Exhibit 4(ay)
This Warrant has not been registered under the Securities Act of 1933, as
amended, or applicable state securities laws, nor the securities laws of any
other jurisdiction. This Warrant may not be sold or transferred in the absence
of an effective registration statement under those securities laws or an opinion
of counsel, in form and substance satisfactory to the Company, that the sale or
transfer is pursuant to an exemption to the registration requirements of those
securities laws.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
(void after 5:00 p.m., New York City time, on November 26, 2006)
No. 02 - 6 200,000 Shares Dated as of December 16, 2002
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FOR VALUE RECEIVED, NCT GROUP, INC., a Delaware corporation (the
"Company"), as of the date hereof (the "Grant Date"), hereby issues this warrant
(the "Warrant") and certifies that B. Xxxxxxx Xxxxxx / Granite Securities
Corporation (the "Holder") is granted the right, subject to the provisions of
this Warrant, to purchase from the Company, during the period commencing at 9:00
a.m. New York City local time on the Grant Date and expiring, unless earlier
terminated as hereinafter provided, at 5:00 p.m. New York City local time on
November 26, 2006 or, if such day is a day on which banking institutions in the
City of New York are authorized by law to close, then on the next succeeding day
that shall not be such a day (the "Exercise Period"), up to Two Hundred Thousand
(200,000) fully paid and non-assessable shares of common stock, par value $.01
per share, of the Company at a price of $0.100 per share (the "Exercise Price").
As used herein, "Common Stock" means the shares of common stock, par value $.01
per share, of the Company as constituted on the Grant Date, together with any
other equity securities that may be issued by the Company in addition thereto or
in substitution therefor. The number of shares of Common Stock to be received
upon the exercise of this Warrant may be adjusted from time to time as
hereinafter set forth. The Common Stock deliverable upon such exercise, as
adjusted from time to time, is sometimes referred to herein as the "Warrant
Stock." 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 shall
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. This Warrant is issued,
and all the rights hereunder are held, subject to all of the conditions,
limitations and provisions set forth herein.
1. Exercise of Warrant. This Warrant may be exercised in whole or in part,
at any time or from time to time, during the Exercise Period. Subject to the
restrictions and limitations set forth above, this Warrant may be exercised by
presentation and surrender of this Warrant to the Company at its principal
office, together with a completed and duly executed Warrant Exercise Form in the
form attached hereto as Exhibit 1 (the "Exercise Form"), payment (either in cash
or by certified or official bank check, payable to the order of the Company) of
the Exercise Price for the number of shares of Common Stock specified in the
Exercise Form and instruments of transfer, if appropriate, duly executed by the
Holder. If this Warrant is 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 to purchase the balance of the shares
purchasable hereunder. Upon receipt by the Company of this Warrant, an executed
Exercise Form, the Exercise Price and any appropriate instruments of transfer,
the Holder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Holder. The
Company shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock upon
exercise of this Warrant.
2. Reservation of Shares. The Company shall at all times reserve for
issuance and delivery upon exercise of this Warrant all shares of Common Stock
of the Company from time to time receivable upon exercise of this Warrant. All
such shares shall be duly authorized and, when issued upon such exercise, shall
be validly issued, fully paid, non-assessable and free of all pre-emptive
rights.
3. Warrant Stock Transfer to Comply with the Securities Act of 1933. The
Warrant Stock may not be sold, exchanged, transferred, assigned or otherwise
disposed of unless registered pursuant to the provisions of the Securities Act
of 1933, as amended (the "1933 Act"), or an opinion of counsel in form and
content satisfactory to the Company is delivered to the Company stating that
such sale or other disposition is made in compliance with an available exemption
from such registration. Any sale or other disposition of the Warrant Stock must
also comply with all applicable state securities laws and regulations.
4. Fractional Shares. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant, but the Company shall
issue one additional share of its Common Stock in lieu of each fraction of a
share otherwise called for upon any exercise of this Warrant.
5. Exchange, Transfer or Assignment of Warrant. This Warrant is not
registered under the 1933 Act nor under any state securities law or regulation.
This Warrant may not be sold, exchanged, transferred, assigned or otherwise
disposed of unless registered pursuant to the provisions of the 1933 Act or an
opinion of counsel in form and content satisfactory to the Company is delivered
to the Company stating that such disposition is in compliance with an available
exemption from registration. Any such disposition must also comply with
applicable state securities laws and regulations.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
7. Redemption. This Warrant is not redeemable by the Company.
8. Anti-Dilution Provisions.
8.1 Adjustment for Certain Dividends and Reclassifications. In case at any
time or from time to time after the Grant Date the holders of Common Stock (or
any other securities at the time receivable upon the exercise of this Warrant)
shall have received, or on or after the record date fixed for the determination
of eligible stockholders shall have become entitled to receive without payment
therefor, (a) other or additional securities or property (other than cash) by
way of dividend, (b) any cash paid or payable except out of earned surplus of
the Company at the Grant Date as increased (decreased) by subsequent credits
(charges) thereto (other than credits in respect of any capital or paid-in
surplus or surplus created as a result of a revaluation of property) or (c)
other or additional (or less) securities or property (including cash) by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar corporate rearrangement, then, in each such case, the Holder, upon the
exercise of this Warrant as provided in Section 1 hereof, shall be entitled to
receive, subject to the limitations and restrictions set forth herein, the
amount of securities and property (including cash in the cases referred to in
clauses (b) and (c) above) that such Holder would hold on the date of such
exercise if on the Grant Date it had been the holder of record of the number of
shares of Common Stock (as constituted on the Grant Date) subscribed for upon
such exercise as provided in Section 1 hereof and had thereafter, during the
period from the Grant Date to and including the date of such exercise, retained
such shares and/or all other additional (or less) securities and property
(including cash in the cases referred to in clauses (b) and (c) above)
receivable by it as aforesaid during such period, giving effect to all
adjustments called for during such period by Section 8.2 hereof.
8.2 Adjustment for Reorganization, Consolidation, Merger, Etc. In case of
any reorganization of the Company (or any other corporation, the securities of
which are at the time receivable on the exercise of this Warrant) after the
Grant Date or in case after such date the Company (or any such other
corporation) shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation, then, in each
such case, the Holder, upon the exercise of this Warrant as provided in Section
1 hereof at any time after the consummation of such reorganization,
consolidation, merger or conveyance, shall be entitled to receive, in lieu of
the securities and property receivable upon the exercise of this Warrant prior
to such consummation, the securities or property to which such Holder would have
been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in
Section 8.1 hereof. In each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of this
Warrant after such consummation.
8.3 Certificate as to Adjustments. In each case of an adjustment in the
number of shares of Common Stock (or other securities or property) receivable
upon the exercise of this Warrant, the Company shall promptly compute such
adjustment in accordance with the terms of this Warrant and deliver to the
Holder a certificate setting forth such adjustment and showing in detail the
facts upon which such adjustment is based, including a statement of (a) the
consideration received or to be received by the Company for any additional
shares of Common Stock issued or sold or deemed to have been issued or sold, (b)
the number of shares of Common Stock outstanding or deemed to be outstanding and
(c) the pro forma adjusted Exercise Price.
8.4 Notices of Record Date, Etc. In the event (a) the Company takes a
record of the holders of Common Stock (or other securities at the time
receivable upon the exercise of this Warrant) for the purpose of entitling them
to receive any dividend (other than a cash dividend) or other distribution, or
any right to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities, or to receive any other right, (b) of any
capital reorganization of the Company (other than a stock split or reverse stock
split), any reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another corporation (other
than a merger for purposes of change of domicile) or any conveyance of all or
substantially all of the assets of the Company to another corporation or (c) of
any voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, in each such case, the Company shall deliver to the Holder a
notice specifying, as the case may be, the date on which such record is to be
taken for the purpose of such dividend, distribution or right (and stating the
amount and character of such dividend, distribution or right) or the date on
which such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is to take place (and the time, if any is
fixed, in which the holders of record of Common Stock or such other securities
at the time receivable upon the exercise of this Warrant shall be entitled to
exchange their shares of Common Stock or such other securities for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up). Such
notice shall be mailed at least twenty (20) days prior to the date of the
corporate event to which it relates, and this Warrant may be exercised no later
than five (5) days prior to the date of such corporate event (if during the
Exercise Period).
9. Legend. In the event of the exercise of this Warrant and the issuance of
any Warrant Stock hereunder, all certificates representing Warrant Stock shall
bear on the face thereof substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE BORROWER THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT. ANY SUCH SALE, TRANSFER OR ASSIGNMENT MUST ALSO COMPLY WITH
APPLICABLE STATE SECURITIES LAWS.
10. Governing Law and Jurisdiction. This Warrant shall be governed by the
internal laws of the State of Delaware, without regard to the conflicts of laws
principles thereof. The parties hereto hereby submit to the exclusive
jurisdiction of the United States Federal Courts located in the state of New
Jersey with respect to any dispute arising under this Warrant.
11. Notices. Notices, demands and other communications given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered (if personally delivered), on the scheduled date of delivery (if
delivered via commercial courier), three days after mailed (if mailed by
certified or registered mail, return receipt requested) or when sent by
facsimile (if sent by facsimile with evidence of successful transmission
retained by the sender); provided, however, that failure to give proper and
timely notice as set forth in the "with a copy to" provisions below shall not
invalidate a notice properly and timely given to the associated party. Unless
another address or facsimile number is specified by notice hereunder, all
notices shall be sent as follows:
If to the Holder:
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Granite Securities Corporation
00 Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attn: B. Xxxxxxx Xxxxxx
If to the Company: with a copy to:
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NCT Group, Inc. NCT Group, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Chief Financial Officer Attention: General Counsel
Facsimile: 000-000-0000 Facsimile: 000-000-0000
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its
behalf, in its corporate name, by its duly authorized officer, as of the date
first set forth above.
NCT GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Chairman & C.E.O.
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WARRANT EXERCISE FORM
(to be executed by the Holder in order to exercise the Warrant)
TO: NCT Group, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing ____________ shares of Common Stock of NCT Group, Inc.
and hereby makes payment at the rate of $______ per share, or an aggregate of
$__________, in payment therefor.
The undersigned represents, warrants and certifies that all offers and
sales of the Warrant Stock shall be made: (i) pursuant to an effective
registration statement under the 1933 Act or pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the 1993 Act;
and (ii) in compliance with applicable state securities laws and those of any
other applicable jurisdiction.
Dated:
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Name of Warrant Holder
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Signature
INSTRUCTIONS FOR ISSUANCE OF STOCK
(IF OTHER THAN TO THE REGISTERED HOLDER OF THE WITHIN WARRANT)
Name:
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(Please type or print in block letters)
Address:
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Social Security or Taxpayer Identification Number:
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