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Exhibit 4.3
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAW, AND THEY MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH
APPLICABLE FEDERAL AND STATE SECURITIES LAWS AND THE
OTHER RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
Date: March __, 1999
CLASS B
WARRANT TO PURCHASE COMMON SHARES OF
GLOBAL MARKETS ACCESS LTD.
Void after 5:00 P.M. (United States Eastern Time),
March __, 2009, as provided herein.
THIS CERTIFIES that, for value received, _______________ (the "Warrant
Holder"), or registered assigns, is entitled to purchase from Global Markets
Access Ltd. (the "Company"), a Bermuda corporation, upon the satisfaction of the
conditions stated herein and during the period (subject to Section 2 hereof)
from and after March __, 2000 to 5:00 p.m. (United States Eastern Time) on March
__, 2009, __________ fully paid and nonassessable common shares, par value
US$1.00 per share (the "Common Shares"), subject to adjustment as provided
herein, at a per share purchase price equal to $15.00, subject to adjustment as
provided herein; provided, however, that if on March __, 2009, the Company is
then required to effect, pursuant to an effective request therefor under the
Registration Rights Agreement (as defined herein), or is in the process of
effecting, a registration under the Securities Act of 1933, as amended (the
"1933 Act") for a public offering in which Warrant Shares (as defined herein)
are entitled to be included as provided in the Registration Rights Agreement, or
if the Company is in default of any such obligations to register the sale of
such shares, the right to exercise this Warrant shall continue until 5:00 p.m.
(United States Eastern Time) on the 30th day following the date on which such
registration shall have become effective or on the 30th day following the date
all such defaults shall have been cured, whichever is the later date.
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1. Definitions. For the purpose of this Warrant:
(a) "Capital Stock" shall mean the Company's Common Shares and any
other shares of any class, or series within a class, whether now or hereafter
authorized, which has the right to participate in the distribution of earnings
or assets of the Company without limit as to amount or percentage.
(b) "Extraordinary Cash Dividend" shall mean, with respect to any
consecutive 12-month period, the amount, if any, by which the aggregate amount
of all cash and non-cash dividends or distributions on any Capital Stock
occurring in such 12-month period (or, if such Capital Stock was not outstanding
at the commencement of such 12-month period, occurring in such shorter period
during which such Capital Stock was outstanding) exceeds on a per share basis 5%
of the average of the daily Market Prices per share of such Capital Stock over
such 12-month period (or such shorter period during which such Capital Stock was
outstanding); provided that, for purposes of the foregoing definition, the
amount of cash and non-cash dividends paid on a per share basis will be
appropriately adjusted to reflect the occurrence during such period of any stock
dividend or distribution of shares of capital stock of the Company or any
subdivision, split, combination or reclassification of shares of such Capital
Stock.
(c) "Market Price" shall mean, per Common Share on any date specified
herein: (i) the closing price per share of the Common Shares on such date
published in The Wall Street Journal or, if no such closing price on such date
is published in The Wall Street Journal, the average of the closing bid and
asked prices on such date, as officially reported on the principal national
securities exchange on which the Common Shares are then listed or admitted to
trading; or (ii) if the Common Shares are not then listed or admitted to trading
on any national securities exchange but are designated as a national market
system security by the NASD, the last trading price of the Common Shares on such
date; or (iii) if there shall have been no trading on such date or if the Common
Shares are not so designated, the average of the reported closing bid and asked
prices of the Common Shares on such date as shown by the Nasdaq National Market
or other over-the-counter market and reported by any member firm of the New York
Stock Exchange selected by the Company; or (iv) if none of (i), (ii) or (iii) is
applicable, a market price per share determined in such reasonable manner as may
be prescribed by the Company's Board of Directors.
(d) "Pro Rata Repurchase" shall mean any purchase of Common Shares by
the Company or by any of its subsidiaries whether for cash, shares of Capital
Stock of the Company, other securities of the Company, evidences of indebtedness
of the Company or any other person or any other property (including, without
limitation, shares of capital stock, other securities or evidences of
indebtedness of a subsidiary of the Company), or any combination thereof, which
purchase is subject to Section 13(e) of the Securities Exchange Act of 1934, as
amended, or is made pursuant to an offer made available to all holders of Common
Shares.
(e) "Warrants" shall mean the original Warrant to purchase Common
Shares of the Company issued by the Company pursuant hereto and any and all
Warrants which are issued in exchange or substitution for any outstanding
Warrant pursuant to the terms of the Warrant.
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(f) "Warrant Price" shall mean the price per share at which Common
Shares of the Company are purchasable hereunder, which shall initially be
$15.00, as such price may be adjusted from time to time hereunder.
(g) "Warrant Shares" shall mean the Common Shares purchasable upon
exercise of Warrants.
(h) "Additional Shares of Capital Stock" shall mean all shares of
Capital Stock issued by the Company, except:
(i) Common Shares issuable upon exercise of the Warrant;
(ii) Common Shares outstanding on the date hereof, including
all Common Shares issued to the Warrant Holder and certain other investors on
the date hereof;
(iii) Common Shares issued pursuant to the initial public
offering of the Company's Common Shares (the "IPO");
(iv) Common Shares issuable upon the exercise of options and
warrants which are outstanding on the date hereof; and
(v) Options to purchase Common Shares granted by the Company
as an incentive for performance to the Company's officers, directors, employees
and consultants after the date hereof, the Common Shares issuable upon the
exercise of such options, and the Common Shares awarded to such persons as share
grants by the Company as incentive for performance after the date hereof.
(i) "Registration Rights Agreement" shall mean the agreement so
entitled, dated March __, 1999, between the Company and the Warrant Holder
providing for the registration of the Warrant Shares in certain events.
(j) "Base Price" shall mean the greater of (x) the Warrant Price, as
adjusted from time to time as provided herein, or (y) the Market Price as of the
trading day last prior to the date on which the Base Price is determined for
purposes of this Warrant.
2. Exercise of Warrants.
(a) This Warrant may be exercised at any time or from time to time on
or after (i) March __, 2000 for up to one-third of the number of Warrant Shares
provided for on page 1 hereof, (ii) March __, 2001 for up to an additional
one-third of the number of Warrant Shares provided for on page 1 hereof, and
(iii) March __, 2002 for up to an additional one-third of the number of Warrant
Shares provided for on page 1 hereof, in each case subject to adjustment as
provided in Section 6. Subject to the foregoing, this Warrant may be exercised
at any time or from time to time in whole or in part (but not as to fractional
shares) prior to 5:00 p.m. United States Eastern Time on March __, 2009 (subject
to extension as provided above), at which time this Warrant and all of the
Warrant Holder's rights hereunder shall terminate, except as expressly provided
herein. Notwithstanding the foregoing, upon a Change in Control of the Company
(as
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defined below) this Warrant shall become immediately exercisable for the
full number of Warrant Shares provided for on page 1 hereof. For purposes of
this Section 2(a), a "Change in Control" of the Company shall be deemed to have
occurred if:
(i) Any person, including a group of persons acting in
concert, becomes the beneficial owner of shares of the Company having 50 percent
or more of the total number of votes that may be cast for the election of
directors of the Company;
(ii) There occurs any cash tender or exchange offer for shares
of the Company, merger or other business combination, or any combination of the
foregoing transactions, and as a result of or in connection with any such event,
persons who were directors of the Company before the event shall cease to
constitute a majority of the board of directors of the Company or any successor
to the Company; or
(iii) The Company shall effect the sale, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the
Company.
(b) This Warrant may be exercised at the time(s) or upon the occurrence
of the event(s) specified in Subsection 2(a) hereof by the surrender of this
Warrant, with the Purchase Agreement attached hereto as Rider A properly
completed and duly executed, at the principal office of the Company at
Cumberland House, 1 Victoria Street, Xxxxxxxx, XX AX, Bermuda, or such other
location which shall at that time be the principal office of the Company and of
which the Company shall have notified the Warrant Holder in writing (the
"Principal Office"), or at the office of its stock transfer agent, and upon
payment to the Company of the Warrant Price for the Warrant Shares to be
purchased upon such exercise. The person entitled to the Warrant Shares so
purchased shall be treated for all purposes as the holder of such shares as of
the close of business on the date of exercise and certificates for the shares so
purchased shall be delivered to the person so entitled within a reasonable time,
not exceeding ten (10) days, after such exercise. Certificates representing the
Warrant Shares issued upon exercise of this Warrant shall bear a legend
referring to the restrictions on transfer set forth herein. Unless this Warrant
has expired, a new Warrant of like tenor and for such number of Common Shares as
the holder of this Warrant shall direct, representing in the aggregate the right
to purchase the number of Common Shares with respect to which this Warrant shall
not have been exercised, shall also be issued to the holder of this Warrant
within such time.
(c) The Warrant Price shall be payable (i) in cash or cash equivalents,
(ii) by delivery of Common Shares (valued at the Market Price) and/or (iii) by
electing instead to receive upon such exercise the "Net Number" of Common
Shares, determined in accordance with the following formula:
Net Number = (A x B) - (A x C)
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B
For purposes of the foregoing formula:
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A = the total number of Warrant Shares with respect to which this Warrant is
then being exercised.
B = the Market Price of the Common Shares on the date immediately preceding the
date of the notice of exercise.
C = the Warrant Price then in effect at the time of exercise.
3. Exchange. This Warrant is exchangeable, upon its surrender by the
Warrant Holder to the Company at its Principal Office, or to the Company's stock
transfer agent at its office, for new Warrants of like tenor registered in the
Warrant Holder's name and representing in the aggregate the right to purchase
the same number of Common Shares purchasable hereunder, each of such new
Warrants to represent the right to subscribe for and purchase such number of
Common Shares as shall be designated by the Warrant Holder at the time of such
surrender.
4. Transfer. Subject to restrictions on transfer set forth in Section
11, this Warrant is transferable, in whole or in part, by the holder thereof at
the Principal Office of the Company or at the office of its stock transfer
agent, in person or by duly authorized attorney, upon presentation of this
Warrant properly endorsed for transfer, the Assignment attached hereto as Rider
A duly executed, and funds sufficient to pay any transfer tax (the "Transfer
Documents"). Within a reasonable time after receiving the Transfer Documents,
not exceeding ten (10) days, the Company shall execute and deliver a new Warrant
in the name of the assignee named in the Assignment and this Warrant shall be
cancelled. Each holder of this Warrant, by holding it, agrees that this Warrant,
when endorsed in blank, may be deemed negotiable, and that, when this Warrant
shall have been so endorsed, the holder of this Warrant may be treated by the
Company and all other persons dealing with this Warrant as the absolute owner of
this Warrant for any purpose and as the person entitled to exercise the rights
represented by this Warrant, or to the transfer of this Warrant on the books of
the Company, any notice to the contrary notwithstanding.
5. Certain Covenants of the Company. The Company covenants and agrees
that all Common Shares which may be issued upon the exercise of this Warrant,
will, upon issuance, be duly and validly issued, fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issue thereof.
The Company further covenants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized, and reserved for the purpose of issue upon exercise of
the purchase rights evidenced by this Warrant, a sufficient number of Common
Shares to provide for the exercise of the rights represented by this Warrant.
The Company will, at the time of each exercise of this Warrant, upon request of
the holder thereof, acknowledge in writing its continuing obligation to afford
such holder all rights (including, without limitation, any rights to
registration under the Registration Rights Agreement) to which such holder shall
be entitled after the exercise hereof in accordance with the terms hereof, but
the failure to make any such request, or the failure of the Company to give such
acknowledgement shall not affect the continuing obligations of the Company in
respect of such rights.
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6. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of this Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events as follows:
(a) Reclassification, Consolidation or Merger. At any time
while this Warrant remains outstanding and unexpired, in case of any
reclassification or change of outstanding securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination of outstanding securities issuable upon the exercise of this
Warrant) or in case of any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification or change, other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination of outstanding securities issuable upon the exercise
of this Warrant), the Company, or such successor corporation, as the case may
be, shall, without payment of any additional consideration therefor, execute a
new Warrant providing that the Warrant Holder shall have the right to exercise
such new Warrant (upon terms not less favorable to the Warrant Holder than those
then applicable to this Warrant) and to receive upon such exercise, in lieu of
each Common Share theretofore issuable upon exercise of this Warrant, the kind
and amount of shares of stock, other securities, money or property receivable
upon such reclassification, change, consolidation or merger, by the holder of
one Common Share issuable upon exercise of this Warrant had it been exercised
immediately prior to such reclassification, change, consolidation or merger.
Such new Warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
6. If the holders of the Common Shares may make elections as to the kind or
amount of stock, securities, money and other property receivable upon such
consolidation or merger, then, for the purpose of this Section 6(a), the kind
and amount of stock, securities, money and other property receivable upon such
consolidation or merger shall be deemed to be the choice specified by the
Warrant Holder, which choice shall be specified by the Warrant Holder not later
than the earlier of (A) 30 days after Warrant Holder is provided with a final
version of all information required by law or regulation to be furnished to
holders of Common Shares concerning such choice, or if no such information is
required, 30 days after the Company notified the Warrant Holder of all material
facts concerning such choice and (B) the last time at which holders of Common
Shares are permitted to make their elections known to the Company. If the
Warrant Holder fails to specify a choice, the Warrant Holder's choice shall be
deemed to be the choice made by a plurality of holders of Common Shares not
affiliated with the Company or the other party to the merger or consolidation.
Notwithstanding the foregoing, in the case of any transaction which pursuant to
this Section 6(a) would result in the execution and delivery by the Company of a
new Warrant to the Warrant Holder, and in which the holders of Common Shares are
entitled only to receive money or other property exclusive of securities, then
in lieu of such new Warrant being exercisable as provided above, the Warrant
Holder shall have the right, at its sole option, to require the Company to
purchase this Warrant (without prior exercise by the Warrant Holder) at its fair
value as of the day before such transaction became publicly known, as determined
by an unaffiliated internationally recognized accounting firm or investment bank
selected by the Warrant Holder and reasonably acceptable to the Company. Any
purchase and sale of the Warrant pursuant to the immediately preceding sentence
shall be consummated as provided in
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Section 2(b), mutatis mutandis. The provisions of this Subsection 6(a) shall
similarly apply to successive reclassifications, changes, consolidations,
mergers, sales and transfers.
(b) Subdivision or Combination of Shares. If the Company at
any time while this Warrant remains outstanding and unexpired shall subdivide or
combine its Capital Stock, the Warrant Price shall be proportionately reduced,
in case of subdivision of such shares, as of the effective date of such
subdivision, or, if the Company shall take a record of holders of its Capital
Stock for the purpose of so subdividing, as of such record date, whichever is
earlier, or shall be proportionately increased, in the case of combination of
such shares, as of the effective date of such combination, or, if the Company
shall take a record of holders of its Capital Stock for the purpose of so
combining, as of such record date, whichever is earlier.
(c) Certain Dividends, Distributions and Repurchases. If the
Company at any time while this Warrant remains outstanding and unexpired shall:
(i) Stock Dividends. Pay a dividend in shares of, or
make other distribution of shares of, its Capital Stock, then the Warrant Price
shall be adjusted, as of the date the Company shall take a record of the holders
of its Capital Stock for the purpose of receiving such dividend or other
distribution (or if no such record is taken, as of the date of such payment or
other distribution), to that price determined by multiplying the Warrant Price
in effect immediately prior to such payment or other distribution by a fraction
(A) the numerator of which shall be the total number of shares of Capital Stock
outstanding immediately prior to such dividend or distribution, and (B) the
denominator of which shall be the total number of shares of Capital Stock
outstanding immediately after such dividend or distribution; or
(ii) Liquidating Dividends, Etc. Pay or make an
Extraordinary Cash Dividend or make a distribution of its assets to the holders
of its Capital Stock as a dividend in liquidation or by way of return of capital
or other than as a dividend payable out of earnings or surplus legally available
for dividends under applicable law, the Warrant Holder shall be entitled to
receive upon the exercise hereof, in addition to the number of Common Shares
receivable thereupon, and without payment of any additional consideration
therefor, a sum equal to the amount of such assets or cash as would have been
payable to him as owner of that number of Common Shares receivable by exercise
of the Warrant had he been the holder of record of such Common Shares on the
record date for such dividend or distribution, or if no such record is taken, as
of the date of such dividend or distribution, and an appropriate provision
therefor shall be made a part of any such dividend or distribution; or
(iii) Pro Rata Repurchases. In case the Company or
any subsidiary thereof shall make a Pro Rata Repurchase, the Warrant Price shall
(upon the consummation of such repurchase) be adjusted by dividing the Warrant
Price in effect immediately prior to such action by a fraction (which in no
event shall be less than one), the numerator of which shall be the product of
(A) the number of Common Shares outstanding immediately before such Pro Rata
Repurchase minus the number of Common Shares repurchased in such Pro Rata
Repurchase and (B) the Market Price as of the day immediately preceding the
first public announcement by the Company of the intent to effect such Pro Rata
Repurchase, and the denominator of which shall be (A) the product of (x) the
number of Common Shares outstanding immediately before such Pro Rata Repurchase
and (y) the Market Price as of the day
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immediately preceding the first public announcement by the Company of the intent
to effect such Pro Rata Repurchase minus (B) the aggregate purchase price of the
Pro Rata Repurchase.
(d) Issuance of Additional Shares of Capital Stock. If the
Company at any time while the Warrant remains outstanding and unexpired shall
issue any Additional Shares of Capital Stock (otherwise than as provided in the
foregoing subsections (a) through (c) above) at a price per share less, or for
other consideration lower, than the Base Price, or without consideration, then
upon such issuance the Warrant Price shall (upon such issuance) be adjusted to
that price determined by multiplying the Warrant Price by a fraction (i) the
numerator of which shall be the number of shares of Capital Stock outstanding
immediately prior to the issuance of such Additional Shares of Capital Stock
plus the number of shares of Capital Stock which the aggregate consideration for
the total number of such Additional Shares of Capital Stock so issued would
purchase at the Base Price, and (ii) the denominator of which shall be the
number of shares of Capital Stock outstanding immediately prior to the issuance
of such Additional Shares of Capital Stock plus the number of such Additional
Shares of Capital Stock so issued. The provisions of this subsection 6(d) shall
not apply under any of the circumstances for which an adjustment is provided in
subsections 6(a), 6(b), or 6(c). No adjustment of the Warrant Price shall be
made under this subsection 6(d) upon the issuance of any Additional Shares of
Capital Stock which are issued pursuant to the exercise of any warrants, options
or other subscription or purchase rights or pursuant to the exercise of any
conversion or exchange rights in any convertible securities if any such
adjustments shall previously have been made upon the issuance of any such
warrants, options or other rights or upon the issuance of any convertible
securities (or upon the issuance of any warrants, options or any rights
therefor) pursuant to subsections 6(e) or 6(f) hereof.
(e) Issuance of Warrants, Options or Other Rights. In case the
Company shall issue any warrants, options or other rights to subscribe for or
purchase any Additional Shares of Capital Stock and the price per share for
which Additional Shares of Capital Stock may at any time thereafter be issuable
pursuant to such warrants, options or other rights shall be less than the Base
Price, then upon such issuance the Warrant Price shall be adjusted as provided
in subsection 6(d) hereof on the basis that the aggregate consideration for the
Additional Shares of Capital Stock issuable pursuant to such warrants, options
or other rights, shall be deemed to be the consideration received by the Company
for the issuance of such warrants, options, or other rights plus the minimum
consideration to be received by the Company for the issuance of Additional
Shares of Capital Stock pursuant to such warrants, options, or other rights.
(f) Issuance of Convertible Securities. In case the Company
shall issue any convertible securities and the consideration per share for which
Additional Shares of Capital Stock may at any time thereafter be issuable
pursuant to the terms of such convertible securities shall be less than the Base
Price, then upon such issuance the Warrant Price shall be adjusted as provided
in subsection 6(d) hereof on the basis that (i) the maximum number of Additional
Shares of Capital Stock necessary to effect the conversion or exchange of all
such convertible securities shall be deemed to have been issued as of the date
of issuance of such convertible
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securities, and (ii) the aggregate consideration for such maximum number of
Additional Shares of Capital Stock shall be deemed to be the minimum
consideration received by the Company for the issuance of such Additional Shares
of Capital Stock pursuant to the terms of such convertible securities. No
adjustment of the Warrant Price shall be made under this subsection upon the
issuance of any convertible securities which are issued pursuant to the exercise
of any warrants or other subscription or purchase rights therefor, if any such
adjustment shall previously have been made upon the issuance of such warrants or
other rights pursuant to subsection 6(e) hereof.
(g) Adjustment of Number of Shares. Upon each adjustment in
the Warrant Price pursuant to any provision of this Section 6, the number of
Common Shares purchasable hereunder at the Warrant Price shall be adjusted, to
the nearest one hundredth of a whole share, to the product obtained by
multiplying such number of Common Shares purchasable immediately prior to such
adjustment in the Warrant Price by a fraction, the numerator of which shall be
the Warrant Price immediately prior to such adjustment and the denominator of
which shall be the Warrant Price immediately thereafter.
(h) Other Provisions Applicable to Adjustments Under this
Section. The following provisions will be applicable to the making of
adjustments in the Warrant Price hereinabove provided in this Section 6:
(i) Computation of Consideration. To the extent that
any Additional Shares of Capital Stock or any convertible securities or any
warrants, options or other rights to subscribe for or purchase any Additional
Shares of Capital Stock or any convertible securities shall be issued for a cash
consideration, the consideration received by the Company therefor shall be
deemed to be the amount of the cash received by the Company therefor, or, if
such Additional Shares of Capital Stock or convertible securities are offered by
the Company for subscription, the subscription price, or, if such Additional
Shares of Capital Stock or convertible securities are sold to underwriters or
dealers for public offering without a subscription offering, or through
underwriters or dealers for public offering without a subscription offering, the
initial public offering price, in any such case disregarding any amounts paid or
incurred by the Company for and in the underwriting of, or otherwise in
connection with the issue thereof. To the extent that such issuance shall be for
a consideration other than cash, then, except as herein otherwise expressly
provided, the amount of such consideration shall be deemed to be the fair value
of such consideration at the time of such issuance as determined in good faith
by the Company's Board of Directors. The consideration for any Additional Shares
of Capital Stock issuable pursuant to any warrants, options or other rights to
subscribe for or purchase the same shall be the consideration received by the
Company for issuing such warrants, options or other rights, plus the additional
consideration payable to the Company upon the exercise of such warrants, options
or other rights. The consideration for any Additional Shares of Capital Stock
issuable pursuant to the terms of any convertible securities shall be the
consideration paid or payable to the Company in respect of the subscription for
or purchase of such convertible securities, plus the additional consideration,
if any, payable to the Company upon the exercise of the right of conversion or
exchange in such convertible securities. In case of the issuance at any time of
any Additional Shares of Capital Stock or convertible securities in payment or
satisfaction of any dividends in a fixed amount, the Company shall be deemed to
have received for such Additional Shares of Capital Stock or convertible
securities a consideration equal to the amount of such dividend so paid or
satisfied.
(ii) Readjustment of Warrant Price. Upon the
expiration of the right to convert or exchange any convertible securities, or
upon the expiration of any rights,
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options or warrants, the issuance of which convertible securities, rights,
options or warrants effected an adjustment in the Warrant Price, if any such
convertible securities shall not have been converted or exchanged, or if any
such rights, options or warrants shall not have been exercised, the number of
shares of Capital Stock deemed to be issued and outstanding by reason of the
fact that they were issuable upon conversion or exchange of any such convertible
securities or upon exercise of any such rights, options, or warrants shall no
longer be computed as set forth above, and the Warrant Price shall forthwith be
readjusted and thereafter be the price which it would have been (but reflecting
any other adjustments in the Warrant Price made pursuant to the provisions of
this Section 6 after the issuance of such convertible securities, rights,
options or warrants) had the adjustment of the Warrant Price made upon the
issuance or sale of such convertible securities or issuance of rights, options
or warrants been made on the basis of the issuance only of the number of
Additional Shares of Capital Stock actually issued upon conversion or exchange
of such convertible securities, or upon the exercise of such rights, options or
warrants, and thereupon only the number of Additional Shares of Capital Stock
actually so issued shall be deemed to have been issued and only the
consideration actually received by the Company (computed as in subsection (h)(i)
hereof) shall be deemed to have been received by the Company.
(iii) Treasury Shares. The number of shares of
Capital Stock at any time outstanding shall not include any shares thereof then
directly or indirectly owned or held by or for the account of the Company or any
subsidiary of the Company.
(iv) Other Action Affecting Capital Stock. In case
after the date hereof the Company shall take any action affecting the Capital
Stock, other than an action described in any of the foregoing subsection (a) to
(f) hereof, inclusive, which in the opinion of the Company's Board of Directors
would have a materially adverse effect upon the rights of the holders of the
Warrant, the Warrant Price shall be decreased in such manner and at such time as
the Board of Directors on the advice of the Company's independent public
accountants may in good faith determine to be equitable in the circumstances.
(v) Limitation or Adjustment of Warrant Price.
Notwithstanding any other provision of this Warrant, no adjustment of the
Warrant Price shall be made which would reduce such Warrant Price below the par
value of the Warrant Shares, provided, however, that if such an adjustment would
reduce such Warrant Price below the par value of the Warrant Shares, the Company
shall use its reasonable efforts to cause there to be made such amendment to its
Memorandum of Association or such other action as may be necessary to permit
such adjustment to be made to the Warrant Price.
(vi) No Impairment. The Company will not, by
amendment of its constitutive documents or through any consolidation, merger,
reorganization, transfer of assets, dissolution, securities issuance or any
other action, avoid or seek to avoid the observance or performance of the terms
of this Warrant, or to deprive the holder hereof of the intended benefits
hereof, and will at all times in good faith take such actions (or refrain
therefrom) as shall be necessary or appropriate to effect the intended purposes
and benefits of this Warrant. Without limiting the generality of the foregoing,
the Company will not permit the par value of the Warrant Shares to exceed the
Warrant Price. The Company will not amend any material term of
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any outstanding security convertible into, or exercisable or exchangeable for,
Common Shares unless it also offers to make substantially the same amendment to
the terms hereof.
7. Notice of Adjustments. Whenever the Warrant Price or the number of
Common Shares purchasable under the terms of this Warrant at that Warrant Price
shall be adjusted pursuant to Section 6 hereof, the Company shall prepare a
certificate signed by its Chief Executive Officer or its President or a Vice
President and by its Treasurer or Assistant Treasurer or its Secretary or
Assistant Secretary, setting forth in reasonable detail the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Company's
Board of Directors made any determination hereunder), and the Warrant Price and
number of Common Shares purchasable at that Warrant Price after giving effect to
such adjustment, and shall promptly cause copies of such certificate to be
mailed (by first class and postage prepaid) to the registered holder of this
Warrant.
In the event the Company shall, at a time when this Warrant is
exercisable, take any action which pursuant to Section 6 may result in an
adjustment of any of the Warrant Price or the number of Common Shares
purchasable at that Warrant Price upon exercise of this Warrant, the Company
will give to the registered holder of this Warrant at such holder's last address
known to the Company written notice of such action ten (10) days in advance of
its effective date in order to afford to such holder of this Warrant an
opportunity to exercise this Warrant and to purchase Common Shares prior to such
action becoming effective.
8. Payment of Taxes. All Common Shares issued upon the exercise of this
Warrant shall be validly issued, fully paid and nonassessable, and the Company
shall pay all taxes and other governmental charges that may be imposed in
respect of the issue or delivery thereof. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Common Shares in any name other
than that of the registered holder of the Warrant surrendered in connection with
the purchase of such shares, and in such case the Company shall not be required
to issue or deliver any share certificate until such tax or other charge has
been paid or it has been established to the Company's satisfaction that no tax
or other charge is due.
9. Fractional Shares. No fractional Common Shares will be issued in
connection with any purchase hereunder but in lieu of such fractional shares,
the Company shall make a cash refund therefor equal in amount to the product of
the applicable fraction multiplied by the Market Price as of the date of such
exercise.
10. Loss, Theft, Destruction or Mutilation. Upon receipt by the Company
of evidence reasonably satisfactory to it that this Warrant has been mutilated,
destroyed, lost or stolen, and in the case of a destroyed, lost or stolen
Warrant, a bond of indemnity reasonably satisfactory to the Company, or in the
case of a mutilated Warrant, upon surrender and cancellation of this Warrant,
the Company will execute and deliver in the Warrant Holder's name, in exchange
and substitution for the Warrant so mutilated, destroyed, lost or stolen, a new
Warrant of like tenor substantially in the form hereof with appropriate
insertions and variations.
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11. Securities Laws Representations and Warranties; Transfer to Comply
with Securities Laws.
(a) The Warrant Holder, by acceptance of this Warrant,
acknowledges that the transfer of this Warrant and the Warrant Shares is subject
to the provisions of the Securities Purchase Agreement, dated March __, 1999,
between the Company and the initial purchaser of the Warrants.
(b) The certificate representing any Warrant Shares acquired
upon exercise of this Warrant, and any Common Shares or other securities issued
in respect of such Warrant Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
otherwise imprinted with the following legend (unless such a legend is no longer
required under the 1933 Act):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE SOLD EXCEPT IN A TRANSACTION WHICH IS
EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT. IN ADDITION, THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AS SET FORTH IN A
WARRANT OF THE COMPANY DATED MARCH __, 1999."
(c) The Company shall not be required to register the transfer
of this Warrant or any Warrant Shares on the books of the Company unless the
Company shall have been provided with an opinion of counsel satisfactory to it
or no-action letters from the Securities and Exchange Commission and the
appropriate state regulatory agencies prior to such transfer to the effect that
registration under the 1933 Act and any applicable state securities law is not
required in connection with the transaction resulting in such transfer;
provided, however, that no such opinion of counsel or no-action letter shall be
necessary in order to effectuate a transfer in accordance with the provisions of
Rule 144(k) promulgated under the 1933 Act. Each Warrant or certificate for
Warrant Shares issued upon any transfer as above provided shall bear the
restrictive legend set forth in Subsection 11(b) above, except that such
restrictive legend shall not be required if the opinion of counsel satisfactory
to the Company or no-action letters referred to above are to the further effect
that such legend is not required in order to establish compliance with the
provisions of the 1933 Act and any applicable state securities law, or if the
transfer is made in accordance with the provisions of Rule 144(k) under the 1933
Act. The cost of obtaining any legal opinion or no-action letter required under
this Section shall be borne by the Warrant Holder.
12. Survival. The provisions of Section 11 shall survive any
expiration, cancellation or exercise of this Warrant.
13. Headings. The descriptive headings of the several sections of this
Warrant are inserted for convenience only and do not constitute a part of this
Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer under its corporate seal, attested by its duly
authorized officer, on the date of this Warrant.
GLOBAL MARKETS ACCESS LTD.
By:_________________________________________
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
Attest:__________________________________
ACCEPTED, ACKNOWLEDGED
AND AGREED
[ENTITY]
By:__________________________________
Name:
Title:
Attest:______________________________
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RIDER A
PURCHASE AGREEMENT
Date: ____________
TO:
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby agrees to purchase ____________ Common Shares covered by such
Warrant, and makes payment herewith in full therefor at the price per share
provided by this Warrant.
Signature: ________________________
Address: __________________________
* * * *
ASSIGNMENT
For Value Received, ________________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the within Warrant, with
respect to the number of Common Shares covered by such Warrant, to:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
Dated: Signature: _______________________
Address: _________________________
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