Exhibit 4.12
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
eCLICKMD, INC.
AGENT WARRANT TO PURCHASE 80,214 SHARES
(SUBJECT TO ADJUSTMENT)
OF COMMON STOCK
(Void after December 21, 2006)
No: AW-4
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This certifies that for value Gryphon Financial Securities Corp., or
registered assigns ("Holder"), is entitled, subject to the terms set forth
below, at any time from and after December 21, 2001 (the "Original Issuance
Date") and before 5:00 p.m., Eastern Time, on December 21, 2006 (the "Exercise
Period"), to purchase from eClickMD, Inc., a Nevada corporation (the "Company"),
80,214 shares (subject to adjustment as described herein), of the Common Stock,
par value $0.001 per share (which authorized class of shares is herein called
the "Common Stock") of the Company, as constituted on the Original Issuance
Date, upon surrender hereof, at the principal office of the Company referred to
below, with a duly executed subscription form in the form attached hereto as
Exhibit A and simultaneous payment therefor in lawful money of the United States
or otherwise as hereinafter provided, at the price per share equal to $1.75 per
share, as may be adjusted as provided herein (the "Purchase Price"). The number
and character of such shares of Common Stock are subject to further adjustment
as provided below, and the term "Common Stock" shall include, unless the context
otherwise requires, the stock and other securities and property at the time
receivable upon the exercise of this Warrant. The term "Warrants" as used herein
shall include this Warrant and any warrants delivered in substitution or
exchange therefor as provided herein.
1. Exercise.
A. This Warrant may be exercised at any time or from time to time
from and after the Original Issuance Date and before 5:00 p.m., Eastern Time, on
December 21, 2006, on any business day, for the full number of shares of Common
Stock called for hereby, by surrendering it at the principal office of the
Company, at 0000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, with the
subscription form duly executed, together with payment in an amount equal to (a)
the number of shares of Common Stock called for on the face of this Warrant, as
adjusted in accordance with the preceding paragraph of this Warrant (without
giving effect to any further adjustment herein) multiplied (b) by the Purchase
Price. Payment of this amount may be made at Holder's choosing either (1) by
payment in cash or by corporate check, payable to the order of the Company, or
(2) through a cashless exercise. At any time during the Exercise Period, the
Holder may, at its option, exercise this Warrant on a cashless basis by
exchanging this Warrant, in whole or in part (a "Warrant Exchange"), into the
number of shares of Common Stock determined in accordance with this Section 1.A.
by surrendering this Warrant at the principal office of the Company or at the
office of its stock transfer agent, accompanied by a notice stating such
Holder's intent to effect such exchange, the number of Warrant Shares to be
exchanged and the date on which the Holder requests that such Warrant Exchange
occur (the "Notice of Exchange"). The Warrant Exchange shall take place on the
date specified in the Notice of Exchange or, if later, the date the Notice of
Exchange is received by the Company (the "Exchange Date"). Certificates for
shares of Common Stock issuable upon such Warrant Exchange and, if applicable, a
new Warrant of like tenor evidencing the balance of the shares of Common Stock
remaining subject to this Warrant, shall be issued as of the Exchange Date and
delivered to the Holder within three (3) days following the Exchange Date. In
connection with any Warrant Exchange, this Warrant shall represent the right to
subscribe for and acquire the number of Warrant Shares equal to (i) the number
of Warrant Shares specified by the Holder in its Notice of Exchange (the "Total
Number") less (ii) the number of Warrant Shares equal to the quotient obtained
by dividing (A) the product of the Total Number and the existing Exercise Price
by (B) the Fair Market Value. "Fair Market Value" shall have the meaning set
forth in Section 1.B. below, except that for purposes hereof, the date of
exercise, as used in such Section III, shall mean the Exchange Date. This
Warrant may be exercised for less than the full number of shares of Common Stock
at the time called for hereby, except that the number of shares receivable upon
the exercise of this Warrant as a whole, and the sum payable upon the exercise
of this Warrant as a whole, shall be proportionately reduced. Upon a partial
exercise of this Warrant in accordance with the terms hereof, this Warrant shall
be surrendered, and a new Warrant of the same tenor and for the purchase of the
number of such shares not purchased upon such exercise shall be issued by the
Company to Holder without any charge therefor. A Warrant shall be deemed to have
been exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of such shares of record as of the close of business on
such date. Within two (2) business days after such date (the "Share Delivery
Date"), the Company shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of full shares of
Common Stock issuable upon such exercise, together with cash, in lieu of any
fraction of a share, equal to such fraction of the then Fair Market Value on the
date of exercise of one full share of Common Stock.
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B. "Fair Market Value" shall mean, as of any date, (i) if shares of
the Common Stock are listed on a national securities exchange, the average of
the closing prices as reported for composite transactions during the ten (10)
consecutive trading days preceding the trading day immediately prior to such
date or, if no sale occurred on a trading day, then the mean between the closing
bid and asked prices on such exchange on such trading day; (ii) if shares of the
Common Stock are not so listed but are traded on the Nasdaq SmallCap Market
("NSCM"), the average of the closing prices as reported on the NSCM during the
ten (10) consecutive trading days preceding the trading day immediately prior to
such date or, if no sale occurred on a trading day, then the mean between the
highest bid and lowest asked prices as of the close of business on such trading
day, as reported on the NSCM; or if applicable, the Nasdaq National Market
("NNM"), or if not then included for quotation on the NNM or NSCM, the average
of the highest reported bid and lowest reported asked prices as reported by the
OTC Bulletin Board or the National Quotations Bureau, as the case may be, or
(iii) if the shares of the Common Stock are not then publicly traded, the fair
market price, not less than book value thereof, of the Common Stock as
determined in good faith by the independent members of the Board of Directors of
the Company (the "Board").
2. Shares Fully Paid; Payment of Taxes. All shares of Common Stock issued
upon the exercise of a Warrant shall be validly issued, fully paid and
non-assessable, and the Company shall pay all taxes and other governmental
charges (other than income taxes to the holder) that may be imposed in respect
of the issue or delivery thereof.
3. Transfer and Exchange. This Warrant and all rights hereunder are
transferable, in whole or in part, on the books of the Company maintained for
such purpose at its principal office referred to above by Holder in person or by
duly authorized attorney, upon surrender of this Warrant together with a
completed and executed assignment form in the form attached as Exhibit B,
payment of any necessary transfer tax or other governmental charge imposed upon
such transfer and an opinion of counsel reasonably acceptable the Company
stating that such transfer is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"). Upon any partial transfer,
the Company will issue and deliver to Holder a new Warrant or Warrants with
respect to the shares of Common Stock not so transferred. Each taker and holder
of this Warrant, by taking or holding the same, consents and agrees that this
Warrant when endorsed in blank shall be deemed negotiable and that when this
Warrant shall have been so endorsed, the holder hereof may be treated by the
Company and all other persons dealing with this Warrant as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented hereby, or to the transfer hereof on the books of the Company, any
notice to the contrary notwithstanding; but until such transfer on such books,
the Company may treat the registered Holder hereof as the owner for all
purposes.
This Warrant is exchangeable at such office for Warrants for the
same aggregate number of shares of Common Stock, each new Warrant to represent
the right to purchase such number of shares as the Holder shall designate at the
time of such exchange.
4. Anti-Dilution Provisions.
A. Adjustment for Dividends in Other Stock and Property
Reclassifications. In case at any time or from time to time the holders of the
Common Stock (or any shares of stock or other securities at the time receivable
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upon the exercise of this Warrant) shall have received, or, on or after the
record date fixed for the determination of eligible shareholders, shall have
become entitled to receive, without payment therefor,
(1) other or additional stock or other securities or property
(other than cash) by way of dividend,
(2) any cash or other property paid or payable out of any
source other than retained earnings (determined in accordance with generally
accepted accounting principles), or
(3) other or additional stock or other securities or property
(including cash) by way of stock-split, spin-off, reclassification, combination
of shares or similar corporate rearrangement, (other than (x) additional shares
of Common Stock or any other stock or securities into which such Common Stock
shall have been changed, (y) any other stock or securities convertible into or
exchangeable for such Common Stock or such other stock or securities or (z) any
Stock Purchase Rights, issued as a stock dividend or stock-split, adjustments in
respect of which shall be covered by the terms of Section 4.C, 4.D, 4.E or 6,
then and in each such case Holder, upon the exercise hereof as provided in
Section 1, shall be entitled to receive the amount of stock and other securities
and property (including cash in the cases referred to in clauses (2) and (3)
above) which such Holder would hold on the date of such exercise if on the
Original Issuance Date Holder had been the holder of record of the number of
shares of Common Stock called for on the face of this Warrant, as adjusted in
accordance with the first paragraph of this Warrant, and had thereafter, during
the period from the Original Issuance Date to and including the date of such
exercise, retained such shares and/or all other or additional stock and other
securities and property (including cash in the cases referred to in clause (2)
and (3) above) receivable by it as aforesaid during such period, giving effect
to all adjustments called for during such period by Section 4.A and Section 4.B.
B. Adjustment for Reorganization, Consolidation and Merger. In case
of any reorganization of the Company (or any other corporation the stock or
other securities of which are at the time receivable on the exercise of this
Warrant) after the Original Issuance Date, or in case, after such date, the
Company (or any such other corporation) shall consolidate with or merge into
another corporation or entity or convey all or substantially all its assets to
another corporation or entity, then and in each such case Holder, upon the
exercise hereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the stock or other securities and property receivable upon
the exercise of this Warrant prior to such consummation, the stock or other
securities or property to which such Holder would have been entitled upon such
consummation if Holder had exercised this Warrant immediately prior thereto, all
subject to further adjustment as provided in Sections 4.A, 4.B, 4.C, 4.D and
4.E; in each such case, the terms of this Warrant shall be applicable to the
shares of stock or other securities or property receivable upon the exercise of
this Warrant after such consummation.
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C. Sale of Shares Below Purchase Price.
(1) If at any time or from time to time on or after the
Original Issuance Date, the Company issues or sells, or is deemed by the express
provisions of this Section 4.C to have issued or sold, Additional Shares of
Common Stock (as hereinafter defined), other than as a dividend or other
distribution on any class of stock as provided in Section 4.D and other than
upon a subdivision or combination of shares of Common Stock as provided in
Section 4.E, for an Effective Price (as hereinafter defined) less than the then
existing Purchase Price, then and in each such case
(A) the Holder of this Warrant shall be entitled to
receive, in lieu of the number of shares theretofore receivable upon the
exercise of this Warrant, such number of shares of Common Stock upon exercise of
this Warrant (sometimes hereinafter referred to as "Warrant Shares") as shall be
determined by multiplying the number of the applicable Warrant Shares
purchasable immediately prior to the applicable Purchase Price reduction
hereunder by a fraction, the numerator of which shall be the Purchase Price per
share in effect prior to the applicable Purchase Price reduction hereunder, and
the denominator of which shall be the Purchase Price as so reduced.
(B) the then existing Purchase Price shall be reduced,
as of the opening of business on the date of such issue or sale, as follows: the
Purchase Price then in effect shall be reduced such that it is equal to the
lowest Effective Price at which any Additional Shares of Common Stock are
issued.
(2) For the purpose of making any adjustment required under
this Section 4.C, the consideration received by the Company for any issue or
sale of securities shall (i) to the extent it consists of cash be computed at
the amount of cash received by the Company, (ii) to the extent it consists of
property other than cash, be computed at the fair value of that property as
determined in good faith by the Board, (iii) if Additional Shares of Common
Stock, Convertible Securities (as hereinafter defined) or rights or options to
purchase either Additional Shares of Common Stock or Convertible Securities are
issued or sold together with other stock or securities or other assets of the
Company for a consideration which covers both, be computed as the portion of the
consideration so received that may be reasonably determined in good faith by the
Board to be allocable to such Additional Shares of Common Stock, Convertible
Securities or rights or options, and (iv) be computed after reduction for all
expenses payable by the Company in connection with such issue or sale.
(3) For the purpose of the adjustment required under this
Section 4.C, if the Company issues or sells any rights or options for the
purchase of, or stock or other securities convertible into or exchangeable for,
Additional Shares of Common Stock (such convertible or exchangeable stock or
securities being hereinafter referred to as "Convertible Securities") and if the
Effective Price of such Additional Shares of Common Stock is less than the
Purchase Price then in effect, then in each case the Company shall be deemed to
have issued at the time of the issuance of such rights or options or Convertible
Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise, conversion or exchange thereof and to have received as consideration
for the issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights
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or options or Convertible Securities, plus, in the case of such rights or
options, the minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion or exchange thereof. No further
adjustment of the Purchase Price, adjusted upon the issuance of such rights,
options or Convertible Securities, shall be made as a result of the actual
issuance of Additional Shares of Common Stock on the exercise of any such rights
or options or the conversion or exchange of any such Convertible Securities.
(4) For the purpose of the adjustment required under this
Section 4.C, if the Company issues or sells, or is deemed by the express
provisions of this subsection to have issued or sold, any rights or options for
the purchase of Convertible Securities and if the Effective Price of the
Additional Shares of Common Stock underlying such Convertible Securities is less
than the Purchase Price then in effect, then in each such case the Company shall
be deemed to have issued at the time of the issuance of such rights or options
the maximum number of Additional Shares of Common Stock issuable upon conversion
or exchange of the total amount of Convertible Securities covered by such rights
or options and to have received as consideration for the issuance of such
Additional Shares of Common Stock an amount equal to the amount of
consideration, if any, received by the Company for the issuance of such rights
or options, plus the minimum amounts of consideration, if any, payable to the
Company upon the exercise of such rights or options and plus the minimum amount
of consideration, if any, payable to the Company (other than by cancellation of
liabilities or obligations evidenced by such Convertible Securities) upon the
conversion or exchange of such Convertible Securities. No further adjustment of
the Purchase Price, adjusted upon the issuance of such rights or options, shall
be made as a result of the actual issuance of the Convertible Securities upon
the exercise of such rights or options or upon the actual issuance of Additional
Shares of Common Stock upon the conversion or exchange of such Convertible
Securities.
(5) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued by the Company on or after the Original Issuance Date,
whether or not subsequently reacquired or retired by the Company other than (i)
shares of Common Stock issued upon conversion of convertible notes (the "Notes")
issued pursuant to a private placement (the "Offering") in which the Holder acts
as placement agent pursuant to a Placement Agency Agreement dated as of August
20, 2001 (the "Agency Agreement"), (ii) shares of Common Stock issuable upon
exercise of Warrants (the "Warrants") issued pursuant to the Offering (including
this Warrant), (iii) shares of Common Stock issuable upon exercise of warrants,
options or other convertible securities to purchase Common Stock issued and
outstanding as of the Original Issuance Date (provided that the exercise price
and other terms of such warrants, options or other convertible securities are
not modified after the Original Issuance Date to adjust the exercise price),
(iv) shares of Common Stock issued to the Holder, including, but not limited to,
those issuable upon exercise and/or conversion of securities issued to the
Holder, (v) shares of Common Stock issued pursuant to any event for which
adjustment is made to conversion price under the anti-dilution provisions
provided for in the Notes, or to the Purchase Price under the anti-dilution
provisions under Section 4 of the Warrants (including this Warrant), (vi) shares
of Common Stock issuable upon conversion of promissory notes outstanding on the
date hereof, subject to any such conversion and the terms thereof being approved
by the express prior written consent of the Holder prior to conversion, and
(vii) shares of Common Stock issued in a private placement conducted by the
Company through an NASD member firm or a recognized institutional investor
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resulting in gross proceeds to the Company of no less than $1,000,000 and
provided no securities issued in such private placement have an adjustable,
reset and/or similar conversion and/or exercise provisions and/or features. The
"Effective Price" of Additional Shares of Common Stock shall mean the quotient
determined by dividing the total number of Additional Shares of Common Stock
issued or sold, or deemed to have been issued or sold by the Company under this
Section 4.C, into the aggregate consideration received, or deemed to have been
received, by the Company for such issue under this Section 4.C, for such
Additional Shares of Common Stock. "Other Securities" with respect to an issue
or sale of Additional Shares of Common Stock shall mean Convertible Securities
other than the Notes and Warrants; "the number of shares of Common Stock
underlying Other Securities" on a particular date shall mean the number of
shares of Common Stock issuable upon the exercise, conversion or exchange, as
the case may be, of such Other Securities at the close of business on such date.
(6) Other than a reduction pursuant to its applicable
anti-dilution provisions, any reduction in the conversion price of any
Convertible Security, whether outstanding on the Original Issuance Date or
thereafter, or the subscription price of any option, warrant or right to
purchase Common Stock or any Convertible Security (whether such option, warrant
or right is outstanding on the Original Issuance Date or thereafter), to an
Effective Price less than the then Purchase Price shall be deemed to be an
issuance of such Convertible Security and the issuance of all such options,
warrants or subscription rights, and the provisions of Sections 4.C.(3), (4) and
(5) shall apply thereto mutatis mutandis.
(7) In case any shares of stock or other securities, other
than Common Stock, shall at the time be receivable upon the exercise of this
Warrant, and in case any additional shares of such stock or any additional such
securities (or any stock or other securities convertible into or exchangeable
for any such stock or securities) shall be issued or sold for a consideration
per share such as to dilute the purchase rights evidenced by this Warrant, then
and in each such case the Purchase Price shall forthwith be adjusted,
substantially in the manner provided for above in this Section 4.C, so as to
protect the Holder of this Warrant against the effect of such dilution.
(8) In case the Company shall take a record of the holders of
shares of its stock of any class for the purpose of entitling them (a) to
receive a dividend or a distribution payable in Common Stock or in Convertible
Securities, or (b) to subscribe for, purchase or otherwise acquire Common Stock
or Convertible Securities, then such record date shall be deemed to be the date
of the issue or sale of the Additional Shares of Common Stock issued or sold or
deemed to have been issued or sold upon the declaration of such dividend or the
making of such other distribution, or the date of the granting of such rights of
subscription, purchase or other acquisition, as the case may be.
(9) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of at least one
cent ($0.01) in such price; provided, however, that any adjustments which by
reason of this Section 4 are not required to be made shall be carried forward
and taken into account in any subsequent adjustment required to be made
hereunder. All calculations under this Section 4 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
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D. Adjustment for Certain Dividends and Distributions. If the
Company at any time or from time to time makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event
(1) the Purchase Price then in effect shall be decreased as of
the time of such issuance or, in the event such record date is fixed, as of the
close of business on such record date, by multiplying the Purchase Price then in
effect by a fraction (A) the numerator of which is the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and (B) the denominator
of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date as the case may be, plus the number of shares of
Common Stock issuable in payment of such dividend or distribution; provided,
however, that if such record date is fixed and such dividend is not fully paid
or if such distribution is not fully made on the date fixed therefor, the
Purchase Price shall be recomputed accordingly as of the close of business on
such record date, and thereafter the Purchase Price shall be adjusted pursuant
to this Section 4.D as of the time of actual payment of such dividends or
distributions; and
(2) the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be increased, as of the time
of such issuance or, in the event such record date is fixed, as of the close of
business on such record date, in inverse proportion to the decrease in the
Purchase Price.
E. Stock Split and Reverse Stock Split. If the Company at any time
or from time to time effects a reverse stock split or subdivision of the
outstanding Common Stock, the Purchase Price then in effect immediately before
that stock split or subdivision shall be proportionately decreased and the
number of shares of Common Stock theretofore receivable upon the exercise of
this Warrant shall be proportionately increased. If the Company at any time or
from time to time effects a reverse stock split or combines the outstanding
shares of Common Stock into a smaller number of shares, the Purchase Price then
in effect immediately before that reverse stock split or combination shall be
proportionately increased and the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be proportionately decreased.
Each adjustment under this Section 4.E shall become effective at the close of
business on the date the stock split, subdivision, reverse stock split or
combination becomes effective.
F. No Impairment. The Company will not, by amendment of its Amended
and Restated Articles 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 to be observed or performed hereunder by the Company but
will at all times in good faith assist in the carrying out of all the provisions
of this Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders of the Warrants
against impairment.
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G. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 4,
the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of a
Warrant a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Company shall, upon the written request at any time of any holder of a Warrant,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) Purchase Price at the time in
effect, and (iii) the number of shares of Common Stock and the amount, if any,
of other property which at the time would be received upon the exercise of the
Warrant.
5. Notices of Record Date. In case:
A. the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
the Warrants) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
B. of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
C. of any voluntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will mail or cause to be
mailed to each holder of a Warrant at the time outstanding a notice specifying,
as the case may be, (a) the date on which a 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 (b) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is expected to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such stock or securities at the time receivable upon the exercise of the
Warrants) shall be entitled to exchange their shares of Common Stock (or such
other stock or 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 therein specified.
6. Stock Purchase Rights. If at any time or from time to time, the Company
grants or issues to the record holders of the Common Stock any options, warrants
or subscription rights (collectively, the "Stock Purchase Rights") entitling a
holder to purchase Common Stock or any security convertible into or exchangeable
for Common Stock or to purchase any other stock or securities of the Company,
the Holder shall be entitled to acquire, upon the terms applicable to such Stock
Purchase Rights, the aggregate Stock Purchase Rights which Holder could have
acquired if Holder had been the record holder of the maximum number of shares of
Common Stock issuable upon exercise of this Warrant on both (x) the record date
for such grant or issuance of such Stock Purchase Rights, and (y) the date of
the grant or issuance of such Stock Purchase Rights.
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7. Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it (in the exercise of reasonable discretion) of the ownership
of and the loss, theft, destruction or mutilation of any Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it (in the
exercise of reasonable discretion), and (in the case of mutilation) upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof a new Warrant of like tenor.
8. Reservation of Common Stock; Liquidated Damages. The Company shall at
all times reserve and keep available for issue upon the exercise of Warrants
such number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise in full of all outstanding Warrants. Following
the first day that a registration statement covering the shares of Common Stock
issuable upon exercise of this Warrant is declared effective by Securities and
Exchange Commission (the "SEC"), in the event stock certificates for unlegended,
unrestricted shares of Common Stock are not delivered per the written
instructions of the then holder of this Warrant on or before the Share Delivery
Date for any reason or no reason, then in such event the Company shall pay to
the then holder of this Warrant a cash payment equal to five (5%) of the Fair
Market Value of the shares of Common Stock that this Warrant is being exercised
for per each day after the Share Delivery Date that the Common Stock is not
delivered. The Company acknowledges that its failure to deliver the Common Stock
no later than the Share Delivery Date will cause the holder of this Warrant to
suffer damages in an amount that will be difficult to ascertain. Accordingly,
the parties agree that it is appropriate to include in this Warrant a provision
for liquidated damages. The parties acknowledge and agree that the liquidated
damages provision set forth in this section represents the parties' good faith
effort to qualify such damages and, as such, agree that the form and amount of
such liquidated damages are reasonable and will not constitute a penalty. The
payment of liquid damages shall not relieve the Company from its obligations to
deliver the Common Stock pursuant to the terms of this Warrant. The Company
shall make any payments incurred under this Section 8 in immediately available
funds no later than within two (2) business days from the Share Delivery Date
that the shares of Common Stock were to be delivered by. Nothing herein shall
limit the Holder's right to pursue actual damages.
9. Agency Agreement and Registration Rights Agreement. This Warrant has
been issued pursuant to the Agency Agreement. In addition, the Holder of this
Warrant and the Common Stock issuable upon the exercise hereof are entitled to
have such Common Stock registered under the 1933 Act in accordance with an Agent
Registration Rights Agreement of even date herewith (the "Registration Rights
Agreement") and to such remedies for breaches of, or defaults under, the
Registration Rights Agreement, as are provided below in Section 10.
10. Remedies for Breaches of Certain Registration Rights.
(a) As partial relief for a Registration Statement Default, and for
the damages to any Holder by reason of any such delay in or reduction of its
ability to sell the Registrable Securities (which remedy shall not be exclusive
of any other remedies available at law or in equity) (i) the exercise price of
the Warrants as set forth herein shall be reduced by five (5%) percent for each
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aggregate thirty (30) day period (or pro rated amounts thereof for partial
thirty (30) day periods) that the Holder is delayed from selling, or unable to
sell, Registrable Securities under Rule 144 due to (A) the Company's failure to
promptly provide the requisite legal opinion as referenced in Section 3.19 of
the Registration Rights Agreement, or (B) the Company's failure to comply with
the filing and other requirements under Rule 144 necessary to make such Rule
available to the Holders, and (ii) the number of Warrant Shares shall be
increased by five (5%) percent for each aggregate thirty (30) day period (or pro
rated amounts thereof for partial thirty (30) day periods) that (A) the
Registration Statement is not declared effective by the SEC following the
Effectiveness Deadline, and/or (B) after the Registration Statement is declared
effective by the SEC, each Registration Statement is not available for the sale
of at least all of the Registrable Securities required to be included in such
Registration Statement. The capitalized terms used in this Section 10(a) but not
defined herein shall have the meanings given such terms in the Registration
Rights Agreement.
(b) In the event of any Rule 144 Default by the Company, then, as
partial relief for damages to any Holder by reason of any delay or inability to
sell the Registrable Securities (which remedy shall not be exclusive of any
other remedies available at law or in equity), (i) the exercise price of the
Warrants as set forth herein shall be reduced by five (5%) percent for each
aggregate thirty (30) day period (or pro rated amounts thereof for partial
thirty (30) day periods) that the Holder is delayed from selling, or unable to
sell, Registrable Securities under Rule 144 due to (A) the Company's failure to
promptly provide the requisite legal opinion as referenced in Section 3.19 of
the Registration Rights Agreement, or (B) the Company's failure to comply with
the filing and other requirements under Rule 144 necessary to make such Rule
available to the Holders, and (ii) the number of Warrant Shares shall be
increased to a number determined by multiplying the number of applicable Warrant
Shares purchasable immediately prior to the applicable Purchase Price reduction
hereunder by a fraction, the numerator of which shall be the Purchase Price in
effect prior to the applicable Purchase Price reduction hereunder and the
denominator of which shall be the Purchase Price as so reduced. The capitalized
terms used in this Section 10(b) but not defined herein shall have the meanings
given such terms in the Registration Rights Agreement.
11. Notices. All notices and other communications from the Company to the
Holder of this Warrant shall be mailed by first class, registered or certified
mail, postage prepaid, to the address furnished to the Company in writing by the
last holder of this Warrant who shall have furnished an address to the Company
in writing.
12. Change; Modifications; Waiver. The terms of this Warrant may be
amended, waived or modified solely by agreement of the Company and the Holder.
13. Headings. The headings in this Warrant are for purposes of convenience
in reference only, and shall not be deemed to constitute a part hereof.
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14. Law Governing. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to the
conflicts of laws principles thereof. The parties hereto hereby irrevocably
agree that any suit or proceeding arising directly and/or indirectly pursuant to
or under this Agreement, shall be brought solely in a federal or state court
located in the City, County and State of New York. By its execution hereof, the
parties hereby covenant and irrevocably submit to the in personam jurisdiction
of the federal and state courts located in the City, County and State of New
York and agree that any process in any such action may be served upon any of
them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto waive any claim
that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements in an amount judicially determined.
Dated: December 21, 2001
eCLICKMD, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: CEO and Chairman
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