Exhibit 4(ag)
This Warrant has not been registered under the Securities Act of 1933, as
amended, or applicable state securities laws, nor the securities laws of any
other jurisdiction. This Warrant may not be sold or transferred in the absence
of an effective registration statement under those securities laws or an opinion
of counsel, in form and substance satisfactory to the Company, that the sale or
transfer is pursuant to an exemption to the registration requirements of those
securities laws.
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NCT GROUP, INC.
(Incorporated under the laws of the State of Delaware)
Void after 5:00 p.m., New York City time, on June 17, 2005
Warrant to Purchase
400,000 Shares of
. Common Stock
Warrant for the Purchase of Shares of Common Stock
No. JC-1
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FOR VALUE RECEIVED, NCT GROUP, INC. (the "Company"), a Delaware
corporation, on this 17th day of June, 2002 (the "Grant Date") hereby issues
this warrant (the "Warrant") and certifies that Xxxx Xxxxxxx (the "Holder") is
granted the right, subject to the provisions of the Warrant, to purchase from
the Company, at any time, or from time to time during the period commencing at
9:00 a.m. New York City local time on the Grant Date and expiring, unless
earlier terminated as hereinafter provided, at 5:00 p.m. New York City local
time on June 17, 2005 (the "Expiration Date") up to four hundred thousand
(400,000) fully paid and nonassessable shares of Common Stock, $.01 par value,
of the Company at a price of $0.081 per share (hereinafter referred to as the
"Exercise Price").
The term "Common Stock" means the shares of Common Stock, $.01 par value,
of the Company as constituted on the Grant Date of this Warrant, together with
any other equity securities that may be issued by the Company in addition
thereto or in substitution therefor. The number of shares of Common Stock to be
received upon the exercise of this Warrant may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "Warrant Stock".
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed
or mutilated shall be at any time enforceable by anyone.
The Holder agrees with the Company that this Warrant is issued, and all the
rights hereunder shall be held, subject to all of the conditions, limitations
and provisions set forth herein.
1. Exercise of Warrant.
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1.1 Period of Exercise. This Warrant may be exercised in whole or
in part at any time, or from time to time, during the period
commencing at 9:00 a.m., New York City local time, on the Grant Date,
and expiring at 5:00 p.m., New York City local time, on the Expiration
Date, or, if such day is a day on which banking institutions in the
City of New York are authorized by law to close, then on the next
succeeding day that shall not be such a day.
1.2. Exercise For Payment. Subject to the restrictions and
limitations set forth above, this Warrant may be exercised by
presentation and surrender hereof to the Company at its principal
office with the Warrant Exercise Form attached hereto duly executed
and accompanied by payment (either in cash or by certified or official
bank check, payable to the order of the Company) of the Exercise Price
for the number of shares specified in such Form and instruments of
transfer, if appropriate, duly executed by the Holder.
1.3 Partial Exercise. If this Warrant should be exercised in part
only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the rights
of the Holder thereof to purchase the balance of the shares
purchasable hereunder.
1.4 Transfer Books and Certificates. Upon receipt by the Company
of this Warrant, together with the Warrant Exercise Form and the
Exercise Price, at its office, in proper form for exercise, the Holder
shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not then
be actually delivered to the Holder.
1.5 Certain Taxes. The Company shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on exercise of this
Warrant.
1.6 Certain Beneficial Ownership. The Holder shall not be
entitled to exercise this Warrant to the extent that (a) the number of
shares of Common Stock issuable upon such exercise and (b) the number
of shares of Common Stock beneficially owned by the Holder and its
affiliates on the date of such exercise would result in beneficial
ownership by the Holder and its affiliates of more than 9.99% of the
outstanding shares of Common Stock on the date of such exercise. For
the purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Rule 13d-3
thereunder. Subject to the foregoing, the Holder shall not be limited
to aggregate exercises of only 9.99%. The Holder may void the exercise
limitation described in this paragraph upon 75 days' prior written
notice to the Company. The Holder may allocate which of the equity of
the Company deemed beneficially owned by the Holder shall be included
in the 9.99% amount described above and which shall be allocated to
the excess above 9.99%.
2.Warrant Stock Transfer. The Warrant Stock may not be sold or
otherwise disposed of unless registered pursuant to the provisions of
the Securities Act of 1933, as amended (the "1933 Act"), or an opinion
of counsel in form and content satisfactory to the Company is obtained
stating that such sale or other disposition is made in compliance with
an available exemption from such registration. Any sale or other
disposition of the Warrant Stock must also comply with all applicable
state securities laws and regulations.
3.Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant,
but the Company shall issue one additional share of its Common Stock
in lieu of each fraction of a share otherwise called for upon any
exercise of this Warrant.
0.Xxxxxxxx, Transfer, Assignment of Loss of Warrant. This Warrant
is not registered under the 1933 Act nor under any applicable state
securities law or regulation. This Warrant cannot be sold, exchanged,
transferred, assigned or otherwise disposed of unless registered
pursuant to the provisions of the 1933 Act or an opinion of counsel in
form and content satisfactory to the Company is obtained stating that
such disposition is in compliance with an available exemption from
registration. Any such disposition must also comply with applicable
state securities laws and regulations.
5.Rights of the Holder. The Holder shall not, by virtue hereof,
be entitled to any rights of a stockholder of the Company, either at
law or in equity, and the rights of the Holder are limited to those
expressed in this Warrant.
6.Redemption. This Warrant is not redeemable by the Company.
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7.Anti-Dilution Provisions.
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7.1 Adjustment for Dividends in Other Securities, Property,
Etc.: Reclassification, Etc. In case at any time or from time to
time after the Grant Date the holders of Common Stock (or any
other securities at the time receivable upon the exercise of this
Warrant) shall have received, or on or after the record date
fixed for the determination of eligible stockholders, shall have
become entitled to receive without payment therefor: (a) other or
additional securities or property (other than cash) by way of
dividend, (b) any cash paid or payable except out of earned
surplus of the Company at the Grant Date as increased (decreased)
by subsequent credits (charges) thereto (other than credits in
respect of any capital or paid-in surplus or surplus created as a
result of a revaluation of property) or (c) other or additional
(or less) securities or property (including cash) by way of
stock-split, spin-off, split-up, reclassification, combination of
shares or similar corporate rearrangement, then, and in each such
case, the Holder of this Warrant, upon the exercise thereof as
provided in Section 1, shall be entitled to receive, subject to
the limitations and restrictions set forth above, the amount of
securities and property (including cash in the cases referred to
in clauses (b) and (c) above) which such Holder would hold on the
date of such exercise if on the Grant Date it had been the holder
of record of the number of shares of Common Stock (as constituted
on the Grant Date) subscribed for upon such exercise as provided
in Section 1 and had thereafter, during the period from the Grant
Date to and including the date of such exercise, retained such
shares and/or all other additional (or less) securities and
property (including cash in the cases referred to in clauses (b)
and (c) above) receivable by it as aforesaid during such period,
giving effect to all adjustments called for during such period by
Section 7.2.
7.2 Adjustment for Reorganization, Consolidation,
Merger, Etc. In case of any reorganization of the Company
(or any other corporation, the securities of which are at
the time receivable on the exercise of this Warrant) after
the Grant Date or in case after such date the Company (or
any such other corporation) shall consolidate with or merge
into another corporation or convey all or substantially all
of its assets to another corporation, then, and in each such
case, the Holder of this Warrant upon the exercise thereof
as provided in Section 1 at any time after the consummation
of such reorganization, consolidation, merger or conveyance,
shall be entitled to receive, in lieu of the securities and
property receivable upon the exercise of this Warrant prior
to such consummation, the securities or property to which
such Holder would have been entitled upon such consummation
if such Holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in
Section 7.1; in each such case, the terms of this Warrant
shall be applicable to the securities or property receivable
upon the exercise of this Warrant after such consummation.
7.3 Certificate as to Adjustments. In each case of an
adjustment in the number of shares of Common Stock (or other
securities or property) receivable on the exercise of the
Warrant, the Company at its expense will promptly compute
such adjustment in accordance with the terms of the Warrant
and prepare a certificate setting forth such adjustment and
showing in detail the facts upon which such adjustment is
based, including a statement of (a) the consideration
received or to be received by the Company for any additional
shares of Common Stock issued or sold or deemed to have been
issued or sold, (b) the number of shares of Common Stock
outstanding or deemed to be outstanding, and (c) the pro
forma adjusted Exercise Price. The Company will forthwith
mail a copy of each such certificate to the holder of this
Warrant.
7.4 Notices of Record Date, Etc.
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In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other securities at the time receivable upon the exercise of
the Warrant) for the purpose of entitling them to receive any dividend
(other than a cash dividend) or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities, or to receive any other right; or
(b) of any capital reorganization of the Company (other than a
stock split or reverse stock split), any reclassification of the
capital stock of the Company, any consolidation or merger of the
Company with or into another corporation (other than a merger for
purposes of change of domicile) or any conveyance of all or
substantially all of the assets of the Company to another corporation;
or
(c) of any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company shall mail or cause to be
mailed to each holder of the Warrant at the time outstanding a notice
specifying, as the case may be, (i) the date on which a record is to
be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or
right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution,
liquidation or winding-up is to take place, and the time, if any, is
to be fixed, as to which the holders of record of Common Stock (or
such other securities at the time receivable upon the exercise of the
Warrant) shall be entitled to exchange their shares of Common Stock
(or such other securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up. Such
notice shall be mailed at least twenty (20) days prior to the date
therein specified and the Warrant may be exercised prior to said date
during the term of the Warrant no later than five (5) days prior to
said date.
8.Legend. In the event of the exercise of this Warrant and the issuance of
any of the Warrant Stock hereunder, all certificates representing Warrant Stock
not then registered for sale to the public under the 1933 Act shall bear on the
face thereof substantially the following legend, insofar as is consistent with
Delaware law:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, or the
Securities laws of any state or other jurisdiction, and may not be
sold, offered for sale, assigned, transferred or otherwise disposed
of, unless registered pursuant to the provisions of that Act and of
such Securities laws or an opinion of counsel acceptable to the
Corporation is obtained stating that such disposition is in compliance
with an available exemption from such registration."
9. Applicable Law. This Warrant is issued under and shall for all purposes
be governed by and construed in accordance with the laws of the State of
Delaware and of the United States of America.
10. Notice. Notices and other communications to be given to the Holder of
the Warrant evidenced by this certificate shall be deemed to have been
sufficiently given, if delivered or mailed, addressed in the name and at the
address of such owner appearing on the records of the Company, and if mailed,
sent registered or certified mail, postage prepaid. Notices or other
communications to the Company shall be deemed to have been sufficiently given if
delivered by hand or mailed, by registered or certified mail, postage prepaid,
to the Company at 00 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attn: Chief Financial
Officer, or at such other address as the Company shall have designated by
written notice to such registered owner as herein provided, Notice by mail shall
be deemed given when deposited in the United States mail as herein provided.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its
behalf, in its corporate name, by its duly authorized officer, all as of the day
and year set forth below.
Dated: June 17, 2002
NCT GROUP, INC.
By: /s/ XX X. XXXXXXX
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Xx X. Xxxxxxx
Senior Vice President & Chief Financial Officer
WARRANT EXERCISE FORM
(to be executed by the Holder in order to exercise the Warrant)
TO: NCT Group, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx X. Xxxxxxx
Senior Vice President, Chief Financial Officer
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ______________ shares of Common Stock of NCT
Group, Inc.
The undersigned hereby makes payment for the foregoing shares of Common
Stock at the rate of $.081 per share, or an aggregate of $-----------.
The undersigned represents, warrants and certifies that all offers and sales of
the Warrant Stock shall be made: (i) pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "1933 Act"), or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the 1993 Act; and (ii) in compliance with
applicable state securities laws and those of any other applicable jurisdiction.
Dated:
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Name of Warrant Holder
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Signature
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the registered Holder of the within Warrant)
Name: ----------------------------------------------------------------
(Please type or print in block letters)
Address: ----------------------------------------------------------------
Social Security or Taxpayer Identification Number: -------------------------
