EXHIBIT 4.46
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") NOR UNDER ANY
STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS HAS BECOME EFFECTIVE WITH RESPECT THERETO, OR
(2) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL TO THE COMPANY TO THE EFFECT
THAT REGISTRATION UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.
THIS WARRANT MAY NOT BE EXERCISED EXCEPT IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS TO THE REASONABLE SATISFACTION OF THE COMPANY
AND LEGAL COUNSEL FOR THE COMPANY.
Void after 5:00 p.m. New York City Time, on August 31, 2003
Warrant to Purchase 100,000 Shares of Common Stock
WARRANT TO PURCHASE COMMON STOCK, PAR VALUE $0.01,
OF
XXXXXX.XXX, INC.
This is to Certify That, FOR VALUE RECEIVED, GLOBAL IMPACT
COMMUNICATION INCORPORATED or their permitted assigns ("Holder") is entitled to
purchase, subject to the provisions of this Warrant, from Xxxxxx.xxx, Inc., a
Delaware corporation (the "Company"), up to ONE HUNDERD THOUSAND (100,000) fully
paid, validly issued and nonassessable shares of Common Stock, par value $.01
per share, of the Company ("Common Stock") at a price of $2.25 per share at any
time or from time to time during the period from the date hereof to August 31,
2003, as set forth under (a) below, but not later than 5:00 p.m. New York City
Time, on August 31, 2003. The number of shares of Common Stock to be received
upon the exercise of this Warrant and the price to be paid for each share of
Common Stock may be adjusted from time to time as hereinafter set forth. The
shares of Common Stock deliverable upon such exercise, and as adjusted from time
to time, are hereinafter sometimes referred to as "Warrant Shares" and 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 "Exercise Price."
(a) EXERCISE OF WARRANT. This Warrant may be exercised in whole, or in
part in increments of not less than 20,000 shares, at any time or from time to
time, until August 31, 2003. This Warrant may be exercised by presentation and
surrender hereof to the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form annexed hereto as Exhibit A
duly executed and accompanied by payment of the Exercise Price for the number of
Warrant Shares specified in such form and any and all transfer taxes applicable
to such exercise. As soon as practicable after each such exercise, but not later
than 30 days from the date of such exercise, the Company shall issue and deliver
to the Holder a certificate or certificate 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
rights of the Holder thereof to purchase the balance of the Warrant Shares
purchasable thereunder.
(b) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
the Warrant.
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(c) FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the Current Market Value of a share, determined as follows:
(1) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange or listed for
trading on the Nasdaq National Market, the Current Market Value shall
be the last reported sale price of the Common Stock on such exchange or
market on the last business day prior to the date of exercise of this
Warrant or if no such sale is made on such day, the average closing bid
and asked prices for such day on such exchange or market; or
(2) If the Common Stock is not so listed or admitted to unlisted
trading privileges, but is traded on the Nasdaq Small Cap Market, the
Current Market Value shall be the average of the closing bid and asked
prices for such day on such market and if the Common Stock is not so
traded, the Current Market Value shall be the mean of the last reported
bid and asked prices reported by Pink Sheets LLC or the Nasdaq OTC
Bulletin Board on the last business day prior to the date of the
exercise of this Warrant if such prices are so reported; or
(3) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the
Current Market Value shall be an amount, not less than book value
thereof as at the end of the most recent fiscal year of the Company
ending prior to the date of the exercise of the Warrant, determined in
such reasonable manner as may be prescribed by the Board of Directors
of the Company.
(d) TRANSFER, ASSIGNMENT OR LOSS OF WARRANT.
(1) Neither this Warrant, nor the shares of Common Stock issued upon
the exercise of all or a portion of this Warrant, may be transferred
(other than by will or pursuant to the laws of descent and
distribution) except with the Company's prior written consent. Any
transfer of the Warrant, or the shares of Common Stock issued upon the
exercise of the Warrant, must be done in compliance with applicable
federal and state securities laws;
(2) By acceptance of this Warrant, the Holder agrees to be bound by the
terms of a standard market standoff agreement requested by underwriters
with respect to a public offering of Common Stock acquired pursuant to
this Warrant;
(3) Upon surrender of this Warrant to the Company at its principal
office or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient to
pay any transfer tax, and with the consent of the Company, the Company
shall, without charge, execute and deliver a new Warrant in the name of
the assignee named in such instrument of assignment and this Warrant
shall promptly be cancelled.
(4) Upon receipt by the Company of evidence satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and (in the
case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant,
if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the
Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
(e) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time
and the number and kind of securities purchasable upon the exercise of the
Warrant shall be subject to adjustment from time to time upon the happening of
certain events as follows:
(1) In case the Company shall
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(i) declare a dividend or make a distribution on its out-
standing shares of Common Stock in shares of Common Stock,
(ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares, or
(iii) combine or reclassify its outstanding shares of
Common Stock into a smaller number of shares,
the number of shares subject to the Warrant shall be proportionately
increased, and the Exercise Price of the Warrant shall be
proportionately decreased, in the case of actions specified in (l)(i)
or (ii) above; and the number of shares shall be proportionately
decreased, and the Exercise Price proportionately increased, in the
case of actions specified in (l)(iii) above. Such adjustment shall be
made successively whenever any event listed above shall occur.
(2) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least five cents
($0.05) in such price; provided, however, that any adjustments which by
reason of this Subsection (2) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment
required to be made hereunder. All calculations under this Section (e)
shall be made to the nearest cent or to the nearest whole share, as the
case may be.
(3) Whenever the Exercise Price is adjusted, as herein provided, the
Company shall promptly but no later than 30 days after any request for
such an adjustment by the Holder, cause a notice setting forth the
adjusted Exercise Price and adjusted number of Warrant Shares issuable
upon exercise of each Warrant, and, if requested, information
describing the transactions giving rise to such adjustments, to be
mailed to the Holder at his last address appearing in the records of
the Company, and shall cause a copy thereof to be mailed to its
transfer agent, if any. The Company may retain a firm of independent
certified public accountants selected by the Board of Directors (who
may be the regular accountants employed by the Company) to make any
computation required by this Section (e), and a certificate signed by
such firm shall be conclusive evidence of the correctness of such
adjustment.
(4) In the event that at any time, as a result of an adjustment made
pursuant to Subsection (1) above, the Holder of this Warrant thereafter
shall become entitled to receive any shares of the Company, other than
Common Stock, thereafter the number of such other shares so receivable
upon exercise of this Warrant shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the Common Stock contained in Subsection
(1) above.
(5) Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon exercise of this Warrant, Warrants
theretofore or thereafter issued may continue to express the same price
and number and kind of shares as are stated in the Warrants previously
issued.
(f) REGISTRATION RIGHTS. The Company hereby grants the Holder the right
to "piggy back" the Warrant Shares on each Registration Statement for the sale
of Common Stock (or any securities of a successor company of the Company) filed
by the Company which includes shares of Common Stock to be offered on behalf of
selling security holders (provided that there is no objection by any such
selling security holder to the inclusion of any Warrant Shares in the
Registration Statement), at the Company's cost and expense (except those
incurred by the Holder for legal fees and commissions). The obligations of the
Company under this Section (f) expire upon the earlier of (i) after the Company
has afforded the opportunity for the Holder to exercise registration rights
under this Section (f) for three registrations, (ii) when all of the Warrant
Shares held by the Holder may be sold by the Holder under Rule 144 without being
subject to any volume restrictions, or (iii) the third anniversary of the date
of this Warrant. The Company shall give the Holder at least 30 days' prior
notice of its intent to file a Registration Statement. The Company shall use its
best efforts to keep any Registration Statement onto which Holder has "piggy
backed" his Warrant Shares effective for a period of not less than 270 days from
the date whereby the Holder is first entitled to sell thereunder, or such
shorter period terminating when the Holder has sold all of his shares. Such
"piggy back" rights are subject to standard underwriters' approval and holdback,
whereby the Holder's rights to sell
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in a public offering may be limited pro rata with the other stockholders, and
shall not apply to any Warrant Shares that can be sold under SEC Rule 144
without volume restrictions. For purposes of this Section (f), the term
Registration Statement shall mean any registration statement for the sale of
common stock or other securities filed by the Company or filed by any successor
entity (in the case of merger, reclassification, change, consolidation, sale or
conveyance of the Company) under the Act (except for a registration statement on
Form X-0, Xxxx X-0 or any successor form thereto and except for a registration
statement filed pursuant to that certain Registration Rights Agreement between
the Company and the purchasers of the Company's Series A Convertible Preferred
Stock, dated June 22, 2000).
(g) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any distribution
upon the Common Stock or (ii) if the Company shall offer to the holders of
Common Stock for subscription or purchase by them any share of any class or any
other rights or (iii) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder, at least 15 days prior the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which (x) a record is
to be taken for the purpose of such dividend, distribution or rights, or (y)
such reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any is
to be fixed, as of which the holders of Common Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
(h) COMPLIANCE WITH SECURITIES ACT. The Holder, by acceptance hereof,
(1) represents (i) that this Warrant and the Common Stock to be issued
upon exercise of this Warrant are being acquired for investment only
and not with a view toward distribution or resale, and (ii) that he
will not offer, sell or otherwise dispose of this Warrant or any Common
Stock purchasable upon exercise of this Warrant except under
circumstances which will not result in a violation of the Securities
Act; and
(2) agrees that upon exercise of this Warrant, the Holder shall (i)
submit to the Company a signed copy of Exhibits A and C attached
hereto, (ii) provide such additional information regarding such
holder's financial and investment background as the Company may
reasonably request, and (iii) all shares of Common Stock issued upon
exercise of this Warrant (unless registered under the Securities Act)
shall be stamped or imprinted with a restrictive legend substantially
in the form of the following:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") NOR UNDER ANY STATE SECURITIES
LAWS AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS HAS
BECOME EFFECTIVE WITH RESPECT THERETO, OR (2) RECEIPT BY THE
COMPANY OF AN OPINION OF COUNSEL TO THE COMPANY TO THE EFFECT
THAT REGISTRATION UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH THE
PROPOSED TRANSFER.
(i) NO AVOIDANCE. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder of
this Warrant against impairment.
(j) CERTAIN LIMITATIONS OF HOLDER. The Holder, by acceptance
hereof, agrees that:
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(1) STOP-TRANSFER NOTICES. In order to ensure compliance with the
----------------------
restrictions referred to herein, the Company may issue appropriate
"stop transfer" instructions to its transfer agent, if any, and, if the
Company transfers its own securities, it may make appropriate notations
to the same effect in its own records;
(2) REFUSAL TO TRANSFER. The Company shall not be required to (i)
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transfer the Warrant on its books or transfer any securities that have
been sold or otherwise transferred in violation of any of the
provisions of this Warrant; or (ii) treat as the owner of the Warrant
or any such securities, or accord the right to vote or pay dividends
to, any purchaser or other transferee to whom such securities shall
have been so transferred; and
(3) RIGHTS OF STOCKHOLDERS. No holder of the Warrant shall be entitled
----------------------
to vote or receive dividends or be deemed a stockholder, 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 directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to
any corporate action (whether upon any recapitalization, issuance of
stock, reclassification of stock, change of par value or change of
stock to no par value, consolidation, merger, conveyance, or otherwise)
or to receive notice of meetings, or to receive dividends, until the
Warrant shall have been exercised and the Common Stock shall have
become deliverable, as provided herein.
(k) GOVERNING LAW. The terms and conditions of this Warrant shall
be governed by and construed in accordance with the laws of the State of
Delaware.
(l) MISCELLANEOUS. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated in any manner except by an instrument in writing signed
by the Company and the Holder.
All notices and other communications from the Company to the holder of
this Warrant shall be mailed by first-class registered or certified mail or
recognized commercial courier service, postage or delivery charges prepaid, to
the address furnished to the Company in writing by the last holder of this
Warrant who shall have furnished an address to the Company in writing.
IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase
Common Stock to be duly executed by one of its duly authorized officers.
XXXXXX.XXX, INC.
By:/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Chairman of the Board
and Chief Executive Officer
Date: August 31, 2000
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Exhibit A
PURCHASE FORM
Dated ____________, 20_______
1. The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing _______ shares of Common Stock and hereby makes payment
of _____________ in payment of the actual exercise price thereof, together with
all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below:
(Please typewrite or print in block letters)
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
3. The undersigned has reviewed, signed and enclosed an Investment Representa-
tion Statement in the form attached as Exhibit C to the Warrant.
---------------------------------
Signature of Warrantholder
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Exhibit B
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________ hereby sells, assigns and transfers unto
Name _______________________________________
(Please typewrite or print in block letters)
Address ____________________________________
the right to purchase Common Stock represented by this Warrant to the extent of
______ shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint ___________ as attorney, to transfer the same on the
books of the Company with full power of substitution in the premises.
Date ____________, 20_______
Signature _____________________________
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Exhibit C
XXXXXX.XXX, INC.
WARRANT
INVESTMENT REPRESENTATION STATEMENT
AMOUNT: ________________________
DATE: _______________, 2000
In connection with the purchase of the above-listed securities (the
"Securities") from XXXXXX.XXX, INC. ("the Company"), I the undersigned Purchaser
represent to the Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am
purchasing these Securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933, as amended ("Securities
Act").
(b) I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein.
(c) I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. Moreover, I understand that the
Company is under no obligation to register the Securities. In addition, I
understand that the certificate evidencing the Securities will be imprinted with
a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Company.
(d) I am aware of the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a transaction or series of
transactions not involving a non-public offering, subject to the satisfaction of
certain conditions.
(e) I further understand that at the time I wish to sell the Securities
there may be no public market upon which to make such a sale.
(f) I further understand that in the event all of the requirements of
Rule 144 are not satisfied, registration under the Securities Act, compliance
with Regulation A, or some other registration exemption will be required; and
that, notwithstanding the fact that Rule 144 is not exclusive, the Staff of the
SEC has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
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Name of Purchaser
-----------------------------------
Date
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