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EXHIBIT 4.5
NEITHER THESE SECURITIES NOR THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN EXEMPTION THEREFROM. ANY
SUCH TRANSFER MAY ALSO BE SUBJECT TO APPLICABLE STATE SECURITIES LAWS.
CROSS MEDIA MARKETING CORPORATION
Warrant for the Purchase of Shares of
Common Stock
[INSERT NUMBER OF SHARES] Shares
FOR VALUE RECEIVED, CROSS MEDIA MARKETING CORPORATION, a Delaware
corporation (the "COMPANY"), hereby certifies that [INSERT NAME OF HOLDER] or
registered assigns, (the "HOLDER") is entitled to purchase from the Company,
subject to the provisions of this Warrant (the "WARRANT"), at any time on or
after [INSERT INITIAL EXERCISE DATE] (the "INITIAL EXERCISE DATE"), and prior to
5:00 P.M., New York City time, on the ------ anniversary of the Initial Exercise
Date (the "TERMINATION DATE"), ______________ fully paid and non-assessable
shares of the Common Stock, $.001 par value, of the Company (the "COMMON
STOCK"), at an initial exercise price of $____________ per share of Common Stock
(the "INITIAL PER SHARE EXERCISE PRICE"). The number of shares of Common Stock
to be received upon exercise of this Warrant and the price to be paid for each
share of Common Stock are subject to possible adjustment from time to time as
hereinafter set forth. The shares of Common Stock or other securities or
property deliverable upon such exercise as adjusted from time to time are
hereinafter sometimes referred to as the "WARRANT SHARES." The exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "PER SHARE EXERCISE PRICE." The Per
Share Exercise Price is subject to adjustment as hereinafter provided.
1. EXERCISE OF WARRANT.
(a) This Warrant may be exercised in whole or in part, at any time, by
its holder commencing on the Initial Exercise Date and prior to the Termination
Date by presentation and surrender of this Warrant, together with the duly
executed subscription form and representations and warranties attached at the
end hereof, at the address set forth in Subsection 8(a) hereof, together, except
as provided for under Subsection 1(b), with payment, by certified or official
bank check or wire transfer payable to the order of the Company, of the product
of (x) the Per Share Exercise Price multiplied by (y) the number of shares of
Common
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Stock subject to (1) this Warrant or (2) the proportionate part thereof if
exercised in part (such product, the "AGGREGATE EXERCISE PRICE.")
(b) At the election of the holder, a holder may exercise all or any
part of this Warrant on a "cashless" basis by presentation and surrender of this
Warrant, together with the duly executed "cashless exercise" form (stating the
maximum number (the "Maximum Number") of shares of Common Stock the holder
desires to purchase in consideration of cancellation of Warrants in payment for
such exercise) and representations and warranties attached at the end hereof.
The number of shares of Common Stock a holder shall receive upon such exercise
pursuant to this subsection 1(b) shall be equal to the difference between the
Maximum Number and the quotient that is obtained when the product of the Maximum
Number and the Per Share Exercise Price is divided by the then Market Price (as
defined below) per share.
For the purposes of this subsection 1(b), the "Market Price" shall mean
the average Closing Bid Price for five (5) consecutive trading days ending with
the trading day prior to the date upon which the holder provides notice under
this subsection 1(b) (with appropriate adjustments for subdivisions or
combinations of shares effected during such period), provided that if the prices
referred to in the definition of Closing Bid Price cannot be determined for such
period, "Market Price" shall mean the fair value of the Common Stock, as
determined in good faith by the Company's Board of Directors. "Closing Bid
Price" for each trading day shall be the reported per share closing bid price of
the Common Stock, regular way, on the relevant Stock Market on such trading day,
or, if there were no transactions on such trading day, the average of the
reported closing bid and asked prices, regular way, of such security on the
relevant Stock Market on such trading day. "Stock Market" shall mean the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if the Common Stock is not listed or admitted to trading
on any national securities exchange, shall mean the Nasdaq National Market
System or the Nasdaq SmallCap Market (collectively, "Nasdaq") or, if the Common
Stock is not quoted on Nasdaq, shall mean the OTC Bulletin Board or, if the
Common Stock is not quoted on the OTC Bulletin Board, shall mean the
over-the-counter market as furnished by any NASD member firm selected from time
to time by the Company for that purpose.
(c) If this Warrant is exercised in part only, the Company shall, upon
presentation of this Warrant upon such exercise, execute and deliver (along with
the certificate for the Warrant Shares purchased) a new Warrant evidencing the
rights of the Holder hereof to purchase the balance of the Warrant Shares
purchasable hereunder (which, in the event of a "cashless exercise " pursuant to
Section 1(b), shall equal the difference obtained by subtracting the aggregate
number of Warrant Shares issuable upon exercise hereof and the Maximum Number of
Warrant Shares) upon the same terms and conditions as herein set forth. Upon
proper exercise of this Warrant, the Company promptly shall deliver certificates
for the Warrant Shares to the Holder duly legended as authorized by the
subscription form. No fractional shares or scrip representing fractional shares
shall be issued upon exercise of this Warrant; provided that the Company shall
pay to the holder of the Warrant cash in lieu of such fractional shares.
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2. RESERVATION OF WARRANT SHARES; FULLY PAID SHARES; TAXES. The Company
hereby represents that it has reserved, and until expiration of this Warrant
agrees that it shall reserve, for issuance or delivery upon exercise of this
Warrant, such number of shares of the Common Stock as shall be required for
issuance and/or delivery upon exercise of this Warrant in full, and agrees that
all Warrant Shares so issued and/or delivered will be validly issued, fully paid
and non-assessable, and further agrees to pay all taxes and charges (other than
income taxes) that may be imposed upon such issuance and/or delivery. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of Common Stock (or
other securities or assets) in a name other than that in which this Warrant is
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of such tax or
has established, to the satisfaction of the Company, that such tax has been paid
or need not be paid.
3. PROTECTION AGAINST DILUTION.
(a) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its Common Stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares or (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
(each of (i) through (iii) an "Action"), then the Per Share Exercise Price shall
be adjusted to be equal to the product of (i) a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately prior to such
Action and the denominator of which is the number of shares of Common Stock
outstanding immediately following such Action, multiplied by (ii) the Per Share
Exercise Price immediately prior to such Action. An adjustment made pursuant to
this Subsection 3(a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification.
(b) Whenever the Per Share Exercise Price is adjusted pursuant to
subsection 3(a), the number of Warrant Shares issuable upon payment of the
Aggregate Exercise Price shall be adjusted to be equal to the product of the
number of Warrant Shares issuable upon payment of the Aggregate Exercise Price
immediately prior to such adjustment multiplied by a fraction, the numerator of
which shall be the Aggregate Exercise Price payable immediately prior to such
adjustment and the denominator which shall be the Aggregate Exercise Price
payable immediately after such adjustment.
(c) In the event of any capital reorganization or reclassification, or
any consolidation or merger to which the Company is a party other than a merger
or consolidation in which the Company is the continuing corporation, or in case
of any sale or conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
of this Warrant shall have the right thereafter to receive on the exercise of
this Warrant the kind and amount of securities, cash or other property which the
Holder would have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation,
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merger, statutory exchange, sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and in any such case, if necessary, appropriate adjustment shall be made in the
application of the provisions set forth in this Section 3 with respect to the
rights and interests thereafter of the Holder of this Warrant to the end that
the provisions set forth in this Section 3 shall thereafter correspondingly be
made applicable, as nearly as may reasonably be, in relation to any shares of
stock or other securities or property thereafter deliverable on the exercise of
this Warrant. The above provisions of this Subsection 3(c) shall similarly apply
to successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The issuer of any shares of stock or
other securities or property thereafter deliverable on the exercise of this
Warrant shall be responsible for all of the agreements and obligations of the
Company hereunder. A sale of all or substantially all of the assets of the
Company for a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
(d) No adjustment in the Per Share Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least $0.05
per share of Common Stock; provided, however, that any adjustments which by
reason of this Subsection 3(d) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 3 shall be made to the nearest cent or to the nearest 1/100th
of a share, as the case may be. Anything in this Section 3 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Per Share Exercise Price, in addition to those required by this Section 3, as it
in its discretion shall deem to be advisable in order that any stock dividend,
subdivision of shares or distribution of rights to purchase stock or securities
convertible or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
(e) Whenever the Per Share Exercise Price is adjusted as provided in
this Section 3 and upon any modification of the rights of a Holder of Warrants
in accordance with this Section 3, the Chief Financial Officer, or equivalent
officer, of the Company shall prepare a certificate setting forth the Per Share
Exercise Price and the number of Warrant Shares after such adjustment or the
effect of such modification, a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same and cause copies
of such certificate to be mailed to the Holder.
(f) If, as a result of an adjustment made pursuant to this Section 3,
the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder of any Warrant promptly after such adjustment) shall
determine the allocation of the adjusted Per Share Exercise Price between or
among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
(g) Notwithstanding anything else contained herein to the contrary, the
Per Share Exercise Price shall not be decreased to be equal to an amount less
than the authorized par value of the Company as in effect at the time of the
exercise of this Warrant under Section 1 hereof.
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4. LIMITED TRANSFERABILITY. This Warrant may not be sold, transferred,
assigned or hypothecated by the Holder except in compliance with the provisions
of the Act and the applicable state securities "blue sky" laws, and is so
transferable only upon the books of the Company which it shall cause to be
maintained for such purpose. The Company may treat the registered Holder of this
Warrant as he or it appears on the Company's books at any time 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. All Warrants issued upon the transfer or assignment of this Warrant
will be dated the same date as this Warrant, and all rights of the holder
thereof shall be identical to those of the Holder.
5. LOSS, ETC., OF WARRANT. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, of
indemnity reasonably satisfactory to the Company and, if requested by the
Company, of a bond reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
6. INVESTMENT INTENT.
(a) The Holder represents, by accepting this Warrant, that he
understands that this Warrant and any securities obtainable upon exercise of
this Warrant have not been registered for sale under Federal or state securities
laws and are being offered and sold to the Holder pursuant to one or more
exemptions from the registration requirements of such securities laws. The
Holder is (i)an "accredited investor" within the meaning of Regulation D under
the Securities Act of 1933, as amended (the "Act"), or (ii) has, either alone or
with such Xxxxxx's purchaser representative as that term is defined in Rule 501
of the Act, such knowledge and experience in financial and business matters that
such Holder is capable of evaluating the merits and risks of an investment in
this Warrant. In the absence of an effective registration of such securities or
an exemption therefrom, any certificates for such securities shall bear the
legend set forth on the first page hereof. The Holder understands that he must
bear the economic risk of his investment in this Warrant and any securities
obtainable upon exercise of this Warrant for an indefinite period of time, as
this Warrant and such securities have not been registered under Federal or state
securities laws and therefore cannot be sold unless subsequently registered
under such laws, unless as exemption from such registration is available.
(b) The Holder, by his acceptance of this Warrant, represents to the
Company that he is acquiring this Warrant and will acquire any securities
obtainable upon exercise of this Warrant for his own account for investment and
not with a view to, or for sale in connection with, any distribution thereof in
violation of the Act. The Holder agrees that this Warrant and any such
securities will not be sold or otherwise transferred unless (i) a registration
statement with respect to such transfer is effective under the Act and any
applicable state securities laws or (ii) such sale or transfer is made pursuant
to one or more exemptions from the Act.
7. STATUS OF HOLDER. This Warrant does not confer upon the Holder any
right to vote or to consent to or receive notice as a stockholder of the
Company, as such, in
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respect of any matters whatsoever, or any other rights or liabilities as a
stockholder, prior to the exercise hereof.
8. NOTICES. No notice or other communication under this Warrant shall
be effective unless, but any notice or other communication shall be effective
and shall be deemed to have been given if, the same is in writing and is mailed
by first-class mail, postage prepaid, addressed to:
(a) the Company at 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000
or such other address as the Company has designated in writing to the Holder; or
(b) the Holder at [Insert Address].
or such other address as the Holder has designated in writing to the Company.
9. HEADINGS. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
10. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
principles of conflicts of law thereof.
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IN WITNESS WHEREOF, Xxxxxx Xxxxxxx acting for and on behalf of the
Company, has executed this Warrant and causing such Warrant to be attested by
its Secretary or Assistant Secretary as of [Insert Date].
CROSS MEDIA MARKETING CORPORATION
By:---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
ATTEST:
--------------------------------
Secretary or Assistant Secretary
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SUBSCRIPTION
The undersigned, ____________________________, pursuant to the
provisions of the foregoing Warrant, hereby elects to exercise the within
Warrant to the extent of purchasing _____________________ shares of Common Stock
of Symposium Corporation thereunder and hereby makes payment of $_______________
by certified or official bank check in payment of the exercise price therefor.
Dated:_______________ Signature:_____________________________
Address:_______________________________
CASHLESS EXERCISE
The undersigned, ____________________________, pursuant to subsection 1(b) of
the foregoing Warrant, hereby elects to exchange the foregoing Warrant for a
Maximum Number of ________________ shares of Common Stock. The actual number of
shares the undersigned shall receive shall be reduced pursuant to the subsection
1(b) of the Warrant.
Dated:_______________ Signature:_____________________________
Address:_______________________________
REPRESENTATIONS AND WARRANTIES
The undersigned Holder hereby represents and warrants to the Company as
follows:
a. The Holder is acquiring the Warrant Shares for its own account, for
investment purposes only and not with a view towards or in connection with
public sale or distribution thereof. The Warrant Shares may not be offered for
sale, sold or otherwise transferred except pursuant to an effective registration
statement under the Act and in compliance with the applicable securities laws of
any state or other jurisdiction, or pursuant to an opinion of counsel
satisfactory to the Company that such registration is not required and such
compliance has been obtained. The Company may affix an appropriate legend to any
certificate(s) representing the Warrant Shares to reflect the foregoing.
b. The Holder understands that the Warrant Shares are being offered and
sold by the Company in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Company is relying upon the accuracy of, and the
compliance by the Holder with its representations and warranties set forth in
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this letter, in determining the availability of such exemption and the
eligibility of the Holder to acquire the Warrant Shares.
c. The Holder acknowledges that it has had access to the reports and
other documents filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, and that it has
been given an opportunity to ask questions of, and to receive answers from, the
Company's management personnel concerning the Company's business and the Warrant
Shares. The Holder has been provided access to all materials relating to the
business, financial position and results of operations of the Company, and all
other materials requested by the Holder by enable it to make an informed
investment decision with respect to the acquisition of the Warrant Shares. The
Holder has such knowledge and experience in financial and business matters that
he is capable of evaluating the merits and risks of an investment in the
Company's securities.
d. The Holder is, and upon exercise of the Warrant will be, (i) an
"accredited investor" within the meaning of Rule 501 of Regulation D under the
Securities Act, (ii) experienced in making investments of the kind represented
by the Warrant Shares, and (iii) capable, by reason of its business and
financial experience, of evaluating the relative merits and risks of an
investment in the Warrant Shares.
e. The Holder understands that an investment in the Warrants involves a
high degree of risk, and has the financial ability to bear the economic risk of
this investment in the Warrants, including a complete loss of such investment.
The Holder has adequate means for providing for its current financial
requirements and has no need for liquidity with respect to this investment.
Date:_______________ Signature:____________________
Address:______________________
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ASSIGNMENT
FOR VALUE RECEIVED _______________________________________ hereby
sells, assigns and transfers unto _____________________________________ the
foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _____________________________, attorney, to transfer said
Warrant on the books of Symposium Corporation.
Dated:_______________ Signature:_____________________________
Address:______________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby assigns and
transfers unto _________________________ the right to purchase __________ shares
of the Common Stock, par value $.001, of Symposium Corporation covered by the
foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced thereby, and does irrevocably constitute and appoint
__________________________, attorney, to transfer that part of said Warrant on
the books of Symposium Corporation.
Dated:_______________ Signature:___________________________
Address:_____________________________
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