>
(k) Upon the written request therefor by any holders of Registrable
Securities, the Company shall include the Registration Statement filed for a
non-underwritten offering covering any of the Registrable Securities, any other
securities of the Company held by such holders as of the date of filing of such
Registration Statement, including, without limitation, restricted shares of
Common Stock, options, warrants or any other securities convertible into shares
of Common Stock. Notwithstanding Section 7.5(b) hereof, the holders shall pay
any additional costs, fees and expenses associated with the inclusion on such
Registration Statement of any of such holders' other securities of the Company
that are not Registerable Securities which are included on the Registration
Statement.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SECURITIES. The
following adjustments apply to the Exercise Price of the Warrants with respect
to the Shares and the number of Shares purchasable upon exercise of the
Warrants.
8.1 COMPUTATION OF ADJUSTED PRICE. In case the Company shall at any time
after the date hereof pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to its stockholders, then upon such
dividend or distribution the Exercise Price in effect immediately prior to such
dividend or distribution shall forthwith be reduced to a price determined by
dividing:
(a) an amount equal to the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution multiplied by the
Exercise Price in effect immediately prior to such dividend or distribution, by
(b) the total number of shares of Common Stock outstanding immediately
after such issuance or sale.
For the purposes of any computation to be made in accordance with the
provisions of this Section 8.1, the shares of Common Stock issuable by way of a
dividend or other distribution on any shares of Common Stock of the Company
shall be deemed to have been issued immediately after the opening of business on
the date following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution.
8.2 SUBDIVISION AND COMBINATION. In case the company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of a subdivision or
increased in the case of a combination.
8.3 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Article 8, the number of
Shares issuable upon the exercise or each warrant shall be adjusted to the
nearest full Share by multiplying a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of Shares.
<PAGE>
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
8.4 RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the surviving corporation
and which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or in the
case of a sale or conveyance to another corporation of the property of the
Company as an entirety, the Holders shall thereafter have the right to purchase
the kind and number of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance as if the Holders were the owners of the Shares immediately prior to
any such events and at an aggregate price equal to the product of (x) the number
of shares of Common Stock issuable upon exercise of the Holders' Warrants and
(y) the Exercise Price in effect immediately prior to the record date for such
reclassification, change, consolidation, merger, sale or conveyance as if such
Holders had exercised the Warrants.
8.5 DETERMINATION OF OUTSTANDING COMMON STOCK. The number of shares of
Common Stock at any one time outstanding shall include the aggregate number of
shares issued or issuable upon the exercise of options, rights, warrants and
upon the conversion or exchange of convertible or exchangeable securities.
8.6 SUBSCRIPTION RIGHTS FOR COMMON STOCK OR OTHER SECURITIES. In the
case that the Company or an affiliate of the Company shall at any time after
the date hereof and prior to the exercise of all the Warrants issue any rights
to subscribe for shares of Common Stock or any other securities of the Company
or of such affiliate to all of the shareholders of the company, the Holders of
the unexercised Warrants shall be entitled, in addition to the shares of Common
Stock or other securities receivable upon the exercise of the Warrants, to
receive at the time such rights as are distributed to the other shareholders of
the Company.
9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES.
Each Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Shares in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of
<PAGE>
indemnity or security reasonably satisfactory to it and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Warrants, if mutilated, the Company will make and deliver a
new Warrant Certificate of like tenor, in lieu thereof.
10. ELIMINATION OF FRACTONAL INTERESTS.
The Company shall not be required to issue certificates representing
fractions of Shares upon the exercise of the Warrants nor shall it be required
to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of Shares.
11. RESERVATION AND LISTING OF SECURITIES.
The Company shall at all times reserve and keep available out of its
authorized Common Stock, solely for the purpose of issuance upon the exercise of
the Warrants, such number of shares of Common Stock as shall be issuable upon
the exercise thereof. The Company covenants and agrees that, upon exercise of
the Warrants and payment of the Exercise Price therefor, all Shares issuable
upon such exercise shall be duly and validly issued, fully paid, non-assessable
and not subject to the preemptive rights of any shareholder. As long as the
Warrants shall be outstanding, the Company shall use its best efforts to cause
all shares of Common Stock issuable upon the exercise of the Warrants to be
listed on or quoted by the Nasdaq National Market, or listed on such national
securities exchanges as requested by the Underwriter.
12. NOTICES TO WARRANT HOLDERS.
Nothing contained in this Agreement shall be construed as conferring
upon the Holder or Holders the right to vote or to consent or to receive notice
as a stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the expiration of
the Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of all of the holders of its
shares of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all of the holders of its shares of
Common Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor; or
<PAGE>
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed; or
(d) reclassification or change of the outstanding shares of Common
Stock (other than a change in par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination),
consolidation of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger in which the
Company is the surviving corporation and which does not result in any
reclassification or change of the shares of outstanding Common Stock,
except a change as a result of a subdivision or combination of such
shares or a change in par value, as aforesaid), or a sale or conveyance
to another corporation of the property of the Company as an entirety is
proposed; or
(e) the Company or an affiliate of the Company shall propose to
issue any rights to subscribe for shares of Common Stock or any other
securities of the Company or of such affiliate to all the stockholders
of the Company;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, options or warrants, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the declaration or
payment of any such dividend or distribution, or the issuance of any convertible
or exchangeable securities or subscription rights, options or warrants, or any
proposed dissolution, liquidation, winding up or sale.
13. NOTICES
All of notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when delivered,
or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 of
this Agreement or to such other address as the Company may designate by
notice to the Holders.
<PAGE>
14. SUPPLEMENTS AND AMENDMENTS.
The Company and the Representative may from time to time supplement or
amend this Agreement without the approval of any Holders of Warrant Certificates
in order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Representative may deem necessary or desirable and
which the Company and the Representative deem not to adversely affect the
interests of the Holders of Warrant Certificates.
15. SUCCESSORS.
All of the covenants and provisions of this Agreement by or for the
benefit of the Company and the Holders inure to the benefit of their respective
successors and assigns hereunder.
16. TERMINATION.
This Agreement shall terminate at the close of business on November 25,
2005. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date when all Warrants have been exercised and all Shares have been
resold to the public.
17. GOVERNING LAW.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and for all
purposes shall be construed in accordance with the laws of said State.
18. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give any person or
corporation other than the Company and the Underwriter and any other registered
holder or holders of the Warrant Certificates, or Shares any legal or equitable
right, remedy or claim under this Agreement; and this Agreement shall be for the
sold and exclusive benefit of the Company and the Underwriter and any other
holder or holders of the Warrant Certificates, Warrants or the Shares.
19. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and
such counterparts shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CONSOLIDATION CAPITAL CORPORATION
By:
-------------------------------
Name:
Title:
Attest:
- -------------
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
By:
-------------------------------
Name:
Title:
<PAGE>
EXHIBIT 8(a)
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE HOLDER TO
THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL FOR THE
COMPANY, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE 5:00 P.M., NEW YORK TIME, _______, 2002
No. W-____ _______ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Friedman, Billings, Ramsey &
Co., Inc. or registered assigns, is the registered holder of _________ Warrants
to purchase, at any time from ______, 1998 until 5:00 P.M. New York City time on
_______, 2002 ("Expiration Date"), up to _______ fully paid and non-assessable
shares ("Shares") of the Common Stock, par value $.001 per share ("Common
Stock:), of Consolidation Capital Corporation, a Delaware corporation (the
"Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $_____ per Share, upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the warrant
agreement dated as of _______ __, 1997, between the Company and Friedman,
Billings, Ramsey & Co., Inc. (the "Warrant Agreement"). Payment of the Exercise
Price may be made in cash, or by check payable to the order of the Company, or
any combination of cash or check, or pursuant to Section 3.2 of the Warrant
Agreement.
No Warrant may be exercised after 5:00 P.M., New York City time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
<PAGE>
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to in a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events, the Exercise Price and/or number of the Company's securities issuable
thereupon may, subject to certain conditions, be adjusted. In such event, the
Company will, at the request of the holder, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and/or type of
securities issuable upon the exercise of the Warrants; provided, however, that
the failure of the Company to issue such new Warrant Certificates shall not in
any way change, alter, or otherwise impair, the rights of the holder as set
forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax, or other governmental charge
imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated: , 199_ CONSOLIDATION CAPITAL CORPORATION
-----------
[SEAL] By:
-------------------------------
Name:
Title:
<PAGE>
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase Shares and herewith
-------
tenders in payment for such Shares cash or a certified or official bank check
payable in New York Clearing House Funds to the order of CONSOLIDATION CAPITAL
CORPORATION in the amount $ , all in accordance with the terms hereof.
-------
The undersigned requests that a certificate for such Shares be registered in the
name of , whose address is , and that
-------------------- -------------------
such Certificate be delivered to , whose address is
---------------------
.
- ---------------
Dated: Signature:
-------------------------------
(Signature must conform in all respects to
name of holder as specfied on the face of the
face of the Warrant Certicate.)
-------------------------------
-------------------------------
(Insert Social Security or Other Identifying
Number of Holder)
<PAGE>
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such
holder desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED
-------------------------------------------------
hereby sells, assigns and transfers unto
- ----------------------------------------------------------------------------
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint , Attorney, to
-----------
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated: Signature:
--------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant Certificate)
- -----------------
- -----------------
Insert Social Security or Other
Identifying Number of Assignee)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CONSOLIDATION CAPITAL CORPORATION
By: Jonathan J. Ledecky
-------------------------------
Name: Jonathan J. Ledecky
Title: Chairman and Chief
Executive Officer
Attest:
- -------------
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
By:
-------------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CONSOLIDATION CAPITAL CORPORATION
By:
-------------------------------
Name:
Title:
Attest:
- -------------
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
By: James R. Kleeblatt
-------------------------------
Name: James R. Kleeblatt
Title: Managing Director
<PAGE>
Exhibit 9
FBR Letter Agreement
Friedman, Billings, Ramsey & Co., Inc.
1001 Nineteenth Street North
Arlington, VA 22209
(703) 312-9600
June 30, 1999
Boss Investment LLC
c/o Apollo Management, L.P.
1301 Avenue of the Americas, 38th Floor
New York, NY 10019
Dear Sirs:
Reference is made to the Warrant Agreement, dated as of November 25,
1997, between Consolidation Capital Corporation (currently known as Building One
Services Corporation), a Delaware corporation (the "Company") and Friedman,
Billings, Ramsey & Co., Inc. ("FBR"). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Warrant Agreement.
1. FBR hereby sells, transfers, conveys and assigns to Boss Investment
LLC ("Boss Investment") and Boss Investment hereby purchases from FBR warrants
(the "Warrants") to purchase, at an exercise price of $20.00 per share,
1,030,000 shares of the Company's common stock, par value $0.001 per share
("Common Stock"), for an aggregate purchase price of $3,090,000 (the "Purchase
Price"). Simultaneously with the execution and delivery of this agreement (this
"Letter Agreement"), FBR has delivered the Warrants duly endorsed for transfer
to Boss Investment, in exchange for the Purchase Price. The parties acknowledge
that FBR has retained warrants to purchase 100,000 shares of Common Stock (the
"Retained Warrants").
2. FBR hereby transfers, conveys and assigns to Boss Investment and
Boss Investment hereby purchases from FBR all of FBR's right, title and interest
under the Warrant Agreement, excluding only the right to acquire the Retained
Warrants.
3. FBR hereby represents and warrants that it has good, valid and
marketable title to the Warrants, free and clear of any pledge, lien, security
interest or any other claim or encumbrance. FBR has not sold, transferred,
assigned, pledged, hypothecated or otherwise
<PAGE>
disposed of, in whole or in part, any of its right, title or interest in the
Warrants or the Warrant Agreement, except for the Retained Warrants.
4. FBR represents and warrants that it has all requisite power and
authority to execute, deliver and perform its obligations under this Letter
Agreement and to consummate the transactions contemplated hereby. FBR's
execution and delivery of this Letter Agreement and the performance by FBR of
its obligations hereunder have been duly and validly authorized by all requisite
action on the part of FBR. This Letter Agreement has been duly executed and
delivered by FBR and constitutes a valid and binding obligation of FBR
enforceable against FBR in accordance with its terms
5. FBR further represents and warrants that neither the execution,
delivery or performance of this Letter Agreement by FBR nor the consummation by
FBR of the transactions contemplated thereby will constitute a violation or
breach of the terms of the Warrants or the Warrant Agreement or result in the
creation or imposition of any liens or encumbrances upon the Warrants.
6. FBR hereby acknowledges that (a) the Company regularly engages in
material transactions and there currently are transactions under consideration
by the Company that may not have yet been disclosed to FBR and (b) Boss
Investment and its affiliates may have material information concerning the
Company, including information concerning merger & acquisition activity, that
FBR does not possess.
7. FBR and Boss Investment hereby agree that this Letter Agreement
shall be governed in accordance with the laws of the State of New York and the
exclusive jurisdiction for enforcing this Letter Agreement shall be the state
courts and the federal courts of the United States located in the City of New
York. This Letter Agreement may be executed by the parties in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
2
<PAGE>
If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter shall constitute an agreement binding FBR and Boss Investment.
Very truly yours,
FRIEDMAN, BILLINGS, RAMSEY
& CO., INC.
By: _____________________________
Name:
Title:
Accepted and agreed as of
the date first written above:
BOSS INVESTMENT LLC
By: ____________________________
Name:
Title:
3
<PAGE>
Exhibit 10
FBR Letter Agreement
Friedman, Billings, Ramsey & Co., Inc.
1001 Nineteenth Street North
Arlington, VA 22209
(703) 312-9600
June 30, 1999
Boss Investment LLC
c/o Apollo Management, L.P.
1301 Avenue of the Americas, 38th Floor
New York, NY 10019
Dear Sirs:
Reference is made to the Underwriting Agreement (the "Underwriting
Agreement") dated November 25, 1997, between Friedman, Billings, Ramsey & Co.,
Inc. as Representative of the Several Underwriters and Consolidated Capital
Corporation (currently known as Building One Services Corporation) a Delaware
Corporation., (the "Company").
1. FBR hereby waives its right under Section 5(q) of the Underwriting
Agreement to have the Company use its best efforts to cause the election of two
FBR-designees to the board of directors of the Company (the "Board"). All
provisions of the Underwriting Agreement relating to the obligation of the
Company to cause the election of two FBR designees to the Board shall be of no
further force or effect. Additionally, one of the current FBR Board designees,
W. Russell Ramsey, has resigned as a member of the Board (and all committees
thereof), effective as of the date hereof. Such resignation is attached hereto
as Exhibit A. In addition, FBR hereby waives the obligation of the Company
---------
under Section 5(r) of the Underwriting Agreement to use its best efforts to
maintain a director and officer insurance policy substantially in the form that
was in effect on the Firm Closing Date (as defined in the Underwriting
Agreement) with respect to matters occurring after the date hereof; provided
that, nothing herein shall limit or eliminate any existing indemnity or
insurance coverage for the Board's members for matters occurring before the date
hereof. FBR shall no longer have any right to enforce this covenant. The parties
hereto intend that the Company shall be a third party beneficiary of this Letter
Agreement.
2. FBR and Boss Investment hereby agree that this Letter Agreement
shall be governed in accordance with the laws of the State of New York and the
exclusive jurisdiction for
<PAGE>
enforcing this Letter Agreement shall be the state courts and the federal courts
of the United States located in the City of New York. This Letter Agreement may
be executed by the parties in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when two or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
3. FBR represents and warrants that it has all requisite power and
authority to execute, deliver and perform its obligations under this Letter
Agreement and to consummate the transactions contemplated hereby. FBR's
execution and delivery of this Letter Agreement and the performance by FBR of
its obligations hereunder have been duly and validly authorized by all requisite
action on the part of FBR. This Letter Agreement has been duly executed and
delivered by FBR and constitutes a valid and binding obligation of FBR
enforceable against FBR in accordance with its terms
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
2
<PAGE>
If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter shall constitute an agreement binding FBR and Boss Investment.
Very truly yours,
FRIEDMAN, BILLINGS, RAMSEY
& CO., INC.
By: _____________________________
Name:
Title:
Accepted and agreed as of
the date first written above:
BOSS INVESTMENT LLC
By: ____________________________
Name:
Title:
3
