56
Exhibit 4.7
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 INTERSYSTEMS, INC. THAT
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
INTERSYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
TO PURCHASE 0,000
SHARES OF COMMON STOCK
Certify. No. ISI-PPCOMP-
This Warrant Certificate certifies that or his
registered assigns is the registered Holder (the "Holder") of 00,000
Common Stock Purchase Warrants (the "Warrants") to purchase shares of
the common stock, $.01 par value (the "Common Stock") of INTERSYSTEMS,
INC., a Delaware corporation (the "Company").
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") 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
$1.375 per Share (the "Exercise Price"). The Warrants shall expire
on October 29, 2001 (the "Expiration Date"). Payment shall be made
in lawful money of the United States of America by certified check
payable to the Company at its principal office at 0000 Xxxxxxxxxxx
Xxxx, Xxxxxxx, Xxxxx 00000.
As hereinafter provided, the Exercise Price and number of Shares
purchasable upon the exercise of the Warrants may be subject to
modification or adjustment upon the happening of certain events.
(B) 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.
PAGE 56 OF 63 PAGES
57
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 current public market value (or book value, if there
shall be no public market value) for Shares purchasable upon
exercise hereof. Market price for the purpose of this Section 2
shall mean the last reported sale price on the American Stock
Exchange or such primary exchange on which the Common Stock is traded.
(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 Paragraph 8
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 issuable.
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 2(D) hereof, (a
"Permitted Transfer"), the Company shall issue and register the Warrants
in the names of the new Holders. The Warrants shall be signed manually
by the Chairman, Chief Executive Officer, President or any Vice President
and the Secretary or Assistant Secretary of the Company. 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
- 2-
PAGE 57 OF 63 PAGES
58
Warrants shall be cancelled 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 purchase 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 purchase price; provided, however, that if, at the date of surrender
and payment, the transfer books of the Shares 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
exerciseof 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. In case this Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company
may, in its discretion, issue and deliver in exchange and substitution
for and upon cancellation of the mutilated Warrant Certificate, or in
lieu of and substitution for the lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of like tenor representing an
equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company of such loss, theft or destruction and an
indemnity, if requested, also satisfactory to it.
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. 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
- 3-
PAGE 58 OF 63 PAGES
59
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. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF l933.
(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 l0 of the Act and in compliance with applicable state securities
laws. The Holder of this Warrant Certificate and each transferee hereof
further agrees that if any distribution of any of the Warrants or Shares
is proposed to be made by them otherwise than by delivery of a prospectus
meeting the requirements of Section l0 of the Act, such action shall be
taken only after submission to the Company of an opinion of counsel,
reasonably satisfactory in form and substance to the Company's counsel,
to the effect that the proposed distribution will not be in violation of
the Act or of applicable state law. 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 (1) 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 letter from counsel to the Company as to the
exemption thereof from the registration under the Act pursuant to Rule
144(k) under the Act; or
(2) To any person 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.
- 4-
PAGE 59 OF 63 PAGES
60
9. ADJUSTMENTS.
(A) In the event of a reorganization, recapitalization,
reclassification, stock split or exchange, stock dividend, combination of
shares, merger or consolidation in which the Company is the continuing
corporation or any other similar change in Common Stock of the Company,
the Board of Directors may, in its sole discretion, make such equitable,
proportionate adjustment, if any, as it deems appropriate in the number
of Shares covered by this Warrant Certificate and in the exercise price
hereunder, in order to preserve the Holder's proportionate interest in
the Company and to maintain the aggregate exercise price.
(B) In the event that the Company shall, at any time prior to
the exercise of this Warrant, (a) declare or pay to holders of Common
Stock a dividend payable in any security of the Company other than Common
Stock or securities convertible into common stock; (b) transfer its
property as an entirety or substantially as an entirety to any other
company; (c) 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; or (d) undergo a merger or consolidation in which the
Company is not the continuing corporation; 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, such additional securities of the
Company, or such shares of the securities or property of the Company
resulting from such transfer, or such assets of the Company, or such
shares of the securities or property of the continuing corporation in the
event of such merger or consolidation, which it would have been entitled
to receive had it exercised this Warrant prior to the happening of any of
the foregoing events.
10. MISCELLANEOUS.
(A) LAW TO GOVERN. This Warrant shall be governed by and
construed in accordance with the substantive laws of the State of Texas,
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:
- 5-
PAGE 60 OF 63 PAGES
61
Company: InterSystems, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: President
Holder: At the address shown for the Holder in the
registration book maintained by the Company.
(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.
IN WITNESS WHEREOF, InterSystems, Inc. has caused this Warrant
Certificate to be signed by its duly authorized officers as of the 18th
day of November, 1996.
INTERSYSTEMS, INC.
By: _________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board of
Directors
Attest:
____________________
Xxxxx X. Xxxx
Secretary
- 6-
PAGE 61 OF 63 PAGES
62
PURCHASE FORM
To: InterSystems, Inc.
, l99___
The undersigned hereby irrevocably elects to exercise the
attached Warrant Certificate, Certificate No. ISI-PPCOMP-_____, to the
extent of _________ Shares of Common Stock, $.0l par value per share
of INTERSYSTEMS, INC., and hereby makes payment of $________ in
payment of the aggregate exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name:___________________________________________________________
(Please typewrite or print in block letters)
Address: _______________________________________________________
_______________________________________________________
__________________________
By: ______________________
- 7-
PAGE 62 OF 63 PAGES
