THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES REPRESENTED HEREBY HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, ASSIGNED
OR OTHERWISE DISPOSED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OR AN OPINION, IF REQUESTED, OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
Issued as of May 14, 1996
to Purchase 50,000 Shares of Common Stock of
TECHSYS, INC.
TECHSYS, INC., a New Jersey corporation (the "Company"), hereby
certifies that THE EQUITY GROUP, INC. and its Permitted Assigns (as defined
herein) (collectively, the "Holder"), for value received, is entitled to
purchase from the Company at any time commencing November 14, 1996 and
terminating on the Expiration Date (as defined herein) up to 50,000 shares (each
a "Share" and collectively the "Shares") of the Company's common stock, no par
value per share (the "Common Stock"), at an exercise price of $3.50 per Share
(the "Exercise Price").
1. Exercise of Warrants.
(a) Procedure. Upon presentation and surrender of this Common
Stock Purchase Warrant Certificate ("Warrant Certificate"), or Lost Certificate
Affidavit (as defined herein), accompanied by a completed Election to Purchase
in the form attached hereto as Exhibit A (the "Election to Purchase") duly
executed, to the Company in accordance with Section 9, together with a check
payable to the Company in the amount of the Exercise Price multiplied by the
number of Shares being purchased, the Company or the Company's Transfer Agent,
as the case may be, shall, within two business days of receipt of the foregoing,
deliver to the Holder hereof, certificates of fully paid and non-assessable
Common Stock which in the aggregate represent the number of Shares being
purchased; provided, however, that the Holder may elect to utilize the cashless
exercise provisions set forth in Section 1(b) in lieu of tendering all or part
of the Exercise Price in cash. The certificates so delivered shall be in such
denominations as may be reasonably requested by the Holder and shall be
registered in the name of the Holder or such other name as shall be designated
by the Holder. All or less than all of the Warrants represented by this Warrant
Certificate may be exercised and, in case of the exercise of less than all, the
Company, upon surrender hereof, will at the Company's expense deliver to the
Holder a new Warrant Certificate or Certificates (in such denominations as may
be requested by the Holder) of like tenor and dated the date hereof entitling
the Holder to purchase the number of Shares represented by this Warrant
Certificate which have not been exercised and to receive all other rights with
respect to the Shares which the Holder has on the date hereof.
(b) Cashless Exercise. Notwithstanding the foregoing provision
regarding payment of the Exercise Price in cash, in lieu of tendering all or
part of the Exercise Price in cash the Holder may elect to pay all or part of
the Exercise Price by delivery of shares of Common Stock held by the Holder for
at least six months, in which case (A) the number of shares of Common Stock to
be delivered shall be determined by dividing the aggregate of the Exercise Price
for the number of Shares with respect to which the Holder elects to pay all or
part of the Exercise Price by delivery of shares of Common Stock, by the Market
Value (as defined herein) of one share of Common Stock, (B) such shares of
Common Stock so delivered shall be free and clear of all liens and encumbrances,
and (C) certificates for such shares of Common Stock shall be delivered to the
Company duly endorsed in blank for transfer.
As used in this Section (1)(b), "Market Value" refers to the Current Market
Value of the Common Stock on the day before the Election to Purchase and this
Warrant Certificate are duly surrendered to the Company for a full or partial
exercise hereof. "Current Market Value" per share of Common Stock or any other
security at any date means (i) if the security is registered under the Exchange
Act, the average of the daily closing bid prices (or the equivalent in an
over-the-counter market) for each day on which the Common Stock is traded for
any period on the principal securities exchange or other securities market on
which the Common Stock is being traded (each, a "Trading Day") during the period
commencing eleven Trading Days before such date and ending on the date one day
prior to such date; provided, however that if the closing bid price is not
determinable for at least five Trading Days in such period, the "Current Market
Value" of the security shall be determined as if the security were not
registered under the Exchange Act, or (ii) if the security is not registered
under the Exchange Act, (A) the value of the security, determined in good faith
by the Board of Directors of the Company and certified in a board resolution,
based on the most recently completed arm's-length transaction between the
Company and a person other than an affiliate of the Company and the closing of
which occurs on such date or shall have occurred within the six-month period
preceding such date, or (B) if no such transaction shall have occurred within
the six-month period, the value of the security as determined by an independent
financial expert mutually agreed upon by the Company and the Holder and, in the
event the Company and the Holder fail to so mutually agree within 30 days after
the date of the requirement to determine the Current Market Value hereunder, the
parties shall submit the selection of the independent financial expert to the
American Arbitration Association for arbitration in New Jersey.
2. Expiration. This Warrant shall expire on May 13, 2001 (the
"Expiration Date").
3. Exchange, Transfer and Replacement.
(a) Exchange. At any time prior to the exercise hereof, this
Warrant Certificate may be exchanged upon presentation and surrender to the
Company, alone or with other Warrant Certificates of like tenor of different
denominations registered in the name of the same Holder, for another Warrant
Certificate or Certificates of like tenor in the name of such Holder exercisable
for the aggregate number of Shares as the Warrant Certificate or Certificates
surrendered.
(b) Replacement of Warrant Certificate. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction,
or mutilation of this Warrant Certificate and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement of the Holder
reasonably satisfactory in form and amount to the Company (collectively, a "Lost
Certificate Affidavit"), or, in the case of any such mutilation, upon surrender
and cancellation of this Warrant Certificate, the Company, at its expense, will
execute and deliver in lieu thereof, a new Warrant Certificate of like tenor.
(c) Cancellation. Upon the surrender of this Warrant
Certificate in connection with any transfer, exchange or replacement as provided
in this Section 3, this Warrant Certificate shall be promptly canceled by the
Company.
(d) Warrant Register. The Company shall maintain, at its
principal executive offices (or at the offices of the transfer agent for the
Warrant Certificate or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant
Certificate (the "Warrant Register"), in which the Company shall record the name
and address of the person in whose name this Warrant Certificate has been
issued, as well as the name and address of each Permitted Assign and each prior
Holder of this Warrant Certificate.
4. Rights and Obligations of Holders of this Warrant Certificate. The
Holder of this Warrant Certificate shall not, by virtue hereof, be entitled to
any rights of a shareholder in the Company, either at law or in equity;
provided, however, that upon exercise of some or all of the Warrants, such
Holder shall, for all purposes, be deemed to have become the Holder of record of
such Common Stock on the date on which this Warrant Certificate, together with a
duly executed Election to Purchase, was surrendered and payment of the aggregate
Exercise Price was made, irrespective of the date of delivery of such share
certificate.
5. Notices of Certain Events. In case: (i) the Company shall take a
record of the holders of its Common Stock (or other stock or securities at the
time receivable upon the exercise of this Warrant) for the purpose of entitling
them to receive any dividend or other distribution, or any right to subscribe
for or purchase any shares of stock of any class or any other securities, or to
receive any other right, or (ii) of any capital reorganization of the Company,
any reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be delivered or
given in the manner provided herein to the Holder of this Warrant a notice
specifying, as the case may be, (A) the date of which a record is to be taken
for the purpose of such dividend, distribution or right, or (B) the date on
which such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or such stock or
securities at the time receivable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be delivered or given
at least 15 days prior to the date therein specified.
6. Issuance of Certificates. Within two business days of receipt of a
duly completed Election to Purchase, together with this Warrant Certificate and
payment of the Exercise Price, the Company, at its expense, will cause to be
issued in the name of and delivered to the Holder of this Warrant, a certificate
or certificates for the number of fully paid and non-assessable shares of Common
Stock to which the Holder shall be entitled on such exercise. In lieu of
issuance of a fractional share upon any exercise hereunder, the Company will pay
the cash value of that fractional share, calculated on the basis of the Exercise
Price. In the event the shares of Common Stock underlying this Warrant
Certificate are not registered under the Securities Act for resale under a then
effective registration statement, all such certificates shall bear a restrictive
legend to the effect that the Shares represented by such certificate have not
been registered under the Securities Act, and that the Shares may not be sold or
transferred in the absence of such registration or an exemption therefrom, such
legend to be substantially in the form of the bold-face language appearing at
the top of Page 1 of this Warrant Certificate. Where applicable, the Company
shall remove such legends so as to facilitate the transfer of such securities
pursuant to an effective registration statement or, if and to the extent
applicable, pursuant to Rule 144 under the Securities Act, provided (in the case
of Rule 144 transfers) that the Holder has provided such documentation as the
Company and its transfer agent shall reasonably require in connection therewith.
In the event that unlegended certificates have been delivered to the Holder, and
a previously effective registration statement with respect to the underlying
securities is no longer effective and the underlying securities are not
otherwise freely transferable, the Holder shall return such certificates to the
Company in exchange for legended certificates of like tenor within 10 days
following the written request therefor by the Company.
7. Reservation of Stock. The Company covenants that during the term
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation to provide
sufficient reserves of shares of Common Stock issuable upon exercise of this
Warrant. The Company further covenants that all shares that may be issued upon
the exercise of the rights represented by this Warrant will, upon exercise of
the rights represented by this Warrant and payment of the Exercise Price, all as
set forth herein, be free from all taxes, liens and charges in respect of the
issue thereof (other than taxes in respect of any transfer occurring
contemporaneously or otherwise specified herein). The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon any exercise of this
Warrant.
8. Disposition of Warrants or Shares. The Holder of this Warrant
Certificate, and each holder and transferee of any Shares, by his or its
acceptance thereof, agrees that no public distribution of Warrants or Shares
will be made in violation of the provisions of the Securities Act. Any
transferee shall acquire the Warrants subject to all of the relevant terms and
conditions contained in this Warrant Certificate.
9. Notices.
(a) All demands, notices, and communications ("notices")
provided for in this Warrant Certificate will be in writing and will be either
personally delivered, mailed by registered or certified mail (return receipt
requested) or sent by reputable overnight courier service (delivery charges
prepaid) to any party at the address specified below, or at such address, to the
attention of such other Person, and with such other copy, as the recipient party
has specified by prior written notice to the sending party pursuant to the
provisions of this Section 9.
If to the Holder:
The Equity Group, Inc.
800 Third Avenue, 36th Floor
New York, New York 10022
Attention: Robert D. Goldstein
If to the Company:
TechSys, Inc.
44 Aspen Drive
Livingston, New Jersey 07039
Attention: President
Facsimile Number: (973) 422-1221
with a copy, which will not constitute notice to the Company, to:
Pitney, Hardin, Kipp & Szuch LLP
200 Campus Drive
P.O. Box 1945
Morristown, New Jersey 07962-1945
Attention: Joseph Lunin
Facsimile Number: (973) 966-1550
(b) Any such notice will be deemed to have been given when
delivered personally, on the third business day after deposit postage pre-paid
in the U.S. mail, or on the business day after deposit with a reputable
overnight courier service delivery charges pre-paid, as the case may be.
10. Governing Law. This Warrant Certificate will be governed by and
construed in accordance with the domestic laws of the State of New Jersey,
without giving effect to any choice of law or conflict rule of any jurisdiction
that would cause the laws of any other jurisdiction to be applied. In
furtherance of the foregoing, the internal law of the State of New Jersey will
control the interpretation and construction of this Warrant Certificate, even if
under any choice of law or conflict of law analysis, the substantive law of some
other jurisdiction would ordinarily apply.
11. Jurisdiction. Each of the parties hereby (a) irrevocably submits to
the exclusive jurisdiction of the state courts of, and the federal courts
located in, the State of New Jersey in any action or proceeding arising out of
or relating to, this Warrant Certificate, (b) waives, and agrees to assert, by
way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or
execution under the law of another jurisdiction, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Warrant Certificate or the subject
matter hereof may not be enforced in or by such court, and agrees not to seek,
any review by any court of any other jurisdiction which may be called upon to
grant an enforcement of the judgment of any such court.
12. Successors and Assigns. This Warrant Certificate shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and Permitted Assigns.
13. Severability. If any provision of this Warrant Certificate is held
to be unenforceable under applicable law, such provision shall be excluded from
this Warrant Certificate, and the balance hereof shall be interpreted as if such
provision were so excluded.
14. Modification and Waiver. This Warrant Certificate and any provision
hereof may be amended, waived, discharged or terminated only by an instrument in
writing signed by the Company and the Holder.
15. Specific Enforcement. The Company and the Holder acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Warrant Certificate were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Warrant Certificate and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which either of them may be entitled by law or equity.
16. Assignment. This Warrant Certificate may not be transferred or
assigned, in whole or in part, at any time, without the prior written consent of
the Company, which consent shall not be unreasonably withheld (such assignee, a
"Permitted Assign"). Assignment to a Permitted Assign can be effected by the
Holder's submission of this Warrant to the Company together with a duly executed
Assignment in substantially the form and substance of the Form of Assignment
which accompanies this Warrant Certificate and, upon the Company's receipt
hereof, and in any event, within three business days thereafter, the Company
shall issue a Warrant Certificate to the Holder to evidence that portion of this
Warrant Certificate, if any as shall not have been so transferred or assigned.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or by facsimile, by one of its officers thereunto
duly authorized.
TECHSYS, INC.
STEVEN L. TRENK
Date: September 6, 2000 By:______________________________________
Steven L. Trenk
President
<PAGE>
ELECTION TO PURCHASE
To Be Executed by the Holder in Order to Exercise the
Common Stock Purchase Warrant Certificate
The undersigned Holder hereby elects to exercise _______ of the
Warrants represented by the attached Common Stock Purchase Warrant Certificate,
and to purchase the shares of Common Stock issuable upon the exercise of such
Warrants, and requests that certificates for securities be issued in the name
of:
---------------------------------------------
(Please type or print name and address)
=============================================
---------------------------------------------
(Social Security or Tax Identification Number)
and delivered to:
(Please type or print name and address if different from above)
If such number of Warrants being exercised hereby shall not be all the Warrants
evidenced by the attached Common Stock Purchase Warrant Certificate, a new
Common Stock Purchase Warrant Certificate for the balance of such Warrants shall
be registered in the name of, and delivered to, the Holder at the address set
forth below.
[In full payment of the purchase price with respect to the Warrants
exercised and transfer taxes, if any, the undersigned hereby tenders payment of
$______________ by check, money order or wire transfer payable in United States
currency to the order of TECHSYS, INC.] or [The undersigned elects cashless
exercise in accordance with Section 1(b) of the Common Stock Purchase Warrant
Certificate.]
HOLDER:
Dated:_____________ By:___________________________________
Name:
Title:
Address:
<PAGE>
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto
_______________ the right represented by the within Warrant to purchase
____________ shares of Common Stock of TECHSYS, INC., a New Jersey corporation,
to which the within Warrant relates, and appoints _____________ Attorney to
transfer such right on the books of TECHSYS, INC., a New Jersey corporation,
with full power of substitution of premises.
Dated:___________ By:__________________________________
Name:
Title:
(signature must conform to
name of holder as specified on
the fact of the Warrant)
Address:
Signed in the presence of:
