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EXHIBIT 2.3
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE THEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED, OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH SUCH ACT AND THE RULES AND
REGULATIONS THEREUNDER AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
ZIXIT CORPORATION (THE "COMPANY") WILL TRANSFER SUCH WARRANT AND ANY SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE THEREOF ONLY UPON RECEIPT OF AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, THAT THE
REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR THAT SUCH
REGISTRATION IS NOT REQUIRED AND THAT SUCH TRANSFER WILL NOT VIOLATE ANY
APPLICABLE STATE SECURITIES LAWS.
COMMON STOCK WARRANT CERTIFICATE
ZIXIT CORPORATION
April __, 2000
No. __ For the Purchase of ___________ Shares of
Common Stock of Zixit Corporation
FOR VALUE RECEIVED, ___________________________________ (the "Holder")
or the Holder's registered assigns is hereby granted the right to purchase from
Zixit Corporation, a Texas corporation (the "Company"), ___________ shares (the
"Warrant Shares", which number shall be adjusted from time to time in accordance
with Section 2 hereof) of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), at a purchase price of $12.00 per share (as adjusted from
time to time in accordance with Section 2 hereof, the "Exercise Price"),
exercisable in whole or in part at any time and from time to time from April __,
2001 until 6:00 p.m. on the date that is four (4) years after the date hereof
(the "Exercise Period"), on the terms and conditions set forth in this Warrant
(this "Warrant").
I. EXERCISE
1.1 EXERCISE OF WARRANT. This Warrant may be exercised, in whole or in
part, at any time or from time to time, during the Exercise Period by (i)
surrendering this Warrant Certificate, with the form of exercise notice attached
hereto as Exhibit A duly executed by the Holder, to the Company at its principal
office, and (ii) making payment to the Company of the aggregate Exercise Price
for the applicable Warrant Shares in cash, by certified check, bank check or
wire transfer to an account designated by the Company. The minimum number of
shares of Common Stock with respect to which this Warrant may be exercised, in
whole or in part, at any time shall be the lesser of twenty-five percent (25%)
of the total number of Warrant Shares which may be purchased under this Warrant
or the maximum number of Warrant Shares available for purchase under this
Warrant
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at the time of exercise. Upon any partial exercise of this Warrant, the Company,
at its expense, shall promptly issue to the Holder for Holder's surrendered
Warrant Certificate a replacement Warrant Certificate identical in all respects
to this Warrant Certificate, except that the number of Warrant Shares shall be
reduced accordingly.
1.2 ISSUANCE OF WARRANT SHARES. The Warrant Shares purchased by Holder
shall be issued as of the close of business on the date on which all actions
required to be taken by the Holder and all payments required to be received by
the Company, pursuant to Section 1.1, shall have been so taken and received.
Certificates for the Warrant Shares so purchased shall be delivered to the
Holder as soon as practicable after this Warrant is surrendered and the Exercise
Price is received.
II. ADJUSTMENTS TO WARRANT.
The number of Warrant Shares for which this Warrant is exercisable and
the Exercise Price shall be subject to adjustment from time to time as set forth
below.
2.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If the Company
shall, at any time or from time to time: (a) make (or fix a record date for the
holders of shares of its Common Stock entitled to receive) a dividend payable
in, or other distribution of, additional shares of Common Stock, (b) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or (c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then (i) the number of Warrant Shares issuable
upon the exercise of this Warrant immediately prior to the occurrence of any
such event shall be adjusted so that the Holder of this Warrant upon exercise on
or after that date shall be entitled to receive the aggregate number of Warrant
Shares which the Holder of this Warrant would have owned and been entitled to
receive as a result of such event had this Warrant been exercised immediately
prior thereto, and (ii) the Exercise Price in effect immediately prior to such
event shall be adjusted by multiplying such Exercise Price by a fraction, the
numerator of which is the aggregate number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior to such event, and the denominator of
which is the aggregate number of Warrant Shares purchasable upon exercise of
this Warrant immediately thereafter.
2.2 DIVIDENDS AND DISTRIBUTIONS IN OTHER SECURITIES. If the Company
shall, at any time or from time to time, make (or fix a record date for the
holders of shares of its Common Stock entitled to receive) a dividend or other
distribution payable in other securities of the Company or in the securities of
any subsidiary of the Company (other than shares of Common Stock), then lawful
and adequate provision shall be made so that the Holder of this Warrant shall be
entitled to receive upon exercise of this Warrant, for the aggregate Exercise
Price in effect prior thereto, in addition to the number of Warrant Shares
immediately theretofore issuable upon exercise of this Warrant, the kind and
number of other securities of the Company or securities of any subsidiary of the
Company, which the Holder would have owned and been entitled to receive had this
Warrant been exercised immediately prior to that date.
2.3 CASH DIVIDENDS AND DISTRIBUTIONS. If the Company shall, at any time
or from time to time, make (or fix a record date for the holders of shares of
its Common Stock entitled to receive)
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a dividend payable in, or other distribution of cash, then the number of Warrant
Shares issuable upon the exercise of the Warrant, for the aggregate Exercise
Price in effect prior thereto, immediately prior to the occurrence of any such
event shall be increased by: (i) the amount of the dividend the Holder of this
Warrant would have received had the Holder exercised its warrant immediately
prior to the record date (or, if no record date has been set the date of
distribution or dividend), divided by (ii) the Current Market Price of the
Company's Common Stock. As used in this Warrant the term "Current Market Price"
means with respect to any security: (a) for so long as the issuer is a Public
Entity (as hereafter defined), and the security is traded on an organized
exchange the average closing price of the security on the stock exchange where
the security is traded or the last bid price as quoted on the NASDAQ for the
immediately preceding five (5) trading days; and (b) for so long as the issuer
is not a Public Entity or the security is not traded on an organized exchange,
the price per share of the security as determined in good faith by the
Corporation's board of directors. If such valuation is objected to by the Holder
of this Warrant, such valuation will be made by a reputable investment bank of
national standing mutually selected by the Holder and the Corporation, the
expense of which will be paid by the Corporation. "Public Entity" will mean: (i)
an entity that has registered its Common Stock pursuant to Section 12(b) or
Section 12(g) of the Securities Exchange Act of 1934, as amended, and (ii) the
aggregate market value of Common Stock held by nonaffiliates which is then
available for public trading is not less than Twenty-Five Million Dollars
($25,000,000.00), computed by reference to the closing price of the Common Stock
on the stock exchange where the Common Stock is traded or the last bid price as
quoted on the NASDAQ.
2.4 REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALES OF ASSETS. If any
of the following transactions (each, a "Special Transaction") shall become
effective: (a) a capital reorganization, whether by reclassification, exchange,
substitution or otherwise (other than a stock or cash dividend, subdivision,
combination or other distribution provided for elsewhere in this Section 2), (b)
a consolidation or merger of the Company with another entity, or (c) a sale or
conveyance of all or substantially all of the Company's assets; then as a
condition of any such Special Transaction, lawful and adequate provision shall
be made so that the Holder of this Warrant shall thereafter have the right to
purchase and receive upon exercise of this Warrant, in lieu of the Warrant
Shares immediately theretofore issuable upon exercise of this Warrant, for the
aggregate Exercise Price in effect immediately prior to such consummation, such
shares of stock, other securities, cash or other assets as may be issued or
payable in and pursuant to the terms of such Special Transaction to the holders
of shares of Common Stock for which this Warrant could have been exercised
immediately prior to such Special Transaction. In connection with any Special
Transaction, appropriate provision shall be made with respect to the rights and
interests of the Holder of this Warrant to the end that the provisions of this
Warrant (including without limitation the provisions of this Section 2), shall
thereafter be applicable, as nearly as may be practicable, to any shares of
stock, other securities, cash or other assets thereafter deliverable upon the
exercise of this Warrant.
2.5 NOTICE. In the event that:
(a) the Company shall fix a record date for the holders of
shares of its Common Stock for the purpose of entitling them to receive
any dividend or other distribution of shares of Common Stock or other
securities of the Company; or
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(b) the Company shall enter into any agreement or adopt any
plan for a capital reorganization of the Company, the consolidation or
merger of the Company with or into another entity, or the sale or
conveyance of all or substantially all of the assets of the Company to
another entity; or
(c) the Company shall adopt any plan for or otherwise shall
become subject to any voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(d) the Company shall propose to take any other action which
would require an adjustment pursuant to Sections 2.1 through 2.4,
then, and in each such case, the Company shall mail or cause to be mailed to the
Holder of this Warrant a notice specifying, as the case may be: (i) the date on
which a record is to be fixed for the purpose of such dividend or distribution,
and stating the amount and character of such dividend or distribution, or (ii)
the date on which such reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up or other action is to become effective,
and the time, if any, to be fixed, as to which the holders of record of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up or other action. Such notice
shall be mailed at least 20 days prior to the date therein specified and this
Warrant may be exercised prior to said date during the Exercise Period.
2.6 FRACTIONAL INTERESTS. The Company shall not be required to issue
fractions of shares of Common Stock upon the exercise of this Warrant. If any
fraction of a share of Common Stock would be issuable upon the exercise of this
Warrant, the Company shall, in lieu of such issuance, purchase such fraction for
an amount in cash equal to the current value of such fraction, computed on the
basis of the Current Market Price of the Common Stock on the last business day
prior to the date of exercise upon which such a sale of Common Stock shall have
been effected.
2.7 EFFECT OF ALTERNATE SECURITIES. If at any time, as a result of an
adjustment made pursuant to this Section 2, the Holder of this Warrant shall
thereafter become entitled to receive any securities of the Company other than
shares of Common Stock, then the number of such other securities receivable upon
exercise of this Warrant shall be subject to adjustment from time to time on
terms as nearly equivalent as practicable to the provisions with respect to the
Warrant Shares as contained in this Section 2.
2.8 SUCCESSIVE APPLICATION; READJUSTMENT. The provisions of this
Section 2 shall similarly apply from time to time to successive events covered
by this Section. If the Company shall fix a record date for the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
distribution and shall, thereafter and before the distribution to shareholders
thereof, legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment shall be required by reason of the
taking of such record date and any such adjustment previously made in respect
thereof shall be rescinded and annulled.
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2.9 CERTIFICATE AS TO ADJUSTMENTS. In the event of an adjustment in the
number of Warrant Shares or in the Exercise Price, the Company at its expense
will promptly compute such adjustment in accordance with the terms of this
Warrant and prepare a certificate executed by an executive officer of the
Company setting forth such adjustment and showing in detail the facts upon which
such adjustment is based. The Company will forthwith mail a copy of each such
certificate to the Holder.
III. RIGHTS OF THE HOLDER
3.1 NO RIGHTS AS SHAREHOLDER. The Holder shall not, solely by virtue of
this Warrant and prior to the issuance of the Warrant Shares upon due exercise
hereof, be entitled to any rights of a shareholder in the Company.
3.2 NO IMPAIRMENT; CERTAIN COVENANTS. The Company shall not by any
action including, without limitation, 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 the Holder against impairment. Without limiting the
generality of the foregoing, the Company will (a) take all such action as may be
necessary or appropriate in order that the Warrant Shares will, upon issuance in
accordance with the terms hereof and the payment of the Exercise Price therefor,
be duly authorized, validly issued and outstanding, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
issuance thereof, (b) at all times during the Exercise Period have authorized
and reserved sufficient shares of Common Stock to provide for the exercise of
this Warrant in full, and (c) use its best 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.
IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to and agrees with the Holder as
follows:
4.1 Sufficient Shares. The Company has authorized sufficient shares of
Common Stock to fulfill the Company's obligations under this Warrant and all of
the other warrants, options and convertible securities issued by the Company. On
exercise of this Warrant and satisfaction of the Exercise Price, the Warrant
Shares issued to the Holder will be validly issued, fully paid, non-assessable
and free and clear of all liens, claims and encumbrances, except as may be
imposed by the Pledge and Security Agreement dated as of the date hereof, or any
liens, claims, or encumbrances permitted by or imposed by the Holder.
4.2 Authority. The Company has taken all necessary action to authorize
the execution and delivery of this Warrant and the issuance of the Warrant
Shares on the exercise of this Warrant. This Warrant is a valid, binding and
enforceable obligation of the Company. The execution, delivery and performance
of this Warrant will not violate: (a) any provision of the organizational
documents
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or charter of the Company; (b) any order, writ, injunction or decree of any
court, administrative agency or governmental body applicable to the Company or
the Common Stock; or (c) any contract, lease, note, bond, mortgage or other
agreement to which the Company is a party, by which the Company is bound or to
which any of the Company's assets are subject.
V. RESTRICTIVE LEGEND.
5.1 This Warrant is being acquired and any Warrant Shares to be
acquired by the Holder pursuant to this Warrant (collectively, "Securities")
will be acquired for investment for the Holder's own account and not for resale
in connection with any distribution of such Securities within the meaning of the
Securities Act of 1933 (the "Securities Act"). The Securities will not be sold,
transferred or otherwise disposed of without registration under the Securities
Act and state securities laws or qualification for exemptions therefrom. The
Holder agrees that, until the Company has caused the registration of such shares
under the Securities Act of 1933, as amended, each certificate evidencing the
Warrant Shares may be inscribed with a legend to the foregoing effect, which
legend will be as follows:
The shares represented by this certificate have been acquired
solely for investment purposes and have not been registered
under the Securities Act of 1933, as amended, or the
securities laws of any state. The shares may not be sold,
transferred, assigned or otherwise disposed of unless and
until such shares are first registered under the Securities
Act of 1933, all applicable state securities laws and all
rules and regulations promulgated thereunder or unless and
until the holder hereof provides either (i) information
reasonably satisfactory to the Company that such registration
is not required or (ii) an opinion of counsel reasonably
acceptable to the Company to the effect that such registration
is not required.
VI. REGISTRATION RIGHTS AGREEMENT.
6.1 This Warrant and the Warrant Shares will qualify for all benefits
and be subject to the terms and conditions of that certain Registration Rights
Agreement of even date herewith among the Company, the Holder and others (the
"Registration Rights Agreement"). The Holder agrees that each certificate
evidencing the Warrant Shares may be inscribed with a legend to the foregoing
effect as provided in the Registration Rights Agreement.
VII. TRANSFER OR LOSS OF WARRANT.
7.1 TRANSFER. Subject to compliance with federal and state securities
laws, the Holder may sell, assign, transfer or otherwise dispose of all or any
portion of this Warrant or the Warrant Shares acquired upon any exercise hereof
at any time and from time to time. Upon the sale, assignment, transfer or other
disposition of all or any portion of this Warrant, the Holder shall deliver to
Company a written notice of such in the form attached hereto as Exhibit B duly
executed by
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Holder which includes the identity and address of any purchaser, assignor, or
transferee. On such delivery, the Company will, subject to conditions set forth
herein, execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denominations specified in such instrument of
assignment, and this Warrant will promptly be canceled. The conditions to
transferability specified in this Warrant are intended to provide certain
protections to the Holder and the Company and to ensure compliance with the
provisions of the Securities Act and applicable state securities laws in respect
of the transfer of any Warrant or any Warrant Shares and are to be strictly
construed.
7.2 LOST, STOLEN, DESTROYED OR MUTILATED WARRANTS. In case any Warrant
is mutilated, lost, stolen or destroyed, the Company agrees to issue a new
Warrant of like date, tenor and denomination and deliver the same in exchange
and substitution for and upon surrender and cancellation of any mutilated
Warrant, or in lieu of any Warrant lost, stolen or destroyed, on receipt of
evidence reasonably satisfactory to the Company of the loss, theft or
destruction of such Warrant.
VIII. MISCELLANEOUS.
8.1 NOTICES. Any notice, demand or communication required or permitted
to be given by any provision of this Warrant must be in writing and will be
deemed to have been given and received when delivered personally or by
telefacsimile to the party designated to receive such notice, or on the date
following the day sent by overnight courier, or on the third (3rd) business day
after the same is sent by certified mail, postage and charges prepaid, directed
to the following addresses or to such other or additional addresses as any party
might designate by written notice to the other parties:
To the Company: Zixit Corporation
One Galleria Tower
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: President
Fax: (000) 000-0000
To the Holder:
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8.2 EXPENSES; TAXES. Any sales tax, stamp duty, deed transfer or other
tax (except only taxes based on the income of Holder) arising out of the
issuance and sale of this Warrant or the Warrant Shares issuable upon exercise
of this Warrant and consummation of the transactions contemplated by this
Warrant Certificate shall be paid by the Company.
8.3 AMENDMENT; WAIVER. This Warrant Certificate may not be modified,
amended, supplemented, canceled or discharged, except by written instrument
executed by the Company and
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the Holder. No failure to exercise, and no delay in exercising, any right, power
or privilege under this Warrant Certificate shall operate as a waiver, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude the exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any waiver be
impled from any course of dealing between the Company and the Holder. No
extension of time for performance of any obligations or other acts hereunder or
under any other agreement shall be deemed to be an extension of the time for
performance of any other obligations or any other acts.
8.4 HEADINGS. The headings contained in this Warrant Certificate are
for convenience of reference only and are not to be given any legal effect and
shall not affect the meaning or interpretation of this Warrant Certificate.
8.5 GOVERNING LAW. This Warrant is being delivered and is intended to
be performed in the State of Texas and will be construed and enforced in
accordance with, and the rights of the parties will be governed by, the law of
such state, without regard to its conflict of laws principles.
8.6 SEVERABILITY. Should any part of this Warrant for any reason be
declared invalid, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and effect as if
this Warrant had been executed with the invalid portion thereof eliminated, and
it is hereby declared the intention of the parties hereto that they would have
executed and accepted the remaining portion of this Warrant without including
therein any such part, parts or portion which may, for any reason, be hereafter
declared invalid.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed and delivered as of the day and year first above written.
ZIXIT CORPORATION,
a Texas corporation
By:
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Name:
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Title:
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EXHIBIT A
EXERCISE NOTICE
[To be executed only upon exercise of Warrant]
The undersigned registered owner of the attached Warrant Certificate
irrevocably exercises this Warrant for the purchase of the number of shares of
Common Stock of Zixit Corporation (the "Company") as is set forth below, and
herewith makes payment therefor, all at the price and on the terms and
conditions specified in the attached Warrant Certificate and requests that
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to the person specified below whose address is set forth below, and,
if such shares of Common Stock shall not include all of the shares of Common
Stock now and hereafter issuable as provided in the attached Warrant
Certificate, then the Company shall, at its own expense, promptly issue to the
undersigned a new Warrant Certificate of like tenor and date for the balance of
the shares of Common Stock issuable thereunder.
Date:
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Amount of Shares Purchased:
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Aggregate Purchase Price: $
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Printed Name of Registered Holder:
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Signature of Registered Holder:
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NOTICE: The signature on this Exercise Notice must correspond with the
name as written upon the face of the attached Warrant
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
Stock Certificates to be issued and registered in the following name, and
delivered to the following address:
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(Name)
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(Street Address)
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(City) (State) (Zip Code)
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EXHIBIT B
ASSIGNMENT NOTICE
[To be executed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the person named below, whose address is set forth below, the rights
represented by the attached Warrant Certificate to purchase the number of shares
of Common Stock of Zixit Corporation (the "Company") as is set forth below, to
which the attached Warrant Certificate relates, and appoints ___________
_________________ attorney to transfer such rights on the books of the Company
with full power of substitution in the premises. If such shares of Common Stock
of the Company shall not include all of the shares of Common Stock now and
hereafter issuable as provided in the attached Warrant Certificate, then the
Company, at its own expense, shall promptly issue to the undersigned a new
Warrant Certificate of like tenor and date for the balance of the Common Stock
issuable thereunder.
Date:
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Amount of Shares Purchased:
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Aggregate Purchase Price: $
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Printed Name of Registered Holder:
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Signature of Registered Holder:
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NOTICE: The signature on this Assignment Notice must
correspond with the name as written upon the face of
the attached Warrant Certificate in every particular,
without alteration or enlargement or any change
whatsoever.
Warrant Certificate for transferred Warrants to be issued and registered in the
following name, and delivered to the following address:
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(Name)
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(Street Address)
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(City) (State) (Zip Code)
