THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
OTHER SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION
STATEMENT COVERING SUCH SECURITIES UNDER THE ACT AND ANY OTHER APPLICABLE
SECURITIES LAWS, OR (2) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
ROOMLINX, INC.
WARRANT TO PURCHASE ________ SHARES OF
COMMON STOCK, PAR VALUE $0.001 PER SHARE
November __, 2004
Warrant No. _____
For value received, ROOMLINX, INC., a Nevada corporation (the "Company"),
hereby certifies that _________________________ or its registered transferees,
successors or assigns (each person or entity holding all or part of this Warrant
being referred to as a "Holder"), is the registered holder of warrants (the
"Warrants") to subscribe for and purchase __________________________ shares (as
adjusted pursuant to Section 3 hereof, the "Warrant Shares") of the fully paid
and nonassessable common stock, par value $0.001 per share (the "Common Stock"),
of the Company, at a purchase price per share initially equal to
__________________ ($______) (the "Warrant Price") on or before, 5:00 P.M.,
Eastern Time, on the date which is two years from the date hereof (the
"Expiration Date"), subject to the provisions and upon the terms and conditions
hereinafter set forth. As used in this Warrant, the term "business day" means
any day other than a Saturday or Sunday on which commercial banks located in the
State of New Jersey are open for the general transaction of business. This
Warrant has been issued pursuant to a Securities Purchase Agreement, dated as of
the date hereof (the "Purchase Agreement"), by and between the Company and the
Holder, as amended from time to time. Capitalized terms used and not otherwise
defined herein have the meanings ascribed thereto in the Purchase Agreement.
Section 1. Exercise.
(a) Subject to the provisions hereof, the Holder may exercise this
Warrant, in whole or in part and from time to time, by the surrender of this
Warrant (with the Notice of Exercise attached hereto as Appendix A duly
executed) at the principal office of the Company, or such other office or agency
of the Company as it may reasonably designate by written notice to the Holder,
during normal business hours on any business day, and the payment by the Holder
by cash, certified check payable to the Company or wire transfer of immediately
available funds to an account designated to the exercising Holder by the Company
of an amount equal to the then applicable Warrant Price multiplied by the number
of Warrant Shares then being purchased.
(b) On the date on which the Holder shall have satisfied in full the
Holder's obligations set forth herein regarding an exercise of this Warrant
(provided such date is prior to the Expiration Date), the Holder (or such other
person or persons as directed by the Holder, subject to compliance with
applicable securities laws) shall be treated for all purposes as the holder of
record of such Warrant Shares as of the close of business on such date.
(c) In the event of any exercise of the rights represented by this
Warrant, certificates for the whole number of shares of Common Stock so
purchased shall be delivered to the Holder (or such other person or persons as
directed by the Holder, subject to compliance with applicable securities laws)
as promptly as is reasonably practicable after such exercise, and, unless this
Warrant has been fully exercised, a new Warrant representing the whole number of
Warrant Shares, if any, with respect to which this Warrant shall not then have
been exercised shall also be issued to the Holder as soon as reasonably
practicable thereafter.
Section 2. Reservation of Shares; Stock Fully Paid. The Company shall keep
reserved a sufficient number of shares of the authorized and unissued shares of
Common Stock to provide for the exercise of the rights of purchase represented
by this Warrant in compliance with its terms. All Warrant Shares issued upon
exercise of this Warrant shall be, at the time of delivery of the certificates
for such Warrant Shares upon payment in full of the Warrant Price therefor in
accordance with the terms of this Warrant, duly authorized, validly issued,
fully paid and non-assessable shares of Common Stock of the Company.
Section 3. Adjustments and Distributions. The number and kind of
securities purchasable upon the exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time upon the occurrence of certain
events, as follows:
(a) If the Company shall at any time or from time to time while this
Warrant is outstanding, pay a dividend or make a distribution on its Common
Stock in shares of Common Stock, subdivide its outstanding shares of Common
Stock into a greater number of shares or combine its outstanding shares of
Common Stock into a smaller number of shares, then the number of Warrant Shares
purchasable upon exercise of this Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective
shall be proportionally adjusted by the Company so that the Holder thereafter
exercising this Warrant shall be entitled to receive the number of shares of
Common Stock or other capital stock which the Holder would have received if this
Warrant had been fully exercised immediately prior to such event upon payment of
a Warrant Price that has been proportionally adjusted to reflect such event.
Such adjustments shall be made successively whenever any event listed above
shall occur.
-2-
(b) If any recapitalization, reclassification or reorganization of
the capital stock of the Company (other than a change in par value or a
subdivision or combination as provided for in Section 3(a) above) shall be
effected in such a manner (including, without limitation, in connection with a
consolidation or merger in which the Company is the continuing corporation),
that holders of Common Stock shall be entitled to receive stock, securities, or
other assets or property (a "Reorganization"), then, as a condition of such
Reorganization, lawful and adequate provisions shall be made by the Company
whereby the Holder hereof shall thereafter have the right to purchase and
receive (in lieu of the shares of the Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby) such shares of stock, securities or other assets or property
as may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby. In the event of any Reorganization,
appropriate provision shall be made by the Company with respect to the rights
and interests of the Holder of this Warrant to the end that the provisions
hereof (including, without limitation, provisions for adjustments of the Warrant
Price and of the number of Warrant Shares) shall thereafter be applicable, in
relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise hereof.
(c) If any consolidation or merger of the Company with another
entity in which the Company is not the survivor, or sale, transfer or other
disposition of all or substantially all of the Company's assets to another
entity shall be effected (the "Sale of the Company"), then, as a condition of
such Sale of the Company, lawful and adequate provision shall be made whereby
the Holder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of this Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
this Warrant, had such Sale of the Company not taken place.
(d) In case the Company shall fix a payment date for the making of a
distribution to all holders of Common Stock of evidences of indebtedness or
assets (other than dividends or distributions referred to in Section 3(a)
hereof), or subscription rights or warrants, the Warrant Price to be in effect
after such payment date shall be determined by multiplying the Warrant Price in
effect immediately prior to such payment date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the fair market value per share of Common Stock (as determined by the Board
in good faith) immediately prior to such payment date, less the fair market
value (as determined by the Board in good faith) of said assets or evidences of
indebtedness so distributed, or of such subscription rights or warrants, and the
denominator of which shall be the total number of shares of Common Stock
outstanding multiplied by such fair market value per share of Common Stock
immediately prior to such payment date.
Section 4. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
-3-
Section 5. Fractional Shares. No fractional shares of Common Stock shall
be issued in connection with any exercise or cashless exercise hereunder, and in
lieu of any such fractional shares the Company shall make a cash payment
therefor to the Holder (or such other person or persons as directed by the
Holder, subject to compliance with all applicable laws) based on the fair market
value (as determined by the Board in good faith) of a share of Common Stock on
the date of exercise or cashless exercise of this Warrant.
Section 6. Mandatory Redemption. (a) If at any time following the
effective date of a registration statement filed with the Securities and
Exchange Commission covering the Warrant Shares, the Fair Market Value (as
determined pursuant to Section 6(c)) of a share of Common Stock shall exceed
three (3) times the Warrant Price., then the Company shall be entitled to give
notice (the "Redemption Notice") to the Holder of its intent to redeem this
Warrant at a price equal to the number of Warrant Shares underlying the Warrant
times the Warrant Price.
(b) If the Holder does not duly exercise this Warrant within thirty
(30) days of the Redemption Notice, the Company may effect the redemption on the
terms set forth in the Redemption Notice.
(c) For purposes of this Section 6, the "Fair Market Value" of a
share of Common Stock as of a particular date (the "Valuation Date") shall mean
the following:
(I) if the Common Stock is then listed on a national securities
exchange, the average closing sale price of one share of Common Stock on
such exchange over the twenty (20) trading days ending on the last trading
day prior to the Valuation Date; provided that if such stock has not
traded in the twenty (20) consecutive trading days prior to the Valuation
Date, the Fair Market Value shall be the average closing price of one
share of Common Stock in the most recent twenty (20) trading days during
which the Common Stock has traded prior to the Valuation Date;
(II) if the Common Stock is then included in The Nasdaq Stock
Market, Inc. ("Nasdaq"), the average closing sale price of one share of
Common Stock on Nasdaq over the twenty (20) trading days ending on the
last trading day prior to the Valuation Date or, if no closing sale price
is available for any of such twenty (20) trading days, the closing sale
price for such day shall be determined as the average of the high bid and
the low ask price quoted on Nasdaq as of the end of such trading day;
provided that if the Common Stock has not traded in the twenty (20)
consecutive trading days prior to the Valuation Date, the Fair Market
Value shall be the average closing price of one share of Common Stock in
the most recent twenty (20) trading days during which the Common Stock has
traded prior to the Valuation Date;
(III) If the Common Stock is then included in the OTC BB ("OTC BB"),
the average closing sale price of one share of Common Stock on the OTC BB
over the twenty (20) trading days ending on the last trading day prior to
the Valuation Date or, if no closing sale price is available for any of
such twenty (20) trading days, the closing sale price for such day shall
be determined as the average of the high bid and the low ask price quoted
on the OTC BB as of the end of such trading day; provided that if the
Common Stock has not traded in the twenty (20) consecutive trading days
prior to the Valuation Date, the Fair Market Value shall be the average
closing price of one share of Common Stock in the most recent twenty (20)
trading days during which the Common Stock has traded prior to the
Valuation Date;
-4-
(IV) if the Common Stock is then included in the "pink sheets", the
average closing sale price of one share of Common Stock on the "pink
sheets" over the twenty (20) trading days ending on the last trading day
prior to the Valuation Date or, if no closing sale price is available for
any of such twenty (20) trading days, the closing sale price for such day
shall be determined as the average of the high bid and the low ask price
quoted on the "pink sheets" as of the end of such trading day; provided
that if the Common Stock has not traded in the twenty (20) consecutive
trading days prior to the Valuation Date, the Fair Market Value shall be
the average closing price of one share of Common Stock in the most recent
twenty (20) trading days during which the Common Stock has traded prior to
the Valuation Date; or
(V) if the Common Stock is not then listed on a national securities
exchange or quoted on Nasdaq or the OTC BB or the "pink sheets", the Fair
Market Value of one share of Common Stock as of the Valuation Date shall
be determined in good faith by the Board of Directors of the Company (the
"Board").
Section 7. Compliance with Securities Act and Legends. The Holder, by
acceptance hereof, agrees that it will not offer, sell or otherwise dispose of
this Warrant, or any shares of Common Stock to be issued upon exercise hereof,
except under circumstances which will not result in a violation of the
Securities Act, or any state's securities laws. All shares of Common Stock
issued upon exercise of this Warrant shall be stamped or imprinted with a legend
as follows:
THIS SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER
SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION
STATEMENT COVERING THESE SECURITIES UNDER THE ACT AND ANY OTHER APPLICABLE
SECURITIES LAWS, OR (2) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Section 8. Rights as a Stockholder. Except as expressly provided in this
Warrant, no Holder, as such, shall be entitled to vote or receive dividends or
be deemed the holder of Common Stock or any other securities of the Company
which may at any time be issuable on the exercise hereof for any purpose, nor
shall anything contained herein be construed to confer upon the Holder, as such,
any of the rights of a stockholder of the Company or any right to vote for the
election of the directors or upon any matter submitted to stockholders at any
meeting thereof, or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise, until this Warrant shall have been exercised
and the Warrant Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein.
-5-
Section 9. Amendments. This Warrant and any provision hereof shall not be
changed, waived, discharged or terminated except by an instrument in writing
signed by the Company and the Holder, and such change, waiver, discharge or
termination shall be binding on any future Holder.
Section 10. Notices. The notice provision of the Purchase Agreement are
expressly incorporated into this Warrant.
Section 11. Governing Law. This Note is made and delivered in, and shall
be governed by the laws of, and construed in accordance with the laws of, the
State of New Jersey (without giving effect to the principles of conflicts of
laws of the State of New Jersey or any other state).
Section 12. Acceptance. Receipt and execution of this Warrant by the
Holder hereof shall constitute acceptance of and agreement to the foregoing
terms and conditions.
Section 13. Assignment. This Warrant shall not be transferred by the
Holder without the prior written consent of the Company.
[Signature page follows]
-6-
IN WITNESS WHEREOF, the Company and the Holder have caused this Warrant to
be executed on their behalf by one of their officers thereunto duly authorized.
ROOMLINX, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
B-1
APPENDIX A
NOTICE OF EXERCISE
To: ROOMLINX, INC.
1. The undersigned hereby irrevocably elects to purchase [_____] shares of
Common Stock of ROOMLINX, INC. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full, by
[cash, certified check/wire transfer, or other form of payment approved by the
Company [select the applicable method of payment].
2. Please issue a certificate or certificates representing said shares in the
name of the undersigned or in such other name or names as are specified below:
------------------------------
------------------------------
(Name)
------------------------------
(Address)
(Signature)
------------------------------
(Date)
------------------------------
3. Please issue a new Warrant of equivalent form and tenor for the unexercised
portion of the attached Warrant in the name of the undersigned or in such other
name as is specified below:
--------------------------------------
Date:
--------------------------------
(Warrantholder)
----------------------
Name: (Print)
------------------------
By:
-----------------------------------
-8-
