EXHIBIT 4.9
NEITHER THIS WARRANT, NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF,
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
QUALIFIED UNDER THE APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION (THE
"LAW"), AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE ISSUED UPON
EXERCISE HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER
DISPOSITION MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT AND QUALIFICATION UNDER THE LAW RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY (AS THAT TERM IS DEFINED BELOW) AND ITS COUNSEL,
THAT SAID REGISTRATION AND QUALIFICATION ARE NOT REQUIRED UNDER THE ACT AND LAW,
RESPECTIVELY.
XXXXXXXX.XXX, INC.
January 14, 2000 4,000 Shares
of Common Stock
Warrant for Common Stock
This certifies that Icon International, Inc., whose address is
281 Tresser Blvd., 0 Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000 ("HOLDER") is
entitled to subscribe for and purchase up to four thousand (4,000) shares of
fully paid and nonassessable Common Stock, $0.0001 par value per share ("COMMON
STOCK"), of XxxxxXxx.xxx, Inc., a Delaware corporation (the "COMPANY"), subject
to the terms and conditions herewith set forth. The purchase price of each such
share shall be the amount set forth in Section 1.5 herein. Except as set forth
in Sections 7.1 and 11, this Warrant shall not be assignable, and shall only be
exercisable, by Holder.
1. EXERCISE; PAYMENT
1.1. EXERCISABILITY. This Warrant, and the right to purchase vested
Common Stock hereunder, shall be exercisable, at any time and from time to time,
commencing on the date hereof, and terminating at 5:00 P.M., New York local time
on December 31, 2003. Notwithstanding the foregoing provision of this Section
1.5 this Warrant shall not become exercisable until Holder has executed a
written agreement to be bound by that certain Right of First Refusal and Co-Sale
Agreement, dated as of October 18, 1999, by and among the Company and the
stockholders of the Company.
1.2. PAYMENT. The purchase rights under this Warrant may be exercised
by Holder, in whole or in part, by the surrender of this Warrant at the
principal office of the Company located at 000 Xxx Xxxx Xxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxx Xxxx 00000, and by the payment to the Company, by certified,
cashier's or other check acceptable to the Company, of an amount equal to the
aggregate Warrant Price of the shares being purchased.
1.3. NET ISSUE EXERCISE. (a) In lieu of exercising this Warrant
pursuant to Section 1.2, Holder may elect to receive shares equal to the value
of this Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to Holder a number of shares of
the Company's Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where:
X = the number of shares of Common Stock to be
issued to Holder
Y = the number of shares of Common Stock
purchasable under this Warrant (at the date
of such calculation);
A = the fair market value of one share of the
Company's Common Stock (at the date of such
calculation); and
B = Warrant Price (as adjusted to the date of
such calculation).
(b) For purposes of this Section 1.3, the "fair market value" of one
share of the Company's Common Stock shall mean:
(i) The average of the closing bid and asked prices of the
Common Stock in the over-the-counter market or the closing sale price quoted on
any exchange on which the Common Stock is listed as published in THE WALL STREET
JOURNAL for the ten (10) trading days prior to the date of determination of fair
market value;
(ii) If the Common Stock is not traded in the over-the-counter
market or on an exchange, fair market value of the Common Stock per share shall
be the price per share which the Company could obtain from a willing buyer for
shares sold by the Company from authorized but unissued shares as determined by
the Company's Board of Directors.
1.4. STOCK CERTIFICATES. In the event of any exercise of the rights to
acquire Common Stock granted under this Warrant, certificates for the shares of
Common Stock so purchased shall be delivered to Holder within a reasonable time
and, unless this Warrant has been fully exercised or has expired, a new Warrant
representing the shares with respect to which this Warrant shall not have been
exercised shall also be issued to Holder within such time.
1.5. WARRANT PRICE. The purchase price for the shares of Common Stock
to be issued upon exercise of this Warrant shall be $0.01 per share, subject to
adjustment as provided in Section 4 herein (the "WARRANT PRICE").
2. REPRESENTATIONS AND WARRANTIES OF HOLDER
Holder represents and warrants to and covenants with the
Company and each officer, director, and agent of the Company that:
2.1. Holder has all requisite capacity to enter into the Agreement and
to perform all the obligations required to be performed by Holder thereunder and
hereunder.
2.2. Holder has such knowledge, skill and experience in business,
financial and investment matters so that Holder is capable of evaluating the
merits and risks of an investment
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in this Warrant and the Common Stock issuable hereunder (the "SECURITIES") and
has the ability to suffer the total loss of the investment. To the extent
necessary, Holder has retained, at Holder's own expense, and relied upon,
appropriate professional advice regarding the investment, tax and legal merits
and consequences of this Warrant and owning the Securities. Holder further
represents that it has had the opportunity to ask questions of and receive
answers from the Company concerning the terms and conditions of the Securities,
the business of the Company, and to obtain additional information to such
Holder's satisfaction.
2.3. Holder is an "accredited investor" as defined in Rule 501(a) under
the Act. Holder agrees to furnish any additional information requested to assure
compliance with applicable federal and state securities laws in connection with
the purchase and sale of the Securities.
2.4. Holder is acquiring the Securities solely for its own account, for
investment purposes, and not with a view to, or for resale in connection with,
any distribution thereof. Holder understands that the Securities have not been
registered under the Act, or any state securities laws by reason of specific
exemptions under the provisions thereof which depend in part upon the investment
intent of Holder and of the other representations made by Holder in this
Warrant. Holder understands that the Company is relying upon the representations
and agreements contained in this Warrant (and any supplemental information) for
the purpose of determining whether this transaction meets the requirements for
such exemptions.
2.5. Holder acknowledges and agrees that this Warrant and all shares of
Common Stock issued upon exercise hereof shall be stamped or imprinted with a
legend in substantially the following form (in addition to any legend required
by state securities law):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR QUALIFIED UNDER THE APPLICABLE SECURITIES LAWS OF ANY
OTHER JURISDICTION (THE "LAW"), AND THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER DISPOSITION MAY BE MADE WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND QUALIFICATION UNDER THE LAW
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL, THAT SAID REGISTRATION AND QUALIFICATION ARE NOT REQUIRED UNDER THE ACT
AND LAW, RESPECTIVELY.
3. STOCK FULLY PAID; RESERVATION OF SHARES
The Company covenants and agrees that all securities which may
be issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof (excluding taxes based on the
income of Holder). The Company further covenants and agrees that during the
period within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved for issuance a sufficient
number of shares of its Common Stock or other securities as would be required
upon the full exercise of the rights represented by this Warrant.
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4. ADJUSTMENT
The kind of securities purchasable upon the exercise of this
Warrant, the number of shares under this Warrant and the Warrant Price shall be
subject to adjustment from time to time upon the happening of certain events, as
follows:
4.1. RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of: (i) any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant; (ii) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification, change or exchange of outstanding securities issuable upon
exercise of this Warrant); or (iii) any sale or transfer to another corporation
of all, or substantially all, of the property of the Company, then, and in each
such event, the Company or such successor or purchasing corporation, as the case
may be, shall execute a new Warrant which will provide that Holder shall have
the right to exercise such new Warrant and purchase upon such exercise, in lieu
of each share of Common Stock theretofore issuable upon exercise of this
Warrant, the kind of securities, money and property receivable upon such
reclassification, change, consolidation, merger, sale or transfer by a holder of
Common Stock issuable upon exercise of this Warrant had this Warrant been
considered exercised immediately prior to such reclassification, change,
consolidation, merger, sale or transfer. Such new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided in this Section 4 and the provisions of this Section 4 and
the provisions of this Section 4.1 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and transfers.
4.2. SUBDIVISIONS OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexercised, in whole or in part, (i)
shall divide its Common Stock, the Warrant Price shall be proportionately
reduced and the number of shares under this Warrant shall be proportionately
increased; or (ii) shall combine shares of its Common Stock, the Warrant Price
shall be proportionately increased and the number of shares under this Warrant
shall be proportionately reduced.
4.3. STOCK DIVIDENDS. If the Company, at any time while this Warrant is
outstanding and unexpired, shall pay a dividend payable in, or make any other
distribution to shareholders of, its capital stock (except any distribution
described in Sections 4.1 and 4.2 hereof), then and in each case, this Warrant
shall represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such additional stock of the
Company which such holder would hold on the date of such exercise had it been
the holder of record of the security receivable upon exercise of this Warrant on
the date hereof and had thereafter, during the period from the date hereof to
and including the date of such exercise, retained such shares and/or all other
additional stock available by it as aforesaid during such period, giving effect
to all adjustments called for during such period by the provisions of this
Section 4.
4.4. TIME OF ADJUSTMENTS. All adjustments, unless otherwise specified
herein, shall be effective as of the earlier of:
4.4.1. the date of issuance of the security causing the
adjustment;
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4.4.2. the effective date of a division or combination of
shares;
4.4.3. the record date of any action of holders of the
Company's capital stock of any class taken for the purpose of dividing or
combining shares or entitling shareholders to receive a distribution or
dividends payable in the Company's capital stock.
4.5. NOTICE OF ADJUSTMENTS. In each case of an adjustment the Company,
at its expense, shall cause the Chief Financial Officer (or other such similar
officer) of the Company to compute such adjustments and prepare a certificate
setting forth such adjustments and showing in detail the facts upon which such
adjustment is based. The Company shall promptly mail a copy of each such
certificate to Holder pursuant to Section 15 hereof.
5. FRACTIONAL SHARES
No fractional share of Common Stock will be issued in
connection with any exercise hereof, but in lieu of a fractional share upon
complete exercise hereof, Holder may purchase a whole share at the then
effective Warrant Price.
6. SHAREHOLDER RIGHTS
Holder shall not, solely by virtue hereof, be entitled to any
rights of a shareholder of the Company. Holder shall have all rights of a
shareholder with respect to securities purchased upon exercise hereof at the
time the exercise price for such securities is delivered pursuant to Section l
hereof and this Warrant is surrendered.
7. RESTRICTIONS ON TRANSFER
7.1. TRANSFER OF WARRANT. This Warrant shall not be transferable by
Holder except pursuant to prior written consent of the Company, which consent
shall not be unreasonably withheld or delayed, and provided that such transferee
executes a written agreement to be bound by the provisions of this Warrant.
7.2. SECURITIES LAWS RESTRICTIONS. Holder, by acceptance hereof, agrees
that, absent an effective registration statement under the Act covering the
disposition of Common Stock issued or issuable upon exercise hereof, Holder will
not sell or transfer any or all of such Common Stock, without first providing
the Company with an opinion of counsel reasonably acceptable to the Company and
its counsel to the effect that such sale or transfer will be exempt from the
registration requirements of the Act, and Holder consents to the Company making
a notation on its records in order to implement such restriction on
transferability.
8. "MARKET STAND-OFF" AGREEMENT
Holder hereby agrees that, during the period specified by the
Company and any underwriter of Common Stock or other securities of the Company
following the effective date of a registration statement of the Company filed
under the Act, Holder will not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the
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Company held by Holder at any time during such period except Common Stock
included in such registration. To enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the shares of Common Stock
issued or issuable upon exercise of this Warrant held by Holder until the end of
such period. In addition, the foregoing covenant may be enforced by the
underwriters who are parties with the Company to an underwriting agreement under
which such public offering is being undertaken.
9. LOSS OR MUTILATION
Upon receipt by the Company of evidence satisfactory to it of
the ownership of, and the loss, theft, destruction or mutilation of, this
Warrant and (in the case of loss, theft or destruction) of indemnity
satisfactory to it, and (in the case of mutilation) upon surrender and
cancellation hereof, the Company will execute and deliver in lieu hereof a new
Warrant.
10. GOVERNING LAW
The internal laws of the State of Delaware (irrespective of
its choice of law principles) shall govern the validity of this Warrant, the
construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties hereto.
11. BINDING UPON SUCCESSORS AND ASSIGNS
Subject to, and unless otherwise provided in, this Warrant,
each and all of the covenants, terms, provisions, and agreements contained
herein shall be binding upon, and inure to the benefit of the permitted
successors, executors, heirs, representatives, administrators and assigns of the
parties hereto. Holder shall not assign this Warrant or any rights or
obligations hereunder without the prior written consent of the Company, which
consent shall not be unreasonably withheld. For purposes of this Section 11, the
sale of all or substantially all of Holder's assets or capital stock shall
constitute an assignment.
12. SEVERABILITY
If any provision of this Warrant, or the application hereof,
shall for any reason and to any extent, be invalid or unenforceable, the
remainder of this Warrant and application of such provisions to other persons or
circumstances shall be interpreted so as best to reasonably effect the intent of
the parties hereto. The parties further agree to replace such void or
unenforceable provisions of this Warrant with valid or enforceable provisions
which will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provisions.
13. AMENDMENT
This Warrant may be amended upon the written consent of the
Company and Holder.
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14. NO WAIVER
The failure of any party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such party
thereafter to enforce such provisions.
15. NOTICES
Whenever any party hereto desires or is required to give any
notice, demand, or request with respect to this Warrant, each such communication
shall be in writing and shall be effective only if it is delivered by personal
service or mailed, United States certified mail, postage prepaid, return receipt
requested, addressed as follows:
Company: Address set forth in Section 1 hereof
Attn: Chief Executive Officer
Holder: Address as set forth in Section 1 hereof
Attn: President
Such communications shall be effective when they are received by the addresses
thereof; but if sent by certified mail in the manner set forth above, they shall
be effective five (5) days after being deposited in the United States mail. Any
party may change its address for such communications by giving notice thereof to
the other party in conformity with this Section.
16. CONSTRUCTION OF AGREEMENT
A reference in this Warrant to any Section shall include a
reference to every Section the number of which begins with the number of the
Section to which reference is specifically made. The titles and headings herein
are for reference purposes only and shall not in any manner limit the
construction of this Warrant which shall be considered as a whole.
17. NO ENDORSEMENT
Holder understands that no federal or state securities
administrator has made any finding or determination relating to the fairness of
investment in the Company or purchase of the Common Stock hereunder and that no
federal or state securities administrator has recommended or endorsed the
offering of securities by the Company hereunder.
18. PRONOUNS
All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
19. FURTHER ASSISTANCE
Each party agrees to cooperate fully with the other parties
and to execute such further instruments, documents and agreements and to give
such further written assurances, as may be reasonably requested by any other
party to better evidence and reflect the transactions
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described herein and contemplated hereby, and to carry into effect the intents
and purposes of this Warrant.
XxxxxXxx.xxx, Inc.
/s/ Xxxxxxx Xxxx
---------------------------------------
By:
Title: VP Marketing
ACCEPTED THIS 14th DAY OF JANUARY 2000
ICON INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxx III
----------------------------------
Name: Xxxxxxxx X. Xxx III
Title: Chief Financial Officer
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FORM OF WARRANT EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO _______________________
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant for, and to purchase thereunder,
______ shares of Common Stock of XxxxxXxx.xxx, Inc., a Delaware corporation,
and:
|_| herewith makes a payment of $ _____________ therefor, or
|_| exercises this Warrant pursuant to the Net Issue
Exercise provision as provided in Section 1.3 of this
Warrant.
The undersigned hereby requests that the certificates for such
shares be issued in the name of, and delivered to _________________________,
whose address is ________________________________.
Dated:
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(Signature must conform to name of holder as
specified on the face of the Warrant)
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(Address)
Tax Identification Number:
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