EXHIBIT 10(Q)
VOID AFTER 5:00 P.M., NEW YORK CITY LOCAL TIME, ON DECEMBER 5, 2000
NEITHER THIS WARRANT NOR THE WARRANT SHARES (AS HEREINAFTER DEFINED) HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT NOR THE WARRANT SHARES MAY
BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF (COLLECTIVELY,
"TRANSFERRED") IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS COVERING SUCH SECURITIES, OR AN
OPINION OF COUNSEL TO PC ETCETERA, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS LEGEND SHALL BE ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE FOR THIS
WARRANT.
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PC ETCETERA, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
WARRANT
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DECEMBER 5, 1995
FOR VALUE RECEIVED, PC ETCETERA, INC., a Delaware corporation (the
"Company"), hereby certifies that _________________________________ (the
"Holder") is entitled, subject to the provisions of this Warrant, to purchase
from the Company up to ___________________________ (___________) SHARES OF
COMMON STOCK ("Common Shares") of the Company at a price of ONE DOLLAR FIFTY
CENTS ($1.50) per share (the "Exercise Price") during the period commencing on
the date hereof and expiring at 5:00 P.M., New York City local time, on December
5, 2000.
The number of shares to be received upon the exercise of this Warrant
may be adjusted from time to time as hereinafter set forth. The shares
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares".
The Holder agrees with the Company that this Warrant is issued, and
all the rights hereunder shall be held, subject to all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF WARRANT.
1.1 EXERCISE. Subject to the provisions hereof, this
Warrant may be exercised in whole or in part at any time, or from time to time,
during the period commencing on the date hereof and expiring at 5:00 p.m., New
York City local time, on December 5, 2000 or, if such day is a day on which
banking institutions in the City of New York are authorized by law to close,
then on the next succeeding business day that shall not be such a day, by
presentation and surrender hereof to the Company at its principal office, with
the Warrant Exercise Form attached hereto duly
executed and accompanied by payment (either in cash or by certified or official
bank check, payable to the order of the Company) of the Exercise Price for the
number of shares specified in such Form. If this Warrant should be exercised in
part only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the Holder thereof to
purchase the balance of the shares purchasable hereunder.
1.2 NET EXERCISE. Notwithstanding the foregoing, in lieu of
paying to the Company an amount equal to the aggregate Exercise Price of the
Warrant Shares being purchased, the Holder may elect to receive Warrant Shares
equal to the value (as determined below) of the Warrant by surrender of this
Warrant, in which event the Company shall issue to the Holder a number of
Warrant Shares computed using the following formula:
X = Y (A-B)
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A
Where: X = the number of Warrant Shares
to be issued to the Holder.
Y = the number of Warrant Shares
under this Warrant.
A = the Current Market Price Per
Share (as hereinafter defined)
on the day on which the
Warrant Exercise Form is
received by the Company.
B = the Exercise Price.
2. RESERVATION OF SHARES. The Company will reserve for
issuance and delivery upon exercise of this Warrant all Common Shares or other
shares of capital stock of the Company (and other securities and property) from
time to time receivable upon exercise of this Warrant; provided, however, that
nothing contained herein shall preclude the Company from satisfying its
obligations hereunder by delivery of shares which are held in the treasury of
the Company.
3. FRACTIONAL SHARES. The Company shall not be required to
issue certificates representing fractions of shares, nor shall it be required to
issue scrip or pay cash in lieu of fractional interests, it being the intent of
the Company and the Holder that all fractional interests shall be eliminated.
4. EXCHANGE OR ASSIGNMENT OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company, for other
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Warrants of different denominations, entitling the Holder to purchase in the
aggregate the same number of shares purchasable hereunder. Subject to the
provisions of this Warrant and receipt by the Company of any required
representations and agreements, upon surrender of this Warrant to the Company
with the Warrant Assignment Form annexed hereto duly executed and funds
sufficient to pay any transfer tax, the Company shall, without additional
charge, execute and deliver a new Warrant in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder of the Company, either at law
or in equity, and the rights of the Holder are limited to those expressed in
this Warrant.
6. ANTI-DILUTION PROVISIONS.
6.1 ADJUSTMENTS FOR STOCK DIVIDENDS; COMBINATIONS, ETC. In
case the Company shall do any of the following (an "Event"):
(a) declare a dividend or other distribution on its Common
Shares payable in Common Shares of the Company,
(b) effect a subdivision of its outstanding Common Shares
into a greater number of Common Shares (by reclassification, stock split or
otherwise than by payment of a dividend in Common Shares),
(c) effect a combination of its outstanding Common Shares
into a lesser number of Common Shares (by reclassification, reverse split or
otherwise),
(d) issue by reclassification, exchange or substitution of
its Common Shares any shares of capital stock of the Company, or
(e) effect any other transaction having similar effect,
then the Exercise Price in effect at the time of the record date for such
dividend or other distribution or of the effective date of such subdivision,
combination, reclassification, exchange or substitution shall be changed to a
price determined by multiplying such Exercise Price by a fraction, of which the
numerator shall be the number of Common Shares outstanding immediately prior to
such Event, and the denominator shall be the number of Common Shares outstanding
immediately after such Event. Each such adjustment of the Exercise Price shall
be calculated to the nearest cent. No such adjustment shall be made in an
amount less than one cent ($.01), but any such amount shall be carried forward
and shall be
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given effect in connection with the next subsequent adjustment. Such adjustment
shall be made successively whenever any Event listed above shall occur.
6.2 ADJUSTMENT FOR CONSOLIDATION OR MERGER. In case of any
consolidation or merger to which the Company is a party, other than a merger or
consolidation in which the Company is the surviving or continuing corporation
and which does not result in any reclassification of, or change (other than a
change in par value or from par value to no par value or from no par value to
par value, or as a result of a subdivision or combination) in, outstanding
Common Shares, then, and in each such case, the Holder of this Warrant, upon the
exercise thereof as provided in Section 1, at any time after the consummation of
such consolidation or merger, shall be entitled to receive, in lieu of the
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the securities or property to which such Holder would have
been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of this
Warrant after such consummation.
6.3 ISSUANCE OF SHARES, ETC. (a) In case the Company shall
issue its Common Shares (other than (i) pursuant to Exempt Issuances, as
hereinafter defined, or (ii) upon the exercise of any rights, options, warrants,
or the conversion of any securities, as provided for in paragraph (c) hereof)
for a consideration per share less than the Exercise Price in effect on the day
immediately preceding the date of issuance, the Exercise Price shall be adjusted
immediately thereafter so that it shall equal the price determined by
multiplying the Exercise Price in effect immediately prior thereto by a
fraction, of which the numerator shall be the sum of the number of Common Shares
outstanding immediately prior to the issuance of such additional shares and the
number of Common Shares which the aggregate consideration received (determined
as provided in Section 6.5 below) for the issuance of such additional shares
would purchase at such Exercise Price and the denominator shall be the number of
Common Shares outstanding immediately after the issuance of such additional
shares. Such adjustment shall be made successively whenever any such issuance
is made.
(b) If, at any time or from time to time after the date of
this Warrant, the Company shall distribute to the holders of its outstanding
Common Shares (i) securities, other than its Common Shares, or (ii) property,
other than cash, without payment therefor, then, and in each such case, the
Holder, upon the exercise of this Warrant, shall be entitled to receive the
securities and property which the Holder would hold on the date of such exercise
if, on the date of this Warrant, the Holder had been the holder of record of the
number of Common Shares subscribed for
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upon such exercise and, during the period from the date of this Warrant to and
including the date of such exercise, had retained such shares and the securities
and properties receivable by the Holder during such period. Notice of each such
distribution shall be forthwith mailed to the Holder.
(c) In case the Company shall issue any rights, options,
warrants or securities convertible into Common Shares (other than Exempt Rights,
as hereinafter defined) entitling the holders thereof to purchase Common Shares
or to convert such securities into Common Shares at a price per share
(determined by dividing (i) the total amount, if any, received or receivable by
the Company in consideration of the issuance or sale of such rights, options,
warrants or convertible securities plus the total consideration, if any, payable
to the Company upon exercise or conversion thereof (the "Total Consideration")
by (ii) the number of additional Common Shares issuable upon exercise or
conversion of such securities) less than the Exercise Price in effect on the
date of such issuance or sale, the Exercise Price shall be adjusted as of the
date of such issuance or sale so that the same shall equal the price determined
by multiplying the Exercise Price in effect immediately prior thereto by a
fraction, the numerator of which shall be the sum of the number of Common Shares
outstanding immediately prior to such issuance or sale and the number of Common
Shares which the Total Consideration would purchase at such Exercise Price and
the denominator shall be the number of Common Shares outstanding on the date of
such issuance or sale plus the maximum number of additional Common Shares
issuable upon exercise or conversion of such securities.
(d) On the expiration of such rights, options or warrants,
or the termination of such right to convert, the Exercise Price shall forthwith
be readjusted to such Exercise Price as would have been obtained had the
adjustments made upon the issuance of such rights, options, warrants or
convertible securities been made upon the basis of the delivery of only the
number of Common Shares actually delivered or deliverable upon the exercise of
such rights, options or warrants, or upon the conversion of such securities.
(e) On an adjustment in the exercise or conversion price in
such rights, options, warrants or convertible securities, the Exercise Price
shall forthwith be readjusted to such Exercise Price as would have been obtained
had the adjustments made upon the issuance of such rights, options, warrants or
convertible securities been made upon the basis of such adjusted exercise or
conversion price.
(f) As used herein, the term "Exempt Issuances" shall mean
any issuance of Common Shares:
(i) upon the exercise of options hereafter granted to
full-time employees and non-employee directors of the
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Company pursuant to a plan or plans adopted by the Company's Board of Directors
and approved by its stockholders; provided, however, that, in order to be
considered an Exempt Issuance under this clause (i), (a) the option exercise
price must be equal to or greater than the Current Market Price Per Share on the
date of grant and (b) on the date of grant, the aggregate number of Common
Shares issuable pursuant to the exercise of (I) the options being granted and
(II) all other then outstanding options, warrants and other rights (other than
any included within clause (iii) hereof), whether or not then currently
exercisable, cannot exceed ten percent (10%) of the number of Common Shares then
issued and outstanding;
(ii) upon the exercise of options, warrants and other
rights which are outstanding as of the date hereof (whether or not currently
exercisable); or
(iii) upon the conversion or exchange of convertible or
exchangeable securities which are outstanding as of the date hereof (whether or
not currently convertible or exchangeable).
The options, warrants, rights and other securities referred to in
clauses (i), (ii) and (iii) of this paragraph (f) are hereinafter referred to
collectively as "Exempt Rights".
6.4 ADJUSTMENT IN NUMBER OF WARRANT SHARES. Whenever the
Exercise Price is adjusted as set forth in Section 6.1 or 6.3 (whether or not
the Company then or thereafter elects to issue additional Warrants in
substitution for an adjustment in the number of Warrant Shares), the number of
Warrant Shares specified in each Warrant which the Holder may purchase shall be
adjusted, to the nearest full share, by multiplying such number of Warrant
Shares immediately prior to such adjustment by a fraction, of which the
numerator shall be the Exercise Price immediately prior to such adjustment and
the denominator shall be the Exercise Price immediately thereafter.
6.5 CONSIDERATION. For purposes of any computation
respecting consideration received pursuant to Sections 6.3, the following shall
apply:
(a) in the case of the issuance of Common Shares, rights,
options, warrants or convertible securities for cash, the consideration shall be
the amount of such cash, without deduction for any commissions, discounts or
other expenses incurred by the Company for any underwriting of the issuance or
otherwise in connection therewith; and
(b) in the case of the issuance of Common Shares, rights,
options, warrants or convertible securities for a consideration in whole or in
part other than cash, the
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consideration shall be deemed to be the fair market value thereof as determined
in good faith by the Board of Directors of the Company (irrespective of the
accounting treatment thereof), whose determination shall be conclusive.
6.6 CURRENT MARKET PRICE PER SHARE. As used herein, the
term "Current Market Price Per Share" shall mean the closing bid price, or, if
not available, the highest bid price, of the Common Shares as quoted on a
national securities exchange, or in the over-the-counter market as reported by
NASDAQ or, if not available, by the National Quotation Bureau, Incorporated, as
the case may be (or, if there is no bid price on a particular day, then the
closing bid price or, if not available, the highest bid price on the nearest
trading date before that day and for which such prices are available), and if
the Common Shares are not listed on such an exchange or traded in such a market
on such particular day, then the Current Market Price Per Share shall be
determined by the Board of Directors by taking into consideration all relevant
factors, including, but not limited to, the Company's net worth, prospective
earning power and dividend paying capacity.
7. [INTENTIONALLY OMITTED]
8. RESTRICTIONS ON EXERCISE.
(a) Unless, prior to the exercise of this Warrant, the
Warrant Shares have been registered with the Securities and Exchange Commission
pursuant to the Act, the notice of exercise shall be accompanied by a
representation of the Holder to the Company to the effect that such shares are
being acquired for investment and not with a view to the distribution thereof,
and such other representations and documentation as may be required by the
Company, unless in the opinion of counsel to the Company such representations or
other documentation is not necessary to comply with such Act.
(b) The Company shall not be obligated to deliver any
Warrant Shares unless and until they have been listed on each securities
exchange or other self-regulatory body on which the Company's Common Shares may
then be listed or until there has been qualification under or compliance with
such federal or state laws, rules or regulations as the Company may deem
applicable. The Company shall use its best efforts to obtain such listing,
qualification and compliance.
9. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
9.1 TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
Neither this Warrant nor any Warrant Shares may be Transferred except as
follows: (a) to a person who, in the opinion of counsel satisfactory to the
Company, is a person to whom this
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Warrant or the Warrant Shares may legally be Transferred without registration
and without the delivery of a current prospectus under the Act with respect
thereto and then only against receipt of an agreement of such person to comply
with the provisions of this Section 9 with respect to any Transfer of such
securities; or (b) to any person upon delivery of a prospectus then meeting the
requirements of the Act relating to such securities and the offering thereof for
such Transfer.
9.2 LEGEND. Subject to the terms hereof, upon exercise of
this Warrant and the issuance of the Warrant Shares, all certificates
representing such Warrant Shares shall bear on the face or reverse thereof
substantially the following legend:
"The shares represented by this
certificate have not been registered
under the Securities Act of 1933, as
amended, and may not be sold, offered
for sale, p ledged, transferred,
assigned or otherwise disposed of unless
registered pursuant to the provisions of
such Act or an opinion of counsel to the
Company is obtained stating that such
sale, offer for sale, pledge, transfer,
assignment or other disposition is in
compliance with an available exemption
from such registration."
9.3 REGISTRATION RIGHTS. Simultaneously herewith, the
Company and the Holder, among others, are entering into a Loan and Registration
Rights Agreement covering, among other matters, the registration of the Warrant
Shares under the Act for resale by the Holder.
10. LOST, STOLEN OR DESTROYED WARRANTS. In the event that the
Holder notifies the Company that this Warrant has been lost, stolen or destroyed
and either (a) provides a letter, in form satisfactory to the Company, to the
effect that he will indemnify the Company from any loss incurred by it in
connection therewith, and/or (b) provides an indemnity bond in such amount as is
reasonably required by the Company, the Company having the option of electing
either (a) or (b) or both, the Company shall accept such letter and/or indemnity
bond in lieu of the surrender of this Warrant as required by Section 1 hereof.
11. APPLICABLE LAW. This Warrant is issued under, and shall for
all purposes be governed by and construed in accordance with, the laws of the
State of Delaware, excluding choice of law principles thereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed on its behalf, in its corporate name, by its duly authorized officer, all
as of the day and year first above written.
PC ETCETERA, INC.
By:
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PC ETCETERA, INC.
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant dated December 5, 1995 and expiring on December 5, 2000 with respect to
Common Shares of PC Etcetera, Inc.
EXERCISE METHOD: [Check applicable box and complete]
[ ] The undersigned hereby makes a payment of $______ in payment
therefor.
[ ] The undersigned hereby elects to receive a lesser number of
Common Shares than set forth above pursuant to the Net Exercise
provisions of Section 1.2 of the Warrant.
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Name of Holder
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Signature of Holder
or Authorized Representative
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Signature, if jointly held
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Name and Title of Authorized
Representative
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Address of Holder
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Date
PC ETCETERA, INC.
WARRANT ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________________________________________
hereby sells, assigns and transfers unto
Name
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(Please typewrite or print name of assignee in block letters)
Address
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the right to purchase Common Shares of PC Etcetera, Inc. represented by this
Warrant dated December 5, 1995 and expiring on December 5, 2000 to the extent of
_____________ shares and does hereby irrevocably constitute and appoint ________
___________________, attorney, to transfer the same on the books of the Company
with full power of substitution in the premises.
Dated: , 19
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Name of Holder
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Signature of Holder or
Authorized Representative
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Signature, if jointly held
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Name and Title of Authorized
Representative
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Date
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Signature(s) guaranteed:
