Exhibit 4.8
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE
COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY
(A) TO THE COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
1933 ACT, OR (C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. IN ADDITION, A STOCK PURCHASE AGREEMENT ("PURCHASE AGREEMENT"),
DATED THE DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS
PRINCIPAL EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE
PARTIES.
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eNucleus, Inc.
COMMON STOCK PURCHASE WARRANT
Number of shares: 2,500,000
Holder: Xxxxxx Partners LP
c/o Xxxxxx Xxxxxx Xxxxxx
Managing Partner
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000
tel 000-000-0000
fax 000-000-0000
cell 000-000-0000
xxx@xxxxxxxxxxxxxx.xxx
Expiration Date: August 13, 2009
Exercise Price per Share: $.60
eNucleus, Inc., a company organized and existing under the laws of the
State of Delaware (the "Company"), hereby certifies that, for value received,
Xxxxxx Partners LP, or its registered assigns (the "Warrant Holder"), is
entitled, subject to the terms set forth below, to purchase from the Company
2,500,000 shares (the "Warrant Shares") of common stock, $0.001 par value (the
"Common Stock"), of the Company (each such share, a "Warrant Share" and all such
shares, the "Warrant Shares") in exchange for (a) one (1) Warrant and (b) $.60
per share, as adjusted from time to time as provided in Section 7, per Warrant
Share (the "Exercise Price"), at any time and from time to time from and after
the date thereof and through and including 5:00 p.m. New York City time on
August 13, 2009 (or eighteen months of effectiveness of a Registration Statement
subsequent to the issuance herein, whichever is longer) (the "Expiration Date"),
and subject to the following terms and conditions:
1. Registration of Warrant. The Company shall register this Warrant
upon records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Warrant Holder hereof from time to time.
The Company may deem and treat the registered Warrant Holder of this Warrant as
the absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Warrant Holder, and for all other purposes, and the Company
shall not be affected by notice to the contrary.
2. Investment Representation. The Warrant Holder by accepting this
Warrant represents that the Warrant Holder is acquiring this Warrant for its own
account or the account of an affiliate for investment purposes and not with the
view to any offering or distribution and that the Warrant Holder will not sell
or otherwise dispose of this Warrant or the underlying Warrant Shares in
violation of applicable securities laws. The Warrant Holder acknowledges that
the certificates representing any Warrant Shares will bear a legend indicating
that they have not been registered under the United States Securities Act of
1933, as amended (the "1933 Act") and may not be sold by the Warrant Holder
except pursuant to an effective registration statement or pursuant to an
exemption from registration requirements of the 1933 Act and in accordance with
federal and state securities laws. If this Warrant was acquired by the Warrant
Holder pursuant to the exemption from the registration requirements of the 1933
Act afforded by Regulation S thereunder, the Warrant Holder acknowledges and
covenants that this Warrant may not be exercised by or on behalf of a Person
during the one year distribution compliance period (as defined in Regulation S)
following the date hereof. "Person" means an individual, partnership, firm,
limited liability company, trust, joint venture, association, corporation, or
any other legal entity.
3. Validity of Warrant and Issue of Shares. The Company represents and
warrants that this Warrant has been duly authorized and validly issued and
warrants and agrees that all of Common Stock that may be issued upon the
exercise of the rights represented by this Warrant will, when issued upon such
exercise, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof. The
Company further warrants 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 a sufficient number of Common Stock to
provide for the exercise of the rights represented by this Warrant.
4. Registration of Transfers and Exchange of Warrants.
a. Subject to compliance with the legend set forth on the face of
this Warrant, the Company shall register the transfer of any portion of this
Warrant in the Warrant in the Warrant Register, upon surrender of this Warrant
with the Form of Assignment attached hereto duly completed and signed, to the
Company at the office specified in or pursuant to Section 9. Upon any such
registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "New Warrant"),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Warrant Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
b. This Warrant is exchangeable, upon the surrender hereof by the
Warrant Holder to the office of the Company specified in or pursuant to Section
9 for one or more New Warrants, evidencing in the aggregate the right to
purchase the number of Warrant Shares which may then be purchased hereunder. Any
such New Warrant will be dated the date of such exchange.
5. Exercise of Warrants.
a. Upon surrender of this Warrant with the Form of Election to
Purchase attached hereto duly completed and signed to the Company, at its
address set forth in Section 9, and upon payment and delivery of the Exercise
Price per Warrant Share multiplied by the number of Warrant Shares that the
Warrant Holder intends to purchase hereunder, in lawful money of the United
States of America, in cash or by certified or official bank check or checks, to
the Company, all as specified by the Warrant Holder in the Form of Election to
Purchase, the Company shall promptly (but in no event later than 7 business days
after the Date of Exercise as defined herein) issue or cause to be issued and
cause to be delivered to or upon the written order of the Warrant Holder and in
such name or names as the Warrant Holder may designate (subject to the
restrictions on transfer described in the legend set forth on the face of this
Warrant), a certificate for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required by the 1933 Act. Any person so designated by
the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b. A "Date of Exercise" means the date on which the Company shall
have received (i) this Warrant (or any New Warrant, as applicable), with the
Form of Election to Purchase attached hereto (or attached to such New Warrant)
appropriately completed and duly signed, and (ii) payment of the Exercise Price
for the number of Warrant Shares so indicated by the Warrant Holder to be
purchased.
c. This Warrant shall be exercisable at any time and from time to
time for such number of Warrant Shares as is indicated in the attached Form of
Election To Purchase. If less than all of the Warrant Shares which may be
purchased under this Warrant are exercised at any time, the Company shall issue
or cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
d. (i) Notwithstanding anything contained herein to the contrary,
the holder of this Warrant may, at its election exercised in its sole
discretion, exercise this Warrant in whole or in part and, in lieu of making the
cash payment otherwise contemplated to be made to the Company upon such exercise
in payment of the Aggregate Exercise Price, elect instead to receive upon such
exercise the "Net Number" of shares of Common Stock determined according to the
following formula (a "Cashless Exercise"):
Net Number = (A x (B - C))/B
(ii) For purposes of the foregoing formula:
A= the total number shares with respect
to which this Warrant is then being exercised.
B= the last reported sale price (as reported by
Bloomberg) of the Common Stock on immediately preceding
the date of the Exercise Notice.
C= the Warrant Exercise Price then in effect at the
time of such exercise.
e. The holder of this Warrant agrees not to elect for a
period of one (1) year a Cashless Exercise. The holder of this Warrant also
agrees not to elect a Cashless Exercise so long as there is an effective
registration statement for the shares underlying this Warrant.
6. Call by the Company. This Warrant contains a callable feature until
August 13, 2005 requiring the automatic exercise at any time prior to such date
if the closing public market price of the Company's Common Stock is equal to or
in excess of the callable price of $1.20 for a period of twenty (20) consecutive
days and there is an effective Registration Statement covering the shares of
Common Stock underlying this Warrant ("Automatic Exercise") during such twenty
(20) consecutive day period. Upon occurrence of the Automatic Exercise, the
Company shall provide the Holder with notice of such Automatic Conversion
("Automatic Exercise Notice"). Upon receipt of the Automatic Exercise Notice,
the Holder must (i) exercise, in whole or in part, this Warrant within ten (10)
days; or (ii) notify the Company of its intent to transfer this Warrant pursuant
to Section 4 of this Warrant. In the event that the Holder elects to transfer
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this Warrant pursuant to Section 4 of this Warrant, then the subsequent holder
of this Warrant must exercise this Warrant on or before the thirtieth (30) day
after notification of intent to transfer this Warrant. In the event that this
Warrant is exercised, the Holder must deliver to the Company at its office at
0000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxxx Xxxxxxx
on or before 5:00 p.m., Eastern Time, on the required date, (i) Form of Election
to Purchase properly executed and completed by the Warrant Holder or an
authorized officer thereof, (ii) a check payable to the order of the Company, in
an amount equal to the product of the Exercise Price multiplied by the number of
Warrant Shares specified in the Exercise Notice, and (iii) this Warrant. If the
Warrant Holder does not exercise this Warrant within ten (10) days from receipt
of the Automatic Exercise Notice or, in the event that this Warrant has been
transferred pursuant to Section 4 of this Warrant, the subsequent holder of this
Warrant does not exercise this Warrant within thirty (30) days after
notification of intent to transfer this Warrant, then this Warrant will
automatically expire.
7. Adjustment of Exercise Price and Number of Shares. The character of
the shares of stock or other securities at the time issuable upon exercise of
this Warrant and the Exercise Price therefore, are subject to adjustment upon
the occurrence of the following events, and all such adjustments shall be
cumulative:
a. Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, Etc. The Exercise Price of this Warrant and the number of
shares of Common Stock or other securities at the time issuable upon exercise of
this Warrant shall be appropriately adjusted to reflect any stock dividend,
stock split, combination of shares, reclassification, recapitalization or other
similar event affecting the number of outstanding shares of stock or securities.
b. Adjustment for Reorganization, Consolidation, Merger, Etc. In
case of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "Reorganization"), then, in each case, the holder of this
Warrant, on exercise hereof at any time after the consummation or effective date
of such Reorganization (the "Effective Date"), shall receive, in lieu of the
shares of stock or other securities at any time issuable upon the exercise of
the Warrant issuable on such exercise prior to the Effective Date, the stock and
other securities and property (including cash) to which such holder would have
been entitled upon the Effective Date if such holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in this
Warrant).
c. Certificate as to Adjustments. In case of any adjustment or
readjustment in the price or kind of securities issuable on the exercise of this
Warrant, the Company will promptly give written notice thereof to the holder of
this Warrant in the form of a certificate, certified and confirmed by the Board
of Directors of the Company, setting forth such adjustment or readjustment and
showing in reasonable detail the facts upon which such adjustment or
readjustment is based.
d. The Company sells, grants or issues any shares, options,
warrants, or any instrument convertible into shares or equity in any form below
$.40 per share. In the event the Company sells, grants or issues any shares,
options, warrants, or any instrument convertible into shares or equity in any
form, below $.40 per share the Exercise Price shall be reduced proportionately
(on a weighted average basis taking into account the number of Warrant Shares to
be issued hereunder and the number of such shares, options, warrants or
instruments so sold, granted or issued). For example, if the Company sells,
grants or issues any shares, options, warrants, or any instrument convertible
into shares or equity in any form at $.32 per share, or 20% below $.40 per
share, then the Exercise Price shall be reduced by 20% (on a weighted average
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basis taking into account the number of Warrant Shares to be issued hereunder
and the number of such shares, options, warrants or instruments so sold, granted
or issued). Such reduction shall be made at the time such transaction is made,
and shall be cumulative upon any other changes to the exercise of this Warrant
that may already have been made. Notwithstanding the foregoing, this provision
shall terminate upon the third anniversary of the date of this Warrant.
8. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional Warrant Shares on the exercise of this Warrant.
The number of full Warrant Shares that shall be issuable upon the exercise of
this Warrant shall be computed on the basis of the aggregate number of Warrants
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section 8, be issuable
on the exercise of this Warrant, the Company shall, at its option, (i) pay an
amount in cash equal to the Exercise Price multiplied by such fraction or (ii)
round the number of Warrant Shares issuable, up to the next whole number.
9. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission followed by registered or certified mail
confirmation; (iii) on the date delivered by an overnight courier service; or
(iv) on the third business day after it is mailed by registered or certified
mail, return receipt requested with postage and other fees prepaid as follows:
If to the Company:
-----------------
eNucleus, Inc.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
tel. 000-000-0000
If to the Warrant Holder:
--------------------------
Xxxxxx Xxxxxx Xxxxxx
Managing Partner
Xxxxxx Partners LP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000 tel.
000-000-0000
10. Miscellaneous.
a. This Warrant shall be binding on and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. This
Warrant may be amended only in writing and signed by the Company and the Warrant
Holder.
b. Nothing in this Warrant shall be construed to give to any
person or corporation other than the Company and the Warrant Holder any legal or
equitable right, remedy or cause of action under this Warrant; this Warrant
shall be for the sole and exclusive benefit of the Company and the Warrant
Holder.
c. This Warrant shall be governed by, construed and enforced in
accordance with the internal laws of the State of Delaware without regard to the
principles of conflicts of law thereof.
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d. The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.
e. In case any one or more of the provisions of this Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceablilty of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonably substitute therefore, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
f. The Warrant Holder shall not, by virtue hereof, be entitled to
any voting or other rights of a shareholder of the Company, either at law or
equity, and the rights of the Warrant Holder are limited to those expressed in
this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by the authorized officer as of the date first above stated.
ENUCLEUS, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
------------------------
Title: President
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FORM OF ELECTION TO PURCHASE
(To be executed by the Warrant Holder to exercise the right to purchase shares
of Common Stock under the foregoing Warrant)
To: eNucleus, Inc.:
In accordance with the Warrant enclosed with this Form of Election to Purchase,
the undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock ("Common Stock"), $0.001 par value, of eNucleus, Inc.. and encloses
one warrant and $.60 for each Warrant Share being purchased or an aggregate of
$________________ in cash or certified or official bank check or checks, which
sum represents the aggregate Exercise Price (as defined in the Warrant) together
with any applicable taxes payable by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of:
----------------------------------------------
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(Please print name and address)
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(Please insert Social Security or Tax Identification Number)
If the number of shares of Common Stock issuable upon this exercise shall
not be all of the shares of Common Stock which the undersigned is entitled to
purchase in accordance with the enclosed Warrant, the undersigned requests that
a New Warrant (as defined in the Warrant) evidencing the right to purchase the
shares of Common Stock not issuable pursuant to the exercise evidenced hereby be
issued in the name of and delivered to:
(Please print name and address)
Dated: Name of Warrant Holder:
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(Print)
--------------------------------
(By:)
----------------------------------
(Name:)
--------------------------------
(Title:)
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Signature must conform in all respects
to name of Warrant Holder as specified
on the face of the Warrant
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