EXHIBIT 4.39
APPIANT TECHNOLOGIES INC.
WARRANT NO. 2001-_____
Issued as of the 8th day of June, 2001 (1) Aggregate Price: $
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(2) Initial Warrant Price: $2.64
(3) Number of Shares Initially
Subject to Warrant:
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NEITHER THIS WARRANT, NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF,
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("1933
SECURITIES ACT"), OR QUALIFIED OR REGISTERED UNDER CALIFORNIA OR OTHER
APPLICABLE SECURITIES LAWS ("STATE SECURITIES LAWS"), AND THIS WARRANT HAS BEEN,
AND THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF WILL BE, ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER DISPOSITION MAY BE MADE WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 SECURITIES ACT AND COMPLIANCE
WITH THE APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE ISSUER AND ITS COUNSEL, THAT SAID REGISTRATION IS NOT
REQUIRED UNDER THE 1933 SECURITIES ACT AND THAT APPLICABLE STATE SECURITIES LAWS
HAVE BEEN SATISFIED.
COMMON STOCK WARRANT
This certifies that , ("PURCHASER"), whose address for
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notice is located at , or any party to whom this Warrant
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is assigned in compliance with the terms hereof (Purchaser and any such assignee
being hereinafter sometimes referenced as "HOLDER"), is entitled to subscribe
for and purchase, in whole or in part, during the period commencing at the issue
date set forth above and ending at 5:00 p.m., California, local time, on the
fifth (5th) anniversary of the date such shares are registered of fully paid and
non-assessable Common Stock ("COMMON STOCK") APPIANT TECHNOLOGIES, INC, A
DELAWARE CORPORATION (the "COMPANY"), that have an aggregate purchase price
equal to the Aggregate Price as defined below. The purchase price of each such
share shall be equal to the Warrant Price, as defined below.
ARTICLE 1
DEFINITIONS
1.1 "AGGREGATE PRICE" shall be $ .
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1.2 "WARRANT PRICE" shall be $2.64 as adjusted herein.
ARTICLE 2
EXERCISE AND PAYMENT
2.1 CASH EXERCISE. The purchase rights represented by this Warrant may be
exercised by Xxxxxx, in whole or in part, by the surrender of this Warrant at
the principal office of the Company, located at the address set forth
on the signature page hereof, accompanied by the form of Notice of Cash Exercise
attached hereto as Exhibit "B-1", and by the payment to the Company, by cash or
by certified, cashier's or other check acceptable to the Company, of an amount
equal to the aggregate Warrant Price of the shares being purchased.
2.2 FAIR MARKET VALUE. For purposes of this Article II, fair market value
of one share of the Company's Common Stock shall mean:
(i) The average of the closing bid and asked prices of the
Common Stock quoted in the Over-The-Counter Market Summary, the last reported
sale price of the Common Stock or the closing price quoted on the Nasdaq
National Market System ("NMS") or on any exchange on which the Common Stock is
listed, whichever is applicable, as published in the Western Edition of The Wall
Street Journal for the trading day prior to the date of determination of fair
market value; or
(ii) If the Common Stock is not traded Over-The-Counter, on the
NMS or on an exchange, the per share fair market value of the Common Stock shall
be as determined by mutual agreement of the Company and the Holder; provided,
however that if such agreement cannot be reached within twenty (20) calendar
days, such value shall be determined by an independent appraiser appointed in
good faith by the Company's Board of Directors. The cost of such appraisal shall
be borne equally by the Company and the Holder. Such appraiser shall meet the
following criteria: (a) it shall not be associated or affiliated with the
Company in any fashion and shall not have previously provided services to the
Company; (b) the appraiser shall have reasonable qualifications to appraise the
value of the Common Stock; (c) it is not (and none of its affiliates is) a
promoter, director or officer of the Company or any of its affiliates or an
underwriter with respect to any of the securities of the Company; and (d) it
does not provide any advice or opinions of the Company except as an appraiser
under this section. In the event such an appraisal is required it should be
conducted under the following procedures: the Company shall select the appraiser
within ten (10) days of receipt of written notice from the Holder that agreement
cannot be reached and the Company shall submit the name of such appraiser to
Holder. Twenty (20) days after selection of the appraiser, the Company and the
Holder shall each submit to the appraiser a single value representing such
party's contention as to the fair market value of one share of the Company's
Common Stock. Within fifteen (15) days after receipt of the submission of the
Company and the Holder, the appraiser shall select one of the two values
submitted by the parties, and such value shall be the fair market value of one
share of the Common Stock for purpose of this Warrant. The appraiser shall have
no discretion to take any action other than selection of one of the two values
submitted to the appraiser. The parties may submit to the appraiser and one
another, at the time they submit their respective single values, such supporting
documentation as they deem necessary or appropriate. The parties shall have the
opportunity seven (7) business days after receipt of other party's proposed
valuation and supporting documentation to provide the appraiser and each other
with supplemental written information. The appraiser may, in its discretion,
hold a single six (6) hour hearing on valuation issues. If a hearing is held,
each party shall be allocated three (3) hours. The appraiser may conduct the
hearing in accordance with any rules of procedure it deems appropriate. The
value selected by the appraiser shall be final and binding upon the parties
without any further right of appeal.
2.3 STOCK CERTIFICATES. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to Holder within a reasonable time and, unless this
Warrant has been fully exercised or has expired, a new Warrant representing the
remaining unexercised Aggregate Price shall also be issued to Holder at such
time.
2.4 STOCK FULLY PAID; RESERVATION OF SHARES. The Company covenants and
agrees that all Common Stock which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issue thereof
(excluding taxes based on the income of Holder). The Company further covenants
and agrees that during the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized and
reserved for issuance a sufficient number of shares of its Common Stock or other
securities as would be required upon the full exercise of the rights represented
by this Warrant (including conversion of all such Common Stock issuable
hereunder).
2.5 FRACTIONAL SHARES. No fractional share of Common Stock will be issued
in connection with any exercise hereof; in lieu of a fractional share upon
complete exercise hereof, Holder may purchase a whole share by delivering
payment equal to the appropriate portion of the then effective Warrant Price.
ARTICLE 3
CERTAIN ADJUSTMENTS OF NUMBER
OF SHARES PURCHASABLE AND WARRANT PRICE
The number and kind of securities purchasable upon the exercise of this
Warrant and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
3.1 RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of: (i)
any reclassification or change of outstanding securities issuable upon exercise
of this Warrant; (ii) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification, change or exchange of outstanding securities issuable upon
exercise of this Warrant); or (iii) any sale or transfer to another corporation
of all, or substantially all, of the property of the Company, then, and in each
such event, the Company or such successor or purchasing corporation, as the case
may be, shall execute a new Warrant of like form, tenor and effect and which
will provide that Holder shall have the right to exercise such new Warrant and
purchase upon such exercise, in lieu of each share of Common Stock theretofore
issuable upon exercise of this Warrant, the kind and amount of securities, money
and property receivable upon such reclassification, change, consolidation,
merger, sale or transfer by a holder of one share of Common Stock issuable upon
exercise of this Warrant had this Warrant been exercised immediately prior to
such reclassification, change, consolidation, merger, sale or transfer. Such new
Warrant shall be as nearly equivalent in all substantive respects as practicable
to this Warrant and the adjustments provided in this Article III and the
provisions of this Section 3.1, shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and transfers.
3.2 SUBDIVISION OR COMBINATION OF SHARES. If the Company shall at any
time while this Warrant remains outstanding and less than fully exercised: (i)
divide its Company Stock, the Warrant Price shall be proportionately reduced; or
(ii) shall combine shares of its Common Stock, the Warrant Price shall be
proportionately increased.
3.3 STOCK DIVIDENDS. If the Company, at any time while this Warrant
is outstanding and unexpired, shall pay a dividend payable in, or make any other
distribution to holders of, Common Stock (except any distribution described in
Sections 3.1 and 3.2 hereof) then the Warrant Price shall be adjusted to that
price determined by multiplying the Warrant Price then in effect by a fraction,
the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution.
3.4 TIME OF ADJUSTMENTS TO THE WARRANT PRICE. All adjustments to the
Warrant Price and the number of shares purchasable hereunder, unless otherwise
specified herein, shall be effective as of the earlier of:
(i) the date of issue of the security causing the adjustment;
(ii) the date of sale of the security causing the adjustment;
(iii) the effective date of a division or combination of shares;
(iv) the record date of any action of holders of any class of the
Company's capital stock taken for the purpose of entitling shareholders to
receive a distribution or dividend payable in equity securities, provided that
such division, combination, distribution or dividend actually occurs.
3.5 NOTICE OF ADJUSTMENTS. In each case of an adjustment in the
Warrant Price and the number of shares purchasable hereunder, the Company, at
its expense, shall cause the Chief Financial Officer of the Company to compute
such adjustment and prepare a certificate setting forth such adjustment and
showing in detail the facts upon which such adjustment is based. The Company
shall promptly mail a copy of each such certificate to Holder pursuant to
Section 6.8 hereof.
3.6 DURATION OF ADJUSTED WARRANT PRICE. Following each adjustment of
the Warrant Price, such adjusted Warrant Price shall remain in effect until a
further adjustment of the Warrant Price.
3.7 ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment of the
Warrant Price pursuant to this Article III, the number of shares of Common Stock
purchasable hereunder shall be adjusted to the nearest whole share, to the
number obtained by dividing the Aggregate Price by the Warrant Price as
adjusted.
ARTICLE 4
TRANSFER, EXCHANGE AND LOSS
4.1 TRANSFER. This Warrant is transferable on the books of the
Company at its principal office by the registered Holder hereof upon surrender
of this Warrant properly endorsed, subject to compliance with federal and state
securities laws. The Company shall issue and deliver to the transferee a new
Warrant or Warrants representing the Warrants so transferred. Upon any partial
transfer, the Company will issue and deliver to Holder a new Warrant or Warrants
with respect to the Warrants not so transferred. Notwithstanding the foregoing,
Holder shall not be entitled to transfer a number of shares or an interest in
this Warrant representing less than five percent (5%) of the aggregate shares
initially covered by this Warrant (as presently constituted, with appropriate
adjustment being made in the event of stock splits, combinations,
reorganizations and the like occurring after the issue date hereof). Any
transferee shall be subject to the same restrictions on transfer with respect to
this Warrant as the Purchaser.
4.2 SECURITIES LAWS. Upon any issuance of shares of Common Stock upon
exercise of this Warrant, it shall be the Company's responsibility to comply
with the requirements of: (1) the Securities Act of 1933, as amended; (2) the
Securities Exchange Act of 1934, as amended; (3) any applicable listing
requirements of any national securities exchange; (4) any state securities
regulation or "Blue Sky" laws; and (5) requirements under any other law or
regulation applicable to the issuance or transfer of such shares. If required
by the Company, in connection with each issuance of shares of Common Stock upon
exercise of this Warrant, the Holder will give: (i) assurances in writing,
satisfactory to the Company, that such shares are not being purchased with a
view to the distribution thereof in violation of applicable laws, (ii)
sufficient information, in writing, to enable the Company to rely on exemptions
from the registration or qualification requirements of applicable laws, if
available, with respect to such exercise, and (iii) its cooperation to the
Company in connection with such compliance.
4.3 EXCHANGE. This Warrant is exchangeable at the principal office of
the Company for Warrants which represent, in the aggregate, the Aggregate Price
hereof; each new Warrant to represent the right to purchase such portion of the
Aggregate Price as Holder shall designate at the time of such exchange. Each
new Warrant shall be identical in form and content to this Warrant, except for
appropriate changes in the number of shares of Common Stock covered thereby, the
percentage stated in Section 4.1 above, and any other changes which are
necessary in order to prevent the Warrant exchange from changing the respective
rights and obligations of the Company and the Holder as they existed immediately
prior to such exchange.
4.4 LOSS OR MUTILATION. Upon receipt by the Company of evidence
satisfactory to it of the ownership of, and the loss, theft, destruction or
mutilation of, this Warrant and (in the case of loss, theft, or destruction) of
indemnity satisfactory to it, and (in the case of mutilation) upon surrender and
cancellation hereof, the Company will execute and deliver in lieu hereof a new
Warrant.
ARTICLE 5
HOLDER RIGHTS
5.1 NO SHAREHOLDER RIGHTS UNTIL EXERCISE. No Holder hereof, solely by
virtue hereof, shall be entitled to any rights as a shareholder of the Company.
Holder shall have all rights of a shareholder with respect to securities
purchased upon exercise hereof at the time: (i) the cash exercise price for such
securities is delivered pursuant to Section 2.1 hereof and this Warrant is
surrendered, (ii) of delivery of notice of cashless exercise pursuant to Section
2.2 hereof and this Warrant is surrendered, or (iii) of automatic exercise
hereof (even if not surrendered) pursuant to Section 2.5 hereof.
ARTICLE 6
MISCELLANEOUS
6.1 GOVERNMENTAL APPROVALS. The Company will from time to time take
all action which may be necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and
securities acts filings under federal and state laws, which may be or become
requisite in connection with the issuance, sale, and delivery of this Warrant,
and the issuance, sale and delivery of the Common Stock or other securities or
property issuable or deliverable upon exercise of this Warrant.
6.2 GOVERNING LAWS. IT IS THE INTENTION OF THE PARTIES HERETO THAT
EXCEPT AS SET FORTH BELOW, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, U.S.A.
(IRRESPECTIVE OF ITS CHOICE OF LAW PRINCIPLES) SHALL GOVERN THE VALIDITY OF THIS
WARRANT, THE CONSTRUCTION OF ITS TERMS, AND THE INTERPRETATION AND ENFORCEMENT
OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO.
6.3 BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and unless
otherwise provided in, this Warrant, each and all of the covenants, terms,
provisions, and agreements contained herein shall be binding upon, and inure to
the benefit of the permitted successors, executors, heirs, representatives,
administrators and assigns of the parties hereto.
6.4 SEVERABILITY. If any one or more provisions of this Warrant, or
the application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Warrant and the application of such
provisions to other persons or circumstances shall be interpreted so as best to
reasonably effect the intent of the parties hereto. The parties further agree to
replace any such void or unenforceable provisions of this Warrant with valid and
enforceable provisions which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
6.5 DEFAULT, AMENDMENT AND WAIVERS. This Warrant may be amended upon
the written consent of the Company and the holders in the aggregate of the right
to purchase a majority of the number of unexercised shares covered by the
Warrant initially issued by the Company pursuant to the Consulting Agreement.
The waiver by a party of any breach hereof for default in payment of any amount
due hereunder or default in the performance hereof shall not be deemed to
constitute a waiver of any other default or any succeeding breach or default.
The failure to cure any breach of any term of this Warrant within ten (10) days
of written notice thereof shall constitute an event of default under this
Warrant.
6.6 NO WAIVER. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
6.7 ATTORNEYS' FEES. Should suit be brought to enforce or interpret
any part of this Warrant, the prevailing party shall be entitled to recover, as
an element of the costs of suit and not as damages, reasonable attorneys' fees
to be fixed by the court (including without limitation, costs, expenses and fees
on any appeal). The prevailing party shall be the party entitled to recover its
costs of suit, regardless of whether such suit proceeds to final judgment. A
party not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in calculating the
amount of a judgment for purposes of determining if a party is entitled to
recover costs or attorneys' fees.
6.8 NOTICES. Whenever any party hereto desires or is required to give
any notice, demand, or request with respect to this Warrant, each such
communication shall be in writing and shall be effective only if it is delivered
by personal service or mailed, United States certified mail, postage prepaid,
return receipt requested, addressed as follows:
Company: Appiant Technologies, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxxx
Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Holder:
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Such communications shall be effective when they are received by the addressee
thereof; but if sent by certified mail in the manner set forth above, they shall
be effective three (3) business days after being deposited in the United States
mail. Any party may change its address for such communications by giving notice
thereof to the other party in conformity with this Section.
6.9 TIME. Time is of the essence of this Warrant.
6.10 CONSTRUCTION OF AGREEMENT. A reference in this Warrant to any
Section shall include a reference to every Section the number of which begins
with the number of the Section to which reference is specifically made (E.G., a
reference to Section 3 shall include a reference to Sections 3.5 and 3.7). The
titles and headings herein are for reference purposes only and shall not in any
manner affect the interpretation of this Warrant.
6.11 NO ENDORSEMENT. Xxxxxx understands that no federal or state
securities administrator has made any finding or determination relating to the
fairness of investment in the Company or purchase of the Common Stock hereunder
and that no federal or state securities administrator has recommended or
endorsed the offering of securities by the Company hereunder.
6.12 PRONOUNS. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
6.13 FURTHER ASSURANCES. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
any other party to better evidence and reflect the transactions described herein
and contemplated hereby, and to carry into effect the intents and purposes of
this Warrant.
Appiant Technologies, Inc., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx Xxxxx
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Xxxxxx Xxxxxxxx Xxxxx
Corporate Secretary and General Counsel
EXHIBIT B-1
NOTICE OF EXERCISE OF COMMON STOCK WARRANT
BY CASH PAYMENT OF WARRANT PRICE
DATE: _________________________
_________________________ Aggregate Price of Warrant
_________________________ Before Exercise: $_______________
_________________________ Aggregate Price
Attention: Chief Financial Officer Being Exercised: $_______________
Warrant Price: $ per share
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Number of Shares of Common Stock to be
Issued Under this Notice:
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Remainder Aggregate
Price (if any) After Issuance: $
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CASH EXERCISE
Gentlemen:
The undersigned registered Holder of the Common Stock Warrant delivered
herewith ("WARRANT"), hereby irrevocably exercises such Warrant for, and
purchases thereunder, shares of the Common Stock of Appiant Technologies, Inc.,
a Delaware corporation, as provided below. Capitalized terms used herein,
unless otherwise defined herein, shall have the meanings given in the Warrant.
The portion of the Aggregate Price (as defined in the Warrant) to be applied
toward the purchase of Common Stock pursuant to this Notice of Exercise is
$______, thereby leaving a remainder Aggregate Price (if any) equal to $______.
Such exercise shall be pursuant to the cash exercise provisions of Section 2.1
of the Warrant. Therefore, Holder makes payment with this Notice of Exercise by
way of check payable to the Company in the amount of $______. Such check is
payment in full under the Warrant for shares of Common Stock based upon the
Warrant Price of $ per share, as currently in effect under the Warrant. Holder
requests that the certificates for the purchased shares of Common Stock be
issued in the name of and delivered to "_______________________",
_______________________________. To the extent the foregoing exercise is for
less than the full Aggregate Price, a Replacement Warrant representing the
remainder of the Aggregate Price and otherwise of like form, tenor and effect
should be delivered to Holder along with the share certificates evidencing the
Common Stock issued in response to this Notice of Exercise.
By:
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(NAME)
NOTE
The execution to the foregoing Notice of Exercise must exactly correspond
to the name of the Holder on the Warrant.
