Exhibit 4(af)
This Warrant has not been registered under the Securities Act of 1933, as
amended, or applicable state securities laws, nor the securities laws of any
other jurisdiction. This Warrant may not be sold or transferred in the absence
of an effective registration statement under those securities laws or an opinion
of counsel, in form and substance satisfactory to the Company, that the sale or
transfer is pursuant to an exemption to the registration requirements of those
securities laws.
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NCT GROUP, INC.
(Incorporated under the laws of the State of Delaware)
Void after 5:00 p.m., New York City time, on June 17, 2005
Warrant to Purchase
400,000 Shares of
Common Stock
Warrant for the Purchase of Shares of Common Stock
No. BC-2
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FOR VALUE RECEIVED, NCT GROUP, INC. (the "Company"), a Delaware
corporation, on this 17th day of June, 2002 (the "Grant Date") hereby issues
this warrant (the "Warrant") and certifies that Xxxxx Xxxxxxx (the "Holder") is
granted the right, subject to the provisions of the Warrant, to purchase from
the Company, at any time, or from time to time during the period commencing at
9:00 a.m. New York City local time on the Grant Date and expiring, unless
earlier terminated as hereinafter provided, at 5:00 p.m. New York City local
time on June 17, 2005 (the "Expiration Date") up to four hundred thousand
(400,000) fully paid and nonassessable shares of Common Stock, $.01 par value,
of the Company at a price of $0.081 per share (hereinafter referred to as the
"Exercise Price").
The term "Common Stock" means the shares of Common Stock, $.01 par value,
of the Company as constituted on the Grant Date of this Warrant, together with
any other equity securities that may be issued by the Company in addition
thereto or in substitution therefor. The number of shares of Common Stock to be
received upon the exercise of this Warrant may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "Warrant Stock".
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed
or mutilated shall be at any time enforceable by anyone.
The Holder agrees with the Company that this Warrant is issued, and all the
rights hereunder shall be held, subject to all of the conditions, limitations
and provisions set forth herein.
1. Exercise of Warrant.
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1.1 Period of Exercise. This Warrant may be exercised in whole or
in part at any time, or from time to time, during the period
commencing at 9:00 a.m., New York City local time, on the Grant Date,
and expiring at 5:00 p.m., New York City local time, on the Expiration
Date, or, if such day is a day on which banking institutions in the
City of New York are authorized by law to close, then on the next
succeeding day that shall not be such a day.
1.2. Exercise For Payment. Subject to the restrictions and
limitations set forth above, this Warrant may be exercised by
presentation and surrender hereof to the Company at its principal
office with the Warrant Exercise Form attached hereto duly executed
and accompanied by payment (either in cash or by certified or official
bank check, payable to the order of the Company) of the Exercise Price
for the number of shares specified in such Form and instruments of
transfer, if appropriate, duly executed by the Holder.
1.3 Partial Exercise. If this Warrant should be exercised in part
only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the rights
of the Holder thereof to purchase the balance of the shares
purchasable hereunder.
1.4 Transfer Books and Certificates. Upon receipt by the Company
of this Warrant, together with the Warrant Exercise Form and the
Exercise Price, at its office, in proper form for exercise, the Holder
shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not then
be actually delivered to the Holder.
1.5 Certain Taxes. The Company shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on exercise of this
Warrant.
1.6 Certain Beneficial Ownership. The Holder shall not be
entitled to exercise this Warrant to the extent that (a) the number of
shares of Common Stock issuable upon such exercise and (b) the number
of shares of Common Stock beneficially owned by the Holder and its
affiliates on the date of such exercise would result in beneficial
ownership by the Holder and its affiliates of more than 9.99% of the
outstanding shares of Common Stock on the date of such exercise. For
the purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Rule 13d-3
thereunder. Subject to the foregoing, the Holder shall not be limited
to aggregate exercises of only 9.99%. The Holder may void the exercise
limitation described in this paragraph upon 75 days' prior written
notice to the Company. The Holder may allocate which of the equity of
the Company deemed beneficially owned by the Holder shall be included
in the 9.99% amount described above and which shall be allocated to
the excess above 9.99%.
2.Warrant Stock Transfer. The Warrant Stock may not be sold or otherwise
disposed of unless registered pursuant to the provisions of the Securities Act
of 1933, as amended (the "1933 Act"), or an opinion of counsel in form and
content satisfactory to the Company is obtained stating that such sale or other
disposition is made in compliance with an available exemption from such
registration. Any sale or other disposition of the Warrant Stock must also
comply with all applicable state securities laws and regulations.
3.Fractional Shares. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant, but the Company shall
issue one additional share of its Common Stock in lieu of each fraction of a
share otherwise called for upon any exercise of this Warrant.
0.Xxxxxxxx, Transfer, Assignment of Loss of Warrant. This Warrant is not
registered under the 1933 Act nor under any applicable state securities law or
regulation. This Warrant cannot be sold, exchanged, transferred, assigned or
otherwise disposed of unless registered pursuant to the provisions of the 1933
Act or an opinion of counsel in form and content satisfactory to the Company is
obtained stating that such disposition is in compliance with an available
exemption from registration. Any such disposition must also comply with
applicable state securities laws and regulations.
5.Rights of the Holder. The Holder shall not, by virtue hereof, be entitled
to any rights of a stockholder of the Company, either at law or in equity, and
the rights of the Holder are limited to those expressed in this Warrant.
6.Redemption. This Warrant is not redeemable by the Company.
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7.Anti-Dilution Provisions.
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7.1 Adjustment for Dividends in Other Securities, Property, Etc.:
Reclassification, Etc. In case at any time or from time to time after the
Grant Date the holders of Common Stock (or any other securities at the time
receivable upon the exercise of this Warrant) shall have received, or on or
after the record date fixed for the determination of eligible stockholders,
shall have become entitled to receive without payment therefor: (a) other
or additional securities or property (other than cash) by way of dividend,
(b) any cash paid or payable except out of earned surplus of the Company at
the Grant Date as increased (decreased) by subsequent credits (charges)
thereto (other than credits in respect of any capital or paid-in surplus or
surplus created as a result of a revaluation of property) or (c) other or
additional (or less) securities or property (including cash) by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar corporate rearrangement, then, and in each such case, the Holder of
this Warrant, upon the exercise thereof as provided in Section 1, shall be
entitled to receive, subject to the limitations and restrictions set forth
above, the amount of securities and property (including cash in the cases
referred to in clauses (b) and (c) above) which such Holder would hold on
the date of such exercise if on the Grant Date it had been the holder of
record of the number of shares of Common Stock (as constituted on the Grant
Date) subscribed for upon such exercise as provided in Section 1 and had
thereafter, during the period from the Grant Date to and including the date
of such exercise, retained such shares and/or all other additional (or
less) securities and property (including cash in the cases referred to in
clauses (b) and (c) above) receivable by it as aforesaid during such
period, giving effect to all adjustments called for during such period by
Section 7.2.
7.2 Adjustment for Reorganization, Consolidation, Merger, Etc. In case
of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of this
Warrant) after the Grant Date or in case after such date the Company (or
any such other corporation) shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant upon
the exercise thereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation, merger or conveyance,
shall be entitled to receive, in lieu of the securities and property
receivable upon the exercise of this Warrant prior to such consummation,
the securities or property to which such Holder would have been entitled
upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in
Section 7.1; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of
this Warrant after such consummation.
7.3 Certificate as to Adjustments. In each case of an adjustment in
the number of shares of Common Stock (or other securities or property)
receivable on the exercise of the Warrant, the Company at its expense will
promptly compute such adjustment in accordance with the terms of the
Warrant and prepare a certificate setting forth such adjustment and showing
in detail the facts upon which such adjustment is based, including a
statement of (a) the consideration received or to be received by the
Company for any additional shares of Common Stock issued or sold or deemed
to have been issued or sold, (b) the number of shares of Common Stock
outstanding or deemed to be outstanding, and (c) the pro forma adjusted
Exercise Price. The Company will forthwith mail a copy of each such
certificate to the holder of this Warrant.
7.4 Notices of Record Date, Etc.
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In case:
(a) the Company shall take a record of the holders of its Common Stock
(or other securities at the time receivable upon the exercise of the
Warrant) for the purpose of entitling them to receive any dividend (other
than a cash dividend) or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company (other than a stock
split or reverse stock split), any reclassification of the capital stock of
the Company, any consolidation or merger of the Company with or into
another corporation (other than a merger for purposes of change of
domicile) or any conveyance of all or substantially all of the assets of
the Company to another corporation; or
(c) of any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company shall mail or cause to be mailed
to each holder of the Warrant at the time outstanding a notice specifying,
as the case may be, (i) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating the amount and
character of such dividend, distribution or right, or (ii) the date on
which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any, is to be fixed, as to which the holders of record of
Common Stock (or such other securities at the time receivable upon the
exercise of the Warrant) shall be entitled to exchange their shares of
Common Stock (or such other securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up. Such notice
shall be mailed at least twenty (20) days prior to the date therein
specified and the Warrant may be exercised prior to said date during the
term of the Warrant no later than five (5) days prior to said date.
8.Legend. In the event of the exercise of this Warrant and the issuance of
any of the Warrant Stock hereunder, all certificates representing Warrant
Stock not then registered for sale to the public under the 1933 Act shall
bear on the face thereof substantially the following legend, insofar as is
consistent with Delaware law:
"The shares of common stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the Securities
laws of any state or other jurisdiction, and may not be sold, offered for
sale, assigned, transferred or otherwise disposed of, unless registered
pursuant to the provisions of that Act and of such Securities laws or an
opinion of counsel acceptable to the Corporation is obtained stating that
such disposition is in compliance with an available exemption from such
registration."
9. Applicable Law. This Warrant is issued under and shall for all
purposes be governed by and construed in accordance with the laws of the
State of Delaware and of the United States of America.
10. Notice. Notices and other communications to be given to the Holder
of the Warrant evidenced by this certificate shall be deemed to have been
sufficiently given, if delivered or mailed, addressed in the name and at
the address of such owner appearing on the records of the Company, and if
mailed, sent registered or certified mail, postage prepaid. Notices or
other communications to the Company shall be deemed to have been
sufficiently given if delivered by hand or mailed, by registered or
certified mail, postage prepaid, to the Company at 00 Xxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000, Attn: Chief Financial Officer, or at such other address
as the Company shall have designated by written notice to such registered
owner as herein provided, Notice by mail shall be deemed given when
deposited in the United States mail as herein provided.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
on its behalf, in its corporate name, by its duly authorized officer, all
as of the day and year set forth below.
Dated: June 17, 2002
NCT GROUP, INC.
By:/s/ XX X. XXXXXXX
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Xx X. Xxxxxxx
Senior Vice President & Chief Financial Officer
WARRANT EXERCISE FORM
(to be executed by the Holder in order to exercise the Warrant)
TO: NCT Group, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx X. Xxxxxxx
Senior Vice President, Chief Financial Officer
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing ______________ shares of Common Stock of NCT Group,
Inc.
The undersigned hereby makes payment for the foregoing shares of Common
Stock at the rate of $.081 per share, or an aggregate of $-----------.
The undersigned represents, warrants and certifies that all offers and
sales of the Warrant Stock shall be made: (i) pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"1933 Act"), or pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the 1993 Act; and (ii) in
compliance with applicable state securities laws and those of any other
applicable jurisdiction.
Dated:
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Name of Warrant Holder
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Signature
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the registered Holder of the within Warrant)
Name: -----------------------------------------------------------
(Please type or print in block letters)
Address: -----------------------------------------------------------
Social Security or Taxpayer Identification Number: ------------------
