Exhibit 4(a)
THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT
(i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE ACT WHICH HAS BECOME
EFFECTIVE AND IS CURRENT WITH RESPECT TO THE SECURITIES, OR (ii) PURSUANT TO
A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE ACT BUT ONLY UPON THE HOLDER
HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE COMPANY,
OR OTHER COUNSEL ACCEPTABLE TO THE COMPANY, THAT THE PROPOSED DISPOSITION IS
CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE ACT AS WELL AS ANY
APPLICABLE "BLUE SKY" OR SIMILAR SECURITIES LAW.
___________, 1995
DIVERSIFAX, INC.
The Transferability of this Warrant is
Restricted as Provided in Sections 3 and 9
For good and valuable consideration in the amount of $_______, the
receipt and sufficiency of which are hereby acknowledged by Diversifax, Inc.,
a Delaware corporation, with its principal office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"), ____________ (the "Holder"),
subject to the terms and conditions of this Warrant, is hereby granted the
right to purchase, at the initial exercise price of $1.50 per share, at any
one or more times from the date hereof until 5:00 p.m. on the __________,
1998, in the aggregate, ________ shares of Common Stock of the Company, $.001
par value (the "Shares").
This Warrant initially is exercisable at a price of $1.50 per Share
payable in cash, by certified or official bank check in New York Clearing
House funds or other form of payment satisfactory to the Company, subject to
adjustment as provided in Section 5 hereof.
1. Exercise of Warrant. The purchase rights represented by this
Warrant are exercisable at the option of the Holder hereof, in whole or in
part, at one or more times during any period in which this Warrant may be
exercised as set forth above. The Holder shall not be deemed to have
exercised its purchase rights hereunder until the Company receives written
notice of the Holder's intent to exercise its purchase rights hereunder.
The written notice shall be in the form of the Subscription Form attached
hereto and made a part hereof. Less than all of the Shares may be
purchased under this Warrant.
2. Issuance of Certificates. Upon the exercise of this Warrant, the
issuance of certificates for Shares underlying this Warrant shall be made
forthwith (and in any event within twenty (20) business days after the
Company's receipt of written notice hereunder as specified in Section 1
above) and such certificates shall be issued in the name of the Holder
hereof.
3. Restriction on Transfer. Neither this Warrant nor any Shares
issuable upon exercise hereof have been registered under the Securities Act
of 1933, as amended (the "Act"), and neither may be sold or transferred in
whole or in part unless the Holder shall have first given prior written
notice to the Company describing such sale or transfer and furnished to the
Company an opinion, satisfactory to counsel for the Company as determined
by such counsel in its sole discretion, to the effect that the proposed
sale or transfer may be made without registration under the Act; provided,
however, that the foregoing shall not apply if there is in effect a
registration statement with respect to this Warrant or the Shares issuable
upon exercise hereof, as the case may be, at the time of the proposed sale
or transfer. Upon exercise, in part or in whole, of this Warrant, each
certificate issued representing the Shares underlying this Warrant shall
bear a legend to the foregoing effect.
2
4. Price.
4.1 Initial and Adjusted Purchase Price. The initial Purchase
price shall be $1.50 per Share. The adjusted Purchase Price shall be the
price which shall result from time to time from any and all adjustments of
the initial purchase price in accordance with the provisions of Section 5
hereof.
4.2 Purchase Price. The term "Purchase Price" herein shall mean
the initial purchase price or the adjusted purchase price, depending upon
the context.
5. Adjustments of Purchase Price and Number of Shares. In the event
that, prior to the issuance by the Company of all the Shares issuable upon
exercise of this Warrant, there shall be any change in the outstanding
Common Stock of the Company by reason of the declaration of stock
dividends, or through recapitalization resulting in stock splits or
combinations, without the payment of any compensation therefor in money,
services or property, the Shares subject to this Warrant and the Purchase
Price thereof shall be appropriately adjusted (but without regard to
fractions) by the Company to reflect such change so that after such
adjustments the Holder has the same substantive rights under this Warrant
as he had immediately prior to such declaration or recapitalization.
6. Replacement of Warrant. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation
of this Warrant, and, in case of such loss, theft, destruction or
mutilation, of indemnity or security reasonably satisfactory to it in its
sole discretion, and reimbursement to the Company of all expenses
incidental or relating thereto, and upon surrender and cancellation of this
Warrant (unless mutilated), the Company will make and deliver a new Warrant
of like tenor, in lieu of this Warrant.
7. Notices to Warrant Holder. Nothing contained in this Warrant
shall be construed as conferring upon the Holder hereof the right to vote
or to consent or to receive notice as a shareholder in respect of any
meetings
3
of shareholders for the election of directors or any other matter, or as
having any rights whatsoever as a shareholder of the Company.
8. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have
been duly made when delivered, or mailed by registered or certified mail,
return receipt requested:
(a) If to the registered Holder of this Warrant, to the address
of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the first
page of this Warrant or to such other address as the Company may
designate by notice to the Holder.
9. Successors. All the covenants, agreements, representations and
warranties contained in this Warrant shall bind the parties hereto and
their respective heirs, executors, administrators, distributees, permitted
successors and assigns. The Holder may assign this Warrant without the
Company's prior written consent provided that the holder complies with
applicable securities laws. Any attempted assignment in violation of the
preceding sentence shall be void and of no effect.
10. Headings. The headings in this Warrant are inserted for purposes
of convenience only and shall have no substantive effect.
11. Law Governing. This Warrant is delivered in the State of New
York and shall be construed and enforced in accordance with, and governed
by, the laws of the State of new York, without giving effect to conflicts
of law principles.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
in its corporate name by, and such signature to be attested to by, a duly
authorized officer as of the date first above written.
4
Diversifax, Inc.
By: ________________________
Its: _______________________
Attest:
___________________________
5
SUBSCRIPTION FORM
(To be Executed by the Registered Holder
in order to Exercise the Warrant dated
January 26, 1995 and issued by
Diversifax, Inc. to the Undersigned)
The undersigned hereby irrevocably elects to exercise the right to
purchase _____ Shares by he above referenced Warrant according to the
conditions thereof and herewith makes payment of the Purchase Price of such
Shares in full.
__________________________________
Signature
__________________________________
Address
Dated: _____________________ __________________________________
Social Security Number or Holder's
Identification Number
6
