NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
FUSION NETWORKS HOLDINGS INC.
WARRANT
Warrant No.___ Dated: November 9, 2000
Fusion Networks Holdings, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, __________________ or its registered
assigns ("Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company up to a total of ___________ shares of common stock,
$.00001 par value per share (the "Common Stock"), of the Company (each such
share, a "Warrant Share" and all such shares, the "Warrant Shares") at an
exercise price equal to $0.6728 per share (as adjusted from time to time as
provided in Section 9, the "Exercise Price"), at any time and from time to time
from and after the date hereof and through and including November 8, 2005 (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 Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, and the Company shall not be affected by
notice to the contrary.
2. Registration of Transfers and Exchanges.
(a) The Company shall register the transfer of any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant, with the
Form of Assignment attached hereto duly completed and signed, to the
Transfer Agent or to the Company at its address for notice set forth in
Section 13. 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 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 holder of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof by the
Holder to the office of the Company at its address for notice set forth in
Section 13 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.
3. Duration and Exercise of Warrants.
(a) This Warrant shall be exercisable by the registered Holder on any
business day before 6:30 P.M., New York City time, at any time and from
time to time on or after the date hereof to and including the Expiration
Date. At 6:30 P.M., New York City time on the Expiration Date, the portion
of this Warrant not exercised prior thereto shall be and become void and of
no value. Prior to the Expiration Date, the Company may not call or
otherwise redeem this Warrant without the prior written consent of the
Holder.
(b) Upon delivery of a duly completed and signed Form of Election to
Purchase attached hereto to the Company at its address for notice set forth
in Section 13 and upon payment of the Exercise Price multiplied by the
number of Warrant Shares that the Holder intends to purchase hereunder, in
the manner provided hereunder, all as specified by the Holder in the Form
of Election to Purchase, the Company shall promptly (but in no event later
than 3 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 Holder and in such name or names as the Holder may designate,
a certificate for the Warrant Shares issuable upon such exercise, free of
restrictive legends except (i) either in the event that a registration
statement covering the resale of the Warrant Shares and naming the Holder
as a selling stockholder thereunder is not then effective or the Warrant
Shares are not freely transferable without volume restrictions pursuant to
Rule 144(k) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii) if this Warrant shall have been issued pursuant
to a written agreement between the original Holder and the Company, as
required by such agreement. Any person so designated by the 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. The Company
shall, upon request of the Holder, if available, use its best efforts to
deliver Warrant Shares hereunder electronically through the Depository
Trust Corporation or another established clearing corporation performing
similar functions.
A "Date of Exercise" means the date on which the Company shall have
received (i) 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 holder
hereof to be purchased.
(c) This Warrant shall be exercisable, either in its entirety or, from
time to time, for a portion of the number of Warrant Shares. 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.
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4. Redemption.
(a) On not less than ten (10) days notice by the Company to the holder
of the Warrant, provided that the closing price of the Common Stock has
equaled or exceeded $8.00 (the "Redemption Trigger Price") for a period of
twenty (20) consecutive trading days ending within ten (10) days of the
notice of redemption, the Warrants may be redeemed, at the option of the
Company, at $0.25 per Warrant (the "Redemption Price").
(b) The notice of redemption shall specify (i) the Redemption Price,
(ii) the date fixed for redemption, (iii) the place where the Warrant shall
be delivered and the redemption price paid, (iv) that the Company will
assist each holder of a Warrant in connection with the exercise thereof,
and (v) that the right to exercise such Warrant shall terminate at 5:00
P.M. New York time on the business day immediately preceding the date fixed
for redemption. The date fixed for the redemption of Warrants shall be the
"Redemption Date". No failure to mail such notice nor any defect therein or
in the mailing thereof shall affect the validity of the proceedings for
such redemption except as to a holder (a) to whom notice was not mailed to
the address set forth in the Company's records, or (b) whose notice was
defective. An affidavit of the Secretary or any Assistant Secretary of the
Company that notice of redemption has been mailed shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
(c) Any right to exercise a Warrant shall terminate at 5:00 P.M. New
York time on the business day immediately preceding the Redemption Date
thereof. On and after the Redemption Date, holders of the redeemed Warrants
shall have no further rights except to receive, upon surrender of the
Warrant, the Redemption Price.
(d) From the date specified for redemption, the Company shall, at the
place specified in the notice of redemption, upon presentation and
surrender to the Company by or on behalf of the holder thereof of one or
more Warrants to be redeemed, deliver or cause to be delivered to or upon
the written order of such holder a sum in cash equal to the Redemption
Price of each such Warrant. From and after the date fixed for redemption
and upon setting aside by the Company in a segregated account of a sum
sufficient to redeem all the Warrants called for redemption, such Warrants
shall expire and become void and all rights hereunder, except the right to
receive payment of the Redemption Price, shall cease.
(e) For the purpose of computing the Redemption Trigger Price under
the above provisions, the price of the Common Stock shall be (i) the last
sale price regular way, or in case no such reported sale takes place on
such day, the average of the last reported bid and asked prices regular
way, in either case on the principal national securities exchange on which
the Common Stock is admitted to trading, if listed; or (ii) if the Common
Stock is not listed or admitted to trading on any such exchange, but is
traded in the national over-the-counter market, the last sales prices of
such stock in such market for such day; or (iii) if the Common Stock is not
listed or traded on any such exchange or traded in the national
over-the-counter market or if no sales are reported for such day in the
national over-the-counter market, the average of the highest reported bid
and lowest reported asked price of such stock in the over-the-counter
market.
3
5. Piggyback Registration Rights.
(a) The Company covenants and agrees with any holder of the Warrants
or Warrant Shares that if, at any time during the twelve month period
following the Closing Date, it proposes to file a registration statement
with respect to any class of equity or equity-related security (other than
in connection with an offering to the Company's employees or in connection
with an acquisition, merger or similar transaction) under the Securities
Act in a primary registration on behalf of the Company and/or in a
secondary registration on behalf of holders of such securities, unless the
rights of such holders pre-date the rights of the holders of the Warrants
or the Warrant Shares and allow the holders of such securities to exclude
other securities from a registration statement filed on their behalf, and
the registration form to be used may be used for registration of the
Warrant Shares, the Company will give prompt written notice (which, in the
case of a registration statement pursuant to the exercise of demand
registration rights shall be within ten (10) business days after the
Company's receipt of notice of such exercise and, in any event, shall be at
least 30 days prior to such filing) to the holders of Warrants and the
Warrant Shares at the addresses appearing on the records of the Company of
its intention to file a registration statement and will offer to include in
such registration statement such number of Warrant Shares with respect to
which the Company has received written requests for inclusion therein
within ten (10) days after the giving of notice by the Company, subject to
the right of the Company to exclude from the registration statement some or
all of the Warrant Shares if, and only if, the Company has been advised in
writing by any underwriter named in any such registration statement that
the distribution of the Warrant Shares requested to be included in the
registration statement would materially adversely affect the distribution
of securities by the Company contemplated by such registration statement.
All registrations requested pursuant to this Section 4 will be made solely
at the Company's expense, other than discounts or commissions relating to
the sale of the Warrant Shares and fees, if any, of counsel for the holder
of the Warrant Shares. This Section is not applicable to a registration
statement filed by the Company on Forms S-4 or S-8 or any successor forms.
(b) The Company's obligations under this Section 5 shall be
conditioned upon a timely receipt by the Company in writing of: (i)
information as to the terms of such public offering furnished by or on
behalf of each holder of Warrant Shares intending to make a public offering
of his, her or its Warrant Shares, and (ii) such other information as the
Company may reasonably require from such holders, or any underwriter for
any of them, for inclusion in such registration statement.
6. Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the registration
of any certificates for Warrant Shares or Warrants in a name other than that of
the Holder. The Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
4
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and indemnity, if
requested, satisfactory to it. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable charges as the Company may prescribe.
8. Reservation of Warrant Shares. The Company covenants that it will at all
times reserve and keep available out of the aggregate of its authorized but
unissued Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of this Warrant as herein provided, the number of Warrant
Shares which are then issuable and deliverable upon the exercise of this entire
Warrant, free from preemptive rights or any other actual contingent purchase
rights of persons other than the Holder (taking into account the adjustments and
restrictions of Section 9). The Company covenants that all Warrant Shares that
shall be so issuable and deliverable shall, upon issuance and the payment of the
applicable Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and nonassessable.
9. Certain Adjustments. The Exercise Price, Redemption Price, Redemption
Trigger Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this Section
9. Upon each such adjustment of the Exercise Price pursuant to this Section 9,
the Holder shall thereafter prior to the Expiration Date be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number of
Warrant Shares obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon exercise
of this Warrant immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(a) If the Company, at any time while this Warrant is outstanding, (i)
shall pay a stock dividend (except scheduled dividends paid on outstanding
preferred stock as of the date hereof which contain a stated dividend rate)
or otherwise make a distribution or distributions on shares of its Common
Stock or on any other class of capital stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock into a larger
number of shares, or (iii) combine outstanding shares of Common Stock into
a smaller number of shares, the Exercise Price, Redemption Price and
Redemption Trigger Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding before such event and of which the denominator
shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding after such event. Any adjustment made pursuant to this
Section shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective
date in the case of a subdivision or combination, and shall apply to
successive subdivisions and combinations.
5
(b) In case of any reclassification of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is converted
into other securities, cash or property, then the Holder shall have the
right thereafter to exercise this Warrant only into the shares of stock and
other securities and property receivable upon or deemed to be held by
holders of Common Stock following such reclassification or share exchange,
and the Holder shall be entitled upon such event to receive such amount of
securities or property equal to the amount of Warrant Shares such Holder
would have been entitled to had such Holder exercised this Warrant
immediately prior to such reclassification or share exchange. The terms of
any such reclassification or share exchange shall include such terms so as
to continue to give to the Holder the right to receive the securities or
property set forth in this Section 9(b) upon any exercise following any
such reclassification or share exchange.
(c) If the Company, at any time while this Warrant is outstanding,
shall distribute to all holders of Common Stock (and not to holders of this
Warrant) evidences of its indebtedness or assets or rights or warrants to
subscribe for or purchase any security (excluding those referred to in
Sections 9(a), (b) and (d)), then in each such case the Exercise Price,
Redemption Price and Redemption Trigger Price shall be determined by
multiplying the Exercise Price in effect immediately prior to the record
date fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the Exercise
Price determined as of the record date mentioned above, and of which the
numerator shall be such Exercise Price on such record date less the then
fair market value at such record date of the portion of such assets or
evidence of indebtedness so distributed applicable to one outstanding share
of Common Stock as determined by the Company's independent certified public
accountants that regularly examines the financial statements of the Company
(an "Appraiser").
(d) If the Company or any subsidiary thereof, as applicable with
respect to Common Stock Equivalents (as defined below), at any time while
this Warrant is outstanding, shall issue shares of Common Stock or rights,
warrants, options or other securities or debt that is convertible into or
exchangeable for shares of Common Stock ("Common Stock Equivalents"),
entitling any person to acquire shares of Common Stock at a price per share
less than the Exercise Price (if the holder of the Common Stock or Common
Stock Equivalent so issued shall at any time, whether by operation of
purchase price adjustments, reset provisions, floating conversion, exercise
or exchange prices or otherwise, or due to warrants, options or rights
issued in connection with such issuance, be entitled to receive shares of
Common Stock at a price less than the Exercise Price, such issuance shall
be deemed to have occurred for less than the Exercise Price), then the
Exercise Price, Redemption Price and Redemption Trigger Price shall be
multiplied by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the issuance of
such Common Stock or such Common Stock Equivalents plus the number of
shares of Common Stock which the offering price for such shares of Common
Stock or Common Stock Equivalents would purchase at the Exercise Price, and
the denominator of which shall be the sum of the number of shares of Common
Stock outstanding immediately prior to such issuance plus the number of
shares of Common Stock so issued or issuable, provided, that for purposes
hereof, all shares of Common Stock that are issuable upon conversion,
exercise or exchange of Common Stock Equivalents shall be deemed
outstanding immediately after the issuance of such Common Stock
Equivalents. Such adjustment shall be made whenever such Common Stock or
Common Stock Equivalents are issued. However, upon the expiration of any
Common Stock Equivalents the issuance of which resulted in an adjustment in
the Exercise Price, Redemption Price and Redemption Trigger Price pursuant
to this Section, if any such Common Stock Equivalents shall expire and
shall not have been exercised, the Exercise Price, Redemption Price and
Redemption Trigger Price shall immediately upon such expiration be
recomputed and effective immediately upon such expiration be increased to
the price which it would have been (but reflecting any other adjustments in
the Exercise Price, Redemption Price and Redemption Trigger Price made
pursuant to the provisions of this Section after the issuance of such
Common Stock Equivalents) had the adjustment of the Exercise Price made
upon the issuance of such Common Stock Equivalents been made on the basis
of offering for subscription or purchase only that number of shares of the
Common Stock actually purchased upon the exercise of such Common Stock
Equivalents actually exercised.
6
(e) In case of any (1) merger or consolidation of the Company with or
into another Person, or (2) sale by the Company of more than one-half of
the assets of the Company (on a book value basis) in one or a series of
related transactions, the Holder shall have the right thereafter to (A)
exercise this Warrant for the shares of stock and other securities, cash
and property receivable upon or deemed to be held by holders of Common
Stock following such merger, consolidation or sale, and the Holder shall be
entitled upon such event or series of related events to receive such amount
of securities, cash and property as the Common Stock for which this Warrant
could have been exercised immediately prior to such merger, consolidation
or sales would have been entitled, or (B) in the case of a merger or
consolidation, (x) require the surviving entity to issue common stock
purchase warrants equal to the number Warrant Shares to which this Warrant
then permits, which newly warrant shall be identical to this Warrant, and
(y) simultaneously with the issuance of such warrant, shall have the right
to exercise such warrant only into shares of stock and other securities,
cash and property receivable upon or deemed to be held by holders of Common
Stock following such merger or consolidation. In the case of clause (B),
the exercise price, Redemption Price and Redemption Trigger Price for such
new warrant shall be based upon the amount of securities, cash and property
that each share of Common Stock would receive in such transaction and the
Exercise Price of this Warrant immediately prior to the effectiveness or
closing date for such transaction. The terms of any such merger, sale or
consolidation shall include such terms so as continue to give the Holder
the right to receive the securities, cash and property set forth in this
Section upon any conversion or redemption following such event. This
provision shall similarly apply to successive such events.
(f) For the purposes of this Section 9, the following clauses shall
also be applicable:
(i) Record Date. In case the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them (A) to
receive a dividend or other distribution payable in Common Stock or in
securities convertible or exchangeable into shares of Common Stock, or
(B) to subscribe for or purchase Common Stock or securities
convertible or exchangeable into shares of Common Stock, then such
record date shall be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase,
as the case may be.
7
(ii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held
by or for the account of the Company, and the disposition of any such
shares shall be considered an issue or sale of Common Stock.
(g) All calculations under this Section 9 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be.
(h) Whenever the Exercise Price is adjusted pursuant to Section 9(c)
above, the Holder, after receipt of the determination by the Appraiser,
shall have the right to select an additional appraiser (which shall be a
nationally recognized accounting firm), in which case the adjustment shall
be equal to the average of the adjustments recommended by each of the
Appraiser and such appraiser. The Holder shall promptly mail or cause to be
mailed to the Company, a notice setting forth the Exercise Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Such adjustment shall become effective immediately after the
record date mentioned above.
(i) If:
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
(ii) the Company shall declare a special nonrecurring
dividend on or a redemption of its Common Stock; or
(iii)the Company shall authorize the granting to all
holders the Common Stock rights or warrants to
subscribe for or purchase any shares of capital stock
of any class or of rights; or
(iv) the approval of any stockholders of the Company shall
be required in connection with any reclassification of
the Common Stock, any consolidation or merger to which
the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, or any
compulsory share exchange whereby the Common Stock is
converted into other securities, cash or property; or
(v) the Company shall authorize the voluntary dissolution,
liquidation or winding up of the affairs of the
Company,
then the Company shall cause to be mailed to each Holder at their last addresses
as they shall appear upon the Warrant Register, at least 20 calendar days prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up; provided, however, that the failure to mail such notice or any
defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.
8
10. Payment of Exercise Price. The Holder shall pay the Exercise Price in
one of the following manners:
(a) Cash Exercise. The Holder may deliver immediately available funds;
or
(b) Cashless Exercise. At any time after the earlier to occur of the
Effectiveness Date (as defined in the Registration Rights Agreement) and
the date the registration statement filed pursuant to the Registration
Rights Agreement is declared effective by the Commission, when a
registration statement covering the resale of the Warrant Shares and naming
the Holder as a selling stockholder thereunder is not then effective, the
Holder may surrender this Warrant to the Company together with a notice of
cashless exercise, in which event the Company shall issue to the Holder the
number of Warrant Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to the Holder.
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised.
A = the average of the closing sale prices of the Common
Stock for the five (5) trading days immediately prior to
(but not including) the Date of Exercise.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have been
commenced, on the issue date.
11. 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 which shall be issuable upon the exercise of this
Warrant shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of this Warrant so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section, be issuable on
the exercise of this Warrant, the Company shall pay an amount in cash equal to
the Exercise Price multiplied by such fraction.
9
12. Notices. Any and all notices or other communications or deliveries
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section prior to 6:30 p.m. (New York City time) on a business day, (ii) the
business day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section later than 6:30 p.m. (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the business day following
the date of mailing, if sent by nationally recognized overnight courier service,
or (iv) upon actual receipt by the party to whom such notice is required to be
given. The addresses for such communications shall be: (i) if to the Company, to
0000 XX 00xx Xxxxxx, Xxxxx, XX 00000 Facsimile No.:(000) 000-0000 attn: Chief
Financial Officer or (ii) if to the Holder, to the Holder at the address or
facsimile number appearing on the Warrant Register or such other address or
facsimile number as the Holder may provide to the Company in accordance with
this Section.
13. Warrant Agent. The Company shall serve as warrant agent under this
Warrant. Upon thirty days' notice to the Holder, the Company may appoint a new
warrant agent. Any corporation into which the Company or any new warrant agent
may be merged or any corporation resulting from any consolidation to which the
Company or any new warrant agent shall be a party or any corporation to which
the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
14. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. This Warrant
may be amended only in writing signed by the Company and the Holder and
their successors and assigns.
(b) Subject to Section 14(a), above, nothing in this Warrant shall be
construed to give to any person or corporation other than the Company and
the Holder any legal or equitable right, remedy or cause under this
Warrant. This Warrant shall inure to the sole and exclusive benefit of the
Company and the Holder.
(c) The corporate laws of the State of Delaware shall govern all
issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by and construed and
enforced in accordance with the internal laws of the State of Florida,
without regard to the principles of conflicts of law thereof. The Company
and the Holder hereby irrevocably submit to the exclusive jurisdiction of
the state and federal courts sitting in the City of Miami, Florida, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of any such
court, or that such suit, action or proceeding is improper. Each of the
Company and the Holder hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by receiving a copy thereof sent to the Company at the address
in effect for notices to it under this instrument and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law.
10
(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 enforceability 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
reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its authorized officer as of the date first indicated above.
FUSION NETWORKS HOLDINGS INC.
By:_____________________________
Name:
Title:
11
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
To Fusion Networks Holdings Inc.:
The undersigned hereby irrevocably elects to purchase _____________ shares
of common stock, $.00001 par value per share, of Fusion Networks Holdings Inc.,
(the "Common Stock") and, if such Holder is not utilizing the cashless exercise
provisions set forth in this Warrant, encloses herewith $________ in cash,
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the Warrant) for the number of shares of Common
Stock to which this Form of Election to Purchase relates, together with any
applicable taxes payable by the undersigned pursuant to the Warrant.
The Exercise Price applicable to the purchase hereunder equals
$___________.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
(Please print name and address)
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 Holder:
(Print)
(By:)
(Name:)
(Title:)
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
12
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of Fusion Networks
Holdings Inc., to which the within Warrant relates and appoints ________________
attorney to transfer said right on the books of Fusion Networks Holdings Inc.,
with full power of substitution in the premises.
Dated:_______________, ____
_______________________________________
(Signature must conform in all respects to
name of holder as
specified on the face of the Warrant)
_______________________________________
Address of Transferee
_______________________________________
_______________________________________
In the presence of:
__________________________
