Exhibit 4.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.
STOCK PURCHASE WARRANT
O2 Secure Wireless, Inc., a Georgia corporation (the "Company") issues this
STOCK PURCHASE WARRANT as of the _______ day of ________, ________ (the "Date of
Issuance"), to _________________ (the "Holder").
1. Issuance of Warrant, Term.
(a) For and in consideration of $10 by the Holder to the Company, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company hereby grants to the Holder the
right to purchase at the Exercise Price (as hereinafter defined) __________
shares (collectively, the "Warrant Shares") of Common Stock of the Company
(the "Common Stock") as set forth herein, all subject to adjustment and
upon the terms and conditions contained herein, together with the other
appurtenant rights, powers and privileges hereinafter described.
(b) This Warrant shall be exercisable at any time and from time to
time in whole or in part until ____________, ________.
2. Exercise Price. The exercise price per share for the Warrant Shares
shall be $______ per share.
3. Exercise.
(a) This Warrant may be exercised by the Holder hereof (but only on
the conditions hereinafter set forth) as to all or any increment or
increments of the Warrant Shares upon delivery of written notice of intent
to exercise to the Company at the Company's address set forth below its
signature below or such other address as the Company shall designate in a
written notice to the Holder hereof, together with this Warrant and cash or
check payable to the Company for the aggregate Exercise Price of the
Warrant Shares so purchased (the "Purchase Price"). Upon exercise of this
Warrant, the Company shall as promptly as practicable, and in any event
within fifteen (15) days thereafter, execute and deliver to the Holder of
this Warrant a certificate or certificates for the total number of Warrant
Shares for which this Warrant is being exercised in such names and
denominations as are requested by such Holder. If this Warrant shall be
exercised with respect to less than all of the Warrant Shares, the Holder
shall be entitled to receive a new Warrant covering the number of Warrant
Shares in respect of which this Warrant shall not have been exercised. The
Company covenants and agrees that it will pay when due any and all state
and federal issue taxes which may be payable in respect of the issuance of
this Warrant or the issuance of any Warrant Shares upon exercise of this
Warrant.
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(b) For purposes of this Warrant, "Common Stock" means the Common
Stock of the Company, and all other securities of any class of classes
(however designated) of the Company the holders of which have the right,
without limitation as to amount, after payment on any securities entitled
to a preference on dividends or other distributions upon any dissolution or
winding up, either to all or to a share of the balance of payments upon
such dissolution, liquidation or winding up.
4. Covenants and Conditions. The above provisions are subject to the
following:
(a) Neither this Warrant nor the Warrant Shares have been registered
under the Securities Act or any state securities laws ("Blue Sky Laws").
This Warrant has been acquired for investment purposes and not with a view
to distribution or resale and may not be pledged, hypothecated, sold, made
subject to a security interest, or otherwise transferred without (i) an
effective registration statement for such Warrant under the Securities Act
and such applicable Blue Sky Laws, or (ii) an opinion of counsel reasonably
satisfactory to the Company that registration is not required under the
Securities Act or under any applicable Blue Sky Laws. Transfer of the
Warrant Shares issued upon the exercise of this Warrant shall be restricted
in the same manner and to the same extent as the Warrant and the
certificates representing such Warrant Shares shall bear substantially the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION
WITH SUCH PROPOSED TRANSFER.
(b) The Company covenants and agrees that all Warrant Shares that may
be issued upon exercise of this Warrant will, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable. The Company shall at all times reserve and keep available
for issuance upon the exercise of this Warrant such number of authorized
but unissued shares of Common Stock as will be sufficient to permit the
exercise in full of this Warrant.
(c) The Holder hereof and the Company agree to execute such other
documents and instruments as counsel for the Company reasonably deems
necessary to effect the compliance of the issuance of this Warrant and any
Warrant Shares issued upon exercise of this Warrant with applicable federal
and state securities laws. In furtherance of the foregoing, the Holder
represents and warrants:
(i) The Holder has substantial experience in evaluating and
investing in private placement transactions of securities in companies
similar to the Company so that the Holder is capable of evaluating the
merits and risks of its investment in the Company and has the capacity
to protect its own interests;
(ii) The Holder is acquiring this Warrant, and will acquire the
Warrant Shares, for investment for its own account and not with a view
to, or for resale in connection with, any distribution thereof. The
Holder understands that this Warrant has not been, and the Warrant
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Shares will not be, registered under the Securities Act or any Blue
Sky Laws by reason of exemptions from the registration provisions of
the Securities Act and such Blue Sky Laws that depend upon, among
other things, the bona fide nature of the investment intent and the
accuracy of the Holder's representations;
(iii) The Holder is familiar with the provisions of Rule 144
under the Act which permits the limited resale of restricted
securities, subject to the satisfaction of certain conditions;
(iv) The Holder has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's
management and the opportunity to review the Company's facilities,
financial statements and any other documents requested by the Holder.
The Holder has also had an opportunity to ask questions of officers of
the Company, which were answered to its satisfaction.
5. Transfer of Warrant. Subject to the provisions of Paragraph 4, this
Warrant or the Warrant Shares may be transferred, in whole or in part, to any
person or business entity, by presentation of the Warrant or the Warrant Shares
to the Company with written instructions for such transfer; provided, however,
that the Company shall have the right to refuse to transfer any portion of this
Warrant to any person who directly competes with the Company or is affiliated
with any such competitor. Upon such presentation for transfer, the Company shall
promptly execute and deliver a new Warrant or Warrants in the form hereof in the
name of the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses in connection with the
preparation, issuance and delivery of Warrants under this Paragraph 5.
6. Warrant Holder Not Shareholder. This Warrant does not confer upon the
Holder hereof, as such, any right whatsoever as a shareholder of the Company.
7. Antidilution; Adjustment.
(a) The number of Warrant Shares purchasable hereunder are subject to
adjustment from time to time, as follows:
(i) If the Company at any time subdivides its Common Stock, the
number of Warrant Shares issuable pursuant to this Warrant will be
proportionately increased. If the Company at any time combines its
Common Stock, the number of Warrant Shares issuable pursuant to this
Warrant will be proportionately decreased.
(ii) If the Company at any time pays a dividend payable in, or
make any other distribution (except any distribution specifically
provided for in the foregoing subsections (i)) of Common Stock, then
the number of Warrant Shares issuable pursuant to this Warrant will be
adjusted, from and after the date of determination of stockholders
entitled to receive such dividend or distribution of stockholders to
that number of Warrant Shares determined by multiplying the number of
Warrant Shares issuable immediately prior to such date of
determination by a fraction (i) the numerator of which will be the
total number of shares of Common Stock outstanding immediately after
such dividend or distribution, calculated on a fully diluted basis as
provided in Section 1(c) of this Warrant, and (ii) the denominator of
which will be the total number of shares of Common Stock outstanding
immediately prior to such dividend or distribution, calculated on a
fully diluted basis as provided in Section 1(c) of this Warrant.
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(iii) The number of shares reserved for issuance pursuant to this
Warrant will automatically be adjusted without further action by the
Company in the event of any adjustment of the number of Warrant Shares
issuable pursuant to this Warrant.
(b) In the event of a merger, consolidation, recapitalization,
combination or exchange of Common Stock occurring after the date hereof
pursuant to which the Company is not the surviving entity (an
"Acquisition"), the Company covenants that it will obtain from the
acquiring entity, as a condition to the closing of such transaction or
event, the right for the Holder to exchange this Warrant, at its sole
option and in lieu of exercise hereof, for a warrant to purchase the
equivalent number of shares of the equivalent class of shares of the
acquiring entity on a fully diluted basis. The period of exercise of such
new warrant shall be equal to the remaining duration of the exercise period
of this Warrant. If, as a result of such Acquisition, the shareholders of
the Company immediately prior to such Acquisition own at least a majority
of the shares of voting capital stock, assuming full exercise or conversion
of all securities exercisable for or convertible into such voting capital
stock, outstanding after such Acquisition and are entitled upon liquidation
to receive a majority of the assets of the surviving entity, then the
method of calculating the number of Warrant Shares set forth in Paragraph 1
hereof shall remain unaffected; otherwise, this Warrant shall, after such
Acquisition, permit the Holder to purchase that percentage of Warrant
Shares or other consideration of the acquiring entity which the Holder
would be entitled to receive as a result of such merger, consolidation,
recapitalization, combination or exchange of shares if this Warrant had
been exercised in full immediately prior to such merger, consolidation,
recapitalization, combination or exchange of shares (or the record date, if
any, for such transaction or event) for the same aggregate exercise price
as provided for in this Warrant.
8. Notices. Any and all notices, elections or demands permitted or required
to be made under this Agreement shall be in writing, signed by the party giving
such notice, election or demand and shall be delivered personally, telecopied,
telexed, or sent by certified mail or nationally recognized courier service
(such as Federal Express), to the other party at the address set forth below, or
at such other address as may be supplied in writing and of which receipt has
been acknowledged in writing. The date of personal delivery, telecopy or telex
or one business day after delivery to such courier service or two business days
after mailing, as the case may be, shall be the date of such notice, election or
demand. For the purposes of this Agreement:
The address of
Holder is: ______________________________
______________________________
______________________________
The address of
the Company is: O2 Secure Wireless, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
9. Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Warrant may be amended and the Company may take any action
herein prohibited. or omit to perform any act herein required to be performed by
it, only if the Company has obtained the prior written consent of the Holder.
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10. Descriptive Headings; Governing Law. The descriptive headings of the
several paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. ALL QUESTIONS CONCERNING THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE
OF GEORGIA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISIONS OR RULE (WHETHER OF THE STATE OF GEORGIA OR ANY OTHER JURISDICTION)
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF GEORGIA.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first above written.
"COMPANY":
O2 SECURE WIRELESS, INC.
By: _________________________________
Xxxxx X. Xxxxxxx, Chief Financial Officer
"HOLDER":
By: _________________________________
Name: _______________________________
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