EXHIBIT 4.3
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS 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 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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES, BUT ANY PLEDGEE SHALL BE SUBJECT TO THE
REQUIREMENTS SET FORTH IN THIS WARRANT AS A HOLDER.
COMMON STOCK PURCHASE WARRANT
To Purchase __________ Shares of Common Stock of
INTERACTIVE SYSTEMS WORLDWIDE INC.
Warrant No. ____
THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value received,
_____________ (the "Holder"), is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth, at any time on
or after May 13, 2004 (the "Initial Exercise Date") and on or prior to the close
of business on the fifth anniversary of the Initial Exercise Date (the
"Termination Date") but not thereafter, to subscribe for and purchase from
Interactive Systems Worldwide Inc., a corporation incorporated in Delaware (the
"Company"), up to ____________ shares (the "Warrant Shares") of Common Stock,
par value $0.001 per share, of the Company (the "Common Stock"). The purchase
price of one share of Common Stock (the "Exercise Price") under this Warrant
shall be $3.50, subject to adjustment hereunder. CAPITALIZED TERMS USED AND NOT
OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THAT CERTAIN
SECURITIES PURCHASE AGREEMENT (THE "PURCHASE AGREEMENT"), DATED NOVEMBER 12,
2004, BETWEEN THE COMPANY AND THE PURCHASERS SIGNATORY THERETO, IN WHICH
TRANSACTION MAXIM GROUP, LLC ACTED AS PLACEMENT AGENT.
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1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and Section 7 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part (but if in part, not
in amounts less than the right to purchase 10,000 Warrant Shares), at the office
or agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed, provided that any such transferee is an "accredited investor"
as defined in Rule 501(a) promulgated under the Securities Act. Prior to any
transfer, the transferee shall sign an investment letter in form and substance
reasonably satisfactory to the Company. Notwithstanding anything to the contrary
contained herein, no Holder may assign this Warrant or any of its rights
hereunder to a competitor or potential competitor of the Company.
2. Authorization of Warrant Shares. The Company represents and warrants
that all Warrant Shares which may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon exercise of the purchase rights
represented by this Warrant, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue or income taxes, if any, payable by the Holder).
3. Exercise of Warrant.
(a) Exercise of the purchase rights represented by this
Warrant may be made at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by delivery to the
Company of a duly executed original or facsimile copy of the Notice of
Exercise Form annexed hereto (or such other office or agency of the
Company as the Company may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books
of the Company) together with payment of the aggregate Exercise Price
(in cash except as provided in Section 3(d)) of the shares thereby
purchased by wire transfer to an account designated by the Company or
cashier's check drawn on a United States bank; provided, however, that
within 3 Trading Days after the date such Notice of Exercise is
delivered to the Company, the Holder shall surrender this Warrant to
the Company. Certificates for shares purchased hereunder shall be
delivered to the Holder within 5 Trading Days after the date on which
the Notice of Exercise shall have been delivered by original or
facsimile copy and payment of the aggregate Exercise Price shall have
been received by the Company as set forth above ("Warrant Share
Delivery Date"); provided, however, that in the event the Warrant is
not surrendered by the Holder and received by the Company within 4
Trading Days after the date on which the aggregate exercise price shall
have been paid and the Notice of Exercise shall be delivered by
facsimile copy, the Warrant Share Delivery Date shall be extended to
the extent such 4 Trading Day period is exceeded. This Warrant shall be
deemed to have been exercised on the date the Notice of Exercise is
delivered to the Company and the aggregate Exercise Price shall have
been paid. The Warrant Shares shall be deemed to have been issued, and
Holder or any other person so designated to be named therein shall be
deemed to have become a holder of record of such shares for all
purposes, as of the date the Warrant has been exercised by payment to
the Company of the Exercise Price and all taxes required to be paid by
the Holder, if any, pursuant to Section 5 prior to the issuance of such
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shares, have been paid. If the Company fails to deliver to the Holder a
certificate or certificates representing the Warrant Shares pursuant to
this Section 3(a) by the 2nd Trading Day following the Warrant Share
Delivery Date, then the Holder will have the right to rescind such
exercise. In addition to any other rights available to the Holder, if
the Company fails to deliver to the Holder a certificate or
certificates representing the Warrant Shares pursuant to an exercise on
or before the Warrant Share Delivery Date, and if after such date the
Holder is required by its broker to purchase (in an open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which the
Holder anticipated receiving upon such exercise (a "Buy-In"), then the
Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder's total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased exceeds (y) the amount
obtained by multiplying (A) the number of Warrant Shares that the
Company was required to deliver to the Holder in connection with the
exercise at issue times (B) the price at which the sell order giving
rise to such purchase obligation was executed, and (2) at the option of
the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored or
deliver to the Holder the number of shares of Common Stock that would
have been issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder purchases
Common Stock having a total purchase price of $11,000 to cover a Buy-In
with respect to an attempted exercise of shares of Common Stock with an
aggregate sale price giving rise to such purchase obligation of
$10,000, under clause (1) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall
provide the Company written notice indicating the amounts payable to
the Holder in respect of the Buy-In, together with applicable
confirmations and other evidence reasonably requested by the Company.
Nothing herein shall limit a Holder's right to pursue any other
remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company's failure to timely deliver
certificates representing shares of Common Stock upon exercise of the
Warrant as required pursuant to the terms hereof.
(b) If this Warrant shall have been exercised in part, the
Company shall promptly deliver to Holder a new Warrant evidencing the
rights of Holder to purchase the unpurchased Warrant Shares called for
by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
(c) The Company shall not effect any exercise of this Warrant,
and the Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 3(a) or otherwise, to the extent that
after giving effect to such issuance after exercise, the Holder
(together with the Holder's affiliates), as set forth on the applicable
Notice of Exercise, would beneficially own in excess of 4.99% of the
number of shares of the Common Stock outstanding immediately after
giving effect to such issuance. For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder
and its affiliates shall include the number of shares of Common Stock
issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude the
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number of shares of Common Stock which would be issuable upon (A)
exercise of the remaining, nonexercised portion of this Warrant or any
other warrant or Capital Shares Equivalents beneficially owned by the
Holder or any of its affiliates and (B) payment by the Company in
shares of Common Stock of the principal of, or interest on, any
debentures held by the Holder or its affiliates, and (ii) dividends on
the shares of Preferred Stock, or exercise or conversion of the
unexercised or nonconverted portion of any other securities of the
Company (including, any other shares of Preferred Stock or Warrants)
subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by the Holder or any of
its affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 3(c), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act. (To the extent
that the limitation contained in this Section 3(c) applies, the
determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder, together with any of its
Affiliates) and of which portion of this Warrant is exercisable shall
be in the sole discretion of such Holder, and the submission of a
Notice of Exercise shall be deemed to be such Holder's determination of
whether this Warrant is exercisable (in relation to other securities
owned by such Holder, together with any of its Affiliates) and of which
portion of this Warrant is exercisable, in each case subject to such
aggregate percentage limitation.) To ensure compliance with this
restriction, the Holder will be deemed to represent to the Company each
time it delivers a Notice of Exercise that such Notice of Exercise has
not violated the restrictions set forth in this paragraph and the
Company shall have no obligation to verify or confirm the accuracy of
such determination. For purposes of this Section 3(c), in determining
the number of outstanding shares of Common Stock, the Holder may rely
on the number of outstanding shares of Common Stock as reflected in the
most recent of the following: (x) the Company's Form 10-Q or Form 10-K,
as the case may be, (y) a public announcement by the Company or (z) any
other notice by the Company or the Company's Transfer Agent setting
forth the number of shares of Common Stock outstanding. Upon the
written or oral request of the Holder, the Company shall within two
Trading Days confirm orally and in writing to the Holder the number of
shares of Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder or its affiliates since the date
as of which such number of outstanding shares of Common Stock was
reported. The provisions of this Section 3(c) may be waived by the
Holder upon, at the election of the Holder, not less than 61 days'
prior notice to the Company, and the provisions of this Section 3(c)
shall continue to apply until such 61st day (or such later date, as
determined by the Holder, as may be specified in such notice of
waiver).
(d) This Warrant may also be exercised at such time by means
of a "cashless exercise" in which the Holder shall be entitled to
receive a certificate for the number of Warrant Shares equal to the
quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = the VWAP on the Trading Day immediately preceding
the date of such election;
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(B) = the Exercise Price of this Warrant, as adjusted; and
(X) = the number of Warrant Shares issuable upon exercise
of this Warrant in accordance with the terms of this
Warrant by means of a cash exercise rather than a
cashless exercise.
(e) In the event that this Warrant is exercised prior to the
Effective Date, the shares issuable upon such exercise shall bear the
legend set forth in Section 4.1(b) of the Purchase Agreement.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for Warrant
Shares shall be made without charge to the Holder 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 Company, and such certificates
shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder; and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto.
6. Closing of Books. The Company will not close its stockholder books
or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws
and the conditions set forth in Sections 1 and 7(e) hereof and to the
provisions of Section 4.1 of the Purchase Agreement, this Warrant and
all rights hereunder are transferable, in whole or in part, upon
surrender of this Warrant at the principal office of the Company,
together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its duly authorized
agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of such transfer. No such assignment shall be
valid and enforceable unless such assignee is an "accredited investor"
and until any such assignee shall have executed and delivered to the
Company an accredited investor questionnaire. Upon such surrender and,
if required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled.
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(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the
Holder or its duly authorized agent or attorney; provided, --------
however, that Warrants to purchase less than 10,000 Warrant Shares need
not be issued unless the total ------- number of Warrant Shares for
which the Warrant may be exercised is less than 10,000 Warrant Shares.
Subject to compliance with Section 7(a), as to any transfer which may
be involved in such division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants to be divided or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under
this Section 7.
(d) The Company agrees to maintain, at its aforesaid office,
books for the registration and the registration of transfer of the
Warrants.
(e) If, at the time of the surrender of this Warrant in
connection with any transfer of this Warrant, the transfer of this
Warrant shall not be registered pursuant to an effective registration
statement under the Securities Act and under applicable state
securities or blue sky laws, the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion
of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions and shall
be reasonably satisfactory to the Company) to the effect that such
transfer may be made without registration under the Securities Act and
under applicable state securities or blue sky laws, (ii) that the
holder or transferee execute and deliver to the Company an investment
letter in form and substance acceptable to the Company and (iii) that
the transferee be an "accredited investor" as defined in Rule 501(a)
promulgated under the Securities Act.
8. No Rights as Shareholder until Exercise. This Warrant does not
entitle the Holder to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price (or by means of a cashless exercise as
provided in Section 3(d)) and all applicable taxes, if any, the Warrant Shares
so purchased shall be and be deemed to be issued to such Holder as the record
owner of such shares as of the close of business on the later of the date of
such surrender or payment. The Company shall be entitled to treat the Holder of
the Warrant as the owner in fact thereof for all purposes and shall not be bound
to recognize any equitable or other claim to or interest in such Warrant on the
part of any other person, and shall not be liable for any registration or
transfer of Warrants which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amounts to bad faith.
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9. Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it (which, in
the case of the Warrant, shall not include the posting of any bond), and upon
surrender and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate of like
tenor and dated as of such cancellation, in lieu of such Warrant or stock
certificate.
10. Saturdays, Sundays, Holidays, etc. 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, Sunday or 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.
11. Adjustments of Exercise Price and Number of Warrant Shares.
(a) Stock Splits, etc. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment from time to time upon the happening of
any of the following. In case the Company, at any time while the
Warrant is outstanding, shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock to all holders
of its outstanding Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares, (iii) combine
(including by way of reverse stock split) its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, or (iv)
issue any shares of its capital stock in a reclassification of the
Common Stock, then the number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior thereto shall be adjusted so
that the Holder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which it would have
owned or have been entitled to receive had such Warrant been exercised
in advance thereof. Upon each such adjustment of the kind and number of
Warrant Shares or other securities of the Company which are purchasable
hereunder, the Holder shall thereafter be entitled to purchase the
number of Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per Warrant Share or other security
obtained by multiplying the Exercise Price in effect immediately prior
to such adjustment by the number of Warrant Shares purchasable pursuant
hereto immediately prior to such adjustment and dividing by the number
of Warrant Shares or other securities of the Company that are
purchasable pursuant hereto immediately after such adjustment. An
adjustment made pursuant to this paragraph shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) Anti-Dilution Provisions. During the Exercise Period, the
Exercise Price shall be subject to adjustment from time to time as
provided in this Section 11(b). In the event that any adjustment of the
Exercise Price as required herein results in a fraction of a cent, such
Exercise Price shall be rounded up or down to the nearest cent.
(i) Adjustment of Exercise Price. If and whenever the
Company issues or sells, or in accordance with Section
11(b)(ii) hereof is deemed to have issued or sold, any shares
of Common Stock for a consideration per share of less than the
average of the 5 VWAPs of the Common Stock immediately prior
to the execution of definitive documentation as to such
transaction or the closing of such transaction, whichever is
higher (the "Market Price"), or for no consideration (such
lower price, the "Base Share Price" and such issuances
collectively, a "Dilutive Issuance"), then, the Exercise Price
shall be multiplied by the fraction calculated as follows: (i)
the sum of (a) the total number of shares of Common Stock
issued and outstanding immediately prior to such issuance or
sale (excluding treasury shares, if any), plus (b) the number
of shares of Common Stock which the consideration, if any,
received by the Company upon such issuance or sale would
purchase at the Market Price divided by (ii) the total number
of shares of Common Stock issued and outstanding immediately
after such issuance or sale (excluding treasury shares, if
any); provided, however, that it is acknowledged and agreed
that this provision shall only have the effect of reducing the
Exercise Price of the Warrant. Such adjustment shall be made
whenever such shares of Common Stock or Capital Shares
Equivalent are issued as a Dilutive Issuance, without
duplication.
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(ii) Effect on Exercise Price of Certain Events. For
purposes of determining the adjusted Exercise Price under
Section 11(b) hereof, the following will be applicable:
(A) Issuance of Rights or Options. If the
Company in any manner issues or grants any warrants,
rights or options, whether or not immediately
exercisable, to subscribe for or to purchase Common
Stock or Capital Shares Equivalent (such warrants,
rights and options to purchase Common Stock or
Capital Shares Equivalent are hereinafter referred to
as "Options") and the effective price per share for
which Common Stock is issuable upon the exercise of
such Options is less than the Exercise Price ("Below
Base Price Options"), then the maximum total number
of shares of Common Stock issuable upon the exercise
of all such Below Base Price Options (assuming full
exercise, conversion or exchange of Capital Shares
Equivalent, if applicable) will, as of the date of
the issuance or grant of such Below Base Price
Options, be deemed to be outstanding and to have been
issued and sold by the Company for such price per
share and the maximum consideration payable to the
Company upon such exercise (assuming full exercise,
conversion or exchange of Capital Shares Equivalent,
if applicable) will be deemed to have been received
by the Company. For purposes of the preceding
sentence, the "effective price per share for which
Common Stock is issuable upon the exercise of such
Below Base Price Options" is determined by dividing
(i) the total amount, if any, received or receivable
by the Company as consideration for the issuance or
granting of all such Below Base Price Options, plus
the minimum aggregate amount of additional
consideration, if any, payable to the Company upon
the exercise of all such Below Base Price Options,
plus, in the case of Capital Shares Equivalent
issuable upon the exercise of such Below Base Price
Options, the minimum aggregate amount of additional
consideration payable upon the exercise, conversion
or exchange thereof at the time such Capital Shares
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Equivalent first become exercisable, convertible or
exchangeable, by (ii) the maximum total number of
shares of Common Stock issuable upon the exercise of
all such Below Base Price Options (assuming full
conversion of Capital Shares Equivalent, if
applicable). No further adjustment to the Exercise
Price will be made upon the actual issuance of such
Common Stock upon the exercise of such Below Base
Price Options or upon the exercise, conversion or
exchange of Capital Shares Equivalent issuable upon
exercise of such Below Base Price Options.
Notwithstanding the foregoing, to the extent the
shares of Common Stock (or securities convertible
into or exchangeable for shares of Common Stock) are
not delivered, upon 5 Trading Days prior written
notice to the Holder, the Exercise Price shall be
readjusted after the expiration of such rights,
options, or warrants (but only with respect to
Warrants exercised after such expiration), to the
Exercise Price which would then be in effect had the
adjustments made upon the issuance of such rights,
options or warrants been made upon the basis of
delivery of only the number of shares of Common Stock
(or securities convertible into or exchangeable for
such shares of Common Stock) actually issued. In case
any subscription price may be paid in a consideration
part or all of which shall be in a form other than
cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of
the Company, whose determination shall be conclusive
absent manifest error.
(B) Issuance of Capital Shares Equivalent.
If the Company in any manner issues or sells any
Capital Shares Equivalent, whether or not immediately
convertible (other than where the same are issuable
upon the exercise of Options) and the effective price
per share for which Common Stock is issuable upon
such exercise, conversion or exchange of such Capital
Share Equivalents is less than the Exercise Price,
then the maximum total number of shares of Common
Stock issuable upon the exercise, conversion or
exchange of all such Capital Shares Equivalent will,
as of the date of the issuance of such Capital Shares
Equivalent, be deemed to be outstanding and to have
been issued and sold by the Company for such price
per share and the maximum consideration payable to
the Company upon such exercise (assuming full
exercise, conversion or exchange of Capital Shares
Equivalent, if applicable) will be deemed to have
been received by the Company. For the purposes of the
preceding sentence, the "effective price per share
for which Common Stock is issuable upon such
exercise, conversion or exchange" is determined by
dividing (i) the total amount, if any, received or
receivable by the Company as consideration for the
issuance or sale of all such Capital Shares
Equivalent, plus the minimum aggregate amount of
additional consideration, if any, payable to the
Company upon the exercise, conversion or exchange
thereof at the time such Capital Shares Equivalent
first become exercisable, convertible or
exchangeable, by (ii) the maximum total number of
shares of Common Stock issuable upon the exercise,
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conversion or exchange of all such Capital Shares
Equivalent. No further adjustment to the Exercise
Price will be made upon the actual issuance of such
Common Stock upon exercise, conversion or exchange of
such Capital Shares Equivalent. Notwithstanding the
foregoing, to the extent the shares of Common Stock
(or securities convertible into or exchangeable for
shares of Common Stock) are not delivered, upon 5
Trading Days prior written notice to the Holder, the
Exercise Price shall be readjusted after the
expiration of such rights, options, or warrants (but
only with respect to Warrants exercised after such
expiration), to the Exercise Price which would then
be in effect had the adjustments made upon the
issuance of such rights, options or warrants been
made upon the basis of delivery of only the number of
shares of Common Stock (or securities convertible
into or exchangeable for such shares of Common Stock)
actually issued. In case any subscription price may
be paid in a consideration part or all of which shall
be in a form other than cash, the value of such
consideration shall be as determined in good faith by
the Board of Directors of the Company, whose
determination shall be conclusive absent manifest
error.
(C) Change in Option Price or Conversion
Rate. If there is a change at any time in (i) the
amount of additional consideration payable to the
Company upon the exercise of any Options; (ii) the
amount of additional consideration, if any, payable
to the Company upon the exercise, conversion or
exchange of any Capital Shares Equivalent; or (iii)
the rate at which any Capital Shares Equivalent are
convertible into or exchangeable for Common Stock (in
each such case, other than under or by reason of
provisions designed to protect against dilution), the
Exercise Price in effect at the time of such change
will be readjusted to the Exercise Price which would
have been in effect at such time had such Options or
Capital Shares Equivalent still outstanding provided
for such changed additional consideration or changed
conversion rate, as the case may be, at the time
initially granted, issued or sold. Notwithstanding
the foregoing, to the extent the shares of Common
Stock (or securities convertible into or exchangeable
for shares of Common Stock) are not delivered, upon 5
Trading Days prior written notice to the Holder, the
Exercise Price shall be readjusted after the
expiration of such rights, options, or warrants (but
only with respect to Warrants exercised after such
expiration), to the Exercise Price which would then
be in effect had the adjustments made upon the
issuance of such rights, options or warrants been
made upon the basis of delivery of only the number of
shares of Common Stock (or securities convertible
into or exchangeable for such shares of Common Stock)
actually issued. In case any subscription price may
be paid in a consideration part or all of which shall
be in a form other than cash, the value of such
consideration shall be as determined in good faith by
the Board of Directors of the Company, whose
determination shall be conclusive absent manifest
error.
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(D) Calculation of Consideration Received.
If any Common Stock, Options or Capital Shares
Equivalent are issued, granted or sold for cash, the
consideration received therefor for purposes of this
Warrant will be the amount received by the Company
therefor, before deduction of reasonable commissions,
underwriting discounts or allowances or other
reasonable expenses paid or incurred by the Company
in connection with such issuance, grant or sale. In
case any Common Stock, Options or Capital Shares
Equivalent are issued or sold for a consideration
part or all of which shall be other than cash, the
amount of the consideration other than cash received
by the Company will be the fair market value of such
consideration, except where such consideration
consists of securities, in which case the amount of
consideration received by the Company will be the
fair market value (the mean between the closing bid
and asked prices, if traded on any market) thereof as
of the date of receipt. In case any Common Stock,
Options or Capital Shares Equivalent are issued in
connection with any merger or consolidation in which
the Company is the surviving corporation, the amount
of consideration therefor will be deemed to be the
fair market value of such portion of the net assets
and business of the non-surviving corporation as is
attributable to such Common Stock, Options or Capital
Shares Equivalent, as the case may be. The fair
market value of any consideration other than cash or
securities will be determined in good faith by the
Board of Directors of the Company.
(E) Exceptions to Adjustment of Exercise
Price. Notwithstanding the foregoing, no adjustment
will be made under this Section 11(b) in respect of
(1) the granting or issuance of shares of Common
Stock or options (or exercise thereof) to or by
employees, officers, directors or consultants
(provided that in the case of consultants, such
issuance of Capital Shares and grants of Capital
Share Equivalents does not exceed, in the aggregate,
200,000 Capital Shares or Capital Shares Equivalents
convertible into or exchangeable for 200,000 Capital
Shares per any 12 month period) of the Company or any
Subsidiary pursuant to any stock option plan or
employee incentive plan or agreement duly adopted or
approved by a majority of the non-employee members of
the Board of Directors of the Company or a majority
of the members of a committee of non-employee
directors established for such purpose, or (2) the
conversion or exercise of the shares of Preferred
Stock or any other security issued by the Company in
connection with the offer and sale of this Company's
securities pursuant to the Purchase Agreement, (3)
the issuance of any Common Stock as dividends on the
shares of Preferred Stock or as payment of principal
or interest on the debentures issued by the Company
on November 24, 2003, or (4) the exercise of or
conversion of any Capital Shares Equivalent, Options,
rights or warrants issued and outstanding on the
Closing Date, including but not limited to the
debentures and warrants issued by the Company on
November 24, 2003, provided that the securities have
not been amended in order to reduce the exercise or
conversion price thereof or increase the number of
shares issuable thereunder, since the date of the
Purchase Agreement except as a result of the Purchase
Agreement, or (5) issuances of Capital Shares or
Capital Share Equivalents in connection with
acquisitions, mergers, joint ventures, strategic
investments, or strategic partnering arrangements the
primary purpose of which is not to raise capital, or
the subsequent exercise of any such Capital Share
Equivalents.
11
(iii) Minimum Adjustment of Exercise Price. No
adjustment of the Exercise Price shall be made in an amount of
less than 1% of the Exercise Price in effect at the time such
adjustment is otherwise required to be made, but any such
lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment
which, together with any adjustments so carried forward, shall
amount to not less than 1% of such Exercise Price.
12. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets.
(a) In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or
where there is a change in, or distribution with respect to, the Common
Stock of the Company), or sell, transfer or otherwise dispose of all or
substantially all of its property, assets or business to another
corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of all or
substantially all of its assets, shares of common stock of the
successor or acquiring corporation, or any cash, shares of stock or
other securities or property of any nature whatsoever (including
warrants or other subscription or purchase rights) in addition to or in
lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of
Common Stock of the Company, then the Holder shall have the right
thereafter to receive upon exercise of this Warrant, the number of
shares of common stock of the successor or acquiring corporation or of
the Company, if it is the surviving corporation, and Other Property
receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a
Holder of the number of shares of Common Stock for which this Warrant
is exercisable immediately prior to such event. In case of any such
reorganization, reclassification, merger, consolidation or disposition
of assets, the successor or acquiring corporation (if other than the
Company) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant to
be performed and observed by the Company and all the obligations and
liabilities hereunder, subject to such modifications as may be deemed
appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of
Warrant Shares for which this Warrant is exercisable which shall be as
nearly equivalent as practicable to the adjustments provided for in
this Section 12. For purposes of this Section 12, "common stock of the
successor or acquiring corporation" shall include stock of such
corporation of any class which is not preferred as to dividends or
assets over any other class of stock of such corporation and which is
not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible
into or exchangeable for any such stock, either immediately or upon the
arrival of a specified date or the happening of a specified event and
any warrants or other rights to subscribe for or purchase any such
stock. The foregoing provisions of this Section 12 shall similarly
apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
12
(b) Notwithstanding anything to the contrary herein contained,
in the event of a transaction contemplated by Section 12(a) or similar
transaction in which the surviving, continuing, successor, or
purchasing person, corporation or entity demands that all outstanding
Warrants be extinguished prior to the closing date of the contemplated
transaction, the Company shall give prior notice (the "Merger Notice")
thereof to the Holders advising them of such transaction. The Holders
shall have ten calendar days after the date of the Merger Notice to
elect to (i) exercise the Warrants in the manner provided herein, (ii)
receive from the surviving, continuing, successor, or purchasing
corporation the same consideration receivable by a holder of the number
of shares of Common Stock for which this Warrant might have been
exercised immediately prior to such consolidation, merger, sale, or
purchase reduced by such amount of the consideration as has a market
value equal to the Exercise Price, as determined by the Board of
Directors of the Company, whose determination shall be conclusive and
binding, or (iii) receive cash equal to the value of this Warrant as
determined in accordance with the Black-Scholes option pricing formula
using the method agreed upon among the parties at the Closing. If any
Holder fails to timely notify the Company of its election, the Holder
shall be deemed for all purposes to have elected the option set forth
in (ii) above. Any amounts receivable by a Holder who has elected the
option set forth in (ii) above shall be payable at the same time as
amounts payable to stockholders in connection with any such
transactions.
13. Voluntary Adjustment by the Company. The Company may at any time
during the term of this Warrant reduce the then current Exercise Price to any
amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall give notice thereof to the Holder, which notice shall state the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.
15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property, or to receive any other right, or
13
(b) there shall be any capital reorganization of the Company,
any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation;
or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 10 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 10
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property
deliverable upon such disposition, dissolution, liquidation or winding up. Each
such written notice shall be sufficiently given if addressed to Holder at the
last address of Xxxxxx appearing on the books of the Company and delivered in
accordance with Section 17(d).
16. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Principal Market
upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the Holder, the
Company shall not by any action, including amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities 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 actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the Company will
(a) not increase the par value of any Warrant Shares above the amount payable
therefor upon such exercise immediately prior to such increase in par value, (b)
take all such action as may be reasonably necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant, and (c) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant.
14
Before taking any action which would result in an adjustment in the
number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
17. Miscellaneous.
(a) Governing Law; Venue; Waiver of Jury Trial. All 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 New York, without
regard to the principles of conflicts of law thereof. Each party agrees
that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Warrant (whether
brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New
York, borough of Manhattan (the "New York Courts"). Each party hereby
irrevocably submits to the exclusive jurisdiction of the New York
Courts 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 the New York Courts are
an improper or inconvenient venue for such proceeding. Each party
hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing
a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for
notices to it under this Warrant 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. The parties hereto
hereby irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising
out of or relating to this Warrant or the transactions contemplated
thereby. If either party shall commence an action or proceeding to
enforce any provisions of this Warrant, then the prevailing party in
such action or proceeding shall be reimbursed by the other party for
its attorneys' fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
15
(b) Restrictions. The Holder acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal
securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice Xxxxxx's
rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement.
(e) Limitation of Liability. No provision hereof, in the
absence of any affirmative action by Holder to exercise this Warrant or
purchase Warrant Shares, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for
the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by
creditors of the Company.
(f) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant.
The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be
adequate.
(g) Successors and Assigns. Subject to applicable securities
laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder; provided,
however, that the Holder may not assign its rights to a competitor or
potential competitor of the Company. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this
Warrant and shall be enforceable by any such Holder or holder of
Warrant Shares.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and
the Holder.
(i) Severability. If any provision of this Warrant is held to
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 to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Warrant.
(j) Construction. 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. The language used in
this Warrant will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will
be applied against any party.
16
(k) Interpretation. Unless the context otherwise requires, the
terms defined in this Section 17 shall have the meanings herein
specified for all purposes of this Warrant, applicable to both the
singular and plural forms of any of the terms defined herein. When a
reference is made in this Warrant to a Section, such reference shall be
to a Section of this Warrant unless otherwise indicated. Whenever the
words "include," "includes" or "including" are used in this Warrant,
they shall be deemed to be followed by the words "without limitation."
The use of any gender herein shall be deemed to include the neuter,
masculine and feminine genders wherever necessary or appropriate. When
any matter is disclosed (a) in any Transaction Document (including any
exhibit or schedule thereto), (b) any place in the Disclosure Schedule,
or (c) except with respect to Sections 3.1(g), 3.1(s), 3.1(u), 3.1(v),
3.1(w), 3.1(dd), 3.1(ee), and 3.1(ff) of the Purchase Agreement and
with respect to Section 6(b) and Section 6(c) of the Registration
Rights Agreement, in the Company's Form 10-KSB for the year ended
September 30, 2003, the Proxy Statement for the 2004 Annual Meeting of
Shareholders, the Forms 10-QSB for the quarters ended December 31,
2003, March 31, 2004 or June 30, 2004, or all press releases issued
after the filing of the Form 10-QSB for the quarter ended June 30, 2004
and prior to the Closing Date, such matter shall be deemed to have been
disclosed to all of the Holders for all purposes pursuant to all of the
Transaction Documents. If any period of time for the performance under
the Transaction Documents ends on a day that is not a Trading Day, such
period of time shall be automatically extended to end at the end of the
next succeeding Trading Day.
18. Piggy-Back Registration Rights. If at any time prior to the
Termination Date there is not an effective registration statement(s) covering
the resale of all of the Warrant Shares and the Company shall determine to
prepare and file with the Commission a registration statement relating to an
offering for its own account or the account of others under the Securities Act
of any of its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of any
entity or business or equity securities issuable in connection with stock option
or other employee benefit plans, then the Company shall send to the Holder
written notice of such determination and, if within five Trading Days after
receipt of such notice, the Holder shall so request in writing, the Company
shall include in such registration statement all or any part of such Warrant
Shares such holder requests to be registered; provided, that, the Company shall
not be required to register any Warrant Shares pursuant to this Section 18 that
are eligible for resale pursuant to Rule 144(k) promulgated under the Securities
Act or that are the subject of a then effective registration statement.
********************
17
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer thereunto duly authorized.
Dated: November 12, 2004
INTERACTIVE SYSTEMS WORLDWIDE INC.
By:
--------------------------------
Name: XXXXXXX XXXXXXXX
Title: PRESIDENT
18
NOTICE OF EXERCISE
To: INTERACTIVE SYSTEMS WORLDWIDE INC.
(1)______The undersigned hereby elects to purchase ________ Warrant
Shares of Interactive Systems Worldwide Inc. pursuant to the terms of the
attached Warrant (only if exercised in full), and tenders herewith payment of
the exercise price in full, together with all applicable transfer taxes, if any.
(2)______Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Warrant Shares
as is necessary, in accordance with the formula set
forth in subsection 3(d), to exercise this Warrant
with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise
procedure set forth in subsection 3(d).
(3)______Please issue a certificate or certificates representing said
Warrant Shares in the name of the undersigned or in such other name as is
specified below:
----------------------------------------
The Warrant Shares shall be delivered to the following:
----------------------------------------
----------------------------------------
----------------------------------------
(4) Accredited Investor. The undersigned is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[PURCHASER]
By:
---------------------------------
Name:
Title:
Dated:
-------------------------------
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
_______________________________________________ whose address is
__________________________________________________________________.
____________________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
