Exhibit 3
NEITHER THIS WARRANT NOR ANY SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS, AND NEITHER THIS WARRANT NOR ANY
SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE ACT AND SUCH STATE
SECURITIES LAWS, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND SUCH STATE
SECURITIES LAWS.
E-SYNC NETWORKS, INC.
COMMON STOCK PURCHASE WARRANT
THIS IS TO CERTIFY that CRC, INC., a New York corporation ("CRC"), or its
registered assigns, is entitled to purchase from E-Sync Networks, Inc., a
Delaware corporation (the "Company"), at any time on and after the Date of
Issuance but not later than 5:00 p.m., New York City time, on the date (the
"Expiration Date") that is the later of (i) February 13, 2012 or (ii) the second
anniversary of the repayment of all of the Loans (as hereinafter defined),
2,526,942 Stock Units (as hereinafter defined) at the Exercise Price, subject to
the terms and conditions herein provided.
This Warrant is being issued to CRC in connection with CRC providing the
Loans to the Company.
The regulations of the Internal Revenue Service now in effect require
determination of the value of this Warrant. Accordingly, it is therefore agreed
by the Company and CRC that for federal income tax purposes the amount of the
issue price allocated to this Warrant is $0.00 in the aggregate, which shall be
the value ascribed to this Warrant by the Company and CRC for all purposes,
including the preparation of tax returns and the preparation of the Company's
and CRC's financial statements.
As used in this Warrant, the following terms have the following
respective meanings:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Affiliate" has the meaning set forth in Rule 405 under the Act.
(c) "Company" has the meaning set forth in the preamble of this Warrant.
(d) "Convertible Security" means Securities of the Company which may be
convertible into Shares.
(e) "CRC" has the meaning set forth in the preamble of this Warrant.
(f) "Date of Issuance" means the date set forth next to the signature of
the Company on the signature page hereof.
(g) "Exercise Price" means $0.122, the price at which this Warrant is
convertible into Shares, subject to adjustment as provided herein.
(h) "Expiration Date" has the meaning set forth in the preamble of this
Warrant.
(i) "Holder" means any owner of all or any part of this Warrant from time
to time.
(j) "Loans" means, collectively, all amounts advanced or loaned to Company
by CRC.
(k) "Securities" has the meaning assigned to such term in the Act or any
rule or regulation thereunder.
(l) "Shares" means shares of the Company's common stock, par value $0.01
per share.
(m) "Stock Unit" means one (1) Share, as same may be adjusted from time to
time in accordance with Section 4(a) below, and shall include any additional
securities, cash or property in respect thereof in accordance with Section 4
below.
(n) "Warrant" means this Common Stock Purchase Warrant, as same may be
amended from time to time in accordance herewith.
(o) "Warrant Stock" means, collectively, (i) the Shares purchasable by the
Holder hereof upon the exercise of this Warrant, and (ii) any other securities
forming a part of any Stock Unit in accordance with Section 4 below.
2. Exercise of Warrant.
-------------------
(a) In order to exercise this Warrant, in whole or in part, the Holder
hereof shall deliver to the Company, at its office set forth in Section 9 below,
at any time and from time to time between the Date of Issuance and the
Expiration Date, (i) a written notice in the form of the Form of Exercise Notice
attached hereto as Exhibit A (the "Exercise Notice"), (ii) such Holder's check
payable to the Company in an aggregate amount equal to the aggregate Exercise
Price for those Stock Units specified in the Exercise Notice, and (iii) this
Warrant; provided, however, that this Warrant may only be partially exercised
for a minimum of 200,000 Shares per Exercise Notice. Upon receipt thereof, the
Company shall, as promptly as practicable and in any event within three (3) days
thereafter, cause to be executed and delivered to such Holder a certificate or
certificates representing the aggregate number of fully paid and nonassessable
shares of Warrant Stock, or any other property forming a part of the subject
Stock Unit(s) or both, issuable upon such exercise. Subject to the provisions of
this Section 2(a), such stock certificate(s) shall be in such denominations as
may be specified in the Holder's notice, and shall be registered in the name of
such Holder or such other name or names as shall be designated in such notice.
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(b) In addition to the method of payment set forth in Section 2(a) and in
lieu of any cash payment required thereunder, the Holder of the Warrant shall
have the right at any time and from time to time to exercise the Warrant in
whole or in part by surrendering the Warrant in the manner specified in Section
2(a) above in exchange for that number of Shares equal to the product of (x) the
number of shares as to which such Warrant is being exercised multiplied by (y) a
fraction, the numerator of which is the market price of the Shares less the
Exercise Price and the denominator of which is such market price. Solely for the
purposes of this Section 2(b), "market price" shall be calculated on the date on
which notice of the Holder's election to exercise is given pursuant to Section
2(a) above. The "market price" shall be the average of the closing sale prices
of the Shares as reported by Bloomberg Financial Markets or if not so reported
then as published in a nationally recognized daily publication, for the 60
consecutive trading days ending on the day prior to the date of exercise. Any
fractional share resulting from such cashless exercise shall be eliminated.
(c) All certificates representing Warrant Stock as aforesaid shall be
deemed to have been issued, and the Holder or other person designated to be
named therein shall be deemed to become a holder of record of the subject
Warrant Stock (including, to the extent permitted by law, the right to vote such
securities or grant consents therefor or receive notices as a stockholder), as
of the time the Holder's notice and payment is received by the Company as
aforesaid. If this Warrant shall have been exercised only in part, the Company
shall, concurrently with its delivery pursuant to Section 2(a) above, cancel
this Warrant and deliver to the subject Holder a new warrant (in substantially
the form of this Warrant) evidencing the rights of such Holder to purchase the
remaining Stock Units called for by this Warrant.
(d) All Warrant Stock issuable upon the exercise of this Warrant in whole
or in part shall, upon payment therefor in accordance herewith, be validly
issued, fully paid and nonassessable.
3. Transfer and Assignment.
-----------------------
This Warrant and all rights hereunder are transferable, in whole or in
part, on the books of the Company to be maintained for such purposes, upon
surrender of this Warrant at the office of the Company set forth in Section 9
below, accompanied by a written assignment duly executed by the Holder hereof
indicating the number of Warrants being transferred and the name, address and
tax identification number of each transferee. Upon any such delivery, the
Company shall execute and deliver to the Holder or the transferee(s) or both (as
the case may be) new warrants (in substantially the form of this Warrant) in the
appropriate denominations, and this Warrant shall thereupon be canceled.
4. Adjustment of Exercise Price and Number of Shares. In order to prevent
dilution of the rights granted under this Warrant and grant the Holder hereof
certain additional rights, the Exercise Price and the number of Shares or any
other property then constituting a Stock Unit obtainable upon exercise of this
Warrant shall be subject to adjustment from time to time as provided in this
Section 4.
(a) Adjustment of Exercise Price upon Issuance of Common Stock. If and
whenever on or after the Date of Issuance, the Company issues or sells, or in
accordance with Section 4(b)
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is deemed to have issued or sold, any Share for a consideration per share less
than the Exercise Price in effect immediately prior to such issuance or sale,
then immediately upon such issuance or sale the Exercise Price shall be reduced
to a price (rounded to the nearest cent) determined by multiplying the Exercise
Price in effect immediately prior thereto by a fraction, the numerator of which
shall be (x) the sum of (A) the number of Shares outstanding immediately prior
to the issuance or sale of such additional Shares multiplied by the Exercise
Price in effect immediately prior thereto plus (B) the aggregate consideration
received by the Company (determined as provided in Section 4(b)(iv)) for the
issuance or sale of such additional Shares, and the denominator of which shall
be (y) the product of the number of shares outstanding immediately after the
issuance or sale of such additional Shares and the Exercise Price in effect
immediately prior thereto. No adjustment of the Exercise Price shall be made
upon the issuance or sale of Shares (i) pursuant to the exercise or conversion
of warrants, options or other convertible securities outstanding on the date
hereof as set forth on Schedule 4(a) attached hereto and (ii) with the unanimous
consent of the Holder(s) of the Warrant.
(b) Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under Section 4(a), the following shall
be applicable:
(i) Issuance of Rights or Options. If the Company in any manner grants
or sells any options to purchase Shares or Convertible Securities
("Options") and the lowest price per share for which any one Share is
issuable upon the exercise of any such Option, or upon conversion or
exchange of any Convertible Security issuable upon exercise of such
Option, is less than the Exercise Price in effect immediately prior to the
time of the granting or sale of such Option, then such Share shall be
deemed to have been issued and sold by the Company at such time for such
price per share. For purposes of this paragraph, the "lowest price per
share for which any one Share is issuable" shall be equal to the sum of
the lowest amounts of consideration (if any) received or receivable by the
Company with respect to any one Share upon the granting or sale of the
Option, upon exercise of the Option and upon conversion or exchange of the
Convertible Security. No further adjustment of the Exercise Price shall be
made upon the actual issue of such Shares or of such Convertible
Securities upon the exercise of such Options or upon the actual issue of
such Shares upon conversion or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner
issues or sells any Convertible Security and the lowest price per share
for which any one Share is issuable upon conversion or exchange thereof is
less than the Exercise Price in effect immediately prior to the time of
such issue or sale, then such Share or Shares shall be deemed to have been
issued and sold by the Company at such time for such price per share. For
the purposes of this paragraph, the "lowest price per share for which any
one Share is issuable" shall be equal to the sum of the lowest amounts of
consideration (if any) received or receivable by the Company with respect
to any one Share upon the issuance of the Convertible Security and upon
the conversion or exchange of such Convertible Security. No further
adjustment of the Exercise Price shall be made upon the actual issue of
such Shares upon conversion or exchange of any Convertible Security, and
if any such issue or sale of such Convertible Security is made upon
exercise of any Options for which adjustments of the Exercise Price had
been or are to be made pursuant
4
to other provisions of this Section 2, no further adjustment of the
Exercise Price shall be made by reason of such issue or sale.
(iii) Change in Option Price or Conversion Rate. If the purchase price
provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion or exchange of any Convertible Securities, or
the rate at which any Convertible Securities are convertible into or
exchangeable for Shares changes at any time, the Exercise Price in effect
at the time of such change shall be adjusted immediately to the Exercise
Price which would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed
purchase price, additional consideration or changed conversion rate, as
the case may be, at the time initially granted, issued or sold and number
of Shares issuable hereunder shall be correspondingly adjusted; provided,
that if such adjustment would result in an increase of the Exercise Price
then in effect, such adjustment shall not occur. For purposes of this
Section 4(b), if the terms of any Option or Convertible Security which was
outstanding as of the Date of Issuance are changed in the manner described
in the immediately preceding sentence, then such Option or Convertible
Security and the Shares deemed issuable upon exercise, conversion or
exchange thereof shall be deemed to have been issued as of the date of
such change; provided, that no such change shall at any time cause the
Exercise Price hereunder to be increased.
(iv) Calculation of Consideration Received. If any Shares, Options or
Convertible Securities are issued or sold or deemed to have been issued or
sold for cash, the consideration received therefor shall be deemed to be
the net amount received by the Company therefor. In case any Shares,
Options or Convertible Securities are issued or sold for a consideration
other than cash, the amount of the consideration other than cash received
by the Company shall be the fair value of such consideration, except where
such consideration consists of securities, in which case the amount of
consideration received by the Company shall be the fair market value
thereof as of the date of receipt. In case any Shares, Options or
Convertible Securities are issued to the owners of the non-surviving
entity in connection with any merger in which the Company is the surviving
corporation, the amount of consideration therefor shall be deemed to be
the fair value of such portion of the net assets and business of the
non-surviving entity as is attributable to such Shares, Options or
Convertible Securities, as the case may be. The fair value of any
consideration other than cash or securities shall be determined jointly by
the Company and the Holder of the Warrant. If such parties are unable to
reach agreement within a reasonable period of time, such fair value shall
be determined by an appraiser jointly selected by the Company and the
Holder of the Warrant. The determination of such appraiser shall be final
and binding on the Company and the Holder of the Warrant, and the fees and
expenses of such appraiser shall be paid by the Company.
(v) Integrated Transactions. In case any Option is issued in
connection with the issue or sale of other securities of the Company,
together comprising one integrated transaction in which no specific
consideration is allocated to such Options by the parties thereto, the
Options shall be deemed to have been issued without consideration.
5
(vi) Treasury Shares. The disposition of any Shares owned or held by
or for the account of the Company or any subsidiary shall be considered an
issue or sale of Shares.
(vii) Record Date. If the Company takes a record of the holders of
Shares for the purpose of entitling them (A) to receive a dividend or
other distribution payable in Shares, Options or in Convertible Securities
or (B) to subscribe for or purchase Shares, Options or Convertible
Securities, then such record date shall be deemed to be the date of the
issue or sale of the Shares deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or purchase, as the
case may be.
(c) Subdivision or Combination of Common Stock. If the Company at any time
subdivides (by any stock split, stock dividend, recapitalization or otherwise)
one or more classes of its outstanding Shares into a greater number of Shares,
the Exercise Price in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Shares obtainable upon exercise of
this Warrant shall be proportionately increased. If the Company at any time
combines (by reverse stock split or otherwise) one or more classes of its
outstanding shares into a smaller number of Shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased and the
number of Shares obtainable upon exercise of this Warrant shall be
proportionately decreased.
(d) Reorganization, Reclassification, Consolidation, Merger or Sale. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the Company's assets or other transaction, in
each case which is effected in such a way that the holders of Shares are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Shares is referred to
herein as "Organic Change." Prior to the consummation of any Organic Change, the
Company shall make appropriate provision (in form and substance satisfactory to
the Holder of the Warrant) to insure that the Holder of the Warrant shall
thereafter have the right to acquire and receive, in lieu of or addition to (as
the case may be) the Shares immediately theretofore acquirable and receivable
upon the exercise of such Holder's Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for the number
of Shares immediately theretofore acquirable and receivable upon exercise of
such Holder's Warrant had such Organic Change not taken place. In any such case,
the Company shall make appropriate provision (in form and substance reasonably
satisfactory to the Holder of the Warrant) with respect to such Holder's rights
and interests to insure that the provisions of this Section 4 hereof shall
thereafter be applicable to the Warrant (including, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing entity
is other than the Company, an immediate adjustment of the Exercise Price to the
value for the Shares reflected by the terms of such consolidation, merger or
sale, and a corresponding immediate adjustment in the number of Shares
acquirable and receivable upon exercise of the Warrant, if the value so
reflected is less than the Exercise Price in effect immediately prior to such
consolidation, merger or sale). The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof, the
successor entity (if other than the Company) resulting from consolidation or
merger or the entity purchasing such assets assumes by written instrument (in
form and substance satisfactory to the Holder of the Warrant), the obligation to
deliver to each
6
such holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to acquire.
(e) Certain Events. If any event occurs of the type contemplated by the
provisions of this Section 4 but not expressly provided for by such provisions
(including, without limitation, the granting of stock appreciation rights,
phantom stock rights or other rights with equity features), then the Board of
Directors shall make an appropriate adjustment in the Exercise Price and the
number of Shares obtainable upon exercise of this Warrant so as to protect the
rights of the Holder of the Warrant; provided, that no such adjustment shall
increase the Exercise Price or decrease the number of Shares obtainable as
otherwise determined pursuant to this Section 4.
(f) Liquidating Dividends. If the Company declares or pays a dividend upon
the Shares payable otherwise than in cash out of earnings or earned surplus
(determined in accordance with generally accepted accounting principles,
consistently applied) except for a stock dividend payable in Shares (a
"Liquidating Dividend"), then the Company shall pay to the registered Holder of
this Warrant at the time of payment thereof the Liquidating Dividend which would
have been paid to such registered Holder on the Shares had this Warrant been
fully exercised immediately prior to the date on which a record is taken for
such Liquidating Dividend, or, if no record is taken, the date as of which the
record holders of Shares entitled to such Liquidating Dividend is to be
determined.
(g) Purchase Rights. If at any time the Company grants, issues or sells
any Options, Convertible Securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of any class of
capital stock (the "Purchase Rights"), then the Holder of this Warrant shall be
entitled to acquire, upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which such Holder could have acquired if such Holder
had held the number of Shares acquirable upon complete exercise of this Warrant
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders of Shares are to be determined for the grant, issue or
sale of such Purchase Rights.
(h) Adjustment of Number of Shares. Upon each adjustment of the Exercise
Price as a result of the calculations made in Section 4 hereof, the number of
Shares for which this Warrant is exercisable immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase, at the adjusted
Exercise Price, that number of Shares obtained by (i) multiplying the number of
Shares covered by this Warrant immediately prior to this adjustment by the
Exercise Price in effect immediately prior to such adjustment of the Exercise
Price and (ii) dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment of the Exercise Price.
5. Notice of Certain Events.
------------------------
(a) As soon as practicable following any adjustment of the Exercise Price,
the Company shall give written notice thereof to the Holder, setting forth in
reasonable detail and certifying the calculation of such adjustment.
7
(b) The Company shall give written notice to the Holder at least ten (10)
days prior to the date on which the Company closes its books or takes a record
(i) with respect to any dividend or distribution upon the Shares, (ii) with
respect to any pro rata subscription offer to holders of Shares or (iii) for
determining rights to vote with respect to any Liquidating Dividend, Organic
Change or other dissolution or liquidation; provided, however, if notice of the
foregoing is given earlier to the Company's other stockholders of record, notice
to the Holder shall be given at such earlier time.
(c) The Company shall also given written notice to the registered Holder
at least ten (10) days prior to the date on which any Liquidation Event, Organic
Change or other dissolution or liquidation shall take place; provided, however,
if notice of the foregoing is given earlier to the Company's other stockholders
of record, notice to the Holder shall be given at such earlier time.
6. Capitalization; Reservation of Shares.
(a) The Company hereby represents and warrants to CRC that the number of
Shares for which this Warrant is exercisable as of the Date of Issuance, in the
aggregate, represents 10% (the "Threshold Percentage") of the voting stock of
the Company on a fully-diluted as-if-converted basis (i.e., 10% of all Shares
outstanding as of the Date of Issuance and all Shares underlying options,
warrants, preferred shares or other interests outstanding as of the Date of
Issuance which are exercisable, convertible or exchangeable for Shares,
including after giving effect to the issuance of this Warrant). In the event
that such number of Shares does not equal the Threshold Percentage as a result
of the existence of any Shares (or options or other interests exercisable,
convertible or exchangeable for Shares) which are not disclosed to CRC on or
before the Date of Issuance, the number of Shares to be issued upon exercise of
this Warrant shall be automatically increased (pro rata to each Holder and
without any further action by the Holders) by that number of Shares that when
added to the Shares which would otherwise be issued to the Holders upon exercise
of the Warrant shall equal an amount of Shares which represents the Threshold
Percentage. Any such adjustment shall be made promptly upon determination of the
discrepancy with the Threshold Percentage, whether such determination is made
before or after the Date of Issuance.
(b) The Company shall at all times reserve and keep available for issuance
upon the exercise hereof such number of authorized but unissued Shares as shall
be sufficient to permit the full exercise of this Warrant.
7. Expenses.
--------
The Company shall pay any and all reasonable expenses, transfer taxes and
other charges, including all costs associated with the preparation, issuance and
delivery of stock or warrant certificates, that may be incurred in respect of
the issuance or delivery of Warrant Stock upon any exercise of this Warrant.
8. No Rights as Stockholder.
------------------------
This Warrant shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.
8
9. Notices.
-------
Any and all notices to be given to the Company hereunder shall be given to
the Company at its offices located at c/o Xxxxxxx X. Xxxxx, 00 Xxxx Xxxxxx,
Xxxxxxx, XX 00000. Any and all notices to be given to the Holder hereof shall be
given to such Holder at its address as same appears on the records of the
Company.
10. Registration.
------------
(a) Legend. Upon exercise, in part or in whole, of the Warrants,
certificates representing the Warrant Stock shall bear the following legend:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("Act"), and may not be
offered or sold except pursuant to (i) an effective registration statement
under the Act, (ii) to the extent applicable, Rule 144 under the Act (or
any similar rule under such Act relating to the disposition of
securities), or (iii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel of the issuer, that an exemption from
registration under such Act is available."
(b) Registration Rights. Upon exercise, in part or in whole, of the
Warrants, the Warrant Stock shall have the registration rights set forth in the
Registration Rights Agreement, dated February 13, 2002, by and between the
Company and CRC.
11. Miscellaneous.
-------------
(a) No provision hereof, in the absence of affirmative action by the
Holder to effect any exercise hereunder, shall give rise to any liability of
such Holder for the Exercise Price or as a stockholder of the Company,
regardless of whether such liability is asserted by the Company or by any
creditor or creditors of the Company.
(b) Neither this Warrant nor any of the terms or conditions hereof may be
waived, amended or modified, except with the written consent of the Company and
a majority in interest of the Warrant Stock.
(c) This Warrant shall be governed by, interpreted under and construed in
accordance with the internal laws of the State of New York applicable to
contracts executed and to be performed wholly in that state without giving
effect to the choice or conflict of laws principles or provisions thereof. The
parties agree that any and all disputes, claims or controversies arising out of
or relating to this Warrant that are not resolved by their mutual agreement
shall be submitted to final and binding arbitration before JAMS, or its
successor, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1, et
seq. Any party may commence the arbitration process called for in this Warrant
by filing a written demand for arbitration with JAMS, with a copy to the other
party. The arbitration will be conducted in accordance with the provisions of
JAMS' Comprehensive Arbitration Rules and Procedures in effect at the time of
filing of the demand for arbitration. The parties will cooperate with JAMS and
with one another in selecting an arbitrator from JAMS' panel of neutrals, and in
scheduling the arbitration proceedings. The parties covenant that they will
participate in the arbitration in good faith, and that they will share equally
9
in its costs. The provisions of this paragraph may be enforced by any court of
competent jurisdiction, and the party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including attorney fees, to be paid by
the party against whom enforcement is ordered. The Company hereby irrevocably
submits to the jurisdiction of any state or federal court sitting in the City,
County and State of New York in respect of any enforcement proceeding arising
out of or relating to this Warrant, which courts shall have exclusive
jurisdiction over and with respect to any such enforcement proceeding, and
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, jurisdiction of the aforesaid courts. The Company hereby
irrevocably waives, to the fullest extent such party may effectively do so under
applicable law, trial by jury and any objection that such party may now or
hereafter have to the laying of venue of any enforcement proceeding brought in
any such court and any claim that any such enforcement proceeding brought in any
such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Holder to serve process in any manner permitted by law
or to commence enforcement proceedings or otherwise proceed against the Company
in any other jurisdiction.
(d) The captions and section headings used in this Warrant are for
convenience of reference only, and shall not be referred to in connection with
any interpretation or construction hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company, having validly authorized the issuance of
this Warrant and all performance hereunder, has caused this Warrant to be
executed by its duly authorized officer on the Date of Issuance.
Dated: February 13, 2002
E-SYNC NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Operating Officer
EXHIBIT A
FORM OF EXERCISE NOTICE
(To be Executed by the Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably exercises the right to purchase
_______________ of the shares of common stock of E-Sync Networks, Inc., a
Delaware corporation (the "Company"), evidenced by the attached Warrant, and
herewith makes payment of the Exercise Price with respect to such shares in
full/ elects to effect a cashless exercise pursuant to the terms of the Warrant,
pursuant to which the undersigned is surrendering the right to purchase
_______________ shares for an Exercise Price of $_______________, with the
current market price being $_______________, all in accordance with the
conditions and provisions of said Warrant.
The undersigned represents and warrants that the representations in
Section 5.5 of that certain Contribution Agreement, dated as of August 6, 2001
by and among the E-Sync Networks, LLC, a Delaware limited liability company, the
Company and CRC, Inc., a New York corporation, are true and correct in all
material respects as of the date hereof, as if made on the date hereof.
The undersigned agrees not to offer, sell, transfer or otherwise dispose
of any Common Stock obtained on exercise of the Warrant, except under
circumstances that will not result in a violation of the Securities Act of 1933,
as amended, or any state securities laws.
The undersigned requests that stock certificates for such shares be
issued, and a Warrant representing any unexercised portion hereof be issued,
pursuant to the Warrant in the name of the Holder (or such other person or
persons indicated below) and delivered to the undersigned (or designees) at the
address (or addresses) set forth below:
Date:
--------------------- ------------------------------
Signature of Holder
______________________________
Name of Holder (Print)
Address:
______________________________
______________________________
