EXHIBIT 4
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS. ACCORDINGLY, THIS WARRANT
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT (I) AN OPINION OF
COUNSEL SATISFACTORY TO XXXXXX XXXXXX COMMUNICATIONS, INCORPORATED THAT SUCH
SALE, TRANSFER OR OTHER DISPOSITION MAY LAWFULLY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR (II)
SUCH REGISTRATION.
VOID AFTER 5:00 P.M. CENTRAL TIME ON ____________ __, 2006 ("EXPIRATION DATE").
XXXXXX XXXXXX COMMUNICATIONS, INCORPORATED
WARRANT TO PURCHASE ______ SHARES OF
COMMON STOCK, PAR VALUE $.01 PER SHARE ("COMMON STOCK")
For VALUE RECEIVED, _____________________ ("Warrantholder"), is
entitled to purchase, subject to the provisions of this Warrant, from Xxxxxx
Xxxxxx Communications, Incorporated, a New York corporation ("Company"), at any
time not later than 5:00 P.M., Central time, on the Expiration Date, at an
exercise price per share equal to $2.50 (the exercise price in effect being
herein called the "Warrant Price"), ______ shares ("Warrant Shares") of Common
Stock. The number of Warrant Shares purchasable upon exercise of this Warrant
and the Warrant Price shall be subject to adjustment from time to time as
described herein. This Warrant is one of one or more Warrants of the same form
and having the same terms as this Warrant.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of the
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended ("Securities Act") or an exemption from such
registration. This Warrant may only be transferred to an affiliate of the
Warrantholder. Subject to such restrictions, the Company shall transfer this
Warrant from time to time upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer and such other documents as
may be reasonably required by the Company to establish that such transfer is
being made in accordance with the terms hereof, and a new Warrant shall be
issued to the transferee and the surrendered Warrant shall be canceled by the
Company.
Section 3. Exercise of Warrant.
(a) Subject to the provisions hereof, the Warrantholder may exercise
this Warrant in whole or in part at any time upon surrender of the Warrant,
together with delivery of the duly executed Warrant exercise form attached
hereto (the "Exercise Agreement") and payment of the Warrant Price for that
number of Warrant Shares then being purchased, to the Company during normal
business hours on any business day at the Company's principal executive offices
(or such other office or agency of the Company as it may designate by notice to
the holder hereof).
(b) Payment made pursuant to clause (a) above may be made, at the
option of the Holder: (x) by cash, money order, certified or bank cashier's
check or wire transfer, (y) the surrender to the Company of securities of the
Company having a Fair Market Value (hereinafter defined) equal to the aggregate
Exercise Price, or (z) the delivery of a notice to the Company that the Holder
is exercising this Warrant by authorizing the Company to reduce the number of
shares of Common Stock subject to this Warrant by the number of shares having an
aggregate Fair Market Value equal to the aggregate Exercise Price.
(c) The following terms shall have the following meanings:
"Fair Market Value" with respect to any security of the
Company on any day means the average of the daily Closing Prices of a share or
unit of such security for the 30 consecutive Business Days ending on the most
recent Business Day for which a Closing Price is available; provided, however,
that in the event that, in the case of Common Stock, the Market Price is
determined during a period following the announcement by the Company of (A) a
dividend or distribution of Common Stock, or (B) any subdivision, combination or
reclassification of Common Stock and prior to the expiration of 20 Business Days
after the ex-dividend date for such dividend or distribution, or the record date
for such subdivision, combination or reclassification, then, and in each such
case, the Market Price shall be appropriately adjusted to reflect the current
market price per share equivalent of Common Stock.
"Closing Price" with respect to any security on any day means
(a) if such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is not listed or admitted to trading on any
national securities exchange, the last quoted sales price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market
on such day as reported by the OTC Bulletin Board Research Service, or, if such
service is not available, by NASDAQ or any comparable
2
system then in use or, if not so reported, as reported by any New York Stock
Exchange member firm reasonably selected by the Company for such purpose.
"Business Day" shall mean (a) if any class of Common Stock is
listed or admitted to trading on a national securities exchange, a day on which
the principal national securities exchange on which such class of Common Stock
is listed or admitted to trading is open for business or (b) if no class of
Common Stock is so listed or admitted to trading, a day on which any New York
Stock Exchange member firm is open for business.
(d) The Warrant Shares so purchased shall be deemed to be issued to the
holder hereof or such holder's designee, as the record owner of such shares, as
of the close of business on the date on which this Warrant shall have been
surrendered (or evidence of loss, theft or destruction thereof and security or
indemnity satisfactory to the Company), the Warrant Price shall have been paid
and the completed Exercise Agreement shall have been delivered. Certificates for
the Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding five (5) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be in
such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall be designated
by such holder. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the holder a new Warrant
representing the number of shares with respect to which this Warrant shall not
then have been exercised.
(e) Each exercise hereof shall constitute the representation and
warranty of the Warrantholder to the Company that the representations and
warranties contained in Article 5 of the Purchase Agreement (as defined below)
are true and correct in all material respects with respect to the Warrantholder
as of the time of such exercise.
Section 4. Compliance with the Securities Act of 1933. Neither this
Warrant nor the Common Stock issued upon exercise hereof nor any other security
issued or issuable upon exercise of this Warrant may be offered, sold or
transferred except as provided in this agreement and in conformity with the
Securities Act, and then only against receipt of an agreement of such person to
whom such offer of sale is made to comply with the provisions of this Section 4
with respect to any resale or other disposition of such security. The Company
may cause the legend set forth on the first page of this Warrant to be set forth
on each Warrant or similar legend on any security issued or issuable upon
exercise of this Warrant, unless counsel for the Company is of the opinion as to
any such security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the
3
Warrant; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificates for Warrant Shares in a name other than
that of the registered holder of this Warrant in respect of which such shares
are issued, and in such case, the Company shall not be required to issue or
deliver any certificate for Warrant Shares or any Warrant until the person
requesting the same has paid to the Company the amount of such tax or has
established to the Company's satisfaction that such tax has been paid. The
holder shall be responsible for income taxes due under federal, state or other
law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents
and warrants that there have been reserved, and the Company shall at all
applicable times keep reserved until issued (if necessary) as contemplated by
this Section 7, out of the authorized and unissued Common Stock, sufficient
shares to provide for the exercise of the rights of purchase represented by the
Warrant. The Company agrees that all Warrant Shares issued upon exercise of the
Warrant shall be, at the time of delivery of the certificates for such Warrant
Shares, duly authorized, validly issued, fully paid and non-assessable shares of
Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price, the Redemption Price and number of Warrant Shares
subject to this Warrant shall be subject to adjustment from time to time as set
forth hereinafter.
(a) If the Company shall at any time or from time to time
while the Warrant is outstanding, pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding shares
into a smaller number of shares or issue by reclassification of its outstanding
shares of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter exercising
the Warrant shall be entitled to receive the number of shares of Common Stock or
other capital stock which the Warrantholder would have received if the Warrant
had been exercised immediately prior to such event upon payment of
4
a Warrant Price that has been adjusted to reflect a fair allocation of the
economics of such event to the Warrantholder. Such adjustments shall be made
successively whenever any event listed above shall occur.
(b) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with
another corporation in which the Company is not the survivor, or sale, transfer
or other disposition of all or substantially all of the Company's assets to
another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, sale, transfer or other
disposition, lawful and adequate provision shall be made whereby each
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of the Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, had such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitations, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock, securities or properties thereafter deliverable upon the exercise
thereof. The Company shall not effect any such consolidation, merger, sale,
transfer or other disposition unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing or
otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the holder of the Warrant such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to purchase and the other obligations under this
Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales,
transfers or other dispositions.
(c) In case the Company shall fix a payment date for the
making of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
8(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such payment date shall be determined by multiplying the Warrant Price in
effect immediately prior to such payment date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the Market Price per share of Common Stock (as determined pursuant to Section
3), less the fair market value (as determined by the Company's Board of
Directors in good faith) of said assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants, and the
5
denominator of which shall be the total number of shares of Common Stock
outstanding multiplied by such Market Price per share of Common Stock. Such
adjustment shall be made successively whenever such a payment date is fixed.
(d) An adjustment shall become effective immediately after the
payment date in the case of each dividend or distribution and immediately after
the effective date of each other event which requires an adjustment.
(e) In the event that, as a result of an adjustment made
pursuant to Section 8(a), the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than shares of Common
Stock, the number of such other shares so receivable upon exercise of this
Warrant shall be subject thereafter to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Warrant Shares contained in this Warrant.
Section 9. Optional Redemption by Company. (a) At any time following
the first date (the "Trigger Date") on which the Closing Price (as defined in
Section 3(c) above) of the Company's Common Stock exceeded $5.00 per share for
20 out of the preceding 30 consecutive Business Days (as defined in Section 3(c)
above), this Warrant may be redeemed in whole or from time to time in part at
the option of the Company, at the redemption price (the "Redemption Price") of
$0.25 per share into which this Warrant is convertible as of the date fixed for
redemption. If the Company redeems less than all outstanding Warrants, such
redemption shall be made ratably among the holders of all Warrants issued in the
same series as this Warrant.
(b) For purposes of this Section 9, the term "Redemption Date"
means any date on which the Company elects to redeem Warrants pursuant to
Section 9(a) on or following the Trigger Date. At least 10 days (and not more
than 60 days) prior to any Redemption Date, written notice (a "Redemption
Notice") shall be sent to each holder of record of Warrants, at his or its
address last shown on the records of the transfer agent of the Warrants (or for
the records of the Company, if it serves as its own transfer agent), by (i)
first class certified or registered mail, postage prepaid or (ii) personal
delivery, notifying such holder of the Redemption Date, the Redemption Price,
the total number of Warrants to be redeemed and the number of Warrants to be
redeemed from such holder, and calling upon such holder to surrender to the
Company, in the manner and at the place designated, his or its certificate or
certificates representing the Warrants to be redeemed. In order to facilitate
the redemption of the Warrants, the Board of Directors may fix a record date for
the determination of Warrantholders, not more than 60 days nor less than 10 days
prior to the Redemption Date.
(c) On or prior to any Redemption Date, all Warrantholders
whose Warrants are to be redeemed in whole or in part on such date shall
surrender their certificates representing such Warrants to the Company, in the
manner and at the place designated in the Redemption Notice, and against such
surrender the Redemption Price of such Warrants shall
6
be paid on the Redemption Date to the order of the person whose name appears on
each such certificate as the owner thereof. Each surrendered certificate shall
be canceled, provided that it is less than all the Warrants represented by any
such certificate are to be redeemed, a new certificate shall be issued
representing the unredeemed Warrants. From and after any Redemption Date, unless
there shall have been a default in payment of the Redemption Price, all rights
of the Warrantholders designated for redemption in the Redemption Notice as
holders of such Warrants (except the right to receive the Redemption Price
without interest against surrender of their certificate or certificates) shall
cease with respect to such Warrants, and such Warrants shall not thereafter be
transferred on the books of the Company or be deemed to be outstanding for any
purpose whatsoever.
Section 10. Fractional Interest. The Company shall not be required to
issue fractions of Warrant Shares upon the exercise of the Warrant. If any
fraction of a Warrant Share would, except for the provisions of this Section, be
issuable upon the exercise of the Warrant (or specified portions thereof), the
fractional share shall be disregarded and the number of shares to be issued upon
exercise shall be the number of whole shares only.
Section 11. Benefits. Nothing in this Warrant shall be construed to
give any person, firm or corporation (other than the Company and the
Warrantholder) any legal or equitable right, remedy or claim, it being agreed
that this Warrant shall be for the sole and exclusive benefit of the Company and
the Warrantholder.
Section 12. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. In the event of a dispute with respect to any such
calculation, the certificate of the Company's independent certified public
accountants shall be conclusive evidence of the correctness of any computation
made, absent manifest error. Failure to give such notice to the Warrantholder or
any defect therein shall not affect the legality or validity of the subject
adjustment.
Section 13. Identity of Transfer Agent. The Transfer Agent for the
Common Stock is _____________________. Upon the appointment of any subsequent
transfer agent for the Common Stock or other shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrant, the Company will mail to the Warrantholder a statement setting forth
the name and address of such transfer agent.
7
Section 14. Notices. Any notice pursuant hereto to be given or made by
the Warrantholder to or on the Company shall be sufficiently given or made if
sent by certified mail, return receipt requested, postage prepaid, addressed as
follows:
Company:
Xxxxxx Xxxxxx Communications, Incorporated
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Chief Financial Officer
with a copy to:
Xxxxxx X. xxx Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxxx LLP
Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
or such other address as the Company may specify in writing by notice to the
Warrantholder complying as to delivery with the terms of this Section 14.
Any notice pursuant hereto to be given or made by the Company to or on
the Warrantholder shall be sufficiently given or made if personally delivered or
if sent by an internationally recognized courier services by overnight or
two-day service, to the address set forth on the books of the Company or, as to
each of the Company and the Warrantholder, at such other address as shall be
designated by such party by written notice to the other party complying as to
delivery with the terms of this Section 14. All such notices, requests, demands,
directions and other communications shall, when sent by courier be effective two
(2) days after delivery to such courier as provided and addressed as aforesaid.
Section 15. Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights in respect of the Warrant
Shares as provided in the Purchase Agreement(s) by and between the Company and
the purchasers named therein dated ______________ __, 2001 (collectively, the
"Purchase Agreement").
Section 16. Successors. All the covenants and provisions hereof by or
for the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 17. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the State of Missouri, without giving effect to
its conflict of law principles, and for all purposes shall be construed in
accordance with the laws of said State.
8
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
duly executed, as of the day and year first above written.
XXXXXX XXXXXX COMMUNICATIONS,
INCORPORATED
By:___________________________
Name:
Title:
9
XXXXXX XXXXXX COMMUNICATIONS, INCORPORATED
WARRANT EXERCISE FORM
XXXXXX XXXXXX COMMUNICATIONS, INCORPORATED
This undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by the payment of the Warrant Price and surrender of the Warrant,
_______________ shares of Common Stock ("Warrant Shares") provided for therein,
and requests that certificates for the Warrant Shares be issued as follows:
_______________________________
Name
_______________________________
Address
_______________________________
_______________________________
Federal Tax ID or Social Security No.
and delivered by
certified mail to the above address, or
electronically (provide DWAC Instructions:___________________), or
other (specify: __________________________________________).
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
By exercising the rights represented by this Warrant, the undersigned
hereby certifies that, as of the date of exercise of this Warrant, the
representations and warranties contained in Section ___ of the Purchase
Agreement are true and correct in all material respects with respect to the
undersigned.
Dated:___________________, ____
Note: The signature must correspond with Signature:_________________
the name of the registered holder as written
on the first page of the Warrant in every ___________________________
particular, without alteration or enlargement Name (please print)
or any change whatever, unless the Warrant
has been assigned. ___________________________
___________________________
Address
___________________________
Federal Identification or
Social Security No.
Assignee:
___________________________
___________________________
___________________________
___________________________
