EXHIBIT 10.3
VOID AFTER 5:00 P.M., NEW YORK, NEW YORK LOCAL TIME ON ____________, 2007.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF
(COLLECTIVELY THE "SECURITIES") HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR
ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO DATATEC
SYSTEMS, INC. THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
DATATEC SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
TO PURCHASE SHARES OF COMMON STOCK
Certificate No. W-2003-_____ ___________ Warrants
April ___, 2003
This Warrant Certificate certifies that XXXXXXXXXX & CO., INC.,
having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or permitted
assignees is the registered holder (the "Holder") of Common Stock Purchase
Warrants (the "Warrants") to purchase shares of the common stock, $.001 par
value (the "Common Stock") of DATATEC SYSTEMS, INC., a Delaware corporation (the
"Company"). The Warrants represented by this Warrant Certificate have been
issued to the Holder as part of the consideration paid for services provided in
connection with a private placement of units ("Units") consisting of two shares
of Common Stock and one Warrant, offered pursuant to the Company's Private
Placement Memorandum dated February 6, 2003.
1. EXERCISE OF WARRANT.
(A) Each Warrant enables the Holder, subject to the provisions of
this Warrant Certificate to purchase from the Company at any time and from time
to time commencing on the date hereof (the "Initial Exercise Date") through and
including 5:00 p.m., New York local time on __________, 2007 (the "Expiration
Date") one (1) fully paid and non-assessable share of Common Stock ("Shares")
upon due presentation and surrender of this Warrant Certificate accompanied by
payment of the purchase price of $_____ per Share (the "Exercise Price").
Payment of the Exercise Price shall be made in lawful money of the United States
of America by certified or bank cashier's check payable to the Company at its
principal office at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000. As hereinafter
provided, the Exercise Price and number of Shares purchasable upon the exercise
of the Warrants are subject to modification or adjustment upon the happening of
certain events.
(B) In addition to permitting the payment of the Exercise Price in
cash, the Holder may surrender to the Company for cancellation, in lieu of cash
for the Exercise Price, all or a portion of the Warrants represented hereby and
receive in exchange therefor such number of shares of Common Stock as shall
equal the difference between the fair market value per share of the Common Stock
(determined in accordance with Section 8(F) hereof) and the Exercise Price then
in effect, multiplied by the quotient obtained by dividing the number of
Warrants tendered by such fair market value per share of Common Stock.
(C) This Warrant Certificate is exercisable at any time on or after
the Initial Exercise Date in whole or in part by the Holder in person or by
attorney duly authorized in writing at the principal office of the Company.
(D) This Warrant is entitled to the registration rights referenced
in Section 9 hereof.
2. EXCHANGE, FRACTIONAL SHARES, TRANSFER.
(A) Upon surrender to the Company, this Warrant Certificate may be
exchanged for another Warrant Certificate or Warrant Certificates evidencing a
like aggregate number of Warrants. If this Warrant Certificate shall be
exercised in part, the Holder shall be entitled to receive upon surrender hereof
another Warrant Certificate or Warrant Certificates evidencing the number of
Warrants not exercised;
(B) Anything herein to the contrary notwithstanding, in no event
shall the Company be obligated to issue Warrant Certificates evidencing other
than a whole number of Warrants or issue certificates evidencing other than a
whole number of Shares upon the exercise of this Warrant Certificate; PROVIDED,
HOWEVER, that the Company shall pay with respect to any such fraction of a Share
an amount of cash based upon the fair market value of a share of Common Stock,
determined in accordance with Section 8(F) hereof;
(C) The Company may deem and treat the person in whose name this
Warrant Certificate is registered as the absolute true and lawful owner hereof
for all purposes whatsoever; and
(D) This Warrant Certificate may not be transferred except in
compliance with the provisions of the Act or applicable state securities laws
and in accordance with the provisions of Section 10 hereof.
3. RIGHTS OF A HOLDER. No Holder shall be deemed to be the holder of
Common Stock or any other securities of the Company that may at any time be
issuable on the exercise hereof for any purpose nor shall anything contained
herein be construed to confer upon the Holder any of the rights of a shareholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof or to give or withhold
consent to any corporate action (whether upon any reorganization, issuance of
stock, reclassification or conversion of stock, change of par value,
consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings or to receive dividends or subscription rights or otherwise until a
Warrant shall have been exercised and the Common Stock purchasable upon the
exercise thereof shall have become issued.
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4. REGISTRATION OF TRANSFER. The Company shall maintain books for the
transfer and registration of Warrants. Upon the transfer of any Warrants in
accordance with the provisions of Section 10 hereof (a "Permitted Transfer"),
the Company shall issue and register the Warrants in the name(s) of the new
Holder(s). The Warrants shall be signed manually by the Chairman, Chief
Executive Officer, President or any Vice President on the one hand, and the
Secretary or Assistant Secretary of the Company on the other hand. The Company
shall transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Company for such purpose upon surrender thereof for transfer
properly endorsed or accompanied by appropriate instructions for transfer. Upon
any Permitted Transfer, a new Warrant Certificate shall be issued to the
transferee and the surrendered Warrants shall be canceled by the Company.
Warrants may be exchanged at the option of the Holder, when surrendered at the
office of the Company, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of Shares. Subject to the terms of this Warrant
Certificate, upon such surrender and payment of the Exercise Price at any time
after the Initial Exercise Date, the Company shall issue and deliver with all
reasonable dispatch to or upon the written order of the Holder of such Warrants
and in such name or names as such Holder may designate, a certificate or
certificates for the number of full Shares so purchased upon the exercise of
such Warrants. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become the Holder of record of such Shares as of the date of the surrender of
such Warrants and payment of the Exercise Price; provided, however, that if, at
the date of surrender and payment, the transfer books of the Common Stock shall
be closed, the certificates for the Shares shall be issuable as of the date on
which such books shall be opened and until such date the Company shall be under
no duty to deliver any certificate for such Shares; provided, further, however,
that such transfer books, unless otherwise required by law or by applicable rule
of any national securities exchange, shall not be closed at any one time for a
period longer than 20 days. The rights of purchase represented by the Warrants
shall be exercisable, at the election of the Holders, either as an entirety or
from time to time for only part of the Shares at any time on or after the
Initial Exercise Date.
5. STAMP TAX. The Company will pay any documentary stamp taxes
attributable to the initial issuance of the Shares issuable upon the exercise of
the Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificates for Shares in a name other than that of
the Holder in respect of which such Shares are issued, and in such case the
Company shall not be required to issue or deliver any certificate for Shares or
any Warrant until the person requesting the same has paid to the Company the
amount of such tax or has established to the Company's satisfaction that such
tax has been paid.
6. LOST, STOLEN OR MUTILATED CERTIFICATES. Upon receipt by the Company
of evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of any Warrant, and (a) in the case of loss,
theft or destruction, of indemnity reasonably satisfactory to it (provided that
if the Holder of such Warrant is, or is a nominee for, an original holder, such
person's own unsecured agreement of indemnity shall be deemed to be
satisfactory), or (b) in the case of mutilation, upon surrender and cancellation
thereof, the Company at its own expense shall execute and deliver, in lieu
thereof, a new Warrant identical in all respects to such lost, stolen, destroyed
or mutilated Warrant.
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7. RESERVED SHARES. The Company warrants that there have been reserved,
and covenants that at all times in the future it shall keep reserved, out of the
authorized and unissued Common Stock, a number of shares sufficient to provide
for the exercise of the rights of purchase represented by this Warrant
Certificate. If at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the exercise of this Warrant at
the Exercise Price then in effect, the Company shall take such corporate action
as may, in the reasonable opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock (and, if applicable, of any other
securities for which this Warrant may be exercised) to such number of shares as
shall be sufficient for such purposes. The Company agrees that all Shares
issuable upon exercise of the Warrants shall be, at the time of delivery of the
certificates for such Shares, validly issued and outstanding, fully paid and
non-assessable and that the issuance of such Shares will not give rise to
preemptive rights in favor of existing stockholders.
8. ANTI-DILUTION PROVISIONS.
(A) DIVIDENDS, RECLASSIFICATIONS, RECAPITALIZATIONS,
REORGANIZATIONS, ETC. In the event that the Company shall, at any time prior to
the exercise of this Warrant and prior to the full exercise hereof: (i) declare
or pay to the holders of the Common Stock a dividend payable in any kind of
shares of stock of the Company; or (ii) adopt a plan of reorganization or
recapitalization or change, divide or otherwise reclassify its Common Stock into
the same or a different number of shares with or without par value, or in shares
of any class or classes; or (iii) sell, lease, transfer, convey or otherwise
dispose of all or substantially all of its assets; or (iv) merge or consolidate
with or into one or more corporations or other entities; or (v) make any
distribution of its assets to holders of its Common Stock as a liquidation or
partial liquidation dividend or by way of return of capital; then, upon the
subsequent exercise of this Warrant, the Holder shall receive, in addition to or
in substitution for the shares of Common Stock to which it would otherwise be
entitled upon such exercise, the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification,
consolidation, merger or sale by a holder of the number of shares of Common
Stock the Holder would have received had all Warrant Shares issuable upon
exercise of this Warrant been issued immediately prior to the happening of any
of the foregoing events, at a price equal to the Exercise Price then in effect
(the kind, amount and price of such stock and other securities to be subject to
adjustment as herein provided).
(B) MERGERS, ETC. The Company covenants and agrees that it will not
merge or consolidate with or into or sell, lease, transfer, convey or otherwise
dispose of all or substantially all of its assets to any other corporation or
entity unless at the time of or prior to such transaction such other corporation
or other entity shall expressly assume all of the liabilities and obligations of
the Company under this Warrant and (without limiting the generality of the
foregoing) shall expressly agree that the Holder of this Warrant shall
thereafter have the right to receive upon the exercise of this Warrant the
number and kind of shares of stock and other securities and property receivable
upon such transaction by a Holder of the number and kind of shares which would
have been receivable upon the exercise of this Warrant immediately prior to such
transaction.
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(C) NOTICE OF CERTAIN TRANSACTIONS. If, at any time while this
Warrant is outstanding, the Company shall pay any dividend payable in cash or in
Common Stock, shall offer to the holders of its Common Stock rights for
subscription or purchase by them of any shares of stock of any class or any
other rights, shall enter into an agreement to merge or consolidate with another
corporation, or shall propose to liquidate or dissolve, then the Company shall
cause notice thereof to be mailed to the registered Holder of this Warrant at
its address appearing on the registration books of the Company, at least 30 days
prior to (i) the record date as of which holders of Common Stock shall
participate in such dividend, distribution, subscription or other rights, or
liquidation or dissolution or (ii) the effective date of any such event or
transaction and shall permit the Holder to exercise this Warrant or any
unexercised portion thereof at any time within 20 days following receipt of such
notice.
(D) EXCLUSIONS. Anything in this Section 8 to contrary
notwithstanding, no adjustment in the Exercise Price shall be made in connection
with the issuance of up to an aggregate of 2,000,000 shares of Common Stock
(including any shares of Common Stock issuable upon conversion or exercise of
Convertible Securities) in connection with the acquisition, in whole or in part,
of the assets or stock of another entity or any part thereof that is currently
subject to a letter of intent.
(E) CARRY FORWARDS. Anything in this Section 8 to the contrary
notwithstanding, no adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least 5% in such
Exercise Price; provided, however, that any adjustments which by reason of this
Subsection (D) are not required to be made shall be carried forward and taken
into account in making subsequent adjustments. All calculations under this
Section 8 shall be made to the nearest cent or to the nearest tenth of a share,
as the case may be.
(F) FAIR MARKET VALUE. For purposes of (1) payments for fractional
Shares pursuant to Section 2 hereof and (2) determining the number of Shares to
be issued pursuant to the exercise provision of Section 1(B) hereof, the fair
market value of a share of Common Stock on the date of any such fractional share
payment or date of exercise shall be the arithmetical average of the following
prices for such of the twenty (20) business days immediately preceding the date
of inquiry as shall be available:
(i) If the Common Stock is listed on a national securities
exchange or National Association of Securities Dealer's Automated
Quotation System ("NASDAQ") National Market, the last sale price on
such day or, if there shall have been no sale on such day, the
average of the closing bid and asked prices on such exchange or
National Market on such day; or
(ii) If (i) shall not apply but the Common Stock shall be
included in the NASDAQ SmallCap Market, the average of the last
sales price on such day or, if there shall have been no sale on such
day, the average of the closing bid and asked prices on such day
quoted by brokers and dealers making a market in NASDAQ, furnished
by any member of the New York Stock Exchange or NASD selected by the
Company for that purpose; or
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(iii) If (i) and (ii) shall not apply but the Common Stock
shall be quoted on the NASD's OTC Bulletin Board or be quoted by
three brokers regularly making a market in such shares in the
over-the-counter market, the average of the closing bid and asked
prices on such day, furnished by any member of the New York Stock
Exchange or NASD selected by the Company for that purpose; or
(iv) If none of (i), (ii) or (iii) shall apply, the fair market
value of the Common Stock shall be reasonably determined by the
Board of Directors of the Company in its sole discretion.
(G) NOTICE OF ADJUSTMENTS. Upon any adjustment of the Exercise
Price, then and in each such case the Company shall promptly deliver a notice to
the registered Holder of this Warrant, which notice shall state the Exercise
Price resulting from such adjustment and the increase or decrease, if any, in
the number of Shares purchasable at such price upon the exercise hereof, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
9. CERTAIN REGISTRATION RIGHTS.
The Holder of this Warrant Certificate shall be entitled to those
rights to register the public resale of the Shares under the Act as are
contained in Section E of the Securities Purchase Agreement executed by the
Holder and the Company in connection with the issuance of the Units and the
provisions of such Section E are deemed incorporated herein by reference.
10. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
(A) The Holder of this Warrant Certificate, each transferee hereof
and any Holder and transferee of any Shares, by his acceptance thereof, agrees
that (a) no public distribution of Warrants or Shares will be made in violation
of the Act, and (b) during such period as the delivery of a prospectus with
respect to Warrants or Shares may be required by the Act, no public distribution
of Warrants or Shares will be made in a manner or on terms different from those
set forth in, or without delivery of, a prospectus then meeting the requirements
of Section 10 of the Act and in compliance with applicable state securities
laws. Furthermore, it shall be a condition to the transfer of the Warrants that
any transferee thereof deliver to the Company his written agreement to accept
and be bound by all of the terms and conditions contained in this Warrant
Certificate.
(B) This Warrant or the Shares or any other security issued or
issuable upon exercise of this Warrant may not be sold or otherwise disposed of
except as follows:
(1) To a person who, in the opinion of counsel for the Holder
reasonably acceptable to the Company, is a person to whom this Warrant or Shares
may legally be transferred without registration and without the delivery of a
current prospectus under the Act with respect thereto and then only against
receipt of an agreement of such person to comply with the provisions of this
Section 10 with respect to any resale or other disposition of such securities,
which agreement shall be satisfactory in form and substance to the Company and
its counsel; provided that the foregoing shall not apply to any such Warrant,
Shares or other security as to which such Holder shall have received an opinion
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letter from counsel to the Company as to the exemption thereof from registration
under the Act pursuant to Rule 144(k) under the Act; or
(2) To any person, after a registration statement under the Act
becomes effective with respect to the Warrants or Shares, upon delivery of a
prospectus then meeting the requirements of the Act relating to such securities
and the offering thereof for such sale or disposition.
(C) Each certificate for Shares issued upon exercise of this Warrant
shall bear a legend relating to the non-registered status of such Shares under
the Act, unless at the time of exercise of this Warrant such Shares are subject
to a currently effective registration statement under the Act.
11. MISCELLANEOUS.
(A) LAW TO GOVERN. This Warrant shall be governed by and construed
in accordance with the substantive laws of the State of New York, without giving
effect to conflict of laws principles.
(B) ENTIRE AGREEMENT. This Warrant Certificate constitutes and
expresses the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements and understandings, inducements or conditions whether express or
implied, oral or written. Neither this Warrant Certificate nor any portion or
provision hereof may be changed, waived or amended orally or in any manner other
than by an agreement in writing signed by the Holder and the Company.
(C) NOTICES. Except as otherwise provided in this Warrant
Certificate, all notices, requests, demands and other communications required or
permitted under this Warrant Certificate or by law shall be in writing and shall
be deemed to have been duly given, made and received only when delivered against
receipt or when deposited in the United States mails, certified or registered
mail, return receipt requested, postage prepaid, addressed as follows:
Company: DATATEC SYSTEMS, INC.
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: President
With a copy to: XXXXXX XXXXXXXX FROME XXXXXXXXXX & XXXXXXX LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Holder: At the address shown for the Holder
in the registration book maintained
by the Company.
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(D) SEVERABILITY. If any provision of this Warrant Certificate is
prohibited by or is unlawful or unenforceable under any applicable law of any
jurisdiction, such provision shall, as to such jurisdiction be in effect to the
extent of such prohibition without invalidating the remaining provisions hereof;
provided, however, that any such prohibition in any jurisdiction shall not
invalidate such provision in any other jurisdiction; and provided, further that
where the provisions of any such applicable law may be waived, that they hereby
are waived by the Company and the Holder to the full extent permitted by law and
to the end that this Warrant instrument shall be deemed to be a valid and
binding agreement in accordance with its terms.
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IN WITNESS WHEREOF, Datatec Systems, Inc. has caused this Warrant
Certificate to be signed by its duly authorized officers as of the date first
written above.
DATATEC SYSTEMS, INC.
By:_____________________________________
Xxxxx X. Xxxx, Chairman and CEO
Attest:
By:__________________________________
Name:
Title:
[CORPORATE SEAL]
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PURCHASE FORM
To: DATATEC Systems, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Dated: ________________
The undersigned hereby irrevocably elects to exercise the attached
Warrant Certificate, Certificate No. W-2003-___, to the extent of ____________
Shares of Common Stock, $.001 par value per share of DATATEC SYSTEMS, INC., and
hereby makes payment of $_________ in payment of the aggregate exercise price
thereof.
In accordance with the terms of the attached Warrant Certificate,
Certificate No. W-2003-___, the undersigned hereby irrevocably elects to
exercise such Warrant Certificate, Certificate No. W-2003-___ pursuant to a
cashless exercise, to the extent of ____________ Shares of Common Stock, $.001
par value per share of DATATEC SYSTEMS, INC. (the "Shares"), and hereby
authorizes DATATEC SYSTEMS, INC. to withhold _____ Shares having a total value
of $__________, such value being determined in accordance with the terms of this
Warrant Certificate, Certificate No. W-2003-___, from the Shares otherwise to be
received.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name: __________________________________________________________________________
(Please typewrite or print in block letters)
Address: _______________________________________________________________________
_______________________________________________________________________
__________________________
__________________________
By:_______________________
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