EXHIBIT 4.11
EXHIBIT B
THIS WARRANT AND ANY SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), NOR UNDER ANY
STATE SECURITIES LAW AND SUCH SECURITIES MAY NOT BE PLEDGED, SOLD, ASSIGNED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT AS PERMITTED BY THE PROVISIONS OF
REGULATION S UNDER THE ACT OR PURSUANT TO REGISTRATION UNDER THE ACT OR AN
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS INVOLVING THESE
SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT.
THE TRANSFER OF THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF
ARE RESTRICTED AS DESCRIBED HEREIN.
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE AND OTHER DISPOSITION OF THIS WARRANT AND
THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT ARE RESTRICTED BY THE
INVESTOR'S RIGHTS AGREEMENT (THE "INVESTOR'S RIGHTS AGREEMENT"), DATED JANUARY
29, 2001. A COPY OF THE INVESTOR'S RIGHTS AGREEMENT IS ON FILE WITH THE
CORPORATE SECRETARY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY. A COPY
THEREOF MAY BE OBTAINED AT NO COST UPON WRITTEN REQUEST THEREFOR MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE CORPORATE SECRETARY AT THE PRINCIPAL
OFFICES OF THE COMPANY.
XX0.XXX INC.
Warrant to purchase _____ shares of Common Stock,
par value $0.01 per share
No.W-__ ________, 200__
THIS CERTIFIES that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Abanat Limited, a British Virgin
Islands corporation (the "Holder"), is entitled to subscribe for and purchase
from Xx0.xxx Inc., a Delaware corporation (the "Company"), upon the terms and
conditions set forth herein, at any time or from time to time, during the period
commencing on the date set forth above and expiring at 5:00 p.m. (New York City
time) on January 29, 2006 (the "Exercise Period"), ________ (_____) shares of
the Company's Common Stock, par value $0.01 per share (the "Common Stock"), at
an exercise price (the "Exercise Price") per share equal to $1.68. As used
herein, the term this "Warrant" shall mean and include this Warrant and any
Warrant or Warrants hereafter issued as a consequence of the exercise or
transfer
of this Warrant in whole or in part. As used herein, the term "Holder" shall
include any transferee to whom this Warrant has been transferred in accordance
with the terms hereof.
The number of shares of Common Stock issuable upon exercise of this
Warrant (the "Warrant Shares") and the Exercise Price may be adjusted from time
to time as hereinafter set forth in Section 6.
1. This Warrant may be exercised until 5:00 p.m. (New York City time) on
January 29, 2006, as to the whole or any lesser number of whole Warrant Shares,
by transmission by telecopy of the Election to Exercise, followed within three
(3) business days by the surrender of this Warrant (with the Election to
Exercise attached hereto duly executed) to the Company at its office at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as is designated
in writing by the Company, together with a certified or bank cashier's check
payable to the order of the Company in an amount equal to the product of the
Exercise Price and the number of Warrant Shares for which this Warrant is being
exercised (the "Aggregate Exercise Price").
2. Upon each exercise of the Holder's rights to purchase Warrant Shares,
the Holder shall be deemed to be the holder of record of the Warrant Shares
issuable upon such exercise, notwithstanding that the transfer books of the
Company shall then be closed or certificates representing such Warrant Shares
shall not then have been actually delivered to the Holder. Within five (5)
business days after each such exercise of this Warrant and receipt by the
Company of this Warrant, the Election to Exercise and the Aggregate Exercise
Price, the Company shall issue and deliver to the Holder a certificate or
certificates for the Warrant Shares issuable upon such exercise, registered in
the name of the Holder or its designee. 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 right of the Holder to purchase
the balance of the Warrant Shares (or portions thereof) subject to purchase
hereunder.
3. Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a Warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in such Warrant on the part of any other person,
and shall not be liable for any registration of transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge of the general counsel of the
Company that a fiduciary or nominee is committing a breach of trust in
requesting such registration of transfer. In all cases of transfer by an
attorney, executor, administrator, guardian, or other legal representative, duly
authenticated evidence of his or its authority shall be produced. Upon any
registration of transfer, the Company shall deliver a new Warrant or Warrants to
the person entitled thereto. This Warrant may be exchanged, at the request of
the Holder thereof, 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 Warrant Shares (or portions thereof), upon surrender
to the Company or its duly authorized agent. Notwithstanding anything contained
herein to the contrary, the Company shall have no obligation to cause Warrants
to be transferred on its books to any person if, in the opinion of counsel to
the Company, such transfer does not comply with the provisions of the Act and
the rules and regulations thereunder.
4. The Company, until the expiration or termination of this Warrant, shall
reserve and keep available out of its authorized and unissued common stock,
solely for the purpose of providing for the exercise of the rights to purchase
all Warrant Shares granted pursuant to this Warrant and all other Common Stock
Warrants, such number of shares of common stock as shall, from time to time, be
sufficient therefor. The Company covenants that all shares of stock issuable
upon exercise of this Warrant, upon receipt by the Company of the full Exercise
Price therefor, shall be validly issued, fully paid, nonassessable, and free of
preemptive rights.
5. The issuance of any Warrant, Warrant Shares or other securities upon
the exercise of this Warrant, and the delivery of certificates or other
instruments representing such Warrant Shares or other securities, except as
otherwise required by law, shall be made without charge to the Holder for any
tax or other charge in respect of such issuance, other than applicable transfer
taxes. Notwithstanding anything contained herein, all applicable transfer taxes
shall be borne by the Holder.
6. The number of Warrant Shares and the Exercise Price shall be subject to
adjustment from time to time as provided in this Section. There shall be no
adjustment hereunder with respect to (A) the issuance or sale of shares or
options to purchase shares of the Company Common Stock to employees, officers,
directors and consultants of the Company and its subsidiaries (as such number of
shares is appropriately adjusted for subsequent stock splits, stock
combinations, stock dividends and racapitalizations) pursuant to plans or
arrangements approved by the Company's Board of Directors; (B) the issue or sale
of Common Stock to other entities or the owners thereof in connection with a
merger or acquisition by the Company; (C) the issue and sale to banks, savings
and loan associations, equipment lessors or other similar lending institutions
in connection with such entities providing working capital credit facilities or
equipment financing to the Company; (D) the issuance of Common Stock to
Crossover Ventures, Inc. or its successors or assigns under the terms of the
equity line of credit arrangement, as such may be amended from time to time, and
(E) the issuance of Common Stock upon conversion of any shares of any series of
the Company's Preferred Stock, the Company's Series A Convertible Debentures due
2005 or the Warrants.
6.1 If during the Exercise Period, the Company shall pay or make a
dividend or other distribution on any class of capital stock of the Company in
Common Stock, then, following the record date for the determination of holders
of Common Stock entitled to receive such stock dividend or other distribution,
the Exercise Price shall be appropriately decreased so that the number of shares
of Common Stock issuable on exercise of this Warrant shall be increased in
proportion to such increase in outstanding shares.
6.2 If during the Exercise Period, (a) the outstanding shares of Common
Stock shall be subdivided into a greater number of shares of Common Stock, then,
following the dated upon which such subdivision becomes effective, the Exercise
Price shall be appropriately decreased so that the number of shares of Common
Stock issuable on exercise of this Warrant shall be increased in proportion to
such increase in outstanding shares, and (b) if the outstanding shares of Common
Stock shall be combined into a smaller number of shares of Common Stock, then,
following the date upon which such combination becomes effective, the Exercise
Price shall be appropriately increased so that the number of shares of Common
Stock issuable on exercise of this Warrant shall be decreased in proportion to
such decrease in outstanding shares.
6.3 The reclassification of Common Stock into securities (other than
Common Stock) and/or cash and/or other consideration shall be deemed to involve
a subdivision or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification into the
number or amount of securities and/or cash and/or other consideration
outstanding immediately thereafter, and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective,"
as the case may be, within the meaning of Section 6.1.
6.4 If during the Exercise Period, the Company issues or sells any
Convertible Securities (as defined below) or any shares of Common Stock for a
consideration per share less than Fair Market Value (as defined below) of the
Common Stock determined on the date of such issuance or sale, then immediately
upon such issue or sale or deemed issue or sale, the Exercise Price shall be
reduced to the Exercise Price determined by dividing (A) the sum of (i) the
product derived by multiplying the Exercise Price in effect immediately prior to
such issue or sale by the number of shares of Common Stock Deemed Outstanding
(as defined below) immediately prior to such issue or sale, plus (ii) the
consideration, if any, received by the Company upon such issue or sale, by (B)
the number of shares of Common Stock Deemed Outstanding immediately after such
issue or sale. In such instances, the number of Warrant Shares shall be
increased by multiplying such number of shares by a fraction, of which the
numerator will be the Exercise Price in effect immediately prior to such issue
or sale, and the denominator will be the Exercise Price immediately after such
issue or sale. "Common Stock Deemed Outstanding" means, at any given time, the
number of shares of Common Stock actually outstanding at such time, plus the
number of shares of Common Stock deemed to be outstanding assuming exercise
and/or conversion of the Company's Options (as defined below) and Convertible
Securities, whether or not such Options or Convertible Securities are actually
exercisable at such time. "Options" means any rights, warrants or options sold
or granted by the Company to subscribe for or purchase Common Stock or
Convertible Securities. "Convertible Securities" means any stock or securities
directly or indirectly convertible into or exchangeable for Common Stock. "Fair
Market Value" means, as of any date, the value of a share of Common Stock,
determined as follows: (i) if such Common Stock is then listed on a national
securities exchange, its closing price on the date of determination on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading, as reported in The Wall Street Journal; (ii) if such Common
Stock is then quoted on the Nasdaq National Market, its closing price on the
Nasdaq National Market on the date of determination, as reported in The Wall
Street Journal; (iii) if such Common Stock is not quoted on the Nasdaq National
Market nor listed or admitted to trading on a national securities exchange, the
average of the closing bid and asked prices on the date of determination, as
reported in The Wall Street Journal; or (iv) if none of the foregoing is
applicable, by the Board of Directors of the Company acting in good faith.
6.5 In the event of any capital reorganization of the Company, any
reclassification of the stock of the Company (other than a change in par value
or from par value to no par value or from no par value to par value or as a
result of a stock dividend or subdivision, split-up or combination of shares),
any sale or transfer to another person or entity of the property of the Company
as an entirety or substantially as an entirety, or any consolidation or merger
of the Company with or into another corporation (where the Company is not the
surviving corporation or where there is a change in or distribution with respect
to the Common Stock), this Warrant shall after such reorganization,
reclassification, consolidation, transfer or merger be exercisable for the kind
and number of shares of stock or other securities or property of the Company or
of the successor corporation resulting from such consolidation, transfer or
surviving such merger, if any, to which the holder of the number of shares of
Common Stock deliverable (immediately prior to the time of such reorganization,
reclassification, consolidation or merger) upon exercise of this Warrant would
have been entitled upon such reorganization, reclassification, consolidation,
transfer or merger. The provisions of this clause shall similarly apply to
successive reorganizations, reclassifications, consolidations, transfers, or
mergers.
6.6 NOTICE OF ADJUSTMENT OF CONVERSION PRICE. Whenever the Exercise
Price is adjusted as herein provided:
(i) the Company shall compute the adjusted Exercise Price in
accordance with this Section 6 and shall prepare a certificate signed by an
officer of the Company, setting forth the adjusted Exercise Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for
this Warrant; and
(ii) a notice stating that the Exercise Price has been adjusted and
setting forth the adjusted Exercise Price shall forthwith be prepared by the
Company, and as soon as practicable after it is prepared, such notice shall be
mailed by the Company at its expense to the Holder at its last address as it
shall appear in the warrant register.
6.7 OTHER DILUTIVE EVENTS. If any event occurs as to which the provisions
of this Section 6 are not strictly applicable or, if strictly applicable, would
not fairly and adequately protect the conversion rights of the Holder in
accordance with the essential intent and principles of such provisions, then the
Board of Directors shall make such adjustments in the application of such
provisions, in accordance with such essential intent and principles, as shall be
reasonably necessary to protect such purchase rights as
aforesaid; provided that no such adjustment will increase the Exercise Price or
decrease the number of shares of Common Stock obtainable as otherwise determined
pursuant to this Section 6.
7. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction, or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), and upon reimbursement of the Company's reasonable
incidental expenses and, if reasonably requested, an indemnity reasonably
acceptable to the Company, the Company shall execute and deliver to the Holder
thereof a new Warrant of like date, tenor, and denomination.
8. The Holder of any Warrant shall not have, solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity,
or to any notice of meetings of stockholders or of any other proceedings of the
Company, except as provided in this Warrant.
9. This Warrant shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the rules governing the
conflicts of laws.
10. The parties hereby irrevocably consent to the jurisdiction of the
courts of the State of New York and of any federal court located in such State
in connection with any action or proceeding arising out of or relating to this
Warrant, any document or instrument delivered pursuant to, in connection with,
or simultaneously with this Warrant, or a breach of this Warrant.
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be duly
executed by its officers thereunto duly authorized as of the date and year set
forth below.
Dated: __________, 200_
XX0.XXX INC.
By:_________________________________
Name:
Title:
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer
the attached Warrant.)
FOR VALUE RECEIVED, ________________________________________ hereby sells,
assigns, and transfers unto __________________ a Warrant to purchase __________
shares of Common Stock, par value $0.01 per share, of Xx0.xxx Inc. (the
"Company"), together with all right, title, and interest therein, and does
hereby irrevocably constitute and appoint attorney to transfer such Warrant on
the books of the Company, with full power of substitution.
Dated: ______________
Signature:________________
Printed Name:_____________
Signature Guaranteed:__________________
NOTICE
The signature on the foregoing Assignment must correspond to the name as written
upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
ELECTION TO EXERCISE
To: Xx0.xxx Inc.
___________________
___________________
The undersigned hereby exercises his or its rights to purchase _______ Warrant
Shares covered by the within Warrant and tenders payment herewith in the amount
of $_________ in accordance with the terms thereof, certifies that he owns this
Warrant free and clear of any and all claims, liens and/or encumbrances and
requests that certificates for such securities be issued in the name of, and
delivered to:
______________________
______________________
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the Warrant
Shares covered by the within Warrant be registered in the name of, and delivered
to, the undersigned at the address stated below.
Dated:_______________________
Name:_____________________________
(Print)
Address:___________________________
________________________________
(Signature)
