EXHIBIT 10.28
-------------
NEITHER THIS WARRANT NOR ANY SHARES ACQUIRED UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER
ANY STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY SUCH SHARES MAY BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND STATE SECURITIES LAWS OR
THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION.
For the Purchase of 8,000 Shares
AXCESS INC.
Common Stock Purchase Warrant
-----------------------------
The following recitals are true and constitute the basis for this Warrant:
A. This Warrant is issued to XX Xxxxxx Investment Corporation, a
Delaware corporation, or its successors in interest, assigns or
transferees (collectively, the "Warrant Holder"), in consideration for
extending the term of indebtedness owed to the Warrant Holder by
AXCESS Inc., a Delaware corporation (the "Company") pursuant to the
terms of that certain Senior Promissory Note, of even date herewith,
executed by the Company payable to the Warrant Holder in the stated
principal amount of up to $400,000 (the "Note");
B. The total number of shares of the Company's Common Stock (as
defined in Section 9(a) hereof) (the "Warrant Shares") to be issued to
the Warrant Holder is 8,000 shares (subject to the antidilution
provisions of this Warrant); and
C. This Warrant shall be exercisable at any time and from time to
time on or prior to the date which is one year from the date of
issuance of this Warrant.
THIS CERTIFIES THAT, for value received, the Warrant Holder is entitled to
purchase from the Company, 8,000 Warrant Shares at the exercise price of Five
Dollars and No Cents ($5.00) per share (the "Exercise Price"). The number of
Warrant Shares and the Exercise Price shall be adjusted and readjusted or
changed from time to time in accordance with Section 4 hereof.
This Warrant may be exercised at any time and from time to time on or prior
to September 21, 2001.
Section 1. Exercise of Warrant.
-------------------
The rights represented by this Warrant may be exercised by the Warrant
Holder, in whole or in part, by (a) delivering to the Company a duly executed
notice of exercise in the form of Annex A hereto and (b) at the Warrant Holder's
option, either (i) delivering a check payable to (or wire transfer to the
account of) the Company in an amount equal to the product of (x) the Exercise
Price times (y) the number of Warrant Shares as to which this Warrant is being
exercised (such product, the "Total Exercise Price") or (ii) delivering to the
Company a letter (the "Conversion Letter") requesting conversion or exchange of
a portion of any indebtedness owed by the Company to the Warrant Holder in an
amount equal to the Total Exercise Price or (iii) surrendering to the Company a
portion of this Warrant with a "Value" (as defined below) equal to the Total
Exercise Price. For the purpose of clause (b) (iii) above, "Value" shall mean
the product of (I) the amount by which the average closing price per share of
the Company's Common Stock over the ten trading days preceding the date of
exercise, as reported in The Wall Street Journal, exceeds the Exercise Price and
-----------------------
(II) the number of Warrant Shares as to which this Warrant is surrendered for
the purpose of effecting payment for Warrant Shares. This Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
date of delivery of a duly executed notice of exercise together with the amount
(in cash or by delivering the Conversion Letter or by surrender of a portion of
this Warrant) payable upon exercise of this Warrant and, as of such moment, (i)
the rights of the Warrant Holder, as such, with respect to the number of Warrant
Shares as to which this Warrant is being exercised (and, if applicable,
surrendered as payment of the Total Exercise Price) shall cease, and (ii) such
Warrant Holder shall be deemed to be the record holder of the shares of Common
Stock issuable upon such exercise. As soon as practicable after the exercise, in
whole or in part, of this Warrant, and in any event within 5 business days
thereafter, the Company at its expense (including the payment by it of any
applicable issuance or stamp taxes) will cause to be issued in the name of and
delivered to the Warrant Holder, or as the Warrant Holder (upon payment by the
Warrant Holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock to which the Warrant Holder shall be entitled upon such exercise. In the
event of partial exercise of this Warrant and, if applicable, partial surrender
of this Warrant pursuant to clause (b)(iii) of this Section, the Warrant need
not be delivered to the Company; provided that the Warrant Holder agrees to make
a notation of such partial exercise and, if applicable, surrender on the
Warrant. If this Warrant is delivered to the Company, the Company shall issue
and deliver to the Warrant Holder a new Warrant evidencing the rights to
purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical to this Warrant.
Section 2. Investment Representation.
-------------------------
By accepting this Warrant, the Warrant Holder represents that the Warrant
Holder is acquiring this Warrant for investment purposes and will not sell or
otherwise dispose of this Warrant or the underlying Warrant Shares in violation
of applicable securities laws. The Warrant Holder acknowledges that the
certificates representing any Warrant Shares will bear a legend indicating that
they have not been registered under the Act, and may not be sold by the Warrant
Holder except pursuant to an effective registration statement or pursuant to an
exemption from registration.
Section 3. Validity of Warrant and Issue of Shares.
---------------------------------------
The Company represents and warrants that this Warrant has been duly
authorized and validly issued and covenants and agrees that all shares of Common
Stock that may be issued upon the exercise of the rights represented by this
Warrant, when issued upon such exercise and provided that any requisite
shareholder approval has been obtained, will be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof. 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 a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant.
Section 4. Antidilution Provisions.
-----------------------
The terms of this Warrant shall be subject to adjustment as follows:
(a) If the Company shall (i) pay a stock dividend or make a distribution to
holders of Common Stock or common stock in shares of its Common Stock or common
stock, as the case may be, (ii) subdivide its outstanding shares of Common Stock
or common stock, (iii) combine its outstanding shares of Common Stock or common
stock into a smaller number of shares, or (iv) issue by reclassification of its
shares of Common Stock or common stock any shares of capital stock of the
Company, (A) the Exercise Price shall be increased or decreased as the case may
be, to an amount which shall bear the same relation to the Exercise Price in
effect immediately prior to such action as the total number of shares
outstanding immediately prior to such action shall bear to the total number of
shares outstanding immediately after such action and (B) this Warrant
automatically shall be adjusted so that it shall thereafter evidence the right
to purchase the kind and number of Warrant Shares or other securities which the
Warrant Holder would have owned and would have been entitled to receive after
such action if this Warrant had been exercised immediately prior to such action
or any record date with respect thereto. An adjustment made pursuant to this
subsection shall become effective retroactively immediately after the record
date in the case of a dividend or distribution of Common Stock or common stock
and shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification.
(b) If the Company shall fix a record date for the making of a
distribution to all holders of Common Stock or its common stock (including any
such distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of (i) assets (other than cash dividends
or cash distributions payable out of consolidated net income or retained
earnings or dividends payable in Common Stock or common stock), (ii) evidences
of indebtedness or other debt or equity securities of the Company, or of any
corporation other than the Company (except for the Common Stock or common stock
of the Company) or (iii) subscription rights, options or warrants to purchase
any of the foregoing assets or securities, whether or not such rights, options
or warrants are immediately exercisable (hereinafter collectively called
"Distributions on Common Stock"), the Company shall make provisions for the
Warrant Holder to receive upon exercise of this Warrant, a proportional amount
(depending upon the extent to which this Warrant is exercised) of such assets,
evidences of indebtedness, securities or such other rights, as if such Warrant
Holder had exercised this Warrant on or before such record date.
(c) In the case of any consolidation or merger of the Company with or into
another corporation or the sale of all or substantially all the assets of the
Company to another person or entity, this Warrant thereafter shall be
exercisable for the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Company deliverable upon exercise of this Warrant would have been entitled upon
such consolidation, merger or sale; and, in such case, appropriate adjustment
shall be made in the application of the provisions in this Section 4, to the end
that the provisions set forth in this Section 4 (including provisions with
respect to changes in and adjustments of the exercise price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other securities or property thereafter deliverable upon the exercise of this
Warrant.
(d) Upon the occurrence of each adjustment or readjustment of the exercise
price or any change in the number of Warrant Shares or in the shares of stock or
other securities or property deliverable upon exercise of this Warrant pursuant
to this Section 4, the Company at its expense shall promptly compute such
adjustment or readjustment and change in accordance with the terms hereof and
furnish to each holder hereof a certificate signed by the Chief Financial
Officer of the Company, setting forth such adjustment or readjustment and change
and showing in detail the facts upon which such adjustment or readjustment and
change is based. The Company shall, upon the written request at any time of the
Warrant Holder, furnish or cause to be furnished to such Holder, a similar
certificate setting forth (i) such adjustment or readjustment and change, (ii)
the Exercise Price then in effect, and (iii) the number of Warrant Shares and
the amount, if any, of other shares of stock and other securities and property
which would be received upon the exercise of the Warrant.
(e) The Company shall not be required upon the exercise of this Warrant to
issue any fraction of shares, but shall make any adjustment therefor by rounding
the number of shares obtainable upon exercise to the next highest whole number
of shares.
Section 5. Transfer of Rights.
------------------
This Warrant is transferable in whole or in part, at the option of the
Warrant Holder, upon delivery of a duly executed Warrant Assignment Form in the
form annexed as Annex B hereto. The Company shall execute and deliver a new
Warrant or Warrants in the form of this Warrant with appropriate changes to
reflect the issuance of subsequent Warrants in the name of the assignee or
assignees named in such instrument of assignment, and if the Warrant Holder's
entire interest is not being transferred or assigned, in the name of the Warrant
Holder, and this Warrant shall promptly be canceled. Any transfer or exchange of
this Warrant shall be without charge to the Warrant Holder, and any new Warrant
or Warrants issued shall be dated the date hereof. The term "Warrant" as used
herein includes any Warrants into which this Warrant may be divided or for which
it may be exchanged. The Warrant Holder (and not the Company) will be
responsible for any stamp, transfer or other taxes payable on any such transfer.
Section 6. Lost, Mutilated or Missing Warrant.
----------------------------------
Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and upon surrender and
cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like denomination and date.
Section 7. Rights of Warrant Holder.
------------------------
The Warrant Holder shall not, by virtue hereof, be entitled to any voting
or other rights of a shareholder of the Company, either at law or equity, and
the rights of the Warrant Holder are limited to those expressed in this Warrant.
Section 8. Successors.
----------
All the provisions of this Warrant by or for the benefit of the Company or
the Warrant Holder shall bind and inure to the benefit of their respective
successors and assigns.
Section 9. Miscellaneous.
-------------
(a) As used herein, the term "Common Stock" shall mean and include the
Company's currently authorized Common stock, $.01 par value per share, and stock
of any other class or other consideration into which such currently authorized
Common Stock may hereafter have been changed.
(b) This Warrant shall be construed in accordance with and governed by the
laws of the State of Delaware.
(c) The caption headings used in this Warrant are for convenience of
reference only and shall not be construed in any way to affect the
interpretation of any provisions of this Warrant.
Section 10. Notices.
-------
Any notice pursuant to this Warrant shall be effective if sent by first
class mail, postage prepaid, or delivered by facsimile transmission, addressed
as follows:
If to the Company, then to it at:
AXCESS Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
(or to such other address as the Company may have furnished in writing to
the Warrant Holder for this purpose); and
If to the Warrant Holder, then to it at such address as such Warrant Holder
may have furnished in writing to the Company for this purpose.
IN WITNESS WHEREOF, the Company, intending to be legally bound hereby, has
caused this Warrant to be signed by its Chairman of the Board and attested by
its Secretary or Assistant Secretary as of the date set forth below.
AXCESS INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, Chief Financial Officer
Attest:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Assistant Secretary
Issuance Date: September 21, 2000
