Exhibit 4.6
WARRANT FOR PURCHASE OF SHARES OF
COMMON STOCK
OF NETSTAR, INC.
FOR VALUE RECEIVED, ........................, or registered assigns (the
"Holder"), is entitled to purchase from NetStar, Inc., a Minnesota corporation
(the "Company"), commencing on October 31, 1995 and on or before October 31,
1999, [....] fully paid and nonassessable shares of the Company's Common
Stock, $0.01 par value (such class of stock being hereinafter referred to as
the "Common Stock" and such Common Stock as may be acquired upon exercise
hereof being hereinafter referred to as the "Warrant Stock"), at an exercise
price equal to (a) eighty percent (80%) of the price to public of an initial
public offering of the Company's Common Stock which is effective on or before
October 31, 1995 or (b) $4.00 per share if such public offering is effective
after October 31, 1995 (or is not completed) (the "Warrant Exercise Price").
The Warrant has beenissued to the Holder by the Company pursuant to the
Bridge Loan Agreement dated as of May 12, 1995, by and between the Company and
the Holder (the "Agreement"), and is subject to the terms and provisions
thereof.
This Warrant is subject to the following provisions, terms, and
conditions:
1. The rights represented by this Warrant may be exercised by the Holder,
in whole or in part (but not as to a fractional share of Common Stock), by
written notice of exercise substantially in the form attached hereto as
Schedule I, which notice shall be delivered to the Company accompanied by the
surrender of this Warrant (properly endorsed if required) at the principal
office of the Company and upon payment to the Company, by cash, certified
check or bank draft, of the Warrant Exercise Price for such shares. The
Company agrees that the Warrant Stock so purchased shall be and is deemed to
be issued as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for such Warrant Stock as aforesaid.
Certificates for the shares of Warrant Stock so purchased shall be delivered
to the Holder within thirty (30) days after the rights represented by this
Warrant shall have been so exercised, and, unless this Warrant has expired, a
new Warrant representing the number of shares of Warrant Stock, if any, with
respect to which this Warrant has not been exercised shall also be delivered
to the Holder within such time. Notwithstanding the foregoing, however, the
Company shall not be required to deliver any certificates for shares of
Warrant Stock, except in accordance with the provisions and subject to the
limitations of Paragraph 5 below.
2. The Company covenants and agrees that all shares of Warrant Stock that
may be issued upon the exercise of this Warrant will, upon issuance, be duly
authorized and issued, fully paid and nonassessable and free from all taxes,
liens, and charges with respect to the issuance thereof. The Company further
covenants and agrees that until expiration of this Warrant, the Company will
at all times have authorized, and reserved for the purpose of issuance upon
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THIS AMOUNT IS SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH AT THE
BOTTOM OF THE LAST PAGE HEREOF.
exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of this Warrant.
3. The provisions in this Warrant relating to the Warrant Exercise Price
and the number of shares of Warrant Stock to be issued upon exercise of this
Warrant shall be subject to adjustment from time to time as hereinafter
provided.
(a) Upon each adjustment of the Warrant Exercise Price, the Holder of
this Warrant shall thereafter be entitled to purchase, at the Warrant Exercise
Price resulting from such adjustment, the number of shares of Common Stock
obtained by multiplying the Warrant Exercise Price in effect immediately prior
to such adjustment by the number of shares of Common Stock purchasable hereto
immediately prior to such adjustment and dividing the product thereof by the
Warrant Exercise Price resulting from such adjustment.
(b) In case the Company shall at any time subdivide its outstanding
Common Stock into a greater number of shares or declare a dividend payable in
Common Stock, the Warrant Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of
Common Stock purchasable pursuant to this Warrant shall be proportionately
increased, and conversely, in case the Company's outstanding Common Stock
shall be combined into a smaller number of shares, the Warrant Exercise Price
in effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable upon the
exercise of this Warrant shall be proportionately reduced.
(c) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets ("Substituted Property")
with respect to or in exchange for such Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, the
Holder shall have the right to purchase and receive upon the basis and upon
the terms and conditions specified in this Warrant, and in lieu of the Common
Stock of the Company immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby, such Substituted Property as
would have been issued or delivered to the Holder if it had exercised this
Warrant and had received upon exercise of this Warrant the Common Stock prior
to such reorganization, reclassification, consolidation, merger, or sale. The
Company shall not effect any such consolidation, merger, or sale, unless prior
to the consummation thereof the successor corporation (if other than the
Company) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument executed and mailed
to the Holder at the last address of the Holder appearing on the books of the
Company, the obligation to deliver to the Holder such Substituted Property as,
in accordance with the foregoing provisions, the Holder may be entitled to
purchase.
(d) If the Company takes any other action, or if any other event occurs
which does not come within the scope of the provisions of Paragraphs 3 (b) or
3 (c), but which should result in an adjustment in the Warrant Exercise Price
and/or the number of shares subject to the Warrant in order to fairly protect
the purchase rights of the Holder, an appropriate adjustment in such purchase
rights shall be made by the Company.
(e) Upon any adjustment of the Warrant Exercise Price or the number of
shares issuable upon of this Warrant, the Company shall give written notice
thereof, by first-class mail, postage prepaid, addressed to the Holder at the
address of the Holder as shown on the books of the Company, which notice shall
state the Warrant Exercise Price resulting from such adjustment and the
increase or decrease, if any, in the number of shares purchasable at such
price upon the exercise of this Warrant, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is based.
4. This Warrant shall not entitle the Holder to any voting, rights or
other rights as a shareholder of the Company.
5. The Holder, by acceptance hereof, represents and warrants that (a) it
is acquiring this Warrant for its own account for investment purposes only and
not with a view to its resale or
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distribution and (b) it has no present intention to resell or otherwise
dispose of all or any part of this Warrant. Other than pursuant to
registration under federal and applicable state securities laws or an
exemption from such registration, the availability of which the Company shall
determine in its sole discretion, neither this Warrant nor any shares of
Warrant Stock may be sold, pledged, assigned, or otherwise disposed of
(whether voluntarily or involuntarily). The Company may condition such sale,
pledge, assignment, or other disposition on the receipt from the party to whom
this Warrant is to be so transferred or to whom Warrant Stock is to be issued
or so transferred of any representations and agreements requested by the
Company in order to permit such issuance or transfer to be made pursuant to
exemptions from registration under federal and applicable state securities
laws. Each certificate representing the Warrant (or any part thereof) and any
shares of Warrant Stock shall bear appropriate legends setting forth these
restrictions on transferability. The Holder, by acceptance hereof, agrees to
give written notice to the Company before transferring this Warrant or any
shares of Warrant Stock of the Holder's intention to do so, describing briefly
the manner of any proposed transfer. Within thirty (30) days after receiving
such written notice, the Company shall notify the Holder as to whether such
transfer may be effected and of the conditions to any such transfer.
6. This Warrant shall be transferable only on the books of the Company by
the Holder in person, or by duly authorized attorney, on surrender of the
Warrant, properly assigned.
7. Neither this Warrant nor any terms hereof may be changed, waived,
discharged, or terminated orally but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge, or
termination is sought.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed on
its behalf by its duly authorized officer on the day and year first above
written.
NETSTAR, INC.
Title:
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THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAW. THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ASSIGNED OR OTHERWISE
DISPOSED OF, AND NO TRANSFER OF THE SECURITIES WELL BE MADE BY THE
COMPANY OR ITS TRANSFER AGENT, IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
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