Exhibit 4.5
THIS WARRANT AS WELL AS THE COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED,
ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT (i) PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND
IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON THE HOLDER
HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL WHICH OPINION IS
REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS
CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY
APPLICABLE "BLUE SKY" OR SIMILAR SECURITIES LAW
Void after 5:00 P.M., New York City Time, on October 15, 2006 (the "Termination
Date")
WARRANT TO PURCHASE _______ SHARES OF THE COMMON STOCK OF
STATMON TECHNOLOGIES CORP.
This is to certify that, FOR VALUE RECEIVED,___________________ (The "Holder")
is entitled to purchase, subject to the provisions of this Warrant, from STATMON
TECHNOLOGIES CORP., a Delaware corporation (the "Company"), shares of the common
stock of the Company, $.000001 par value (the "Common Stock"), at a price of
$2.00 per share at any time or from time to time from the date hereof until 5:00
P.M., New York City Time on the Termination Date. The number of shares to be
received upon the exercise of this Warrant and the price to be paid for each
such share shall be adjusted from time to time as hereinafter set forth. The
shares deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as, "Warrant Shares" and the exercise price of
this Warrant as in effect at any time as adjusted from time to time is
hereinafter sometimes referred to as the "Exercise Price."
SECTION 1. EXERCISE OF WARRANT.
This Warrant may be exercised in whole or in part at any time or from
time to time during the period commencing on the date hereof and terminating at
5:00 PM., New York City Time, on the Termination Date (the "Exercise Period")
provided, however, that (i) if the Termination Date is a day on which banking
institutions in the State of New York are authorized by law to close, then on
the next succeeding day which shall not be such a day, and (ii) in the event of
any merger, consolidation or sale of substantially all the assets of the Company
resulting in any distribution to the Company's stockholders on or before the
Termination Date, the Holder shall have the right to exercise this Warrant
commencing at such time through the Termination Date which shall entitle the
Holder to receive, in lieu of Warrant Shares, the kind and amount of securities
and property (including cash) receivable by a holder of the number of shares
into which this Warrant might have been exercisable immediately prior thereto.
For purposes of this Warrant, the term "Warrant Shares" shall include such
securities and property. 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 duly
executed and accompanied by payment of the Exercise Price for the number of
Warrant Shares specified in such Purchase Form. Such payment may be made, at the
option of the Holder, by check or wire transfer As soon as practicable after
each such exercise of the Warrant, but not later than two business days from the
date of such exercise, the Company shall issue and deliver to the Holder a
certificate or certificates representing the Warrant Shares issuable upon such
exercise, registered in the name of the Holder or the Holder's 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 hereunder. Upon receipt by the Company of this Warrant at its
office, or by the stock transfer agent of the Company at its office, in proper
form for exercise, the Holder shall be deemed to be the holder of record of the
Warrant Shares issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares shall not then be physically delivered to the Holder.
SECTION 2. RESERVATION OF SHARES.
The Company shall at all times reserve for issuance and/or delivery
upon exercise of this Warrant such number of Warrant Shares as shall be required
for issuance and delivery upon exercise of this Warrant.
SECTION 3. FRACTIONAL SHARES.
No fractional shares or scrip 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 value of a share
determined as follows( the "Current Market Value"):
(a) 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 NASDAQ, the Current Market Value shall be the last reported 'sale price of
the Common Stock on such exchange or system 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 of the closing high bid and low asked prices for such day on such
exchange or system; or
(b) If the Common Stock is not so listed or admitted to unlisted
trading privileges but bid and asked prices are reported by the National
Quotation Bureau, Inc. or any successor thereto, the Current Market Value shall
be the average of last reported high bid and low asked prices reported by the
National Quotation Bureau, Inc. on the last business day prior to the date of
the exercise of this Warrant; or
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(c) 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 the book value of a share thereof as at the end of the
fiscal quarter of the Company ending immediately prior to the date of the
exercise of the Warrant determined in accordance with generally accepted
accounting principles consistently applied.
SECTION 4. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT.
This Warrant is exchangeable, without expense, at the option of the
Holder, upon presentation and surrender hereof to the Company for other Warrants
of different denominations entitling the Holder thereof to purchase in the
aggregate the same number of shares of Common Stock purchasable hereunder. The
term "Warrant" as used herein includes any Warrants into which this Warrant may
be divided or exchanged. Upon receipt by the Company of evidence reasonably
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.
SECTION 5. RIGHTS AND LIABILITIES OF THE HOLDER.
The Holder shall not, by virtue hereof, be entitled to any rights of a
shareholder in the Company, either at law or equity, and the rights of the
Holder are limited to those expressed in this Warrant and are not enforceable
against the Company except to the extent set forth herein. No provision of this
Warrant, in the absence of affirmative action by the Holder to purchase the
Warrant Shares, and no mere enumeration herein of the rights or privileges of
the Holder, shall give rise to any liability of the Holder for the Exercise
Price or as a shareholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
SECTION 6. ADJUSTMENTS, NOTICE PROVISIONS AND RESTRICTIONS ON ISSUANCE OF
ADDITIONAL SECURITIES.
SECTION 6.1 Adjustment of Exercise Price. The Exercise Price in effect from time
to- time shall be subject to adjustment, as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on the outstanding shares of its capital stock that is payable in
shares of its Common Stock, (ii) subdivide, split or reclassify the outstanding
shares of its Common Stock into a greater number of shares, or (iii) combine or
reclassify the outstanding shares of its Common Stock into a smaller number of
shares, the Exercise Price in effect immediately after the record date for such
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dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be adjusted so that it shall equal the price
determined by multiplying the Exercise Price in effect immediately prior thereto
by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately before such dividend, distribution, split,
subdivision, combination or reclassification, and the denominator of which shall
be the number of shares of Common Stock outstanding immediately after such
dividend, distribution, split, subdivision, combination or reclassification. Any
shares of Common Stock issuable in payment of a dividend shall be deemed to have
been issued immediately prior to the record date for such dividend for purposes
of calculating the number of outstanding shares of Common Stock of the Company
under this Section 6. Such adjustment shall be made successively upon the
occurrence of each event specified above.
(b) In case the Company fixes a record date for the issuance to holders
of its Common Stock of rights, options, warrants or convertible or exchangeable
securities generally entitling such holders to subscribe for or purchase shares
of Common Stock at a price per share less than the Current Market Price (as such
term is defined in Subsection 6.1(d) hereof) per share of Common Stock on such
record date, the Exercise Price shall be adjusted immediately thereafter so that
it shall equal the price determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date plus the number
of shares of Common Stock which the aggregate offering price of the total number
of shares of Common Stock so offered would purchase at the Current Market Price
per share, and the denominator of which shall be the number of shares of Common
Stock outstanding on such Record Date plus the number of additional shares of
Common Stock offered for subscription or purchase. Such adjustment shall be made
successively on each date whenever a record date is fixed.
(c) In case the Company fixes a record date for the making of a
distribution to all holders of shares of its Common Stock of (i) of shares of
any class of capital stock other than its Common Stock or (ii) of evidences of
its indebtedness or (iii) of assets (other than dividends or distributions
referred to in Subsection 6.1 (a) hereof) or (iv) of rights, options, warrants
or convertible or exchangeable securities (excluding those rights, options,
warrants or convertible or exchangeable securities referred to in Subsection
6.1(b) hereof), then in each such case the Exercise Price in effect immediately
thereafter shall be determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
total number of shares of Common Stock outstanding on such record date
multiplied by the Current Market Price (as such term is defined in Subsection
6.1(d) hereof) per share on such record date, less the aggregate fair value as
determined in good faith by the Board of Directors of the Company of said shares
or evidences of indebtedness or assets or rights, options, warrants or
convertible or exchangeable securities so distributed, and of which the
denominator shall be the total number of shares of Common Stock outstanding on
such record date multiplied by such Current market Price per share. Such
adjustment shall be made successively each time such a record date is fixed. In
the event that such distribution is not so made, the Exercise Price then in
effect shall be readjusted to the Exercise Price which would then be in effect
if such record date had not been fixed.
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(d) For the purpose of any computation under Subsection 6.1(a), 6.1(b)
or 6.1(c) hereof, the "Current Market Price" per share at any date (the
"Computation Date") shall be deemed to be the average of the daily Current
Market Value over twenty consecutive trading days ending the trading day before
such date; provided, however, upon the occurrence, prior to the Computation
Date, of any event described in Subsections 6.1(a), 6.1(b) or 6.1(c) which shall
have become effective with respect to market transactions at any time (the
"Market-Effect Date") on or after the beginning of such 20-day period, the
Current Market Value for each trading day preceding the Market-Effect Date shall
be adjusted, for purposes of calculating such average, by multiplying such
closing price by a fraction the numerator of which is the Exercise Price as in
effect immediately after the Market-Effect Date and the denominator of which is
the Exercise Price immediately prior to the Market-Effect Date, it being
understood that the purpose of this proviso is to ensure that the effect of such
event on the market price of the Common Stock shall, as nearly as possible, be
eliminated in order that the distortion in the calculation of the Current Market
Price may be minimized.
(e) All calculations under this Section 6.1 shall be made to the
nearest cent.
SECTION 6.2 Adjustment of Number of Shares. Upon each adjustment of the Exercise
Price pursuant to Section 6.1, this Warrant shall thereupon evidence the right
to purchase, in addition to any other securities to which the Holder is entitled
to purchase, that number of Warrant Shares (calculated to the nearest
one-hundred thousandth of a share) obtained by multiplying the number of shares
of Common Stock purchasable upon exercise of the Warrant immediately prior to
such adjustment by the Exercise Price in effect immediately prior to such
adjustment and dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment.
SECTION 6.3 Verification of Computations. The Company shall select a firm of
independent public accountants, which may be the Company's independent auditors,
and which selection may be changed from time to time, to verify the computations
made in accordance with this Section 6. The certificate, report of other written
statement of any such firm shall be conclusive evidence of. the correctness of
any computation made under this Section 6. Promptly upon its receipt of such,
certificate, report or statement from such firm of independent public
accountants, the Company shall deliver a copy thereof to the Holder.
SECTION 6.4 Warrant Certificate Amendments. Irrespective of any adjustments
pursuant to this Section 6, Warrant Certificates theretofore or thereafter
issued need not be amended or replaced, but Warrant Certificates thereafter
issued shall bear an appropriate legend or other notice of any adjustments and
which legend and/or notice has been provided by the Company to the Holder,
provided the Company may, at its option, issue new Warrant Certificates
evidencing Warrants in the form attached hereto to reflect any adjustment in the
Exercise Price and the number of Warrant Shares evidenced by such Warrant
Certificates and deliver the same to the Holder in substitution for existing
Warrant Certificates.
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SECTION 7. OFFICER'S CERTIFICATE.
Whenever the Exercise Price, the number of Warrant Shares underlying
this Warrant or either of them shall be adjusted as required by the provisions
of the foregoing Section, the Company shall forthwith file in the custody of its
Secretary or an Assistant Secretary at its principal office and with its stock
transfer agent, if any, an officer's certificate showing the adjusted Exercise
Price and number of Warrant shares determined as herein provided, setting forth
in reasonable detail the facts requiring such adjustment, including a statement
of the number of additional shares of Common Stock, if any, and such other facts
as shall be necessary to show the reason for and the manner of computing such
adjustment. Each such officer's certificate shall be made available at all
reasonable times for inspection by the Holder or any subsequent holder of this
Warrant executed and delivered pursuant to Section 1 hereof and the Company
shall, forthwith after each such adjustment, mail a copy by certified mail of
such certificate to the Holder or any such subsequent holder.
SECTION 8. NOTICES TO THE HOLDER
So long as this Warrant shall be outstanding, (a) if the Company shall
pay any dividend or make any distribution upon the Common Stock, (b) if the
Company shall offer to holders of its Common Stock rights to subscribe for,
purchase, or exchange property for any shares of any class of stock, or any
other rights or Warrants or (c) 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 sent by overnight mail or courier service to the Holder, at least fifteen
days prior to 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 subscription 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 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.
SECTION 9. RECLASSIFICATION, REORGANIZATION OR MERGER
In case of any reclassification. capital reorganization or other change
of outstanding shares of Common Stock of the Company, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a merger with a subsidiary in which merger the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock of the
class issuable upon exercise of this Warrant) or in case of any sale, lease or
conveyance to another corporation of the property of the Company as an entirety
(collectively such actions being hereinafter referred to as "Reorganizations"),
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the Company shall as a condition precedent to such Reorganization transaction,
cause effective provisions to be made so that the Holder shall have the right
thereafter by exercising this Warrant at any time prior to the expiration of the
Warrant to receive in lieu of the amount of securities otherwise deliverable,
the kind and amount of shares of stock and other securities and property
receivable upon such Reorganization by a holder of the number of shares of
Common Stock which might have been purchased upon exercise of this Warrant
immediately prior to such Reorganization. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The foregoing
provisions of this Section 9 shall similarly apply to successive
Reorganizations.
SECTION 10. ISSUE TAX
The issuance of certificates representing the Warrant Shares upon the
exercise of this Warrant as well as securities underlying the Share Warrants
shall be made without charge to the Holder for any issuance tax in respect
thereof.
SECTION 11. EXCHANGE PROVISIONS
SECTION 11.1 For purposes of this Section 11, this Warrant shall be deemed to
represent the same number of Warrants as there are Warrant Shares underlying
this Warrant. For example, if there are 100,000 Warrant Shares underlying this
Warrant, then for purposes of this Section 11 the Holder shall be deemed to hold
100,000 Warrants.
SECTION 11.2 For purposes of this Section 11, the following terms shall have the
following' meanings:
(a) "Current Market Value" of a Warrant Share shall be such value as
determined under Section 3 hereof except that the time of the determination
thereof shall be the last business day prior to the day the Company receives a
notice from the Holder under this Section 11. - - "
(b) "Warrant Value" shall mean the Current Market Value of a Warrant
Share underlying each Warrant minus the Exercise Price of such Warrant as of the
close of business on the last business day prior to the day the Company receives
a notice from the Holder under this Section 11.
SECTION 11.3 The Holder shall have the right to exchange, in a cashless
transaction, all or part of its Warrants at any time not later than 5:09 P.M.,
New York City Time on the Termination Date by providing written notice (the
"Notice") to the Company. The Notice shall set forth the number of Warrants that
the Holder elects to exchange for Warrant Shares.
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SECTION 11.4 Within three business DAYS AFTER RECEIPT OF THE NOTICE BY THE
COMPANY, THE COMPANY SHALL ISSUE THE NUMBER OF WARRANT SHARES TO THE HOLDER
WHICH SHALL BE DETERMINED BY DIVIDING THE WARRANT VALUE OF THE WARRANTS BEING
EXCHANGED BY THE EXERCISE PRICE AS OF THE DATE THE NOTICE IS RECEIVED BY THE
COMPANY. NOTWITHSTANDING THE FOREGOING, THE NUMBER OF WARRANT SHARES TO BE SO
ISSUED TO THE HOLDER SHALL NOT EXCEED THE MAXIMUM NUMBER OF WARRANT SHARES THAT
THE HOLDER WOULD HAVE BEEN ENTITLED TO RECEIVE HAD IT PAID THE EXERCISE PRICE IN
CASH ON THE DAY THE COMPANY RECEIVES THE NOTICE.
SECTION 11.5 The Holder shall surrender the Warrant that the Holder is
exchanging for Warrant Shares upon receipt of such Warrant Shares. If the entire
Warrant is being exchanged by the Holder for Warrant Shares, the Company shall
cancel the entire Warrant. If less than the entire Warrant is being exchanged
for Warrant Shares, the Company shall issue a new Warrant to the Holder
representing the portion of this Warrant which was not exchanged for Warrant
Shares.
SECTION 13. GOVERNING LAW, JURISDICTION AND VENUE.
This Warrant shall be governed by and construed and enforced in
accordance with the laws of the State of New York. The Company hereby consentsb
to the exclusive jurisdiction and venue of the courts of the State of New York
located in New York County, New York or the Unites States Federal District Court
for the Southern District of New York with respect to any matter relating to
this Warrant and the performance of the Company's obligations hereunder and the
Company hereto hereby further consents to the personal jurisdiction of such
courts. Any action suit or proceeding brought by or on behalf of the Company
relating to such matters shall be commenced, pursued, defended and resolved only
in such courts and any appropriate appellate court having jurisdiction to hear
an appeal from any judgment entered in such courts.
STATMON TECHNOLOGIES CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
[SEAL]
Dated: October 12, 2001
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Attest: /s/ Xxxxx Xxxxxx
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Secretary: /s/ Xxxxx Xxxxxx
--------------------------
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PURCHASE FORM
Dated___________
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _ Warrant Shares and hereby makes payment of
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name____________________________________________________________________________
(Please typewrite or print in block letters)
Address_________________________________________________________________________
Signature_______________________________________________________________________
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