EXHIBIT
4.1
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
COMMON STOCK PURCHASE WARRANT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON May 26, 2000 AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR ASSIGNED, EXCEPT PURSUANT TO EITHER
(i) A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES
WHICH IS EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 UNDER SUCH
ACT OR (iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER
SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES PROVIDED
AN OPINION OF COUNSEL IS FURNISHED, REASONABLY SATISFACTORY
IN FORM AND SUBSTANCE TO THE COMPANY, THAT AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES.
In consideration of the sum of $1,000,000 and other good and
valuable consideration, the receipt of which hereby is
acknowledged by TENDER LOVING CARE HEALTH CARE SERVICES,
INC., a Delaware corporation (the "Company"), Medline
Industries, Inc., or any assignee, transferee or other
holder of this Warrant ("holder") hereby is granted the
right to purchase, at any time from May 26, 2000 until 5:00
P.M., New York City time, on January 1, 2005 (the
"Expiration Date"), up to 333,333 1/3 fully paid and
nonassessable shares of the Company's common stock, par
value $.01 per share ("Common Stock"), subject to adjustment
as provided in Section 5.3 below.
This Warrant is exercisable at a price of $.20 per share of
Common Stock issuable hereunder payable in cash or by check,
subject to adjustment as provided in Section 5 hereof. Upon
surrender of this Warrant with the annexed Subscription Form
duly executed, together with payment of the Purchase Price
(as defined in Section 4.2 below) for the shares of Common
Stock purchased, at the Company's principal executive
offices in New York (presently located at 1983 Marcus
Avenue, Lake Success, New York 11042) the holder shall be
entitled to receive a certificate or certificates for the
shares of Common Stock so purchased.
1. Exercise of Warrant.
The purchase rights represented by this Warrant are
exercisable at the option of the holder hereof, in whole or
in part (but not as to fractional shares of the Common
Stock), during any period in which this Warrant may be
exercised as set forth above by (a) the surrender of this
Warrant, accompanied by the Subscription Form annexed hereto
duly executed, to the Company at its principal office during
normal business hours on any day other than a Saturday,
Sunday or a day on which national banks are authorized to
close in New York City, and (b) the delivery of payment to
the Company, for the account of the Company, by cash or by
certified or bank cashier's check, of the aggregate Purchase
Price for the number of Warrant Shares (as defined in
Section 3.2 hereof) then to be purchased. The holder shall
be deemed to be the record owner of the number of shares of
Common Stock thereby purchased as at the close of business
on the date on which this Warrant shall have been exercised
as aforesaid. In the case of the purchase of less than all
the shares of Common Stock purchasable under this Warrant,
the Company shall cancel this Warrant upon the surrender
hereof and shall execute and deliver a new Warrant of like
tenor for the balance of the shares of Common Stock
purchasable hereunder.
2. Issuance of Stock Certificate
Upon any exercise of this Warrant in accordance with
Section 1, duly executed certificates for the shares of
Common Stock so purchased, in such denominations as shall be
designated by the holder, each registered in the holder's
name and/or that of a designee, and all stock, securities,
cash and other assets otherwise issuable in accordance with
Sections 5.1 and 5.4 hereof, shall be delivered to the
holder or its designee within a reasonable time (not
exceeding 5 days) after the date on which this Warrant shall
have been so exercised. The issuance of certificates for
shares of Common Stock upon the exercise of this Warrant
shall be made without charge to the holder hereof including,
without limitation, any tax which may be payable in respect
thereof, and such certificates shall (subject to the
provisions of Section 3 hereof) be issued in the name of, or
in such names as may be directed by, the holder hereof;
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
certificate 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.
3. Restriction on Transfer of Warrant.
3.1 The holder shall not transfer, sell or otherwise
dispose of this Warrant in any transaction except within the
purview of the Securities Act of 1933, as amended (the
"Act") and in compliance therewith.
3.2 Unless the shares of Common Stock issuable upon
exercise of this Warrant (the "Warrant Shares") may, at the
time of the exercise of this Warrant, be lawfully resold in
accordance with a then currently effective registration
statement or post-effective amendment to a registration
statement under the Act, the Company may require, as a
condition to the delivery of any Warrant Shares to be issued
upon exercise of this Warrant:
(a) that the Company receive an appropriate investment
letter evidencing that the holder or his permitted assignee
is acquiring such Warrant Shares for investment and not with
a view to the distribution or public offering of all or any
portion thereof, or any interest therein, and an agreement
to the effect that the holder or his permitted assignee
shall make no sale or other disposition of such Warrant
Shares unless and until: (i) the Company shall have received
an opinion of legal counsel to the holder or his permitted
assignee (in form and substance satisfactory to the Company)
to the effect that such sale or other disposition may be
made without registration under the then applicable
provisions of the Act and the rules and regulations of the
Securities and Exchange Commission thereunder; or (ii) such
Warrant Shares shall thereafter be included in a currently
effective registration statement or post-effective amendment
to a registration statement under the Act; and
(b) that the certificate or certificates issued to evidence
such Warrant Shares bear an appropriate legend indicating
such securities law restrictions on the further sale or
other disposition thereof.
4. Price.
4.1 Initial and Adjusted Purchase Price. The initial
purchase price shall be $.20 per share of Common Stock. The
adjusted purchase price shall be the price which shall
result from time to time from any and all adjustments of the
initial purchase price in accordance with the provisions of
Section 5 hereof.
4.2 Purchase Price. The term "Purchase Price" herein shall
mean the initial purchase price or the adjusted purchase
price, as in effect at the time of exercise or the time
otherwise referred to herein.
5. Adjustments of Purchase Price and Number of Shares.
5.1 Liquidating Dividend. In the event that the Company
shall make any distribution of its assets upon or with
respect to its Common Stock as a liquidating or partial
liquidating dividend, or other than as a dividend payable
out of earnings or any surplus legally available for
dividends under the laws of the state of incorporation of
the Company, the holder shall, upon the exercise of this
Warrant after the record date for such distribution or, in
the absence of a record date, after the date of such
distribution, receive, in addition to the shares subscribed
for, the amount of such assets (or, at the option of the
Company, a sum equal to the fair value thereof at the time
of distribution as reasonably determined by the Board of
Directors in its good faith discretion) which would have
been distributed to such holder if it had exercised this
Warrant immediately prior to the record date for such
distribution or, in the absence of a record date,
immediately prior to the date of such distribution.
5.2 Subdivision; Stock Dividend and Combination. In case
at any time or from time to time after May 26, 2000, the
Company: (a) shall subdivide or reclassify its outstanding
shares of Common Stock into a greater number of shares or
declare a dividend or make any other distribution upon any
stock of the Company payable in Common Stock or any
Convertible Securities, the Purchase Price in effect
immediately prior to such subdivision, reclassification,
stock dividend or distribution shall be proportionately
reduced (on a fully diluted basis as such term is
hereinafter defined); or (b) shall combine its outstanding
shares of Common Stock into a lesser number of shares, the
Purchase Price in effect immediately prior to such
combination shall be proportionately increased (on a fully
diluted basis). For purposes of this Warrant, "on a fully
diluted basis" means that all outstanding options, rights or
warrants to subscribe for shares of Common Stock and all
securities convertible into or exchangeable for shares of
Common Stock (such options, rights, warrants and securities
are collectively referred to herein as "Convertible
Securities") and all options or rights to acquire
Convertible Securities have been exercised, converted or
exchanged.
5.3. Adjustment in Number of Shares. Upon each adjustment
of the Purchase Price pursuant to the provisions of this
Section 5, the number of shares of Common Stock issuable
upon the exercise of each Warrant shall be adjusted to the
nearest full share (rounded upwards if less than a full
share) by multiplying the Purchase Price in effect
immediately prior to such adjustment by the number of shares
of Common Stock issuable upon exercise of the Warrant
immediately prior to such adjustment and dividing the
product so obtained by the Purchase Price in effect
immediately after such adjustment.
5.4. Reclassification, Consolidation, Merger, Etc. If any
capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the
Company with another corporation, or the sale of all or
substantially all of its assets to another corporation,
shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities, cash or
assets with respect to or in exchange for Common Stock,
then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, the Company
or such successor or purchasing corporation shall agree that
the holder of this Warrant shall have the right thereafter
and until the expiration of the exercise period hereof to
exercise this Warrant into the kind and amount of stock,
securities, cash or assets receivable upon such
reorganization, reclassification, consolidation, merger or
sale that the holder hereof would have been entitled to
receive had such holder exercised this Warrant immediately
prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which
shall be as nearly equivalent as may be practicable to the
adjustments provided for herein.
6. Registration Rights.
(a) Whenever the Company proposes to register any of its
securities under the Act (other than in connection with any
stock option plan, stock purchase plan, savings or similar
plan or an acquisition, merger or exchange of stock) and the
form of registration statement proposed to be used may be
used for the registration of the Warrant Shares held by the
holder (a "Piggyback Registration"), then, the Company shall
as soon as practicable under the circumstances (and, in no
event, not less than 30 days prior to the filing of such
registration statement) give written notice thereof to the
holder hereof. At the written request of the holder,
received by the Company within 15 days after the receipt of
such notice, the Company shall use its best efforts to cause
all of the Warrant Shares for which registration shall have
been requested to be included in such registration statement
(and in any qualification made under applicable state
securities laws in which the holder requests to be
included); provided, however, the holder shall have the
right to request such registration of any Warrant Shares on
one occasion only during the term hereof and, provided,
further, if any managing underwriter in connection with such
registration advises the Company that in its good faith
opinion the inclusion of any or all of the Warrant Shares
would adversely affect such public offering, then the number
of Warrant Shares as to which registration has been
requested may be reduced or excluded from such registration
by the Company and/or the underwriter.
(b) Expenses. All costs and expenses of any registration
and qualification pursuant to this Section 6 shall be borne
by the Company. Such costs and expenses shall include,
without limitation, the fees and expenses of counsel for the
Company and of its accountants, all other costs, fees and
expenses of the Company incident to the preparation,
printing and filing under the Act of the registration
statement and all amendments and supplements thereto, the
cost of furnishing copies of each preliminary prospectus,
each final prospectus and each amendment or supplement
thereto to underwriters, dealers and other purchasers of the
Common Stock and the costs and expenses (including fees and
disbursements of counsel) incurred in connection with the
qualification of the Common Stock under the securities laws
of various jurisdictions. Notwithstanding the foregoing,
the Company shall not be obligated to bear any fees, or
expenses for counsel or other advisors to the holder or any
underwriting fees, discounts or commissions or brokerage
fees allocable to the registration or qualification of the
Warrant Shares.
Procedures.
(i) In the case of any registration or qualification
pursuant to this Section 6, the Company will keep the holder
advised in writing as to the initiation of proceedings for
such registration and qualification and as to the completion
thereof, and will advise the holder, upon request, of the
progress of such proceeding.
(ii) At the Company's expense, the Company will keep each
registration and qualification under this Section 6
effective (and in compliance with the Act) by such action as
may be necessary or appropriate for a period of one hundred
twenty (120) days after the effective date of such
registration statement, including, without limitation, the
filing of post-effective amendments and supplements to any
registration statement or prospectus necessary to keep the
registration statement current and the further qualification
under any applicable state securities laws to permit such
sale or distribution, all as requested by the holder. The
Company will immediately notify the holder, at any time when
a prospectus relating thereto is required to be delivered
under the Act, of the happening of any event as a result of
which the prospectus included in such registration
statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing.
(iii) The Company will furnish to the holder, a signed
counterpart, addressed to the holder, of (A) an opinion of
counsel for the Company, dated the effective date of such
registration statement, and (B) a so-called "cold comfort"
letter signed by the independent public accountants who have
certified the Company's financial statements included in
such registration statement, and such opinion of counsel and
accountants' letter shall cover substantially the same
matters with respect to such registration statement (and the
prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in connection with
underwritten public offerings of securities, or shall be in
such other form as is received by the underwriter or
underwriters in connection with such registration.
(iv) Without limiting any other provision hereof, in
connection with any registration of Common Stock under this
Section 6. the Company will comply with the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and all applicable rules and regulations of the
Securities and Exchange Commission.
(v) In connection with any registration of Common Stock
under this Section 6, the Company will provide a transfer
agent and registrar for the Common Stock not later than the
effective date of such registration statement.
(vi) In connection with any registration of Common Stock
under this Section 6, the Company will, if requested by the
underwriters for any Common Stock included in such
registration, enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such
other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary
distributions, including, without limitation, provisions
relating to indemnification and contribution. The holder
shall be party to any such underwriting agreement, and the
representations and warranties by, and the other agreements
on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of
the holder. Such underwriting agreement shall also comply
with Section 6(f) hereof.
(vii) If the Company at any time proposes to register any
of its securities under the Act, whether or not for sale for
its own account, and such securities are to be distributed
by or through one or more underwriters, then the Company
will, subject to the limitations set forth in Section 6(a)
hereof, make reasonable efforts if requested by the holder,
to arrange for such underwriters to include such Common
Stock among the securities to be distributed by or through
such underwriters.
(viii) In connection with the preparation and filing of
each registration statement registering Common Stock under
this Section 6, the Company will give the holder and its
underwriter, if any, and their respective counsel and
accountants (at their sole expense), the opportunity to
participate in the preparation of such registration
statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement
thereto, and will give each of them such access to its books
and records and such opportunities to discuss the business
of the Company with its officers, its counsel and the
independent public accountants who have certified its
financial statements, as shall be necessary, in the opinion
of the holder or such underwriters or their respective
counsel, in order to conduct a reasonable and diligent
investigation within the meaning of the Act. Without
limiting the foregoing, each registration statement,
prospectus, amendment, supplement or any other document
filed with respect to a registration under this Section 6
shall be subject to a reasonable review and comment period
by the holder registering Common Stock in such registration
and by its counsel.
(d) Provision of Documents. The Company will, at the
expense of the Company, furnish to the holder such number of
registration statements, prospectuses, offering circulars
and other documents incident to any registration or
qualification referred to in this Section 6 as the holder
from time to time may reasonably request.
The Company agrees to indemnify, to the extent permitted by
law, the holder hereof and its officers, directors,
stockholders, employees, agents and representatives, and
any other person deemed to control the holder within the
meaning of the Act against all losses, claims, damages,
liabilities and expenses caused by (i) any violation or
alleged violation by the Company of the Act, the Exchange
Act or any other federal or state securities law, rule or
regulation applicable to the Company or (ii) any untrue
or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the
same are caused by or contained in any information
furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after
the Company has furnished such holder with a sufficient
number of copies of the same.
In connection with any registration statement in which the
holder is participating, such holder will furnish to the
Company in writing such information as the Company
reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent
permitted by law, will indemnify the Company, its
directors, officers, stockholders, employees, agents and
representatives, and any other person deemed to control
the Company within the meaning of the Act against any
losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement or
material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein
or necessary to make the statements therein not
misleading, but only to the extent that such untrue
statement or omission is contained in any information so
furnished in writing by such holder. In connection with
an underwritten offering, the holder will indemnify the
underwriters, the officers and directors and each person
who controls such underwriters (within the meaning of the
Act) to the same extent as provided above with respect to
the indemnification of the Company.
(g) Any party entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification and
(ii) unless in such indemnified party's reasonable judgment
a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(h) The indemnification provided for under this Agreement
will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party
or any officer, director or controlling person of such
indemnified party and will survive the transfer of
securities. If for any reason the foregoing indemnification
is unavailable to any party or insufficient to hold it
harmless as and to the extent contemplated by the preceding
paragraphs, then the Company or the holder, as the case may
be, shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one
hand, and the holder or any other applicable indemnified
party, as the case may be, on the other hand, and also the
relative fault of the Company and the holder or other
applicable indemnified party, as the case may be, as well as
any other relevant equitable considerations.
(i) Other than pursuant to the piggyback and demand
registration rights granted by this Section 6 hereof and
except for transfers made in transactions exempt from the
registration requirements under the Act pursuant to Section
4(2) thereof (or any successor provision), the Company and
the holder agree not to offer, sell, contract to sell or
otherwise dispose of any of their respective shares of
Common Stock within 7 days before or 90 days after the date
of any final prospectus relating to any underwritten public
offering of the Common Stock on behalf of the Company or
otherwise, in each case except pursuant to such prospectus
or with the written consent of the underwriter or
underwriters for such offering.
(j) No person may participate in any registration hereunder
which is underwritten unless such person agrees to sell such
person's securities on the basis provided in any
underwriting arrangements approved by the person or persons
entitled hereunder to approve such arrangements and
completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
7. Transfer, Exchange and Replacement of Warrant.
The Company shall keep at its principal office a register in
which the Company shall provide for the registration,
transfer and exchange of this Warrant. Upon surrender for
registration of transfer of this Warrant at such office, the
Company shall execute and deliver, subject to Section 3
hereof, in the name of the designated transferee(s) (and, if
only a portion of this Warrant is transferred, to the
holder), one or more new Warrants representing the right to
purchase a like aggregate number of shares of Common Stock,
upon surrender of this Warrant at such office. The Company
shall not at any time close such register so as to result in
preventing or delaying the exercise or transfer of this
Warrant.
This Warrant is exchangeable, without expense, upon the
surrender hereof by the registered holder at the principal
executive office of the Company, for a new Warrant of like
tenor and date representing in the aggregate the right to
purchase the same number of shares as are purchasable
hereunder in such denominations as shall be designated by
the registered holder hereof 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 this Warrant, and, in case of loss, theft or
destruction, of indemnity or security reasonably
satisfactory to it, and 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 this Warrant.
8. Elimination of Fractional Interests.
The Company shall not be required to issue stock
certificates representing fractions of Warrant Shares, 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.
9. Representations and Warranties of the Company.
The Company hereby represents and warrants to the holder
that as of the date hereof:
9.1 Organization and Capitalization of the Company. The
Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware. The authorized capital of the Company as of May
15, 2000, consists of 50,000,000 shares of common stock, of
which 11,809,653 shares are issued and outstanding, and
5,000,000 shares of preferred stock, none of which are
outstanding. All the outstanding shares of the Company's
capital stock have been validly issued without violation of
any preemptive or similar rights and are fully paid and
nonassessable.
9.2 Authority. The Company has full corporate power and
authority to execute and deliver this Warrant and to perform
all of its obligations hereunder, and the execution,
delivery and performance hereof have been duly authorized by
all necessary corporate action on its part. This Warrant
has been duly executed on behalf of the Company and
constitutes the legal, valid and binding obligation of the
Company enforceable against it in accordance with its terms.
9.3 No Legal Bar. Neither the execution, delivery nor
performance (including, without limitation, the issuance of
Warrant Shares upon exercise hereof) of this Warrant will
(a) conflict with or result in a violation of the
certificate of incorporation or by-laws of the Company, (b)
conflict with or result in a violation of any law, statute,
regulation, order or decree applicable to the Company or any
entity controlling, controlled by or under common control
with the Company, (c) require any consent or authorization
or filing with, or other act by or in respect of, any
governmental authority, (d) result in a breach of,
constitute a default under or constitute an event creating
rights of acceleration, termination or cancellation under
any mortgage, lease, contract, franchise, instrument or
other agreement to which the Company is a party or by which
it is bound, or (e) be subject to any preemptive rights or
result in any antidilution adjustments with respect to the
conversion, exchange or exercise rights of any class or
series of convertible securities.
10 Various Covenants of the Company.
10.1 No Impairment or Amendment. The Company shall not by
any action, including, without limitation, amending its
certificate of incorporation, any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of
all such action as may be necessary or appropriate to
protect the rights of the holder hereof against impairment.
Without limiting the generality of the foregoing, the
Company will (a) not increase the par value of the Warrant
Shares above the amount payable therefor upon such exercise,
(b) take all such action as may be necessary or appropriate
in order that the Company may validly issue fully paid and
nonassessable shares of Common Stock upon the exercise of
this Warrant, (c) obtain all such authorizations, exemptions
or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant, and
(d) not enter into any agreement which would prohibit it
from honoring its obligations under this Warrant.
10.2 Reservation of Common Stock. The Company will at all
times reserve and keep available, solely for issuance, sale
and delivery upon the exercise of this Warrant a number of
shares of Common Stock equal to the number of Warrant Shares
issuable upon the exercise of this Warrant. All Warrant
Shares shall be duly authorized and, when issued upon
exercise of this Warrant, shall be validly issued and fully
paid and nonassessable with no liability on the part of the
holders thereof. The Company shall not at any time while
this Warrant remains outstanding allow the par value of the
Warrant Shares to exceed the then effective Purchase Price.
10.3 Listing on Securities Exchange. If the Company shall
list any shares of Common Stock on any securities exchange,
it will, at its expense, list thereon, maintain and increase
when necessary such listing of, all Warrant Shares so long
as any shares of Common Stock shall be so listed. The
Company will also so list on each securities exchange, and
will maintain such listing of, any other securities which
the holder of this Warrant shall be entitled to receive upon
the exercise thereof if at the time any securities of the
same class shall be listed on such securities exchange by
the Company.
10.4 Certain Expenses. Except as specifically provided to
the contrary in Section 6(c), the Company shall pay all
expenses in connection with the issue, sale and delivery of
the Warrant and the Warrant Shares.
Notices to Warrant Holder.
Nothing contained in this Warrant shall be construed as
conferring upon the holder hereof the right to vote or to
consent or to receive notice as a shareholder in respect of
any meetings of shareholders for the election of directors
or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior
to the expiration of this Warrant and prior to its exercise,
any of the following events shall occur:
(a) The Company shall take a record 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 the holders of its 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
(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) Any sales of all assets, consolidation or merger to
which the Company is a party and for which approval of any
stockholders of the Company is required, any
reclassification or change of Common Stock issuable upon
exercise of this Warrant, or a tender offer or exchange
offer for shares of Common Stock; 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, entitled to vote on such
proposed dissolution, liquidation, winding up, sale,
consolidation or merger, or to participate in such tender
offer or exchange offer. 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 the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or
any proposed dissolution, liquidation, winding up, sale,
consolidation, merger, tender offer or exchange offer.
The Company shall give 15 days' prior written notice of any
change in the Company's principal office.
Upon any adjustment of the number of shares of Common Stock
which may be purchased upon the exercise of this Warrant
and/or of the Purchase Price, then and in each such case the
Company shall give written notice thereof, by first class
mail, postage prepaid, addressed to the holder of this
Warrant at the address of such holder as shown on the books
of the Company, which notice shall state the Purchase Price
resulting from such adjustment and the increase or decrease,
if any, in the number of Warrant Shares purchasable at such
price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts
upon which such calculation is based.
Notices.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have
been duly made when delivered:
(a) If to the registered holder of this Warrant, 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 on the
first page of this Warrant, or to such other address
specified in prior written notice given and delivered by the
Company to the holder.
13. Successors.
All the covenants, agreements, representations and
warranties contained in this Warrant shall bind the parties
hereto and their respective heirs, personal representatives,
successors and assigns.
14. Headings.
The Section headings in this Warrant are inserted for
purposes of convenience only and shall have no substantive
effect.
15. Law Governing.
This Warrant is delivered in the State of New York and shall
be construed and enforced in accordance with, and governed
by, the laws of the State of New York.
16. Survival.
The obligations of the Company under Sections 6 and 10 and
the obligations of the holder under Sections 6(e) - 6(j)
shall in each case survive the exercise, termination or
expiration of this Warrant. The representations and
warranties of the holder and the Company set forth herein
shall survive the execution and delivery of this Warrant.
WITNESS the signature of the duly authorized officer of the
Company.
Dated: May 26, 2000 TENDER LOVING CARE HEALTH
CARE SERVICES, INC.
By: /s/ Dale R. Clift
Name: Dale R. Clift
Title: President
ATTEST:
By: /s/ Renee J. Silver
Name: Renee J. Silver
Title: Secretary
<PAGE>
SUBSCRIPTION FORM
__________________, 200_
TO: TENDER LOVING CARE HEALTH CARE SERVICES, INC.
The undersigned hereby irrevocably elects to exercise the
attached Common Stock Purchase Warrant to the extent of
_______ Shares of Common Stock of Tender Loving Care Health
Care Services, Inc. and hereby makes payment of $_______ in
payment of the purchase price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
(Please typewrite or print in block
letters)
Name:
Address:
Signature:
____________________________________
