EXHIBIT 4.5
THIS WARRANT, AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT, HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT")
OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES REPRESENTED HEREBY HAVE BEEN
OR WILL BE ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO (A) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE
REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT
Right to Purchase
_______ Shares of Common Stock
$0.003 Par Value
Date: __________ __, 2001
QUERYOBJECT SYSTEMS CORPORATION
COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ______________________ or
his or its registered assigns (the "Holder"), is entitled to purchase from
QUERYOBJECT SYSTEMS CORPORATION, a Delaware corporation (the "Company"), at any
time and from time to time until 5:00 p.m., prevailing Eastern Time, on the
"Expiration Date" (as defined below) (_______) fully paid and non-assessable
shares of the Company's common stock, par value $0.003 per share (the "Common
Stock"). This Warrant entitles the Holder to purchase shares of Common Stock
commencing on the date hereof until the five year anniversary thereof, for an
initial exercise price equal to $[ ]. The shares of Common Stock issuable upon
exercise hereof are referred to herein as the "Warrant Shares" and the exercise
price of this Warrant is referred to herein as the "Exercise Price." The term
"Warrants" means this Warrant and the other warrants of the Company issued in
the Company's private offering (the "Private Offering") of units, each unit
consisting of one share of Common Stock and two Warrants, made pursuant to
Subscription Agreements dated as of _____ __, 2001 that have been entered into
by the Company and each subscriber in the Private Offering (the "Subscription
Agreement").
This Warrant is subject to the following terms, provisions and
conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for Shares.
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1.1 Exercise Notice. Subject to the provisions hereof, this Warrant
may be exercised by the Holder hereof, in whole or in part, by the surrender of
this Warrant, together with (i) a completed exercise notice in the form attached
hereto as Exhibit 1 (the "Exercise Notice"), to the Company on or before 5:00
p.m., prevailing Eastern Time, on any business day at the Company's principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the Holder hereof) and (ii) payment to the Company in
cash, by check or by wire transfer for the account of the Company, of the
Exercise Price for each of the Warrant Shares specified in the Exercise Notice.
The Warrant Shares so purchased shall be deemed to be issued to the Holder
hereof or such Holder's designee, as the record owner of such shares, as of the
close of business on the date on which this Warrant shall have been so
surrendered, the completed
Exercise Notice shall have been delivered and payment shall have been made for
such shares as set forth above.
1.2 Delivery of Certificates. Certificates for the Warrant Shares so
purchased, representing the aggregate number of shares specified in the Exercise
Notice, shall be delivered to the Holder hereof within a reasonable time, not
exceeding five trading days, after this Warrant shall have been so exercised and
Holder's payment shall have been collected. The certificates so delivered shall
be in such denominations as may be reasonably requested by the Holder hereof and
shall be registered in the name of such Holder or such other name as shall be
designated by such Holder. If this Warrant shall have been exercised only in
part, then, unless this Warrant shall have expired, the Company shall, at its
expense, at the time of delivery of such certificates, deliver to the Holder a
new Warrant representing the number of shares with respect to which this Warrant
shall not then have been exercised.
Subject to Section 1.4 hereof, upon delivery of an Exercise Notice
and payment for the Warrant Shares to be purchased thereby, the Company's
obligation to deliver certificates for such Warrant Shares shall be absolute and
unconditional and the Company agrees not to assert (and hereby waives to the
fullest extent permitted by law) any defenses against its obligation to so
deliver such certificates. In the event the Company fails to deliver such
certificates, the Company understands that the Holder will be entitled to pursue
actual damages (whether or not such failure is caused by the Company's failure
to maintain a sufficient number of authorized shares of Common Stock), and each
Holder shall have the right to pursue all remedies available at law or in equity
(including a decree of specific performance or injunctive relief).
1.3 Period of Exercise. This Warrant shall be exercisable (the
"Exercise Period") at any time on or after the date hereof and prior to 5:00
p.m., prevailing Eastern Time, on _____ __, 2006 (the "Expiration Date").
1.4 Right of Rescission. Any Holder that delivers to the Company an
Exercise Notice at any time during the period beginning on the date the Company
first gives notice to the Holders of Warrants of any contemplated "Corporate
Event" (as defined in Section 2.4 hereof) and the day immediately prior to the
date the Corporate Event is to be effected or consummated, shall have the
absolute right, in his discretion, if the Corporate Event is not effected or
consummated as contemplated, to rescind his Exercise Notice by written notice
delivered to the Company within 10 days after the date on which the Company
delivers notice to such Holder of the cancellation of the Corporate Event. Such
notice of cancellation shall be delivered by the Company to each Holder within
three days of the cancellation of any contemplated Corporate Event.
2. Certain Agreements of the Company. The Company hereby covenants and
agrees as follows:
2.1 Shares to be Fully Paid. All Warrant Shares will, upon issuance
in accordance with the terms of this Warrant, be validly issued, fully paid, and
non-assessable and free from all taxes, liens, claims and encumbrances.
2.2 Reservation of Shares. During the Exercise Period, the Company
shall at all times have authorized and reserved for the purpose of issuance upon
exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of this Warrant.
2.3 No Impairment. The Company shall not, by amendment of its
charter or through a reorganization, transfer of assets, consolidation, merger,
dissolution, issuance 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 by it hereunder, but shall at all times in good faith
assist in the
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carrying out of all the provisions of this Warrant and in the taking of all such
action as may reasonably be requested by the Holder of this Warrant in order to
protect the exercise privilege of the Holder of this Warrant against dilution or
other impairment, consistent with the tenor and purpose of this Warrant. Without
limiting the generality of the foregoing, the Company (i) shall not increase the
par value of any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect and (ii) shall take all such
actions as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable shares of Common Stock upon the
exercise of this Warrant.
2.4 Events Requiring Notice to Holders. The Company shall give
notice to the Holder upon one or more of the following events: (i) if the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive any dividend or distribution, or (ii) the Company
shall offer to all the holders of its Common Stock any additional shares of
capital stock of the Company or securities convertible into or exchangeable for
shares of capital stock of the Company, or any option, right or warrant to
subscribe therefor, or (iii) a dissolution, liquidation or winding up of the
Company, or a sale of all or substantially all of its property, assets or
business, or a merger or consolidation with another entity in which the Company
is either not the surviving entity or is the surviving entity, but the owners of
the Company's voting capital stock immediately prior to such merger or
consolidation fail to hold at least 50% of the voting securities of the Company
after the merger (each such event a "Corporate Event"). The Company shall give
written notice of such Corporate Event to each Holder of a Warrant at least 20
days prior to the date fixed as a record date or the date of the closing of the
transfer books for the determination of the stockholders entitled to the benefit
of, or to participate in, or to vote on such Corporate Event. Such notice shall
specify such record date or the date of the closing of the transfer books, as
the case may be.
3. Adjustment Provisions. During the Exercise Period, the Exercise
Price and the number of Warrant Shares issuable upon exercise of this Warrant
shall be subject to adjustment from time to time as provided in this Section 3.
3.1 Exercise Price Adjustments. The Exercise Price hereof shall be
subject to adjustment at any time when this Warrant is issued and outstanding,
in the following manner (i) the Exercise Price shall be proportionately reduced
if the number of outstanding shares of Common Stock, as a class, is increased by
a stock split, stock dividend, reclassification or other similar event; and (ii)
the Exercise Price shall be proportionately increased if the number of
outstanding shares of Common Stock, as a class, is decreased by a reverse stock
split, combination or reclassification of shares, or other similar event.
3.2 Adjustment in the Aggregate Number of Shares. Upon each
adjustment of the Exercise Price pursuant to the provisions of this Section 3,
the aggregate number of Warrant Shares issuable upon the exercise of this
Warrant shall be adjusted to the nearest full number obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
3.3 Adjustment Due to Mergers, Consolidation, etc. If, at any time
when this Warrant is issued and outstanding, there shall be (i) any
consolidation or merger of the Company with any other corporation (other than a
merger in which the Company is the surviving or continuing entity and the owners
of the Company's voting capital stock immediately prior to such merger continue
to hold at least 50% of the voting securities of the Company after the merger),
(ii) any sale or transfer of all or substantially all of the assets of the
Company or (iii) any share exchange pursuant to which all of the outstanding
shares of Common Stock are converted into other securities or property (each
such event a "Merger Event"), then the Holder of this Warrant shall thereafter
have the right to receive upon exercise of his or its Warrant, upon the basis
and upon the terms and conditions specified herein and in lieu of shares of
Common Stock, such shares of stock, securities
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320006.1
and other property as would have been issuable or payable in connection with the
Merger Event with respect to or in exchange for the number of shares of Common
Stock immediately theretofore issuable and receivable upon the exercise of this
Warrant had such Merger Event not taken place, and in any such case appropriate
provisions shall be made with respect to the rights and interests of the Holder
of this Warrant to the effect that the provisions hereof (including, without
limitation, provisions for adjustment of the Exercise Price and the
corresponding number of shares of Common Stock issuable upon exercise of this
Warrant) shall thereafter be applicable, as nearly as may be practicable in
relation to any shares of stock or securities thereafter deliverable upon the
exercise hereof. The Company shall not effect any transaction described in this
Section 3.3 unless (x) the Holder of this Warrant has been given written notice
as provided in Section 2.4, and (y) the resulting successor or acquiring entity
(if not the Company) assumes by written instrument the obligations of this
Section 3.3. The above provisions shall similarly apply to successive
consolidations, mergers, sales, transfers or share exchanges.
3.4 Adjustment for Other Events. If any event occurs as to which the
foregoing provisions of this Section 3 are not strictly applicable or, if
strictly applicable, would not fairly and adequately protect the exercise rights
of this Warrant 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 exercise rights as
aforesaid, but in no event shall any such adjustment have the effect of
increasing the Exercise Price or decreasing the number of shares of Common Stock
issuable upon exercise of this Warrant.
4. Limitation on Sales. The Holder acknowledges that this Warrant and
the Warrant Shares have not been registered under the Securities Act as of the
date of issuance hereof 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 (i) an effective registration
statement under the Securities Act and any applicable state securities laws or
(ii) an opinion of counsel, in form, substance and scope reasonably acceptable
to the Company, that registration is not required under the Securities Act or
any applicable state securities laws.
Without limiting the generality of the foregoing, unless the
offering and sale of the Warrant Shares to be issued upon the particular
exercise of the Warrant shall have been effectively registered under the
Securities Act, the Company shall be under no obligation to issue the shares
covered by such exercise unless and until the Holder shall have executed an
investment letter in form and substance satisfactory to the Company, including a
warranty at the time of such exercise that it is acquiring such shares for its
own account, and will not transfer the Warrant Shares unless pursuant to an
effective and current registration statement under the Securities Act or an
exemption from the registration requirements of the Securities Act and any other
applicable restrictions, in which event the Holder shall be bound by the
provisions of a legend or legends to such effect which shall be endorsed upon
the certificate(s) representing the Warrant Shares issued pursuant to such
exercise. In such event, the Warrant Shares issued upon exercise hereof shall be
imprinted with a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THIS SECURITY HAS BEEN OR WILL BE
ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS, OR (B) AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND
SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OR
ANY APPLICABLE STATE SECURITIES LAWS."
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5. Issue Tax. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the Holder of this
Warrant or such Warrant Shares for any issuance tax or other costs in respect
thereof, provided that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and delivery
of any certificate in a name other than the Holder of this Warrant.
6. No Rights or Liabilities as Stockholder. The Holder of this Warrant
prior to its exercise is not entitled, by virtue of being such Holder, to
receive dividends, to vote, and except as provided in Section 2.4 hereof, to
receive notice of stockholders' meetings or to exercise any other rights
whatsoever as a stockholder of the Company. No provision of this Warrant, in the
absence of affirmative action by the Holder hereof to exercise this Warrant for
Warrant Shares, and no mere enumeration herein of the rights or privileges of
the Holder hereof, shall give rise to any liability of such Holder for the
Exercise Price or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
7. Transfer, Exchange, and Replacement of Warrant.
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7.1 Transfer.
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7.1.1 Restriction on Transfer. This Warrant and the rights
granted to the Holder hereof are transferable, in whole or in part, upon
surrender of this Warrant, together with a properly executed assignment in the
form attached hereto as Exhibit 2, at the office or agency of the Company
referred to in Section 7.5 below. Until due presentment for registration of
transfer on the books of the Company, the Company may treat the registered
Holder hereof as the owner and Holder hereof for all purposes, and the Company
shall not be affected by any notice to the contrary.
7.1.2 Exercise or Transfer Without Registration. If, at the
time of the surrender of this Warrant in connection with any exercise, transfer
or exchange of this Warrant, this Warrant (or, in the case of any exercise, the
Warrant Shares issuable hereunder), shall not be registered under the Securities
Act and under applicable state securities or blue sky laws, the Company may
require, as a condition of allowing such exercise, transfer or exchange that the
Holder or transferee of this Warrant, as the case may be, furnish to the Company
a written opinion of counsel, in form, substance and scope reasonably acceptable
to the Company, that registration is not required under the Securities Act or
any applicable state securities laws.
7.2 Warrant Exchangeable for Different Denominations. This Warrant
is exchangeable, upon the surrender hereof by the Holder hereof at the office or
agency of the Company referred to in Section 7.5 below, for new Warrants of like
tenor of different denominations representing in the aggregate the right to
purchase the number of Warrant Shares that may be purchased hereunder, each of
such new Warrants to represent the right to purchase such number of shares as
shall be designated by the Holder hereof at the time of such surrender.
7.3 Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
7.4 Cancellation; Payment of Expenses. Upon the surrender of this
Warrant in connection with any transfer, exchange or replacement as provided in
this Section 7, this Warrant
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shall be promptly canceled by the Company. The Company shall pay all taxes
(other than securities transfer taxes) and all other expenses (other than legal
expenses, if any, incurred by the Holder or transferees) and charges payable in
connection with the preparation, execution and delivery of Warrants pursuant to
this Section 7.
7.5 Warrant Register. The Company shall maintain, at its principal
executive offices (or at the offices of the transfer agent for the Warrants or
such other office or agency of the Company as it may designate by notice to the
Holder hereof), a register for this Warrant (the "Warrant Register") in which
the Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
8. Registration Rights. The Holder of this Warrant and/or the Warrant
Shares and any transferee hereof and thereof is entitled to the benefit of such
registration rights in respect of the Warrant Shares as are set forth in the
Subscription Agreement.
9. Redemption.
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9.1 Redemption Rights. The Company may redeem all (but not less than
all) of the Warrants at any time, at the price of $.01 per Warrant, upon notice
of redemption given as provided in Section 9.2, provided that (i) the Warrant
Shares have been registered for resale by means of the Registration Statement
(as defined in the Subscription Agreement) or any other registration statement;
(ii) the Registration Statement, or such other registration statement, is
current and effective at the time the aforementioned notice is sent and through
the redemption period; and (iii) the closing sale price of the Common Stock has
been at least 160% of the then Exercise Price of the Warrants for the 20 most
recent trading days ending within two trading days of such notice of redemption.
9.2 Date Fixed for Redemption; Notice of Redemption. In the event
the Company shall elect to redeem all of the Warrants, the Company shall fix a
date for the redemption (the "Redemption Date") and mail a notice of redemption
by first class mail, postage prepaid, not less than 30 days prior to the date
fixed for redemption to the Holder of the Warrant at its last address as it
shall appear on the Warrant Register. Any notice mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the registered Holder received such notice. The notice of redemption shall
specify (i) the redemption price, (ii) the date fixed for redemption, (iii) the
place where the Warrant is to be delivered and the redemption price to be paid
and (iv) that the right to exercise the Warrant shall terminate at 5:00 p.m.,
prevailing Eastern Time, on the business day immediately preceding the
Redemption Date. No failure to mail such notice, nor any defect therein or in
the mailing thereof, shall affect the validity of the proceedings for such
redemption except as to a Holder (a) to whom notice was not mailed or (b) whose
notice was defective. An affidavit of the Secretary of the Company that notice
of redemption has been mailed shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
9.3 Exercise After Notice of Redemption. The Warrants may be
exercised in accordance with Section 1 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
9.2 hereof and until 5:00 p.m., prevailing Eastern Time, on the business day
immediately preceding the Redemption Date. On and after the Redemption Date, the
Holder of the Warrant shall have no further rights except to receive, upon
surrender of the Warrant, the redemption price.
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10. Miscellaneous.
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10.1 Notices. Any notices required or permitted to be given under
the terms of this Warrant shall be in writing and shall be sufficiently given if
delivered to the addressees in person by overnight courier service, by confirmed
facsimile or, if mailed, postage prepaid certified mail (return receipt
requested), and shall be effective three days after being placed in the mail if
mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party. The addresses
for such communications shall be:
If to the Company:
QueryObject Systems Corporation
Xxx Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Chief Financial Officer
and Executive Vice President
Telecopy: (000) 000-0000
and if to the Holder, at such address as such Holder shall have provided in
writing to the Company, or at such other address as each such party furnishes by
notice given in accordance with this Section 10.
10.2 Governing Law; Jurisdiction. This Warrant will be deemed to
have been made and delivered in New York City and will be governed as to
validity, interpretation, construction, effect and in all other respects by the
internal laws of the State of New York. The Company and the Holder each hereby
(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 that 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.
10.3 Amendments. This Warrant and any provision hereof may only be
amended by an instrument in writing signed by the Company and the Holder hereof.
10.4 Section Headings. Section headings herein have been inserted
for reference only and shall not be deemed to otherwise affect, in any matter,
or be deemed to interpret in whole or part, any of the terms or provisions of
this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
QUERYOBJECT SYSTEMS CORPORATION
By:
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Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT 1
Form to be used to exercise Warrant:
EXERCISE NOTICE
QueryObject Systems Corporation
Xxx Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Attn: Chief Financial Officer
Date:_________________
The undersigned hereby elects to purchase ________ shares of the
Common Stock of QueryObject Systems Corporation, pursuant to terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full, together with all applicable transfer taxes, if any.
Please issue the Warrant Shares in accordance with the instructions
given below.
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:
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Signature
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Print Name
NOTICE: THE SIGNATURE ON THIS FORM MUST CORRESPOND TO THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name ________________________________________________________
(Print in Block Letters)
Address ________________________________________________________
EXHIBIT 2
Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the
within Warrant):
FOR VALUE RECEIVED, ___________________________________________ does
hereby sell, assign and transfer unto__________________________________________
a Warrant to purchase ______________ shares of Common Stock of QueryObject
Systems Corporation ("Company") evidenced by the within and does hereby
authorize the Company to transfer such right on the books of the Company.
Dated: ___________________
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Signature
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Print Name
NOTICE: THE SIGNATURE ON THIS FORM MUST CORRESPOND TOTHE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
