Exibit 4.4.9
WARRANT
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE REPRESENTATIONS AND AGREEMENTS MADE BY THE RECORD HOLDER HEREOF SET FORTH IN
THIS WARRANT.
TTR INC.
COMMON STOCK PURCHASE WARRANT
in favor of
Plans Inc
June 11, 1998
No. 25,000 Common Shares
FOR VALUE RECEIVED, TTR INC., a Delaware company (the "Company"),hereby grants
to Plans Inc or its registered assignees (the "Holder"), the right to purchase,
subject to the terms and conditions hereof, 25,000 fully paid and non-assessable
shares of Common Stock of the Company, par value $0.001 ("Shares"). The purchase
price for each Share purchased pursuant to this Warrant shall be equal $1.50 per
share. Hereinafter, (i) such Shares, together with any other equity security
which may be issued by the Company in substitution therefor, are referred to as
the "Shares"; (ii) the shares purchasable hereunder are referred to as the
"Warrant Shares"; (iii) and the price payable hereunder for each of the Warrant
Shares, as adjusted in the manner set forth hereinafter, is referred to as the
"Per Share Warrant Price"; and (iv) this warrant and all warrants hereafter
issued in exchange or substitution for this Warrant are referred to as the
"Warrants". The Per Share Warrant Price and the number of Warrant Shares are
subject to adjustment as hereinafter provided.
1. Warrant Period; Exercise of Warrant
1.1 This Warrant may be exercised in whole or in part at any time
commencing 9:00 a.m., New York City time, on any business day on or after the
date on which the Company's registration statement that is filed under the
Securities Act of 1933, as amended, in connection with the Public Offering has
been declared effective and continuing up to the fourth anniversary thereof (the
"Warrant Period"), by the surrender of this Warrant (with a duly executed
exercise form in the form attached at the end hereof as Exhibit A) at the
principal office of the Company, together with the proper payment of the Per
Share Warrant Price times the number of Warrant Shares.
1.2 Upon such surrender of this Warrant, the Company will: a) issue a
certificate or certificates in the name of Holder for the Warrant Shares to
which the Holder shall be entitled and (b) deliver the other securities and
properties receivable upon the exercise of this Warrant, pursuant to the
provisions of this Warrant.
1.3 Any stamp tax attributable to the issuance of the Shares shall be
borne solely by Holder.
2. Representations and Warranties
The Holder (i) represents, warrants, covenants and agrees that the Warrant
and the underlying Warrant Shares are being acquired by the Holder for the
Holder's own account, for investment purposes only, and not with a view to or
for the sale in connection with any distribution thereof or with any present
intention of selling or distributing all or any part of the Warrant or the
Warrant Shares; (ii) understands (x) that if it should thereafter decide to
dispose of such Warrant or Warrant Shares (which it does not contemplate at such
time) it may do so only in compliance with the Securities Act of 1933, as
amended (the "Securities Act"), (y) this Warrant and the Warrant Shares are not
registered under the Securities Act; and (iii) acknowledges that, as of the date
hereof, it has been given a full opportunity to ask questions of and to receive
answers from the Company concerning this Warrant and the Warrant Shares and the
business of the Company and to obtain such information as it desired in order to
evaluate the acquisition of this Warrant and the Warrant Shares, and all
questions have been answered to its full satisfaction.
3. Reservation of Shares
The Company covenants that at all times during the Warrant Period it shall
have authorized and in reserve, and will keep available solely for issuance or
delivery upon exercise of the Warrant, the Warrant Shares and other securities
and properties as from time to time shall be receivable upon the exercise of
this Warrant, free and clear of preemptive rights and restrictions on sale or
transfer except as otherwise set forth herein or in the By-Laws.
4. Adjustment
4.1 In case of any consolidation or merger of the Company with or into
another corporation (other than a merger or consolidation in which the Company
is the surviving or the continuing corporation) or in the case of any sale or
conveyance to another corporation or other entity of the property, assets or
business of the Company as an entirety or substantially as an entirety, in any
such case, the Company or such successor or purchasing corporation or entity, as
the case may be, shall (i) execute with the Holder an agreement that the Holder
shall have the right thereafter to receive upon the exercise of the Warrant the
kind and amount of shares and/or other securities or other property which he
would have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had the Warrant been exercised
immediately prior to such action, (ii) make effective provision in its
certificate of its incorporation or otherwise, if necessary, in order to effect
such agreement, and
(iii) set aside or reserve for the benefit of the Holder, the stock, securities,
property and cash to which the Holder would be entitled to upon exercise of this
Warrant.
4.2 In case of any reclassification or change of the Warrant Shares
issuable upon exercise of this Warrant (other than a change in par value or from
no par value to a specific par value, or as a result of a subdivision or
combination, including any change in the shares into two or more classes or
series of shares), or in the case of any consolidation or merger of another
corporation into the Company in which the Company is the continuing corporation
and in which there is a reclassification or change (including a change in the
right to receive cash or other property) of the Shares (other than a change in
the par value, or from no par value to a specific par value or, as a result of a
subdivision or combination, including any change in the shares into two or more
classes or series of shares), Holder shall have the right thereafter to receive
upon exercise of this Warrant solely the kind and amount of shares of stock and
other securities, property, cash or combination thereof receivable upon such
reclassification, change, consolidation or merger by a holder of the number of
Shares for which this Warrant might have been exercised immediately prior to
such reclassification, change, consolidation or merger.
4.3 The above provisions of this paragraph 5 shall similarly apply to
successive reclassifications and changes of Shares and to successive
consolidations, sales, leases or conveyances.
5. Limited Transfer
(a) This Warrant may not be sold, transferred, assigned or hypothecated by
the Holder and is so transferable only on the books of the Company which the
Company shall cause to be maintained for such purpose. The Company may treat the
registered holder of record as the Holder for all purposes. The Company shall
permit any holder of a Warrant or his duly authorized attorney, upon written
request during ordinary business hours, to inspect and copy or make extracts
from its books showing the registered holders of Warrants.
(b) In no event shall the Company be obligated to effect any transfer of
Warrants or Warrant Shares unless a registration statement is in effect with
respect thereto under applicable state and Federal securities laws or unless the
Company has received an opinion in substance reasonably satisfactory to it from
counsel that such registration is not required. Unless registered, the Warrant
Shares issued upon exercise of the Warrants shall be subject to a stop transfer
order and the certificate or certificates evidencing such Warrant Shares shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, PURSUANT TO A REGISTRATION STATEMENT.
ACCORDINGLY, SUCH SHARES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO A
REGISTRATION STATEMENT UNDER SUCH ACT, OR AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT."
6. Loss, etc. of Warrant
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute and deliver
to the Holder a new Warrant of like date, tenor and denomination.
7. Warrant Holder Not Shareholder
Except as otherwise provided herein, this Warrant does not confer upon the
Holder any right to vote or to consent or to receive notice as a shareholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a shareholder, prior to the exercise hereof.
8. Headings
The headings of this Warrant have been inserted as a matter of convenience and
shall not affect the construction hereof.
9. Notices.
Unless otherwise provided, any notice required or permitted under this Warrant
shall be given in writing and shall be deemed effectively given upon personal
delivery to the party to be notified or seven (7) days after deposit with a
National Post Office, for dispatch by registered or certified mail, postage
prepaid and addressed to the Holder at the address set forth in the Company's
books and to the Company at the address of its principal offices set forth
above. With respect to Holders located outside Israel, such notice shall be
deemed effectively given upon personal delivery to the party to be notified, 15
business days after deposit with a National Post Office for dispatch by
registered or certified airmail, or when given by telecopier or other form of
rapid written communication, provided that confirming copies are sent by such
airmail.
10. Governing Law
This Warrant shall be governed by and construed and enforced in accordance with
the laws of the State of New York applicable to contracts made and performed
within such State.
IN WITNESS WHEREOF, the Company has caused this Common Stock Purchase Warrant to
be executed as of the date first written above.
TTR INC.
By: /s/ XXXX XXXXXXX
------------------------
XXXX XXXXXXX
/title President
EXHIBIT A
WARRANT EXERCISE FORM
_________________, 199_
TO:TTR Inc.
RE: Exercise of Warrant
The undersigned hereby irrevocably elects to exercise the attached Warrant to
the extent of ___________________ Common Shares of TTR Inc. at the purchase
price set forth in the attached Warrant. Payment to the Company of the total
purchase price for such shares has been made simultaneously with the delivery of
this exercise of warrant.
By: ___________________
