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EXHIBIT 4.2
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT
("COMMON STOCK") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("ACT"), OR ANY STATE SECURITIES LAW. THESE WARRANTS AND THE COMMON
STOCK ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER
REGULATION S ("REGULATION S") PROMULGATED UNDER THE ACT. NEITHER THE WARRANTS
NOR COMMON STOCK MAY BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN THE UNITED
STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN REGULATION S) DURING THE
RESTRICTED PERIOD, AND THEREAFTER ONLY IF THESE SECURITIES ARE REGISTERED UNDER
THE ACT AND APPLICABLE STATE SECURITIES LAWS, OR SUCH OFFERS, SALES OR
TRANSFERS ARE MADE PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS.
WARRANT CERTIFICATE _______COMMON STOCK PURCHASE WARRANTS
HALIS, INC.
COMMON STOCK PURCHASE WARRANTS
(These Warrants will be void if not exercised
by the Termination Date specified below.)
1. Warrants. Subject to the terms and conditions hereof, this
certifies _________________ that with an address of is the owner of ____________
Common Stock Purchase Warrants (the "Warrants") of HALIS, Inc., a Georgia
corporation (the "Company"). Each Warrant entitles the holder hereof to purchase
from the Company at any time prior to 6:00 p.m., Atlanta, Georgia time on
December __, 2002 (the "Termination Date"), one fully paid and non-assessable
share of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), subject to adjustment as provided in Section 7 hereof.
2. Exercise Price. The Warrants shall be exercised by delivery
to the Company (prior to the Termination Date) of the exercise price for each
share of Common Stock being purchased hereunder (the "Exercise Price"), this
Certificate, the written certification or written opinion described in paragraph
3.a., and the completed Election To Purchase Form which is attached hereto. The
Exercise Price shall be US$______ per share of Common Stock. The Exercise Price
shall be subject to adjustment as provided in Section 7 hereof. The Exercise
Price is payable either in cash or by certified check or bank draft payable to
the order of the Company.
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3. Exercise.
a. Prior to exercising a Warrant, the holder of this Warrant
Certificate is required to give a written certification that such holder is not
a U.S. Person (as that term is defined in Rule 902(o) of Regulation S, a copy
of which is attached hereto as Exhibit "A") and the Warrant is not being
exercised on behalf of a U.S. Person, or a written opinion of counsel, in form
and substance satisfactory to the Company, to the effect that the Warrant and
the Common Stock delivered upon exercise thereof have been registered under the
Act or are exempt from registration thereunder.
b. Upon the surrender of this Certificate, provision of the
written certification or written opinion described in paragraph 3.a., and
payment of the Exercise Price as aforesaid, the Company shall issue and cause
to be delivered with all reasonable dispatch to or upon the written order of
the registered holder of this Warrant and in such name or names as the
registered holder may designate, a certificate or certificates for the number
of full shares of Common Stock so purchased upon the exercise of any Warrant.
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become a
holder of record of such Common Stock on and as of the date of the delivery to
the Company of this Certificate and payment of the Exercise Price as aforesaid.
If, however, at the date of surrender of this Certificate, provision of the
written certification or written opinion described in paragraph 3.a., and
payment of such Exercise Price, the transfer books for the Common Stock
purchasable upon the exercise of any Warrant shall be closed, the certificates
for the Common Stock in respect to which any such Warrant are then exercised
shall be issued and the owner of such Common Stock shall become a record owner
of such Common Stock on and as of the next date on which such books shall be
opened, and until such date the Company shall be under no duty to deliver any
certificate for such Common Stock.
c. The holder hereof acknowledges that the Company will
implement procedures to ensure that the Warrant may not be exercised within the
United States and that the Common Stock delivered upon exercise thereof may not
be delivered within the United States, other than in connection with Offshore
Transactions as defined in Regulation S, unless registered under the Act or an
exemption from such registration is available.
d. It is the intent of holder hereof that upon the exercise
of this Warrant, the issuance of the Shares would be pursuant to Regulation S.
If on the date of exercise the issuance of the Shares by the Company to the
holder would have qualified under Regulation S as in effect on the date hereof
but does not qualify on such exercise date because of an amendment to
Regulation S promulgated after the date hereof, the Company shall use its best
efforts to register the Shares under the Act for resale by the holder, unless
with the good faith cooperation of holder the Shares may be issued to the
holder in a transaction exempt from registration (e.g., pursuant to Section
4(2), Section 4(6), Regulation D). Such registration shall be at the cost and
expense of the Company.
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4. Partial Exercise. The rights of purchase represented by the
Warrants shall be exercisable, at the election of the registered holder hereof,
either as an entirety, or from time to time for any part of the Common Stock
specified herein and, in the event that the Warrants are exercised with respect
to less than all of the Common Stock specified herein at any time prior to the
Termination Date, a new Certificate will be issued to such registered holder
for the remaining number of Warrants not so exercised.
5. Termination Date. All of the Warrants must be exercised in
accordance with the terms hereof prior to the Termination Date. At and after
the Termination Date any and all unexercised rights hereunder shall become null
and void and all such unexercised Warrants shall without any action on behalf
of the Company become null and void.
6. Lost, Mutilated Certificate. In case this Common Stock Purchase
Warrant Certificate shall become mutilated, lost, stolen or destroyed, the
Company shall issue in exchange and substitution for and upon cancellation of
the mutilated certificate, or in lieu of and in substitution for the
Certificate lost, stolen, or destroyed, a new Certificate of like tenor and
representing an equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company of such loss, theft or destruction of such
certificate and indemnity, if requested, also satisfactory to the Company.
7. Adjustments. Subject and pursuant to the provisions of this Section
7, the Exercise Price and number of shares of Common Stock subject to the
Warrants shall be subject to adjustment from time to time only as set forth
hereinafter:
a. In case the Company shall declare a Common Stock dividend on the
Common Stock, then the Exercise Price shall be proportionately decreased as of
the close of business on the date of record of said Common Stock dividend in
proportion to such increase of outstanding shares of Common Stock.
b. If the Company shall at any time subdivide its outstanding
Common Stock by recapitalization, reclassification or split-up thereof, the
Exercise Price immediately prior to such subdivision shall be proportionately
decreased, and, if the Company shall at any time combine the outstanding shares
of Common Stock by recapitalization, reclassification, or combination thereof,
the Exercise Price immediately prior to such combination shall be
proportionately increased. Any such adjustment to the Exercise Price shall
become effective at the close of business on the record date for such
subdivision or combination. The Exercise Price shall be proportionately
increased or decreased, as the case may be, in proportion to such increase or
decrease, as the case may be, of outstanding shares of Common Stock.
c. Upon any adjustment of the Exercise Price as hereinabove
provided, the number of shares of Common Stock issuable upon exercise of the
Warrants remaining unexercised immediately prior to any such adjustment, shall
be changed to the number of shares determined by dividing (i) the Exercise
Price payable for the purchase of all shares of Common Stock issuable upon
exercise of all of the Warrants remaining unexercised immediately prior to
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such adjustment of the Exercise Price by (ii) the Exercise Price per share of
Common Stock in effect immediately after such adjustment. Pursuant to this
formula, the total sum payable to the Company upon the exercise of the Warrants
remaining unexercised immediately prior to such adjustment shall remain
constant.
d. (i) If any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with another corporation, person, or entity, or the sale of all or
substantially all of its assets to another corporation, person, or entity,
shall be effected in such a way that holders of Common Stock shall be entitled
to receive stock, securities, cash, property, or assets with respect to or in
exchange for Common Stock, and provided no election is made by the Company
pursuant to subsection (ii) hereof, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, the Company or
such successor or purchasing corporation, person, or entity, as the case may
be, shall agree that the registered holder of the Warrants shall have the right
thereafter and until the Termination Date to exercise such Warrants for the
kind and amount of stock, securities, cash, property, or assets receivable upon
such reorganization, reclassification, consolidation, merger, or sale by a
holder of the number of shares of Common Stock for the purchase of which such
Warrants might have been exercised immediately prior to such reorganization,
reclassification, consolidation, merger or sale, subject to such subsequent
adjustments which shall be equivalent or nearly equivalent as may be
practicable to the adjustments provided for in this Section 7.
e. Whenever the Exercise Price and number of shares of Common
Stock subject to this Warrant Certificate is adjusted as herein provided, the
Company shall promptly mail to the registered holder of this Warrant
Certificate a statement signed by an officer of the Company setting forth the
adjusted Exercise Price and the number of shares of Common Stock subject to
this Warrant Certificate, determined as so provided.
f. This form of Certificate need not be changed because of
any adjustment which is required pursuant to this Section 7. However, the
Company may at any time in its sole discretion (which shall be conclusive) make
any change in the form of this Certificate that the Company may deem
appropriate and that does not affect the substance hereof; and any Certificate
thereafter issued, whether in exchange or substitution for this Certificate or
otherwise, may be in the form as so changed.
8. Reservation.
a. There has been reserved, and the Company shall at all
times keep reserved out of the authorized and unissued shares of Common Stock,
a number of shares of Common Stock sufficient to provide for the exercise of
the right of purchase represented by the Warrants. The Company agrees that all
shares of Common Stock issued upon exercise of the Warrants shall be, at the
time of delivery of the Certificates for such Common Stock, validly issued and
outstanding, fully paid and non-assessable.
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b. Notwithstanding Subparagraph 8.a or 8.c hereof, if there
shall at the time of any exercise of this Warrant not be sufficient authorized
shares of Common Stock to provide for such exercise of this Warrant, the
Company shall upon receipt of appropriate instructions from the holder of this
Warrant issue to the holder of this Warrant that number of shares of Common
Stock as determined by the following formula:
Number of Shares Issuable = Bid Price - $Exercise Price x Number of
Warrants/Bid Price
For purposes of the above formula, the "Bid Price" shall mean the average
closing bid price for the Common Stock on the market as reported by the OTC
Bulletin Board (or other trading market, if applicable) for the ten trading
days immediately prior to the date of exercise of this Warrant.
In connection with such issuance by the Company, no exercise price
shall be payable by the holder of this Warrant and notwithstanding anything
else contained herein, this Warrant shall be deemed to have been exercised in
full and shall be null and void upon issuance of such shares of Common Stock.
Therefore, by way of example, if the holder exercises the Warrant at
an exercise price of $.50 and if the Company does not then have sufficient
authorized shares of Common Stock available, and if the Bid Price is $1.00, the
Company would issue .50 shares of Common Stock to the holder of the Warrant in
full satisfaction of the Warrant at no cost to the holder.
c. Notwithstanding Subparagraph 8.a or 8.b hereof, if there
shall at the time of any exercise of this Warrant not be sufficient authorized
shares of Common Stock to provide for such exercise of this Warrant, the
Company shall upon receipt of appropriate instructions from the holder of this
Warrant, immediately take such corporate action as may be necessary to increase
its authorized but unissued Shares to such number of shares as shall be
sufficient for such exercise.
9. Fractional Shares. The Company shall not issue any fractional
shares of Common Stock pursuant to any exercise of any Warrant and shall pay
cash to the holder of any Warrant in lieu of any such fractional shares.
10. No Right. The holder of any Warrants shall not be entitled to
any of the rights of a shareholder of the Company prior to the date of issuance
of the Common Stock by the Company pursuant to an exercise of any Warrant.
11. Securities Laws. As a condition to the issuance of any Common
Stock pursuant to the Warrants, the holder of such Common Stock shall execute
and deliver such representations, warranties, and covenants, that may be
required by applicable federal and state securities law, or that the Company
determines is reasonably necessary in connection with the issuance of such
Common Stock. In addition, the certificates representing the Common Stock shall
contain such legends, or restrictive legends, or shall be subject to such stop
transfer instructions, as shall be
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required by applicable Federal or state securities laws including Regulation S
or as shall be reasonably required by the Company or its transfer agent.
12. Applicable Law. The Warrants and this Certificate shall be deemed
to be a contract made under the laws of the United States and the State of
Georgia and for all purposes shall be construed in accordance with the laws
thereof regardless of its choice of law rules.
IN WITNESS WHEREOF, HALIS, Inc., has executed and delivered this
Warrant Certificate as of the date written below.
HALIS, INC.
By:
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Title:
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Dated: December __, 1997
Exhibit A
REGULATION S
RULES GOVERNING OFFERS AND SALES MADE OUTSIDE THE
UNITED STATES WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OF 1933
Rule 902. Definitions.
As used in Regulation S, the following terms shall have the
meanings indicated:
* * *
(o) U.S. Person.
(1) "U.S. Person" means:
(i) Any natural person resident in the
United States;
(ii) Any partnership or corporation
organized or incorporated under the laws of the
United States;
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(iii) Any estate of which any executor or
administrator is a U.S.A. person;
(iv) Any trust of which any trustee is
a U.S. person;
(v) Any agency or branch of a foreign
entity located in the United States.
(vi) Any non-discretionary account or
similar account (other than an estate or trust) held
by a dealer or other fiduciary for the benefit or
account of a U.S. person;
(vii) Any discretionary account or similar
account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated,
or (if an individual) resident in the United States;
and
(viii) Any partnership or corporation if:
(a) organized or incorporated under the laws of any
foreign jurisdiction; and (b) formed by a U.S.
person principally for the purpose of investing in
securities not registered under the Act, unless it
is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a)) who
are not natural persons, estates or trusts.
(2) Notwithstanding paragraph (o)(1) of this rule, any
discretionary account or similar account (other than an estate or
trust) held for the benefit or account of a non-U.S. person by a
dealer or other professional fiduciary organized, incorporated, or (if
an individual) resident in the United States shall not be deemed a
"U.S. person."
(3) Notwithstanding paragraph (o)(1), any estate of
which any professional fiduciary acting as executor or administrator
is a U.S. person shall not be deemed a U.S. person if:
(i) As executor or administrator of the estate
who is not a U.S. person has sole or shared investment discretion with
respect to the assets of the estate; and
(ii) The estate is governed by foreign law.
(4) Notwithstanding paragraph (o)(1), any trust of which
any professional fiduciary acting as trustee is a U.S. person shall
not be deemed a U.S. person if a trustee who is not a U.S. person has
sole or shared investment discretion with respect to the trust assets,
and no beneficiary of the trust (and no settlor if the trust is
revocable) is a U.S. person.
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(5) Notwithstanding paragraph (o)(1), an employee benefit
plan established and administered in accordance with the law of a
country other than the United States and customary practices and
documentation of such country shall not be deemed a U.S. person.
(6) Notwithstanding paragraph (o)(1), any agency or
branch of a U.S. person located outside the United States shall not be
deemed a "U.S. person" if:.
(i) The agency or branch operates for valid
business reasons; and
(ii) The agency or branch is engaged in the business
of insurance or banking and is subject to substantive
insurance or banking regulation, respectively, in the
jurisdiction where located.
(7) The International Monetary Fund, the International
Bank for Reconstruction and Development, the Inter-American Development
Bank, the Asian Development Bank, the African Development Bank, the
United Nations, and their agencies, affiliates and person plans, and
any other similar international organizations, their agencies,
affiliates and pension plans shall not be deemed "U.S. persons."
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HALIS, INC.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Chief Executive Officer
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the attached Warrant Certificate of the
Company. The undersigned desires to purchase shares of Common Stock provided
for therein and tenders herewith full payment of the Exercise Price for the
shares of Common Stock being purchased, all in accordance with the Certificate.
The undersigned requests that a Certificate representing such shares of Common
Stock shall be issued to and registered in the name of, and delivered to, the
undersigned at the following address: ____________________________________. If
said number of shares of Common Stock shall not be all the shares purchasable
under the Certificate, then a new Common Stock Purchase Warrant Certificate for
the balance remaining of the shares of Common Stock purchasable shall be issued
to and registered in the name of, and delivered to, the undersigned at the
address set forth above.
Dated: Signature:
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