STOCK PURCHASE WARRANT To Purchase 100,000 Shares of Common Stock of ION NETWORKS INC.
Exhibit
4.9
NEITHER
THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY OTHER
APPLICABLE STATE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PURSUANT TO REGULATION D AND
SUCH OTHER SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SHARES
ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, PLEDGED, TRANSFERRED, ENCUMBERED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION
UNDER THE PROVISIONS OF THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS. THIS
WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF A UNITED STATES PERSON UNLESS
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE, AS REQUIRED BY REGULATION D.
STOCK
PURCHASE WARRANT
To
Purchase 100,000 Shares of Common Stock of
ION
NETWORKS INC.
THIS
CERTIFIES that, for value received, Xxxxxx Xxxx (the “Holder”), is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date hereof (the “Initial
Exercise Date”) and on or prior to the close of business on September 9, 2009
(the “Termination Date”) but not thereafter, to subscribe for and purchase from
ION NETWORKS, Inc., a corporation incorporated in the State of Delaware, with
offices at 000 Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
“Company”), up to 100,000 shares (the “Warrant Shares”) of Common Stock, $0.001
par value, of the Company (the “Common Stock”). The purchase price of
one share of Common Stock (the “Exercise Price”) under this Warrant shall be
$0.05. The Exercise Price and the number of shares for which the
Warrant is exercisable shall be subject to adjustment as provided
herein.
1. Title to
Warrant. Prior to the Termination Date and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by the
holder hereof in person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto properly
endorsed.
2. Authorization of
Shares. The Company covenants that all shares of Common Stock
which may be issued upon the exercise of rights represented by this Warrant
will, upon exercise of the rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such
issue).
3. Exercise of
Warrant.
(a)
Except as provided in Section 4 herein, exercise of the purchase rights
represented by this Warrant may be made at any time or times on or after the
Initial Exercise Date, and before the close of business on the Termination Date
by the surrender of this Warrant and the Notice of Exercise Form annexed hereto
duly executed, at the office of the Company (or such other office or agency of
the Company as it may designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of the Company) and
upon payment of the Exercise Price of the shares thereby purchased by wire
transfer or cashier’s check drawn on a United States bank, the holder of this
Warrant shall be entitled to receive a certificate for the number of shares of
Common Stock so purchased. Certificates for shares purchased hereunder shall be
delivered to the holder hereof within three (3) Trading Days after the date on
which this Warrant shall have been exercised as aforesaid. This Warrant shall be
deemed to have been exercised and such certificate or certificates shall be
deemed to have been issued, and Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of such shares
for all purposes, as of the date the Warrant has been exercised by payment to
the Company of the Exercise Price and all taxes required to be paid by Holder,
if any, pursuant to Section 5 prior to the issuance of such shares, have been
paid. For the purposes of this Agreement, (i) “Trading Day” shall
mean any day on which the Principal Market is open for business and (ii)
“Principal Market” shall mean initially the Nasdaq National Market and shall
include the American Stock Exchange, Nasdaq National Market, the Nasdaq SmallCap
Market, Bulletin Board or the New York Stock Exchange if the Company is listed
and trades on such market or exchange.
(b)
If this Warrant shall have been exercised in part, the Company shall, at the
time of delivery of the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to purchase the
unpurchased shares of Common Stock called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
(c)
If no registration statement is effective permitting the resale of the shares of
Common Stock issued upon exercise of this Warrant at any time commencing one
year after the issuance date hereof, then this Warrant shall also be exercisable
by means of a “cashless exercise” in which the holder shall be entitled to
receive a certificate for the number of shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
(A) = the
average of the high and low trading prices per share of Common Stock on the
Trading Day preceding the date of such election on the Nasdaq National Market,
or if the Common Stock is not traded on the Nasdaq National Market, then the
Principal Market in terms of volume, and converted into US Dollars;
(B) = the
Exercise Price of the Warrants; and
(X) = the
number of shares issuable upon exercise of the Warrants in accordance with the
terms of this Warrant.
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4. No Fractional Shares or
Scrip. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share which Holder would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to the Exercise Price.
5. Charges, Taxes and
Expenses. Issuance of certificates for shares of Common Stock
upon the exercise of this Warrant shall be made without charge to the holder
hereof for any issue or transfer tax or other incidental expense in respect of
the issuance of such certificate, all of which taxes and expenses shall be paid
by the Company, and such certificates shall be issued in the name of the holder
of this Warrant or in such name or names as may be directed by the holder of
this Warrant; provided, however, that in the event certificates for shares of
Common Stock are to be issued in a name other than the name of the holder of
this Warrant, this Warrant when surrendered for exercise shall be accompanied by
the Assignment Form attached hereto duly executed by the holder hereof; and the
Company may require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
6. Closing of
Books. The Company will not close its shareholder books or
records in any manner which prevents the timely exercise of this
Warrant.
7. Transfer, Division and
Combination. (a) Subject to compliance with any applicable
securities laws, transfer of this Warrant and all rights hereunder, in whole or
in part, shall be registered on the books of the Company to be maintained for
such purpose, upon surrender of this Warrant at the principal office of the
Company, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination or denominations specified in such
instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. A Warrant, if properly assigned, may be
exercised by a new holder for the purchase of shares of Common Stock without
having a new Warrant issued.
(b) This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by Holder or its agent or attorney. Subject to compliance with
Section 7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
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(c) The
Company shall prepare, issue and deliver at its own expense (other than transfer
taxes) the new Warrant or Warrants under this Section 7.
(d) The
Company agrees to maintain, at its aforesaid office, books for the registration
and the registration of transfer of the Warrants.
8. Registration of Warrant
Shares. (a) If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration statement relating
either to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or a SEC Rule 145 transaction), the
Company shall, at such time, promptly give each Holder written notice of such
proposed registration. Upon the written request of each Holder given
within twenty (20) days after mailing of such notice by the Company in
accordance with Section 18(d) hereof, the Company shall, subject to the
provisions of Section 8(c), endeavor to cause to be registered under the Act all
of the Warrant Shares that each such Holder has requested to be
registered.
(b) Whenever required under
this Section 8(a) to effect the registration of any Warrant Shares, the Company
shall, as expeditiously as reasonably possible use reasonable efforts to (i)
file a registration statement (the "Registration
Statement"), registering for resale the Warrant Shares and (ii) cause the
Registration Statement to be declared effective under the Securities Act of
1933, as amended (the "Act") as soon
thereafter as reasonably practicable. The Company promptly shall
provide each Holder with such copies of the final prospectus contained in the
Registration Statement after it becomes effective as they shall reasonably
request. In addition, the Company shall (a) use reasonable efforts to
keep the Registration Statement effective for a period ending on the earlier of
(x) 120 days from its effective date or (y) when all such Warrant Shares can be
sold without limitation or delay under Rule 144 and (b) file all reports and
forms required to be filed by it under the Securities Exchange Act of 1934, as
amended ("Reports") on a timely
basis so long as each Holder owns any Warrant Shares and shall provide each
Holder copies thereof when filed.
(c) Notwithstanding anything
contained herein to the contrary, the Company shall be entitled to postpone the
filing of the Registration Statement otherwise required to be prepared and filed
by it in accordance with subparagraph (b) or, in the event the Registration
Statement has been declared effective, without suspending such effectiveness,
instruct the Holder promptly in writing (or any subsequent holders thereof) not
to sell or distribute any Warrant Shares (a "Delay") as long as
the reason for non-disclosure continues, if the Company would be required to
disclose in the Registration Statement the existence of any fact relating to a
material business situation, transaction or negotiation, or would be required to
disclose information that the Company has not otherwise made public, in each
case, that the Company reasonably determines is in the best interests of the
Company not to disclose at such time, and unless and until each Holder furnishes
to the Company in writing information that may be required to prepare the
disclosure required by Items 507 and 508 of Regulation S-B promulgated under the
Act, with respect to such Holder's Warrant Shares being sold under the
Registration Statement provided that, with respect to
Delays because of information related to the Company (rather than disclosure
required to be provided by the holders), the Company shall only be entitled to a
maximum of three (3) Delays, each Delay not to exceed a period of thirty (30)
days; and further provided, that no
period of Delay shall commence within 60 days of a previous Delay.
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(d) Each Holder shall (i)
reasonably cooperate with the Company in connection with the preparation and
filing of the Registration Statement and execute and deliver any agreements or
instruments reasonably requested by the Company or its counsel in connection
therewith and (ii) upon discovery that, or upon the happening of any event as a
result of which, the Registration Statement (or any prospectus included
therein), as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, in the light of the circumstances
under which they were made (as determined by the Company or its counsel in its
sole discretion), forthwith discontinue its disposition of Warrant Shares
pursuant to the Registration Statement, until such time as such Holder (or any
holders) have received a supplemented or amended prospectus from the Company
relating thereto. The Company agrees to use its best efforts to
prepare any necessary amendments or supplements to the Registration Statement as
soon as reasonably practicable after the same becomes necessary and to provide
to each Holder quantities of such amendments or supplements reasonably
sufficient for the distribution thereof.
(e) The Company shall
indemnify and hold harmless each Holder and its respective officers, directors,
employees, members, agents, affiliates and control persons (each of the
foregoing, a "Holder
Indemnitee") who is or may be a party or is or may be threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of or arising
from any actual or alleged misrepresentation or misstatement of facts or
omission to represent or state any fact or omission to state a fact necessary to
make the facts stated under the circumstances not materially misleading, in the
Registration Statement or any amendment or supplement thereto or to the
prospectus incorporated therein from and against any claim, losses, liabilities,
costs and expenses (including attorney's fees, judgments, fines and amounts paid
in settlement) ("Loss") actually and
reasonably incurred by any such Holder Indemnitee in connection with such claim,
action, suit or proceeding or the defense thereof, except to the extent such
Loss is the direct result of a misstatement or omission for which such Holder
Indemnitee is liable to the Company under Section 9(i); provided, however, that the
indemnification contained in this Section 8(e) with respect to any preliminary
prospectus shall not inure to the benefit of any Holder Indemnitee on account of
any such Loss arising from the sale of the Warrant Shares by such Holder
Indemnitee to any person if a copy of the definitive prospectus shall not have
been delivered or sent to such person within the time required by the Act and
the regulations thereunder, and an untrue statement or alleged untrue statement
or omission or alleged omission of a material fact contained in such preliminary
prospectus was corrected in the definitive prospectus.
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(f) In connection with any
offering involving an underwriting of shares of the Company’s capital stock, the
Company shall not be required under Section 8(a) to include any of the Holders’
Warrant Shares in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters), and then only in
such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total
amount of securities, including Warrant Shares, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Warrant Shares, which the underwriters determine in their sole discretion will
not jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by such
selling stockholders).
9. Representations of
Holder. The Holder acknowledges that the Company will rely on the
information and on the representations set forth herein, and the undersigned
hereby represents, warrants and agrees that:
(a) The Holder is an "Accredited
Investor", as that term is defined under Section 501(a) of Regulation D under
the Act.
(b) The Holder has not received
any general solicitation or general advertising regarding the exercise of the
Warrant.
(c) The Holder has sufficient
knowledge and experience in financial and business matters so that he or it is
able to evaluate the merits and risks of exercising the Warrant as well as
substantial experience in previous private and public purchases of
securities.
(d) The Holder understands that
an investment in the Company involves significant risk. The Holder
does not require the funds to be used to exercise this Warrant or the Warrant
Shares for his liquidity or other needs, possesses the ability to bear the
economic risk of holding the this Warrant or the Warrant Shares purchased
hereunder indefinitely and can afford a complete loss of its investment in the
this Warrant or the Warrant Shares.
(e) Prior to the issuance of this
Warrant and prior to exercise, the Holder has or will have had full opportunity
to ask questions of and receive answers from the Company and its officers and
authorized representatives regarding the terms and conditions of the Warrant and
the transactions contemplated hereby, as well as the affairs of the Company and
related matters. The Holder confirms that he does not desire to receive any
further information.
(f) The Holder understands that
the exercise price of the Warrant being purchased hereby has been arbitrarily
determined and does not necessarily bear any relationship to investment criteria
such as projected earnings, discounted cash flow, book value or other measures
of value.
(g) The Holder understands that
the Warrant has not been filed with or reviewed by the Commission nor the
securities department of any state because of the private or limited nature of
this offering as defined by applicable laws, and that the Warrant and the
Warrant Shares have not been registered with the Commission under the Act nor
with the securities department of any state in reliance upon an exemption
therefrom for non-public offerings.
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(h) The Holder is a bona fide
resident of the state set forth as his "address" above and further represents
that (a) if a corporation, partnership, trust or other form of business
organization, it has a principal office within such state; and (b) if an
individual, he has his principal residence in such state.
(i) The Holder represents and
warrants that the Warrant and the Warrant Shares are or will be acquired for
investment purposes and not with a view to or for sale or
distribution. The Holder represents that there is no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else the Warrant and the Warrant Shares or any
part thereof, and the Holder has no present plans to enter into such contract,
undertaking, agreement or arrangement and will neither directly or indirectly
seek to assign, transfer or sell the same in any way inconsistent with the
legend which is being placed on the Warrant.
(j) Each Holder agrees to
indemnify and hold harmless the Company and each officer, director, employee,
agent or control person of the Company, who is or may be a party or is or may be
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, to
the extent by reason of or arising from any misrepresentation or misstatement of
material facts or omission to state material facts necessary to make the facts
stated, under the circumstances, not materially misleading, made or omitted by
such Holder to the Company in a writing provided to the Company expressly for
the purpose of inclusion in the Registration Statement or any amendment thereto,
against losses, liabilities and expenses for which the Company, or any officer,
director or control person of the Company has not otherwise been reimbursed
(including attorneys' fees, judgments, fines and amounts paid in settlement)
actually and reasonably incurred by the Company or such officer, director or
control person in connection with such action, suit or proceeding.
10.
No Rights as
Shareholder until Exercise. This Warrant does not entitle the
holder hereof to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof. Upon the surrender of this
Warrant and the payment of the aggregate Exercise Price, the Warrant Shares so
purchased shall be and be deemed to be issued to such holder as the record owner
of such shares as of the close of business on the later of the date of such
surrender or payment.
11.
Loss, Theft,
Destruction or Mutilation of Warrant. The Company covenants
that upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant certificate or any
stock certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it (which shall
not include the posting of any bond), and upon surrender and cancellation of
such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or stock certificate.
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12.
Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall be a
Saturday, Sunday or a legal holiday, then such action may be taken or such right
may be exercised on the next succeeding day not a Saturday, Sunday or legal
holiday.
13.
Adjustments of
Exercise Price and Number of Warrant Shares. (a) The number
and kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
happening of any of the following. In case the Company shall (i) pay
a dividend in shares of Common Stock or make a distribution in shares of Common
Stock to holders of its outstanding Common Stock, (ii) subdivide its outstanding
shares of Common Stock into a greater number of shares of Common Stock, or (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
of Common Stock, then the number of Warrant Shares purchasable upon exercise of
this Warrant immediately prior thereto shall be adjusted so that the holder of
this Warrant shall be entitled to receive the kind and number of Warrant Shares
of the Company which he would have owned or have been entitled to receive had
such Warrant been exercised in advance thereof. Upon each such
adjustment of the kind and number of Warrant Shares of the Company which are
purchasable hereunder, the holder of this Warrant shall thereafter be entitled
to purchase the number of Warrant Shares resulting from such adjustment at an
Exercise Price per Warrant Share or other security obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares purchasable pursuant hereto immediately prior to such adjustment
and dividing by the number of Warrant Shares of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) Subject to Section 13(c)
below, in case the Company shall reorganize its capital, reclassify its capital
stock, consolidate or merge with or into another corporation, and pursuant to
the terms of such reorganization, reclassification, merger, or consolidation,
shares of common stock of the successor or acquiring corporation, or shares of
stock other than Common Stock of the Company, is to be received by or
distributed to the holders of Common Stock of the Company in lieu of the
Company’s Common Stock, then Holder shall have the right thereafter to receive,
upon exercise of this Warrant, the number of shares of common stock of the
successor or acquiring corporation or other shares of stock of the Company
(other than Common Stock) if the Company is the surviving corporation (in the
merger, reorganization or reclassification), receivable upon or as a result of
such reorganization, reclassification, merger or consolidation, by a holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. Subject to Section 13(c), in case of
any such reorganization, reclassification, merger or consolidation, the
successor or acquiring corporation (if other than the Company) shall expressly
assume the due and punctual observance and performance of each and every
covenant and condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined in good faith by
resolution of the Board of Directors of the Company) in order to provide for
adjustments of shares of Common Stock for which this Warrant is exercisable
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 13(b). For purposes of this Section 13(b),
“common stock of the successor or acquiring corporation” shall include stock of
such corporation of any class which is not preferred as to dividends or assets
over any other class of stock of such corporation and which is not subject to
redemption. Subject to Section 13(c), the foregoing provisions of
this Section 13(b) shall similarly apply to successive reorganizations,
reclassifications, mergers or consolidations.
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(c) In the event of
(i) a proposed dissolution or liquidation of the Company, or (ii) a
proposed sale of all or substantially all of the assets or outstanding equity of
the Company, or (iii) the merger or consolidation of the Company with or
into another entity or any other corporate reorganization if persons who were
not shareholders of the Company immediately prior to such merger, consolidation
or other reorganization own immediately after such merger, consolidation or
other reorganization fifty percent (50%) or more of the voting power of the
outstanding securities of each of (A) the continuing or surviving entity
and (B) any direct or indirect parent corporation of such continuing or
surviving entity, the Board of Directors of the Company, at its sole discretion,
shall, as to any unexercised portion of this Warrant, either (1) make
appropriate provision for the protection of any such unexercised portion by the
substitution on an equitable basis of appropriate stock of the Company or of the
merged, consolidated or otherwise reorganized corporation which will be issuable
in respect to one share of Common Stock of the Company as set forth in Section
13(b) above; provided that the
excess of the aggregate fair market value of the shares subject to the
unexercised portion of this Warrant immediately after such substitution over the
purchase price thereof is not more than the excess of the aggregate fair market
value of the shares subject to such unexercised portion immediately before such
substitution over the purchase price thereof, or (2) upon written notice to
Holder, provide that the entire unexercised portion of this
Warrant must be exercised within a specified number of days of the
date of such notice or such unexercised portion will be terminated.
14.
Voluntary Adjustment
by the Company. The Company may at any time during the term of
this Warrant, reduce the then current Exercise Price to any amount and for any
period of time deemed appropriate by the Board of Directors of the
Company.
15.
Notice of
Adjustment. Whenever the number of Warrant Shares or number or
kind of securities purchasable upon the exercise of this Warrant or the Exercise
Price is adjusted, as herein provided, the Company shall promptly mail by
registered or certified mail, return receipt requested, to the holder of this
Warrant notice of such adjustment or adjustments setting forth the number of
Warrant Shares (or other securities) purchasable upon the exercise of this
Warrant and the Exercise Price of such Warrant Shares (or other securities)
after such adjustment, setting forth a brief statement of the facts requiring
such adjustment and setting forth the computation by which such adjustment was
made. Such notice, in the absence of manifest error, shall be
conclusive evidence of the correctness of such adjustment.
16.
Notice of Corporate
Action. If at any time:
(a) the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend or other distribution, or any right to
subscribe for or purchase any evidences of its indebtedness, any shares of stock
of any class or any other securities or property, or to receive any other right,
or
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(b) there
shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with, or any sale, transfer or other disposition of all or
substantially all the property, assets or business of the Company to, another
corporation or,
(c) there
shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company;
then, in
any one or more of such cases, the Company shall give to Holder (i) at least 10
days’ prior written notice of the date on which a record date shall be selected
for such dividend, distribution or right or for determining rights to vote in
respect of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, liquidation or winding up, and (ii) in the case of
any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up, at least 10 days’
prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed
to Holder at the last address of Holder appearing on the books of the Company
and delivered in accordance with Section 16(d).
17.
Authorized
Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any
requirements of the Principal Market upon which the Common Stock may
be listed.
18.
Miscellaneous.
(a) Jurisdiction. This
Warrant shall be binding upon any successors or assigns of the
Company. This Warrant shall be construed in accordance with the laws
of the State of New Jersey, other than those which would defer to the
substantive laws of another jurisdiction.
(b) Restrictions. The
holder hereof acknowledges that the Warrant Shares acquired upon the exercise of
this Warrant, if not registered, will have restrictions upon resale imposed by
state and federal securities laws.
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(c) Nonwaiver and
Expenses. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of
such right or otherwise prejudice Holder’s rights, powers or remedies,
notwithstanding all rights hereunder terminate on the Termination
Date.
(d) Notices. Any
notice, request or other document required or permitted to be given or delivered
to the holder hereof by the Company shall be delivered in accordance with the
notice provisions of the Financial Consulting Agreement dated July 15, 2005, by
and between Holder and Company.
(e) Limitation of
Liability. No provision hereof, in the absence of affirmative
action by Holder to purchase shares of Common Stock, and no enumeration herein
of the rights or privileges of Holder hereof, shall give rise to any liability
of Holder for the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
(f) Remedies. Holder,
in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Warrant. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Warrant and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be
adequate.
(g) Successors and
Assigns. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit of
and be binding upon the successors of the Company and the successors and
permitted assigns of Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this Warrant
and shall be enforceable by any such Holder or holder of Warrant
Shares.
(h) Indemnification. Except
as set forth in Section 9 hereof, the Company agrees to indemnify and hold
harmless Holder from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys’ fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of any failure by the
Company to perform or observe in any material respect any of its covenants,
agreements, undertakings or obligations set forth in this Warrant; provided, however, that the
Company will not be liable hereunder to the extent that any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, attorneys’ fees, expenses or disbursements are found in a final
non-appealable judgment by a court to have resulted from Holder’s negligence,
bad faith or willful misconduct in its capacity as a stockholder or
warrantholder of the Company.
(i) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
(j) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Warrant.
11
(k) Headings. The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
| Dated: August 14, 2007 | ||
|
ION
NETWORKS, INC.
|
||
|
By:
|
||
|
Name:
Xxxxxxx X. Xxxxxxx
|
||
|
Title:
Chief Financial
Officer
|
||
The
Holder accepts and agrees to the terms and conditions of this Warrant and hereby
makes the representations and warranties contained in Section 9
hereof.
Dated:
September 10, 2007
|
By:
|
||
|
Name:
Xxxxx Xxxx
|
12
NOTICE OF
EXERCISE
To: ION
NETWORKS, Inc.
(1) The
undersigned hereby elects to purchase ________ shares of Common Stock (the
“Common Stock”), of Ion Networks, Inc. pursuant to the terms of
the attached Warrant, and tenders herewith payment of the exercise price in
full, together with all applicable transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said shares of Common Stock in
the name of the undersigned or in such other name as is specified
below:
|
(Name)
|
|
|
(Address)
|
|
Dated:
|
Signature
|
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this form
and supply required information.
Do not
use this form to exercise the warrant.)
FOR VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________,
_______
|
Holder's
Signature:
|
||
|
Holder's
Address:
|
||
Signature
Guaranteed: ___________________________________________
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust
company. Officers of corporations and those acting in an fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
