Exhibit 4.6
THE SECURITY EVIDENCED BY THIS WARRANT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED
OR ASSIGNED, EXCEPT AS EXPLICITLY PROVIDED HEREIN.
Agreement and Warrant to Purchase 250,000 Common Shares
Spatialight, Inc.
(October 14, 2002)
This Agreement and Non-Transferrable Warrant (the "Warrant") certifies that, for
value received, Spayside Inc., the registered holder hereof (the
"Warrantholder"), or a permitted assign thereof, is entitled to purchase from
Spatialight, Inc., a New York corporation with its principal xxxxxx xx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 (the "Company") 250,000
shares of Common Stock of the Company (the "Shares") at or before 5:00 p.m.
Eastern Standard Time on October 14, 2004, at the purchase price per share of
$3.50 (the "Warrant Price"), subject to the following terms and conditions. The
number of Shares purchasable upon exercise of this Warrant and the Warrant Price
per Share shall be subject to adjustment from time to time as set forth herein.
1. Consideration for Warrant.
This Warrant has been issued in consideration of consulting services
provided to the Company by Warrantholder, the receipt of which is
hereby acknowledged.
2. Exercise.
(a) This Warrant may be exercised in whole or in part by presentation
of this Warrant with the Purchase Form as attached hereto duly
completed and executed, together with payment of the Warrant Price at
the principal office of the Company. Payment of the Warrant Price may
be made in cash, by wire transfer, by check or pursuant to the
provisions of Section 2(b) below. Upon surrender of the Warrant and
payment of such Warrant Price as aforesaid, the Company shall issue and
cause to be delivered with all reasonable dispatch to or upon the
written order of the Warrantholder and in such name or names as the
Warrantholder may designate a certificate or certificates for the
number of full Shares so purchased upon the exercise of the Warrant,
together with Fractional Warrants, as provided in Section 7 hereof, in
respect of any fractional Shares otherwise issuable upon such
surrender. 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 a holder of record of such Shares as of the date
of the surrender of the Warrant and the payment of the Warrant Price,
as aforesaid, notwithstanding that the certificates representing the
Shares shall not actually have been delivered or that the stock
transfer books of the Company shall then be closed. In the event that
the Warrant is exercised in respect of less than all of the Shares
specified herein at any time prior to the Termination Date, a new
Warrant evidencing the remaining Shares will be issued by the Company.
The Company shall pay any and all transfer taxes or similar charges,
which may become due upon exercise of the Warrant.
(b) Notwithstanding any provisions herein to the contrary, so long as
and to the extent that this Warrant may be exercised, in lieu of
exercising the Warrant for cash, the holder may elect to receive shares
of Common Stock equal to the value (as determined below) of this
Warrant (or the portion thereof being exercised). The holder may make
the election described in this Section 2(b) by surrendering this
Warrant, delivering a notice of election under this provision and
providing the other documents referenced in Section 2(a), following the
procedures set forth in such section. In such event the Company shall
issue (i) within thirty (30) days a new Warrant substantially in the
form hereof representing the number of Shares with respect to which
this Warrant shall not then have been exercised and (ii) a number of
Shares computed using the following formula:
Y (A-B)
X = -------
A
Where X = the number of Shares to be issued,
Y = the portion of the Warrant being exercised,
A = the fair market value of one share of Common Stock
(at the date of such calculation), and
B = the Warrant Price.
For purposes of the above calculation, fair market value of
one share of Common Stock shall be determined by the Board in good
faith; provided, however, that where there exists a public market for
the Company's Common Stock at the time of such exercise, fair market
value shall mean the average over the preceding ten trading days (or
such fewer number of days as such public market has existed) of the
average of the high and low prices on the over-the-counter market as
reported by the National Association of Securities Dealers Automated
Quotation ("Nasdaq") system, or if the Common Stock of the Company is
then traded on a national securities exchange or the Nasdaq Stock
Market, the average over the preceding ten (10) trading days (or such
fewer number of days as the Common Stock has been so traded) of the
closing sale prices on the principal national securities exchange or
the Nasdaq market on which it is so traded.
3. Reservation of Shares.
On or after the date of this Warrant, the Company will reserve from its
authorized and unissued shares of Common Stock a sufficient number of
shares to provide for the issuance of Shares upon the exercise of this
Warrant. Every transfer agent for the securities of the company
issuable upon the exercise of the Warrant will be irrevocably
authorized and directed at all times to reserve such number of
authorized Shares and other securities as shall be requisite for such
purpose. The Company will keep a copy of this Warrant on file with
every transfer agent for the securities of the Company issuable upon
the exercise of the Warrant. The Company will supply such transfer
agent with duly executed stock and other certificates for such purpose.
4. Further Obligations of Company.
4.1. The Company covenants and agrees that all Shares which may be
delivered upon exercise of this Warrant shall, upon delivery,
be fully paid and non-assessable, and be free from all taxes,
liens and charges with respect to the purchase thereof
hereunder, and without limiting the generality of the
foregoing, the Company covenants and agrees that it shall from
time to time take all such actions as may be necessary to
assure that the par value per share of the Common Stock is at
all times equal to or less than the then current Warrant Price
per share of the Shares issuable pursuant to this Warrant.
4.2. If the Warrantholder claims that this Warrant has been
mutilated, lost, destroyed or wrongfully taken, the Company
shall issue and deliver to the Warrantholder a replacement
Warrant provided that the requirements of Section 8-405 of the
New York Uniform Commercial Code has been met and, if this
Warrant has been mutilated, that it is surrendered to the
Company.
5. Registration.
The Warrant shall be registered on the books of the Company when issued
and shall be transferable only on the books of the Company maintained
at its principal office in Novato, California, or wherever its
principal executive offices may then be located, upon delivery thereof
duly endorsed by the Warrantholder or its duly authorized attorney or
representative, or accompanied by proper evidence of succession,
assignment or authority to transfer. This Warrant shall not be
transferable in whole or in part unless the Company pre-approves such
transfer in writing, provided, however, that the Company shall
pre-approve reasonable transfers made for estate planning purposes.
Upon any registration or approved transfer, the Company shall execute
and deliver a new Warrant or Warrants to the person or persons entitled
thereto. At the Company's expense, the Warrant holder will have
unlimited piggyback registration rights with respect to the Common
Stock issuable upon exercise of the warrant.
6. Adjustment of Warrant Price and Number of Shares.
6.1. General. The number of Shares purchasable upon the exercise of
the Warrant and the Warrant Price shall be subject to
adjustment from time to time upon the happening of certain
events, as follows:
6.1.1. In case the Company shall, with regard to its Common
Stock (or securities convertible into or exchangeable
for Common Stock) (A) pay a dividend in Common Stock
or make a distribution in Common Stock, (B) subdivide
its outstanding shares of Common Stock into a greater
number of shares, (C) combine its outstanding shares
of Common Stock into a smaller number of shares, or
(D) issue by reclassification of its Common Stock or
other securities of the Company, the number of Shares
purchasable upon exercise of the Warrant immediately
prior thereto shall be adjusted so that the
Warrantholder shall be entitled to receive the kind
and number of
Shares or other securities of the Company which it
would have owned or would have been entitled to
receive after the happening of any of the events
described above, had the Warrant been exercised
immediately prior to the happening of such event or
any record date with respect thereto. Any adjustment
made pursuant to this subsection shall become
effective immediately after the effective date of
such event retroactive to the record date, if any,
for such event.
6.1.2. No adjustment in the number of Shares purchasable
hereunder shall be required unless such adjustment
would require an increase or decrease of at least one
percent in the aggregate number of Shares then
purchasable upon the exercise of the Warrant;
provided however, that any adjustments which by
reason of this Section 6.1.2 are not required to be
made immediately shall be carried forward and taken
into account in any subsequent adjustment.
6.1.3. Whenever the number of Shares purchasable upon the
exercise of the Warrant is adjusted as herein
provided, the Warrant Price payable upon exercise of
the Warrant shall be adjusted by multiplying such
Warrant Price immediately prior to such adjustment by
a fraction, of which the numerator shall be the
number of Shares purchasable upon the exercise of the
Warrant immediately prior to such adjustment, and of
which the denominator shall be the number of shares
so purchasable immediately thereafter.
6.1.4. Whenever the number of Shares purchasable upon the
exercise of this Warrant or the Warrant Price is
adjusted as herein provided, the Company shall cause
to be promptly mailed to the Warrantholder in
accordance with the provisions of Section 9 hereof,
notice of such adjustment or adjustments and a
certificate of a firm of independent public
accountants selected by the Board of Directors of the
Company (who may be the regular accountants employed
by the Company) setting forth the number of Shares
purchasable upon the exercise of the Warrant and the
Warrant Price after such adjustment, a brief
statement of the facts requiring such adjustment, and
the computation by which such adjustment was made.
6.1.5. For the purpose of this Section 6.1, the term "Common
Stock" shall mean (A) the class of shares designated
as the Common Stock of the Company at the date of
this Warrant, or (B) any other class of shares
resulting from successive changes or
reclassifications of such Common Stock including
changes in a par value, or from par value to no par
value, or from no par value to par value. In the
event that at any time, as a result of an adjustment
made pursuant to this Section 6, the Warrantholder
shall become entitled to purchase any shares of the
Company other than shares of Common Stock, thereafter
the number of such other shares so purchasable upon
exercise of the Warrant and the Warrant Price of such
shares shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the
Shares contained in this Section 6.
6.2. No Adjustment of Dividends. Except as provided in Section 6.1,
no adjustment in respect of dividends shall be made during the
term of the Warrant or upon the exercise of the Warrant.
6.3. Preservation of Purchase Rights upon Reorganization,
Reclassification, Consolidation, Merger, etc. In case of any
capital reorganization or reclassification of the Common Stock
of the Company, or in case of any consolidation of the Company
with or merger of the Company into another corporation or in
case of any sale or conveyance to another person of the
property, assets or business of the Company as an entirety or
substantially as an entirety, the Company or such successor or
purchaser, as the case may be, shall execute with the
Warrantholder an agreement that the Warrantholder shall have
the right thereafter upon payment of the Warrant Price in
effect immediately prior to such action to purchase upon
exercise of the Warrant the kind and amount of shares and
other securities and property which it would have owned or
have been entitled to receive after the happening of such
reorganization or reclassification, consolidation, merger,
sale or conveyance had the Warrant been exercised immediately
prior to such action. In the event of a merger described in
Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended, in which the Company is the surviving corporation,
the right to purchase Shares under the Warrant shall terminate
on the date of such merger and thereupon the Warrant shall
become null and void but only if the controlling corporation
shall agree to substitute for the Warrant its warrant which
entitles the holder thereof to purchase upon its exercise the
kind and amount of shares and other securities and property
which it would have owned or had been entitled to receive has
the Warrant been exercised immediately prior to such merger.
The adjustments required by this Section 6.3 shall be effected
in a manner which shall be as nearly equivalent as may be
practicable to the adjustments provided for elsewhere in this
Section 6. The provisions of this Section 6.3 shall similarly
apply to successive consolidations, mergers, sales or
conveyances.
6.4. Statement on Warrants; Legends. Irrespective of any
adjustments in the Warrant Price or the number or kind of
Shares purchasable upon the exercise of the Warrant, the
Warrant certificate or certificates theretofore or thereafter
issued may continue to express the same price and number and
kind of Shares as are stated in this initially issued Warrant.
The Company may at any time place legends referencing any
applicable securities law restrictions on certificates
representing the Shares. Holder shall, at the request of the
Company, promptly present to the Company any and all
certificates representing the Shares in order to carry out the
provisions of this Section.
7. Fractional Shares.
The Company shall not be required to issue fractional Shares on the
exercise of the Warrant. If any fraction of a Share would, except for
the provisions of this Section 7, be issuable on the exercise of the
Warrant (or specified portion thereof), the Company shall issue to the
Warrantholder a fractional Warrant entitling Warrantholder, upon
surrender with other fractional Warrants aggregating one or more full
Shares, to purchase such full Shares. If fractional Warrants do not
aggregate a full Share, their value (over and above their exercise
price) shall be paid in full in cash upon exercise to the exercising
Warrantholder.
8. No Rights as Shareholder; Notices to Warrantholder.
Nothing contained in this Warrant shall be construed as conferring upon
the Warrantholder or its transferees any rights as shareholder of the
Company, including the right to vote, receive dividends, or consent as
a shareholder in respect of any meeting of shareholders for the
election of directors of the Company or any other matter. However, the
Company shall be required to give notice in writing to the
Warrantholder of any meeting of shareholders of the Company or any
proposed consent of the shareholders as provided in Section 9 hereof at
least twenty (20) days prior to the date fixed as a record date or the
date of closing the transfer books for the determination of the
shareholders entitled to any relevant dividend, distribution,
subscription rights or other rights or for the determination of
shareholders entitled to vote at any such meeting or as to which any
consent is requested. Such notice shall specify such record date or the
date of closing the transfer books, as the case may be.
9. Notices.
Any notice pursuant to this Warrant by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly
given if delivered by hand or if mailed by certified mail, return
receipt requested, postage prepaid, addressed as follows:
9.1. If to the Warrantholder -- addressed to:
Spayside Inc.
C/X Xxxxxxxxx & Soniker
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
9.2. If to the Company -- addressed to:
Spatialight, Inc.
Xxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
or to such other address as any such party may designate by notice to the other
party. Notices shall be deemed given at the time they are delivered personally
or three days after they are mailed in the manner set forth above.
10. Successors.
All the covenants and provisions of this Warrant by or for the benefit
of the Company or the Warrantholder shall bind and inure to the benefit
of their respective successors and assigns hereunder.
11. Merger or Consolidation of the Company.
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of its property to another
person, unless the provisions of Section 6.3 are complied with.
12. Applicable Law.
This Warrant shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in
accordance with the laws of said State applicable to contracts made and
to be performed entirely within such State, without regard to
principles of conflicts of law.
13. Counterparts.
This Warrant may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and
the same instrument.
14. Further Assurances.
From time to time after the Closing, the Company shall promptly execute
and deliver to each Warrantholder such further agreements and
assurances as the Warrantholder may reasonably request in order to vest
and confirm ownership of the Shares and the Warrants in the
Warrantholder and to effectuate the purposes, terms and conditions of
this Agreement. Each party hereto may evidence its execution and
delivery hereof by facsimile delivery of an original signature page at
or prior to closing, which facsimile shall be deemed to be an original
for all purposes.
15. Headings.
The headings in this Warrant are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Warrant.
16. Indemnification.
The Company shall indemnify and hold each Consultant harmless from and
against any loss, damage or expense which may result from (i) the
inaccuracy or falsity of any representation or warranty of Company
hereunder, or (ii) the failure of Company to fulfill its covenants
hereunder.
17. Warrantholder Representation.
The Warrantholder represents that (a) this Warrant is acquired for the
Warrantholder's own account and not with a view to or for sale in
connection with any distribution of the Warrant and (b) the
Warrantholder is an "accredited investor" as defined in Regulation D
promulgated under the Act.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officers and the corporate seal hereunto fixed.
(corporate seal) SPATIALIGHT, INC.
Attest:
By:______________________________
---------------------------- Xxxxxx X. Xxxxx
Acting Chief Executive Officer
Holder represents that Holder is familiar with the terms and provisions of this
Warrant Agreement and hereby accepts the Warrant subject to all of the terms and
provisions thereof.
Date: By:
------------------------ ------------------------------
Xxxxx Xxxxx
Spayside Inc.
Attachment I
PURCHASE FORM
TO. Spatialight, Inc.
1. The undersigned hereby elects to purchase ________________ shares of the
Common Stock of Spatialight, Inc., pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below.
----------------------------------
(Name)
----------------------------------
(Address)
----------------------------------
(Name of Warrant Holder)
----------------------------------
(Date)
By:_______________________________
Title:_____________________________
(Name of purchaser, and title and
signature of authorized person)
Attachment 2
INVESTMENT REPRESENTATION STATEMENT
Shares of the Common Stock of
Spatialight, Inc.
In connection with the purchase of the above-listed securities, the undersigned
hereby represents to Spatialight, Inc. (the "Company") as follows
(a) The shares of Common Stock and other securities, if any, to be received upon
the exercise of the Warrant (the "Securities") will be acquired for investment
for its own account, not as a nominee or agent, and not with a view to the sale
or distribution of any part thereof, and the undersigned has no present
intention of selling, granting participation in or otherwise distributing the
same, but subject, nevertheless, to any requirement of law that the disposition
of its property shall at all times be within its control. By executing this
Statement, the undersigned further represents that it does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer, or grant participations to such person or to any third person, with
respect to any Securities issuable upon exercise of this warrant.
(b) The undersigned understands that the Securities issuable upon exercise of
the Warrant at the time of issuance may not be registered under the Securities
Act of 1933, as amended (the "Act"), and applicable state securities laws, on
the ground that the issuance of such securities is exempt pursuant to Section
4(2) of the Act and state law exemptions relating to offers and sales not by
means of a public offering, and that the Company's reliance on such exemptions
is predicated on the undersigned's representations set forth herein.
(c) The undersigned agrees that in no event will it make a disposition of any
Securities acquired upon the exercise of the Warrant unless and until it shall
have furnished the Company with an opinion of counsel satisfactory to the
Company and Company's counsel to the effect that (A) appropriate action
necessary for compliance with the Act and any applicable state securities laws
has been taken or an exemption from the registration requirements of the Act and
such laws is available, and (B) that the proposed transfer will not violate any
of said laws
(d) The undersigned acknowledges that an investment in the Company is highly
speculative and represents that it is able to fend for itself in the
transactions contemplated by this Statement, has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of its investments, and has the ability to bear the economic risks
(including the risk of a total loss) of its investment. The undersigned
represents that it has had the opportunity to ask questions of the Company
concerning the Company's business and assets and to obtain any additional
information which it considered necessary to verify the accuracy of or to
amplify the Company's disclosures, and has had all questions which have been
asked by it satisfactorily answered by the Company.
(e) The undersigned acknowledges that the Securities issuable upon exercise of
the Warrant must be held indefinitely unless subsequently registered under the
Act or an exemption from such registration is available. The undersigned is
aware of the provisions of Rule 144 promulgated under the Act which permit
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about the Company, the resale occurring not less than one year after
a party has purchased and paid for the security to be sold, the sale being
through a "broker's transaction" or in transactions directly with "market
makers" (as provided by Rule 144(f)) and the number of shares being sold during
any three-month period not exceeding specified limitations.
Dated: ___________________
-------------------------
(Signature)
-------------------------
(Typed or Printed Name)
-------------------------
(Title)
Attachment 3
NOTICE OF CASHLESS EXERCISE
TO. Spatialight, Inc.
1. The undersigned hereby elects to acquire ________________ shares of the
Common Stock of Spatialight, Inc., pursuant to the terms of the attached
Warrant, by conversion of ___________ percent (___%) of the Warrant.
2. Please issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below.
----------------------------------
(Name)
----------------------------------
(Address)
----------------------------------
(Name of Warrant Holder)
----------------------------------
(Date)
By:_______________________________
Title:_____________________________
(Name of purchaser, and title and
signature of authorized person)
