Contract
EXHIBIT
4.9
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
ANY STATE SECURITIES LAW. IN ADDITION, SUCH SECURITIES MAY NOT BE SOLD, PLEDGED
OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT
COVERING THE SECURITIES UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
OR
(ii) THE COMPANY FIRST RECEIVES AN OPINION FROM AN ATTORNEY, REASONABLY
ACCEPTABLE TO THE COMPANY, STATING THAT THE PROPOSED TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND UNDER ALL APPLICABLE STATE SECURITIES LAWS.
_______
shares of Common Stock
CLASS
B
WARRANT
FOR THE PURCHASE OF
SHARES
OF COMMON STOCK
OF
SINGLE
TOUCH SYSTEMS INC.
(A
Delaware corporation)
FOR
VALUE
RECEIVED, Single Touch Systems Inc. ("Company"), hereby certifies that
__________ or his, her or its registered assigns ("Holder"), is entitled,
subject to the terms set forth below, to purchase from the Company, at any
time
or from time to time during the 36-month period commencing on July 24, 2008
and
expiring on July 23, 2011, _______ shares of Common Stock, $0.001 par value,
of
the Company ("Common Stock"), at purchase price of $2.05 per share. The number
of shares of Common Stock purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Shares"
and the "Exercise Price," respectively.
17. Exercise
17.1 Procedure
for Exercise.
This
Warrant may be exercised by the Holder, in whole or in part, by the surrender
of
this Warrant (with the Notice of Exercise Form attached hereto duly executed
by
such Holder) at the principal office of the Company, or at such other office
or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, of an amount equal to the then applicable Exercise
Price multiplied by the number of Warrant Shares then being purchased upon
such
exercise.
17.2 Date
of Exercise.
Each
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the day on which this Warrant shall have been
surrendered to the Company. At such time, the person or persons in whose name
or
names any certificates for Warrant Shares shall be issuable upon such exercise
shall be deemed to have become the holder or holders of record of the Warrant
Shares represented by such certificates.
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17.3 Issuance
of Certificate.
As soon
as practicable after the exercise of the purchase right represented by this
Warrant, the Company at its expense will use its best efforts to cause to be
issued in the name of, and delivered to, the Holder, or, subject to the terms
and conditions hereof, to such other individual or entity as such Holder (upon
payment by such Holder of any applicable transfer taxes) may direct:
(i) a
certificate or certificates for the number of full shares of Warrant Shares
to
which such Holder shall be entitled upon such exercise (subject to Section
3
hereof), and
(ii) in
case
such exercise is in part only, a new warrant or warrants (dated the date hereof)
of like tenor, stating on the face or faces thereof the number of shares
currently stated on the face of this Warrant minus the number of such shares
purchased by the Holder upon such exercise as provided in subsection 1.1 above.
18. Adjustments.
18.1 Split,
Subdivision or Combination of Shares.
If the
outstanding shares of the Company's Common Stock at any time while this Warrant
remains outstanding and unexpired shall be subdivided or split into a greater
number of shares, or a dividend in Common Stock shall be paid in respect of
Common Stock, the Exercise Price in effect immediately prior to such subdivision
or at the record date of such dividend shall, simultaneously with the
effectiveness of such subdivision or split or immediately after the record
date
of such dividend (as the case may be), shall be proportionately decreased.
If
the outstanding shares of Common Stock shall be combined or reverse-split into
a
smaller number of shares, the Exercise Price in effect immediately prior to
such
combination or reverse split shall, simultaneously with the effectiveness of
such combination or reverse split, be proportionately increased. When any
adjustment is required to be made in the Exercise Price, the number of shares
of
Warrant Shares purchasable upon the exercise of this Warrant shall be changed
to
the number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Exercise Price in effect immediately prior to such adjustment,
by (ii) the Exercise Price in effect immediately after such adjustment.
18.2 Reclassification
Reorganization, Consolidation or Merger.
In the
case of any reclassification of the Common Stock (other than a change in par
value or a subdivision or combination as provided for in subsection 2.1 above),
or any reorganization, consolidation or merger of the Company with or into
another corporation (other than a merger or reorganization with respect to
which
the Company is the continuing corporation and which does not result in any
reclassification of the Common Stock), or a transfer of all or substantially
all
of the assets of the Company, or the payment of a liquidating distribution
then,
as part of any such reorganization, reclassification, consolidation, merger,
sale or liquidating distribution, lawful provision shall be made so that the
Holder of this Warrant shall have the right thereafter to receive upon the
exercise hereof, the kind and amount of shares of stock or other securities
or
property which such Holder would have been entitled to receive if, immediately
prior to any such reorganization, reclassification, consolidation, merger,
sale
or liquidating distribution, as the case may be, such Holder had held the number
of shares of Common Stock which were then purchasable upon the exercise of
this
Warrant. In any such case, appropriate adjustment (as reasonably determined
by
the Board of Directors of the Company) shall be made in the application of
the
provisions set forth herein with respect to the rights and interests thereafter
of the Holder of this Warrant such that the provisions set forth in this Section
2 (including provisions with respect to the Exercise Price) shall thereafter
be
applicable, as nearly as is reasonably practicable, in relation to any shares
of
stock or other securities or property thereafter deliverable upon the exercise
of this Warrant.
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18.3 Price
Adjustment. No
adjustment in the per share Exercise Price shall be required unless such
adjustment would require an increase or decrease in the Exercise Price of at
least $0.01; provided, however, that any adjustments which by reason of this
paragraph are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 2
shall be made to the nearest cent or to the nearest 1/100th of a share, as
the
case may be.
18.4 No
Impairment. The
Company will not, by amendment of its Articles of Incorporation or through
any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Company but will at all times in good faith assist in the
carrying out of all the provisions of this Section 2 and in the taking of all
such actions as may be necessary or appropriate in order to protect against
impairment of the rights of the Holder of this Warrant to adjustments in the
Exercise Price.
18.5 Notice
of Adjustment. Upon
any adjustment of the Exercise Price or extension of the Warrant exercise
period, the Company shall forthwith give written notice thereto to the Holder
of
this Warrant describing the event requiring the adjustment, stating the adjusted
Exercise Price and the adjusted number of shares purchasable upon the exercise
hereof resulting from such event, and setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
19. Fractional
Shares. The
Company shall not be required to issue fractions of shares of Common Stock
upon
exercise. If any fractions of a share would, but for this Section 3, be issuable
upon any exercise, in lieu of such fractional share the Company shall round
up
or down to the nearest whole number.
20. Limitation
on Sales. Each
holder of this Warrant acknowledges that this Warrant and the Warrant Shares,
as
of the date of original issuance of this Warrant, have not been registered
under
the Securities Act of 1933, as amended ("Act"), and agrees not to sell, pledge,
distribute, offer for sale, transfer or otherwise dispose of this Warrant or
any
Warrant Shares issued upon its exercise in the absence of (a) an effective
registration statement under the Act as to this Warrant or such Warrant Shares
or (b) an opinion of counsel, reasonably acceptable to the Company, that such
registration and qualification are not required. The Warrant Shares issued
upon
exercise thereof shall be imprinted with a legend in substantially the following
form:
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THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND
MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
(i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING THE SHARES UNDER
THE
ACT AND APPLICABLE STATE SECURITIES LAWS OR (ii) THE COMPANY FIRST RECEIVES
AN OPINION FROM AN ATTORNEY, REASONABLY ACCEPTABLE TO THE COMPANY, STATING
THAT
THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT AND UNDER ALL
APPLICABLE STATE SECURITIES LAWS.
21. Registration
Rights.
Pursuant to the term of the convertible note that was converted into units
consisting, in part, of this Class B Warrant, and subject to Securities Act
Rule
415 registration restrictions, the Company has agreed to use its best efforts
to
file a registration statement within 60 days of the date of this Class B Warrant
to register the Common Stock for resale.
22. Notices
of Record Date.
In
case: (i) the Company shall take a record of the holders of its Common Stock
(or
other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase
any
shares of any class or any other securities, or to receive any other right,
or
(ii) of any capital reorganization of the Company, any reclassification of
the
capital stock of the Company, any consolidation or merger of the Company with
or
into another corporation (other than a consolidation or merger in which the
Company is the surviving entity), or any transfer of all or substantially all
of
the assets of the Company, or (iii) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, then, and in each such case, the
Company will mail or cause to be mailed to the Holder of this Warrant a notice
specifying, as the case may be, (i) the date on which a record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the
time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such other stock or securities at the time deliverable upon the exercise of
this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be mailed at least
ten
(10) days prior to the record date or effective date for the event specified
in
such notice, provided that the failure to mail such notice shall not affect
the
legality or validity of any such action.
23. Reservation
of Stock. The
Company will at all times reserve and keep available, solely for issuance and
delivery upon the exercise of this Warrant, such shares of Common Stock and
other stock, securities and property, as from time to time shall be issuable
upon the exercise of this Warrant.
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24. Replacement
of Warrants. Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company
will
issue, in lieu thereof, a new Warrant of like tenor.
25. Transfers,
etc.
25.1 Warrant
Register.
The
Company will maintain a register containing the names and addresses of the
Holders of this Warrant. Any Holder may change its, his or her address as shown
on the warrant register by written notice to the Company requesting such change.
25.2 Holder.
Until
any transfer of this Warrant is made in the warrant register, the Company may
treat the Holder of this Warrant as the absolute owner hereof for all purposes;
provided, however, that if and when this Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer hereof as
the
absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.
26. No
Rights as Stockholder. Until
the exercise of this Warrant, the Holder of this Warrant shall not have or
exercise any rights by virtue hereof as a stockholder of the Company.
27. Successors. The
rights and obligations of the parties to this Warrant will inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
successors, assigns, pledgees, transferees and purchasers. Without limiting
the
foregoing, the registration rights set forth in this Warrant shall inure to
the
benefit of the Holder and all the Holder’s successors, heirs, pledgees,
assignees, transferees and purchasers of this Warrant and the Warrant
Shares.
28. Change
or Waiver. Any
term of this Warrant may be changed or waived only by an instrument in writing
signed by the party against which enforcement of the change or waiver is sought.
29. Headings. The
headings in this Warrant are for purposes of reference only and shall not limit
or otherwise affect the meaning of any provision of this Warrant.
30. Governing
Law. This
Warrant shall be governed by and construed in accordance with the laws of
the State
of
New York as such laws are applied to contracts made and to be fully performed
entirely within that state between residents of that state.
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31. Jurisdiction
and Venue. The
Company (i) agrees that any legal suit, action or proceeding arising out of
or
relating to this Warrant shall be instituted exclusively in New York State
Supreme Court, County of New York or in the United States District Court for
the
Southern District of New York, (ii) waives any objection to the venue of any
such suit, action or proceeding and the right to assert that such forum is
not a
convenient forum for such suit, action or proceeding, and (iii) irrevocably
consents to the jurisdiction of the New York State Supreme Court, County of
New
York, and the United States District Court for the Southern District of New
York
in any such suit, action or proceeding, and the Company further agrees to accept
and acknowledge service or any and all process which may be served in any such
suit, action or proceeding in New York State Supreme Court, County of New York
or in the United States District Court for the Southern District of New York
and
agrees that service of process upon it mailed by certified mail to its address
shall be deemed in every respect effective service of process upon it in any
suit, action or proceeding.
32. Mailing
of Notices, etc. All
notices and other communications under this Warrant (except payment) shall
be in
writing and shall be sufficiently given if sent to the Holder or the Company,
as
the case may be, by hand delivery, private overnight courier, with
acknowledgment of receipt, or by registered or certified mail, return receipt
requested, as follows:
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Holder:
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To
Holder’s address on page 1 of this Warrant
|
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Attention:
Name of Holder
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The
Company:
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To
the Company’s Principal Executive Offices
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Attention:
President
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or
to
such other address as any of them, by notice to the others may designate from
time to time. Time shall be counted to, or from, as the case may be, the
delivery in person or by overnight courier or five (5) business days after
mailing.
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SINGLE
TOUCH SYSTEMS INC.
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By:
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Name:
Xxxxx Xxxxxx
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Title:
President
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NOTICE
OF EXERCISE
TO:
Single
Touch Systems Inc.
1. The
undersigned hereby elects to purchase ________ shares of the Single Touch
Systems Inc., pursuant to terms of the attached Warrant, and tenders herewith
payment of the Exercise Price of such shares in full, together with all
applicable transfer taxes, if any.
2. Please
issue a certificate or certificates representing said shares of the Common
Stock
in the name of the undersigned or in such other name as is specified below:
3. The
undersigned represents that it will sell the shares of Common Stock pursuant
to
an effective Registration Statement under the Securities Act of 1933, as
amended, or an exemption from registration thereunder.
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(Name)
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(Address)
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(Taxpayer
Identification Number)
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(Print
Name of Holder)
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By:
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Title:
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Date:
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