FORM OF WARRANT
Exhibit
10.4
FORM OF WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION,
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH
TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.
| JULY ___, 2006 | NO. ___ |
XXXXXXXX XXXXXXX, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR VALUE RECEIVED, XXXXXXXX XXXXXXX, INC., a Delaware corporation (the “Company”), hereby
certifies that [ ___] (the “Holder”) is entitled, subject to the provisions of this Warrant,
to purchase from the Company, up to [ ___] fully paid and non-assessable shares of Common
Stock at a price of $4.35 per share (the “Exercise Price”).
The term “Common Stock” means the Common Stock, par value $.00000002 per share, of the
Company. The number of shares of Common Stock to be received upon the exercise of this Warrant may
be adjusted from time to time as hereinafter set forth. The shares of Common Stock deliverable
upon such exercise, and as adjusted from time to time, are hereinafter referred to as “Warrant
Shares.” The term “Company” means and includes the corporation named above as well as (1) any
immediate or more remote successor corporation resulting from the merger or consolidation of such
corporation (or any immediate or more remote successor corporation of such corporation) with
another corporation, or (ii) any corporation to which such corporation (or any immediate or more
remote successor corporation of such corporation) has transferred its property or assets as an
entirety or substantially as an entirety.
Upon receipt by the Company or the Company’s warrant agent, Computershare Trust Company, N.A.
(the “Warrant Agent”) of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this Warrant, if
mutilated, the Company shall execute and deliver a new Warrant of like tenor and date. Any such
new Warrant executed and delivered shall constitute an additional contractual obligation on the
part of the Company, whether or not this Warrant so lost, stolen, destroyed or mutilated shall be
at any time enforceable by anyone.
The Holder agrees with the Company that this Warrant is issued, and all the rights hereunder
shall be held subject to, all of the conditions, limitations and provisions set forth herein.
1. CASH EXERCISE OF WARRANT. This Warrant may be exercised, in whole or in part, at
any time, or from time to time during the period commencing on January 11, 2007 hereof and expiring
5:00 p.m. Eastern Time on July 11, 2010 (the “Expiration Date”), by presentation and surrender of
this Warrant to the Company at its principal office, or at the office of the Warrant Agent, with
the Warrant Exercise Form attached hereto duly executed and accompanied by payment (either in cash
or by certified or official bank check, payable to the order of the Company) of the Exercise Price
for the number of shares of Common Stock specified in such form and instruments of transfer, if
appropriate, duly executed by the Holder or his or her duly authorized attorney. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant of like terms evidencing the rights of the Holder
thereof to purchase the balance of the shares of Common Stock purchasable hereunder. Upon receipt
by the Company of this Warrant, together with the Exercise Price, at its office, or by the Warrant
Agent, in proper form for exercise, the Holder shall be deemed to be the holder of record of the
shares of Common Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such shares of Common Stock
shall not then be actually delivered to the Holder. The Holder shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of
Common Stock on exercise of this Warrant.
2. CASHLESS EXERCISE OF WARRANT. In lieu of exercising this Warrant, the Holder may
elect to receive shares of Common Stock equal to the value of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal office of the Company or the Warrant
Agent together with notice of such election, in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X
|
= | Y (A-B) | ||
| A |
Where X = the number of shares of Common Stock to be issued to the Holder.
Y = the number of shares of Common Stock purchasable under this Warrant.
A = the fair market value of one share of the Company’s Common Stock.
B = the Exercise Price (as adjusted to the date of such calculation).
For purposes of this Warrant, the fair market value of the Company’s Common Stock shall be
determined as follows:
(a) If the Common Stock is listed on a National Securities Exchange or admitted to unlisted
trading privileges on such exchange or listed for trading on the Nasdaq system, the current market
value shall be the last reported sale price of the Common Stock on such exchange or system on the
last business day prior to the date of exercise of this Warrant or, if no such sale is made on such
day, the average of the closing bid and asked prices for such day on such exchange or system; or
(b) If the Common Stock is not so listed or admitted, the current market shall be the average
of the closing bid and asked prices as quoted by the OTC Bulletin Board; or
(c) If the Common Stock is not so listed or admitted to unlisted trading privileges, the
current market value shall be the mean of the last reported bid and asked prices reported by the
National Quotation Bureau, Inc. on the last business day prior to the date of the exercise of this
Warrant; or
(d) If the Common Stock is not so listed or admitted to unlisted trading privileges and bid
and asked prices are not so reported, the current market value shall be an amount, not less than
book value thereof as at the end of the most recent fiscal year of the Company ending prior to the
date of the exercise of the Warrant, determined in such reasonable manner as may be prescribed by
the Board of Directors of the Company.
3. RESERVATION OF SHARES. The Company will at all times reserve for issuance and
delivery upon exercise of this Warrant all shares of Common Stock or other shares of capital stock
of the Company from time to time issuable upon exercise of this Warrant. All such shares shall be
duly authorized and, when issued upon such exercise, shall be validly issued, fully paid and
non-assessable and free of all preemptive rights.
4. FRACTIONAL SHARES. No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant, but the Company shall pay the Holder an amount
equal to the fair market value of such fractional share of Common Stock in lieu of each fraction of
a share otherwise called for upon any exercise of this Warrant. The fair market value of a share
of Common Stock shall be determined in accordance with Section 2 (a), (b), (c) or (d) as
applicable.
5. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is exchangeable,
without expense, at the option of the Holder, upon presentation and surrender hereof to the Company
or at the office of the Warrant Agent, for other Warrants of different denominations, entitling the
Holder or Holders thereof to purchase in the aggregate the same number of shares of Common Stock
purchasable hereunder. Upon surrender of this Warrant to the Company or at the office of its
Warrant Agent, if any, with an Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, subject to the
provisions of Sections 8 and 12 hereof, the Company shall, without charge, execute and deliver a
new Warrant in the name of the assignee named in such instrument of assignment (and in the event of
a partial transfer, a new Warrant to the Holder for the portion of such Warrant not transferred)
and this Warrant shall promptly be cancelled. This Warrant may be divided or combined with other
Warrants that carry the same rights upon presentation hereof at the office of the Company or at the
office of its Warrant Agent, together with a written notice specifying the names and denominations
in which new Warrants are to be issued and signed by the Holder hereof.
6. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be entitled to any
rights of a shareholder in the Company, either at law or in equity, and the rights of the Holder
are limited to those expressed in this Warrant.
7. ANTI-DILUTION PROVISIONS.
7.1 Adjustment for Recapitalization, Reorganization, Consolidation, Merger, Etc. In
case (i) the outstanding shares of the Common Stock shall be subdivided into a greater number of
shares, (ii) a dividend or other distribution in Common Stock shall be paid in respect of Common
Stock, (iii) the outstanding shares of Common Stock shall be combined into a smaller number of
shares thereof, or (iv) any shares of the Company’s capital stock are issued by reclassification of
the Common Stock (including any reclassification upon a consolidation or merger in which the
Company is the continuing corporation), the Exercise Price in effect immediately prior to such
subdivision, combination or reclassification or at the record date of such dividend or distribution
shall simultaneously with the effectiveness of such subdivision, combination or reclassification or
immediately after the record date of such dividend or distribution be proportionately adjusted to
equal the product obtained by multiplying the Exercise Price by a fraction, the numerator of which
is the number of outstanding shares of Common Stock (on a fully diluted basis) after giving effect
to such combination, subdivision, reclassification or dividend and the denominator of which is the
number of outstanding shares of Common Stock (on a fully diluted basis) outstanding immediately
prior to such combination, subdivision, reclassification or dividend.
For purposes of this Warrant, “on a fully diluted basis” means that all outstanding options,
rights or Warrants to subscribe for shares of Common Stock and all securities convertible into or
exchangeable for shares of Common Stock (such options, rights, Warrants and securities are
collectively referred to herein as “Convertible Securities”) and all options or rights to acquire
Convertible Securities have been exercised, converted or exchanged.
Whenever the Exercise Price per share is adjusted as provided in the immediately preceding
paragraph, the number of shares of Common Stock purchasable upon conversion of the Warrant
immediately prior to such Exercise Price adjustment shall be adjusted, effective simultaneous with
the Exercise Price adjustment, to equal the product obtained (calculated to the nearest full share)
by multiplying such number of shares of Common Stock by a fraction, the numerator of which is the
Exercise Price per share in effect immediately prior to such Exercise Price adjustment and the
denominator of which is the Exercise Price per share in effect upon
such Exercise Price adjustment, which adjusted number of shares of Common Stock shall
thereupon be the number of shares of Common Stock purchasable upon conversion of the Warrant until
further adjusted as provided herein.
7.2 Adjustment for Reorganization, Consolidation, Merger, Liquidation Etc. In case of
any reorganization of the Company (or any other corporation, the securities of which are at the
time receivable on the exercise of this Warrant) after the date hereof or in case after such date
the Company (or any such other corporation) shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to another corporation or liquidate,
then, and in each such case, the Holder of this Warrant upon the exercise thereof as provided in
Section 1 or 2 at any time after the consummation of such reorganization, consolidation, merger,
conveyance or liquidation, shall be entitled to receive, in lieu of the securities and property
receivable upon the exercise of this Warrant prior to such consummation, the securities or property
to which such Holder would have been entitled upon such consummation if such Holder had exercised
this Warrant immediately prior thereto; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of this Warrant after such
consummation.
7.3 No Dilution. The Company will not, by amendment of its Certificate of
Incorporation or through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder of this Warrant against dilution or other
impairment. Without limiting the generality of the foregoing, while this Warrant is outstanding,
the Company (a) will not permit the par value, if any, of the shares of Common Stock receivable
upon the exercise of this Warrant to be above the amount payable therefor upon such exercise and
(b) will take all such action as may be necessary or appropriate in order that the Company may
validly and legally issue or sell fully paid and non-assessable shares of Common Stock upon
the exercise of this Warrant.
7.4 Certificate as to Adjustments. In each case of an adjustment in the number of
shares of Warrant Shares receivable on the exercise of this Warrant, the Company at its expense
will promptly compute such adjustment in accordance with the terms of this Warrant and prepare a
certificate executed by an executive officer of the Company setting forth such adjustment and
showing in detail the facts upon which such adjustment is based. The Company will forthwith mail a
copy of each such certificate to the Holder.
7.5 Notices of Record Date, Etc. In case:
(a) the Company shall take a record of the holders of its Common Stock for the purpose of
entitling them to receive any dividend (other than a cash dividend at the same rate as the rate of
the last cash dividend theretofore paid) or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock 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, or any
conveyance of all or substantially all of the assets of the Company to another corporation; or
(c) of any voluntary or involuntary dissolution, liquidation or winding up of the Company,
then, and in each such case, the Company shall mail or cause to be mailed to each Holder of the
Warrant at the time outstanding 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 date on which such
reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up is to take place, and the time, if any, is to be fixed, as to which the holders of
record of Common Stock (or such other securities at the time receivable upon the exercise of the
Warrant) shall be entitled to exchange their shares of Common Stock (or such other securities) for
securities or other property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up. Such notice shall be mailed at least 20
days prior to the date therein specified and the Warrant may be exercised prior
to said date during the term of the Warrant.
8. TRANSFER TO COMPLY WITH THE SECURITIES ACT. Except as provided in the Registration
Rights Agreement, dated as of July 11, 2006, by and among the Company and the signatories thereto,
notwithstanding any other provision contained herein, this Warrant and any Warrant Shares have not
been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”)
or the securities laws of any state of the United States and are therefore “restricted securities”
within the meaning of Rule 144 under the Securities Act, and that (A) can be offered, sold, pledged
or otherwise transferred only (1) (a) to a person who the seller reasonably believes is a Qualified
Institutional Buyer in a transaction meeting the requirements of Rule 144A under the Securities
Act, (b) in a transaction meeting the requirements of Rule 144 under the Securities Act, (c)
outside the United States to a non-US person in a transaction meeting the requirements of Rule 903
and Rule 904 Rule 905 under the Securities Act and in compliance with applicable local laws and
regulations or (d) in accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company so requests), (2) to the
Company or (3) pursuant to an effective registration statement and, in each case, in accordance
with any applicable securities laws of any state of the United States or any other applicable
jurisdiction and (B) the purchaser will, and each subsequent holder is required to, notify any
subsequent purchaser from it of the resale restrictions set forth in (A) above.
9. LEGEND. Unless the shares of Warrant Shares have been registered under the
Securities Act, upon exercise of any of the Warrants and the issuance of any of the shares of
Warrant Shares, all certificates representing such securities shall bear on the face thereof
substantially the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
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, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AND IN THE CASE OF A
TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.
10. NOTICES. All notices required hereunder shall be in writing and shall be deemed
given when delivered personally, by facsimile or overnight delivery or within two days after
mailing when mailed by certified or registered mail, return receipt requested, to the Company at
its principal office, or to the Holder at the address set forth on the record books of the Company,
or at such other address of which the Company or the Holder has been advised by notice hereunder.
11. APPLICABLE LAW. The Warrant is issued under and shall for all purposes be
governed by and construed in accordance with the laws of the State of New York, without giving
effect to the choice of law rules thereof.
12. SUCCESSORS AND ASSIGNS. This Warrant cannot be transferred or assigned by the
Holder without the prior written consent of the Company.
(SIGNATURE ON FOLLOWING PAGE)
IN WITNESS HEREOF, the Company has caused this Warrant to be signed on its behalf, in its
corporate name, by its duly authorized officer, all as of the day and year first above written.
| XXXXXXXX XXXXXXX, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the rights contained within the Warrant
to the extent of purchasing ___shares of Common Stock of Xxxxxxxx Xxxxxxx, Inc., a
Delaware corporation (the “Company”), and hereby makes payment of $___in payment
therefor. By its exercise hereof, the undersigned confirms and agrees that it has complied and will
comply with all applicable restrictions on the offer, sale, pledge or other transfer of the shares
of Common Stock of the Company as set forth in the Warrant.
