FORM OF COMMON STOCK PURCHASE WARRANT
Exhibit
4.3
FORM
OF COMMON STOCK PURCHASE WARRANT
THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT
AND
THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO ACCELERIZE NEW MEDIA, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
|
Right
to Purchase ________ shares of Common Stock of Accelerize New Media,
Inc.
(subject to adjustment as provided
herein)
|
FORM
OF COMMON STOCK PURCHASE WARRANT
| No. _____ |
Issue
Date: ___________, 2006
|
ACCELERIZE
NEW MEDIA, INC., a corporation organized under the laws of the State of Delaware
(the “Company”), hereby certifies that, for value received, __________
or
its
assigns (the “Holder”) is entitled, subject to the terms set forth below, to
purchase from the Company at any time after the issue date (the “Issue Date”)
until 5:00 p.m., E.S.T on the seventh (7th) anniversary of the Issue Date (the
“Expiration Date”), ________ fully paid and nonassessable shares of Common Stock
at a per share purchase price of $0.15. The aforedescribed purchase price per
share, as adjusted from time to time as herein provided, is referred to herein
as the “Purchase Price.” The number and character of such shares of Common Stock
and the Purchase Price are subject to adjustment as provided herein. The Company
may reduce the Purchase Price without the consent of the Holder. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth
in
that certain Subscription Agreement (the “Subscription Agreement”) entered into
by the Company and Holder of the Warrant.
As
used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term
“Company” shall include Accelerize New Media, Inc. and any corporation which
shall succeed or assume the obligations of Accelerize New Media, Inc. hereunder.
(b) The
term
“Common Stock” includes (a) the Company’s Common Stock, $0.001 par value per
share, as authorized on the date of the Subscription Agreement, and (b) any
other securities into which or for which any of the securities described in
(a)
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
1
(c) The
term
“Other Securities” refers to any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which
the
holder of the Warrant at any time shall be entitled to receive, or shall have
received, on the exercise of the Warrant, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant
to
Section 4 herein or otherwise.
(d) The
term
“Warrant Shares” shall mean the Common Stock issuable upon exercise of this
Warrant.
1. Exercise
of Warrant.
1.1. Number
of Shares Issuable upon Exercise.
From
and after the Issue Date through and including the Expiration Date, the Holder
hereof shall be entitled to receive, upon exercise of this Warrant in whole
in
accordance with the terms of subsection 1.2 or upon exercise of this Warrant
in
part in accordance with subsection 1.3, shares of Common Stock of the Company,
subject to adjustment pursuant to Section 4.
1.2. Full
Exercise.
This
Warrant may be exercised in full by the Holder hereof by delivery of an original
or facsimile copy of the form of subscription attached as Exhibit A hereto
(the
“Subscription Form”) duly executed by such Xxxxxx and surrender of the original
Warrant within four (4) days of exercise, to the Company at its principal office
or at the office of its Warrant Agent (as provided hereinafter), accompanied
by
payment, in cash, wire transfer or by certified or official bank check payable
to the order of the Company, in the amount obtained by multiplying the number
of
shares of Common Stock for which this Warrant is then exercisable by the
Purchase Price then in effect.
1.3. Partial
Exercise.
This
Warrant may be exercised in part (but not for a fractional share) by surrender
of this Warrant in the manner and at the place provided in subsection 1.2 except
that the amount payable by the Holder on such partial exercise shall be the
amount obtained by multiplying (a) the number of whole shares of Common Stock
designated by the Holder in the Subscription Form by (b) the Purchase Price
then
in effect. On any such partial exercise, the Company, at its expense, will
forthwith issue and deliver to or upon the order of the Holder hereof a new
Warrant of like tenor, in the name of the Holder hereof or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may request, the whole
number of shares of Common Stock for which such Warrant may still be
exercised.
1.4. Fair
Market Value.
Fair
Market Value of a share of Common Stock as of a particular date (the
“Determination Date”) shall mean:
(a) If
the
Company’s Common Stock is traded on an exchange or is quoted on The Nasdaq Stock
Market, Inc., then the last sale price reported for the last business day
immediately preceding the Determination Date;
(b) If
the
Company’s Common Stock is not traded on an exchange or quoted on The Nasdaq
Stock Market, Inc. but is traded in the over-the-counter market, then the
average of the closing bid and ask prices reported for the last business day
immediately preceding the Determination Date;
2
(c) Except
as
provided in clause (d) below, if the Company’s Common Stock is not publicly
traded, then as the Holder and the Company agree, or in the absence of such
an
agreement, by arbitration in accordance with the rules then standing of the
American Arbitration Association, before a single arbitrator to be chosen from
a
panel of persons qualified by education and training to pass on the matter
to be
decided; or
(d) If
the
Determination Date is the date of a liquidation, dissolution or winding up,
or
any event deemed to be a liquidation, dissolution or winding up pursuant to
the
Company’s charter, then all amounts to be payable per share to holders of the
Common Stock pursuant to the charter in the event of such liquidation,
dissolution or winding up, plus all other amounts to be payable per share in
respect of the Common Stock in liquidation under the charter, assuming for
the
purposes of this clause (d) that all of the shares of Common Stock then issuable
upon exercise of all of the Warrants are outstanding at the Determination
Date.
1.5. Company
Acknowledgment.
The
Company will, at the time of the exercise of the Warrant, upon the request
of
the Holder hereof acknowledge in writing its continuing obligation to afford
to
such Holder any rights to which such Holder shall continue to be entitled after
such exercise in accordance with the provisions of this Warrant. If the Holder
shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such Holder any such
rights.
1.6. Delivery
of Stock Certificates, etc. on Exercise.
The
Company agrees that the shares of Common Stock purchased upon exercise of this
Warrant shall be deemed to be issued to the Holder hereof as the record owner
of
such shares as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for such shares as aforesaid. As soon
as
practicable after the exercise of this Warrant in full or in part, and in any
event within three (3) business days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the Holder hereof, or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may direct in
compliance with applicable securities laws, a certificate or certificates for
the number of duly and validly issued, fully paid and nonassessable shares
of
Common Stock (or Other Securities) to which such Holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such Holder would
otherwise be entitled, cash equal to such fraction multiplied by the then Fair
Market Value of one full share of Common Stock, together with any other stock
or
other securities and property (including cash, where applicable) to which such
Holder is entitled upon such exercise pursuant to Section 1 or otherwise.
1.7 Cashless
Exercise.
(a) Except
as
described below, if a Registration Statement (as herein after defined) is
effective and the Holder may sell its shares of Warrant Shares upon exercise
hereof pursuant to the Registration Statement, this Warrant may be exercisable
in whole or in part for cash only as set forth in this Section 1. If no such
Registration Statement is available during the time that such Registration
Statement is required to be effective pursuant to the terms of Section 8
hereof,, then payment upon exercise may be made at the option of the Holder
either in (i) cash, wire transfer or by certified or official bank check payable
to the order of the Company equal to the applicable aggregate Purchase Price,
(ii) by cashless exercise in accordance with Section (b) below or (iii) by
a
combination of any of the foregoing methods, for the number of Warrant Shares
specified in such form (as such exercise number shall be adjusted to reflect
any
adjustment in the total number of shares of Common Stock issuable to the holder
per the terms of this Warrant) and the holder shall thereupon be entitled to
receive the number of duly authorized, validly issued, fully-paid and
non-assessable shares of Common Stock (or Other Securities) determined as
provided herein.
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(b) If
the
Fair Market Value of one share of Common Stock is greater than the Purchase
Price (at the date of calculation as set forth below), in lieu of exercising
this Warrant for cash, the holder may elect to receive shares equal to the
value
(as determined below) of this Warrant (or the portion thereof being cancelled)
by surrender of this Warrant at the principal office of the Company together
with the properly endorsed Subscription Form in which event the Company shall
issue to the holder a number of shares of Common Stock computed using the
following formula:
X=Y
(A-B)
A
| Where | X= | the number of shares of Common Stock to be issued to the holder |
|
Y=
|
the
number of shares of Common Stock purchasable under the Warrant or,
if only
a portion of the Warrant is being exercised, the portion of the Warrant
being exercised (at the date of such
calculation)
|
|
A=
|
the
Fair Market Value of one share of the Company’s Common Stock (at the date
of such calculation)
|
|
B=
|
Purchase
Price (as adjusted to the date of such
calculation)
|
a. For
purposes of Rule 144 promulgated under the Securities Act of 1933 ("Securities
Act"), it is intended, understood and acknowledged that the Warrant Shares
issued in a cashless exercise transaction shall be deemed to have been acquired
by the Holder, and the holding period for the Warrant Shares shall be deemed
to
have commenced, on the date this Warrant was originally issued pursuant to
the
Subscription Agreement.
2. Adjustments.
2.1. Reorganization,
Consolidation, Merger, etc.
In case
at any time or from time to time, the Company shall (a) effect a reorganization,
(b) consolidate with or merge into any other person or (c) transfer all or
substantially all of its properties or assets to any other person under any
plan
or arrangement contemplating the dissolution of the Company, then, in each
such
case, as a condition to the consummation of such a transaction, proper and
adequate provision shall be made by the Company whereby the Holder of this
Warrant, on the exercise hereof as provided in Section 1, at any time after
the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution, as the case may be, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior to such
consummation or such effective date, the stock and other securities and property
(including cash) to which such Holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if
such
Holder had so exercised this Warrant, immediately prior thereto, all subject
to
further adjustment thereafter as provided in Section 3.
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2.2. Dissolution.
In the
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock
and
other securities and property (including cash, where applicable) receivable
in
accordance with Section 2.1 by the Holder of the Warrants upon their exercise
after the effective date of such dissolution pursuant to this Section 2.
2.3 Adjustment
of Warrant Exercise Price and Number of Shares upon Issuance of Common Stock
or
Common Stock Derivatives.
So long
as this Warrant is outstanding, if Company (a) issues or sells, or is deemed
to
have issued or sold, any shares of Common Stock (including the issuance or
sale
of shares of Common Stock owned or held by or for the account of the Company);
or (b) issues or sells or reprices any options or convertible securities (but
excluding shares of Common Stock, options or convertible securities issued
or
deemed to have been issued by the Company in connection with an Approved Stock
Plan) for a consideration per share less than a price (the “Applicable Price”)
equal to the Purchase Price in effect immediately prior to such issuance or
sale
or repricing, then immediately after such issue or sale the Purchase Price
shall
be reduced to the Applicable Price. “Approved Stock Plan” means any employee
benefit plan which has been approved by the Board of Directors of the Company,
pursuant to which the Company’s securities may be issued to any employee,
officer or director for services provided to the Company in that
capacity.
2.4. Continuation
of Terms.
Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any transfer) referred to in this Section 2, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable
to
the Other Securities and property receivable on the exercise of this Warrant
after the consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case may
be,
and shall be binding upon the issuer of any Other Securities, including, in
the
case of any such transfer, the person acquiring all or substantially all of
the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 3. In the
event this Warrant does not continue in full force and effect after the
consummation of the transaction described in this Section 2, then only in such
event will the Company’s securities and property (including cash, where
applicable) receivable by the Holder of the Warrants be delivered to the Trustee
as contemplated by Section 2.2.
3. Extraordinary
Events Regarding Common Stock.
In the
event that the Company shall (a) issue additional shares of the Common Stock
as
a dividend or other distribution on outstanding Common Stock, (b) subdivide
its
outstanding shares of Common Stock, or (c) combine its outstanding shares of
the
Common Stock into a smaller number of shares of the Common Stock, then, in
each
such event, the Purchase Price shall, simultaneously with the happening of
such
event, be adjusted by multiplying the then Purchase Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Purchase Price then in effect.
The
Purchase Price, as so adjusted, shall be readjusted in the same manner upon
the
happening of any successive event or events described herein in this Section
3.
The number of shares of Common Stock that the Holder of this Warrant shall
thereafter, on the exercise hereof as provided in Section 1, be entitled to
receive shall be adjusted to a number determined by multiplying the number
of
shares of Common Stock that would otherwise (but for the provisions of this
Section 3) be issuable on such exercise by a fraction of which (a) the numerator
is the Purchase Price that would otherwise (but for the provisions of this
Section 3) be in effect, and (b) the denominator is the Purchase Price in effect
on the date of such exercise.
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4. Certificate
as to Adjustments.
In each
case of any adjustment or readjustment in the shares of Common Stock (or Other
Securities) issuable on the exercise of the Warrants, the Company at its expense
will promptly cause its Chief Financial Officer or other appropriate designee
to
compute such adjustment or readjustment in accordance with the terms of the
Warrant and prepare a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment
is
based, including a statement of (a) the consideration received or receivable
by
the Company for any additional shares of Common Stock (or Other Securities)
issued or sold or deemed to have been issued or sold, (b) the number of shares
of Common Stock (or Other Securities) outstanding or deemed to be outstanding,
and (c) the Purchase Price and the number of shares of Common Stock to be
received upon exercise of this Warrant, in effect immediately prior to such
adjustment or readjustment and as adjusted or readjusted as provided in this
Warrant. The Company will forthwith mail a copy of each such certificate to
the
Holder of the Warrant and any Warrant Agent of the Company (appointed pursuant
to Section 11 hereof).
5. Reservation
of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements.
The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of the Warrant. This
Warrant entitles the Holder hereof to receive copies of all financial and other
information distributed or required to be distributed to the holders of the
Company’s Common Stock.
6. Assignment;
Exchange of Warrant.
Subject
to compliance with applicable securities laws, this Warrant, and the rights
evidenced hereby, may be transferred by any registered holder hereof (a
“Transferor”). On the surrender for exchange of this Warrant, with the
Transferor’s endorsement in the form of Exhibit B attached hereto (the
“Transferor Endorsement Form”) and together with an opinion of counsel
reasonably satisfactory to the Company that the transfer of this Warrant will
be
in compliance with applicable securities laws, the Company at its expense,
twice, only, but with payment by the Transferor of any applicable transfer
taxes, will issue and deliver to or on the order of the Transferor thereof
a new
Warrant or Warrants of like tenor, in the name of the Transferor and/or the
transferee(s) specified in such Transferor Endorsement Form (each a
“Transferee”), calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock called for on the face or faces of the Warrant
so surrendered by the Transferor. No such transfers shall result in a public
distribution of the Warrant.
7. Replacement
of Warrant.
On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction of this Warrant, on delivery of an indemnity agreement
or
security reasonably satisfactory in form and amount to the Company or, in the
case of any such mutilation, on surrender and cancellation of this Warrant,
the
Company at its expense, twice only, will execute and deliver, in lieu thereof,
a
new Warrant of like tenor.
6
8. Registration
Rights.
If
at any time, or from time to time, during the five year period following the
issuance of the Warrant the Company shall determine to prepare and file with
the
Securities and Exchange Commission (“SEC”), a registration statement relating to
an offering for its own account or the account of others under the Act of any
of
its equity securities or debt or their then equivalents (the “Registration
Statement”), then the Company shall send to the Holder a written notice of such
determination and, if within ten (10) days after receipt by the Holder, the
Company shall receive a request in writing from the Holder, the Company shall
include in such Registration Statement all or any part of such Warrant Shares
such Holder requests to be registered, provided however, that (a) if, at any
time after giving written notice of its intention to register any securities
and
prior to the effective date of the Registration Statement filed in connection
with such registration, the Company determines for any reason not to proceed
with such registration, the Company shall be relived of its obligation to
register any Warrant Shares in connection with such registration, and (B) in
case of a determination by the Company to delay registration of its securities,
the Company will be permitted to delay the registration of the Warrant Shares
for the same period as the delay in registering such other securities, in any
such case without any obligation or liability to the Holder.
9. Warrant
Agent.
The
Company may, by written notice to the Holder of the Warrant, appoint an agent
(a
“Warrant Agent”) for the purpose of issuing Common Stock (or Other Securities)
on the exercise of this Warrant pursuant to Section 1, exchanging this Warrant
pursuant to Section 6, and replacing this Warrant pursuant to Section 7, or
any
of the foregoing, and thereafter any such issuance, exchange or replacement,
as
the case may be, shall be made at such office by such Warrant Agent.
10. Transfer
on the Company’s Books.
Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
11. Notices.
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur or
(c)
three business days after deposited in the mail if delivered pursuant to
subsection (ii) above.
The
addresses for such communications shall be: (i) if to the Company to: 0000
Xxxxxxx 00 Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, telecopier: (000) 000-0000,
and (ii) if to the Holder, to the addresses and telecopier number set forth
in
the first paragraph of this Warrant. The Company may change its address for
notices but only to an address and fax number located in the United
States.
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12. Miscellaneous.
This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. This Warrant shall
be construed and enforced in accordance with and governed by the laws of New
Jersey. Any dispute relating to this Warrant shall be adjudicated in Monmouth
County in the State of New Jersey. The headings in this Warrant are for purposes
of reference only, and shall not limit or otherwise affect any of the terms
hereof. The invalidity or unenforceability of any provision hereof shall in
no
way affect the validity or enforceability of any other provision.
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
ACCELERIZE
NEW MEDIA, INC.
By:
_______________________________
Name:
_____________________________
Title:
______________________________
Witness:
_____________________________
8
Exhibit
A
FORM
OF
SUBSCRIPTION
(to
be
signed only on exercise of Warrant)
TO: ACCELERIZE
NEW MEDIA, INC.
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
| ___ |
________
shares of the Common Stock covered by such Warrant;
or
|
|
___
|
the
maximum number of shares of Common Stock covered by such Warrant
pursuant
to the cashless exercise procedure set forth in Section
1.
|
The
undersigned herewith makes payment of the full purchase price for such shares
at
the price per share provided for in such Warrant, which is $___________. Such
payment takes the form of (check applicable box or boxes):
| ___ |
$__________
in lawful money of the United States;
and/or
|
|
___
|
the
cancellation of the Warrant to the extent necessary, in accordance
with
the formula set forth in Section 1, to exercise this Warrant with
respect
to the maximum number of shares of Common Stock purchasable pursuant
to
the cashless exercise procedure set forth in Section
1.
|
The
undersigned requests that the certificates for such shares be issued in the
name
of, and delivered to _____________________________________________________
whose
address
is__________________________________________________________________________
The
undersigned represents and warrants that the representations and warranties
in
Section 4 of the Subscription Agreement (as defined in this Warrant) are true
and accurate with respect to the undersigned on the date hereof.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act, or
pursuant to an exemption from registration under the Securities
Act.
Dated:
_______________________________
__________________________________________
(Signature
must conform to name of holder as
specified
on the fact of the Warrant.)
_________________________________________________
_________________________________________________
(Address)
9
Exhibit
B
FORM
OF
TRANSFEROR ENDORSEMENT
(To
be
signed only on transfer of Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferees” the right represented by
the within Warrant to purchase the percentage and number of shares of Common
Stock of ACCELERIZE NEW MEDIA, INC. to which the within Warrant relates
specified under the headings “Percentage Transferred” and “Number Transferred,”
respectively, opposite the name(s) of such person(s) and appoints each such
person Attorney to transfer its respective right on the books of ACCELERIZE
NEW
MEDIA, INC. with full power of substitution in the premises.
|
Transferees
|
Percentage
Transferred
|
Number
Transferred
|
|
Dated:
______________, ___________
Signed
in the presence of:
_____________________________________
(Name)
ACCEPTED
AND AGREED:
[TRANSFEREE]
________________________________
(Name)
|
____________________________________________
(Signature
must conform to name of holder as specified
on
the face of the warrant)
____________________________________________
____________________________________________
(address)
____________________________________________
____________________________________________
(address)
|
10
