PREFERRED STOCK WARRANT
EXHIBIT
4.10
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON ITS EXERCISE HAVE
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS (I) PURSUANT TO REGISTRATION
UNDER
THE ACT OR (II) IN COMPLIANCE WITH AN EXEMPTION THEREFROM AND ACCOMPANIED,
IF
REQUESTED BY THE COMPANY, WITH AN OPINION OF COUNSEL THAT SUCH TRANSFER IS
IN
COMPLIANCE WITH AN EXEMPTION THEREFROM (UNLESS SUCH TRANSFER IS TO AN AFFILIATE
OF THE REGISTERED HOLDER).
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER
SET FORTH IN SECTION 3 OF THIS WARRANT
|
Date
of Issuance: ______________, 2005
|
Number
of Shares: __
|
|
No.
__
|
|
MARKET
CENTRAL, INC. d/b/a SCIENTIGO, INC.
Common
Stock Purchase Warrant
Market
Central, Inc., d/b/a Scientigo, Inc., a Delaware corporation (the “Company”),
for
value received, hereby certifies that ________________________________,
or its
registered assigns (the “Registered
Holder”),
is
entitled, subject to the terms and conditions set forth below, to purchase
from
the Company, in whole or in part, at any time and from time to time on
or after
the date of issuance and on or before 5:00 p.m., Atlanta, Georgia time,
on June
30, 2007 (the “Exercise
Period”),
_____________ shares of Common Stock, $.001 par value per share, of the
Company
(the “Common
Stock”),
at an
exercise price of $.85 per share. The shares purchasable upon exercise
of this
preferred warrant (“Warrant”)
and
the exercise price per share are hereinafter referred to as the “Warrant
Shares”
and the
“Exercise
Price,”
respectively.
1. Exercise.
(a) This
Warrant may be exercised by the Registered Holder by
surrendering this Warrant, along with the purchase form appended hereto
as
Exhibit A
duly
executed and completed by the Registered Holder or by the Registered Holder’s
duly authorized attorney, at the principal office of the Company, or at
such
other office or agency as the Company may designate by notice in writing
to the
Registered Holder, accompanied by cash or certified cashier’s check payable to
the Company (or wire transfer of immediately available funds), in lawful
money
of the United States, of the Exercise Price payable in respect of the number
of
Warrant Shares purchased upon such exercise (the “Aggregate
Exercise Price”).
(b) Each
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the day on which this Warrant shall have been
surrendered to the Company as provided in Section
1(a)
above
(the “Exercise
Date”).
At
such time, the person or persons in whose name or names any certificates
for
Warrant Shares shall be issuable upon such exercise as provided in Section
1(c)
below
shall be deemed to have become the holder or holders of record of the Warrant
Shares represented by such certificates.
(c) Within
ten (10) days after the date of exercise of this Warrant, the Company,
at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct, a certificate or certificates for
the
number of full Warrant Shares to which the Registered Holder shall be entitled
upon such exercise plus, in lieu of any fractional share to which the Registered
Holder would otherwise be entitled, cash in an amount determined pursuant
to
Section
2
hereof. Notwithstanding
the foregoing, the Registered Holder shall be solely responsible for any
income
taxes payable and arising from the issuance or exercise of this Warrant,
or any
ad
valorem
property
or intangible tax assessed against the Registered Holder.
(d) The
Company shall use its best efforts to assist
and cooperate with the Registered Holder to make any governmental filings
or
obtain any governmental approvals prior to or in connection with any exercise
of
this Warrant (including, without limitation, making any filings required
to be
made by the Company).
(e) Notwithstanding
any other provision of this Warrant, if the exercise of all or any portion
of
this Warrant is to be made in connection with a registered public offering,
a
sale of the Company or any other transaction or event, such exercise may,
at the
election of the Registered Holder, be conditioned upon consummation of
such
transaction or event in which case such exercise shall not be deemed effective
until the consummation of such transaction or event.
2. Fractional
Shares.
No
fractional shares will be issued upon the exercise of this Warrant.
3. Requirements
for Transfer.
(a) This
Warrant and the Warrant Shares shall not be sold or transferred unless
either
(i) they first shall have been registered under the Act or (ii) the
Company first shall have been furnished with an opinion of legal
counsel to
the
effect that such sale or transfer is exempt from the registration requirements
of the Act.
(b) Notwithstanding
the foregoing, no registration or opinion of counsel shall be required
for
(i) a transfer by a Registered Holder which is a corporation to
a wholly
owned subsidiary of such corporation or to a corporation owned by the same
parent entity of such corporation, a transfer by a Registered Holder which
is a
partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or
a
transfer by a Registered Holder which is a limited liability company to
a member
of such limited liability company or a retired member or to the estate
of any
such member or retired member, provided that, as a condition to the Company
effecting such transfer, the transferee in each case agrees in writing
to be
subject to the terms of this Section 3,
or
(ii) a transfer made in accordance with Rule 144 under the
Act.
(c) Each
certificate representing Warrant Shares shall bear a legend substantially
in the
following form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL
(WHICH MAY BE COUNSEL FOR THE COMPANY) IN FORM AND SUBSTANCE SATISFACTORY
TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
The
foregoing legend shall be removed from the certificates representing any
Warrant
Shares, at the request of the holder thereof, at such time as they become
eligible for resale pursuant to Rule 144(k) under the Act.
4. No
Impairment.
The
Company will not, by amendment of its charter or through reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times
in
good faith assist in the carrying out of all such terms and in the taking
of all
such action as may be necessary or appropriate in order to protect the
rights of
the holder of this Warrant against impairment.
5. Issuance
Upon Exercise.
All
shares of Common Stock issuable upon exercise of this Warrant will be duly
and
validly issued, fully paid and nonassessable and will be free of restrictions
on
transfer, other than restrictions on transfer under any agreement between
the
Holder and the Company and under applicable state and federal securities
laws,
and will be free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
or otherwise specified herein).
6. Replacement
of Warrant.
Upon
receipt of evidence reasonably satisfactory to the Company (an affidavit
of the
Registered Holder shall be satisfactory) of the ownership and loss, theft,
destruction or mutilation of any certificate evidencing this Warrant and
in the
case of loss, theft or destruction, upon delivery of an unsecured indemnity
agreement of the Registered Holder in form reasonably satisfactory to the
Company or in the case of mutilation, upon surrender and cancellation of
such
certificate, the Company shall, at its expense execute and deliver in lieu
of
such certificate, a new certificate of like kind representing the same
rights
represented by such lost, stolen, destroyed or mutilated certificate and
dated
the date of such lost, stolen, destroyed or mutilated certificate.
7. Transfers,
etc.
(a) The
Company shall maintain a register at its principal executive office containing
the name and address of the Registered Holder of this Warrant. The Registered
Holder may change its or his address as shown on the warrant register by
written
notice to the Company requesting such change.
(b) Subject
to the provisions of Section
3
hereof,
this Warrant and all rights hereunder are transferable, in whole or in
part,
upon surrender of this Warrant with a properly executed assignment (in
the form
of Exhibit B
hereto)
at the principal executive office of the Company.
(c) Until
any
transfer of this Warrant is made in the warrant register, the Company may
treat
the Registered Holder as the absolute owner hereof for all purposes;
provided,
however,
that if
and when this Warrant is properly assigned in blank, the Company may (but
shall
not be obligated to) treat the bearer hereof as the absolute owner hereof
for
all purposes, notwithstanding any notice to the contrary.
(d) The
Company shall not close its books against the transfer of this Warrant
or any
share of Common Stock issued or issuable upon the exercise of this Warrant
in
any manner which interferes with the timely exercise of this Warrant.
8. Mailing
of Notices, etc.
Any
notice, request, demand or other communication required or permitted to
be given
to a party pursuant to the provisions of this Agreement will be in writing
and
will be effective and deemed given under this Agreement on the earliest
of: (a)
the date of personal delivery, (b) the date of transmission by facsimile,
with
confirmed transmission and receipt, (c) two (2) days after deposit with
a
nationally-recognized courier or overnight service such as Federal Express,
or
(d) five (5) days after mailing via certified mail, return receipt requested.
All notices not delivered personally or by facsimile will be sent with
postage
and other charges prepaid and properly addressed to the party to be notified
at
the address set forth for such party:
If
to the
Registered Holder:
__________________________
__________________________
__________________________
Fax:______________________
Attn:
_____________________
If
to the
Company:
Market
Central, Inc. d/b/a Scientigo, Inc.
Xxxxx
000
0000
Xxxxxxxxxx Xxxxxxx Xxxxxxx, XX 00000
Fax:
(000) 000-0000
Attn:
Chief Executive Officer
Any
party
hereto (and such party’s permitted assigns) may change such party’s address for
receipt of future notices hereunder by giving written notice to the Company
and
the other parties hereto.
9. No
Rights or Liabilities as Stockholder.
Until
the exercise of this Warrant, the Registered Holder shall be entitled to
notice
of all stockholders meetings as required to be made to all stockholders
in
accordance with the Company’s bylaws, but except as otherwise required by
applicable law, shall not be entitled to vote on any matters submitted
to the
stockholders for a vote.
10. Amendment
or Waiver.
No term
of this Warrant may be amended or waived without the written consent of
the
Company and the Registered Holder.
11. Successors
and Assigns.
This
Warrant shall be binding upon and inure to the benefit of the Registered
Holder
and its assigns, and shall be binding upon any entity succeeding to the
Company
by consolidation, merger or acquisition of all or substantially all of
the
Company’s assets. The Company may not assign this Warrant or any rights or
obligations hereunder without the prior written consent of the Registered
Holder. The Registered Holder may assign this Warrant with the Company’s prior
written consent.
12. Remedies.
In the
event of a breach by the Company of any of its obligations under this Warrant,
the Registered 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 provide adequate compensation for any losses incurred
by
reason of its breach of any of the provisions of this Warrant and hereby
further
agrees that, in the event of any action for specific performance in respect
of
such breach, it shall waive the defense that a remedy at law would be
adequate.
13. Section
Headings.
The
section headings in this Warrant are for the convenience of the parties
and in
no way alter, modify, amend, limit or restrict the contractual obligations
of
the parties.
14. Counterparts. This
Warrant may be executed in two or more counterparts, each of which will
be
deemed an original but all of which together will constitute one and the
same
instrument.
15. Severability.
The
provisions of this Warrant will be deemed severable and the invalidity
or
unenforceability of any provision hereof will not affect the validity or
enforceability of the other provisions hereof; provided that if any provision
of
this Warrant, as applied to any party or to any circumstance, is adjudged
by a
court, governmental body, arbitrator, or mediator not to be enforceable
in
accordance with its terms, the parties agree that the court, governmental
body,
arbitrator, or mediator making such determination will have the power to
modify
the provision in a manner consistent with its objectives such that it is
enforceable, and/or to delete specific words or phrases, and in its reduced
form, such provision will then be enforceable and will be enforced.
16. Third
Parties. Nothing
in this Warrant, express or implied, is intended to confer upon any person
other
than the parties hereto and their successors and assigns, any rights or
remedies
under or by reason of this Warrant.
17. Governing
Law.
This
Warrant and the performance of the transactions and the obligations of
the
parties hereunder will be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without giving effect to any choice
of
law principles.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF,
the
Company has caused this Warrant to be signed and attested by its duly authorized
officers under its corporate seal and to be dated the Date of Issuance
hereof.
MARKET
CENTRAL, INC. d/b/a SCIENTIGO, INC.
By:___________________________________
Name:
Title:
[Corporate
Seal]
ATTEST:
_________________________
EXHIBIT
A
PURCHASE
FORM
| To:_________________ |
Dated:____________
|
The
undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby irrevocably elects to purchase _____ shares of the Common Stock
covered
by such Warrant.
The
undersigned herewith makes payment of the full exercise price for such
shares at
the price per share provided for in such Warrant, which is $________ in
lawful
money of the United States.
________________________________
By:
____________________________
________________________________
Name:
Title:
Address: _______________________
_______________________
EXHIBIT
B
ASSIGNMENT
FORM
FOR
VALUE
RECEIVED, ________________________________________ hereby sells, assigns
and
transfers all of the rights of the undersigned under the attached Warrant
with
respect to the number of shares of Common Stock covered thereby set forth
below,
unto:
|
Name
of Assignee
|
Address
|
No.
of Shares
|
Dated:_____________________
[___________________________]
_____________________________
Name:
Title:
Signature
Guaranteed:
By:
_______________________
The
signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership
in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
