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Exhibit 4.4
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR STATE
SECURITIES LAWS. NO SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR SAID
SHARES MAY BE EFFECTED WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO, OR (ii) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO
THE COMPANY, THAT AN EXEMPTION FROM REGISTRATION UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAWS IS AVAILABLE.
Warrant Xx. 0, XXXXX XXXXXXXX XXXXXXX No. of Shares 18,750
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To Subscribe for and Purchase Common Stock of
CONNECTED CORPORATION
THIS CERTIFIES that, for value received, Xxxx Xxxxxxx (together with any
subsequent transferees of all or any portion of this Warrant, the "Holder"), is
entitled, upon the terms and subject to the conditions hereinafter set forth, to
subscribe for and purchase from CONNECTED CORPORATION, a Delaware corporation
(hereinafter called the "Company"), at the price hereinafter set forth in
Section 2, up to eighteen thousand seven hundred fifty (18,750) fully paid and
non-assessable shares (the "Shares") of the Company's Common Stock, $.001 par
value per share (the "Common Stock").
1. DEFINITIONS. As used herein the following term shall have the following
meaning:
"ACT" means the Securities Act of 1933, as amended, or a successor statute
thereto and the rules and regulations of the Securities and Exchange Commission
issued under that Act, as they each may, from time to time, be in effect.
2. PURCHASE RIGHTS. Subject to this Section 2, the purchase rights
represented by this Warrant shall be exercisable by the Holder in whole or in
part, in forty-eight (48) equal monthly installments, commencing on the date
hereof.
Subject to the terms hereof, the purchase rights represented by this
Warrant shall expire on June 12, 2001.
If the Holder's employment with the Company is terminated for any reason
otherwise than by his death or disability (within the meaning of section
22(e)(3) of the Internal Revenue Code of 1986, as amended), he may exercise the
rights which he had hereunder at the time of such termination only within three
months from the date of termination. If his employment is terminated for reason
of disability, such rights may be exercised within twelve months from the date
of termination. Upon the death of the Holder, those entitled to do so by the
Holder's will or the laws of descent and distribution shall have the right, at
any time within twelve months after the date of death, to exercise in whole or
in part any rights which were available to the
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Holder at the time of his death, provided, that, in the event the Holder
dies prior to 24 months from the issuance date, the total exercisable purchase
rights shall be changed to be the lesser of (i) fifty (50%) percent of the total
rights granted hereunder (9,375) and (ii) a fraction, the numerator of which is
the total rights granted hereunder multiplied by the number of months from the
issuance date to the date of death plus twelve months; and the denominator of
which is 48. The total exercisable purchase rights include those rights already
exercised, if any. This Warrant shall terminate, and no rights hereunder may be
exercised, after the expiration of the applicable exercise period.
Subject to this Section 2, this Warrant may be exercised for Shares at a
price of four dollars ($4.00) per share, subject to adjustment as provided in
Section 6 (the "Warrant Purchase Price").
1. EXERCISE OF WARRANT. Subject to Section 2 above, the purchase rights
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit A) at the principal office of
the Company and by the payment to the Company, by check, of an amount equal to
the then applicable Warrant Purchase Price per share multiplied by the number of
Shares then being purchased. Upon exercise, the Holder shall be entitled to
receive, within a reasonable time, a certificate or certificates, issued in the
Holders name or in such name or names as the Holder may direct, for the number
of Shares so purchased. The Shares so purchased shall be deemed to be issued as
of the close of business on the date on which this Warrant shall have been
exercised.
2. SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company covenants that
the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance in accordance herewith, be fully
paid and non-assessable, and free from all liens and charges with respect to the
issue thereof. During the period within which the purchase rights represented by
the Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
3. NO FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
4. ADJUSTMENTS OF WARRANT PURCHASE PRICE AND NUMBER OF SHARES. If there
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is not
the surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares
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subject to this Warrant, and the number and kind of shares and the price per
share then applicable to shares covered by the unexercised portion of this
Warrant.
5. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the
Shares so purchased in accordance with the terms of the Warrant, the Holder or
the Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
6. SALE OR TRANSFER OF THE WARRANT AND THE SHARES; LEGEND. The Warrant and
the Shares shall not be sold or transferred unless either (i) they first shall
have been registered under the Act and applicable State Securities laws, or (ii)
the Company first shall have been furnished with an opinion of legal counsel
satisfactory to the Company to the effect that such sale or transfer is exempt
from the registration requirements of the Act and applicable State Securities
laws. Each certificate representing any Warrant shall bear the legend set out
on page 1 hereof. Each certificate representing any Shares shall bear a legend
substantially in the following form, as appropriate:
THE SHARES EVIDENCED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR
DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT
OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
7. MODIFICATIONS AND WAIVERS. This Warrant may not be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
8. NOTICES. Any notice, request or other document required or permitted to
be given or delivered to the Holder or the Company shall be delivered, or shall
be sent by certified or registered mail, postage prepaid, to the Holder at its
address shown on the books of the Company or in the case of the Company, at the
address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company covenants
with the Holder that upon its receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate and, in the case of any
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such loss, theft or destruction, of an indemnity or security reasonably
satisfactory to it, upon reimbursement to the Company of all reasonable expenses
incidental thereto, and surrender and cancellation of this Warrant or stock
certificate, if mutilated, the Company will make and deliver a new Warrant or
stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant or stock certificate.
10. REPRESENTATIONS AND WARRANTIES OF HOLDER. By accepting this Warrant,
the Holder represents and warrants that he, she or it is acquiring this Warrant
and the Shares for his her or its own account, for investment and not with a
view to, or for sale in connection with, any distribution thereof or any part
thereof. Holder represents and warrants that he, she or it is (a) experienced in
the evaluation of businesses similar to the Company, (b) has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and of an investment in the Company, (c) has the ability to bear the
economic risks of an investment in the Company, (d) has been furnished with or
has had access to such information as is specified in subparagraph (b)(2) of
Rule 502 promulgated under the Act and (e) has been afforded the opportunity to
ask questions of and to receive answers from the officers of the Company and to
obtain any additional information necessary to make an informed investment
decision with respect to an investment in the Company.
11. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets, all of the obligations of the
Company relating to the Shares issuable upon exercise of this Warrant shall
survive the exercise and termination of this Warrant and all of the covenants
and agreements of the Company shall inure to the benefits of the successors and
assigns of the Holder.
12. GOVERNING LAW. This Warrant shall be construed enforced in accordance
with, and the rights of the parties shall be governed by, the laws of the State
of Delaware.
IN WITNESS WHEREOF, CONNECTED CORPORATION has caused this Warrant to be
executed under seal by its officer thereunto duly authorized.
ORIGINAL ISSUANCE DATE: June 12, 1996
CONNECTED CORPORATION
CORPORATE
SEAL /s/ Xxxxx X. Cane
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By: Xxxxx X. Cane, President
Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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EXHIBIT A
NOTICE OF EXERCISE
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To: CONNECTED CORPORATION.
1. The undersigned hereby elects to purchase ___ shares of Common Stock of
CONNECTED CORPORATION pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents that the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
The undersigned further represents that such shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended and applicable State Securities laws or (ii)
the Company first shall have been furnished with an opinion of legal counsel
reasonably satisfactory to the Company to the effect that such sale or transfer
is exempt from applicable registration requirements.
4. In the event of partial exercise, please re-issue an appropriate Warrant
exercisable into the remaining shares.
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(Name)
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(Address)
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(Signature)
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(Date)
