Exhibit 4.3
NEITHER THESE SECURITIES NOR THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN EXEMPTION THEREFROM. ANY
SUCH TRANSFER MAY ALSO BE SUBJECT TO APPLICABLE STATE SECURITIES LAWS.
CROSS MEDIA MARKETING CORPORATION
Warrant for the Purchase of Shares of
Common Stock
500,000 Shares
FOR VALUE RECEIVED, CROSS MEDIA MARKETING CORPORATION, a Delaware
corporation (the "Company"), hereby certifies that Lancer Offshore, Inc. or
registered assigns (the "Holder") is entitled to purchase from the Company,
subject to the provisions of this Warrant (the "Warrant"), at any time on or
after February 16, 2003 (the "Initial Exercise Date"), and prior to 5:00 P.M.,
New York City time, on or prior to February 16, 2013 (the "Termination Date"),
Five hundred thousand (500,000) fully paid and non-assessable shares of the
Common Stock, $.001 par value, of the Company ("Common Stock"), at an initial
exercise price of $1.91 per share of Common Stock (the "Initial Per Share
Exercise Price"). The number of shares of Common Stock to be received upon
exercise of this Warrant and the price to be paid for each share of Common Stock
are subject to possible adjustment from time to time as hereinafter set forth.
The shares of Common Stock or other securities or property deliverable upon such
exercise as adjusted from time to time is hereinafter sometimes referred to as
the "Warrant Shares." 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 "Per Share Exercise Price." The Per Share Exercise Price is subject to
adjustment as hereinafter provided.
1. Exercise of Warrant
This Warrant may be exercised in whole or in part, at any time by
its holder commencing on the Initial Exercise Date and prior to the Termination
Date by presentation and surrender of this Warrant, together with the duly
executed subscription form and representations and warranties attached at the
end hereof, at the address set forth in Subsection 8(a) hereof, together with
payment, by certified or official bank check or wire transfer payable to the
order of the Company, of the product of (x) the Per Share Exercise Price
multiplied by (y) the number of shares of Common Stock subject to (1) this
Warrant or (2) the proportionate part thereof if exercised in part.
(a) If this Warrant is exercised in part only, the Company
shall, upon presentation of this Warrant upon such exercise, execute and deliver
(along with the certificate for the Warrant Shares purchased) a new Warrant
evidencing the rights of the Holder hereof to purchase the balance of the
Warrant Shares purchasable hereunder upon the same terms and conditions as
herein set forth. Upon proper exercise of this Warrant, the Company promptly
shall deliver certificates for the Warrant Shares to the Holder duly legended as
authorized by the subscription form. No fractional shares or scrip representing
fractional shares shall be issued upon exercise of this Warrant; provided that
the Company shall pay to the holder of the Warrant cash in lieu of such
fractional shares.
2. Reservation of Warrant Shares; Fully Paid Shares; Taxes. The
Company hereby represents that it has, and until expiration of this Warrant
agrees that it shall, reserve for issuance or delivery upon exercise of this
Warrant, such number of shares of the Common Stock as shall be required for
issuance and/or delivery upon exercise of this Warrant in full, and agrees that
all Warrant Shares so issued and/or delivered will be validly issued, fully paid
and non-assessable, and further agrees to pay all taxes and charges (other than
income taxes) that may be imposed upon such issuance and/or delivery. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of Common Stock (or
other securities or assets) in a name other than that in which this Warrant is
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of such tax or
has established, to the satisfaction of the Company, that such tax has been paid
or need not be paid.
3. Protection Against Dilution.
(a) In case the Company shall hereafter (i) pay a dividend or
make a distribution on its Common Stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number of shares
or (iii) combine its outstanding shares of Common Stock into a smaller number of
shares (each of (i) through (iii) an "Action"), then the Per Share Exercise
Price shall be adjusted to be equal to the product of (i) a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately prior to such Action and the denominator of which is the number of
shares of Common Stock outstanding immediately following such Action, multiplied
by (ii) the Per Share Exercise Price immediately prior to such Action. An
adjustment made pursuant to this Subsection 3(a) shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification.
(b) Whenever the Per Share Exercise Price is adjusted pursuant
to subsection 3(a), the number of Warrant Shares issuable upon payment of the
Aggregate Exercise Price shall be adjusted to be equal to the product of the
number of Warrant Shares issuable upon payment of the Aggregate Exercise Price
immediately prior to such adjustment multiplied by a fraction, the numerator of
which shall be the Aggregate Exercise Price payable immediately prior to such
adjustment and the denominator which shall be the Aggregate Exercise Price
payable immediately after such adjustment.
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(c) In the event of any capital reorganization or
reclassification, or any consolidation or merger to which the Company is a party
other than a merger or consolidation in which the Company is the continuing
corporation, or in case of any sale or conveyance to another entity of the
property of the Company as an entirety or substantially as an entirety, or in
the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Company), the Holder of this Warrant shall have the right
thereafter to receive on the exercise of this Warrant the kind and amount of
securities, cash or other property which the Holder would have owned or have
been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and in any such case, if necessary, appropriate adjustment
shall be made in the application of the provisions set forth in this Section 3
with respect to the rights and interests thereafter of the Holder of this
Warrant to the end that the provisions set forth in this Section 3 shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the exercise of this Warrant. The above provisions of this
Subsection 3(b) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, statutory exchanges, sales or
conveyances. The issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of this Warrant shall be responsible for
all of the agreements and obligations of the Company hereunder. A sale of all or
substantially all of the assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation or merger for the
foregoing purposes.
(d) No adjustment in the Per Share Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; provided, however, that any adjustments
which by reason of this Subsection 3(c) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 3 shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be. Anything in this Section 3 to
the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Per Share Exercise Price, in addition to those required by
this Section 3, as it in its discretion shall deem to be advisable in order that
any stock dividend, subdivision of shares or distribution of rights to purchase
stock or securities convertible or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable.
(e) Whenever the Per Share Exercise Price is adjusted as
provided in this Section 3 and upon any modification of the rights of a Holder
of Warrants in accordance with this Section 3, the Chief Financial Officer, or
equivalent officer, of the Company shall prepare a certificate setting forth the
Per Share Exercise Price and the number of Warrant Shares after such adjustment
or the effect of such modification, a brief statement of the facts requiring
such adjustment or modification and the manner of computing the same and cause
copies of such certificate to be mailed to the Holder.
(f) If, as a result of an adjustment made pursuant to this
Section 3, the Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of Common Stock and other capital stock of the
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Company, the Board of Directors (whose determination shall be conclusive and
shall be described in a written notice to the Holder of any Warrant promptly
after such adjustment) shall determine the allocation of the adjusted Per Share
Exercise Price between or among shares or such classes of capital stock or
shares of Common Stock and other capital stock.
4. Limited Transferability. This Warrant may not be sold,
transferred, assigned or hypothecated by the Holder except in compliance with
the provisions of the Act and the applicable state securities "blue sky" laws,
and is so transferable only upon the books of the Company which it shall cause
to be maintained for such purpose. The Company may treat the registered Holder
of this Warrant as he or it appears on the Company's books at any time as the
Holder for all purposes. The Company shall permit any Holder of a Warrant or his
duly authorized attorney, upon written request during ordinary business hours,
to inspect and copy or make extracts from its books showing the registered
holders of Warrants. All Warrants issued upon the transfer or assignment of this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder.
5. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant, of
indemnity reasonably satisfactory to the Company and, if requested by the
Company, of a bond reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
6. Investment Intent.
(a) The Holder represents, by accepting this Warrant, that it
understands that this Warrant and any securities obtainable upon exercise of
this Warrant have not been registered for sale under Federal or state securities
laws and are being offered and sold to the Holder pursuant to one or more
exemptions from the registration requirements of such securities laws. The
Holder is an "accredited investor" within the meaning of Regulation D under the
Securities Act of 1933, as amended (the "Act"). In the absence of an effective
registration of such securities or an exemption therefrom, any certificates for
such securities shall bear the legend set forth on the first page hereof. The
Holder understands that it must bear the economic risk of its investment in this
Warrant and any securities obtainable upon exercise of this Warrant for an
indefinite period of time, as this Warrant and such securities have not been
registered under Federal or state securities laws and therefore cannot be sold
unless subsequently registered under such laws, unless as exemption from such
registration is available.
(b) The Holder, by his acceptance of its Warrant, represents
to the Company that it is acquiring this Warrant and will acquire any securities
obtainable upon exercise of this Warrant for its own account for investment and
not with a view to, or for sale in connection with, any distribution thereof in
violation of the Act. The Holder agrees that this Warrant and any such
securities will not be sold or otherwise transferred unless (i) a registration
statement with respect to such transfer is effective under the Act and any
applicable state securities laws or (ii) such sale or transfer is made pursuant
to one or more exemptions from the Act.
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7. Status of Holder. This Warrant does not confer upon the
Holder any right to vote or to consent to or receive notice as a stockholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a stockholder, prior to the exercise hereof.
8. Notices. No notice or other communication under this
Warrant shall be effective unless, but any notice or other communication shall
be effective and shall be deemed to have been given if, the same is in writing
and is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or such other address as the Company has designated in writing to the
Holder; or
(b) the Holder at:
c/o Lancer Management Group
000 Xxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
or such other address as the Holder has designated in writing to the Company.
9. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
10. Applicable Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
principles of conflicts of law thereof.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx acting for and on behalf of the
Company, has executed this Warrant as of February 16, 2003.
CROSS MEDIA MARKETING CORPORATION
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
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SUBSCRIPTION
The undersigned, ____________________________, pursuant to the
provisions of the foregoing Warrant, hereby elects to exercise the within
Warrant to the extent of purchasing _____________________ shares of Common Stock
of Cross Media Marketing Corporation thereunder and hereby makes payment of
$_______________ by certified or official bank check in payment of the exercise
price therefor.
Dated:_______________ Signature:__________________________
Address:____________________________
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REPRESENTATIONS AND WARRANTIES
The undersigned Holder, in connection with the exercise of this
Warrant, hereby represents and warrants to Cross Media Marketing Corporation
(the "Company") as follows:
(a) The Holder is acquiring the Warrant Shares for its own
account, for investment purposes only and not with a view towards or in
connection with public sale or distribution thereof. The Warrant Shares may not
be offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act and in compliance with the
applicable securities laws of any state or other jurisdiction, or pursuant to an
opinion of counsel satisfactory to the Company that such registration is not
required and such compliance has been obtained. The Company may affix an
appropriate legend to any certificate(s) representing the Warrant Shares to
reflect the foregoing.
(b) The Holder understands that the Warrant Shares are being
offered and sold by the Company in reliance on an exemption from the
registration requirements of the Securities Act and equivalent state securities
and "blue sky" laws, and that the Company is relying upon the accuracy of, and
the compliance by the Holder with its representations and warranties set forth
in this letter, in determining the availability of such exemption and the
eligibility of the Holder to acquire the Warrant Shares.
(c) The Holder acknowledges that it has had access to the
reports and other documents filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
and that it has been given an opportunity to ask questions of, and to receive
answers from, the Company's management personnel concerning the Company's
business and the Warrant Shares. The Holder has been provided access to all
materials relating to the business, financial position and results of operations
of the Company, and all other materials requested by the Holder by enable it to
make an informed investment decision with respect to the acquisition of the
Warrant Shares. The Holder has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Company's securities.
(d) The Holder is, and upon exercise of the Warrant will be,
(i) an "accredited investor" within the meaning of Rule 501 of Regulation D
under the Securities Act, (ii) experienced in making investments of the kind
represented by the Warrant Shares, and (iii) capable, by reason of its business
and financial experience, of evaluating the relative merits and risks of an
investment in the Warrant Shares.
(e) The Holder understands that an investment in the Warrants
involves a high degree of risk, and has the financial ability to bear the
economic risk of this investment in the Warrants, including a complete loss of
such investment. The Holder has adequate means for providing for its current
financial requirements and has no need for liquidity with respect to this
investment.
Date:_______________ Signature:____________________
Address:______________________
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ASSIGNMENT
FOR VALUE RECEIVED _______________________________________ hereby
sells, assigns and transfers unto _____________________________________ the
foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _____________________________, attorney, to transfer said
Warrant on the books of Cross Media Marketing Corporation.
Dated:_______________ Signature:_________________________
Address:______________________________
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby assigns
and transfers unto _________________________ the right to purchase __________
shares of the Common Stock, no par value per share, of Cross Media Marketing
Corporation covered by the foregoing Warrant, and a proportionate part of said
Warrant and the rights evidenced thereby, and does irrevocably constitute and
appoint __________________________, attorney, to transfer that part of said
Warrant on the books of Cross Media Marketing Corporation.
Dated:_______________ Signature:_________________________
Address:_____________________________
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