AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT,
SERIES A
WARRANT NO. _____
(Warrant Price - $3.40)
VOID AFTER 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE AS DEFINED BELOW.
WARRANT TO PURCHASE UP TO A MAXIMUM OF ________________________ SHARES
OF COMMON STOCK OF XXXXXXXX.XXX, INC. [SUBJECT TO ADJUSTMENT --SEE ARTICLE III]
TRANSFER RESTRICTED -- SEE SECTIONS 6.02 AND 7.02
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES
ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH
RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR (2) THE COMPANY RECEIVES AN OPINION
OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND
OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS.
This Warrant amends and restates, and for all purposes
supersedes and replaces, the original warrant dated as of
January 5, 1998.
This certifies that, for value received, ____________________
___________________________, or permitted registered assigns
(the "Warrant Holder"), is entitled to purchase from
XXXXXXXX.XXX, INC., a Delaware corporation (formerly Xxxxxx
Interactive Corp., a New York corporation) having a place of
business at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
(the "Company"), subject to the terms and conditions hereof,
at any time after the date described in Section 7.01 hereof,
and before the Expiration Date (as defined herein), up
to______________fully paid and non-assessable shares of Common
Stock ($.0001 par value) of the Company (the "Common Stock")
(as adjusted from time to time pursuant to the terms hereof)
at the Warrant Price (as defined herein). The Warrant Price
and the number of shares purchasable hereunder are subject to
adjustment as provided below.
ARTICLE I
Definition
Section 1.01. The following terms, as used herein, have the respective:
meanings ascribed to them as follows
(a) "Aggregate Warrant Price" means the amount that the Warrant Holder
must pay at any time to the Company in the aggregate to acquire all of the
shares of Common Stock then remaining issuable hereunder,
(b) "Business Day" means a day other than a Saturday, Sunday or other
day on which banks in the State of New York are authorized or required by law to
remain closed.
(c) "Expiration Date" means 5:00 P.M., New York time, on June 4, 2005.
(d) "Warrants" means this Warrant (evidencing the right to purchase a
maximum of _________________________ shares of Common Stock, and as adjusted in
the manner hereinafter provided), which, as of June 2, 1999, amends and
restates, and for all purposes supersedes and replaces, the Common Stock
Purchase Warrant, Series A, dated as of January 5, 1998, issued to the holder
thereof, and all warrants that may be issued in place of this Warrant.
(e) "Warrant Holder" means, initially, the person named on the first
page of this Warrant and any person or entity in whose name this Warrant shall
be properly registered upon the books to be maintained by the Company for that
purpose.
(f) "Warrant Price" means that portion of the Aggregate Warrant Price
that is allocable at any given time prior to the Expiration Date to one Warrant
Share, and which shall initially be $3.40 per share, as such price may be
adjusted from time to time pursuant to Article III. Notwithstanding any other
provision hereof to the contrary, at any time at which the Company's Common
Stock is registered under Section 12 of the Securities Exchange Act of 1934, as
amended, payment of the Warrant Price upon any exercise of this Warrant may be
made in cash or by delivery to the Company of shares of the Company's Common
Stock, which shall be deemed valued at their fair market value on the date of
such exercise, as determined by the Board in its sole discretion, provided that
any such shares being presented for payment shall have been held by the Warrant
Holder, as beneficial owner thereof, for at least six months prior to the
exercise of this Warrant in connection with which such shares are tendered as
payment.
(g) "Warrant Shares" means the aggregate amount of shares of Common
Stock or other securities deliverable upon exercise of the Warrants.
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ARTICLE II
Duration and Exercise of Warrant
Section 2.01. This Warrant may be exercised in whole or in part at any
time or from time to time after 9:00 A.M., New York time, on June 2, 1999 and
before 5:00 P.M., New York time, on the Expiration Date. If this Warrant is not
exercised during such time, it shall become void, and all rights hereunder shall
thereupon cease.
Section 2.02. (a)The Warrant Holder may exercise this Warrant from time
to time upon surrender of this Warrant, with the Subscription Form annexed
hereto duly executed, to the Company at its corporate office located at 000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or at such other place within the
State of New York, of which the Company shall notify the Warrant Holder in
writing, together with the full Warrant Price for each share of Common Stock to
be purchased in lawful money of the United States, or by check, bank draft or
postal or express money order payable in United States Dollars to the order of
the Company.
(b) The Company covenants and agrees that it will pay when due and
payable any and all transfer and similar taxes that may be payable with respect
to the issue of this Warrant or with respect to the issue of each and every
share of the Common Stock of the Company constituting a portion of the Warrant
Shares to the Warrant Holder upon the exercise of this Warrant.
ARTICLE III
Adjustment of Shares of Common Stock
Purchasable and of Warrant Price
Section 3.01. This Warrant is subject to the following provisions:
(a) If, before expiration of this Warrant by exercise or by its terms,
the Company issues to holders of its Common Stock any shares of its Common Stock
as a stock dividend or stock split or subdivides or combines its outstanding
shares of Common Stock by reclassification or otherwise, then the number of
Warrant Shares then in effect shall be proportionately increased, in the case of
a stock dividend, stock split or subdivision, or decreased, in the case of a
combination, effective at the close of business on the record date for such
stock dividend or immediately after the effective date of such subdivision or
combination. Any dividend paid or distributed upon the Common Stock in stock or
any other class of securities convertible into shares of Common Stock shall be
treated as a dividend paid in Common Stock to the extent that shares of Common
Stock are issuable upon the conversion thereof.
(b) If, prior to the expiration of this Warrant by exercise or by its
terms, there is a capital reorganization, or reclassification of the Common
Stock of the Company, or consolidation of the Company with or merger of the
Company into any other corporation, or sale of all, or substantially all, of the
properties and assets of the Company to any other corporation, then, immediately
after such capital reorganization, reclassification, consolidation, merger or
sale, this Warrant shall entitle the Warrant Holder to purchase the number of
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shares of stock or other securities or property of the Company, or of the
corporation resulting from such consolidation or surviving such merger or to
which such sale shall be made, as the case may be, that the owner of the Warrant
Shares (at the time of such capital reorganization, reclassification of Common
Stock, consolidation, merger or sale) would have been entitled to receive or
purchase upon such capital reorganization, reclassification of Common Stock,
consolidation, merger or sale had this Warrant been exercised at such time; and
in any such case, the provisions set forth herein with respect to the rights and
interests thereafter of the Warrant Holder shall be appropriately adjusted, if
necessary, in order to render this Warrant applicable to any shares of stock or
other securities or property thereafter deliverable on the exercise of this
Warrant. The subdivision or combination of shares of Common Stock issuable upon
exercise of this Warrant at any time outstanding into a greater or lesser number
of shares of Common Stock (whether with or without par value) shall not be
deemed to be a reclassification of Common Stock for the purposes of this
paragraph.
Section 3.02. Upon each adjustment of the number of Warrant Shares
pursuant to this Article III, the Warrant Price shall be adjusted by dividing
the adjusted number of Warrant Shares into the Aggregate Warrant Price.
Section 3.03. Whenever the Warrant Price and the Warrant Shares shall
be adjusted as herein provided, the Company shall compute the adjusted Warrant
Price and the adjusted number of Warrant Shares in accordance with such
provisions and shall immediately notify the Warrant Holder thereof Such notice
shall contain a detailed description of the computation of such adjustments and
the circumstances necessitating the adjustments.
Section 3.04. If at any time after the date of this Warrant:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Stock payable otherwise than in cash;
(b) the Company shall authorize the granting, to the holders of its
Common Stock, of rights to subscribe for or purchase any shares of any class of
its securities or of any other rights;
(c) there shall be any reclassification of the Common Stock (other than
a subdivision or combination of its outstanding Common Stock), or any
consolidation or merger of which the Company is a party or a sale or transfer of
all or substantially all of the assets of the Company and for which approval of
any holders of Common Stock is required; or
(d) there shall be a dissolution, liquidation or winding up of the
Company; then, in any of such events, the Company shall cause to be mailed to
the Warrant Holder at least twenty (20) days (or ten (10) days in any case
specified in clause (a) or (b) above) prior to the applicable record date
hereinafter specified, a notice stating (i) the date on which a record is to be
taken for the purpose of such dividend, distribution or granting of rights, or,
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution or rights are to be
determined, or (ii) the date on which such reclassification, consolidation,
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merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and, in the case of a private offering, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up,
the date as of which it is expected that holders of Common Stock of record shall
be entitled to exchange their Common Stock for securities or other property
deliverable thereupon. Failure to give any such notice or any defect therein
shall not affect the validity of any action contemplated in clauses (a) through
(e) of this Section 3.04.
Section 3.05. The form of this Warrant need not be changed because of
any change in the Warrant Price or in the number of shares of Common Stock
purchasable upon the exercise of this Warrant pursuant to this Article III and
Warrants issued after such change may state the same Warrant Price and the same
number of shares of Common Stock as are stated in this Warrant as initially
issued.
Section 3.06. If, prior to the expiration of this Warrant by exercise
or by its terms, the Company shall effect any of the transactions described in
Section 3.04 hereof, this Warrant shall thereafter represent the right to
purchase such adjusted number of Warrant Shares as the holder hereof would have
otherwise received had such Holder exercised this Warrant immediately prior to
any such adjustment.
ARTICLE IV
Other Provisions Relating
to Rights of Warrant Holder
Section 4.01. The Warrant Holder shall not be entitled to vote or
receive dividends or be deemed the holder of shares of Common Stock for any
purpose, nor shall anything contained in this Warrant be construed to confer
upon the Warrant Holder any of the rights of a shareholder of the Company or any
right to vote, give or withhold consent to any action by the Company (whether
upon any recapitalization, issue of stock, reclassification of stock,
consolidation, merger, conveyance or otherwise), receive notice of meetings or
other action affecting shareholders (except for notices provided for in this
Warrant), receive dividends or subscription rights, or otherwise until this
Warrant shall have been exercised and the Warrant Shares purchasable upon the
exercise hereof shall have become deliverable as provided in Article II at which
time the person or persons in whose name or names the certificate or
certificates for the Warrant Shares being purchased are to be issued shall be
deemed the holder or holders of record of such shares for all purposes;
provided, however that if any such exercise occurs on a date when the Company's
stock transfer books are closed, the person or persons in whose name or names
the certificate or certificates for such shares are to be issued shall be deemed
the record holder or holders thereof for all purposes at the opening of business
on the next day on which such stock transfer books are open and this Warrant
shall not be deemed to have been exercised until such next day for the purpose
of determining entitlement to dividends on such Common Stock, and such exercise
shall be at the actual Warrant Price in effect at such date.
Section 4.02. If this Warrant is lost, stolen, mutilated or destroyed,
the Company may, on such terms, including terms of indemnity, as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination and tenor as, and
in substitution for, this Warrant. Subject to receipt of indemnity pursuant to
provisions of the preceding sentence, any such new Warrant executed and
delivered shall constitute an additional contractual obligation on the part of
the Company, whether or not the Warrant so lost, stolen, destroyed or mutilated
shall at any time be enforceable by anyone.
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Section 4.03. (a) The Company covenants and agrees to reserve and keep
available for the exercise of this Warrant a sufficient number of authorized
shares of Common Stock to permit the full exercise of this Warrant.
(b) The Company covenants that all shares of Common Stock issued upon
exercise of this Warrant, and upon payment of the Warrant Price therefor as
provided for herein, will be validly issued, fully paid and non-assessable.
Section 4.04. Notwithstanding anything herein to the contrary, the
Company shall not issue a fraction of a share upon any exercise of this Warrant,
and if the Warrant Holder would be entitled upon the exercise hereof to receive
a fraction of a share, the Company shall, upon such exercise and receipt by the
Company of the Warrant Price, issue cash in lieu thereof.
Section 4.05. All notices or other communications required or permitted
to be given under this Warrant shall be in writing and shall be deemed given
when delivered personally, or five (5) business days after the date on which
mailed by registered or certified mail, return receipt requested, addressed to
the Company, at its then principal place of business and to the Warrant Holder
at his last known address as it shall appear on the books of the Company.
ARTICLE V
Treatment of Warrant Holder
Section 5.01. Prior to due presentment for registration of a permitted
transfer of this Warrant, the Company may deem and treat the Warrant Holder as
the absolute owner of this Warrant (notwithstanding any notation of ownership or
other writing hereon) for the purpose of any exercise hereof and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
ARTICLE VI
Split-Up, Combination, Exchange and Transfer of Warrants
Section 6.01. Subject to Section 6.02, this Warrant may be split up,
combined or exchanged for another Warrant or Warrants containing the same terms
for the purchase of a like aggregate number of shares of Common Stock without
cost to the Warrant Holder. If the Warrant Holder desires to split up, combine
or exchange this Warrant, he shall make such request in writing delivered to the
Company at its principal office and shall surrender this Warrant and any other
Warrants to be so split up, combined or exchanged at said office. Upon any such
surrender for a split-up, combination or exchange, the Company shall execute and
deliver to the person entitled thereto a Warrant or Warrants, as the case may
be, as so requested. The Company shall not be required to effect any split-up,
combination or exchange that will result in the issuance of a Warrant entitling
the Warrant Holder to purchase upon exercise a fraction of a share of Common
Stock or a fractional Warrant.
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Section 6.02. This Warrant may not be sold, hypothecated, assigned,
transferred or otherwise disposed of, voluntarily or involuntarily, except in
accordance with and subject to the provisions of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations promulgated thereunder.
Section 6.03. Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with the Form
of Assignment annexed hereto duly executed. In such event the Company shall,
without charge, execute and deliver a new Warrant in the name of the assignee
named in such instrument of assignment and this Warrant shall promptly be
canceled. This Warrant may be divided or combined with other Warrants that carry
the same rights upon presentation thereof at the principal office of the Company
together with a written notice signed by the Warrant Holder, specifying the
denominations in which new Warrants are to be issued.
ARTICLE VII
Conditions Precedent to Exercise of
Warrant; Restrictions on Transfer; Securities
Laws and calculation of Warrant Shares
Section 7.01. This Warrant shall only be exercisable after the date
hereof and until the Expiration Date.
Section 7.02. Subject to the provisions of Section 6.02, this Warrant
and the Warrant Shares may only be sold, assigned, hypothecated, transferred or
otherwise disposed of as follows:
(a) to a person to whom this Warrant or the Warrant Shares may legally
be transferred without registration under the Act and applicable state
securities law and without the delivery of a current prospectus under the Act
and applicable state securities law; or
(b) in the case of this Warrant or the Warrant Shares, to any person
upon delivery of a prospectus then meeting the requirements of the Act and
applicable state securities law relating to such Warrant and Warrant Shares (as
to which a registration statement under the Act and applicable state securities
law shall then be in effect) and the offering thereof for such sale or
disposition.
ARTICLE VIII
Other Matters
Section 8.01. The Company will from time to time promptly pay all
transfer and similar taxes and charges that may be imposed with respect to the
issuance or delivery of Warrant Shares upon the exercise of this Warrant by the
record holder of the Warrant.
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Section 8.02. All the covenants and provisions of this Warrant by or
for the benefit of the Company shall bind and inure to the benefit of its
successors and assigns hereunder.
Section 8.03. The validity, interpretation and performance of this
Warrant shall be governed by the laws of the State of New York, without regard
to any conflict of laws principles.
Section 8.04. Nothing in this Warrant expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed, to
confer upon, or give to, any person or entity other than the Company and the
Warrant Holder any right, remedy or claim under any promise or agreement hereof,
and all covenants, conditions, stipulations, promises and agreements contained
in this Warrant shall be for the sole and exclusive benefit of the Company and
its successors and of the Warrant Holder and its successors and permitted
assigns.
Section 8.05. The Article headings herein are for convenience only and
are not part of this Warrant and shall not affect the interpretation hereof.
Section 8.06. The Warrant Holder hereby represents to the Company that
the Warrant and the shares of Common Stock underlying the Warrant are being
acquired solely for the Warrant Holder's account, for investment, and are not
being purchased with a view to or for the resale or distribution thereof.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
as of the 21st day of December, 1999.
XXXXXXXX.XXX, INC.
By:_________________________________________
Xxxxxxx X. Xxxxxx, Chief Executive Officer
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Assignment Form
(To be executed by the registered holder to effect a transfer of the within
Warrant.)
For value received __________________________ hereby sells, assigns and
transfers unto __________________________ this Warrant and the rights
represented thereby to purchase shares of Common Stock in accordance with the
terms and conditions thereof, and does hereby irrevocably constitute and appoint
__________________________ attorney to transfer this Warrant on the books of the
Company, with full power of substitution.
IN WITNESS WHEREOF, the undersigned has executed this assignment this __ day of
_______, ____.
_______________________________________________
[Provide name, address, telephone number,
telecopier number and e-mail address]
Subscription Form
(To be executed by the registered holder to exercise the fights to purchase
Shares of Common Stock evidenced by the within Warrant.)
Xxxxxxxx.xxx, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
The undersigned hereby irrevocably subscribes for shares of your Common Stock
pursuant to and in accordance with the terms and conditions of this Warrant and
herewith makes payment of $________ therefor in cash or by delivery of ________
______________ shares of your Common Stock, which has been held beneficially by
the undersigned for at least six months prior to the date hereof, and requests
that a certificate for such shares be issued in the name of the undersigned and
be delivered to the undersigned at the address stated below.
IN WITNESS WHEREOF, the undersigned has executed this subscription this
___ day of _____, _______.
____________________________________________________
[Provide name, address telephone number, telecopier
number and e-mail address]
