-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IFq5BRpIEKZ3mRDeAb+ZS5OICOMxClcjLrzkcLNAO5aGjPtcI3mh5qZvUUXGsgDt rGEy3MRKZDspbGc34GXcKQ== 0001116502-03-000026.txt : 20030116 0001116502-03-000026.hdr.sgml : 20030116 20030116124357 ACCESSION NUMBER: 0001116502-03-000026 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20030116 EFFECTIVENESS DATE: 20030116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: 21ST CENTURY HOLDING CO CENTRAL INDEX KEY: 0001069996 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 650248866 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-102539 FILM NUMBER: 03516005 BUSINESS ADDRESS: STREET 1: 4161 N W 5TH STREET CITY: PLANTATION STATE: FL ZIP: 33317 BUSINESS PHONE: 9545819993 MAIL ADDRESS: STREET 1: 4161 N W 5TH STREET CITY: PLANTATION STATE: FL ZIP: 33317 S-8 1 twentyfirst-s8.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on January 16, 2003 File No. 333- ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 21st CENTURY HOLDING COMPANY (Exact name of registrant as specified in its charter) Florida 65-0248866 - -------------------------------- ------------------------------------ (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 4161 N.W. 5th Street, Plantation, FL 33317 (Address of Principal Executive Offices)(Zip Code) 1998 Stock Option Plan, as amended Warrant to Purchase 12,500 Shares of Common Stock Warrant to Purchase 50,000 Shares of Common Stock 2001 Franchise Program Stock Option Plan 2002 Stock Option Plan ---------------------------------------------------------- (Full title of the plan) Edward J. Lawson 21st Century Holding Company 4161 N.W. 5th Street Plantation, FL 33317 (Name and address of agent for service) (954) 581-9993 (Telephone number, including area code, of agent for service) Copies to: Dale S. Bergman, P.A. Broad and Cassel 201 South Biscayne Boulevard Miami Center, Suite 3000 Miami, Florida 33131 (305) 373-9400 CALCULATION OF REGISTRATION FEE
- ------------------------------- ------------------ ------------------------- ------------------------- ------------------ TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE SHARE(2) PRICE(2) - ------------------------------- ------------------ ------------------------- ------------------------- ------------------ Common Stock, $0.01 par value 2,201,500 $12.26 $26,990,390 $2,483.12 per share - ------------------------------- ------------------ ------------------------- ------------------------- ------------------
(1)Pursuant to Rule 416, promulgated under the Securities Act of 1933, as amended, this Registration Statement covers an indeterminate number of securities to be offered as a result of any adjustment from stock splits, stock dividends or similar events. (2)Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457, promulgated under the Securities Act of 1933, as amended, and based upon the average of the high and low sales price of the Registrant's common stock on January 15, 2003. Pursuant to Rule 429, this Registration Statement serves as a Post-Effective Amendment to the Registrant's Registration Statement on Form S-8 (File No. 33-94879) relating to the Registrant's 1998 Stock Option Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents are incorporated by reference into this Registration Statement: 1. The Registrant's Annual Report on Form 10-K for the year ended December 31, 2001, as filed with the Securities and Exchange Commission (the "SEC"). 2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002 as filed with the SEC. 3. The description of the Registrant's common stock contained in the Registrant's registration statement on Form 8-A filed with the SEC on October 28, 1998, as such description is updated in any amendment to the Form 8-A. In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities registered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents with the SEC. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in a subsequently filed document incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant has authority under Section 607.0850 of the Florida Business Corporation Act to indemnify its directors and officers to the extent provided for in such law. The Registrant's Amended and Restated Articles of Incorporation provide that the Registrant may insure, shall indemnify and shall advance expenses on behalf of its officers and directors to the fullest extent not prohibited by law. The Registrant is also a party to indemnification agreements with each of its directors and officers. 2 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS 4.1 1998 Stock Option Plan, as amended(1) 4.2 2001 Franchise Program Stock Option Plan(2) 4.3 2002 Stock Option Plan(3) 4.4 Warrant to Purchase 12,500 Shares of Common Stock(4) 4.5 Warrant to Purchase 50,000 Shares of Common Stock(4) 5.1 Opinion of Broad and Cassel(4) 23.1 Consent of Broad and Cassel (contained in its opinion filed as Exhibit 5.1 to this Registration Statement) 23.2 Consent of KPMG LLP(4) 23.3 Consent of McKean, Paul, Chrycy, Fletcher & Co. (4) 24.1 Power of Attorney (included in the signature page of this Registration Statement) 99.2 Includes annual information required by Statement of Financial Accounting Standards No. 142 ("SFAS NO. 142"), Goodwill and Other Intangible Assets. (4) (1) Previously filed as an exhibit to the Company's 2000 Annual Meeting Proxy Statement and incorporated herein by reference. (2) Previously filed as an exhibit to the Company's 2001 Annual Meeting Proxy Statement and incorporated herein by reference. (3) Previously filed as an exhibit to the Company's 2002 Annual Meeting Proxy Statement and incorporated herein by reference. (4) Filed herewith. ITEM 9. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (a) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended; (b) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (c) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. 3 (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Plantation, State of Florida on this 14th day of January, 2003. 21ST CENTURY HOLDING COMPANY By: /s/ Edward J. Lawson ------------------------------------- Edward J. Lawson President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Edward J. Lawson and Michele V. Lawson, or any one of them, as his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution for him or her and in his or her name, place and stead in any and all capacities to execute in the name of each such person who is then an officer or director of the Registrant any and all amendments (including post-effective amendments) to this Registration Statement, and any registration statement relating to the offering hereunder pursuant to Rule 462 under the Securities Act of 1933 and to file the same with all exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and each of them full power and authority to do and perform each and every act and thing required or necessary to be done in and about the premises as fully as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURES TITLE DATE - ---------- ----- ---- /s/ Edward J. Lawson Chairman of the Board, President and Chief January 14, 2003 - ------------------------------- Executive Officer (Principal Executive Officer) Edward J. Lawson /s/ J. G. Jennings, III Chief Financial Officer (Principal Financial and January 14, 2003 - ------------------------------- Accounting Officer) J. G. Jennings, III /s/ Michele V. Lawson Vice President-Agency Operations, Treasurer and January 14, 2003 - ------------------------------- Director Michele V. Lawson /s/ James A. Epstein Secretary and General Counsel January 14, 2003 - ------------------------------- James A. Epstein /s/ Richard A. Widdicombe President, Federated National, American Vehicle, January, 14, 2003 - ------------------------------- and Assurance MGA and Director Richard A. Widdicombe /s/ Carl Dorf Director January 14, 2003 - ------------------------------- Carl Dorf /s/ Charles B. Hart, Jr. Director January 14, 2003 - ------------------------------- Charles B. Hart, Jr. /s/ Bruce Simberg Director January 14, 2003 - ------------------------------- Bruce Simberg
5 EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- 4.4 Warrant to Purchase 12,500 Shares of Common Stock 4.5 Warrant to Purchase 50,000 Shares of Common Stock 5.1 Opinion of Broad and Cassel 23.2 Consent of KPMG LLP 23.3 Consent of McKean, Paul, Chrycy, Fletcher & Co. 99.2 Includes annual information required by Statement of Financial Accounting Standards No. 142 ("SFAS NO. 142"), Goodwill and Other Intangible Assets EX-4.4 3 warrant12500-44.txt WARRRANT TO PURCHASECOMMON STOCK EXHIBIT 4.4 WARRANT TO PURCHASE 12,500 SHARES OF COMMON STOCK WARRANT AGREEMENT THIS WARRANT AGREEMENT dated as of the 9th day of December, 1998 between 21ST CENTURY HOLDING COMPANY, a Florida corporation (the "Company"), and MICHAEL H. BRAUN (hereinafter referred to as "Braun"). WITNESSETH: WHEREAS, the Company proposes to issue to Braun Warrants ("Warrants") to purchase up to 12,500 shares (the "Shares") of common stock of the Company, par value $.01 per share (the "Common Stock"); and WHEREAS, Braun has entered into an employment agreement (the "Employment Agreement") dated December 9, 1998 between Braun and the Company; and WHEREAS, the Warrants issued pursuant to this Agreement are being issued by the Company to Braun in consideration for and as part of Braun's compensation in connection with the Employment Agreement. NOW THEREFORE, in consideration of the premises, the agreements herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant: ------ Braun is hereby granted the right to purchase, at any time from December 9, 1998 until 5:00 P.M., New York time, on December 30, 2004 (the "Warrant Exercise Term"), up to 12,500 fully-paid and non-assessable Shares at an initial exercise price (subject to adjustment as provided in Article 8 hereof) of $9.00 per share. 2. Warrant Certificates: --------------------- The warrant certificates (the "Warrant Certificates") delivered and to be delivered pursuant to this Agreement shall be in the form set forth in Exhibit A attached hereto and made a part hereof, with such appropriate insertions, omissions, substitutions and other variations as required or permitted by this Agreement. 3. Exercise of Warrant: -------------------- The Warrants initially are exercisable at a price of $9.00 per share of Common Stock purchased, payable in cash or by check to the order of the Company, or any combination of cash or check, subject to adjustment as provided in Article 8 hereof. Upon surrender of the Warrant Certificate with the annexed Form of Election to Purchase duly executed, together with payment of the Exercise Price (as hereinafter defined) for the Shares purchased, at the Company's principal offices in Florida (currently located at 4161 N.W. 5th Street, Plantation, Florida 33317) the registered holder of a Warrant Certificate ("Holder") shall be entitled EXHIBIT 4.4 (CONTINUED) to receive a certificate or certificates for the Shares so purchased. The purchase rights represented by each Warrant Certificate are exercisable at the option of the Holder hereof, in whole or in part (but not as to fractional Shares). In case of the purchase of less than all the Shares purchasable under any Warrant Certificate, the Company shall cancel said Warrant Certificate upon the surrender thereof and shall execute and deliver a new Warrant Certificate of like tenor for the balance of the Shares purchasable thereunder. 4. Issuance of Certificates: ------------------------- Upon the exercise of the Warrants, the issuance of certificates for the Shares shall be made forthwith (and in any event within three business days thereafter) without charge to the Holder thereof including, without limitation, any transfer tax which may be payable in respect of the issuance thereof, and such certificates shall (subject to the provisions of Article 5 hereof) be issued in the name of, or in such names as may be directed by the Holder thereof; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any such certificates in a name other than that of the Holder and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Warrant Certificates and the certificates representing the Shares shall be executed on behalf of the Company by the manual or facsimile signature of the present or any future Chairman or Vice Chairman of the Board of Directors or President or Vice President of the Company under its corporate seal reproduced thereon, attested to by the manual or facsimile signature of the present or any future Secretary or Assistant Secretary of the Company. Warrant Certificates shall be dated the date of execution by the Company upon initial issuance, division, exchange, substitution or transfer. Upon exercise, in part or in whole, of the Warrants, certificates representing the Shares (the "Warrant Securities"), shall bear a legend substantially similar to the following: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Act"), nor any state securities laws and may not be offered or sold except (i) pursuant to an effective registration statement under the Act and applicable state securities laws, (ii) to the extent applicable, pursuant to Rule 144 under the Act (or any similar rule under such Act relating to the disposition of securities), or (iii) counsel, reasonable satisfactory to counsel to the issuer, stating that an exemption from registration under such Act or applicable state securities laws is available." 5. Restriction on Transfer of Warrants: ------------------------------------ The Holder of a Warrant Certificate, by its acceptance thereof, covenants and agrees that the Warrants are being acquired as an investment and not with a 2 EXHIBIT 4.4 (CONTINUED) view to the distribution thereof, and that the Warrants may not be sold, transferred, assigned, hypothecated or otherwise disposed of, in whole or in part. 6. Price: ------ 6.1 Initial and Adjusted Exercise Prices. The initial exercise price of each Warrant shall be $9.00 per share. The adjusted price shall be the price which shall result from time to time from any and all adjustments of the initial exercise price in accordance with the provisions of Article 8 hereof. 6.2 Exercise Price: The term "Exercise Price" herein shall mean the initial exercise price or the adjusted exercise price, depending upon the context. 7. Registration Rights: -------------------- 7.1 Registration Under the Securities Act of 1933: Neither the Warrants nor the Shares have been registered for purposes of public distribution under the Securities Act of 1933, as amended (the "Securities Act"). 7.2 Registrable Securities: As used herein the term "Registrable Security" means the Shares and any shares of Common Stock issued upon any stock split or stock dividend in respect of such Shares; provided, however, that with respect to any particular Registrable Security, such security shall cease to be a Registrable Security when, as of the date of determination, (i) it has been effectively registered under the Securities Act and disposed of pursuant thereto, (ii) registration under the Securities Act is no longer required for subsequent public distribution of such security pursuant to Rule 144 under the Securities Act (or any successor provision), or (iii) it has ceased to be outstanding. The term "Registrable Securities" means any and/or all of the securities falling within the foregoing definition of a "Registrable Security." In the event of any merger, reorganization, consolidation, recapitalization or other change in corporate structure affecting the Common Stock, such adjustment shall be made in the definition of "Registrable Security" as is appropriate in order to prevent any dilution or enlargement of the rights granted pursuant to this Article 7. 7.3 Piggyback Registration: If, at any time following the date of the Employment Agreement, the Company proposes to prepare and file any new registration statement covering equity or debt securities of the Company, or any such securities of the Company held by its shareholders (in any such case, other than pursuant to Form S-4 or Form S-8 successor form) (for purposes of this Article 7, collectively, the "Registration Statement"), it will give written notice of its intention to do so by registered mail ("Notice"), at least twenty (20) days prior to the filing of each such Registration Statement, to all Holders of the Warrants and the Registrable Securities. Upon the written request of such a Holder (a "Requesting Holder"), made within twenty (20) days after receipt of the Notice, that the Company include any of the Requesting Holder's Registrable Securities in the proposed Registration Statement, the Company shall, as to each such Requesting Holder, effect the registration under the Securities Act of the Registrable Securities which it has been so requested to register ("Piggyback Registration"), at the Company's sole cost and expense and at no cost or 3 EXHIBIT 4.4 (CONTINUED) expense to the Requesting Holders other than underwriting discounts and commissions, and fees and expenses of the Holder's counsel; provided, however, that if , in the written opinion of the Company's managing underwriter, if any, for such offering, the inclusion of all or a portion of the Registrable Securities requested to be registered, when added to the securities being registered by the Company or the selling shareholder(s), will exceed the maximum amount of the Company's securities which can be marketed (i) at a price reasonably related to their then current market value, or (ii) without otherwise materially adversely affecting the entire offering, then the Company may exclude from such offering all or a portion of the Registrable Securities which it has been requested to register. If securities are proposed to be offered for sale pursuant to such Registration Statement by other security holders of the Company and the total number of securities to be offered by the Requesting Holders and such other selling security holders is required to be reduced pursuant to a request from the managing underwriter (which request shall be made only for the reasons and in the manner set forth above) the aggregate number of Registrable Securities to be offered by Requesting Holders pursuant to such Registration Statement shall equal the number which bears the same ratio to the maximum number of securities that the underwriter believes may be included for all the selling security holders (including the Requesting Holders) as the original number of Registrable Securities proposed to be sold by the Requesting Holders bears to the total original number of securities proposed to be offered by the Requesting Holders and the other selling security holders. 8. Adjustments of Exercise Price and Number of Securities: ------------------------------------------------------- The following adjustments apply to the Exercise Price of the Warrants with respect to the Shares and the number of Shares purchasable upon exercise of the Warrants. 8.1 Subdivision and Combination: In case the Company shall at any time subdivide or combine the outstanding shares of Common Stock, the Exercise Price shall forthwith the proportionately decreased in the case of subdivision or increased in the case of combination. 8.2 Adjustment in Number of Securities: Upon each adjustment of the Exercise Price pursuant to the provisions to this Article 8, the number of securities issuable upon the exercise of each Warrant shall be adjusted to the nearest full number by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of securities issuable upon exercise of the Warrants immediately prior to such adjustment and dividing the product so obtained by the adjusted Exercise Price. 8.3 Reclassification, Consolidation, Merger, etc: In case of any reclassification or change of the outstanding shares of Common Stock (other than a change in par value to no par value, or from no par value to par value, or 4 EXHIBIT 4.4 (CONTINUED) as a result of a subdivision or combination), or in the case of any consolidation of the Company with, or merger of the Company into, another corporation (other than a consolidation or merger in which the Company is the surviving corporation and which does not result in any reclassification or change of the outstanding shares of Common Stock, except a change as a result of a subdivision or combination of such shares or a change in par value, as aforesaid), or in the case of a sale or conveyance to another corporation of the property of the Company as an entirety, the Holders shall thereafter have the right to purchase the kind and number of shares of stock and other securities and property receivable upon such reclassification, change, consolidation, merger, sale or conveyance as if the Holders were the owners of the Shares underlying the Warrants immediately prior to any such events, at price equal to the product of (x) the number of shares of Common Stock issuable upon exercise of the Warrants and (y) the Exercise Price in effect immediately prior to the record date for such reclassification, change, consolidation, merger, sale or conveyance as if such Holder had exercised the Warrants. 8.4 No Adjustment of Exercise Price in Certain Cases: Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be made if the amount of said adjustment shall be less than one cent (1(cent)) per security, 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 amount to at least one cent (1(cent)) per security. 9. Exchange and Replacement of Warrant Certificates: ------------------------------------------------- Each Warrant Certificate is exchangeable without expense, upon the surrender hereof by the registered Holder at the principal executive office of the Company, for a new Warrant Certificate of like tenor and date representing in the aggregate the right to purchase the same number of securities in such denominations as shall be designated by the Holder thereof at the time of such surrender. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of any Warrant Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of the Warrants if mutilated, the Company will make and deliver a new Warrant Certificate of like tenor, in lieu thereof. 10. Elimination of Fractional Interests: ------------------------------------ The Company shall not be required to issue certificates representing fractions of Shares upon the exercise of the Warrants, nor shall it be required to issue scrip or pay cash in lieu of fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of Shares. 5 EXHIBIT 4.4 (CONTINUED) 11. Reservation and Listing 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 Warrants, such number of shares of Common Stock as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Warrants and payment of the Exercise Price therefor, all Shares issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any shareholder. As long as the Warrants shall be outstanding, the Company shall use its best efforts to cause all shares of Common Stock issuable upon the exercise of the Warrants to be listed on the NASDAQ National Market. 12. Notice to Warrant Holders: -------------------------- Nothing contained in this Agreement shall be construed as conferring upon the Holder or Holders the right to vote or to consent or to receive notice as a shareholder in respect of any meetings of shareholders for the election of directors or any other matter, or as having any rights whatsoever as a shareholder of the Company. 13. 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 mailed by registered or certified mail, return receipt requested: (a) If to a registered Holder of the Warrants, to the address of such Holder as shown on the books of the Company; or (b) If to the Company, to the address set forth in Section 3 of this Agreement or to such other address as the Company may designate by notice to the Holders. 14. Supplements and Amendments: --------------------------- The Company and Braun may from time to time supplement or amend this Agreement in order to cure any ambiguity, to correct or supplement any provision contained herein which may be defective or inconsistent with any provisions herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and Braun may deem necessary or desirable. 15. Successors: ----------- All the covenants and provisions of this Agreement by or for the benefit of the Company and the Holders inure to the benefit of their respective successors and assigns hereunder. 16. Governing Law: -------------- This Agreement and each Warrant Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Florida and for all purposes shall construed in accordance with the laws of said State. 6 EXHIBIT 4.4 (CONTINUED) 17. Benefits of This Agreement: --------------------------- Nothing in this Agreement shall be construed to give to any person or corporation other than the Company and Braun and any other registered Holder or Holders of the Warrant Certificates or Warrant 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 Braun and any other Holder or Holders of the Warrant Certificates or Warrant Securities. 18. 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the date first above written. 21ST CENTURY HOLDING COMPANY MICHAEL H. BRAUN By: /s/ Edward J. Lawson By: /s/ Michael H. Braun --------------------------- ----------------------- Name: Edward J. Lawson Title: President Attest: /s/ Rebecca L. Campillo 7 EXHIBIT 4.4 (CONTINUED) EXHIBIT A THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") NOR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, (II) TO THE EXTENT APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SECURITIES), OR (III) UPON THE DELIVERY BY THE HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS 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 DECEMBER 9, 1998, THROUGH 5:00 P.M., FLORIDA TIME, DECEMBER 30, 2004 NO. W-2 12,500 WARRANTS WARRANT CERTIFICATE This Warrant Certificate certifies that Michael H. Braun or his registered assigns, is the registered holder of Warrants to purchase, at any time from December 9, 1998 until 5:00 P.M. Florida time on December 30, 2004 ("Expiration Date"), up to 12,500 fully paid and non-assessable shares of common stock, $.01 par value ("Common Stock"), of 21st Century Holding Company, a Florida corporation (the "Company"), at the initial exercise price, subject to adjustment in certain events (the "Exercise Price"), of $9.00 per share of Common Stock upon surrender of this Warrant Certificate and payment of the Exercise Price at an office or agency of the Company, but subject to the conditions set forth herein and in the Warrant Agreement dated as of December 9, 1998 between the Company and Michael H. Braun (the "Warrant Agreement"). Payment of the Exercise Price may be made in cash, or by certified or official bank check payable to the order of the Company, or any combination of cash or check. No Warrant may be exercised after 5:00 P.M., Florida 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 are part of a duly authorized issue of Warrants issued pursuant to the Warrant Agreement, which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument 8 EXHIBIT 4.4 (CONTINUED) and is hereby referred to in a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the holders (the words "holders" or "holder" meaning the registered holders of registered holder) of the Warrants. The Warrant Agreement provides that upon the occurrence of certain events, the Exercise Price and the type and/or number of the Company's securities issuable thereupon may, subject to certain conditions, be adjusted. In such event, the Company will, at the request of the holder, issue a new Warrant Certificate evidencing the adjustment in the Exercise Price and the number and/or type of securities issuable upon the exercise of the Warrants; provided, however, that the failure of the Company to issue such new Warrant Certificates shall not in any way change, alter, or otherwise impair, the rights of the holder as set forth in the Warrant Agreement. Upon due presentment for registration of transfer of this Warrant Certificate at an office or agency of the Company, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided herein and in the Warrant Agreement, without any charge except for any tax, or other governmental charge imposed in connection therewith. Upon the exercise of less than all of the Warrants evidenced by this Certificate, the Company shall forthwith issue to the holder hereof a new Warrant Certificate representing such number of unexercised Warrants. The Company may deem and treat the registered holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, and of any distribution to the holder(s) hereof, and for all other purposes, and the Company shall not be affected by any notice to the contrary. All terms used in this Warrant Certificate which are defined in the Warrant Agreement shall have the meanings assigned to them in the Warrant Agreement. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal. Dated: December 9, 1998 21ST CENTURY HOLDING COMPANY By: /s/ Edward J. Lawson -------------------------- Name: Edward J. Lawson Title: President Attest: /s/ Rebecca L. Campillo 9 EXHIBIT 4.4 (CONTINUED) 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 cash or a certified or official bank check payable to the order of 21st Century Holding Company in the amount of $_______________ , all in accordance with the terms hereof. The undersigned requests that a certificate for such securities be registered in the name of _______________________, whose address is _________________, and that such Certificate be delivered to _______________________, whose address is ____________________________. Dated: Signature: ---------------------------------- (Signature must conform in all respect to name of holder as specified on the face of the Warrant Certificate.) ----------------------------- ----------------------------- (Insert Social Security or Other Identifying Number of Holder) EX-4.5 4 warrant50000-45.txt WARRANT TO PURCHASE COMMON STOCK EXHIBIT 4.5 WARRANT TO PURCHASE 50,000 SHARES OF COMMON STOCK WARRANT AGREEMENT THIS WARRANT AGREEMENT dated as of the 9th day of December,1998 between 21ST CENTURY HOLDING COMPANY, a Florida corporation (the "Company"), and KENT M. LINDER (hereinafter referred to as "Linder"). WITNESSETH: WHEREAS, the Company proposes to issue to Linder Warrants ("Warrants") to purchase up to 50,000 shares (the "Shares") of common stock of the Company, par value $.01 per share (the "Common Stock"); and WHEREAS, Linder has entered into an employment agreement (the "Employment Agreement") dated December 9, 1998 between Linder and the Company; and WHEREAS, the Warrants issued pursuant to this Agreement are being issued by the Company to Linder in consideration for and as part of Linder's compensation in connection with the Employment Agreement. NOW THEREFORE, in consideration of the premises, the agreements herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant: ------ Linder is hereby granted the right to purchase, at any time from December 9, 1998 until 5:00 P.M., New York time, on December 30, 2004 (the "Warrant Exercise Term"), up to 50,000 fully-paid and non-assessable Shares at an initial exercise price (subject to adjustment as provided in Article 8 hereof) of $9.00 per share. 2. Warrant Certificates: --------------------- The warrant certificates (the "Warrant Certificates") delivered and to be delivered pursuant to this Agreement shall be in the form set forth in Exhibit A attached hereto and made a part hereof, with such appropriate insertions, omissions, substitutions and other variations as required or permitted by this Agreement. 3. Exercise of Warrant: -------------------- The Warrants initially are exercisable at a price of $9.00 per share of Common Stock purchased, payable in cash or by check to the order of the Company, or any combination of cash or check, subject to adjustment as provided in Article 8 hereof. Upon surrender of the Warrant Certificate with the annexed Form of Election to Purchase duly executed, together with payment of the Exercise Price (as hereinafter defined) for the Shares purchased, at the Company's principal offices in Florida (currently located at 4161 N.W. 5th Street, Plantation, Florida EXHIBIT 4.5 (CONTINUED) 33317) the registered holder of a Warrant Certificate ("Holder") shall be entitled to receive a certificate or certificates for the Shares so purchased. The purchase rights represented by each Warrant Certificate are exercisable at the option of the Holder hereof, in whole or in part (but not as to fractional Shares). In case of the purchase of less than all the Shares purchasable under any Warrant Certificate, the Company shall cancel said Warrant Certificate upon the surrender thereof and shall execute and deliver a new Warrant Certificate of like tenor for the balance of the Shares purchasable thereunder. 4. Issuance of Certificates: ------------------------- Upon the exercise of the Warrants, the issuance of certificates for the Shares shall be made forthwith (and in any event within three business days thereafter) without charge to the Holder thereof including, without limitation, any transfer tax which may be payable in respect of the issuance thereof, and such certificates shall (subject to the provisions of Article 5 hereof) be issued in the name of, or in such names as may be directed by the Holder thereof; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any such certificates in a name other than that of the Holder and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Warrant Certificates and the certificates representing the Shares shall be executed on behalf of the Company by the manual or facsimile signature of the present or any future Chairman or Vice Chairman of the Board of Directors or President or Vice President of the Company under its corporate seal reproduced thereon, attested to by the manual or facsimile signature of the present or any future Secretary or Assistant Secretary of the Company. Warrant Certificates shall be dated the date of execution by the Company upon initial issuance, division, exchange, substitution or transfer. Upon exercise, in part or in whole, of the Warrants, certificates representing the Shares (the "Warrant Securities"), shall bear a legend substantially similar to the following: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Act"), nor any state securities laws and may not be offered or sold except (i) pursuant to an effective registration statement under the Act and applicable state securities laws, (ii) to the extent applicable, pursuant to Rule 144 under the Act (or any similar rule under such Act relating to the disposition of securities), or (iii) counsel, reasonable satisfactory to counsel to the issuer, stating that an exemption from registration under such Act or applicable state securities laws is available." 2 EXHIBIT 4.5 (CONTINUED) 5. Restriction on Transfer of Warrants: ------------------------------------ The Holder of a Warrant Certificate, by its acceptance thereof, covenants and agrees that the Warrants are being acquired as an investment and not with a view to the distribution thereof, and that the Warrants may not be sold, transferred, assigned, hypothecated or otherwise disposed of, in whole or in part. 6. Price: ------ 6.1 Initial and Adjusted Exercise Prices. The initial exercise price of each Warrant shall be $9.00 per share. The adjusted price shall be the price which shall result from time to time from any and all adjustments of the initial exercise price in accordance with the provisions of Article 8 hereof. 6.2 Exercise Price: The term "Exercise Price" herein shall mean the initial exercise price or the adjusted exercise price, depending upon the context. 7. Registration Rights: -------------------- 7.1 Registration Under the Securities Act of 1933: Neither the Warrants nor the Shares have been registered for purposes of public distribution under the Securities Act of 1933, as amended (the "Securities Act"). 7.2 Registrable Securities: As used herein the term "Registrable Security" means the Shares and any shares of Common Stock issued upon any stock split or stock dividend in respect of such Shares; provided, however, that with respect to any particular Registrable Security, such security shall cease to be a Registrable Security when, as of the date of determination, (i) it has been effectively registered under the Securities Act and disposed of pursuant thereto, (ii) registration under the Securities Act is no longer required for subsequent public distribution of such security pursuant to Rule 144 under the Securities Act (or any successor provision), or (iii) it has ceased to be outstanding. The term "Registrable Securities" means any and/or all of the securities falling within the foregoing definition of a "Registrable Security." In the event of any merger, reorganization, consolidation, recapitalization or other change in corporate structure affecting the Common Stock, such adjustment shall be made in the definition of "Registrable Security" as is appropriate in order to prevent any dilution or enlargement of the rights granted pursuant to this Article 7. 7.3 Piggyback Registration: If, at any time following the date of the Employment Agreement, the Company proposes to prepare and file any new registration statement covering equity or debt securities of the Company, or any such securities of the Company held by its shareholders (in any such case, other than pursuant to Form S-4 or Form S-8 successor form) (for purposes of this Article 7, collectively, the "Registration Statement"), it will give written notice of its intention to do so by registered mail ("Notice"), at least twenty (20) days prior to the filing of each such Registration Statement, to all Holders of the Warrants and the Registrable Securities. Upon the written request of such a Holder (a "Requesting Holder"), made within twenty (20) days after receipt of the Notice, that the Company include any of the Requesting Holder's Registrable Securities in the proposed Registration Statement, the Company shall, as to each such Requesting Holder, effect the registration under the Securities Act of the 3 EXHIBIT 4.5 (CONTINUED) Registrable Securities which it has been so requested to register ("Piggyback Registration"), at the Company's sole cost and expense and at no cost or expense to the Requesting Holders other than underwriting discounts and commissions, and fees and expenses of the Holder's counsel; provided, however, that if , in the written opinion of the Company's managing underwriter, if any, for such offering, the inclusion of all or a portion of the Registrable Securities requested to be registered, when added to the securities being registered by the Company or the selling shareholder(s), will exceed the maximum amount of the Company's securities which can be marketed (i) at a price reasonably related to their then current market value, or (ii) without otherwise materially adversely affecting the entire offering, then the Company may exclude from such offering all or a portion of the Registrable Securities which it has been requested to register. If securities are proposed to be offered for sale pursuant to such Registration Statement by other security holders of the Company and the total number of securities to be offered by the Requesting Holders and such other selling security holders is required to be reduced pursuant to a request from the managing underwriter (which request shall be made only for the reasons and in the manner set forth above) the aggregate number of Registrable Securities to be offered by Requesting Holders pursuant to such Registration Statement shall equal the number which bears the same ratio to the maximum number of securities that the underwriter believes may be included for all the selling security holders (including the Requesting Holders) as the original number of Registrable Securities proposed to be sold by the Requesting Holders bears to the total original number of securities proposed to be offered by the Requesting Holders and the other selling security holders. 8. Adjustments of Exercise Price and Number of Securities: ------------------------------------------------------- The following adjustments apply to the Exercise Price of the Warrants with respect to the Shares and the number of Shares purchasable upon exercise of the Warrants. 8.1 Subdivision and Combination: In case the Company shall at any time subdivide or combine the outstanding shares of Common Stock, the Exercise Price shall forthwith the proportionately decreased in the case of subdivision or increased in the case of combination. 8.2 Adjustment in Number of Securities: Upon each adjustment of the Exercise Price pursuant to the provisions to this Article 8, the number of securities issuable upon the exercise of each Warrant shall be adjusted to the nearest full number by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of securities issuable upon exercise of the Warrants immediately prior to such adjustment and dividing the product so obtained by the adjusted Exercise Price. 4 EXHIBIT 4.5 (CONTINUED) 8.3 Reclassification, Consolidation, Merger, etc: In case of any reclassification or change of the outstanding shares of Common Stock (other than a change in par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in the case of any consolidation of the Company with, or merger of the Company into, another corporation (other than a consolidation or merger in which the Company is the surviving corporation and which does not result in any reclassification or change of the outstanding shares of Common Stock, except a change as a result of a subdivision or combination of such shares or a change in par value, as aforesaid), or in the case of a sale or conveyance to another corporation of the property of the Company as an entirety, the Holders shall thereafter have the right to purchase the kind and number of shares of stock and other securities and property receivable upon such reclassification, change, consolidation, merger, sale or conveyance as if the Holders were the owners of the Shares underlying the Warrants immediately prior to any such events, at price equal to the product of (x) the number of shares of Common Stock issuable upon exercise of the Warrants and (y) the Exercise Price in effect immediately prior to the record date for such reclassification, change, consolidation, merger, sale or conveyance as if such Holder had exercised the Warrants. 8.4 No Adjustment of Exercise Price in Certain Cases: Notwithstanding anything herein to the contrary, no adjustment of the Exercise Price shall be made if the amount of said adjustment shall be less than one cent (1(cent)) per security, 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 amount to at least one cent (1(cent)) per security. 9. Exchange and Replacement of Warrant Certificates: ------------------------------------------------- Each Warrant Certificate is exchangeable without expense, upon the surrender hereof by the registered Holder at the principal executive office of the Company, for a new Warrant Certificate of like tenor and date representing in the aggregate the right to purchase the same number of securities in such denominations as shall be designated by the Holder thereof at the time of such surrender. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of any Warrant Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of the Warrants if mutilated, the Company will make and deliver a new Warrant Certificate of like tenor, in lieu thereof. 10. Elimination of Fractional Interests: ------------------------------------ The Company shall not be required to issue certificates representing fractions of Shares upon the exercise of the Warrants, nor shall it be required to issue scrip 5 EXHIBIT 4.5 (CONTINUED) or pay cash in lieu of fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of Shares. 11. Reservation and Listing 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 Warrants, such number of shares of Common Stock as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Warrants and payment of the Exercise Price therefor, all Shares issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any shareholder. As long as the Warrants shall be outstanding, the Company shall use its best efforts to cause all shares of Common Stock issuable upon the exercise of the Warrants to be listed on the NASDAQ National Market. 12. Notice to Warrant Holders: -------------------------- Nothing contained in this Agreement shall be construed as conferring upon the Holder or Holders the right to vote or to consent or to receive notice as a shareholder in respect of any meetings of shareholders for the election of directors or any other matter, or as having any rights whatsoever as a shareholder of the Company. 13. 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 mailed by registered or certified mail, return receipt requested: (a) If to a registered Holder of the Warrants, to the address of such Holder as shown on the books of the Company; or (b) If to the Company, to the address set forth in Section 3 of this Agreement or to such other address as the Company may designate by notice to the Holders. 14. Supplements and Amendments: --------------------------- The Company and Linder may from time to time supplement or amend this Agreement in order to cure any ambiguity, to correct or supplement any provision contained herein which may be defective or inconsistent with any provisions herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and Linder may deem necessary or desirable. 15. Successors: ----------- All the covenants and provisions of this Agreement by or for the benefit of the Company and the Holders inure to the benefit of their respective successors and assigns hereunder. 6 EXHIBIT 4.5 (CONTINUED) 16. Governing Law: -------------- This Agreement and each Warrant Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Florida and for all purposes shall construed in accordance with the laws of said State. 17. Benefits of This Agreement: --------------------------- Nothing in this Agreement shall be construed to give to any person or corporation other than the Company and Linder and any other registered Holder or Holders of the Warrant Certificates or Warrant 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 Linder and any other Holder or Holders of the Warrant Certificates or Warrant Securities. 18. 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the date first above written. 21ST CENTURY HOLDING COMPANY KENT M. LINDER By: /s/ Edward J. Lawson By: /s/ Kent M. Linder ----------------------------- --------------------------- Name: Edward J. Lawson Title: President Attest: /s/ Rebecca L. Campillo - ---------------------------- 7 EXHIBIT 4.5 (CONTINUED) EXHIBIT A THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") NOR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, (II) TO THE EXTENT APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SECURITIES), OR (III) UPON THE DELIVERY BY THE HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS 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 DECEMBER 9, 1998, THROUGH 5:00 P.M., FLORIDA TIME, DECEMBER 30, 2004 NO. W-3 50,000 WARRANTS WARRANT CERTIFICATE This Warrant Certificate certifies that Kent M. Linder or his registered assigns, is the registered holder of Warrants to purchase, at any time from December 9, 1998 until 5:00 P.M. Florida time on December 30, 2004 ("Expiration Date"), up to 50,000 fully paid and non-assessable shares of common stock, $.01 par value ("Common Stock"), of 21st Century Holding Company, a Florida corporation (the "Company"), at the initial exercise price, subject to adjustment in certain events (the "Exercise Price"), of $9.00 per share of Common Stock upon surrender of this Warrant Certificate and payment of the Exercise Price at an office or agency of the Company, but subject to the conditions set forth herein and in the Warrant Agreement dated as of December 9, 1998 between the Company and Kent M. Linder (the "Warrant Agreement"). Payment of the Exercise Price may be made in cash, or by certified or official bank check payable to the order of the Company, or any combination of cash or check. No Warrant may be exercised after 5:00 P.M., Florida 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 are part of a duly authorized issue of Warrants issued pursuant to the Warrant Agreement, which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument 8 EXHIBIT 4.5 (CONTINUED) and is hereby referred to in a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the holders (the words "holders" or "holder" meaning the registered holders of registered holder) of the Warrants. The Warrant Agreement provides that upon the occurrence of certain events, the Exercise Price and the type and/or number of the Company's securities issuable thereupon may, subject to certain conditions, be adjusted. In such event, the Company will, at the request of the holder, issue a new Warrant Certificate evidencing the adjustment in the Exercise Price and the number and/or type of securities issuable upon the exercise of the Warrants; provided, however, that the failure of the Company to issue such new Warrant Certificates shall not in any way change, alter, or otherwise impair, the rights of the holder as set forth in the Warrant Agreement. Upon due presentment for registration of transfer of this Warrant Certificate at an office or agency of the Company, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided herein and in the Warrant Agreement, without any charge except for any tax, or other governmental charge imposed in connection therewith. Upon the exercise of less than all of the Warrants evidenced by this Certificate, the Company shall forthwith issue to the holder hereof a new Warrant Certificate representing such number of unexercised Warrants. The Company may deem and treat the registered holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, and of any distribution to the holder(s) hereof, and for all other purposes, and the Company shall not be affected by any notice to the contrary. All terms used in this Warrant Certificate which are defined in the Warrant Agreement shall have the meanings assigned to them in the Warrant Agreement. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal. Dated: December 9, 1998 21ST CENTURY HOLDING COMPANY By: /s/ Edward J. Lawson -------------------------- Name: Edward J. Lawson ------------------------- Title: President ----------------------- Attest: /s/ Rebecca L. Campillo - ------------------------------- EXHIBIT 4.5 (CONTINUED) 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 cash or a certified or official bank check payable to the order of 21st Century Holding Company in the amount of $__________________ , all in accordance with the terms hereof. The undersigned requests that a certificate for such securities be registered in the name of _______________, whose address is _______________, and that such Certificate be delivered to _________________, whose address is _____________________. Dated: Signature: ---------------------------------- (Signature must conform in all respect to name of holder as specified on the face of the Warrant Certificate.) --------------------------------- --------------------------------- (Insert Social Security or Other Identifying Number of Holder) EX-5.1 5 opinion-51.txt OPINION AND CONSENT OF BROAD AND CASSEL EXHIBITS 5.1 AND 23.1 OPINION AND CONSENT OF BROAD AND CASSEL BROAD AND CASSEL ATTORNEYS AT LAW 201 SOUTH BISCAYNE BOULEVARD SUITE 3000 MIAMI, FLORIDA 33131 TELEPHONE: 305-373-9400 FACSIMILE: 305-373-9443 www.broadandcassel.com January 14, 2003 21st Century Holding Company 4161 N.W. 5th Street Plantation, Florida 33317 Re: 21st Century Holding Company (the "Company") Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel for the Company with respect to the preparation and filing with the U.S. Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Form S-8") pursuant to the Securities Act of 1933, as amended (the "Securities Act"). You have requested our opinion with respect to the issuance of up to 2,201,500 shares (the "Shares") of the Company's common stock, par value $.01 per share (the "Common Stock), issuable upon exercise of options to be granted under the Company's 1998 Stock Option Plan, as amended, the Company's 2002 Stock Option Plan, and the Company's 2001 Franchise Program Stock Option Plan (collectively, the "Plans") and issuable upon the exercise of certain warrants that we have been advised were granted to employees for compensatory purposes (the "Warrants"). As counsel to the Company, we have examined the original or certified copies of such records of the Company, and such agreements, certificates of public officials, certificates of officers and representatives of the Company and others, and such other documents as we may deem relevant and necessary for the opinion expressed in this opinion letter. In such examination, we have assumed the genuineness of all signatures on original documents, and the conformity to original documents of all copies submitted to us as conformed or photostatic copies. As to various questions of fact material to such opinion, we have relied upon statements or certificates of officials and representatives of the Company and others. Based on, and subject to the foregoing, we are of the opinion that the Shares, when issued upon exercise of the options granted pursuant to the Plans in accordance with their terms or upon the exercise of the Warrants in accordance with their terms, will be duly issued, fully paid and nonassessable. EXHIBITS 5.1 AND 23.1 (CONTINUED) 21st Century Holding Company January 14, 2003 Page 2 The opinion expressed herein is based on Florida law, including the statutes and constitution of the State of Florida as in existence on the date hereof and the reported judicial decisions interpreting such statutes and constitution. In rendering this opinion, we advise you that members of this Firm are members of the Bar of the State of Florida, and we express no opinion herein concerning the applicability or effect of any laws of any other jurisdiction, except the securities laws of the United States of America referred to herein. We hereby consent to the filing of this opinion letter as an exhibit to the Form S-8. We also consent to the use of our name under the caption "Legal Matters" in the prospectus constituting part of the Form S-8. In giving such consent, we do not thereby admit that we are included within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations promulgated thereunder. Very truly yours, /s/ Broad and Cassel BROAD AND CASSEL EX-23.2 6 auditorsconsent-232.txt AUDITOR'S CONSENT EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT To the Board of Directors 21st Century Holding Company We consent to the incorporation by reference in the Registration Statement on Form S-8 of 21st Century Holding Company, regarding the registration of up to 2,201,500 shares of common stock, of our report dated March 30, 2000, with respect to the consolidated statements of operations, changes in shareholders' equity and comprehensive income, and cash flows for the year ended December 31, 1999, which report appears in the December 31, 2001 annual report of 21st Century Holding Company on Form 10K. /s/ KPMG LLP January 15, 2003 EX-23.3 7 accountantsconsent-233.txt ACCOUNTANTS CONSENT EXHIBIT 23.3 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS As independent certified public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8, regarding the registration of up to 2,201,500 shares of common stock, of our report dated March 29, 2002 included in 21st Century Holding Company's Form 10-K for the year ended December 31, 2001 and to all references to our Firm included in this registration statement. It should be noted that we have not audited any financial statements of the Company subsequent to December 31, 2001 or performed any audit procedures subsequent to the date of our report. /s/ MCKEAN, PAUL, CHRYCY, FLETCHER & CO. Plantation, Florida, January 14, 2003. EX-99.2 8 financialdata-992.txt SELECTED FINANCIAL DATA EXHIBIT 99.2 Includes annual information required by Statement of Financial Accounting Standards No. 142 ("SFAS NO. 142"), Goodwill and Other Intangible Assets. SELECTED FINANCIAL DATA
As of or for the nine months ended As of or for the year ended December 31, ---------------------------------- ---------------------------------------- September 30, (unaudited) ------------------------- OPERATIONS DATA: 2002 2001 2001 2000 1999 ------------ ------------ ------------ ------------ ------------ Revenue: Gross premiums written .......................... $ 47,174,213 $ 25,449,702 $ 34,271,338 $ 32,073,768 $ 19,273,561 Gross premiums ceded ............................ (19,274,613) (8,952,322) (12,789,404) (7,625,095) (6,221,853) ------------ ------------ ------------ ------------ ------------ Net premiums written ........................ 27,899,600 16,497,380 21,481,934 24,448,673 13,051,708 Decrease (increase) in unearned premiums, net of prepaid reinsurance premiums ........... (7,514,566) (1,349,054) (1,226,373) (4,127,334) 404,640 ------------ ------------ ------------ ------------ ------------ Net premiums earned ......................... 20,385,034 15,148,326 20,255,561 20,321,339 13,456,348 Commission income ............................... 1,862,398 2,232,027 2,828,779 2,780,869 4,410,856 Finance revenue ................................. 3,359,780 4,132,308 5,267,523 5,709,848 3,696,843 Managing general agent fees ..................... 2,398,163 4,542,094 5,871,388 5,410,500 963,797 Net investment income ........................... 1,013,456 787,169 1,066,641 1,225,413 853,659 Net realized investment gains (losses) .......... (1,456,513) (3,017,888) (2,911,658) (109,256) 952,153 Other income .................................... 2,378,468 2,561,108 3,098,332 2,214,894 1,043,798 ------------ ------------ ------------ ------------ ------------ Total revenue ............................... 29,940,786 29,385,144 35,476,566 37,553,607 25,377,454 ------------ ------------ ------------ ------------ ------------ Expenses: Losses and loss adjustment expenses ............. 10,743,363 12,208,912 16,154,902 14,990,118 8,094,677 Operating and underwriting expenses ............. 7,748,412 9,131,648 11,644,183 11,892,577 7,032,428 Salaries and wages .............................. 5,926,632 6,425,467 8,478,771 9,375,775 7,474,572 Amortization of deferred acquisition costs, net . 261,304 1,182,088 1,467,238 1,673,754 (18,563) Amortization of goodwill ........................ -- 416,548 540,010 606,653 547,548 ------------ ------------ ------------ ------------ ------------ Total expenses .............................. 24,679,711 29,364,663 38,285,104 38,538,877 23,130,662 ------------ ------------ ------------ ------------ ------------ Income (loss) before provision for income tax expense and extraordinary gain .................. 5,261,075 (2,979,519) (2,808,538) (985,270) 2,246,792 (Provision) benefit for income tax expense ......... 2,490,934 (653,817) 630,553 462,396 (680,061) ------------ ------------ ------------ ------------ ------------ Net income (loss) and extraordinary gain .... 2,770,141 (2,325,702) (2,177,985) (522,874) 1,566,731 Extraordinary gain ................................. -- 1,185,895 1,185,895 -- -- ------------ ------------ ------------ ------------ ------------ Net income (loss) ........................... $ 2,770,141 $ (1,139,807) $ (992,090) $ (522,874) $ 1,566,731 ============ ============ ============ ============ ============ Basic net income (loss) per share before extraordinary gain ....................... $ 0.92 $ (0.73) $ (0.69) $ (0.15) $ 0.46 ============ ============ ============ ============ ============ Extraordinary gain ................................. -- 0.37 0.38 -- -- ============ ============ ============ ============ ============ Basic net income (loss) per share .................. $ 0.92 $ (0.36) $ (0.31) $ (0.15) $ 0.46 ============ ============ ============ ============ ============ Cash dividends declared per share .................. $ 0.06 $ 0.06 $ 0.08 $ 0.02 -- ============ ============ ============ ============ ============ INFORMATION ADJUSTED TO EXCLUDE AMORTIZATION EXPENSE AND THE RELATED TAX EFFECTS RECOGNIZED IN THE PERIOD RELATED TO GOODWILL THAT IS NO LONGER BEING AMORTIZED AS REQUIRED BY SFAS NO. 142 Net income (loss) before extraordinary gain ........ $ 2,770,141 $ (2,325,702) $ (1,779,900) $ (77,229) $ 1,963,954 ============ ============ ============ ============ ============ Net income (loss) .................................. $ 2,770,141 $ (1,139,807) $ (594,005) $ (77,229) $ 1,963,954 ============ ============ ============ ============ ============ Basic net income (loss) per share before extraordinary gain ....................... $ 0.92 $ (0.73) $ (0.56) $ (0.02) $ 0.58 ============ ============ ============ ============ ============ Basic net income (loss) per share .................. $ 0.92 $ (0.36) $ (0.19) $ (0.02) $ 0.58 ============ ============ ============ ============ ============ BALANCE SHEET DATA: Total assets ....................................... $ 67,165,049 $ 58,271,989 $ 56,228,577 $ 55,412,969 $ 38,686,404 Investments ..................................... 21,310,788 18,545,572 17,507,422 18,965,798 13,916,571 Finance contracts, consumer loans and pay advances receivable, net .................. 13,366,005 11,710,436 10,813,881 13,792,791 9,642,163 Total liabilities .................................. 53,411,506 44,228,082 42,019,446 40,456,972 22,932,516 Unpaid losses and loss adjustment expenses ...... 13,154,617 11,424,103 11,005,337 9,765,848 6,314,307 Unearned premiums ............................... 25,689,898 14,292,343 14,951,228 13,038,417 8,037,083 Revolving credit outstanding .................... 6,383,581 7,956,101 6,676,817 8,091,034 4,650,026 Total shareholders' equity ......................... 13,753,543 14,043,907 $ 14,209,131 $ 14,955,997 $ 15,753,888 Book value per share ............................... $ 4.57 $ 4.40 $ 4.69 $ 4.49 $ 4.67
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