EXHIBIT 4.6
NEITHER THIS WARRANT NOR THE STOCK FOR WHICH IT MAY BE EXERCISED HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR
ANY OTHER FEDERAL OR STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF, EXCEPT AS PROVIDED IN ARTICLE IV, UNLESS SO REGISTERED OR
UNLESS SOLD PURSUANT TO AN EXEMPTION THEREFROM.
UNIVERSAL HEIGHTS, INC.
COMMON STOCK PURCHASE WARRANT
This certifies that, for value received, Xxxxxx Xxxxxxx, or his
registered assignee ("Holder") is entitled to subscribe for and purchase from
Universal Heights, Inc. ("Company"), a corporation organized and existing under
the laws of the State of Delaware, 100,000 shares ("Warrant Shares") (subject to
adjustment as set forth in Article II below) of Common Stock of the Company, par
value $0.01 per share ("Common Stock"), at the exercise price of $2.00 per share
("Exercise Price"), at any time and from time to time beginning on the second
anniversary of the date of issuance of this Warrant, in whole or in part, and on
or before April __, 1999 ("Expiration Date"), upon written notice from the
Holder to the Company ("Notice") and subject to the terms provided herein.
Capitalized terms used herein, and not otherwise defined, shall have
the meanings specified in Article IV. This Warrant is subject to the following
provisions, terms and conditions:
ARTICLE I
EXERCISE; RESERVATION OF SHARES
Section 1.01. WARRANT EXERCISE. The rights represented by this
Warrant may be exercised by the Holder, in whole or in part (but in increments
of not less than 25,000 Warrant Shares), upon Notice, by the surrender at the
principal office of the Company of this Warrant on or after the second
anniversary of the date of issuance hereof together with a duly executed
subscription in the form annexed ("Subscription Form") and accompanied by
payment, in certified or immediately available funds, of the Exercise Price for
the number of Warrant Shares specified in the Subscription Form. The shares so
purchased shall be deemed to be issued to the Holder (unless contrary
instructions are provided on the Subscription Form) as the record owner of such
shares as of the close of business on the date on which this Warrant shall have
been exercised as hereinabove provided. No fractional shares or script
representing fractional shares shall be issued upon exercise of this Warrant and
the number of shares which shall be issued upon such exercise shall be rounded
to the nearest whole share without the payment or receipt of any additional
consideration.
Section 1.02. CERTIFICATES. Certificates for the shares purchased
pursuant to Section 1.01 shall be delivered to the Holder within a reasonable
time, after the rights represented by this Warrant shall have been so exercised,
and a new Warrant in the name of the Holder representing the rights, if any,
which shall not have been exercised with respect to this Warrant shall also be
delivered to such Holder within such time, with such new Warrant to be identical
in all other respects to this Warrant. The term "Warrant," as used herein,
includes any Warrants into which this Warrant may be divided or combined and any
subsequent Warrants issued upon the transfer or exchange or reissuance upon loss
(after provision of appropriate indemnification) hereof.
Section 1.03. RESERVATION OF SHARES. The Company represents,
warrants, covenants and agrees:
(a) That all shares of Common Stock which may
be issued upon exercise of this Warrant will, upon
issuance, be validly issued, fully paid and
nonassessable and free from all taxes, liens and
charges with respect to the issue thereof;
(b) That during the period from which the
rights represented by this Warrant may be exercised,
the Company will at all times have authorized, and
reserved for the purpose of issue and delivery upon
exercise of the rights evidenced by this Warrant, a
sufficient number of shares of to provide for the
exercise of the rights represented by this Warrant;
and
(c) If the Common Stock is listed on any
national securities exchange or similar trading
market, the shares of Common Stock which may be
issued upon exercise of this Warrant will also be
listed on such exchange subject to notice of
issuance.
ARTICLE II
ADJUSTMENTS
Section 2.01. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE.
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(a) CAPITAL EVENTS. If any reorganization or reclassification of the
capital stock of the Company, or any consolidation or merger of the Company with
another corporation, or the sale of all or substantially all of its assets to
another corporation (in any instance, a "Capital Event") shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities or assets (including cash) with respect to or in exchange for their
Common Stock, then, as a condition of such Capital Event, lawful and adequate
provisions shall be made whereby the Holder hereof shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of the shares of the Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby, an amount of such shares of stock, securities or
assets (including cash) as may have been issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby had such Capital
Event not taken place.
(b) PRESERVATION OF VALUE. In the case of any Capital Event,
appropriate provision shall be made with respect to the rights and interests of
the Holder of this Warrant to the end that the provisions hereof shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets (including cash) thereafter deliverable upon the
exercise of the rights represented hereby.
(c) OBLIGATION EXPRESSLY ASSUMED. The Company shall not effect any
consolidation, merger or sale of all or substantially all of its assets, unless
prior to the consummation thereof the successor corporation (if other than the
Company) resulting from such consolidation or merger, or the corporation into or
for the securities of which the previously outstanding stock of the Company
shall be changed in connection with such consolidation or merger, or the
corporation purchasing such assets, as the case may be, shall assume by written
instrument executed and mailed or delivered to the registered Holder at the last
address of such Holder appearing on the books of the Company, the obligation to
deliver to such Holder, upon exercise of this Warrant, such shares of stock,
securities or assets (including cash) as, in accordance with the foregoing
provisions, such Holder may be entitled to purchase.
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Section 2.02. SUBDIVISION OR COMBINATION OF STOCK. In the event that
the Company shall at any time subdivide or split its outstanding shares of
Common Stock into a greater number of shares, the number of Warrant Shares
subject to issuance upon exercise of this Warrant at the opening of business on
the day upon which such subdivision becomes effective shall be proportionately
increased. In the event that the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the number of shares
subject to issuance upon exercise of this Warrant at the opening of business on
the day upon which such subdivision becomes effective shall be proportionately
decreased. Any such increase or decrease, as the case may be, shall become
effective immediately after the opening of business on the day following the day
upon which such subdivision or combination, as the case may be, becomes
effective.
Section 2.03. EQUITABLE ADJUSTMENT. In the event the Company shall
participate in any extraordinary corporate event or transaction not otherwise
provided for herein, including a so-called issuer self-tender, there shall be
made an equitable and proportionate adjustment in the number of shares issuable
upon exercise of this Warrant and the Exercise Price consistent with the
principles of other such adjustments provided for in this Article II.
Section 2.04. ADDITIONAL COMMON STOCK. In the event the Company
shall within six months from the date hereof issue any additional shares of
Common Stock (other than through a stock subdivision or split covered by Section
2.02, a dividend upon the Company's Common Stock payable in stock covered by
Section 2.03 or pursuant to any existing right to purchase or acquire shares of
Common Stock of the Company) for a consideration per share of less than $1.00,
then the Exercise Price of the $2.00 Warrants shall be reduced to the price at
which the Company issued or sold such shares of Common Stock.
Section 2.05. 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 or any subsidiary of the Company, and the disposition
of any such shares (other than between the Company and any such subsidiary or
between any such subsidiaries) shall be considered an issue or sale of Common
Stock for purposes of this Article II.
Section 2.06. MINIMUM ADJUSTMENT. No adjustment in the number of
shares which may be issued upon exercise of this Warrant as provided in this
Article II shall be required unless such adjustment would require an increase or
decrease in such number of shares of at least five percent (5%) of the then
adjusted number of shares of Common Stock which may be issued upon exercise of
this Warrant; provided, however, that any such adjustments which by reason of
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the foregoing are not required to be made shall be carried forward and taken
into account and included in determining the amount of any subsequent
adjustment; and provided further, that if the Company shall at any time
subdivide or combine the outstanding shares of Common Stock or issue additional
shares of Common Stock as a dividend, said percentage shall forthwith be
proportionately adjusted so as to appropriately reflect the same.
Section 2.07. RECORD DATE. In the event that the Company shall not
take a record of the holders of its Common Stock for the purpose of entitling
them to receive a dividend payable in Common Stock, then such record date shall
be deemed for the purposes of this Article II 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.
Section 2.08. TAX ADJUSTMENT. The Company may make such increases in
the number of shares of Common Stock purchasable upon exercise hereof, in
addition to those required by this Article II, as shall be determined by its
Board of Directors to be advisable in order to avoid taxation so far as
practicable of any dividend of stock or stock rights or any event treated as
such for federal income tax purposes to the recipients.
Section 2.09. OFFICER'S CERTIFICATE. Whenever there shall be any
adjustment as provided in this Article II, the Company shall forthwith file with
its Secretary and retain in the permanent records of the Company, an officer's
certificate showing the adjustment determined as provided in this Article II,
setting forth in reasonable detail the facts requiring such adjustment,
including a statement of the number of additional or fewer shares of Common
Stock, and such other facts as may be reasonably necessary to show the reason
for and the method of computing such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder.
Section 2.10. NOTICE OF ADJUSTMENT. Upon any adjustment of the
number of shares which may be issued upon exercise of this Warrant, the Company
shall give notice thereof to the Holder, which notice shall state the increase
or decrease, if any, in the number of shares which may be issued upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
Section 2.11. DEFINITION OF "COMMON STOCK". As used in this Article
II, the term (i) "Common Stock" shall mean and include all of the Company's
authorized Common Stock of any class as constituted on the effective date
hereof, and shall also include any capital stock of any class of the Company
thereafter authorized which shall not be limited to a fixed sum or stated value
in respect of the rights of the holders thereof to participate in dividends or
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company.
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ARTICLE III
TRANSFER RESTRICTIONS; REGISTRATION RIGHTS
Section 3.01. SECURITIES LAW TRANSFER RESTRICTIONS. By taking and
holding this Warrant, the Holder (i) acknowledges that neither this Warrant nor
any shares of Common Stock which may be issued upon exercise of this Warrant
have been registered under the Securities Act or any applicable state securities
or blue sky law (collectively, "Securities Laws"); and (ii) agrees not to sell,
transfer or otherwise dispose of this Warrant or any such shares of Common Stock
without such registration unless the sale, transfer or disposition can be
effected without such registration and in compliance with the Securities Laws.
Any certificate for shares of Common Stock issued upon exercise of this Warrant
shall bear an appropriate legend describing the foregoing restrictions.
Section 3.02. PROVISION OF INFORMATION BY HOLDER. The Holder shall
make available to the Company such written information, presented in form and
content satisfactory to the Company, as the Company may reasonably request, from
time to time, in order to make the determination provided for in Section 3.01.
ARTICLE IV
MISCELLANEOUS
Section 4.01. TRANSFER OF WARRANTS. Subject to Article III, this
Warrant and any shares of any Stock obtained upon exercise of this Warrant may
be transferred at the principal office of the Company by registration in the
stock books of the Company maintained for such purpose upon delivery to the
Company of a duly executed assignment in the form annexed ("Assignment Form").
Section 4.02. NOTICES. Any notice or communication to be given
pursuant to this Warrant shall be in writing and shall be delivered in person or
by certified mail, return receipt requested, in the United States mail, postage
prepaid. Notices to the Company shall be addressed to the Company's principal
office. Notices to the Holder shall be addressed to the Holder's address as
reflected in the records of the Company. Notices shall be effective upon
delivery in person, or, if mailed, at midnight on the fifth business day after
mailing.
Section 4.03. ISSUE TAX. The issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
the original Holder for any issuance tax in respect thereof, provided that the
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Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the Holder of the Warrant exercised.
Section 4.04. NO SHAREHOLDER RIGHTS. This Warrant shall not
entitle the Holder to any voting rights or other rights as a shareholder of
the Company.
Section 4.05 CURRENT INFORMATION. The Company shall cause copies of
all financial statements and reports, proxy statements and other documents which
are provided to its shareholders to be sent by first class mail, postage
prepaid, on the date of mailing to such shareholders, to the Holder at the
address reflected in the records of the Company.
Section 4.06. GOVERNING LAW. This Warrant shall be governed by
and construed in accordance with the laws of the State of Delaware.
Section 4.07. HEADINGS; INTERPRETATION. The section headings used
herein are for convenience of reference only and are not intended to define,
limit or describe the scope or intent of any provision of this Warrant. When
used in this Warrant, the term "including" shall mean "including, without
limitation by reason or enumeration".
Section 4.08. SUCCESSORS. The covenants, agreements and
provisions of this Warrant shall bind the parties hereto and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, the Company has caused this Warrant to be issued
this ____ day of April, 1997.
ATTEST: UNIVERSAL HEIGHTS, INC.
By:________________________ By:_______________________________
Title:_____________________ Title:____________________________
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SUBSCRIPTION FORM
TO BE EXECUTED ONLY UPON EXERCISE OF WARRANT
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for and purchases ____________ shares of Common Stock of
Universal Heights, Inc. which may be issued under this Warrant and herewith
delivers the sum of $____________ in full payment of the Exercise Price for such
shares, all on the terms and conditions specified in this Warrant. Such shares
are to be registered in the name of the registered holder of this Warrant unless
contrary instructions are herein given and certificates evidencing such shares
are to be delivered to it/him/her at the address reflected in the records of the
Company unless contrary instructions are herein given.
Register shares in the name of
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Deliver certificates to
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Dated: _________________ ___________________________________
(Signature of Registered Owner)
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(Street Address)
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(City) (State) (Zip Code)
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ASSIGNMENT FORM
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TO BE EXECUTED ONLY UPON ASSIGNMENT OF WARRANT
For value received, the undersigned,_________________ ________
hereby sells, assigns and transfers unto _____________ _____________, whose
address is _______________________________ ______________, the right to purchase
Common Stock of Universal Heights, Inc. represented by this Warrant to the
extent of __________ shares, as to which such right is exercisable and does
hereby irrevocably constitute and appoint ______________________,
Attorney-in-Fact, to transfer the same on the books of the Company with full
power of substitution in the premises.
Dated: _________________ ___________________________________
(Signature of Registered Owner)
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(Street Address)
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(City) (State) (Zip Code)
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