EXHIBIT 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION, OR SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND LAWS, SUCH COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE
EVIDENCED BY AN OPINION OF THE WARRANT HOLDER'S COUNSEL, IN FORM ACCEPTABLE TO
THE CORPORATION, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT
FROM ANY PROPOSED TRANSFER OR ASSIGNMENT.
COMMON STOCK PURCHASE WARRANT
XXXXXX SYSTEMS, INC.
THIS CERTIFIES that for good and valuable consideration received,
_________________________ or a registered assignee (the "Holder") is entitled,
upon the terms and subject to the conditions hereinafter set forth, to acquire
from Xxxxxx Systems, Inc., a Nevada corporation formerly known as Historical
Autographs U.S.A., Inc. (the "Corporation"), up to ____________________ fully
paid and nonassessable shares of common stock, par value $0.001, of the
Corporation ("Warrant Stock") at a purchase price per share (the "Exercise
Price") of $2.50 (the "Warrant").
THIS WARRANT IS ISSUED TO HOLDER IN CONNECTION WITH THE AGREEMENT AND
PLAN OF REORGANIZATION BY AND AMONG THE CORPORATION, HAUSA ACQUISTION, INC.,
XXXXXX TECHNOLOGIES, INC., AND OTHERS, DATED OCTOBER 20, 2003 (THE
"REORGANIZATION AGREEMENT"). PURSUANT TO THE REORGANIZATION AGREEMENT, THIS
WARRANT REPLACES A COMMON STOCK PURCHASE WARRANT PREVIOUSLY ISSUED OR ISSUABLE
TO HOLDER BY XXXXXX TECHNOLOGIES, INC.
1. Term of Warrant.
Subject to the terms and conditions set forth herein, this Warrant
shall be exercisable, in whole or in part, at any time on or after the date
hereof and at or prior to 11:59 p.m., Pacific Standard Time, on October 29, 2006
(the "Expiration Time"). Notwithstanding the foregoing, the Corporation shall
have the right (the "Call Right"), except as may be limited by law, other
agreements or herein, to repurchase and cancel this Warrant if the average
closing price for the Corporation's common stock, as quoted on the principal
trading system on which the common stock is listed (such as the OTC Bulletin
Board, The Nasdaq Stock Market, any stock exchange, or other established
over-the-counter quotation service), is equal to or greater than $4.00 per
share, as adjusted pursuant to Section 11 hereof, during the period of the
twenty (20) consecutive trading days prior to the date on which the Corporation
elects to exercise the Call Right. The price at which the Corporation is
entitled to exercise the Call Right (the "Repurchase Price") shall be equal to
the multiple of (i) $0.01 times (ii) the number of shares of Warrant Stock that
this Warrant is then entitled to purchase. In the event that the Corporation
exercises its Call Right, the Corporation shall send the Holder written notice
of the exercise of the Call Right 20 calendar days before the repurchase becomes
effective. The Holder shall have the right to exercise this Warrant until the
close of business on the twentieth (20th) day after the mailing of the Call
Right notice. If this Warrant is not exercised during the foregoing 20-day
period, this Warrant shall expire and cease to be exercisable on the
twenty-first (21st) day after the date of mailing of the notice. Within three
business days after the expiration of this Warrant as a result of the exercise
of the Call Right, the Corporation shall mail to the Holder a check in the
amount of the Repurchase Price.
2. Exercise of Warrant.
The purchase rights represented by this Warrant are exercisable by the
registered Holder hereof, in whole or in part, at any time and from time to time
at or prior to the Expiration Time by the surrender of this Warrant and the
Notice of Exercise form attached hereto duly executed to the office of the
Corporation at Cedars-Sinai Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx, Xxxxx X-0000, 000
Xxxxxx Xxxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (or such other office or agency
of the Corporation as it may designate by notice in writing to the registered
Holder hereof at the address of such Holder appearing on the books of the
Corporation), and upon payment of the Exercise Price for the shares thereby
purchased (by cash or by check or bank draft payable to the order of the
Corporation or by cancellation of indebtedness of the Corporation to the Holder
hereof, if any, at the time of exercise in an amount equal to the purchase price
of the shares thereby purchased); whereupon the Holder of this Warrant shall be
entitled to receive from the Corporation a stock certificate in proper form
representing the number of shares of Warrant Stock so purchased.
3. Issuance of Shares; No Fractional Shares of Scrip.
Certificates for shares purchased hereunder shall be delivered to the
Holder hereof by the Corporation's transfer agent at the Corporation's expense
within a reasonable time after the date on which this Warrant shall have been
exercised in accordance with the terms hereof. Each certificate so delivered
shall be in such denominations as may be requested by the Holder hereof and
shall be registered in the name of such Holder or, subject to applicable laws,
such other name as shall be requested by the Holder. If, upon exercise of this
Warrant, fewer than all of the shares of Warrant Stock evidenced by this Warrant
are purchased prior to the Expiration Time, one or more new warrants
substantially in the form of, and on the terms in, this Warrant will be issued
for the remaining number of shares of Warrant Stock not purchased upon exercise
of this Warrant. The Corporation hereby represents and warrants that all shares
of Warrant Stock which may be issued upon the exercise of this Warrant will,
upon such exercise, be duly and validly authorized and issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect of the
issuance thereof (other than liens or charges created by or imposed upon the
Holder of the Warrant Stock). The Corporation agrees that the shares so issued
shall be and will be deemed to be issued to such Holder as the record owner of
such shares as of the close of business on the date on which this Warrant shall
have been surrendered for exercise in accordance with the terms hereof. No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. With respect to any fraction of a share called for
upon the exercise of this Warrant, an amount equal to such fraction multiplied
by the then current price at which each share may be purchased hereunder shall
be paid in cash to the Holder of this Warrant.
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4. Registration Rights.
Pursuant to the terms of the Subscription Agreement and Exhibit A
thereto signed in conjunction with this Warrant, certain registration rights
apply to the Warrant Stock if (i) the last reported sales price of the common
stock of the Corporation, as published by the principal trading market on which
such common stock is then quoted, has exceeded two dollars and fifty cents
($2.50) for twenty (20) consecutive trading days or (ii) if the Corporation is
eligible to file a registration statement on Form S-3 with the Securities and
Exchange Commission. See the Subscription Agreement and Exhibit A thereto for a
full description of the registration rights applicable to the Warrant Stock and
the limitations on such rights.
5. Charges, Taxes and Expenses.
Issuance of certificates for shares of Warrant Stock upon the exercise
of this Warrant shall be made without charge to the Holder hereof for any issue
or transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Corporation,
and such certificates shall be issued in the name of the Holder of this Warrant
or in such name or names as may be directed by the Holder of this Warrant;
provided, however, that in the event certificates for shares of Warrant Stock
are to be issued in a name other than the name of the Holder of this Warrant,
this Warrant when surrendered for exercise shall be accompanied by an Assignment
Form to be provided by the Corporation duly executed by the Holder hereof.
6. No Rights as Stockholders.
This Warrant does not entitle the Holder hereof to any voting rights or
other rights as a stockholder of the Corporation prior to the exercise hereof.
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7. Exchange and Registry of Warrant.
This Warrant is exchangeable, upon the surrender hereof by the
registered Holder at the above mentioned office or agency of the Corporation,
for a new Warrant of like tenor and dated as of such exchange. The Corporation
shall maintain at the above-mentioned office or agency a registry showing the
name and address of the registered Holder of this Warrant. This Warrant may be
surrendered for exchange, transfer or exercise, in accordance with its terms, at
such office or agency of the Corporation, and the Corporation shall be entitled
to rely in all respects, prior to written notice to the contrary, upon such
registry.
8. Loss, Theft, Destruction or Mutilation of Warrant.
Upon receipt by the Corporation of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant and in case of
loss, theft or destruction of indemnity or security reasonably satisfactory to
it, and upon reimbursement to the Corporation of all reasonable expenses
incidental thereto, and upon surrender and cancellation of this Warrant, if
mutilated, the Corporation will make and deliver a new Warrant of like tenor and
dated as of such cancellation, in lieu of this Warrant.
9. Saturdays, Sundays and Holidays.
If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall be a Saturday or a
Sunday or that is a legal holiday, then such action may be taken or such right
may be exercised on the next succeeding day not a Saturday, Sunday or legal
holiday.
10. Merger, Sale of Assets, Etc.
If at any time the Corporation proposes to merge or consolidate with or
into any other corporation, effect any reorganization, or sell or convey all or
substantially all of its assets to any other entity, then, as a condition of
such reorganization, consolidation, merger, sale or conveyance, the Corporation
or its successor, as the case may be, shall enter into a supplemental agreement
to make lawful and adequate provision whereby the Holder shall have the right to
receive, upon exercise of the Warrant, the kind and amount of equity securities
which would have been received upon such reorganization, consolidation, merger,
sale or conveyance by a Holder of a number of shares of common stock equal to
the number of shares issuable upon exercise of the Warrant immediately prior to
such reorganization, consolidation, merger, sale or conveyance. If the property
to be received upon such reorganization, consolidation, merger, sale or
conveyance is not equity securities, the Corporation shall give the Holder of
this Warrant ten (10) business days prior written notice of the proposed
effective date of such transaction, and if this Warrant has not been exercised
by or on the effective date of such transaction, it shall terminate.
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11. Subdivision, Combination, Reclassification, Conversion, Etc.
If the Corporation at any time shall by subdivision, combination,
reclassification of securities or otherwise, change the Warrant Stock into the
same or a different number of securities of any class or classes, this Warrant
shall thereafter entitle the Holder to acquire such number and kind of
securities as would have been issuable in respect of the Warrant Stock (or other
securities which were subject to the purchase rights under this Warrant
immediately prior to such subdivision, combination, reclassification or other
change) as the result of such change if this Warrant had been exercised in full
for cash immediately prior to such change. The Exercise Price hereunder shall be
adjusted if and to the extent necessary to reflect such change. If the Warrant
Stock or other securities issuable upon exercise hereof are subdivided or
combined into a greater or smaller number of shares of such security, the number
of shares issuable hereunder shall be proportionately increased or decreased, as
the case may be, and the Exercise Price shall be proportionately reduced or
increased, as the case may be, in both cases according to the ratio which the
total number of shares of such security to be outstanding immediately after such
event bears to the total number of shares of such security outstanding
immediately prior to such event. The Corporation shall give the Holder prompt
written notice of any change in the type of securities issuable hereunder, any
adjustment of the Exercise Price for the securities issuable hereunder, and any
increase or decrease in the number of shares issuable hereunder.
12. Transferability; Compliance with Securities Laws.
(a) This Warrant may not be transferred or assigned in whole or in part
without compliance with all applicable federal and state securities laws by the
transferor and transferee (including the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Corporation, if
requested by the Corporation). Subject to such restrictions, prior to the
Expiration Time, this Warrant and all rights hereunder are transferable by the
Holder hereof, in whole or in part, at the office or agency of the Corporation
referred to in Section 2 hereof. Any such transfer shall be made in person or by
the Holder's duly authorized attorney, upon surrender of this Warrant together
with the Assignment Form attached hereto properly endorsed.
(b) The Holder of this Warrant, by acceptance hereof, acknowledges that
this Warrant and the Warrant Stock issuable upon exercise hereof are being
acquired solely for the Holder's own account and not as a nominee for any other
party, and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except under circumstances that will not result in a violation
of the Securities Act of 1933, as amended, or any state securities laws. Upon
exercise of this Warrant, the Holder shall, if requested by the Corporation,
confirm in writing, in a form satisfactory to the Corporation, that the shares
of Warrant Stock so purchased are being acquired solely for Holder's own account
and not as a nominee for any other party, for investment, and not with a view
toward distribution or resale.
(c) The Warrant Stock has not been and, except as set forth in Section
4, will not be registered under the Securities Act of 1933, as amended, and this
Warrant may not be exercised except by (i) the original purchaser of this
Warrant from the Corporation or (ii) an "accredited investor" as defined in Rule
501(a) under the Securities Act of 1933, as amended. Each certificate
representing the Warrant Stock or other securities issued in respect of the
Warrant Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall be stamped or otherwise imprinted with a
legend substantially in the following form (in addition to any legend required
under applicable securities laws):
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT.
13. Representations and Warranties.
The Corporation hereby represents and warrants to the Holder hereof
that:
(a) during the period that this Warrant is outstanding, the Corporation
will reserve from its authorized and unissued common stock a sufficient number
of shares to provide for the issuance of Warrant Stock upon the exercise of this
Warrant;
(b) the issuance of this Warrant shall constitute full authority to the
Corporation's officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the shares of
Warrant Stock issuable upon exercise of this Warrant;
(c) the Corporation has all requisite legal and corporate power to
execute and deliver this Warrant, to sell and issue the Warrant Stock hereunder,
and to carry out and perform its obligations under the terms of this Warrant;
(d) all corporate action on the part of the Corporation, its directors
and stockholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Corporation, the authorization, sale,
issuance and delivery of the Warrant Stock, the grant of registration rights as
provided herein and the performance of the Corporation's obligations hereunder
has been taken;
(e) the Warrant Stock, when issued in compliance with the provisions of
this Warrant and the Corporation's Articles of Incorporation (as they may be
amended from time to time), will be validly issued, fully paid and
nonassessable, and free of all taxes, liens or encumbrances with respect to the
issue thereof, and will be issued in compliance with all applicable federal and
state securities laws; and
(f) the issuance of the Warrant Stock will not be subject to any
preemptive rights, rights of first refusal or similar rights.
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14. Governing Law.
This Warrant shall be governed by and construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by its duly authorized officers.
Dated:
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XXXXXX SYSTEMS, INC.
By:
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Xxxxx Xxxxx, M.D., President
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