EXHIBIT 4.2
NEITHER THIS WARRANT NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON THE
EXERCISE HEREOF ("WARRANT SHARES"), AS OF THE DATE OF ISSUANCE HEREOF, HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND IN COMPLIANCE WITH ANY
APPLICABLE STATE SECURITIES LAW, OR IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
For the Purchase of __________
shares of Common Stock
WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF XXXXXX.XXX, INC.
(A Delaware corporation)
XxXxxx.xxx, Inc., a Delaware corporation (the "Company"), hereby certifies
that for value received:
[Registered Holder]
or registered assigns ("Registered Holder"), is entitled, subject to the terms
set forth below, to purchase from the Company, at any time or from time to time
during the period commencing on April 6, 2001, and ending at 5:00 p.m. on April
5, 2006 (the "Expiration Date"), 250,000 shares of Common Stock (subject to
adjustment as provided herein), $.0001 par value, of the Company ("Common
Stock"), at a per share purchase price of $1.07. The number of shares of Common
Stock purchasable upon exercise of this Warrant, and the purchase price per
share, each as adjusted from time to time pursuant to the provisions of this
Warrant, are hereinafter referred to as the "Warrant Shares" and the "Purchase
Price", respectively.
1. Exercise and Redemption of Warrants. Unless the Warrants have been
redeemed in accordance with this Section, the Registered Holder of any Warrant
Certificate may exercise the Warrants, in whole or in part at any time or from
time to time at or prior to the close of business, on the Expiration Date, at
which time the Warrant Certificates shall be and become wholly void and of no
value. Warrants may be exercised by their holders or redeemed by the Company as
follows:
(a) This Warrant may be exercised by Registered Holder, in whole or
in part, by the surrender of this Warrant (with the Notice of Exercise Form
attached hereto as Exhibit I duly executed by Registered Holder) at the
principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full of an amount equal to the
then applicable Purchase Price multiplied by the number of Warrant Shares then
being purchased upon such exercise.
(b) Payment may be made either in lawful money of the United States
or by surrender of a note made by the Company and payable to the Registered
Holder with a balance of principal plus accrued and unpaid interest to the date
of surrender equal to the payment required. Each exercise of this Warrant shall
be deemed to have been effected immediately prior to the close of business on
the day on which this Warrant shall have been surrendered to the Company as
provided in subsection l(a) above. At such time, the person or persons in whose
name or names any certificates for Warrant Shares shall be issuable upon such
exercise as provided in subsection l(c) below shall be deemed to have become the
holder or holders of record of the Warrant Shares represented by such
certificates.
(c) As soon as practicable after the exercise of the purchase right
represented by this Warrant, the Company at its expense will use its best
efforts to cause to be issued in the name of, and delivered to, Registered
Holder, or, subject to the terms and conditions hereof, to such other individual
or entity as Registered Holder (upon payment by Registered Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
shares of Warrant Shares to which Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which Registered Holder would
otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, stating on the face or faces
thereof the number of shares currently stated on the face of this Warrant
(subject to adjustment as provided herein) minus the number of such shares
purchased by Registered Holder upon such exercise as provided in subsection l(a)
above.
(d) In case the registered holder of any Warrant certificate shall
exercise fewer than all of the Warrants evidenced by such certificate, the
Company shall promptly countersign and deliver to the registered holder of such
certificate, or to his duly authorized assigns, a new certificate evidencing the
number of Warrants that were not so exercised.
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(e) Each person in whose name any certificate for securities is
issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the securities represented thereby as of, and
such certificate shall be dated, the date upon which the Warrant certificate was
duly surrendered in proper form and payment of the Purchase Price (and of any
applicable taxes or other governmental charges) was made; provided, however,
that if the date of such surrender and payment is a date on which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares as of, and the certificate for such
shares shall be dated, the next succeeding business day on which the stock
transfer books of the Company are open (whether before, on or after the
Expiration Date) and the Company shall be under no duty to deliver the
certificate for such shares until such date. The Company covenants and agrees
that it shall not cause its stock transfer books to be closed for a period of
more than 10 consecutive business days except upon consolidation, merger, sale
of all or substantially all of its assets, dissolution or liquidation or as
otherwise provided by law. The Company shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares upon
exercise of the Warrants.
(f) All of the outstanding Warrants issued by the Company on the
date hereof may be redeemed in whole but not in part upon 30 days' written
notice at the option of the Company, commencing six months after the date
hereof, if, at the time notice of such redemption is given by the Company as
provided in Paragraph (g), below, the average Daily Price has exceeded 150% of
the then Purchase Price for the twenty consecutive trading days immediately
preceding the date of such notice, at a price equal to $.05 per Warrant (the
"Redemption Price"), provided, however, the Company shall not redeem any
Warrants if the underlying shares are not then covered by an effective
Registration Statement under the Securities Act of 1933, as amended. For the
purpose of the foregoing sentence, the term "Daily Price" shall mean, for any
relevant day, the closing price on that day (or if there is no closing price the
last bid price) as reported by the principal exchange or quotation system on
which prices for the Common Stock are reported. On the redemption date the
holders of record of redeemed Warrants shall be entitled to payment of the
Redemption Price upon surrender of such redeemed Warrants to the Company at its
principal office.
(g) Notice of redemption of Warrants shall be given at least 30 days
prior to the redemption date by mailing, by registered or certified mail, return
receipt requested, a copy of such notice to all of the holders of record of
Warrants at their respective addresses appearing on the books or transfer
records of the Company or such other address designated in writing by the holder
of record to the Company.
(h) From and after the redemption date, all rights of the
Warrantholders (except the right to receive the Redemption Price) shall
terminate.
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2. Adjustments.
(a) Split, Subdivision or Combination of Shares. If the outstanding
shares of the Company's Common Stock at any time while this Warrant remains
outstanding and unexpired shall be subdivided or split into a greater number of
shares, or a dividend in Common Stock shall be paid in respect of Common Stock,
the Purchase Price in effect immediately prior to such subdivision or at the
record date of such dividend, simultaneously with the effectiveness of such
subdivision or split or immediately after the record date of such dividend (as
the case may be), shall be proportionately decreased. If the outstanding shares
of Common Stock shall be combined or reverse-split into a smaller number of
shares, the Purchase Price in effect immediately prior to such combination or
reverse split, simultaneously with the effectiveness of such combination or
reverse split, shall be proportionately increased. When any adjustment is
required to be made in the Purchase Price, the number of shares of Warrant
Shares purchasable upon the exercise of this Warrant shall be changed to the
number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Purchase Price in effect immediately prior to such adjustment,
by (ii) the Purchase Price in effect immediately after such adjustment.
(b) Reclassification, Reorganization, Consolidation or Merger. In
the case of any reclassification of the Common Stock (other than a change in par
value or a subdivision or combination as provided for in subsection 2(a) above),
or any reorganization, consolidation or merger of the Company with or into
another corporation (other than a merger or reorganization with respect to which
the Company is the continuing corporation and which does not result in any
reclassification of the Common Stock), or a transfer of all or substantially all
of the assets of the Company, or the payment of a liquidating distribution then,
as part of any such reorganization, reclassification, consolidation, merger,
sale or liquidating distribution, lawful provision shall be made so that
Registered Holder shall have the right thereafter to receive upon the exercise
hereof, the kind and amount of shares of stock or other securities or property
which Registered Holder would have been entitled to receive if, immediately
prior to any such reorganization, reclassification, consolidation, merger, sale
or liquidating distribution, as the case may be, Registered Holder had held the
number of shares of Common Stock which were then purchasable upon the exercise
of this Warrant. In any such case, appropriate adjustment (as reasonably
determined by the Board of Directors of the Company) shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of Registered Holder such that the provisions set forth in
this Section 2 (including provisions with respect to the Purchase Price) shall
thereafter be applicable, as nearly as is reasonably practicable, in relation to
any shares of stock or other securities or property thereafter deliverable upon
the exercise of this Warrant.
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(c) Price Adjustment. No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or decrease in the
Purchase Price of at least $0.01, provided, however, that any adjustments which
by reason of this paragraph are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under this
Section 2 shall be made to the nearest cent or to the nearest 1/lOOth of a
share, as the case may be.
(d) Price Reduction. Notwithstanding any other provision set forth
in this Warrant, at any time and from time to time during the period that this
Warrant is exercisable, the Company in its sole discretion may reduce the
Purchase Price or extend the period during which this Warrant is exercisable.
(e) No Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 2 and in the taking of all such actions as may be necessary or
appropriate in order to protect against impairment of the rights of Registered
Holder to adjustments in the Purchase Price.
(f) Notice of Adjustment. Upon any adjustment of the Purchase Price,
number of shares the Warrants are exercisable for, or extension of the Warrant
exercise period, the Company shall forthwith give written notice thereto to
Registered Holder describing the event requiring the adjustment, stating the
adjusted Purchase Price and the adjusted number of shares purchasable upon the
exercise hereof resulting from such event, and setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based.
3. Fractional Shares. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall make an adjustment
thereof in cash on the basis of the last sale price of the Warrant Shares on the
over-the-counter market as reported by Nasdaq or on a national securities
exchange on the trading day immediately prior to the date of exercise, whichever
is applicable, or if neither is applicable, then on the basis of the then fair
market value of the Warrant Shares as shall be reasonably determined by the
Board of Directors of the Company.
4. Limitation on Sales. Each holder of this Warrant acknowledges that this
Warrant and the Warrant Shares, as of the date of original issuance of this
Warrant, have not been registered under the Securities Act of 1933, as amended
("Act"), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise
in the absence of (a) an effective registration statement under the Act as to
this Warrant or such Warrant Shares or (b) an opinion of counsel, satisfactory
to the Company, that such registration and qualification are not required. The
Warrant Shares issued upon exercise thereof shall be imprinted with a legend in
substantially the following form:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
5. Certain Dividends. If the Company pays a dividend or makes a
distribution on the Common Stock ("Dividend"), other than a cash dividend or a
stock dividend payable in shares of Common Stock, then the Company will pay or
distribute to Registered Holder, upon the exercise hereof, in addition to the
Warrant Shares purchased upon such exercise, the Dividend which would have been
paid to such Registered Holder if it had been the owner of record of such
Warrant Shares immediately prior to the date on which a record is taken for such
Dividend or, if no record is taken, the date as of which the record holders of
Common Stock entitled to such Dividend are determined.
6. Registration Rights of Registered Holder. The Company and Registered
Holder have entered into a Letter Agreement, dated the date hereof, with respect
to the Warrant Shares, pursuant to which the Company has agreed to use its
reasonable best efforts to prepare and file a Registration Statement under the
Act ("Registration Statement") with the Securities and Exchange Commission.
7. Notices of Record Date. In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of any class or any other securities, or to receive any
other right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company, or
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(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company will mail or
cause to be mailed to Registered Holder a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least twenty (20) days prior to the
record date or effective date for the event specified in such notice, provided
that the failure to mail such notice shall not affect the legality or validity
of any such action.
8. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Common Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant. The Company
shall apply for listing, and obtain such listing, for the Warrant Shares on the
NASDAQ SmallCap stock market, at the earliest time that such listing may be
obtained in accordance with the rules and regulations of the NASDAQ SmallCap
stock market and maintain such listing until the seventh anniversary of the date
of original issuance of this Warrant. All shares that may be issued upon
exercise of this Warrant shall, at the time of issuance, be duly authorized,
fully paid and non-assessable.
9. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor. This Warrant is exchangeable for new Warrants (containing
the same terms as this Warrant) each representing the right to purchase such
number of shares as shall be designated by the Registered Holder at the time of
surrender (but not exceeding in the aggregate the remaining number of shares of
Common Stock which may be purchased hereunder.
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10. Participation and Additional Financing. In the event the Company
offers to sell shares of Common Stock, or securities convertible into or
exercisable for Common Stock, at a price per share less than the Purchase Price
of the Warrants in effect at the time of such proposed sale, other than shares
issued pursuant to employee stock options (the "Offering"), the Purchaser shall
have the right to purchase (the "Purchase Right") in connection with the
Offering, such number of shares of Common Stock as shall equal the product of
(a) the maximum number of shares of Common Stock being offered for sale by the
Company in the Offering and (b) a fraction, the numerator of which is the sum of
(i) the number of shares for which the Warrants held by the Purchaser are then
exercisable and (ii) the number of shares of Common Stock of the Company then
held by the Purchaser and the denominator of which is the total number of shares
of the Company issued and outstanding at such time (without taking into account
the shares of Common Stock being offered in the Offering). The Company shall
give the Purchaser written notice of the Offering and include therein detailed
information concerning the terms of the Offering, including, but not limited to,
the maximum number of shares being offered in the Offering, the purchase price
per share and the maximum number of shares of Common Stock which the Purchaser
has the right to purchase pursuant to this Section 10. The Purchaser shall then
have ten (10) business days within which to notify the Company in writing of its
intention to exercise such Purchaser's Purchase Right and the number of shares
of Common Stock which Purchaser intends to purchase (the "Subject Shares")
pursuant to the Purchase Right. If the Purchaser shall fail to provide the
Company with such written notification, the Company shall have no obligation to
sell, and the Purchaser shall have no right to purchase, any shares of Common
Stock being sold in the Offering. If the Purchaser shall notify the Company of
its intention to exercise such Purchaser's Purchase Right, the Company shall
sell and the Purchaser shall purchase the Subject Shares at such date and time
as shall be mutually agreed to by the parties.
11. Transfers, etc.
(a) The Company will maintain a register containing the names and
addresses of Registered Holders. A Registered Holder may change his, her or its
address as shown on the warrant register by written notice to the Company
requesting such change.
(b) Until any transfer of this Warrant is made in the warrant
register, the Company may treat Registered Holder as the absolute owner hereof
for all purposes, provided, however, that if and when this Warrant is properly
assigned in blank, the Company may (but shall not be obligated to) treat the
bearer hereof as the absolute owner hereof for all purposes, notwithstanding any
notice to the contrary.
12. No Rights as Stockholder. Until the exercise of this Warrant,
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company.
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13. Successors. The rights and obligations of the parties to this Warrant
will inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, assigns, pledgees, transferees and purchasers.
Without limiting the foregoing, the registration rights set forth in this
Warrant shall inure to the benefit of Registered Holder and Registered Holder's
successors, heirs, pledgees, assignees, transferees and purchasers of this
Warrant and the Warrant Shares.
14. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
15. Headings. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
16. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York as such laws are applied to
contracts made and to be fully performed entirely within that state between
residents of that state.
17. Jurisdiction and Venue. The Company and Registered Holder (i) agree
that any legal suit, action or proceeding arising out of or relating to this
Warrant shall be instituted exclusively in New York State Supreme Court, County
of New York or in the United States District Court for the Southern District of
New York, (ii) waives any objection to the venue of any such suit, action or
proceeding and the right to assert that such forum is not a convenient forum for
such suit, action or proceeding, and (iii) irrevocably consent to the
jurisdiction of the New York State Supreme Court, County of New York, and the
United States District Court for the Southern District of New York in any such
suit, action or proceeding, and the Company and Registered Holder further agree
to accept and acknowledge service or any and all process which may be served in
any such suit, action or proceeding in New York State Supreme Court, County of
New York or in the United States District Court for the Southern District of New
York and agrees that service of process upon it mailed by certified mail to its
address shall be deemed in every respect effective service of process upon it in
any suit, action or proceeding.
18. Mailing of Notices, etc. All notices and other communications under
this Warrant (except payment) shall be in writing and shall be sufficiently
given if delivered to the addressees in person, by Federal Express or similar
receipt delivery, by facsimile delivery or, if mailed, postage prepaid, by
certified mail, return receipt requested, as follows:
to Registered Holder:
to the Company: Xxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, President
Fax: (000) 000-0000
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with a copy to: Morse, Zelnick, Rose & Lander LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any of them, by notice to the other may designate
from time to time. Time shall be counted to, or from, as the case may be, the
delivery in person or by mailing.
Dated: April 6, 2001.
XXXXXX.XXX, INC.
By:_______________________________
Xxxxxx Xxxxxxxx, President
and Chief Executive Officer
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EXHIBIT I
NOTICE OF EXERCISE
TO: Xxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
1. The undersigned hereby elects to purchase________shares of the Common
Stock of XxXxxx.xxx Inc., pursuant to terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full, together with all
applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of
the Common Stock in the name of the undersigned or in such other name as is
specified below. If the attached Warrant is exercisable for a greater number of
shares than the number set forth in paragraph 1, then please issue another
Warrant in the name of the undersigned or in such other name as is specified
below exercisable for the remaining number of shares.
3. The undersigned represents that it will sell the shares of Common Stock
pursuant to an effective Registration Statement under the Securities Act of
1933, as amended, or an exemption from registration thereunder.
(Name)
(Address)
(Taxpayer Identification Number)
[print name of Registered Holder]
By:
Title:
Date:
