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EXHIBIT 1.2
AMEDOR HOMES, INC.
NUTMEG SECURITIES, LTD.
(on behalf of the underwriters of the offering)
UNDERWRITERS' WARRANT AGREEMENT
UNDERWRITERS' WARRANT AGREEMENT dated as of ______ __, 2000 by and among
AMEDORE HOMES, INC. (the "Company") and NUTMEG SECURITIES, LTD. (the
"Representative" or "Nutmeg") (Nutmeg and the other Underwriters for whom Nutmeg
is acting as representative are sometimes referred to herein collectively as the
"Underwriters").
W I T N E S S E T H:
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WHEREAS, the Company proposes to issue to the Underwriters 100,000 warrants
(each an "Underwriters' Warrant") each to purchase a share of the Company's
common stock, par value $0.001 per share (the "Common Stock").
WHEREAS, the Underwriter has agreed, pursuant to the underwriting agreement
(the "Underwriting Agreement") dated ______ __, 2000, by and between the
Underwriter and the Company, to act as the Underwriter in connection with the
Company's proposed public offering (the "Public Offering") of 1,000,000 shares
of Common Stock (the "Offering Securities"); and
WHEREAS, the Underwriters' Warrants to be issued pursuant to this Agreement
will be issued on Closing Date I (as such term is defined in the Underwriting
Agreement) by the Company to the Underwriter in consideration for, and as part
of, the Underwriters' compensation in connection with the Underwriters' acting
as Underwriters pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the
Underwriters to the Company of One hundred dollars ($100.00), 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 Holder (as defined in Section 3 below) is hereby granted the
right to purchase, at any time from ____ __, 2001 until 5:00 p.m., New York
time, ______ __, 2005, up to 100,000 shares of Common Stock, at an initial
purchase price (subject to adjustment as provided in Section 8 hereof) of $____
per share of Common Stock (165% of the per share Public Offering price), subject
to the terms and conditions of this Agreement. The securities issuable upon
exercise of the Underwriters' Warrant are sometimes referred to herein as the
"Underwriters' Securities."
2. Warrant Certificates. The warrant certificate (the "Underwriters'
Warrant Certificate") to be delivered pursuant to this Agreement shall be in the
form set forth in Exhibit A attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations as are
required or permitted by this Agreement.
3. Exercise of Underwriters' Warrant.
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(a) The Underwriters' Warrant is exercisable during the term set forth
in Section 1 hereof payable by certified or cashier's check or money order
in lawful money of the United States. Upon surrender of Underwriters'
Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Purchase Price (as hereinafter
defined) for the Underwriters' Securities (and such other amounts, if any,
arising pursuant to Section 4 hereof) at the Company's principal office
currently located at 3434 Carman Road, Schenectady, New York 12303 the
registered holder of a Underwriters' Warrant Certificate ("Holder" or
"Holders") shall be entitled to receive a certificate or certificates for
the Underwriters' Securities so purchased. The purchase rights represented
by each Underwriters' Warrant Certificate are exercisable at the option of
the Holder or Holders thereof, in whole or in part as to Underwriters'
Securities. The Underwriters' Warrant may be exercised to purchase all or
any part of the Underwriters' Securities represented thereby. In the case
of the purchase of less than all the Underwriters' Securities purchasable
on the exercise of the Underwriters' Warrant represented by a Underwriters'
Warrant Certificate, the Company shall cancel the Underwriters' Warrant
Certificate represented thereby upon the surrender thereof and shall
execute and deliver a new Underwriters' Warrant Certificate of like tenor
for the balance of the Underwriters' Securities purchasable thereunder.
(b) In lieu of the payment of cash upon exercise of the Underwriters'
Warrant as provided in Section 3(a), the Holder may exercise the
Underwriters' Warrant by surrendering the Underwriters' Warrant Certificate
at the principal office of the Company, accompanied by a notice stating (i)
the Holder's intent to effect such exercise by an exchange, (ii) Common
Stock to be issued upon the exchange, (iii) whether Underwriters' Warrants
are to be surrendered in connection with the exchange, and (iv) the date on
which the Holder requests that such exchange is to occur. The Purchase
Price for the Underwriters' Securities to be acquired in the exchange shall
be paid by the surrender, as indicated in the notice, of Underwriters'
Warrants having a "Value", as defined below, equal to the Purchase Price.
"Value" as to each Underwriters' Warrant shall mean the difference between
the "Market Price", as hereinafter defined, of a share of Common Stock and
the then Purchase Price for a share of Common Stock.
By way of example of the application of the formula, assume that the Market
Price of the Common Stock is $8.00, the Purchase Price of the Underwriters'
Warrant is $6.00. On such assumptions, the Value of a Underwriters' Warrant is
$2.00 ($8.00-$6.00) and therefore for each three Underwriters' Warrants
surrendered, the Holder could acquire one share of Common Stock in the exchange.
Notwithstanding the example, the Holder shall not be limited to exchanging
Underwriters' Warrants for Common Stock.
The Warrant Exchange shall take place on the date specified in the notice
or if the date the notice is received by the Company is later than the date
specified in the notice, on the date the notice is received by the Company.
4. Issuance of Certificates. Upon the exercise of the Underwriters' Warrant
and payment of the Purchase Price therefor, the issuance of certificates
representing the Underwriters' Securities or other securities, properties or
rights underlying such Underwriters' Warrant, shall be made forthwith (and in
any event within five (5) business days thereafter) without further charge to
the Holder thereof, and such certificates shall (subject to the provisions of
Sections 5 and 7 hereof)
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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 Underwriters'
Warrant Certificates and the certificates representing the Underwriters'
Securities or other securities, property or rights (if such property or rights
are represented by certificates) shall be executed on behalf of the Company by
the manual or facsimile signature of the then present Chairman or Vice Chairman
of the Board of Directors or President or Vice President of the Company,
attested to by the manual or facsimile signature of the then present Secretary
or Assistant Secretary or Treasurer or Assistant Treasurer of the Company. The
Underwriters' Warrant Certificates shall be dated the date of issuance thereof
by the Company upon initial issuance, transfer or exchange.
5. Restriction on Transfer of Underwriters' Warrant. The Holder of an
Underwriters' Warrant Certificate (and its Permitted Transferees, as defined
below), by its acceptance thereof, covenants and agrees that the Underwriters'
Warrant may be sold, transferred, assigned, hypothecated or otherwise disposed
of, in whole or in part, until ______ __, 2001 (one year following the Effective
Date (as hereinafter defined) of the registration statement relating to the
Public Offering), only to officers and partners of the Underwriters, or any
Public Offering selling group member and their respective officers and partners
("Permitted Transferees"). Thereafter the Underwriters' Warrant may be
transferred, assigned, hypothecated or otherwise disposed of in compliance with
applicable law.
6. Purchase Price.
(a) Initial and Adjusted Purchase Price. Except as otherwise provided in
Section 8 hereof, the initial purchase price of the Underwriters' Securities
shall be $____ per share of Common Stock (165% of the per share Public Offering
price). 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 8 hereof.
(b) Purchase Price. The term "Purchase Price" herein shall mean the initial
purchase price or the adjusted purchase price, depending upon the context.
7. Registration Rights.
(a) Registration Under the Securities Act of 1933 as amended ("Act").
The Underwriters' Warrant has not been registered under the Act. The
Underwriters' Warrant Certificates may bear the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
may not be offered for sale or sold except pursuant to (i) an effective
registration statement under the Act, or (ii) an opinion of counsel, if
such
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opinion and counsel shall be reasonably satisfactory to counsel to the
issuer, that an exemption from registration under the Act is available".
(b) Demand Registration. (1) At any time commencing on the first
anniversary of and expiring on the fifth anniversary of the effective date
of the Company's Registration Statement relating to the Public Offering
(the "Effective Date"), the Holders of a Majority (as hereinafter defined)
in interest of the then outstanding Underwriters' Warrant, or the Majority
in interest of the Underwriters' Securities (assuming the exercise of all
of the Underwriters' Warrant), shall have the right, exercisable by written
notice to the Company, to have the Company prepare and file with the U.S.
Securities and Exchange Commission (the "Commission"), on one (1) occasion,
a registration statement on Form SB-2, S-1 or other appropriate form, and
such other documents, including a prospectus, as may be necessary in the
opinion of both counsel for the Company and counsel for the Holders, in
order to comply with the provisions of the Act so as to permit a public
offering and sale of all of the Underwriters' Securities by such Holders
and any other Holders of the Underwriters' Warrant and/or the Underwriters'
Securities who notify the Company within fifteen (15) business days after
receipt of the notice described in Section 7(b)(2). The Holders of the
Underwriters' Warrant may demand registration prior to exercising the
Underwriters' Warrant, and may pay the Purchase Price for the exercise
thereof from the proceeds of such public offering.
(2) The Company covenants and agrees to give written notice of any
registration request under this Section 7(b) by any Holders to all other
registered Holders of the Underwriters' Warrant and the Underwriters' Securities
within ten (10) calendar days from the date of the receipt of any such
registration request.
(3) Notwithstanding the provisions of Section 7(b)(1), the Company shall
have no such obligation to prepare and file a registration statement if, within
twenty (20) days following the Company's receipt of the notice described in
Section 7(b)(1), if the Company or affiliates of the Company owning collectively
more than five percent (5%) of the outstanding Common Stock agree to purchase
the Underwriters' Warrant and Underwriters' Securities from the Holders
requesting registration pursuant to Section 7(b)(1) at a price equal to the
difference between the Purchase Price then in effect and the current market
price of Common Stock. For purposes of this Section 7(b)(3), the term
"affiliate" shall mean the Company's 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, and "market price" shall mean the average of
the closing asked prices for Common Stock during the ten (10) trading days
preceding the date of the notice described in Section 7(b)(1).
(4) For purposes of this Agreement, the term "Majority" in reference to the
Holders of the Underwriters' Warrant or Underwriters' Securities, shall mean in
excess of fifty percent (50%) of the then outstanding Underwriters' Warrant or
Underwriters' Securities that (i) are not held by the Company, an affiliate,
officer, creditor, employee or agent thereof or any of their respective
affiliates, members of their family, persons acting as nominees or in
conjunction therewith, or (ii) have not been resold to the public pursuant to a
registration statement filed with the Commission under the Act.
(c) Piggyback Registration. (1) If, at any time within the period
commencing
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on the first anniversary and expiring on the fifth anniversary of the
Effective Date, the Company should file a registration statement with the
Commission under the Act (other than in connection with a merger or other
business combination transaction or pursuant to Form S-8), it will give
written notice at least twenty (20) calendar days prior to the filing of
each such registration statement to the Underwriter and to all other
Holders of the Underwriters' Warrant and/or the Underwriters' Securities of
its intention to do so. If the Underwriter or other Holders of the
Underwriters' Warrant and/or the Underwriters' Securities notify the
Company within fifteen (15) calendar days after receipt of any such notice
of its or their desire to include any Underwriters' Warrant or
Underwriters' Securities in such proposed registration statement, the
Company shall afford the Underwriter and such Holders of the Underwriters'
Warrant and/or Underwriters' Securities the opportunity to have any such
Underwriters' Warrant and/or Underwriters' Securities registered under such
registration statement. Notwithstanding the provisions of this Section
7(c)(1) and the provisions of Section 7(d), the Company shall have the
right at any time after it shall have given written notice pursuant to this
Section 7(c)(1) (irrespective of whether a written request for inclusion of
any such securities shall have been made) to elect not to file any such
proposed registration statement, or to withdraw the same after the filing
but prior to the effective date thereof.
(2) If the managing underwriter of an offering to which the above piggyback
rights apply, in good faith and for valid business reasons, objects to such
rights, such objection shall preclude such inclusion.
(d) Covenants of the Company With Respect to Registration. In
connection with any registrations under Sections 7(b) and 7(c) hereof, the
Company covenants and agrees as follows:
(1) The Company shall use its best efforts to file a registration
statement within thirty (30) calendar days of receipt of any demand
therefor pursuant to Section 7(b); provided, however, that the Company
shall not be required to produce audited or unaudited financial
statements for any period prior to the date such financial statements
are required to be filed in a report on Form 10-KSB or Form 10-QSB, as
the case may be. The Company shall use its best efforts to have any
registration statement declared effective at the earliest possible
time, and shall furnish each Holder desiring to sell Underwriters'
Securities such number of prospectuses as shall reasonably be
requested.
(2) The Company shall pay all costs (excluding fees and expenses
of Holders' counsel and any underwriting discounts or selling fees,
expenses or commissions), fees and expenses in connection with any
registration statement filed pursuant to Sections 7(b) and 7(c) hereof
including, without limitation, the Company's legal and accounting
fees, printing expenses, blue sky fees and expenses.
(3) The Company will use its best efforts to qualify or register
the Underwriters' Securities included in a registration statement for
offering and sale under the securities or blue sky laws of such states
as reasonably are requested by the Holders, 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.
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(4) The Company shall indemnify the Holders of the Underwriters'
Warrant and/or the Underwriters' Securities to be sold pursuant to any
registration statement and each person, if any, who controls such
Holders within the meaning of Section 15 of the Act or Section 20(a)
of the Securities Exchange Act of 1934, as amended (the "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, but only to the same extent
and with the same effect as the provisions pursuant to which the
Company has agreed to indemnify the Underwriter contained in Section 8
of the Underwriting Agreement.
(5) The Holders of the Underwriters' Warrant and/or the
Underwriters' Securities to be sold pursuant to a registration
statement, and their successors and assigns, shall 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 to which they may become subject under the Act,
the Exchange Act or otherwise, arising from information furnished by
or on behalf of such Holders, or their 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 Underwriter has
agreed to indemnify the Company.
(6) Nothing contained in this Agreement shall be construed as
requiring the Holders to exercise their Underwriters' Warrant prior to
the initial filing of any registration statement or the effectiveness
thereof.
(7) The Company shall furnish to each Underwriter for the
offering, if any, such documents as such Underwriter may reasonably
require.
(8) The Company shall as soon as practicable after the effective
date of the registration statement, and in any event within 15 months
thereafter, make "generally available to its security holders" (within
the meaning of Rule 158 under the Act) an earnings statement (which
need not be audited) complying with Section 11(a) of the Act and
covering a period of at least 12 consecutive months beginning after
the effective date of the registration statement.
(9) The Company shall deliver promptly to each Holder
participating in the offering requesting the correspondence described
below and any managing Underwriter copies of all correspondence
between the Commission and the Company, its counsel or auditors with
respect to the registration statement and permit each Holder and
Underwriter 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 Association of
Securities Dealers, Inc. ("NASD"). 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 shall reasonably request.
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(10) The Company shall enter into an underwriting agreement with
the managing underwriter selected for such underwriting by Holders
holding a Majority in interest of the then outstanding Underwriters'
Warrant, or the Majority in interest of the Underwriters' Securities
(assuming the exercise of all of the Underwriters' Warrant), requested
to be included in such underwriting, provided, however that any
managing underwriter shall be reasonably acceptable to the Company,
except that in connection with a public offering for which the Holders
have piggyback rights, the Company shall have the sole right to select
the managing underwriter or underwriters. Such underwriting agreement
shall be satisfactory in form and substance to the Company, a Majority
of such Holders (in respect of a registration under Section 7(b)
only), as the case may be, and such managing underwriter, and shall
contain such representations, warranties and covenants by the Company
and such other terms as are customarily contained in agreements of
that type. The Holders shall be parties to any underwriting agreement
relating to an underwritten sale of their Underwriters' Warrant and/or
Underwriters' Securities. Such Holders shall not be required to make
any representations or warranties to or agreements with the Company or
the underwriters except as they may relate to such Holders and their
intended methods of distribution.
8. Adjustments to Purchase Price and Number of Securities.
(a) Computation of Adjusted Purchase Price. Except as hereinafter
provided, in case the Company shall at any time after the date hereof
issue or sell any shares of Common Stock (other than the issuances
referred to in Section 8(g) hereof), including shares held in the
Company's treasury, for a consideration per share less than the
"Market Price" (as defined in Section 8(a)(6) hereof) per share of
Common Stock on the date immediately prior to the issuance or sale of
such shares, or without consideration, then forthwith upon any such
issuance or sale, the Purchase Price of the Common Stock shall (until
another such issuance or sale) be reduced to the price (calculated to
the nearest full cent) determined by dividing (1) the product of (a)
the Purchase Price in effect immediately before such issuance or sale
and (b) the sum of (i) the total number of shares of Common Stock
outstanding immediately prior to such issuance or sale, and (ii) the
number of shares determined by dividing (A) the aggregate
consideration, if any, received by the Company upon such sale or
issuance, by (B) the Market Price, and by (2) the total number of
shares of Common Stock outstanding immediately after such issuance or
sale provided, however, that in no event shall the Purchase Price be
adjusted pursuant to this computation to an amount in excess of the
Purchase Price in effect immediately prior to such computation, except
in the case of a combination of outstanding shares of Common Stock, as
provided by Section 8(c) hereof.
For the purposes of this Section 8, the term "Purchase Price" shall mean
the Purchase Price of the Common Stock forming a part of the Underwriters'
Securities set forth in Section 6 hereof, as adjusted from time to time pursuant
to the provisions of this Section 8.
For the purposes of any computation to be made in accordance with this
Section 8(a), the following provisions shall be applicable:
(1) In case of the issuance or sale of shares of Common Stock (or of other
securities deemed hereunder to involve the issuance or sale of shares of Common
Stock) for a consideration part or all of which shall be cash, the amount of the
cash consideration therefor shall be deemed to be the amount of cash received by
the Company for such shares (or, if shares of Common Stock are
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offered by the Company for subscription, the subscription price, or, if such
securities shall be sold to Underwriters or dealers for public offering without
a subscription offering, the initial public offering price) before deducting
therefrom any compensation paid or discount allowed in the sale, underwriting or
purchase thereof by Underwriters or dealers or others performing similar
services, or any expenses incurred in connection therewith.
(2) In case of the issuance or sale (otherwise than as a dividend or other
distribution on any stock of the Company, and otherwise than on the exercise of
options, rights or warrants or the conversion or exchange of convertible or
exchangeable securities) of shares of Common Stock (or of other securities
deemed hereunder to involve the issuance or sale of shares of Common Stock) for
a consideration part or all of which shall be other than cash, the amount of the
consideration therefor other than cash shall be deemed to be the value of such
consideration as determined in good faith by the Board of Directors of the
Company.
(3) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of stockholders entitled to receive such dividend or other
distribution and shall be deemed to have been issued without consideration.
(4) The reclassification of securities of the Company other than shares of
Common Stock into securities including shares of Common Stock shall be deemed to
involve the issuance of such shares of Common Stock for a consideration other
than cash immediately prior to the close of business on the date fixed for the
determination of security holders entitled to receive such shares, and the value
of the consideration allocable to such shares of Common Stock shall be
determined as provided in Section 8(a)(2).
(5) The number of shares of Common Stock at any one time outstanding shall
include the aggregate number of shares of Common Stock issued or issuable
(subject to readjustment upon the actual issuance thereof) upon the exercise of
options, rights or warrants and upon the conversion or exchange of convertible
or exchangeable securities.
(6) As used herein in the phrase "Market Price" at any date shall be deemed
to be the last reported sale price, or, in the case no such reported sale takes
place on such day, the average of the last reported sales prices for the last
three (3) trading days, in either case as officially reported by the principal
securities exchange on which the Common Stock is listed or admitted to trading,
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, the average closing bid price as furnished by the NASD
through the NASD Automated Quotation System ("NASDAQ") or similar organization
if NASDAQ is no longer reporting such information, or if the Common Stock is not
quoted on NASDAQ, as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to it.
(b) Options, Rights, Warrant and Convertible and Exchangeable
Securities. Except in the case of the Company issuing rights to subscribe
for shares of Common
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Stock distributed to all the stockholders of the Company and Holders
of the Underwriters' Warrant pursuant to Section 8(i) hereof, if the
Company shall at any time after the date hereof issue options, rights or
warrants to purchase shares of Common Stock, or issue any securities
convertible into or exchangeable for shares of Common Stock (other than the
issuances referred to in Section 8(g) hereof), (i) for a consideration per
share less than the Market Price (including the issuance thereof without
consideration such as by way of dividend or other distribution), or (ii)
without consideration, the Purchase Price in effect immediately prior to
the issuance of such options, rights or warrants, or such convertible or
exchangeable securities, as the case may be, shall be reduced to a price
determined by making a computation in accordance with the provisions of
Section 8(a) hereof, provided that:
(1) The aggregate maximum number of shares of Common Stock
issuable or that may become issuable under such options, rights or
warrants (assuming exercise in full even if not then currently
exercisable or currently exercisable in full) shall be deemed to be
issued and outstanding at the time such options, rights or warrants
were issued, and for a consideration equal to the minimum purchase
price per share provided for in such options, rights or warrants at
the time of issuance, plus the consideration (determined in the same
manner as consideration received on the issue or sale of shares in
accordance with the terms of the Underwriters' Warrant), if any,
received by the Company for such options, rights or warrants;
provided, however, that upon the expiration or other termination of
such options, rights or warrants, if any thereof shall not have been
exercised, the number of shares of Common Stock deemed to be issued
and outstanding pursuant to this Section 8(b)(1) (and for the purposes
of Section 8(a)(5) hereof) shall be reduced by such number of shares
as to which options, warrants and/or rights shall have expired or
terminated unexercised, and such number of shares shall no longer be
deemed to be issued and outstanding, and the Purchase Price then in
effect shall forthwith be readjusted and thereafter be the price which
it would have been had adjustment been made on the basis of the
issuance only of shares actually issued or issuable upon the exercise
of those options, rights or warrants as to which the exercise rights
shall not be expired or terminated unexercised.
(2) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or
exchangeable securities (assuming conversion or exchange in full even
if not then currently convertible or exchangeable in full) shall be
deemed to be issued and outstanding at the time of issuance of such
securities, and for a consideration equal to the consideration
(determined in the same manner as consideration received on the issue
or sale of shares of Common Stock in accordance with the terms of the
Underwriters' Warrant) received by the Company for such securities,
plus the minimum consideration, if any, receivable by the Company upon
the conversion or exchange thereof; provided, however, that upon the
expiration or other termination of the right to convert or exchange
such convertible or exchangeable securities (whether by reason or
redemption or otherwise), the number of shares deemed to be issued and
outstanding pursuant to this Section 8(b)(2) (and for the purpose of
Section 8(a)(5) hereof) shall be reduced by such number of shares as
to which the conversion or exchange rights shall have expired or
terminated unexercised, and such number of shares shall no longer be
deemed to be issued and outstanding and the Purchase Price then in
effect shall forthwith be readjusted and thereafter be the price which
it would have been had adjustment been made on the basis of the
issuance only of the shares actually issued or issuable upon the
conversion or exchange of those convertible or exchangeable
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securities as to which the conversion or exchange rights shall
not have expired or terminated unexercised.
(3) If any change shall occur in the price per share provided for
in any of the options, rights or warrants referred to in Section
8(b)(1), or in the price per share at which the securities referred to
in Section 8(b)(2) are convertible or exchangeable, and if a change in
the Purchase Price has not occurred by reason of the event giving rise
to the change in the price per share of such other options, rights,
warrants, or convertible or exchangeable securities, such options,
rights or warrants or conversion or exchange rights, as the case may
be, to the extent not theretofore exercised, they shall be deemed to
have expired or terminated on the date when such price change became
effective in respect of shares not theretofore issued pursuant to the
exercise or conversion or exchange thereof, and the Company shall be
deemed to have issued upon such date new options, rights or warrants
or convertible or exchangeable securities at the new price in respect
of the number of shares issuable upon the exercise of such options,
rights or warrants or the conversion or exchange of such convertible
or exchangeable securities.
(c) Subdivision and Combination. In case the Company shall at any time
issue any shares of Common Stock in connection with a stock dividend in
shares of Common Stock or subdivide or combine the outstanding shares of
Common Stock, the Purchase Price shall forthwith be proportionately
decreased in the case of a stock dividend or a subdivision or increased in
the case of combination.
(d) Adjustment in Number of Securities. Upon each adjustment of the
Purchase Price pursuant to the provisions of this Section 8, the number of
Underwriters' Securities issuable upon the exercise of the Underwriters'
Warrant shall be adjusted to the nearest whole share by multiplying a
number equal to the Purchase Price in effect immediately prior to such
adjustment by the number of Underwriters' Securities issuable upon exercise
of the Underwriters' Warrant immediately prior to such adjustment and
dividing the product so obtained by the adjusted Purchase Price.
(e) Definition of Common Stock. For the purpose of this Agreement, the
term "Common Stock" shall mean the class of stock designated as Common
Stock in the Certificate of Incorporation of the Company as it may be
amended as of the date hereof.
(f) Reclassification, Merger or Consolidation. The Company will not
merge, reorganize or take any other action which would terminate the
Underwriters' Warrant without first making adequate provision for the
Underwriters' Warrant. In case of any reclassification or change of the
outstanding shares of Common Stock issuable upon exercise of the
outstanding Underwriters' Warrant (other than a change in par value to no
par value, or from nor par value to par value, or as a result of a
subdivision or combination), or in case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is
the continuing corporation and which does not result in any
reclassification or change of the 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 in the case of a sale or conveyance to another
corporation or other entity of the property of the
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Company as an entirety or substantially as an entirety, the Holders of
each Underwriters' Warrant then outstanding or to be outstanding shall have
the right thereafter (until the expiration of such Underwriters' Warrant)
to purchase, upon exercise of such Underwriters' Warrant, 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 owner of the shares of Common Stock underlying the
Underwriters' Warrant immediately prior to any such events at a price equal
to the product of (x) the number of shares issuable upon exercise of the
Underwriters' Warrant and (y) the Purchase 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
Underwriters' Warrant. In the event of a consolidation, merger, sale or
conveyance of property, the corporation formed by such consolidation or
merger, or acquiring such property, shall execute and deliver to the
Holders a supplemental Underwriters' Warrant Agreement to such effect. Such
supplemental Underwriters' Warrant Agreement shall provide for adjustments
which shall be identical to the adjustment provided for in this Section 8.
The provisions of this Section 8(f) shall similarly apply to successive
consolidations or mergers.
(g) No Adjustment of Purchase Price in Certain Cases. No adjustment of
the Purchase Price shall be made:
(1) Upon the issuance or sale of (i) the Underwriters' Warrant or
the Underwriters' Securities, (ii) the securities sold pursuant to the
Public Offering (including those sold upon exercise of the
Underwriters' over-allotment option), or (iii) the shares issuable
pursuant to the options, warrants, rights, stock purchase agreements
or convertible or exchangeable securities outstanding or in effect on
the date hereof as described in the prospectus relating to the Public
Offering.
(2) If the amount of said adjustments shall aggregate less than
two ($.02) cents for one (1) share of Common Stock; provided, however,
that in such case any adjustment that would otherwise be required then
to be made shall be carried forward and shall be made at the time of
and together with the next subsequent adjustment which, together with
any adjustment so carried forward, shall aggregate at least two ($.02)
cents for one (1) share of Common Stock. In addition, registered
Holders shall not be entitled to cash dividends paid by the Company
prior to the exercise of any warrant or warrants held by them.
9. Exchange and Replacement of Warrant Certificates. Each Underwriters'
Warrant Certificate is exchangeable without expense, upon the surrender thereof
by the registered Holders at the principal executive office of the Company, for
a new Underwriters' Warrant Certificate of like tenor and date representing in
the aggregate the right to purchase the same number of Underwriters' Securities
in such denominations as shall be designated by the Holders thereof at the time
of such surrender.
10. Loss, Theft etc. of Certificates Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any Underwriters' Warrant Certificate, 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
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surrender and cancellation of the Underwriters' Warrant Certificates, if
mutilated, the Company will make and deliver a new Underwriters' Warrant
Certificate of like tenor, in lieu thereof.
11. Elimination of Fractional Interests. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock upon the
exercise of the Underwriters' Warrant, nor shall it be required to issue scrip
or pay cash in lieu of fractional interests; provided, however, that if a Holder
exercises all Underwriters' Warrant held of record by such Holder the fractional
interests shall be eliminated by rounding any fraction to the nearest whole
number of shares of Common Stock or other securities, properties or rights.
12. Reservation and Listing of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Underwriters' Warrant, such
number of shares of Common Stock or other securities and properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of Underwriters' Warrant and payment of the Purchase Price
therefor, all the shares of Common Stock issuable upon such exercise shall be
duly and validly issued, fully paid, non-assessable and not subject to the
preemptive rights of any stockholder. As long as the Underwriters' Warrant shall
be outstanding, the Company shall use its best efforts to cause the Common Stock
to be listed (subject to official notice of issuance) on all securities
exchanges on which the Common Stock issued to the public in connection herewith
may then be listed or quoted.
13. Notices to Underwriters' Warrant Holders. Nothing contained in this
Agreement shall be construed as conferring upon the 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 Underwriters' Warrant and the full exercise
thereof, 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 all 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; then, in any one or more of said events, the Company shall
give written notice of such event at least fifteen (15) calendar days prior
to the date fixed as a record date or the date of closing the transfer
books for the determination of the stockholders entitled to such dividend,
distribution, convertible or exchangeable securities or
12
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subscription rights, 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 the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
14. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or five days after being mailed by registered or certified mail,
return receipt requested: If to the registered Holders of the Underwriters'
Warrant, to the address of such Holders as shown on the books of the Company; or
(a) If to the Company to 3434 Carman Road, Schenectady, New York 12303
or to such other address as the Company may designate by notice to the
Holders, with a courtesy copy to Silverman, Collura & Chernis, P.C.
15. Supplements and Amendments. The Company and the Underwriter may from
time to time supplement or amend this Agreement without the approval of any
Holders of Underwriters' Warrant Certificates (other than Permitted Transferees)
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 provision in regard to matters or questions arising hereunder
which the Company and the Underwriter may deem necessary or desirable and which
the Company and the Underwriter deem shall not adversely affect the interests of
the Holders of Underwriters' Warrant Certificates.
16. Successors. All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Underwriter, the
Holders and their respective successors and assigns hereunder.
17. Termination. This Agreement shall terminate at the close of business on
______ __, 2005. Notwithstanding the foregoing, the indemnification provisions
of Section 7 shall survive such termination until the close of business on the
expiration of any applicable statue of limitations.
18. Governing Law; Submission to Jurisdiction. This Agreement and each
Underwriters' Warrant Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be construed in accordance with the laws of said state without giving effect to
the rules of said state governing the conflicts of laws.
19. Entire Agreement; Modification. This Agreement (including the
Underwriting Agreement, to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and thereof. This Agreement may not be modified or amended
except by a writing duly signed by the Company and the Holders of a Majority in
interest of the Underwriters' Securities (for this purpose, treating all
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<PAGE>
then outstanding Underwriters' Warrants as if they had been exercised).
20. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
21. Captions. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
22. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Underwriter and any other registered Holders of the Underwriters' Warrant
Certificates or Underwriters' Securities any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company and the Underwriter and any other Holders of
the Underwriters' Warrant Certificates or Underwriters' Securities.
23. 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.
24. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company, the Underwriters and their respective successors and
assigns and the Holders from time to time of the Underwriters' Warrant
Certificates or any of them.
[Signature on following page]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
AMEDORE HOMES, INC.
By:
-------------------------------------
Name: George A. Amedore
NUTMEG SECURITIES, LTD.
By:
--------------------------------------
Name: Daniel T. Guifoile
Title: Director, Investment Banking
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Schedule A
to
Underwriters' Warrant Agreement
Between
AMEDORE HOMES, INC.
AND
NUTMEG SECURITIES, LTD.
Underwriter
Nutmeg Securities, Ltd.
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<PAGE>
AMEDORE HOMES, INC.
WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT"), AND MAY NOT BE OFFERED FOR SALE OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR
(ii) AN OPINION OF COUNSEL, IF SUCH OPINION AND COUNSEL SHALL BE REASONABLY
SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER
THE 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 COMMENCING ______ __ 2001 THROUGH
5:00 P.M., NEW YORK TIME ON ______ __, 2005
Warrant covering 100,000 shares of
Common Stock
No. UW-1
This Warrant Certificate certifies that Nutmeg Securities, Ltd. or
registered assigns, is the registered holder of this Warrant to purchase
initially, at any time from ______ __, 2001, until 5:00 p.m., New York time on
______ __, 2005 (the "Expiration Date"), up to 100,000 shares of Common Stock,
$0.001 par value (the "Common Stock") of Amedore Homes, Inc. ("Company") at a
purchase price of $____ per share (165% of the per share public offering price)
(the "Purchase Price"), upon the surrender of this Warrant Certificate and
payment of the applicable Purchase Price at an office or agency of the Company,
but subject to the conditions set forth herein and in the Underwriters' Warrant
Agreement, dated as of ______ __, 2000, between the Company and Nutmeg
Securities, Ltd. (the "Warrant Agreement"). Payment of the Purchase Price shall
be made by certified or cashier's check or money order payable to the order of
the Company.
No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate is part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement between
the Company and the Underwriter, which Warrant Agreement is hereby incorporated
by reference in and made a part of this instrument and is hereby referred to for
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 Warrant.
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<PAGE>
The Warrant Agreement provides that upon the occurrence of certain events
the Purchase Price and the type and/or number of the Company's securities
issuable upon the exercise of this Warrant, 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 Purchase Price
and the number and/or type of securities issuable upon the exercise of the
Warrant; 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 Warrant shall be issued to the transferee(s) in exchange as provided herein,
without any charge except for any tax or other governmental charge imposed in
connection with such transfer.
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.
IN WITNESS WHEREOF, the undersigned has executed this certificate this ___
day of ______, 2000.
AMEDORE HOMES, INC.
By:
--------------------------------------
George A. Amedore
President
ATTEST:
By:
------------------------------
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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 AMEDORE
HOMES, INC. with full power of substitution.
Dated:_________________________
Signature________________________________
(Signature must conform in all respects to the name of holder as specified
on the face of the Warrant Certificate.)
[Signature guarantee] ________________________________
(Insert Social Security or Other
Identifying Number of Holders)
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<PAGE>
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase ______ shares of Common Stock and herewith
tenders in payment for such securities a certified or cashier's check or money
order payable to the order of Amedore Homes, Inc. in the amount of $______, all
in accordance with the terms hereof. The undersigned requests that certificates
for such securities be registered in the name of ___________________________
whose address is _____________________ and that such certificates be delivered
to __________________ whose address is
____________________________________________________________.
Dated:__________________________
Signature_______________________
(Signature must conform in all respects to the name of holder as specified on
the face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holders)
[Signature guarantee]
20
