SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER
THE SECURITIES EXCHANGE ACT OF 1934
AMERICAN COUNTRY HOLDINGS INC.
------------------------------
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
------------------------------
(Title of class of securities)
025278 20 1
(CUSIP Number)
American Country Holdings Inc.
222 North LaSalle Street, Suite 1600
Chicago, Illinois 60601-1105
------------------------------
(Name, Address, and Telephone Number of person
authorized to receive notices and communications)
December 29, 2000
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D/A, and is filing this schedule because of Rule 13d-1 (b)(3) or
(4), check the following box: [__].
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 (the "Exchange Act") or otherwise
subject to the liabilities of that section of the Exchange Act but
shall be subject to all other provisions of the Exchange Act (however,
see the Notes).
1. Name of Reporting Person / I.R.S. Identification No. of Above
Person (Entities Only)
John Dore, S.S. ####-##-####
CUSIP No. 025278 22 01 13D Page 2
2. Check the appropriate box if a member of a group: (a) [ ]
(b) [ ]
3. SEC Use Only
4. Source of Funds: PF
5. Check box if disclosure of legal proceedings is required pursuant
to Item 2(d) or 2(e): [ ]
6. Citizenship or Place of Organization:
United States of America
Number of Shares Beneficially Owned By Each Reporting Person
With:
7. Sole Voting Power: 458,879 (1)
8. Shared Voting Power: 0
9. Sole Dispositive Power: 458,879 (1)
10. Shared Dispositive Power: 0
11. Aggregate Amount Beneficially Owned By Each Reporting Person:
458,879 (1)
12. Check box if the aggregate amount in Row (11) excludes certain
shares: [_]
13. Percent of Class represented by amount in Row (11):
5.4%
14. Type of Reporting Person: IN
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(1) Amount includes 142,857 shares which may be acquired by
exercising the warrants described herein.
CUSIP No. 025278 22 01 13D Page 3
Item 1. Security and Issuer.
The securities to which this Schedule 13D relates are the
shares of Common Stock, $.01 par value per share (the "Common Stock"),
of American Country Holdings Inc., a corporation organized under the
laws of Delaware (the "Issuer"). The address of the Issuer's
principal place of business is 222 North LaSalle Street, Suite 1600,
Chicago, Illinois 60601-1105.
This Amendment No. 2 to Schedule 13D is being filed to give
notice of the purchase of 142,857 Units by the Reporting Person with
each Unit consisting of one share of common stock of the Company and
one five-year common stock purchase Warrant. The purchase price of
each Unit was $1.75 and the warrant exercise price is $1.925, subject
to adjustment. The Issuer sold 814,286 Units and 405,000 shares of
newly-created Series A convertible preferred stock, par value $.10 at
a stated value of $10 per share in an offering exempt from
registration under Regulation D of the Securities Act of 1933, as
amended.
Item 2. Identity and Background.
The person signing his statement (the "Reporting Person")is:
John Dore
286 Sheridan Road
Winnetka, IL 60093
Occupation: Co-Chairman, Chief Executive Officer and
Director of the Issuer
Citizenship: United States
The Reporting Person has not been convicted in a criminal
proceeding (excluding traffic violations and similar misdemeanors),
and has not been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which
proceeding the Reporting Person was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Reporting Person obtained funds from personal funds of
the Reporting Person to pay for the Units.
Item 4. Purpose of Transaction
The Reporting Person does not have any plans or proposals
which relate to or would result in any of the actions or transactions
specified in clauses (a) through (j) of Item 4 of Schedule 13D. The
Issuer is obligated to register the common stock, the warrants and the
CUSIP No. 025278 22 01 13D Page 4
common stock underlying the warrants that comprise the Unit and the
Reporting Person, upon effective registration of such securities, will
be able to freely trade such securities.
Item 5. Interest and Securities of Issuer.
(a) The aggregate shares of Common Stock and the percentage
of the total outstanding shares of Common Stock beneficially owned by
the Reporting Person, based on the 11,816,204 shares of Common Stock
outstanding on December 29, 2000, are set forth below:
No. of Shares Percentage of
Beneficially Owned Outstanding Shares
------------------ ------------------
458,879 (1) 5.4%
------------------
(1) Includes the unregistered 142,857 shares of common stock and
142,857 warrants purchased in the transaction described in Item 1
on an as-converted basis.
(b) The Reporting Person has sole power to vote or direct
the vote and sole power to dispose of or direct the disposition of the
shares of Common Stock beneficially owned by him; and the Reporting
Person will have sole power to vote or direct the vote and sole power
to dispose of or direct the disposition of the shares of Common Stock
issuable upon warrants owned by him.
(c) The following transactions were effected with respect
to shares of Common Stock beneficially owned by the Reporting Person
in the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to the Securities of the Issuer
Warrants
The terms of the warrants are set forth in a warrant agreement
dated as of December 29, 2000 between the Company and our transfer
agent.
Each warrant entitles the holder to purchase 1.0 share of common
stock, at an exercise price of $1.925 per share, subject to the
adjustments in certain cases described below. The warrants expire on
December 29, 2005.
CUSIP No. 025278 22 01 13D Page 5
Adjustments to Exercise Price
The exercise price and the number of shares of common stock
issuable upon exercise of the warrants are subject to adjustment from
time to time upon the occurrence of any of the following events:
* If, at any time, we (A) pay a dividend or make a
distribution with respect to its common stock in any shares
of any class or series of our capital stock or other
securities, (B) subdivide or combine our outstanding shares
of common stock into a greater or smaller number of shares,
as applicable, or (C) issue any shares of our capital stock
in a reclassification of our shares of common stock;
* If, at any time, we (A) reclassify or change any shares of
common stock issuable upon exercise of the warrants, (B)
consolidate or merge with another corporation, (C) sell or
convey all or substantially all of our assets followed by a
distribution to holders of our common stock;
* If, at any time we issue, sell, grant or distribute any
warrants, options or rights entitling the holders thereof to
acquire shares of common stock at a price per share of
common stock that is below the current market value per
share of the common stock, determined as of the record date
for the issuance of the convertible securities; or
* If, at any time we issue or sell any shares of common stock
at a price per share of common stock that is lower than the
current market value per share of the common stock on the
date for the issuance.
No adjustment to the exercise price and the number of shares of
common stock issuable upon exercise of the warrants will be made due
to the following events:
* the issuance of shares pursuant to any warrants outstanding
as of the date the warrants were issued;
* the issuance of shares pursuant to any bona-fide equity
compensation plan, including any stock option plan and
employee stock purchase plan;
* shares issued upon exercise of the warrants registered
hereby;
* the issuance of shares pursuant to the conversion of the
Series A convertible preferred stock; and
* shares issued as consideration when any corporation is
acquired, merged or becomes part of the Company.
CUSIP No. 025278 22 01 13D Page 6
If, at any time after any adjustment is made, the exercise price shall
change or any options or convertible securities shall have expired
unexercised then the exercise price of the warrants or the number of
shares of common stock issuable upon exercise of the warrant will be
adjusted based on such change or expiration.
Exercise
The warrants are exercisable at any time on or after the date
that they were issued until the date of expiration, December 29, 2005.
The warrants may be exercised by surrendering to the warrant
agent the warrant certificate, evidencing the warrants to be
exercised, with the accompanying subscription form duly filled in and
signed, together with payment of the exercise price.
The exercise price may be paid by cash, certified check, bank
draft, posted or express money order or by wire transfer to an account
designated by us for such purpose.
Upon the exercise of any warrants in accordance with the warrant
agreement, we will transfer promptly to or upon the written order of
the holder of such warrant certificate appropriate evidence of
ownership of warrant shares or other securities or property to which
it is entitled, registered or otherwise, to the person entitled to
receive the same. All warrant shares or other securities issuable by
us upon the exercise of the warrants will be validly issued, fully
paid and nonassessable.
Reservation of Shares
We have authorized and will reserve and keep available such
number of shares of our common stock as will be issuable upon the
exercise of all outstanding warrants. Such shares of our common
stock, when paid for and issued, will be duly and validly issued,
fully paid and non-assessable, free of preemptive rights and free from
all taxes, liens, charges and security interests created by or imposed
upon the Company.
Amendment
Any provision of the warrant agreement may be amended only with
our consent and that of the majority of the number of the then
outstanding unexercised warrants affected. However, no modification,
amendment or supplement may be made to the warrant agreement without
the consent of each holder of the then outstanding warrants affected
thereby if such modification, amendment or supplement adversely
affects the exercise price, the expiration date, the antidilution
adjustments or otherwise materially adversely affects the rights of
the holders of the warrants. We and the warrant agent may cure any
ambiguity or correct or supplement the warrant agreement without the
CUSIP No. 025278 22 01 13D Page 7
approval of the holders of the warrants so long as the interests of
the holders of the warrants are not materially adversely affected.
Voting
The holder of the warrants will have no right to vote on matters
submitted to our shareholders and will have no right to receive
dividends and will not be deemed a holder of common stock.
Listing
We will take all action which may be necessary to cause the
shares of common stock underlying the warrants to be duly listed on
the Nasdaq Small Cap Market or any other securities exchange on which
our shares of common stock are listed.
Fractional Shares
We will not issue any fractional shares of common stock issuable
upon exercise of the warrants but rather pay the holder of the warrant
an amount in cash equal to the fraction multiplied by the then current
market price per share of our common stock.
This description is qualified in its entirety by the Common Stock
Warrant Agreement dated as of December 29, 2000 between American
Country Holdings Inc. and American Stock Transfer and Trust Company.
Item 7. Materials to be Filed as Exhibits.
Common Stock Warrant Agreement dated as of December 29, 2000
between American Country Holdings Inc. and American Stock Transfer and
Trust Company.
CUSIP No. 025278 22 01 13D Page 8
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
Date: January 8, 2001
By: /s/ John Dore
-----------------------------------
John Dore
EXHIBIT _
---------
AMERICAN COUNTRY HOLDINGS INC.
COMMON STOCK WARRANT AGREEMENT
COMMON STOCK WARRANT AGREEMENT dated as of December 29,
2000, between American Country Holdings Inc., a Delaware corporation
(hereinafter called the "Company"), and American Stock Transfer and
Trust Company, having a corporate trust office in New York, New York,
as warrant agent (hereinafter called the "Warrant Agent").
WITNESSETH THAT:
WHEREAS, the Company proposes to issue five year common
stock purchase warrants (the "Warrants") entitling the holders thereof
to purchase an aggregate of 814,286 shares of common stock of the
Company, par value $.01 per share, (the "Common Stock" or the
"Shares") at an initial cash purchase price of $1.925 per Share,
subject to adjustment, at any time prior to 3:30 p.m., New York City
time, on December 29, 2005 (hereinafter called the "expiration date")
(unless extended as provided in Section 9 hereof); and
WHEREAS, the Warrants will be offered in Units, each of
which consists of one share of Common Stock and one five year common
stock purchase Warrant to purchase one share of Common Stock at
$1.925; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, registration, transfer, exchange and
exercise of Warrants to be issued from time to time by the Company,
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto agree as
follows:
Section 1. APPOINTMENT OF WARRANT AGENT. The Company
hereby appoints the Warrant Agent to act as agent for the Company in
accordance with the instructions hereinafter in this Agreement set
forth, and the Warrant Agent hereby accepts such appointment.
Section 2. FORM OF WARRANT.
A. The text of the Warrants and the form of election to
purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant
shall, subject to the terms of this Warrant Agreement, entitle the
registered holder thereof to initially purchase the number of Shares
specified therein at an initial exercise price of $1.925 per Share;
provided, however, that the warrant exercise price and the number of
Shares issuable upon exercise of Warrants are subject to adjustment
upon the occurrence of certain events, all as hereinafter provided.
The Warrants shall be executed on behalf of the Company by the manual
or facsimile signature of the present or any future Chairman of the
Board, President or Vice President of the Company, under its seal,
affixed or in facsimile, and by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the
Company.
B. The Company shall promptly notify the Warrant Agent from
time to time in writing of the number of Warrants to be issued and
furnish written instructions in connection therewith signed by an
executive officer of the Company; such notification and instructions
may, but need not be, in the form of a general or continuing
authorization to the Warrant Agent.
C. The Warrants shall be dated by the Warrant Agent as of the
date of each initial issuance, and as of the date of issuance thereof
upon any transfer or exchange thereof.
Section 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant
Agent shall maintain books for the transfer and registration of the
Warrants. Upon the initial issuance of the Warrants, the Warrant
Agent shall issue and register the Warrants in the names of the
respective registered holders thereof. The Warrants shall be
countersigned by the Warrant Agent (or by any successor to the Warrant
Agent then acting as warrant agent under this Agreement) and shall not
be valid for any purpose unless so countersigned. Such Warrants may
be so countersigned, however, by the Warrant Agent (or by its
successor as warrant agent) and be delivered by the Warrant Agent,
notwithstanding that the persons whose manual or facsimile signatures
appear thereon as proper officers of the Company shall have ceased to
be such officers at the time of such countersignature or delivery.
Upon issuance of any Warrant, the Company will present the same, or
cause the same to be presented, to the Warrant Agent for
countersignature of such Warrant.
Section 4. TRANSFERS AND EXCHANGES. The Warrant Agent
shall transfer, from time to time, any outstanding Warrants upon the
books to be maintained by the Warrant Agent for that purpose, upon the
surrender thereof for transfer properly endorsed or accompanied by
appropriate instructions for transfer. Upon any such transfer, a new
Warrant of like tenor shall be issued to the transferee and the
surrendered Warrant shall be cancelled by the Warrant Agent. All such
Warrants so cancelled shall be delivered by the Warrant Agent to the
Company from time to time. The Warrants may be exchanged at the
option of the holder thereof, when surrendered at the office in New
York City of the Warrant Agent, for another Warrant, or other Warrants
of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of Shares. The Warrant
Agent is hereby irrevocably authorized to countersign and deliver, in
accordance with the provisions of this Section and Section 3 of this
Agreement, such new Warrants required pursuant to the provisions of
this Section, and the Company, whenever required by the Warrant Agent,
2
will supply the Warrant Agent with Warrants duly executed on behalf of
the Company for such purpose.
Section 5. EXERCISE OF WARRANTS. The registered holder of
each Warrant shall have the right, which may be exercised as in such
Warrant expressed, to purchase from the Company (and the Company shall
issue and sell to such registered holder) the number of Shares
specified in such Warrants, upon surrender to the Company, at the
office in New York, New York of the Warrant Agent of such Warrant,
with the form of election to purchase on the reverse thereof duly
filled in and signed, and upon payment to the Warrant Agent for the
account of the Company of the warrant exercise price, determined in
accordance with the provisions of Section 9 of this Agreement, for the
number of Shares in respect of which such Warrant is then exercised.
Payment of such warrant exercise price may be made in cash, or by
certified check or bank draft or postal or express money order,
payable in United States dollars, to the order of the Warrant Agent.
No adjustment shall be made for any dividends on any Shares issuable
upon exercise of any Warrant. Subject to Section 6, upon such
surrender of Warrants, and payment of the warrant exercise price as
aforesaid, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the registered
holder of such Warrants, and in such name or names as such registered
holder may designate, a certificate or certificates for the number of
full Shares so purchased upon the exercise of such Warrants, together
with cash, as provided in Section 9 of this Agreement, in respect of
any fraction of a Share otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been issued and
any person so designated to be named therein shall be deemed to have
become a holder of record of such Shares as of the date of the
surrender of such Warrants and payment of the warrant exercise price
as aforesaid; provided, however, that if, at the date of surrender of
such Warrants and payment of such warrant exercise price, the transfer
books for the Shares purchasable upon the exercise of such Warrants
shall be closed, no such surrender of such Warrants and no such
payment of such warrant exercise price shall be effective to
constitute the person so designated to be named therein as the holder
of record of such Shares on such date, but shall be effective to
constitute such person as the holder of record of such Shares for all
purposes at the opening of business on the next succeeding day on
which the transfer books for the Shares purchasable upon the exercise
of such Warrants shall be opened, and the certificates for the Shares
in respect of which such Warrants are then exercised shall be issuable
as of the date on which such books shall next be opened, and until
such date the Company shall be under no duty to deliver any
certificate for such Shares. The rights of purchase represented by
the Warrants shall be exercisable, at the election of the registered
holders thereof, either as an entirety or from time to time for part
only of the Shares specified therein and, in the event that any
Warrant is exercised in respect of less than all of the Shares
specified therein at any time prior to the date of expiration of the
Warrants, a new Warrant or Warrants of like tenor will be issued for
3
the remaining number of Shares specified in the Warrant so
surrendered, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrants pursuant to the
provisions of this Section and of Section 3 of this Agreement, and the
Company, whenever required by the Warrant Agent, will supply the
Warrant Agent with Warrants duly executed on behalf of the Company for
such purpose.
Section 6. PAYMENT OF TAXES. The Company will pay any
documentary stamp taxes attributable to the initial issuance of Shares
issuable upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issue or delivery
of any certificates for Shares in a name other than that of the
registered holder of Warrants in respect of which such Shares are
issued and the Company shall not be required to issue and deliver the
certificates for such Shares unless and until the holder has paid to
the Company the amount of any tax which may be payable in respect of
any transfer involved in such issuance or shall establish to the
satisfaction of the Company that such tax has been paid.
Section 7. MUTILATED OR MISSING WARRANTS. In case any of
the Warrants shall be mutilated, lost, stolen or destroyed, the
Company will issue and the Warrant Agent will countersign and deliver
in exchange and substitution for and upon cancellation of the
mutilated Warrant, or in lieu of and substitution for the Warrant
lost, stolen or destroyed, a new Warrant of like tenor and
representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such
loss, theft or destruction of such Warrants and indemnity, if
requested, also satisfactory to them. Applicants for such substitute
Warrants shall also comply with such other reasonable regulations and
pay such other reasonable charges as the Company or the Warrant Agent
may prescribe. Any such new Warrant shall constitute an original
contractual obligation of the Company whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
Section 8. RESERVATION OF SHARES, ETC. Prior to the
issuance of any Warrants there shall have been reserved, and the
Company shall at all times through the expiration date keep reserved,
out of its authorized and unissued Common Stock, a number of Shares
sufficient to provide for the exercise of the rights of purchase
represented by the Warrants, and the Transfer Agent for the Shares and
every subsequent Transfer Agent for the Shares issuable upon the
exercise of any of the rights of purchase aforesaid are hereby
irrevocably authorized and directed at all times to reserve such
number of authorized and unissued Shares as shall be requisite for
such purpose. The Company will keep a copy of this Agreement on file
with the Transfer Agent for the Shares and with every subsequent
Transfer Agent for the Shares issuable upon the exercise of the rights
of purchase represented by the Warrants. The Warrant Agent is hereby
4
irrevocably authorized to requisition from time to time from such
Transfer Agent certificates required to honor outstanding Warrants
that have been exercised. The Company will supply such Transfer Agent
with duly executed certificates for such purpose and will itself
provide or otherwise make available any cash which may be issuable as
provided in Section 9 of this Agreement. All Warrants surrendered in
the exercise of the rights thereby evidenced or surrendered for
transfer, exchange or partial exercise shall be cancelled by the
Warrant Agent and shall thereafter be delivered to the Company.
Section 9. AJUSTMENT OF UNDERLYING SHARE PURCHASE PRICE AND
NUMBER OF UNDERLYING SHARES. The number of Shares that are the
subject of the Warrants (the "Underlying Shares") purchasable upon the
exercise of the Warrants and the payment of the Underlying Share
purchase price which shall mean $1.925 ("Underlying Share Purchase
Price") shall be subject to adjustment from time to time as follows:
(a) Stock Splits, Combinations, etc. In case the Company
shall hereafter, but prior to 5:00 p.m. (New York City time) on the
Underlying Share Expiration Date: (i) pay a dividend or make a
distribution on its Common Stock in shares of its capital stock
(whether such distribution consists of shares of Common Stock or of
capital stock of any other class); (ii) subdivide its outstanding
shares of Common Stock; (iii) combine its outstanding shares of Common
Stock into a smaller number of shares; or (iv) issue by
reclassification of its shares of Common Stock any shares of capital
stock of the Company, the Underlying Share Purchase Price in effect
and the number of Underlying Shares issuable upon exercise of the
Warrants immediately prior to such action shall be adjusted so that
the Warrant Holder shall be entitled to receive that number of shares
of capital stock of the Company at the same aggregate Underlying Share
Purchase Price that the Warrant Holder would have owned immediately
following such action had the Warrants been exercised immediately
prior thereto. An adjustment made pursuant to this paragraph shall
become effective on the day which is immediately after the record
date in the case of a dividend and shall become effective on the day
which is immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an
adjustment made pursuant to this paragraph, the Warrant Holder shall
become entitled to receive shares of two or more classes of capital
stock of the Company, the Board of Directors of the Company (whose
determination shall be conclusive) shall determine the allocation of
the adjusted Underlying Share Purchase Price between or among shares
of such classes of capital stock.
(b) Reclassification, Combination, Mergers, etc. In case
of any reclassification or change of outstanding shares of Common
Stock issuable upon exercise of the Warrants (other than as set forth
in paragraph (a) above and other than a change in par value, or from
par value to no par value, or from no par value to par value or as a
result of a subdivision or combination), or in case of any
consolidation or merger of the Company with or into another
5
corporation or entity (other than a merger in which the Company is the
continuing corporation and which does not result in any
reclassification or change of the then outstanding shares of Common
Stock or other capital stock issuable upon exercise of the Warrants),
or in the case of any sale or conveyance of all or substantially all
of the assets of the Company followed by a related distribution to
holders of shares of Common Stock or cash, securities or other
property, then as a condition of such reclassification, change,
consolidation, merger, or sale of assets, the Company or such
successor corporation or entity, as the case may be, shall forthwith
make lawful and adequate provision whereby the Warrant Holder shall
have the right thereafter to receive on exercise of the Warrants
(provided such exercise occurs prior to 5:00 p.m. (New York City time)
on the Underlying Share Expiration Date) the kind and amount of shares
of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, or sale of assets, by
a holder of shares of Common Stock immediately prior to such
reclassification, change, consolidation, merger, or sale of assets,
and the Company or such successor corporation or entity shall enter
into a supplemental warrant agreement with the Warrant Holder so
providing. Such provisions shall include provision for adjustments
that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4. If the issuer of
securities deliverable upon exercise of the Warrants under the
supplemental warrant agreement is an affiliate of the formed or
surviving corporation or other entity, that issuer shall join in the
supplemental warrant agreement.
(c) Issuance of Options or Convertible Securities. In the
event the Company shall, at any time or from time to time after the
date hereof, but prior to 5:00 p.m. (New York City time) on the
Underlying Share Expiration Date, issue, sell, distribute or otherwise
grant in any manner (including by assumption) any rights to subscribe
for or to purchase, or any warrants or options for the purchase of,
Common Stock or any stock or securities convertible into or
exchangeable for Common Stock (any such rights, warrants or options
being herein called "Options" and any such convertible or exchangeable
stock or securities being herein called "Convertible Securities"),
whether or not such Options or rights to convert or exchange such
Convertible Securities are immediately exercisable, and the price per
share at which Common Stock is issuable upon the exercise of such
Options or upon the conversion or exchange ofsuch Convertible
Securities (determined by dividing (1) the aggregate amount, if any,
received or receivable by the Company as consideration for the
issuance, sale, distribution or granting of such Options or such
Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
exercise of all such Options or upon conversion or exchange of all
such Convertible Securities, plus, in the case of Options to acquire
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the conversion or exchange of all
such Convertible Securities, by (2) the total maximum number of shares
6
of Common Stock issuable upon the exercise of all such Options or upon
the conversion or exchange of all such Convertible Securities or upon
the conversion or exchange of all Convertible Securities issuable upon
the exercise of all such Options) shall be less than the current
market price per share of the Common Stock on the record date that the
Company becomes obligated to make such issuance, sale, distribution or
granting of such Options or Convertible Securities (any such event
being herein called an "Option Issuance"), then, effective upon such
Option Issuance:
(1) the Underlying Share Purchase Price shall be
reduced to the price (calculated to the nearest one tenth of one cent
($0.001)) determined by multiplying the Underlying Share Purchase
Price in effect immediately prior to such Option Issuance by a
fraction, the numerator of which shall be the sum of (X) the number of
shares of Common Stock outstanding (exclusive of any treasury shares)
immediately prior to such Option Issuance multiplied by the current
market price per share of Common Stock on the date of such Option
Issuance, plus (Y) the consideration, if any, received by the Company
upon such Option Issuance, and the denominator of which shall be the
product of (A) the total number of shares of Common Stock outstanding
(exclusive of any treasury shares) immediately after such Option
Issuance, multiplied by (B) the current market price per share of
Common Stock on the record date for such Option Issuance; and
(2) the number of Underlying Shares purchasable upon the
exercise of the Warrants shall be increased to a number determined by
multiplying the number of Underlying Shares so purchasable immediately
prior to the record date for such Option Issuance by a fraction, the
numerator of which shall be the Underlying Share Purchase Price in
effect immediately prior to the adjustment required by clause (i) of
this Section 4(c) and the denominator of which shall be the Underlying
Share Purchase Price in effect immediately after such adjustment.
For purposes of the foregoing, the total maximum number of
shares ofCommon Stock issuable upon exercise of all such Options or
upon conversion or exchange of all such Convertible Securities or upon
the conversion or exchange of the total maximum amount of the
Convertible Securities issuable upon the exercise of all such Options
shall be deemed to have been issued as of the date of such Option
Issuance and thereafter shall be deemed to be outstanding and the
Company shall be deemed to have received as consideration therefor
such price per share, determined as provided above. Except as
provided in paragraphs (j) and (k) below, no additional adjustment of
the Underlying Share Purchase Price shall be made upon the actual
exercise of such Options or upon conversion or exchange of the
Convertible Securities or upon the conversion or exchange of the
Convertible Securities issuable upon the exercise of such Options.
(d) Sale of Common Stock Below its Current Market Price.
In the event the Company shall, at any time or from time to time after
the date hereof, issue or sell any shares of Common Stock and the
7
price per share at which such shares were issued or sold shall be less
than the current market price per share of the Common Stock on the
date the Company becomes obligated to make such issuance or sale,
then, effective upon such issuance or sale:
(1) the Underlying Share Purchase Price shall be
reduced to the price (calculated to the nearest one tenth of one cent
($0.001)) determined by multiplying the Underlying Share Purchase
Price in effect immediately prior to such issuance or sale by a
fraction, the numerator of which shall be the sum of (A) the number of
shares of Common Stock outstanding (exclusive of any treasury shares)
immediately prior to such issuance or sale multiplied by the current
market price per share of Common Stock on the date of such issuance or
sale, plus (B) the consideration received by the Company upon such
issuance or sale, and the denominator of which shall be the product of
(X) the total number of shares of Common Stock outstanding (exclusive
of any treasury shares) immediately after such issuance or sale,
multiplied by (Y) the current market price per share of Common Stock
on the date of such issuance or sale; and
(2) the number of Underlying Shares purchasable upon
the exercise of the Warrants shall be increased to a number determined
by multiplying the number of Underlying Shares so purchasable
immediately prior to the date of such issuance or sale by a fraction,
the numerator of which shall be the Underlying Share Purchase Price in
effect immediately prior to the adjustment required by clause (i) of
this sentence and the denominator of which shall be the Underlying
Share Purchase Price in effect immediately after such adjustment.
(e) Current Market Price. For the purpose of any
computation of current market price under this Agreement, the current
market price per share of the Common Stock at any date shall be the
closing price on the Business Day immediately prior to the the date in
question. The closing price for any day shall be the last reported
sale price or, in case no such reported sale takes place on such day,
the average of the closing bid and asked prices for such day, in each
case in the over-the-counter market as included for quotation on
Nasdaq or any comparable system or if the Common Stock is not included
for quotation on Nasdaq or a comparable system, as furnished by two
members of the National Association of Securities Dealers, Inc.
selected from time to time in good faith by the Board of Directors of
the Company for that purpose. In the absence of all of the foregoing,
or if for any reason the current market price per share cannot be
determined pursuant to the foregoing provisions of this paragraph, the
current market price per share shall be the fair market value thereof
as determined in good faith by the Board of Directors of the Company.
(f) Consideration Received. If any shares of Common Stock,
Options or Convertible Securities shall be issued, sold or distributed
for consideration other than cash, the amount of the consideration
other than cash received by the Company in respect thereof shall be
deemed to be the then fair market value of such consideration (as
8
determined in good faith by the Board of Directors of the Company).
If any Options shall be issued in connection with the issuance and
sale of other securities of the Company, together comprising one
transaction in which no specific consideration is allocated to such
Options by the parties thereto, such Options shall be deemed to have
been issued without consideration. If the Company shall pay a
dividend or make any other distribution payable in Options or
Convertible Securities, then such Options or Convertible Securities
shall be deemed to have been issued or sold without consideration.
(g) Deferral of Certain Adjustments. No adjustment to the
Underlying Share Purchase Price (including the related adjustment to
the number of Underlying Shares) shall be required hereunder unless
such adjustment, together with other adjustments carried forward as
provided below, would result in an increase or decrease of at least
one percent (1%) of the Underlying Share Purchase Price. No
adjustment need be made for a change in the par value of the Common
Stock. All calculations under this Section 4 shall be made to the
nearest one tenth of one cent ($0.001) or to the nearest whole share,
as the case may be.
(h) Changes in Options and Convertible Securities. If the
exercise price provided for in any Options referred to in paragraph
(c) above, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
paragraph (c) above, or the rate at which any Convertible Securities
referred to in paragraph (c) above are convertible into or
exchangeable for Common Stock shall change at any time (other than
under or by reason of provisions designed to protect against dilution
upon an event which results in a related adjustment pursuant to this
Section), the Underlying Share Purchase Price then in effect and the
number of Underlying Shares purchasable upon the exercise of the
Warrants shall forthwith be readjusted (effective only with respect to
any exercise of the Warrants after such readjustment) to the
Underlying Share Purchase Price and number of Underlying Shares so
purchasable that would then be in effect had the adjustment made upon
the issuance, sale, distribution or granting of such Options or
Convertible Securities been made based upon such changed purchase
price, additional consideration or conversion rate, as the case may
be, but only with respect to such Options and Convertible Securities
as then remain outstanding.
(i) Expiration of Options and Convertible Securities. If,
at any time after any adjustment to the number of Underlying Shares
purchasable upon the exercise of the Warrants shall have been made
pursuant to paragraph (c) or (h) above or this paragraph, any Options
or Convertible Securities shall have expired unexercised, the number
of Underlying Shares so purchasable with respect to any then
outstanding Warrants shall, upon such expiration, be readjusted and
shall thereafter be such as they would have been had the Warrants
outstanding at the time of the original adjustment been adjusted (or
had the original adjustment not been required, as the case may be) as
9
if (i) the only shares of Common Stock deemed to have been issued in
connection with such Options or Convertible Securities were the shares
of Common Stock, if any, actually issued or sold upon the exercise of
such Options or Convertible Securities and (ii) such shares of Common
Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale, distribution or granting of all such Options or
Convertible Securities, whether or not exercised; provided that no
such readjustment shall have the effect of decreasing the number of
such Underlying Shares so purchasable by an amount (calculated by
adjusting such decrease to account for all other adjustments made
pursuant to this Section following the date of the original adjustment
referred to above) in excess of the amount of the adjustment initially
made in respect of the issuance, sale, distribution or granting of
such Options or Convertible Securities.
(j) Other Adjustments. In the event that at any time, as a
result of an adjustment made pursuant to this Section, the Warrant
Holder shall become entitled to receive any securities of the Company
other than Underlying Shares, thereafter the number of such other
securities so receivable upon exercise of the Warrants and the
Underlying Share Purchase Price applicable to such exercise shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
shares of Common Stock contained in this Section.
(k) Common Stock. As used in this Section, the term
"Common Stock" shall mean and include the Common Stock issued and
outstanding on the date hereof and shall also include any capital
stock of any class of the Company thereafter authorized for issuance
that is not limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or
winding up of the Company; provided, however, that the Underlying
Shares shall include only shares of such class designated in the
Company's Certificate of Incorporation as Common Stock or (i) in the
case of any reclassification, change, consolidation, merger, or sale
of assets of the character referred to in Section 9(b) hereof, the
stock, securities or property provided for in such section or (ii) in
the case of any reclassification or change in the number of Underlying
Shares as a result of a subdivision or combination or consisting of a
change in par value, or from par value to no par value, or from no par
value to par value, such Underlying Shares as sore classified or
changed.
(l) Determination of Net Sales Price. In case of the sale
for cash of any shares of Common Stock, Options, or Convertible
Securities, the consideration received by the Company therefor shall
be deemed to be the net sales price therefor (after deducting
therefrom any expense paid or incurred by the Company or any
underwriting discounts or commissions or concessions paid or allowed
by the Company in connection therewith).
10
(m) Events Resulting in no Adjustments. No adjustment to
the Underlying Share Purchase Price or to the number of Underlying
Shares, however, will be made upon (i) the exercise of any stock
options issued under the Company's Stock Option Plan (the "Stock
Option Plan") or the Employee Stock Purchase Plan of the Company under
the terms of such plans, (ii)the exercise of any warrants by officers
and directors of the Company that are outstanding as of the date
hereof, (iii) the sale of any shares of Common Stock pursuant to the
exercise of the Warrants (collectively, the "Exempt Securities"), (iv)
any shares of Common Stock issuable upon conversion of the Series A
Convertible Preferred Stock and (v) any shares of Common Stock issued
in connection with a merger, acquisition or other similar business
combination in which the Company is the surviving corporation.
(n) Notice of Change in Underlying, Share Purchase Price.
Upon any adjustment pursuant to this Section, the Company shall
promptly thereafter (i) cause to be prepared a certificate of the
President and Chief Financial Officer of the Company setting forth the
Underlying Share Purchase Price after such adjustment and setting
forth in reasonable detail the method of calculation and the facts
upon which such calculations are based and setting forth the number of
Underlying Shares (or portion thereof) issuable after such adjustment
in the Underlying Share Purchase Price, upon exercise of the Warrants
and payment of the adjusted Underlying Share Purchase Price, which
certificate shall be conclusive evidence of the correctness of the
matters set forth therein absent manifest error and (ii) send to the
Warrant Holder at the address appearing on the registry books
maintained by the Company written notice of such adjustments by first-
class mail, postage prepaid.
(o) Notice of Certain Events. With respect to any Notice
Event, the Company shall cause to be given to the Warrant Holder at
such Warrant Holder's address on the registry books maintained by the
Company, at least 20 days prior to the applicable record date
hereinafter specified, or in the case of events for which there is no
record date, at least fifteen (15) days prior to the taking of such
proposed action, by certified mail, return receipt requested, postage
prepaid, a written notice stating (i) the date as of which the holders
of record of shares of Common Stock entitled to receive any such
rights, options, warrants or distribution is to be determined, (iii)
the initial expiration date set forth in any tender offer or exchange
offer for shares of Common Stock, or (iii) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up is expected to become effective or consummated and the
date as of which it is expected that holders of record of shares of
Common Stock shall be entitled to exchange such shares for securities
or other property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up. The failure to give the notice required by this
Section 4(q) or any defect therein shall not affect the legality or
validity of any distribution, right, option, warrant, consolidation,
11
merger, conveyance, transfer, dissolution, or liquidation or winding
up, or the vote upon any action.
Section 10. OTHER PROVISIONS RELATING TO RIGHTS OF
WARRANTHOLDERS.
A. Warrant Holder not a Stockholder. The Warrant Holder, as
such, shall not be entitled to vote or receive dividends or be deemed
holders of Common Stock for any purpose whatsoever, nor shall anything
contained in this Agreement be construed to confer upon the Warrant
Holder, as such, any of the rights of a stockholder of the Company
including, but not limited to, the right to vote for the election of
directors or on any other matter, give or withhold consent to any
action by the Company (whether upon any recapitalization, issue of
stock, reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings or other action affecting
stockholders (except for notices provided for in this Agreement),
receive dividends or subscription rights, or otherwise until Warrants
shall have been exercised to purchase Underlying Shares, at which time
the person or persons in whose name or names the certificate or
certificates for the shares of Common Stock are registered shall be
deemed the holder or holders of record of such shares of Common Stock
for all purposes.
B. Fractional Shares. Anything contained herein to the
contrary notwithstanding, the Company shall not be required to issue
any fractional shares of Common Stock in connection with the exercise
of the Warrants. In any case where the Warrant Holder would, except
for the provisions of this Section, be entitled under the terms of
this Agreement to receive a fraction of a share of Common Stock upon
the exercise of the Warrants, the Company shall, upon the exercise of
the Warrants and receipt of the Underlying Share Purchase Price, issue
the largest number of whole shares of Common Stock purchasable upon
exercise of the Warrants. The Warrant Holder expressly waives his or
her right to receive a certificate of any fraction of a share of
Common Stock upon the exercise hereof. However, with respect to any
fraction of a share of Common Stock called for upon any exercise
hereof, the Company shall pay to the Warrant Holder an amount in cash
equal to such fraction multiplied by the current market price per
share of Common Stock determined pursuant to Section 9 hereof.
Section 11. CERTAIN COVENANTS OF THE COMPANY.
A. So long as any unexpired Warrants remain outstanding and if
required in order to comply with the Securities Act of 1933, as
amended (the "Act"), Company covenants and agrees that it will obtain
and keep effective all permits, consents and approvals of governmental
agencies and authorities, and will use its best efforts to take all
action which may be necessary to qualify the Shares for sale under the
securities laws of such of the United States, as may be necessary to
permit the free exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the
12
Warrants, and to maintain such qualifications during the entire period
in which the Warrants are exercisable.
B. The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that all Shares will at the time
of delivery of certificates for such Shares (subject to payment of the
warrant exercise price) be duly and validly authorized and issued and
fully paid and nonassessable Shares, free from any preemptive rights
and taxes, liens, charges and security interests created by or imposed
upon the Company.
C. The Company covenants and agrees that it will take all
action which may be necessary to cause the Shares to be duly listed on
the Nasdaq National Market or any securities exchange on which the
other shares of Common Stock of the Company are listed.
Section 12. DISPOSITION OF PROCEEDS, ETC.
A. The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all
moneys received by the Warrant Agent for the purchase of Shares
through the exercise of such Warrants.
B. The Warrant Agent shall keep copies of this Agreement
available for inspection by holders of Warrants during normal business
hours at its principal office in the City of New York.
Section 13. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
WARRANT AGENT. Any corporation into which the Warrant Agent may be
merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Warrant Agent
shall be a party, or any corporation succeeding to the corporate trust
business of the Warrant Agent, shall be the successor to the Warrant
Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor
Warrant Agent under the provisions of (S)15 of this Agreement. In
case at the time such successor to the Warrant Agent shall succeed to
the agency created by this Agreement, and if any of the Warrants shall
have been countersigned but not delivered, any such successor to the
Warrant Agent may adopt the countersignature of the original Warrant
Agent and deliver such Warrants so countersigned; and in case at that
time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in
the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant shall have
the full force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrants shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrants so
13
countersigned; and in case at that time any of the Warrants shall not
have been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all
such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement.
Section 14. DUTIES OF WARRANT AGENT. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon
the following terms and conditions, by all of which the Company and
the holders of Warrants, by their acceptance thereof, shall be bound:
A. The statements contained herein and in the Warrants shall be
taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the
distribution of the Warrants except as herein otherwise provided.
B. The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Warrants to be complied with by the Company.
C. The Warrant Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys, agents or employees, and the
Warrant Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys, agents or
employees or for any loss to the Company resulting from such neglect
or misconduct, provided reasonable care shall have been exercised in
the selection and continued employment thereof.
D. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company), and the
Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel.
E. The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant for any action taken in
reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument believed by it to
be genuine and to have been signed, sent or presented by the proper
party or parties.
F. The Company agrees to pay to the Warrant Agent agreed upon
compensation for all services rendered by the Warrant Agent in the
execution of this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind
and nature incurred by the Warrant Agent in the execution of this
Agreement and to indemnify the Warrant Agent and save it harmless
against any and all liabilities, including judgments, costs and
14
reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the
Warrant Agent's negligence, bad faith or willful misconduct.
G. The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more registered
holders of Warrants shall furnish the Warrant Agent with reasonable
security and indemnity for any costs and expenses which may be
incurred, but this provision shall not affect the power of the Warrant
Agent to take such action as the Warrant Agent may consider proper,
whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the
Warrants or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted
by the Warrant Agent shall be brought in its name as Warrant Agent,
and any recovery of judgment shall be for the ratable benefit of the
registered holders of the Warrants, as their respective rights or
interests may appear.
H. The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to or otherwise act as fully and freely
as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
I. The Warrant Agent shall act hereunder solely as agent and
not in a ministerial capacity, and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not be
liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own gross negligence or
bad faith.
Section 15. CHANGE OF WARRANT AGENT. The Warrant Agent may
resign and be discharged from its duties under this Agreement by
giving to the Company notice in writing, and to the holders of the
Warrants notice by publication, of such resignation, specifying a date
when such resignation shall take effect, which notice shall be
published at the expense of the Company at least once a week for two
consecutive weeks in a newspaper of general circulation in the City of
New York prior to the date so specified. The Warrant Agent may be
removed by the Company by like notice from the Company to the Warrant
Agent and the holders of Warrants at the expense of the Company. If
the Warrant Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
Warrant Agent. If the Company shall fail to make such appointment
within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning
15
or incapacitated Warrant Agent or by the registered holder of a
Warrant (who shall, with such notice, submit his Warrant for
inspection by the Company), then, at the expense of the Company, the
Warrant Agent or the registered holder of any Warrant may apply to any
court of competent jurisdiction for the appointment of a successor to
the Warrant Agent. Any successor Warrant Agent, whether appointed by
the Company or by such a court, shall be a bank or trust company, in
good standing, incorporated under the laws of any State or of the
United States of America, having at the time of its appointment as
Warrant Agent a combined capital and surplus of at least $50,000,000.
After appointment the successor Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor
Warrant Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Failure to file or publish any notice
provided for in this Section, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of
the Warrant Agent or the appointment of the successor Warrant Agent,
as the case may be.
Section 16. IDENTITY OF TRANSFER AGENT. Forthwith upon the
appointment of any Transfer Agent for the Shares or of any subsequent
Transfer Agent for Shares issuable upon the exercise of the rights of
purchase represented by the Warrants, the Company will file with the
Warrant Agent a statement setting forth the name and address of such
Transfer Agent.
Section 17. NOTICES. Any notice pursuant to this Agreement
to be given or made by the Warrant Agent or by the registered holder
of any Warrant to or on the Company shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant
Agent) as follows:
American Country Holdings Inc.
222 N. LaSalle Street
Chicago, IL 60601
ATTN: Chief Financial Officer
Any notice pursuant to this Agreement to be given or made by
the Company or by the registered holder of any Warrant to or on the
Warrant Agent shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed (until another address is filed
in writing by the Warrant Agent with the Company) as follows:
40 Wall Street, 46th Floor
New York, NY 10005
Any notice pursuant to this Agreement to be given or made by
the Company or the Warrant Agent to the registered holder of any
16
Warrant shall be sufficiently given or made (unless otherwise
specifically provided for herein) if sent by first-class mail, postage
prepaid, addressed to said registered holder at his address appearing
on the Warrant register.
Section 18. SUPPLEMENTS AND AMENDMENTS. The parties hereto
may from time to time supplement or amend this Agreement without the
approval of any holders of Warrants in order to cure any ambiguity or
to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein, or to make
any other provisions in regard to matters or questions arising
hereunder which the Company and the Warrant Agent may deem necessary
or desirable and which will not materially adversely affect the
interest of the registered holders of the Warrants. The parties
hereto may also modify or amend this Agreement and the terms of the
Warrants with the consent of the holders of not less than a majority
in number of the then outstanding unexercised Warrants affected
thereby; provided that no such modification or amendment that
accelerates the expiration date, increases the exercise price, reduces
the number of outstanding Warrants the consent of the holders of which
is required for any such modification or amendment, or otherwise
materially adversely affects the rights of the holders of the
Warrants, may be made without the consent of each holder affected
thereby.
Section 19. SUCCESSORS. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the Warrant
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 20. LAW GOVERNING CONTRACT. This Agreement and
each Warrant issued hereunder shall be deemed to be a contract made
under the laws of the State of Illinois and for all purposes shall be
construed in accordance with the laws of said State.
Section 21. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any person or entity other
than the Company and the Warrant Agent and the holders of Warrants any
legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the
Company and the Warrant Agent and the holders of Warrants.
Section 22. 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 all such counterparts
shall together constitute but one and the same instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first above
written.
AMERICAN COUNTRY HOLDINGS INC.
By: _____________________________
Name: John A. Dore
Its: Co-Chairman and Chief Executive
Officer
WARRANT AGENT
By: _____________________________
Name: _____________________________
Its: _____________________________
18
