Exhibit 4.4.11
WARRANT
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE REPRESENTATIONS AND AGREEMENTS MADE BY THE RECORD HOLDER HEREOF SET FORTH IN
THIS WARRANT.
TTR TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
in favor of
BISCOUNT OVERSEAS LTD
Date:November 29, 1999
No. H-002 35,000 Common Shares
FOR VALUE RECEIVED, TTR TECHNOLOGIES, INC., a Delaware company (the "Company"),
hereby grants to BISCOUNT OVERSEAS LTD. or its registered assignees (the
"Holder"), the right to purchase, subject to the terms and conditions hereof,
THIRTY FIVE THOUSAND (35,000) fully paid and non-assessable shares of Common
Stock of the Company, par value $0.001 ("Shares"). The purchase price for each
Share purchased pursuant to this Warrant shall be equal to $3.50, subject to the
terms hereof. Hereinafter, (i) such Shares, together with any other equity
security which may be issued by the Company in substitution therefor, are
referred to as the "Shares"; (ii) the shares purchasable hereunder are referred
to as the "Warrant Shares"; (iii) and the price payable hereunder for each of
the Warrant Shares, as adjusted in the manner set froth hereinafter, is referred
to as the "Per Share Warrant Price"; and (iv) this warrant and all warrants
hereafter issued in exchange or substitution for this Warrant are referred to as
the "Warrants". The Per Share Warrant Price and the number of Warrant Shares are
subject to adjustment as hereinafter provided.
1. Warrant Period; Exercise of Warrant
1.1 This Warrant may be exercised in whole at any time commencing 9:00
a.m., New York City time, on any business day on or after the issuance thereof
and continuing up to the third anniversary thereof (the "Warrant Period"), by
the surrender of this Warrant (with a duly executed exercise form in the form
attached at the end hereof as Exhibit A) at the principal office of the Company,
together with the proper payment of the Per Share Warrant Price times the number
of Warrant Shares.
1.2 Upon such surrender of this Warrant, the Company will: a) issue a
certificate or certificates in the name of Holder for the Warrant Shares to
which the Holder shall be entitled and (b) deliver the other securities and
properties receivable upon the exercise of this Warrant, pursuant to the
provisions of this Warrant.
1.3 Any stamp tax attributable to the issuance of the Shares shall be
borne solely by Holder.
1.4 Unless there is an effective registration statement under the
Securities Act of 1933, as amended, (the "Securities Act") covering the resale
of the Warrant Shares, at the option of the Holder, in lieu of exercising this
Warrant in the manner provided in Subsection 1.1 above, the Holder may elect,
pursuant to the terms of this Subsection 1.1, to receive Shares equal to the
value of this Warrant (taking into account only that portion of this Warrant
that is then exercisable) by surrender of this Warrant at the principal office
of the Company together with notice of such election in which event the Company
shall issue to the Holder a number of Shares using the following formula:
X = Y(A-B)
------
A
where X = The number of Shares to be issued to the Holder.
Y = The number of Shares purchasable under this Warrant (at the date of
such calculation).
A = The fair market value of one Share (at the date of such calculation).
B = The Per Share Warrant Purchase Price.
2. Representations and Warranties
The Holder (i) represents, warrants, covenants and agrees that the Warrant
and the underlying Warrant Shares are being acquired by the Holder for the
Holder's own account, for investment purposes only, and not with a view to or
for the sale in connection with any distribution thereof or with any present
intention of selling or distributing all or any part of the Warrant or the
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Warrant Shares; (ii) understands (x) that if it should thereafter decide to
dispose of such Warrant or Warrant Shares (which it does not contemplate at such
time) it may do so only in compliance with the Securities Act, (y) this Warrant
and the Warrant Shares are not registered under the Securities Act; and (iii)
acknowledges that, as of the date hereof, it has been given a full opportunity
to ask questions of and to receive answers from the Company concerning this
Warrant and the Warrant Shares and the business of the Company and to obtain
such information as it desired in order to evaluate the acquisition of this
Warrant and the Warrant Shares, and all questions have been answered to its full
satisfaction.
3. Reservation of Shares
The Company covenants that at all times during the Warrant Period it shall
have authorized and in reserve, and will keep available solely for issuance or
delivery upon exercise of the Warrant, the Warrant Shares and other securities
and properties as from time to time shall be receivable upon the exercise of
this Warrant, free and clear of preemptive rights and restrictions on sale or
transfer except as otherwise set forth herein or in the By-Laws.
4. Registration Rights
The Holder acknowledges that there exists an effective Company
registration statement filed under the Securities Act on or about October 4,
1999 [Registration No. 333-85085] (the "Filed Registration Statement"), which
Filed Registration Statement inludes certain securities (other than the Warrant
Shares) held by the Holder. The Holder further acknowledges that the Filed
Registration Statement was filed pursuant to the terms of a Registration Rights
Agreement, dated as May 13, 1999, between the Company and the Initial Investors
named therein (the "Initial Investors"). The Company will explore the option of
amending the Filed Registration Statement to include the Warrant Shares, subject
to the Holder executing a lock-up agreement in substantailly the same form as
previously signed by Biscount.
In the event that the Company does not for whatever reason amend the Filed
Registation Statement to include the Warrant Shares, then if the Company shall
file a registration statement for any shares of its Common Stock, it shall
include in the registration statement relating thereto the Warrant Shares,
except that where such registration statement was filed on behalf of a
shareholder or a rights holder, such inclusion shall be with the consent of such
shareholder or rightsholder. In the event that such registration offering
involves an underwriting, the rights of the Holder to have the Warrant Shares
included in such registration statement shall be conditional upon the
underwriter's determination as to the marketing factors requiring limitation of
such right, and the underwriter may preclude any or all securities of the Holder
which could have otherwise been included in such offering.
5. Adjustment
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5.1 In case prior to the expiration of this Warrant by exercise or by its
terms the Company shall issue any shares of its Common Stock as a stock dividend
or subdivide the number of outstanding shares of Common Stock into a greater
number of shares by a stock split or a similar transaction, then, in either of
such cases, the Exercise Price per share of the Warrant Shares purchasable
pursuant to this Warrant in effect at the time of such action shall be
proportionately reduced and the number of Warrant Shares purchasable at that
time shall be proportionately increased; and, conversely, in the event the
Company shall contract the number of outstanding shares of Common Stock by
combining such shares into a smaller number of shares by a reverse split or
similar transaction, then, in such case, the Exercise Price per share of the
Warrant Shares purchasable pursuant to this Warrant shall be proportionately
increased and the number of Warrant Shares purchaseable at that time shall be
propotionately reduced. Any dividend paid or distributed upon the Common Stock
in stock of any other class of securities convertible into shares of Common
Stock shall be treated as a dividend paid in Common Stock to the extent that
shares of Common Stock are issuable upon conversion thereof.
5.2 In case of any consolidation or merger of the Company with or into
another corporation (other than a merger or consolidation in which the Company
is the surviving or the continuing corporation) or in the case of any sale or
conveyance to another corporation or other entity of the property, assets or
business of the Company as an entirety or substantially as an entirety, in any
such case, the Company or such successor or purchasing corporation or entity, as
the case may be, shall (i) execute with the Holder an agreement that the Holder
shall have the right thereafter to receive upon the exercise of the Warrant the
kind and amount of shares and/or other securities or other property which he
would have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had the Warrant been exercised
immediately prior to such action, (ii) make effective provision in its
certificate of its incorporation or otherwise, if necessary, in order to effect
such agreement, and (iii) set aside or reserve for the benefit of the Holder,
the stock, securities, property and cash to which the Holder would be entitled
to upon exercise of this Warrant.
5.3 In case of any reclassification or change of the Warrant Shares
issuable upon exercise of this Warrant (other than a change in par value or from
no par value to a specific par value, or as a result of a subdivision or
combination, including any change in the shares into two or more classes or
series of shares), or in the case of any consolidation or merger of another
corporation into the Company in which the Company is the continuing corporation
and in which there is a reclassification or change (including a change in the
right to receive cash or other property) of the Shares (other than a change in
the par value, or from no par value to a specific par value or, as a result of a
subdivision or combination, including any change in the shares into two or more
classes or series of shares), Holder shall have the right thereafter to receive
upon exercise of this Warrant solely the kind and amount of shares of stock and
other securities, property, cash or combination thereof receivable upon such
reclassification, change, consolidation or merger by a holder of the number of
Shares for which this Warrant might have been exercised immediately prior to
such reclassification, change, consolidation or merger.
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5.4 The above provisions of this paragraph 5 shall similarly apply to
successive reclassifications and changes of Shares and to successive
consolidations, sales, leases or conveyances.
6. Limited Transfer
(a) This Warrant may not be sold, transferred, assigned or hypothecated by
the Holder except in a transation exempt from registration under the Securities
Act and any applicable state securities laws, and is so transferable only on the
books of the Company which the Company shall cause to be maintained for such
purpose. The Company may treat the registered holder of record as the Holder for
all purposes. The Company may require the Holder to provide the Company with an
opinion of counsel in substance reasonably satisfactory to it or to its counsel
as to such exemption. The Company shall permit any holder of a Warrant or his
duly authorized attorney, upon written request during ordinary business hours,
to inspect and copy or make extracts from its books showing the registered
holders of Warrants.
(b) In no event shall the Company be obligated to effect any transfer of
Warrants or Warrant Shares unless a registration statement is in effect with
respect thereto under applicable state and Federal securities laws or unless the
Company has received an opinion in substance reasonably satisfactory to it from
counsel that such registration is not required. Unless registered, the Warrant
Shares issued upon exercise of the Warrants shall be subject to a stop transfer
order and the certificate or certificates evidencing such Warrant Shares shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, PURSUANT TO A REGISTRATION STATEMENT.
ACCORDINGLY, SUCH SHARES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO A
REGISTRATION STATEMENT UNDER SUCH ACT, OR AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT."
7. Loss, etc. of Warrant
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute and deliver
to the Holder a new Warrant of like date, tenor and denomination.
8. Warrant Holder Not Shareholder
Except as otherwise provided herein, this Warrant does not confer upon the
Holder any right to vote or to consent or to receive notice as a shareholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a shareholder, prior to the exercise hereof.
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9. Headings
The headings of this Warrant have been inserted as a matter of convenience and
shall not affect the construction hereof.
10. Notices.
Unless otherwise provided, any notice required or permitted under this Warrant
shall be given in writing and shall be deemed effectively given upon personal
delivery to the party to be notified or seven (7) days after deposit with a
National Post Office, for dispatch by registered or certified mail, postage
prepaid and addressed to the Holder at the address set forth in the Company's
books and to the Company at the address of its principal offices set forth
above. With respect to Holders located outside Israel, such notice shall be
deemed effectively given upon personal delivery to the party to be notified, 15
business days after deposit with a National Post Office for dispatch by
registered or certified airmail, or when given by telecopier or other form of
rapid written communication, provided that confirming copies are sent by such
airmail.
11. Governing Law
This Warrant shall be governed by and construed and enforced in accordance with
the laws of the State of New York applicable to contracts made and performed
within such State.
IN WITNESS WHEREOF, the Company has caused this Common Stock Purchase Warrant to
be executed as of the date first written above.
TTR TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Xxxx X. Xxxxxxx
President
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EXHIBIT A
WARRANT EXERCISE FORM
_________________, ____
TO: TTR Technologies, Inc.
RE: Exercise of Warrant
The undersigned hereby irrevocably elects to exercise the attached Warrant to
the extent of ___________________ Common Shares of TTR Technologies, Inc. at
$7.80 per Common Share. Payment to the Company of the total purchase price for
such shares has been made simultaneously with the delivery of this exercise of
warrant.
By: _________________________
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