WARRANT
WARRANT
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
(THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED, (THE "SECURITIES ACT") OR QUALIFIED UNDER ANY STATE OR FOREIGN
SECURITIES LAW, AND THE WARRANT MAY NOT BE EXERCISED AND THE WARRANT AND THE
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, ASSIGNED OR HYPOTHECATED, UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH
SECURITIES.
to
purchase
Shares
of Common Stock
of
at
an
exercise price of $4.10 per share
VOID
AFTER 17:00 p.m. (prevailing Tel Aviv time)
On
the
Expiration Date (as hereinafter defined)
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Date:
[ ] ,
2007
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IXI
Mobile, Inc. a Delaware corporation with its principal offices at 0000
Xxxxxxxx Xxxx, Xxxxx 000 Xxxxxxx, XX (the
"Company"),
hereby grants
to
[
]
(the
"Holder"),
the
right to purchase, subject to the terms and conditions hereof, up to
[ (
)]
shares
of Common Stock, par value $0.0001 per share, of the Company ("Common
Stock"),
exercisable at any time from time to time, on or after the date hereof (the
"Effective
Date"),
and
until the Fifth (5
th)
anniversary of the Effective Date (the "Expiration
Date").
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1.
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DEFINITIONS
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In
this
Warrant the terms below shall have the following meaning, unless otherwise
specifically provided or required by the context:
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1.1.
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"Warrant
Shares"
means the Shares of Common Stock purchasable hereunder or any other
securities which, in accordance with the provisions hereof, may be
issued
by the Company in substitution
therefor.
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1.2.
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"Exercise
Price"
means the price of Four Dollars and Ten Cents ($4.10) payable hereunder
for each Warrant Share, as adjusted in the manner set forth
hereinafter.
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1.3.
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"Warrants"
means this Warrant and all warrants hereafter issued in exchange
or
substitution for this Warrant.
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2.
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WARRANT
PERIOD;
EXERCISE
OF WARRANT
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2.1.
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This
Warrant may be exercised in whole at any time, or in part from time
to
time, beginning on the Effective Date until the Expiration Date (the
"Warrant
Period"),
by the surrender of this Warrant (with a duly executed exercise form
in
the form attached hereto as Exhibit
A),
at the principal office of the Company, set forth above, together
with
proper payment of the Exercise Price multiplied by the number of
Warrant
Shares for which the Warrant is being exercised. Payment for Warrant
Shares shall be made by certified or official bank check or checks,
payable to the order of the Company or by wire transfer to an account
to
be designated in writing by the Company. Payments shall be made in
United
States dollars.
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2.2.
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The
Holder of the Warrant, by its acceptance hereof, covenants and agrees
that
this Warrant is being acquired as an investment and not with a view
to the
distribution hereof and such Holder further covenants and agrees
that it
will not sell, transfer, pledge, assign, or hypothecate the Warrant
or the
Warrant Shares unless there is an effective registration statement
under
the Securities Act of 1933 covering the Warrant or the Warrant Shares,
or
the Holder of the Warrant and/or the Warrant Shares receives an opinion
of
counsel satisfactory to the Company stating that such sale, transfer,
pledge, assignment, or hypothecation is exempt from the registration
and
prospectus delivery requirements of the Securities Act of 1933 and
the
qualification requirements under applicable law.
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2.3.
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If
this Warrant should be exercised in part, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a
new
Warrant evidencing the rights of the Holder to purchase the remainder
of
the Warrant Shares purchasable hereunder. The Company shall pay any
and
all expenses, taxes and other charges that may be payable in connection
with the issuance of the Warrant Shares and the preparation and delivery
of share certificates pursuant to this Section 2 in the name of the
Holder
(including without limitation, if applicable stamp duty), and to
the
extent required, the execution and delivery of a new Warrant, provided,
however, that the Company shall only be required to pay taxes which
are
due as a direct result of the issuance of the Warrant Shares or other
securities, properties or rights underlying such Warrants (such as
the
applicable stamp duty), and will not be required to pay any tax which
may
be (i) due as a result of the specific identity of the Holder or
(ii)
payable in respect of any transfer involved in the issuance and delivery
of any such certificates in a name other than that of the
Holder.
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2.4.
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No
fractions of Shares of Common Stock shall be issued in connection
with the
exercise of this Warrant, and the number of Common Stock issued shall
be
rounded up or down to the nearest whole number.
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2.5.
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Upon
the issuance of Common Stock resulting from the exercise in whole
or in
part of this Warrant, the Company shall deliver to the Holder an
irrevocable letter of instructions to the Company’s transfer agent to
issue as soon as is reasonably practicable to the Holder share
certificates reflecting the Warrant Shares exercised thereby, together
with any and all other documents required for the issuance of such
certificates by the transfer agent.
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3.
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RESERVATION
OF SHARES
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The
Company covenants that: (i) at all times during the Warrant Period it shall
have
in reserve, and will keep available solely for issuance or delivery upon
exercise of the Warrant, such number of Shares of Common Stock as shall be
issuable upon the exercise hereof, and (b) upon exercise of the Warrant and
payment of the Exercise Price hereunder, the Warrant Shares issuable upon such
exercise will be validly issued, fully paid, non assessable, free and clear
from
any lien, encumbrance, pledge or any other third party right and not subject
to
any preemptive rights.
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4.
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ADJUSTMENTS
TO EXERCISE
PRICE
AND NUMBER
OF SECURITIES
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4.1.
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Subdivision
and Combination.
In case the Company shall at any time subdivide or combine the outstanding
Shares of Common Stock, the Exercise Price shall forthwith be
proportionately decreased in the case of subdivision or increased
in the
case of combination.
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4.2.
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Stock
Dividends and Distributions.
In case the Company shall pay a dividend on, or make a distribution
of,
Shares of Common Stock or of the Company's share capital convertible
into
Shares of Common Stock, the Exercise Price shall forthwith be adjusted,
from and after the date of determination of stockholders entitled
to
receive such dividend or distribution, to that price determined by
multiplying the Exercise Price in effect immediately prior to such
date of
determination by a fraction (i) the numerator of which shall be the
total
number of shares of Common Stock outstanding immediately prior to
such
dividend or distribution, and (ii) the denominator of which shall
be the
total number of shares of Common Stock outstanding immediately after
such
dividend or distribution. An adjustment pursuant to this Section
4.3 shall
be made as of the record date for the subject stock dividend or
distribution.
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2
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4.3.
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Adjustment
in Number of Securities.
Upon each adjustment of the Exercise Price pursuant to the provisions
of
Sections 4.1 and 4.2, the number of Common Stock issuable upon the
exercise of each Warrant shall be adjusted to the nearest full amount
by
multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of Shares of Common Stock
issuable
upon exercise of the Warrants immediately prior to such adjustment
and
dividing the product so obtained by the adjusted Exercise
Price.
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4.4.
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No
Adjustment of Exercise Price in Certain Cases.
No adjustment of the Exercise Price shall be made if the amount of
said
adjustment shall be less than 2 cents ($0.02) per each Share of Common
Stock, provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and
shall
be made at the time of and together with the next subsequent adjustment
which, together with any adjustment so carried forward, shall amount
to at
least 2 cents ($0.02) per each Share of Common
Stock.
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4.5.
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Merger
or Consolidation.
In case of any consolidation of the Company with or merger of the
Company
with, or merger of the Company into (other than a merger which does
not
result in any reclassification or change of the outstanding Shares
of
Common Stock), the Company shall cause the corporation formed by
such
consolidation or merger or surviving such merger to execute and deliver
to
the Holder a new warrant agreement in exchange for this Warrant,
providing
that the Holder of the Warrant then outstanding or to be outstanding
shall
have the right thereafter (until the expiration of such Warrant)
to
receive, upon exercise of such Warrant, the kind and amount of shares
of
stock and other securities and property receivable upon such consolidation
or merger, by a holder of the number of Shares of Common Stock of
the
Company for which such Warrant might have been exercised immediately
prior
to such consolidation or merger. Such supplemental warrant agreement
shall
provide for adjustments, which shall be identical to the adjustments
provided in this Section 4. The provisions of this Section 4.5 shall
similarly apply to successive consolidations or
mergers.
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5.
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NOTICES
TO WARRANT
HOLDERS
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Nothing
contained in this Warrant shall be construed as conferring upon the Holder
the
right to vote or to consent or to receive notice as a stockholder in respect
of
any meetings of stockholders for the election of directors or any other matter,
or as having any rights whatsoever as a stockholder of the Company. If, however,
at any time prior to the Expiration Date, any of the following events shall
occur:
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5.1.
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the
Company shall take a record of the holders of its Shares of Common
Stock
for the purpose of entitling them to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend or distribution
payable
otherwise than out of current or retained earnings, as indicated
by the
accounting treatment of such dividend or distribution on the books
of the
Company;
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5.2.
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the
Company shall offer to all the holders of its Shares of Common Stock
any
additional shares of the share capital of the Company or securities
convertible into or exchangeable for shares of the share capital
of the
Company, or any option, right or warrant to subscribe therefor;
or
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5.3.
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a
dissolution, liquidation or winding up of the Company (other than
in
connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
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3
then,
in
any one or more of said events, the Company shall give to the Holder written
notice of such event at least fifteen (15) days prior to the date fixed as
a
record date or the date of closing the transfer books for the determination
of
the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale.
| 6. |
TRANSFERABILITY
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6.1.
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The
Holder may, sell, transfer, assign, encumber, pledge or otherwise
dispose
or undertake to dispose of the
Warrant.
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6.2.
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Unless
registered, the Warrant Shares issued upon exercise of the Warrants
shall
be subject to a stop transfer order and the certificate or certificates
evidencing such Warrant Shares shall bear legend substantially similar
to
the following:
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"THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES UNDER THE
SECURITIES ACT, OR AN OPINION OF COUNSEL FOR THE HOLDER OF THE SHARES
SATISFACTORY TO IXI MOBILE INC., THAT REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT."
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7.
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LOSS,
ETC. OF
WARRANT
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Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant, and of indemnity reasonably satisfactory to
the
Company, if lost, stolen or destroyed, and upon surrender and cancellation
of
this Warrant, if mutilated, and upon reimbursement of the Company's reasonable
direct expenses, the Company shall execute and deliver to the Holder a new
Warrant of like date, tenor and denomination.
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8.
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HEADINGS
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The
headings of this Warrant have been inserted as a matter of convenience and
shall
not affect the construction hereof.
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9.
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NOTICES
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Unless
otherwise provided, any notice required or permitted under this Warrant shall
be
given in writing and shall be deemed effectively given upon personal delivery
to
the party to be notified or seven (7) days after deposit with the Post
Authority, for dispatch by registered or certified mail, postage prepaid and
addressed to the Holder at the address set forth in the Company's books and
to
the Company at the address of its principal offices set forth above, or when
given by telecopier or other form of rapid written communication, provided
that
confirming copies are sent by such airmail.
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10.
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GOVERNING
LAW
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This
Warrant shall be governed by and construed and enforced in accordance with
the
laws of the State of New York (regardless of the laws that might otherwise
govern under applicable New York principles of conflicts of law). Any dispute
arising out of or in connection with this Warrant is hereby submitted to the
sole and exclusive jurisdiction of the competent courts located in New York,
New
York.
4
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11.
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ENTIRE
AGREEMENT;
AMENDMENT
AND WAIVER
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This
Warrant and the Exhibit hereto constitute the full and entire understanding
and
agreement between the parties with regard to the subject matters hereof and
thereof. Any term of this Warrant may be amended and the observance of any
term
hereof may be waived (either prospectively or retroactively and either generally
or in a particular instance) only with the written consent of both the Holder
and the Company.
IN
WITNESS
WHEREOF,
the
Company has caused this Warrant to be executed as of the date first written
above.
By:
Name: Xxxx
Xxxxxx
Title: President
and Chief Executive Officer
By:
Name: [
]
Title: Chief
Financial Officer
Agreed
and Accepted:
[
]
By:
Name:
Title:
By:
Name:
Title:
5
EXHIBIT
A
Warrant
Exercise Form
_________________,
200_
IXI
Mobile Inc.
0000
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX
Dear
Sirs,
Re: Exercise
of Warrant
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1.
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The
undersigned hereby irrevocably elects to exercise the attached Warrant
No.
W-[ ] to the extent of ___________________ Common Stock of ixi Mobile,
Inc., all in accordance with Section 2.1 of the
Warrant.
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2.
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Payment
to the Company of the total Exercise Price for such shares has been
made
simultaneously with the delivery of this exercise of the
Warrant.
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3.
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The
undersigned requests that certificates for such Common Stock be registered
in the name of ____________________ whose address is ____________________
and that such certificates be delivered to whose address is
_____________________________.
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[
]
By:
Name:
Title:
6
