1
EXHIBIT 4.11
Number of Shares:
----------
FORM OF U.S. TECHNOLOGIES INC.
COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES PURCHASABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND,
NOTWITHSTANDING ANY OTHER PROVISION OF THIS WARRANT, MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES OR THE CORPORATION RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF THESE SECURITIES (REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL), OR AN OPINION OF THE CORPORATION'S COUNSEL,
STATING THAT SUCH SALE, TRANSFER, OR ASSIGNMENT IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
FOR VALUE RECEIVED, ______________________ or any successor in interest
(the "Holder"), is entitled to purchase from US. Technologies Inc., a Delaware
corporation (the "Corporation"), subject to the terms and conditions herein set
forth, at any time after [the Closing Date of the Merger] (the "Commencement
Date") and before 5:00 p.m. Eastern Standard Time on __________________, 2004
[3 years after the Closing Date of the Merger] (the "Expiration Date"),
____________ shares of duly authorized, validly issued, fully paid and
nonassessable Common Stock of the Corporation, US$0.02 par value (the "Warrant
Shares"), subject to adjustment of the number of shares constituting the Warrant
Shares as hereinafter provided. The Holder is entitled to purchase the Warrant
Shares for an exercise price of [the average price of the Corporation Common
Stock as reported on the "Over the Counter Market" ("OTC BB"), or other
nationally recognized market quotation system, for the 20 trading days
immediately prior to the closing date of the Acquisition, but in any event not
less than $0.25 per share] per share, subject to adjustment as hereinafter
provided (the "Exercise Price"), and is entitled also to exercise the other
appurtenant rights, powers, and privileges hereinafter set forth.
Definitions.
For all purposes of this Warrant, unless the context otherwise
requires, the following terms have the following meanings:
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, a Person
shall be deemed to control another Person if it possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through ownership of voting securities,
by contract or otherwise.
"Business Day" means any day other than a Saturday, Sunday or public
holiday or the equivalent for banks under the laws of Washington, D.C..
"Closing Price" has the meaning ascribed to that term in Section 0.
Exhibit 4.11
Page 1
2
"Commencement Date" has the meaning ascribed to that term in the
forepart of this Agreement.
"Common Stock" means the Corporation's authorized Common Stock, par
value $0.02 per share.
"Common Stock Equivalents" has the meaning ascribed to that term in
Section 0.
"Corporation" means U.S. Technologies Inc., a corporation organized and
existing under the laws of the State of Delaware, and any successor corporation.
"Current Market Price"
"Current Market Price" means, for any date, the average of the daily
Closing Prices per share of Common Stock for the 20 consecutive trading days
immediately prior to such date. The "Closing Price" per share of Common Stock
for each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the "Over the
Counter Market" ("OTC BB"), the NASDAQ National Market System, the New York
Stock Exchange or the American Stock Exchange, as applicable. If on any such
trading day or days such securities are not quoted by any such organization,
such trading day or days shall be replaced for purposes of the foregoing
calculation by the requisite trading day or days preceding the commencement of
such 20 trading day period on which such securities are so quoted. If shares of
Common Stock are not so listed or traded, the Current Market Price shall mean
the fair value per share of Common Stock as determined in good faith by the
Board of Directors, whose determination shall be described in a notice to the
Holders, based on (a) the most recently completed arm's-length transaction
between the Corporation and a Person other than an existing shareholder or other
Affiliate of the Corporation, the closing of which occurred on such date or
within the three-month period preceding such date, or (b) if no such transaction
shall have occurred on such date or within such three-month period, the advice
of an independent financial expert selected by the unanimous agreement of all
Directors.
"Current Market Price of this Warrant" means the Current Market Price
of the Common Stock subject to this Warrant minus the Exercise Price of this
Warrant established in accordance with Article 4.
"Exercise Price" means the exercise price for the Warrant Shares
established in accordance with Article 4.
"Existing Stock" shall have the meaning ascribed to that term in
Section 4.4 hereof.
"Expiration Date" has the meaning ascribed to that term in the forepart
of this Agreement.
"Holder" means _________________________, and its successors or
permitted assigns as holder of this Warrant.
"1933 Act" means the Securities Act of 1933, as amended.
"Person" means any natural person, sole proprietorship, general
partnership, limited partnership, limited liability Company, joint venture,
trust, unincorporated organization, association, corporation, institution,
private or governmental entity, or party.
Exhibit 4.11
Page 2
3
"Rights" has the meaning ascribed to that term in Section 0.
"Subscription Notice" means a written notice to the Corporation of
Xxxxxx's election to exercise its rights under the Warrant to purchase Common
Stock, in substantially the form appearing at the end of this Warrant.
"Warrant" means this Warrant and any warrants issued on or in
substitution for this Warrant including warrants issued in exchange for this
Warrant pursuant to Article 2 hereof.
"Warrant Shares" means the shares of Common Stock or other securities
acquired or to be acquired upon the exercise of the Warrant.
Exercise of Warrant; Division of Warrant.
Partial Exercise. This Warrant may be exercised, in whole or in part,
on or after the Commencement Date and until and including the Expiration Date.
In the event of a partial exercise, the Corporation shall execute and deliver to
the Holder (or to such other Person as shall be designated in the Subscription
Notice) a new Warrant covering the unexercised portion of the Warrant Shares.
Procedure. To exercise this Warrant, the Holder shall deliver to the
Corporation at its principal office at the address set forth in Section 8.2
hereof:
- a written notice, in substantially the form of the
Subscription Notice appearing at the end of this Warrant, of
the Holder's election to exercise this Warrant;
- a cashier's or certified check payable to the Corporation in
the amount of the Exercise Price; and
- this Warrant.
The Corporation shall as promptly as practicable, and in any event
within five Business Days after receipt of such notice, execute and deliver or
cause to be executed and delivered one or more certificates representing the
aggregate number of shares of Warrant Shares to which the Holder is entitled
and, if this Warrant is exercised in part, a new Warrant as set forth in Section
0.
Name and Effective Date. The stock certificate(s) so delivered shall be
issued in the name of the Holder or such other name as shall be designated in
the Subscription Notice. Such certificate(s) shall be deemed to have been issued
and such Holder or any other Person so designated to be named therein shall be
deemed for all purposes to have become a holder of record of such shares as of
the date the Corporation actually receives the Subscription Notice.
Expenses. The Corporation shall pay all expenses, taxes, and other
charges payable in connection with the preparation, issue, and delivery of such
stock certificate(s), except that, in case such stock certificate(s) shall be
registered in a name or names other than the name of the Holder of this Warrant,
stock transfer taxes that are payable upon the issuance of such stock
certificate(s) shall be paid by the Holder hereof.
Legal Requirements. The Warrant Shares issued upon the exercise of this
Warrant shall be validly issued, fully paid and nonassessable.
Exhibit 4.11
Page 3
4
No Fractional Shares. The Corporation shall not be required to issue
fractional shares of Warrant Shares upon exercise of this Warrant. At the
Corporation's discretion, in the-event the Corporation determines not to issue
fractional shares, in lieu of any fractional shares to which the Holder would
otherwise be entitled, the Corporation shall pay cash equal to such fraction
multiplied by the Current Market Price.
Registration: Exchange of Warrant. The Corporation will keep at its
principal office a register in which the Corporation will provide for the
registration and transfer of this Warrant. The Holder of this Warrant, or of any
warrant substituted therefor pursuant to the provisions of this Section 0, may,
at its option, in person or by duly authorized attorney, surrender the same for
exchange at such principal office of the Corporation and, within a reasonable
time thereafter and without expense (other than transfer taxes, if any), receive
in exchange therefor one or more duly executed warrants each evidencing the
right to receive one share of Common Stock of the Corporation or such other
whole number of shares as may be designated by the Holder at the time of
surrender. The Corporation covenants and agrees to take and cause to be taken
all action necessary to effect such registrations, transfers and exchanges. The
Corporation and any agent of the Corporation may treat the person in whose name
a warrant is registered as the owner of the warrant for all purposes hereunder
and neither the Corporation or such agent shall be affected by notice to the
contrary.
Cashless Exercise. Notwithstanding Section 0 of this Warrant or any
other provision of this Warrant to the contrary, in addition to the Holder's
rights under this Warrant, the Holder may, upon full exercise of this Warrant,
at its election, pay the aggregate Exercise Price applicable to such exercise by
delivering the Warrant to the Corporation and receiving from the Corporation in
return therefor the number of shares of Common Stock having a Current Market
Price on the date of exercise equal to the "Current Market Price of this
Warrant" as established by Section 0.
Transfer.
Permitted Transfers. This Warrant shall be freely transferable, in
whole or in part, subject to the limitations specified in Section 0 herein.
Securities Laws. This Warrant shall not be transferable unless:
- either a registration statement under the 1933 Act is in
effect covering the Warrant or the Corporation has received an
opinion from the Corporation's counsel to the effect that such
registration is not required, or the Holder has furnished to
the Corporation an opinion of Xxxxxx's counsel, which counsel
shall be reasonably satisfactory to the Corporation, to the
effect that such registration is not required; and
- the proposed transfer complies with any applicable state
securities laws.
In the event Xxxxxx seeks an opinion from the Holder's counsel as to
transfer without registration, the Corporation shall provide such factual
information to Xxxxxx's counsel as Xxxxxx's counsel may reasonably request for
the purpose of rendering such opinion, and such counsel may rely on the accuracy
and completeness of such information in rendering such opinion. In the event the
Corporation seeks an opinion from the Corporation's counsel as to transfer
without registration, the Holder shall provide such factual information to the
Corporation's counsel as Corporation's counsel way reasonably request for the
Exhibit 4.11
Page 4
5
purpose of rendering such opinion, and such counsel may rely on the accuracy and
completeness of such information in rendering such opinion.
Procedure. Subject to the limitations set forth in Section 0, the
Holder may transfer this Warrant on the books of the Corporation by surrendering
at the principal office of the Corporation at the address set forth in Section
8.2 hereof:
- this Warrant;
- a written assignment of this Warrant, in substantially the
form of the Assignment appearing at the end of this Warrant,
naming the assignee and duly executed by the Holder; and
- funds sufficient to pay any stock transfer taxes payable upon
the making of such transfer.
The Corporation shall thereupon execute and deliver a new Warrant in
the name of the assignee specified in such instrument of assignment, and if this
Warrant is transferred in part, the Corporation shall also execute and deliver
in the name of the Holder a new Warrant covering the untransferred portion of
this Warrant. Upon issuance of the new Warrant or Warrants, the Warrant
surrendered for transfer shall be canceled by the Corporation.
Expenses. The Corporation shall pay all expenses, taxes (other than
transfer taxes) and other charges payable in connection with the preparation,
issue and delivery of any new Warrant under this Article 3.
Exercise Price and Adjustments.
Initial Exercise Price. The initial Exercise Price for the Warrant
Shares shall be [the average price of the Corporation Common Stock as reported
on the "Over the Counter Market" ("OTC BB"), or other nationally recognized
market quotation system, for the 20 trading days immediately prior to the
closing date of the Acquisition, but in any event not less than $0.25 per share]
per share of Common Stock, subject to adjustment as set forth in this Article 4.
Stock Splits, Stock Dividends and Reverse Stock Splits. If at any time
the Corporation shall subdivide (by reclassification, by the issuance of a
Common Stock dividend on Common Stock, or otherwise) its outstanding shares of
Common Stock into a greater number, the number of shares of Common Stock that
may be purchased hereunder shall be increased proportionately and the Exercise
Price per share of Common Stock shall be decreased proportionately as of the
effective date of such action. The effective date of a stock dividend shall be
the date on which the dividend is declared. Issuance of a Common Stock dividend
shall be treated as a subdivision of the whole number of shares of Common Stock
outstanding immediately before the record date for such dividend into a number
of shares equal to such whole number of shares so outstanding plus the number of
shares issued as a stock dividend. If at any time the Corporation shall combine
(by reclassification or otherwise) its outstanding number of shares of Common
Stock into a lesser number, the number of shares of Common Stock that may be
purchased hereunder shall be reduced proportionately and the Exercise Price per
share of Common Stock shall be increased proportionately as of the effective
date of such action.
Exhibit 4.11
Page 5
6
Dividends Other than in Common Stock or Cash: Other Distributions. If
at any time while this Warrant is outstanding the Corporation shall declare or
make for the benefit of all holders of its Common Stock any dividend or
distribution upon its Common Stock other than ordinary cash dividends or
distributions to which Section 0 or 0 apply (whether payable in stock of any
class or classes other than its Common Stock or payable in evidences of
indebtedness or assets or in rights, options, or warrants or convertible or
exchangeable securities), then in each such case the number of shares of Common
Stock that may be purchased hereunder shall be determined by multiplying the
number of shares of Common Stock theretofore comprising the Warrant Shares by a
fraction, the numerator of which shall be the Current Market Price per share of
the Common Stock determined in accordance with Section 0 as of the record date
for such dividend or distribution and the denominator of which shall be the
Current Market Price per share, as so determined, less the fair value as of such
date, as reasonably determined by the Board of Directors of the Corporation, of
the portion of such dividend or distribution applicable to one share of Common
Stock. Such adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to the record
date for the determination of shareholders entitled to receive the distribution.
In the event the Corporation determines that the adjustment provided for above
is unduly difficult or expensive to effect because of difficulties of valuation,
the Corporation may, at its option and as an alternative to the adjustment,
distribute and place in escrow for the Holder that portion of such dividend or
distribution which the Holder would have received had it exercised this Warrant
before the declaration of the dividend or the making of the distribution. Upon
exercise of this Warrant, the Holder shall receive its portion of the dividend,
distribution or rights held is escrow.
Issuance on Common Stock of Options, Warrants or Rights.
If at any time while this Warrant is outstanding the Corporation shall
grant to all holders of its Common Stock any rights, options or warrants
(referred to in this Section 0 as "Rights") entitling them to purchase shares of
Common Stock at a price per share that is lower at the record date for such
issuance than the Current Market Price of the Common Stock on such date
determined in accordance with Section 0, (i) the number of shares of Common
Stock that may be purchased hereunder shall be adjusted by multiplying the
number of Shares of Common Stock theretofore comprising the Warrant Shares by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding or subject to issuance other than pursuant to the Rights as of such
record date (the "Existing Stock") plus the number of shares subject to issuance
pursuant to the Rights and the denominator of which shall be the number of
shares of Existing Stock plus the number of shares which the aggregate exercise
price of the Rights would purchase at the then Current Market Price per share of
Common Stock; and (ii) the Exercise Price shall be adjusted by multiplying the
Exercise Price in effect immediately prior to such adjustment by a fraction, the
numerator of which is equal to the number of shares of Common Stock that could
be purchased hereunder immediately prior to the adjustment contemplated by
Section 00(i) and the denominator of which is equal to the number of shares of
Common Stock that can be purchased hereunder immediately following such
adjustment. Such adjustments shall be made whenever Rights are issued and shall
become effective retroactively immediately after the record date for the
determination of shareholders entitled to receive such Rights. In the event the
Corporation determines that the adjustments provided for above in this Section
are unduly difficult or expensive to effect because of difficulties of
valuation, the Corporation may, at its option and as an alternative to the
adjustment, grant and convey to the Holder the Rights which the Holder would
have received had it exercised this Warrant before issuance of the Rights.
Exhibit 4.11
Page 6
7
On the expiration or termination of any of the Rights, the number of
shares of Common Stock then purchasable upon the exercise of each Warrant and
the Exercise Price then in effect shall be subject to readjustment and the
number of shares of Common Stock subject to the Warrants shall forthwith be
decreased and the Exercise Price under the Warrants shall forthwith be increased
to that which would have been in effect at the time of such expiration or
termination had such Rights, to the extent outstanding immediately prior to such
expiration or termination, never been issued.
Anti-dilution Adjustment.
In case the Corporation shall at any time after the date of this
Warrant issue for consideration any shares of Common Stock at a per-share price
less than the Current Market Price, or any securities or rights (such other
securities or rights herein called "Common Stock Equivalents") convertible into
Common Stock or entitled to receive Common Stock or any other equity security
entitled to participate with the Common Stock in the earnings or assets of the
Corporation (but not any equity security entitled to a fixed preference in such
earnings or assets rather than a participation therein) for a price per share
(including both the purchase price of such Common Stock Equivalents and any
additional amount required to be paid upon the exercise thereof) less than the
per share Current Market Price (i) the Exercise Price shall forthwith be reduced
by multiplying it by a fraction:
The numerator of which is equal to the sum of
(x) the total number of shares of Common Stock outstanding
immediately prior to such issuance (including the Warrant
Shares) multiplied by the Current Market Price of the Common
Stock,
(y) the total number of additional shares of Common Stock so
sold multiplied by the price per share, if any, for which such
shares are sold, and
(z) the aggregate amount paid for the Common Stock Equivalents
so sold plus the aggregate amount subsequently required to be
paid upon the exercise of such Common Stock Equivalents to
acquire the subject shares of Common Stock (for the purpose of
this Section 4.5, the sum of (x), (y) and (z) to be referred
to as the "Numerator").
and:
The denominator of which is equal to the total number of shares of
Common Stock (including the Warrant Shares) deemed to be outstanding
immediately after the issuance of such additional shares of Common
Stock or Common Stock Equivalents multiplied by the Current Market
Price of the Common Stock (for the purpose of this Section 4.5, the
"Denominator").
provided, however, that should the Numerator be equal to or greater
than the Denominator, the Exercise Price shall remain unchanged for the purpose
of this Section 4.5(a).
(ii) The number of Warrant Shares shall be increased to an amount
equal to the result obtained by (x) multiplying the number of Warrant
Shares by the Exercise Price in effect immediately before the
adjustments contemplated by this Section 0 and (y) dividing by the
Exercise Price in effect immediately after the adjustment contemplated
by this Section 0.
Exhibit 4.11
Page 7
8
For purposes of clause (i) of Subsection 00, the total number of shares
of Common Stock deemed to be outstanding shall include that number of shares of
Common Stock actually outstanding plus that number of shares of Common Stock
then issuable under this Warrant plus that number of shares of Common Stock then
issuable pursuant to the terms of the Common Stock Equivalents.
For purposes of this Section 0, the price per share for which
additional shares of Common Stock and Common Stock Equivalents are issued or
sold shall, to the extent such price consists of cash, be computed on the basis
of the amount of cash received by the Corporation (and in the case of Common
Stock Equivalents, such amount plus the amount of cash required to be paid to
acquire additional shares of Common Stock), after deduction of any expenses
payable by the Corporation and any underwriting or similar commissions,
compensations or concessions paid or allowed by the Corporation in connection
with such issue or sale. To the extent that the consideration for such
additional shares and Common Stock Equivalents is property or services other
than cash, the amount thereof shall be the value received by or required to be
paid to the Corporation as fixed in good faith by the Board of Directors of the
Corporation.
Upon the expiration unexercised of the entitlement to receive shares of
Common Stock under any Common Stock Equivalents the issuance of which resulted
in an adjustment to the Exercise Price under this Section 0, then the Exercise
Price shall thereupon be increased by the amount that the issuance or sale of
such Common Stock Equivalent caused the Exercise Price to be decreased (subject
to any applicable adjustment hereunder) and thereafter adjustments will be made
to the Exercise Price in accordance with this Section 0.
Reorganization and Reclassification. In case of any capital
reorganization or any reclassification of the capital stock of the Corporation
while this Warrant remains outstanding, the Holder of this Warrant shall
thereafter be entitled to purchase pursuant to this Warrant (in lieu of the kind
and number of shares of Common Stock comprising Warrant Shares that such Holder
would have been entitled to purchase or acquire immediately before such
reorganization or reclassification) the kind and number of shares of stock of
any class or classes or other securities or property for or into which such
shares of Common Stock would have been exchanged, converted, or reclassified if
the Warrant Shares had been purchased immediately before such reorganization or
reclassification. In case of any such reorganization or reclassification,
appropriate provision (as determined by resolution of the Board of Directors of
the Corporation) shall be made with respect to the rights and interest
thereafter of the Holder of this Warrant, to the end that all the provisions of
this Warrant (including adjustment provisions) shall thereafter be applicable,
as nearly as reasonably practicable, in relation to such stock or other
securities or property.
When Adjustment Is Not Required. No adjustment in the Exercise Price or
the numbers of Warrant Shares need be made under this Article 4 in connection
with any of the following:
A change in the par value of the Common Stock; provided, however, that
in no event shall the Corporation increase the par value of the Common
Stock to an amount greater than the Exercise Price that would be in
effect subsequent to the transaction in which the par value would be
increased.
A grant of employee stock options or other stock awards or plans (i)
which are exercisable at the current market price of the Common Stock
at the date of such award (calculated in accordance with any such
option plan) and (ii) which in the aggregate do not exceed 10% of the
outstanding Common Stock of the Corporation, on a fully diluted basis.
Any employee stock options granted
Exhibit 4.11
Page 8
9
which exceed such percentage shall be considered in connection with the
adjustments under Section 0.
Statement of Adjustment of Warrant Shares. Whenever the number or kind
of shares comprising the Warrant Shares or the Exercise Price is adjusted
pursuant to this Article 4, the Corporation shall promptly give notice to the
Holder of record of the outstanding Warrant, stating that such an adjustment has
been effected and setting forth the number and kind of shares purchasable and
the amount of the then-current Exercise Price, and stating in reasonable detail
the facts requiring such adjustment and the calculation of such adjustment.
No Other Adjustments. No adjustments in the number or kind or price of
shares constituting Warrant Shares shall be made except as provided in this
Article 4.
Covenants of the Corporation.
The Corporation covenants and agrees that:
Adjustment of Par Value. Before taking any action that would cause an
adjustment reducing the Exercise Price per share below the then par value of the
shares of Warrant Shares issuable upon exercise of the Warrant, the Corporation
will take any corporate action that may be necessary in order that the
Corporation may validly and legally issue fully paid and nonassessable shares of
such Warrant Shares at such adjusted price.
Notice of Certain Significant Events. In case the Corporation proposes:
- to pay any dividend, payable in stock (of any class or
classes) or in convertible securities, upon its Common Stock
or to make any distribution (other than ordinary cash
dividends) to the holders of its Common Stock; or
- to subdivide as a whole (by reclassification, by the issuance
of a stock dividend on Common Stock, or otherwise) the number
of shares of Common Stock then outstanding into a greater
number of shares of Common Stock, with or without par value;
or
- to grant to the holders of its Common Stock generally any
rights or options; or
- to effect any capital reorganization or reclassification of
capital stock of the Corporation; or
- to consolidate with, or merge into, any other corporation or
business or transfer its property as an entirety or
substantially as an entirety; or
- to effect the liquidation, dissolution or winding up of the
Corporation; or
- to make any other fundamental change in respect of which the
Holder of this Warrant would have been entitled to vote,
pursuant to voting rights which are required to be afforded to
the Holder under the corporation law of Delaware, if this
Warrant had been previously exercised;
then the Corporation shall cause notice of any such intended action to be given
to the Holder of record of this Warrant (i) not less than 60 days before the
date on which the transfer books of the Corporation shall
Exhibit 4.11
Page 9
10
close or a record be taken for such stock dividend, distribution, granting of
rights or options or for determining rights to vote in respect of any
fundamental change, including any capital reorganization, reclassification,
consolidation, merger, transfer, liquidation, dissolution, winding up or any
other fundamental change, and (ii) in the case of any such capital
reorganization, reclassification, consolidation, merger, transfer, liquidation,
dissolution, winding up, or other fundamental change, not less than 30 days
before the same shall be effective.
Limitation of Right or Liability.
No provision of this Warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent or to receive dividends or to
receive notice as a stockholder in respect of meetings of stockholders for the
election of directors of the Corporation or any other matter whatsoever as a
stockholder of the Corporation. In the absence of affirmative action by the
Holder hereof to purchase shares of Common Stock, no provision hereof shall give
rise to any liability of such Holder for the purchase price or as a stockholder
of the Corporation, whether such liability is asserted by the Corporation or by
creditors of the Corporation.
Certain Mergers: Liquidation.
Continuation of Warrant. Except as provided in Section 0, in the event
that the Corporation proposes to consolidate with, or merge into, any other
corporation or business or to transfer its property as an entirety or
substantially as an entirety, or to effect the liquidation, dissolution or
winding up of the Corporation, or to change the Common Stock in any manner
(other than to change its par value, subject to Sections 0 and 0 hereof), then
after the Corporation causes notice of such proposed action to be given to the
Holder of record as provided in Section 0, the Holder shall be entitled, on or
before the effective date of such merger, consolidation, transfer, liquidation,
dissolution, winding up, or change, to require the Corporation of the successor
or purchasing entity, as the case may be, to (a) execute with the Holder an
agreement providing that the Holder shall have the right thereafter and
throughout the then remaining term of this Warrant, upon payment of the Exercise
Price per Warrant Share in effect immediately prior to such action to purchase
with respect to each share of Warrant Shares issuable upon exercise of this
Warrant the kind and amount of shares of stock and other securities, property
(including cash) or any combination thereof which the Holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, conveyance, or change had this Warrant been exercised with respect to such
share of the Warrant Shares immediately prior to such action and (b) make
effective provision in its Certificate of Incorporation or otherwise, if
necessary, in order to effect such agreement. Such agreement shall provide for
adjustments which shall be as nearly equivalent as practicable to the
adjustments in Article 4 of this Warrant. The provisions of this Section 0 shall
similarly apply to successive consolidations, mergers, sales, conveyances, or
changes.
Exception. Section 0 shall not apply to a consolidation or merger with
a Person in which the Corporation is the surviving entity.
Miscellaneous.
Governing Law. The rights of the parties arising under this Warrant
shall be construed and enforced under the laws of the State of Delaware without
giving effect to any choice of law or conflict of law rules.
Exhibit 4.11
Page 10
11
Notices. Any notice or other communication required or permitted to be
given or delivered pursuant to this Warrant shall be in writing and shall be
deemed effective as of the date of receipt if delivered personally or by
facsimile transmission (if receipt is confirmed by the facsimile operator of the
recipient), or delivered by overnight courier service or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the following addresses (or at such other address in the United States for a
party as shall be specified by like notice; provided that notices of change of
address shall be effective only upon receipt thereof):
(i) to the Holder as follows:
Attn:
Facsimile No.:
copies to:
(ii) to the Corporation as follows:
U.S. Technologies Inc.
0000 Xxxxxxxxxxx Xxx., XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Facsimile Number: (000) 000-0000
with copies to:
Xxxx Xxxxxxx
0000 X Xxxxxx, X.X.
Washington, DC 20037
Attn: Xxxxxxx Xxxx, Esq.
Facsimile Number: (000) 000-0000
Severability. If any provision of this Warrant shall be held invalid,
such invalidity shall not affect any other provision of this Warrant that can be
given effect without the invalid provision, and to this end, the provisions
hereof are separable.
Headings. The headings in this Warrant are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Warrant.
Amendment. This Warrant cannot be amended or modified except by a
written agreement executed by the Corporation and the Holder.
Assignment. This Warrant shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, personal representatives,
successors and assigns except that no party may assign or transfer its rights or
obligations under this Warrant to the extent explicitly prohibited herein.
Exhibit 4.11
Page 11
12
Entire Agreement. This Warrant, together with its attachments, contains
the entire understanding among the parties hereto with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained.
Exhibit 4.11
Page 12
13
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
signed in its name by its President or a Vice President thereunto duly
authorized.
Dated:
-----------------------------
U.S. TECHNOLOGIES INC.
By:
-------------------------------------
Xxxxxxx Xxxxx
Chairman and CEO
Exhibit 4.11
Page 13
14
SUBSCRIPTION NOTICE
The undersigned, the Holder of a Common Stock Purchase Warrant issued
by U.S. Technologies Inc. pursuant to the Merger Agreement dated as of
_____________, 2001 among U.S. Technologies Inc., Xxxxx.xxx Inc., and U.S.
Technologies Acquisition Co., hereby elects to exercise purchase rights
represented by such Warrant for, and to purchase thereunder, _______ shares of
the Common Stock covered by such Warrant and herewith makes payment in full
therefor of ___________ and requests that certificates for such shares (and any
securities or the property issuable upon such exercise) be issued in the name of
and delivered to ___________________________________________________________,
whose address is
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------.
If said number of shares of Common Stock is less than the number of
shares of Warrant Shares purchasable hereunder, the undersigned requests that a
new Warrant representing the balance of the Warrant Shares be registered in the
name of and issued and delivered to
______________________________________________________________, whose address is
-----------------------------------------------------------------------
-----------------------------------------------------------------------.
The undersigned hereby agrees to pay any transfer taxes on the transfer
of all or any portion of the Warrant or Warrant Shares requested herein that is
issued to a Person other than the undersigned Holder.
The undersigned agrees that, in the absence of an effective
registration statement with respect to Common Stock issued upon this exercise,
the undersigned is acquiring such Common Stock for investment and not with a
view to distribution thereof and the certificate or certificates representing
such Common Stock may bear a legend substantially as follows: "The shares
represented by this certificate have not been registered under the Securities
Act of 1933, as amended, and may not be transferred except as provided in
Article 3 of the Common Stock Purchase Warrant issued by U.S. Technologies Inc.
on [______________, 2001], a copy of which is on file at the principal office of
U.S. Technologies Inc."
----------------------------------------
Date:
---------------------
Exhibit 4.11
Page 14
15
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto [Name and Address] the rights with respect to Warrant Shares
------------------ ------
represented by the foregoing Common Stock Purchase Warrant issued by U.S.
Technologies Inc. on [date] , and appoints , its attorney to transfer
------ -----------
said rights on the books of said corporation, with full power of substitution in
the premises.
----------------------------------------
Signature guaranteed:
Date:
----------------------
Exhibit 4.11
Page 15
