Exhibit 4.8
THE SECURITIES REPRESENTED BY THESE WARRANTS AND THE COMMON STOCK ISSUABLE
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW. THE SECURITIES
REPRESENTED BY THESE WARRANTS MAY NOT BE TRANSFERRED, EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER, OR IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER, THE SECURITIES ACT AND IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS.
FORM OF
WARRANTS
to Purchase Common Stock of
Gemini II, Inc.
Expiring on ______, 2004
This Common Stock Purchase Warrant (the "Warrant") certifies that for
value received, ______________ (the "Holder") or its assigns, is entitled to
subscribe for and purchase from the Company (as hereinafter defined), in whole
or in part, ____________ shares of duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock (as hereinafter defined) at an initial
Exercise Price (as hereinafter defined) per share of $8.00, subject, however, to
the provisions and upon the terms and conditions hereinafter set forth. The
number of Warrants (as hereinafter defined), the number of shares of Common
Stock purchasable hereunder, and the Exercise Price therefor are subject to
adjustment as hereinafter set forth. These Warrants and all rights hereunder
shall expire at 5:00 p.m., Houston, Texas time, on _______, 2004 (the
"Expiration Date").
ARTICLE I
Definitions
As used herein, the following terms shall have the meanings set forth
below:
I.1 "COMPANY" shall mean Gemini II, Inc., a Delaware corporation, and
shall also include any successor thereto with respect to the obligations
hereunder, by merger, consolidation or otherwise.
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I.2 "COMMON STOCK" shall mean and include the Company's common stock,
par value $.0001 per share, authorized on the date of the original issue of
these Warrants and shall also include (i) in case of any reorganization,
reclassification, consolidation, merger, share exchange or sale, transfer or
other disposition of assets, the stock or other securities provided for herein,
and (ii) any other shares of common stock of the Company into which such shares
of Common Stock may be converted.
I.3 "EXERCISE PRICE" shall mean the initial purchase price of $8.00 per
share of Common Stock payable upon exercise of the Warrants, as adjusted from
time to time pursuant to the provisions hereof.
I.4 "MARKET PRICE" for any day, when used with reference to Common
Stock, shall mean the price of said Common Stock determined by reference to the
last reported sale price for the Common Stock on such day on the principal
securities exchange on which the Common Stock is listed or admitted to trading
or if no such sale takes place on such date, the average of the closing bid and
asked prices thereof as officially reported, or, if not so listed or admitted to
trading on any securities exchange, the last sale price for the Common Stock on
the National Association of Securities Dealers national market system on such
date, or, if there shall have been no trading on such date or if the Common
Stock shall not be listed on such system, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any NASD member firm
selected from time to time by the Company for such purpose.
I.5 "NOTE" shall mean the 13% Promissory Note of the Company originally
issued to the Holder.
I.6 "WARRANT" shall mean the right upon exercise to purchase one
Warrant Share.
I.7 "WARRANT SHARES" shall mean the shares of Common Stock purchased or
purchasable by the Holder hereof upon the exercise of the Warrants.
ARTICLE II
Exercise of Warrants
II.1 METHOD OF EXERCISE. The Warrants represented hereby may be
exercised by the Holder hereof, in whole or in part, at any time and from time
to time on or after the date hereof until 5:00 p.m., Houston, Texas time, on the
Expiration Date. To exercise the Warrants, the Holder hereof shall deliver to
the Company, at the Warrant Office designated herein, (i) a written notice in
the form of the Subscription Notice attached as an exhibit hereto, stating
therein the election of such Holder to exercise the Warrants in the manner
provided in the Subscription Notice; (ii) payment in full of the Exercise Price
(A) in cash or by bank check for all Warrant Shares purchased hereunder, or (B)
through a "cashless" or "net-issue" exercise of each such Warrant ("Cashless
Exercise"); the Holder shall exchange each Warrant subject to a Cashless
Exercise for that number of Warrant Shares determined by multiplying the number
of Warrant Shares issuable hereunder by a fraction,
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the numerator of which shall be the difference between (x) the Market Price
and (y) the Exercise Price for each such Warrant, and the denominator of
which shall be the Market Price; the Subscription Notice shall set forth the
calculation upon which the Cashless Exercise is based, or (C) a combination
of (A) and (B) above; and (iii) these Warrants. The Warrants shall be deemed
to be exercised on the date of receipt by the Company of the Subscription
Notice, accompanied by payment for the Warrant Shares and surrender of these
Warrants, as aforesaid, and such date is referred to herein as the "Exercise
Date". Upon such exercise, the Company shall, as promptly as practicable and
in any event within five business days, issue and deliver to such Holder a
certificate or certificates for the full number of the Warrant Shares
purchased by such Holder hereunder, and shall, unless the Warrants have
expired, deliver to the Holder hereof a new Warrant representing the number
of Warrants, if any, that shall not have been exercised, in all other
respects identical to these Warrants. As permitted by applicable law, the
person in whose name the certificates for Common Stock are to be issued shall
be deemed to have become a Holder of record of such Common Stock on the
Exercise Date and shall be entitled to all of the benefits of such Holder on
the Exercise Date, including without limitation the right to receive
dividends and other distributions for which the record date falls on or after
the Exercise Date and to exercise voting rights.
II.2 EXPENSES AND TAXES. The Company shall pay all expenses and taxes
(including, without limitation, all documentary, stamp, transfer or other
transactional taxes) other than income taxes attributable to the preparation,
issuance or delivery of the Warrants and of the shares of Common Stock issuable
upon exercise of the Warrants.
II.3 RESERVATION OF SHARES. The Company shall reserve at all times so
long as the Warrants remain outstanding, free from preemptive rights, out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the exercise of the Warrants, a sufficient number of shares of Common
Stock to provide for the exercise of the Warrants.
II.4 VALID ISSUANCE. All shares of Common Stock that may be issued upon
exercise of the Warrants will, upon issuance by the Company, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof and, without limiting the generality of the
foregoing, the Company shall take no action or fail to take any action which
will cause a contrary result (including, without limitation, any action that
would cause the Exercise Price to be less than the par value, if any, of the
Common Stock).
II.5 PURCHASE AGREEMENT. The Warrants represented hereby are part of a
duly authorized issue and sale of warrants to purchase Common Stock issued and
sold pursuant to that certain Agreement of Purchase and Sale, effective as of
_______, 1999 (the "Purchase Agreement") between the Company and the Holder. The
Holder shall be entitled to the rights to registration under the Securities Act
and any applicable state securities or blue sky laws to the extent set forth in
the Registration Rights Agreement between the Company and the Holder effective
as of _______, 1999 (the "Registration Rights Agreement"). The terms of the
Purchase Agreement and Registration Rights Agreement are hereby incorporated
herein for all purposes and shall be considered a part of this Warrant as if
they had been fully set forth herein. Notwithstanding the previous sentence, in
the
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event of any conflict between the provisions of the Purchase Agreement and
of this Warrant, the provisions of this Warrant shall control.
II.6 ACKNOWLEDGMENT OF RIGHTS. At the time of the exercise of the
Warrants in accordance with the terms hereof and upon the written request of the
Holder hereof, the Company will acknowledge in writing its continuing obligation
to afford to such Holder any rights (including, without limitation, any right to
registration of the Warrant Shares) to which such Holder shall continue to be
entitled after such exercise in accordance with the provisions of these
Warrants; PROVIDED, however, that if the Holder hereof shall fail to make any
such request, such failure shall not affect the continuing obligation of the
Company to afford to such Holder any such rights.
II.7 NO FRACTIONAL SHARES. The Company shall not be required to issue
fractional shares of Common Stock on the exercise of these Warrants. If more
than one Warrant shall be presented for exercise at the same time by the same
Holder, the number of full shares of Common Stock which shall be issuable upon
such exercise shall be computed on the basis of the aggregate number of whole
shares of Common Stock purchasable on exercise of the Warrants so presented. If
any fraction of a share of Common Stock would, except for the provisions of this
Section, be issuable on the exercise of this Warrant, the Company shall pay an
amount in cash calculated by it to be equal to the Market Price of one share of
Common Stock at the time of such exercise multiplied by such fraction computed
to the nearest whole cent.
ARTICLE III
Transfer
III.1 WARRANT OFFICE. The Company shall maintain an office for certain
purposes specified herein (the "Warrant Office"), which office shall initially
be the Company's offices at 000 Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 and may
subsequently be such other office of the Company or of any transfer agent of the
Common Stock in the continental United States as to which written notice has
previously been given to the Holder. The Company shall maintain, at the Warrant
Office, a register for the Warrants in which the Company shall record the name
and address of the person in whose name these Warrants has been issued, as well
as the name and address of each permitted assignee of the rights of the
registered owner hereof.
III.2 OWNERSHIP OF WARRANTS. The Company may deem and treat the person
in whose name the Warrants are registered as the Holder and owner hereof until
provided with notice to the contrary. The Warrants may be exercised by an
assignee for the purchase of Warrant Shares without having new Warrants issued.
III.3 RESTRICTIONS ON TRANSFER OF WARRANTS. These Warrants may be
transferred, in whole or in part, by the Holder. The Company agrees to maintain
at the Warrant Office books for the registration and transfer of the Warrants.
The Company, from time to time, shall register the transfer of the Warrants in
such books upon surrender of this Warrant at the Warrant Office properly
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endorsed or accompanied by appropriate instruments of transfer and written
instructions for transfer. Upon any such transfer and upon payment by the Holder
or its transferee of any applicable transfer taxes, new Warrants shall be issued
to the transferee and the transferor (as their respective interests may appear)
and the surrendered Warrants shall be cancelled by the Company. The Company
shall pay all taxes (other than securities transfer taxes or income taxes) and
all other expenses and charges payable in connection with the transfer of the
Warrants pursuant to this Section.
III.4 COMPLIANCE WITH SECURITIES LAWS. Subject to the terms of the
Registration Rights Agreement and notwithstanding any other provisions contained
in these Warrants, the Holder understands and agrees that the following
restrictions and limitations shall be applicable to all Warrant Shares and to
all resales or other transfers thereof pursuant to the Securities Act:
III.4.1 The Holder hereof agrees that the Warrant Shares may
not be sold or otherwise transferred unless the Warrant Shares are registered
under the Securities Act and applicable state securities or blue sky laws or are
exempt therefrom.
III.4.2 A legend in substantially the following form will be
placed on the certificate(s) evidencing the Warrant Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW AND,
ACCORDINGLY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
RESOLD, PLEDGED, OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER, OR IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER, THE SECURITIES ACT AND IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS."
III.4.3 Stop transfer instructions will be imposed with
respect to the Warrant Shares so as to restrict resale or other transfer
thereof.
ARTICLE IV
Anti-Dilution
IV.1 ANTI-DILUTION PROVISIONS. The Exercise Price shall be subject to
adjustment from time to time as provided herein. Upon each adjustment of the
Exercise Price, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number of
shares of Common Stock obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
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IV.2 STOCK SPLITS AND REVERSE SPLITS. In the event that the Company
shall at any time subdivide its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of Warrant Shares
purchasable pursuant to this Warrant immediately prior to such subdivision shall
be proportionately increased, and conversely, in the event that the outstanding
shares of Common Stock shall at any time be combined into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination shall
be proportionately increased and the number of Warrant Shares purchasable upon
the exercise of this Warrant immediately prior to such combination shall be
proportionately reduced.
IV.3 REORGANIZATIONS AND ASSET SALES. If any capital reorganization or
reclassification of the capital stock of the Company, or any consolidation,
merger or share exchange of the Company with another person, or the sale,
transfer or other disposition of all or substantially all of its assets to
another person shall be effected in such a way that Holders of Common Stock
shall be entitled to receive capital stock, securities or assets with respect to
or in exchange for their shares, then the following provisions shall apply:
IV.3.1 As a condition of such reorganization,
reclassification, consolidation, merger, share exchange, sale, transfer or other
disposition, lawful and adequate provisions shall be made whereby the Holder
shall thereafter have the right to purchase and receive upon the terms and
conditions specified in these Warrants and in lieu of the Warrant Shares
immediately theretofore receivable upon the exercise of the rights represented
hereby, such shares of capital stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of Warrant Shares immediately theretofore
so receivable had such reorganization, reclassification, consolidation, merger,
share exchange or sale not taken place, and in any such case appropriate
provision reasonably satisfactory to such Holder shall be made with respect to
the rights and interests of such Holder to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Exercise Price
and of the number of Warrant Shares receivable upon the exercise) shall
thereafter be applicable, as nearly as possible, in relation to any shares of
capital stock, securities or assets thereafter deliverable upon the exercise of
Warrants.
IV.3.2 In the event of a merger, share exchange or
consolidation of the Company with or into another person as a result of which a
number of shares of common stock or its equivalent of the successor person
greater or lesser than the number of shares of Common Stock outstanding
immediately prior to such merger, share exchange or consolidation are issuable
to holders of Common Stock, then the Exercise Price in effect immediately prior
to such merger, share exchange or consolidation shall be adjusted in the same
manner as though there were a subdivision or combination of the outstanding
shares of Common Stock.
IV.3.3 The Company shall not effect any such consolidation,
merger, share exchange, sale, transfer or other disposition unless prior to or
simultaneously with the consummation thereof the successor person (if other than
the Company) resulting from such consolidation, share exchange or merger or the
person purchasing or otherwise acquiring such assets shall have assumed
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by written instrument executed and mailed or delivered to the Holder hereof
at the last address of such Xxxxxx appearing on the books of the Company the
obligation to deliver to such Holder such shares of capital stock, securities
or assets as, in accordance with the foregoing provisions, such Holder may be
entitled to receive, and all other liabilities and obligations of the Company
hereunder. Upon written request by the Holder hereof, such successor person
will issue a new Warrant revised to reflect the modifications in this Warrant
effected pursuant to this Section.
IV.3.4 If a purchase, tender or exchange offer is made to and
accepted by the holders of 50% or more of the outstanding shares of Common
Stock, the Company shall not effect any consolidation, merger, share exchange or
sale, transfer or other disposition of all or substantially all of the Company's
assets with the person having made such offer or with any affiliate of such
person, unless prior to the consummation of such consolidation, merger, share
exchange, sale, transfer or other disposition the Holder hereof shall have been
given a reasonable opportunity to then elect to receive upon the exercise of the
Warrants either the capital stock, securities or assets then issuable with
respect to the Common Stock or the capital stock, securities or assets, or the
equivalent, issued to previous Holders of the Common Stock in accordance with
such offer.
IV.4 ADJUSTMENT FOR ASSET DISTRIBUTION. If the Company declares a
dividend or other distribution payable to all Holders of shares of Common Stock
in evidences of indebtedness of the Company or other assets of the Company
(including, cash (other than regular cash dividends declared by the Board of
Directors), capital stock (other than Common Stock, convertible securities or
options or rights thereto) or other property), the Exercise Price in effect
immediately prior to such declaration of such dividend or other distribution
shall be reduced by an amount equal to the amount of such dividend or
distribution payable per share of Common Stock, in the case of a cash dividend
or distribution, or by the fair value of such dividend or distribution per share
of Common Stock (as reasonably determined in good faith by the Board of
Directors of the Company), in the case of any other dividend or distribution.
Such reduction shall be made whenever any such dividend or distribution is made
and shall be effective as of the date as of which a record is taken for purpose
of such dividend or distribution or, if a record is not taken, the date as of
which Holders of record of Common Stock entitled to such dividend or
distribution are determined.
IV.5 DE MINIMIS ADJUSTMENTS. No adjustment in the number of shares of
Common Stock purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one share of Common Stock
purchasable upon an exercise of each Warrant and no adjustment in the Exercise
Price shall be required unless such adjustment would require an increase or
decrease of at least $0.05 in the Exercise Price; provided, however, that any
adjustments are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations shall be made to the
nearest full share or nearest one hundredth of a dollar, as applicable.
IV.6 NOTICE OF ADJUSTMENT. Whenever the Exercise Price or the number of
Warrant Shares issuable upon the exercise of the Warrants shall be adjusted as
herein provided, or the rights of the Holder hereof shall change by reason of
other events specified herein, the Company shall compute the adjusted Exercise
Price and the adjusted number of Warrant Shares in accordance with the
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provisions hereof and shall prepare an Officer's Certificate setting forth the
adjusted Exercise Price and the adjusted number of Warrant Shares issuable upon
the exercise of the Warrants or specifying the other shares of stock, securities
or assets receivable as a result of such change in rights, and showing in
reasonable detail the facts and calculations upon which such adjustments or
other changes are based. The Company shall cause to be mailed to the Holder
hereof copies of such Officer's Certificate and an independent accountants'
opinion together with a notice stating that the Exercise Price and the number of
Warrant Shares purchasable upon exercise of the Warrants have been adjusted and
setting forth the adjusted Exercise Price and the adjusted number of Warrant
Shares purchasable upon the exercise of the Warrants.
IV.7 NOTIFICATIONS TO HOLDERS. In case at any time the Company
proposes:
(i) to declare any dividend upon its Common Stock payable in
capital stock or make any special dividend or other distribution (other
than cash dividends) to the holders of its Common Stock;
(ii) to offer for subscription pro rata to all of the Holders
of its Common Stock any additional shares of capital stock of any class
or other rights;
(iii) to effect any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation,
merger or share exchange of the Company with another person, or sale,
transfer or other disposition of all or substantially all of its
assets; or
(iv) to effect 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 the Holder hereof
(a) at least 10 days (but not more than 90 days) prior written notice of the
date on which the books of the Company shall close or a record shall be taken
for such dividend, distribution or subscription rights or for determining rights
to vote in respect of any such issuance, reorganization, reclassification,
consolidation, merger, share exchange, sale, transfer, disposition, dissolution,
liquidation or winding up, and (b) in the case of any such issuance,
reorganization, reclassification, consolidation, merger, share exchange, sale,
transfer, disposition, dissolution, liquidation or winding up, at least 10 days
(but not more than 90 days) prior written notice of the date when the same shall
take place. Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such dividend, distribution or subscription rights,
the date on which the Holders of Common Stock shall be entitled thereto, and
such notice in accordance with the foregoing clause (b) shall also specify the
date on which the holders of Common Stock shall be entitled to exchange their
Common Stock, as the case may be, for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, share
exchange, sale, transfer, disposition, dissolution, liquidation or winding up,
as the case may be.
IV.8 COMPANY TO PREVENT DILUTION. If any event or condition occurs as
to which other provisions of this Article are not strictly applicable or if
strictly applicable would not fairly protect
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the exercise or purchase rights of the Warrants evidenced hereby in
accordance with the essential intent and principles of such provisions, or
that might materially and adversely affect the exercise or purchase rights of
the Holder hereof under any provisions of this Warrant, then the Company
shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, so as to protect such
exercise and purchase rights as aforesaid, and any adjustments necessary with
respect to the Exercise Price and the number of Warrant Shares purchasable
hereunder so as to preserve the rights of the Holder hereunder. In no event
shall any such adjustment have the effect of increasing the Exercise Price as
otherwise determined pursuant to this Article except in the event of a
combination of shares.
ARTICLE V
Miscellaneous
V.1 ENTIRE AGREEMENT. These Warrants, together with the Purchase
Agreement and the Registration Rights Agreement, contain the entire agreement
between the Holder hereof and the Company with respect to the Warrant Shares
purchasable upon exercise hereof and the related transactions and supersedes all
prior arrangements or understandings with respect thereto.
V.2 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. COMPANY HEREBY CONSENTS TO
THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
STATE OF NEW YORK OR, AT THE SOLE OPTION OF HOLDER, IN ANY OTHER COURT IN WHICH
HOLDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT
MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. COMPANY WAIVES ANY OBJECTION
OF FORUM NON CONVENIENCE AND VENUE. COMPANY AND HOLDER EACH HEREBY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO THIS WARRANT WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE.
V.3 WAIVER AND AMENDMENT. Any term or provision of these Warrants may
be waived at any time by the party which is entitled to the benefits thereof and
any term or provision of these Warrants may be amended or supplemented at any
time by agreement of the Holder hereof and the Company, except that any waiver
of any term or condition, or any amendment or supplementation, of these Warrants
shall be in writing and signed by the Company and the Holder. A waiver of any
breach or failure to enforce any of the terms or conditions of these Warrants
shall not in any way effect, limit or waive a party's rights hereunder at any
time to enforce strict compliance thereafter with every term or condition of
these Warrants.
V.4 ILLEGALITY. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
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provisions of these Warrants shall not, at the election of the party for whom
the benefit of the provision exists, be in any way impaired.
V.5 COPY OF WARRANT. A copy of these Warrants shall be filed among the
records of the Company.
V.6 NOTICE. Except as otherwise provided, all communications to the
Company or Holder provided for herein or with reference to this Agreement shall
be deemed to have been sufficiently given or served for all purposes on the
third Business Day after being sent as certified or registered mail, postage and
charges prepaid, to the following addresses: if to the Company: 000 Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attn: Xxxxx Xxxxx, or at any other address
designated by the Company in writing to Holder; if to Holder:
____________________________________________________ , or at any other address
designated by Holder to the Company in writing.
V.7 LIMITATION OF LIABILITY; NOT STOCKHOLDERS. No provision of these
Warrants shall be construed as conferring upon the Holder hereof the right to
vote, consent, receive dividends or receive notices (other than as herein
expressly provided) in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of the
Company. No provision hereof, in the absence of affirmative action by the Holder
hereof to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the Holder hereof, shall give rise to any liability of
such Holder for the purchase price of any shares of Common Stock or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
V.8 EXCHANGE, LOSS, DESTRUCTION, ETC. OF WARRANT. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, mutilation
or destruction of these Warrants, and in the case of any such loss, theft or
destruction upon delivery of an appropriate affidavit in such form as shall be
reasonably satisfactory to the Company and include reasonable indemnification of
the Company, or in the event of such mutilation upon surrender and cancellation
of these Warrants, the Company will make and deliver new Warrants of like tenor,
in lieu of such lost, stolen, destroyed or mutilated Warrants. Any Warrants
issued under the provisions of this Section in lieu of any Warrants alleged to
be lost, destroyed or stolen, or in lieu of any mutilated Warrants, shall
constitute an original contractual obligation on the part of the Company. These
Warrants shall be promptly canceled by the Company upon the surrender hereof in
connection with any exchange or replacement. The Company shall pay all taxes
(other than securities transfer taxes or income taxes) and all other expenses
and charges payable in connection with the preparation, execution and delivery
of Warrants pursuant to this Section.
V.9 UNREGISTERED WARRANTS AND WARRANT SHARES. Neither this Warrant nor
the Warrant Shares are registered under the Securities Act, and, accordingly,
may not be resold, pledged or otherwise transferred, except pursuant to an
effective registration statement under the Securities Act
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or in a transaction exempt from registration under the Securities Act and in
accordance with any other applicable securities laws.
V.10 REGISTRATION RIGHTS. The Warrant Shares shall be entitled to such
registration rights under the Securities Act and under applicable state
securities laws as are specified in the Registration Rights Agreement.
V.9 HEADINGS. The Article and Section and other headings herein are for
convenience only and are not a part of this Warrant and shall not affect the
interpretation thereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name dated _______, 1999.
Gemini II, Inc.
By:
--------------------------------
PRINT NAME:
PRINT TITLE:
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SUBSCRIPTION NOTICE
The undersigned, the Holder of the foregoing Warrants, hereby
elects to exercise purchase rights represented thereby for, and to purchase
thereunder, _________ shares of the Common Stock covered by such Warrants,
and herewith makes payment in full for such shares, and requests (a) that
certificates for such shares (and any other securities or other property
issuable upon such exercise) be issued in the name of, and delivered to,
_________________________ and (b), if such shares shall not include all of
the shares issuable as provided in such Warrants, that new Warrants of like
tenor and date for the balance of the shares issuable thereunder be delivered
to the undersigned.
---------------------------------------
Date:
---------------------------
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ASSIGNMENT
For value received,_______________ , hereby sells, assigns and
transfers unto_______________ these Warrants, together with all rights, title
and interest therein, and does irrevocably constitute and appoint_______________
attorney, to transfer such Warrants on the books of the Company, with full power
of substitution.
---------------------------------------
Date:
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