EXHIBIT 4.1
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE THEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED, OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH SUCH ACT AND THE RULES AND
REGULATIONS THEREUNDER AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
ZIXIT CORPORATION (THE "COMPANY") WILL TRANSFER SUCH WARRANT AND ANY SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE THEREOF ONLY UPON RECEIPT OF AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, THAT THE
REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR THAT SUCH
REGISTRATION IS NOT REQUIRED AND THAT SUCH TRANSFER WILL NOT VIOLATE ANY
APPLICABLE STATE SECURITIES LAWS.
COMMON STOCK WARRANT CERTIFICATE
ZIXIT CORPORATION
March 1, 2002
No. ______ For the Purchase of _________ Shares of
Common Stock of ZixIt Corporation
FOR VALUE RECEIVED, _________________________ (the "Holder") or the
Holder's registered assigns is hereby granted the right to purchase from ZixIt
Corporation, a Texas corporation (the "Company"), _____________ shares (the
"Warrant Shares", which number shall be adjusted from time-to-time in accordance
with Section 2 hereof) of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), at a purchase price of $7.00 per share (as adjusted from
time-to-time in accordance with Section 2 hereof, the "Exercise Price"),
exercisable in whole or in part at any time and from time-to-time from the date
hereof until 6:00 p.m. on April 29, 2003 (the "Exercise Period"), on the terms
and conditions set forth in this Warrant Certificate (this "Warrant").
1. EXERCISE
1.1 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 by (i)
surrendering this Warrant, with the form of exercise notice attached hereto as
Exhibit A duly executed by the Holder, to the Company at its principal office,
and (ii) making payment to the Company of the aggregate Exercise Price for the
applicable Warrant Shares in cash, by certified check, bank check or wire
transfer to an account designated by the Company. The minimum number of shares
of Common Stock with respect to which this Warrant may be exercised, in whole or
in part, at any time shall be the lesser of twenty-five percent (25%) of the
total number of Warrant Shares that may be purchased under this Warrant or the
maximum number of Warrant Shares available for purchase under this Warrant at
the time of exercise. Upon any partial exercise of this Warrant, the Company, at
its expense, shall promptly issue to the Holder for Holder's surrendered Warrant
a replacement Warrant Certificate identical in all respects to this Warrant,
except that the number of Warrant Shares shall be reduced accordingly.
1.2 ISSUANCE OF WARRANT SHARES. The Warrant Shares purchased by Holder
shall be issued as of the close of business on the date on which all actions
required to be taken by the Holder and all payments required to be received by
the Company, pursuant to Section 1.1, shall have been so taken and
received. Certificates for the Warrant Shares so purchased shall be delivered to
the Holder as soon as practicable after this Warrant is surrendered and the
Exercise Price is received.
2. ADJUSTMENTS TO WARRANT.
The number of Warrant Shares for which this Warrant is exercisable and
the Exercise Price shall be subject to adjustment from time-to-time as set forth
below:
2.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If the Company
shall, at any time or from time-to-time: (a) make (or fix a record date for the
holders of shares of its Common Stock entitled to receive) a dividend payable
in, or other distribution of, additional shares of Common Stock, (b) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or (c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then (i) the number of Warrant Shares issuable
upon the exercise of this Warrant immediately prior to the occurrence of any
such event shall be adjusted so that the Holder of this Warrant upon exercise on
or after that date shall be entitled to receive the aggregate number of Warrant
Shares which the Holder of this Warrant would have owned and been entitled to
receive as a result of such event had this Warrant been exercised immediately
prior thereto, and (ii) the Exercise Price in effect immediately prior to such
event shall be adjusted by multiplying such Exercise Price by a fraction, the
numerator of which is the aggregate number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior to such event, and the denominator of
which is the aggregate number of Warrant Shares purchasable upon exercise of
this Warrant immediately thereafter.
2.2 REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALES OF ASSETS. If any
of the following transactions (each, a "Special Transaction") shall become
effective: (a) a capital reorganization, whether by reclassification, exchange,
substitution or otherwise (other than a stock or cash dividend, subdivision,
combination or other distribution provided for elsewhere in this Section 2), (b)
a consolidation or merger of the Company with another entity, or (c) a sale or
conveyance of all or substantially all of the Company's assets; then, as a
condition of any such Special Transaction, lawful and adequate provision shall
be made so that the Holder of this Warrant shall thereafter have the right to
purchase and receive upon exercise of this Warrant, in lieu of the Warrant
Shares immediately theretofore issuable upon exercise of this Warrant, for the
aggregate Exercise Price in effect immediately prior to such consummation, such
shares of stock, other securities, cash or other assets as may be issued or
payable in and pursuant to the terms of such Special Transaction to the holders
of shares of Common Stock for which this Warrant could have been exercised
immediately prior to such Special Transaction. In connection with any Special
Transaction, appropriate provision shall be made with respect to the rights and
interests of the Holder of this Warrant to the end that the provisions of this
Warrant (including, without limitation, the provisions of this Section 2), shall
thereafter be applicable, as nearly as may be practicable, to any shares of
stock, other securities, cash or other assets thereafter deliverable upon the
exercise of this Warrant.
2.3 NOTICE. In the event that:
(a) the Company shall fix a record date for the holders of
shares of its Common Stock for the purpose of entitling them to receive
any dividend or other distribution of shares of Common Stock or other
securities of the Company; or
(b) the Company shall enter into any agreement or adopt any
plan for a capital reorganization of the Company, the consolidation or
merger of the Company with or into another entity, or the sale or
conveyance of all or substantially all of the assets of the Company to
another entity; or
2
(c) the Company shall adopt any plan for or otherwise shall
become subject to any voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(d) the Company shall propose to take any other action that
would require an adjustment pursuant to Sections 2.1 and 2.2,
then, and in each such case, the Company shall mail or cause to be mailed to the
Holder of this Warrant a notice specifying, as the case may be: (i) the date on
which a record is to be fixed for the purpose of such dividend or distribution,
and stating the amount and character of such dividend or distribution, or (ii)
the date on which such reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up or other action is to become effective,
and the time, if any, to be fixed, as to which the holders of record of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up or other action. Such notice
shall be mailed at least 20 days prior to the date therein specified, and this
Warrant may be exercised prior to said date during the Exercise Period.
2.4 FRACTIONAL INTERESTS. The Company shall not be required to issue
fractions of shares of Common Stock upon the exercise of this Warrant. If any
fraction of a share of Common Stock would be issuable upon the exercise of this
Warrant, the Company shall, in lieu of such issuance, purchase such fraction for
an amount in cash equal to the current value of such fraction, computed on the
basis of the current market price of the Common Stock on the last business day
prior to the date of exercise upon which such a sale of Common Stock shall have
been effected.
2.5 EFFECT OF ALTERNATE SECURITIES. If at any time, as a result of an
adjustment made pursuant to this Section 2, the Holder of this Warrant shall
thereafter become entitled to receive any securities of the Company other than
shares of Common Stock, then the number of such other securities receivable upon
exercise of this Warrant shall be subject to adjustment from time-to-time on
terms as nearly equivalent as practicable to the provisions with respect to the
Warrant Shares as contained in this Section 2.
2.6 SUCCESSIVE APPLICATION; READJUSTMENT. The provisions of this
Section 2 shall similarly apply from time-to-time to successive events covered
by this Section. If the Company shall fix a record date for the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
distribution and shall, thereafter and before the distribution to shareholders
thereof, legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment shall be required by reason of the
taking of such record date and any such adjustment previously made in respect
thereof shall be rescinded and annulled.
2.7 CERTIFICATE AS TO ADJUSTMENTS. In the event of an adjustment in the
number of Warrant Shares or in the Exercise Price, the Company, at its expense,
will promptly compute such adjustment in accordance with the terms of this
Warrant and prepare a certificate executed by an executive officer of the
Company setting forth such adjustment and showing in detail the facts upon which
such adjustment is based. The Company will forthwith mail a copy of each such
certificate to the Holder.
3. RIGHTS OF THE HOLDER
3.1 NO RIGHTS AS SHAREHOLDER. The Holder shall not, solely by virtue of
this Warrant and prior to the issuance of the Warrant Shares upon due exercise
hereof, be entitled to any rights of a shareholder in the Company.
3
3.2 NO IMPAIRMENT; CERTAIN COVENANTS. The Company shall not by any
action including, without limitation, amending its certificate of incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to
protect the rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company will (a) take all such action as may be
necessary or appropriate in order that the Warrant Shares will, upon issuance in
accordance with the terms hereof and the payment of the Exercise Price therefor,
be duly authorized, validly issued and outstanding, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
issuance thereof, (b) at all times during the Exercise Period have authorized
and reserved sufficient shares of Common Stock to provide for the exercise of
this Warrant in full, and (c) use its best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to and agrees with the Holder as
follows:
4.1 SUFFICIENT SHARES. The Company has authorized sufficient shares of
Common Stock to fulfill the Company's obligations under this Warrant and all of
the other warrants, options and convertible securities issued by the Company. On
exercise of this Warrant and satisfaction of the Exercise Price, the Warrant
Shares issued to the Holder will be validly issued, fully paid, non-assessable
and free and clear of all liens, claims and encumbrances, or any liens, claims
or encumbrances permitted by or imposed by the Holder.
4.2 AUTHORITY. The Company has taken all necessary action to authorize
the execution and delivery of this Warrant and the issuance of the Warrant
Shares on the exercise of this Warrant. This Warrant is a valid, binding and
enforceable obligation of the Company. The execution, delivery and performance
of this Warrant will not violate: (a) any provision of the organizational
documents or charter of the Company; (b) any order, writ, injunction or decree
of any court, administrative agency or governmental body applicable to the
Company or the Common Stock; or (c) any contract, lease, note, bond, mortgage or
other agreement to which the Company is a party, by which the Company is bound
or to which any of the Company's assets are subject.
5. RESTRICTIVE LEGEND.
5.1 This Warrant is being acquired and any Warrant Shares to be
acquired by the Holder pursuant to this Warrant (collectively, "Securities")
will be acquired for investment for the Holder's own account and not for resale
in connection with any distribution of such Securities within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"). The Securities will
not be sold, transferred or otherwise disposed of without registration under the
Securities Act and state securities laws or qualification for exemptions
therefrom. The Holder agrees that, until the Company has caused the registration
of such shares under the Securities Act, each certificate evidencing the Warrant
Shares may be inscribed with a legend to the foregoing effect, which legend will
be as follows:
The shares represented by this certificate have been
acquired solely for investment purposes and have not been
registered under the Securities Act of 1933, as amended,
or the securities laws of any state. The shares may not
be sold, transferred, assigned or otherwise disposed of
unless and until such shares are first registered under
the Securities Act of 1933, all applicable state
securities laws and all rules and regulations promulgated
thereunder or unless and until the holder hereof provides
either (i) information reasonably satisfactory to the
Company that such registration is not required or (ii) an
opinion of counsel reasonably acceptable to the Company
to the effect that such registration is not required.
4
6. TRANSFER OR LOSS OF WARRANT.
6.1 TRANSFER. Subject to compliance with federal and state securities
laws, the Holder may sell, assign, transfer or otherwise dispose of all or any
portion of this Warrant or the Warrant Shares acquired upon any exercise hereof
at any time and from time-to-time. Upon the sale, assignment, transfer or other
disposition of all or any portion of this Warrant, the Holder shall deliver to
Company a written notice of such in the form attached hereto as Exhibit B duly
executed by Holder which includes the identity and address of any purchaser,
assignor or transferee. On such delivery, the Company will, subject to
conditions set forth herein, execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denominations specified in such
instrument of assignment, and this Warrant will promptly be canceled. The
conditions to transferability specified in this Warrant are intended to provide
certain protections to the Holder and the Company and to ensure compliance with
the provisions of the Securities Act and applicable state securities laws in
respect of the transfer of any Warrant or any Warrant Shares and are to be
strictly construed.
6.2 LOST, STOLEN, DESTROYED OR MUTILATED WARRANTS. In case any Warrant
is mutilated, lost, stolen or destroyed, the Company agrees to issue a new
Warrant of like date, tenor and denomination and deliver the same in exchange
and substitution for and upon surrender and cancellation of any mutilated
Warrant, or in lieu of any Warrant lost, stolen or destroyed, on receipt of
evidence reasonably satisfactory to the Company of the loss, theft or
destruction of such Warrant.
7. MISCELLANEOUS.
7.1 NOTICES. Any notice, demand or communication required or permitted
to be given by any provision of this Warrant must be in writing and will be
deemed to have been given and received when delivered personally or by
telefacsimile to the party designated to receive such notice, or on the date
following the day sent by overnight courier, or on the third (3rd) business day
after the same is sent by certified mail, postage and charges prepaid, directed
to the following addresses or to such other or additional addresses as any party
might designate by written notice to the other parties:
To the Company: ZixIt Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000, XX 00
Xxxxxx, Xxxxx 00000-0000
Attn: President
Phone: (000) 000-0000
Fax: (000) 000-0000
To the Holder: _________________________
_________________________
_________________________
_________________________
Phone:___________________
Fax: ____________________
5
7.2 EXPENSES; TAXES. Any sales tax, stamp duty, deed transfer or other
tax (except only taxes based on the income of Holder) arising out of the
issuance and sale of this Warrant or the Warrant Shares issuable upon exercise
of this Warrant and consummation of the transactions contemplated by this
Warrant shall be paid by the Company.
7.3 AMENDMENT; WAIVER. This Warrant may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
the Company and the Holder. No failure to exercise, and no delay in exercising,
any right, power or privilege under this Warrant shall operate as a waiver, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude the exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any waiver be
implied from any course of dealing between the Company and the Holder. No
extension of time for performance of any obligations or other acts hereunder or
under any other agreement shall be deemed to be an extension of the time for
performance of any other obligations or any other acts.
7.4 HEADINGS. The headings contained in this Warrant are for
convenience of reference only and are not to be given any legal effect and shall
not affect the meaning or interpretation of this Warrant.
7.5 GOVERNING LAW. This Warrant is being delivered and is intended to
be performed in the State of Texas and will be construed and enforced in
accordance with, and the rights of the parties will be governed by, the law of
such state, without regard to its conflict of laws principles.
7.6 SEVERABILITY. Should any part of this Warrant for any reason be
declared invalid, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and effect as if
this Warrant had been executed with the invalid portion thereof eliminated, and
it is hereby declared the intention of the parties hereto that they would have
executed and accepted the remaining portion of this Warrant without including
therein any such part, parts or portion which may, for any reason, be hereafter
declared invalid.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and delivered as of the day and year first above written.
ZIXIT CORPORATION,
a Texas corporation
By:
-------------------------------------
Xxxxx X. York
Senior Vice President, Chief Financial
Officer, and Treasurer
6
EXHIBIT A
EXERCISE NOTICE
[To be executed only upon exercise of Warrant]
The undersigned registered owner of the attached Warrant Certificate
irrevocably exercises this Warrant for the purchase of the number of shares of
Common Stock of ZixIt Corporation (the "Company") as is set forth below, and
herewith makes payment therefor, all at the price and on the terms and
conditions specified in the attached Warrant Certificate and requests that
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to the person specified below, whose address is set forth below, and,
if such shares of Common Stock shall not include all of the shares of Common
Stock now and hereafter issuable as provided in the attached Warrant
Certificate, then the Company shall, at its own expense, promptly issue to the
undersigned a new Warrant Certificate of like tenor and date for the balance of
the shares of Common Stock issuable thereunder.
Date: ____________________
Amount of Shares Purchased: ______________
Aggregate Purchase Price: $_____________
Printed Name of Registered Holder: ___________________________________________
Signature of Registered Holder: ___________________________________________
NOTICE: The signature on this Exercise Notice must correspond with the name as
written upon the face of the attached Warrant Certificate in every
particular, without alteration or enlargement or any change whatsoever.
Stock Certificates to be issued and registered in the following name, and
delivered to the following address:
------------------------------------
(Name)
------------------------------------
(Street Address)
------------------------------------
(City) (State) (Zip Code)
------------------------------------
(Phone)
EXHIBIT B
ASSIGNMENT NOTICE
[To be executed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the person named below, whose address is set forth below, the rights
represented by the attached Warrant Certificate to purchase the number of shares
of Common Stock of ZixIt Corporation (the "Company") as is set forth below, to
which the attached Warrant Certificate relates, and appoints ___________________
attorney to transfer such rights on the books of the Company with full power of
substitution in the premises. If such shares of Common Stock of the Company
shall not include all of the shares of Common Stock now and hereafter issuable
as provided in the attached Warrant Certificate, then the Company, at its own
expense, shall promptly issue to the undersigned a new Warrant Certificate of
like tenor and date for the balance of the Common Stock issuable thereunder.
Date: ____________________
Amount of Shares Purchased: ______________
Aggregate Purchase Price: $_____________
Printed Name of Registered Holder: ___________________________________________
Signature of Registered Holder: ___________________________________________
NOTICE: The signature on this Assignment Notice must correspond with the name
as written upon the face of the attached Warrant Certificate in every
particular, without alteration or enlargement or any change whatsoever.
Warrant Certificate for transferred Warrants to be issued and registered in the
following name, and delivered to the following address:
------------------------------------
(Name)
------------------------------------
(Street Address)
------------------------------------
(City) (State) (Zip Code)
------------------------------------
(Phone)
