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EXHIBIT 4.5
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS WARRANT HAS BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND SAID STATE SECURITIES LAWS
OR AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND SAID STATE SECURITIES LAWS.
WANDERLUST INTERACTIVE, INC.
WARRANT TO PURCHASE COMMON STOCK
WANDERLUST INTERACTIVE, INC, a Delaware corporation ("Company"),
certifies that _______________________________________________________
("Holder"), is entitled to purchase from Company, at any time during the period
set forth in Section 2.1 hereof, up to a maximum of ______ fully paid and
nonassessable shares (the "Shares") of Company's common stock, $0.01 par value
per share (the "Common Stock"), for a price per share equal to the Purchase
Price (as hereafter defined).
This Warrant and the Common Stock issuable upon exercise hereof are
subject to the terms and conditions hereinafter set forth:
1. Definitions. As used in this Warrant, the following terms
shall mean:
1.1 "Issuance Date" - January 14, 1998, the effective
date of the original issuance of this Warrant.
1.2 "Purchase Price" - $1.25 per share of the Company's
Common Stock.
1.3 "Subscription Form" - The form attached to this
Warrant as Exhibit A.
1.4 "Warrant" - This Warrant or any warrant delivered in
substitution or exchange therefor as provided herein.
2. Exercise.
2.1 Time of Exercise. This Warrant may be exercised at
the office of Company in whole or part at any time commencing on the Issuance
Date and terminating on January 13, 2001.
2.2 Manner of Exercise. This Warrant is exercisable at
the Purchase Price per share of Common Stock issuable hereunder payable in cash
or by check, payable to the order of Company, or by cancellation of any then
existing indebtedness owed by Company to the Holder, or any combination
thereof. Upon surrender of this Warrant with the
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annexed Subscription Form duly executed, together with payment of the Purchase
Price for the Shares purchased at Company's principal executive offices in
California, the Holder shall be entitled to receive a certificate or
certificates for the Shares so purchased. The purchase rights represented by
this Warrant are exercisable at the option of the Holder hereof, in whole or
part, during any period in which this Warrant may be exercised as set forth
above.
2.3 Delivery of Stock Certificates. As soon as
practicable, but not exceeding 10 business days, after exercise of this
Warrant, Company, at its expense, shall cause to be issued in the name of the
Holder and deliver to the Holder a certificate for the number of fully paid and
nonassessable Shares so purchased.
2.4 Record Date of Transfer of Shares. Irrespective of
the date of issuance and delivery of certificates for any Shares of Common
Stock or other securities issuable upon the exercise of this Warrant, each
person in whose name any such certificate is to be issued shall for all
purposes be deemed to have become the holder of record of the Shares of Common
Stock or other securities represented thereby immediately prior to the close of
business on the date on which a duly executed Subscription Form containing
notice of exercise of this Warrant and payment for the number of Shares as to
which this Warrant shall have been exercised shall have been delivered to
Company.
3. Adjustments. In the event that the outstanding shares of
Common Stock of Company are at any time increased or decreased or changed into
or exchanged for a different number or kind of shares or other securities of
Company or of another corporation through reorganization, merger,
consolidation, liquidation, recapitalization, stock split, combination of
shares or stock dividends payable with respect to such shares of Common Stock,
appropriate adjustments in the number, kind and price of such securities then
subject to this Warrant shall be made effective as of the date of such
occurrence so that the position of the Holder upon exercise will be the same as
it would have been had the Holder owned immediately prior to the occurrence of
such event the number of shares of Common Stock subject to this Warrant. Such
adjustment shall be made successively whenever any event listed above shall
occur and Company will notify the Holder of each such adjustment. Any fraction
of a share resulting from any adjustment shall be eliminated and the price per
share of the remaining shares subject to this Warrant adjusted accordingly.
4. Transfer of Warrant and Shares.
4.1 Restrictions on Transfer. The Holder, by the
Holder's acceptance hereof, represents, warrants, covenants, and agrees that
(a) the Holder has knowledge of the business and affairs of Company, and (b)
this Warrant and the Shares issuable upon the exercise of this Warrant are
being acquired for investment and not with a view to the distribution hereof,
and that absent an effective registration statement under the Securities Act of
1933, as amended ("1933 Act"), covering the disposition of this Warrant or the
Shares issued or issuable upon exercise of this Warrant, they will not be sold,
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transferred, assigned, hypothecated or otherwise disposed of without first
providing Company with an opinion of counsel, reasonably satisfactory to
Company, to the effect that such sale, transfer, assignment, hypothecation or
other disposal will be exempt from the registration and prospectus delivery
requirements of the 1933 Act, and the Holder consents to Company making a
notation in its records or giving to any transfer agent of the Warrant or the
Shares an order to implement such restriction on transferability.
5. Payment of Taxes. All Shares issued upon the exercise of this
Warrant shall be validly issued, fully paid and nonassessable, and Company
shall pay all taxes and other governmental charges that may be imposed in
respect of the issue or delivery thereof. Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any Shares into any name other than that of the Holder
surrendered in connection with the purchase of such Shares, and in such case
Company shall not be required to issue or deliver any stock certificate until
such tax or other charge has been paid or it has been established to Company's
satisfaction that no tax or other charge is due.
6. Reservation of Common Stock. Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of issuance upon the exercise of this Warrant,
such number of shares of Common Stock as shall be issuable upon the exercise
hereof.
7. Piggyback Registration Rights. Company acknowledges and
agrees that the Holder will have the following "piggyback" registration rights
with respect to the Shares of Common Stock purchased by the Holder pursuant to
the Holder's exercise of this Warrant:
(a) If any time Company proposes to register any of its
shares of Common Stock under the 1933 Act (other than in connection with a
merger, acquisition or exchange offer or pursuant to Form S-8 or successor
form), Company will give written notice, by registered mail, at least 30 days
prior to the filing of such registration statement to the Holder of its
intention to do so. Upon written request of the Holder given within 15 days
after receipt of any such notice of the Holder's desire to include any of the
Shares purchasable by the Holder pursuant to this Warrant in such proposed
registration statement, Company shall afford the Holder the opportunity to have
such Shares registered under such registration (subject to the underwriter's
approval thereof). The "piggyback" registration rights described in this
Section 7(a) shall terminate as to any Shares elected to be purchased by Holder
on the date which is one year after issuance of such Shares. Any sales of such
Shares by the Holder pursuant to such registration statement shall be effected
through the underwriter of such registered offering, if any, and the Holder
shall compensate the underwriter in accordance with its customary compensation
practices.
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(b) Notwithstanding anything to the contrary contained in
the provisions of this Section 7, Company shall have the right at any time
after it shall have given written notice pursuant to this Section 7
(irrespective of whether a written request for inclusion of any such Shares
shall have been made by the Holder) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
(c) Company shall indemnify and hold harmless the Holder
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement of a material fact contained in any registration statement
filed by Company under the 1933 Act by reason of this Section 7, any
post-effective amendment to such registration statement, or any prospectus
included therein, or caused by any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission based upon information
furnished or required to be furnished in writing to the Company by the Holder
(or the authorized representatives or agents of the Holder) expressly for use
therein, which indemnification shall include each person, if any, who controls
the Holder within the meaning of the 1933 Act and each officer, director,
employee and agent of the Holder; provided, however, that the indemnification
in this Section 7(c) with respect to any prospectus shall not inure to the
benefit of the Holder (or to the benefit of any person controlling the Holder)
on account of any such loss, claim, damage or liability arising from the sale
of such Shares by the Holder, if a copy of a subsequent prospectus correcting
the untrue statement or omission in such earlier prospectus was provided to the
Holder of such Shares by Company prior to the subject sale and the subsequent
prospectus was not delivered or sent by the Holder to the purchaser of such
Shares prior to such sale; and provided further that Company shall not be
obligated to so indemnify the Holder of such Shares or any other person
referred to above unless the Holder or such other person, as the case may be,
shall at the same time indemnify Company, its directors, each officer signing
the registration statement and each person, if any, who controls Company within
the meaning of the 1933 Act, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement of a material fact
contained in any registration statement or any prospectus required to be filed
or furnished in connection with such public offering or caused by any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission based
upon information furnished in writing to Company by Holder of such Shares
expressly for use therein.
(d) If for any reason the indemnification provided for in
Section 7(c) above is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim, damage,
liability or expense referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by the
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indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party, but also the relative
fault of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations.
(e) All expenses, filing fees and other costs incurred by
Company in connection with any registration of securities pursuant to this
Section 7 (exclusive of underwriting discounts and selling commissions
applicable to any sale of registered securities) shall be borne by Company.
(f) In the case of any registration effected by Company
pursuant to the provisions of this Section 7, Company will: (i) furnish to the
Holder of such Shares such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the 1933 Act,
and such other documents as the Holder may reasonably request in order to
facilitate the disposition of such Shares owned by the Holder, and (ii) notify
the Holder of such Shares covered by such registration statement at any time
when a prospectus relating thereto is required to be delivered under the 1933
Act of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing.
(g) Notwithstanding anything to the contrary contained
herein, the Holder acknowledges and agrees that, with the exception of private
sales or transfers which are not effected through a broker-dealer, neither the
Holder nor any affiliate of the Holder or any transferees or assignees of the
Holder or any affiliate of the Holder will sell, pledge, assign or otherwise
transfer or hypothecate any Shares through any person or other entity other
than such entity which is or shall be the Company's underwriter in a public
offering, in which event such underwriter is to be compensated by the Holder of
such Shares, an affiliate of the Holder of such Shares or such transferee or
assignee of such Shares in accordance with the underwriter's customary
compensation practices.
8. Notices.
8.1 Notices to be Given. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof the right to
vote or to consent or to receive notice as a shareholder in respect of any
meetings of shareholders for the election of directors or any other matter or
as having any rights whatsoever as a shareholder of Company. If, however, at
any time prior to the expiration of the Warrant and prior to its exercise,
Company intends to issue a cash dividend, then Company shall give written
notice of such issuance of such cash dividend to the Holder at least 15 days
prior to the date fixed for issuance of such cash dividend.
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8.2 Addresses. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the following addresses:
(a) If to Holder:
_______________________
_______________________
_______________________
(b) If to Company:
Wanderlust Interactive, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxx, III, Chief
Executive Officer
9. Miscellaneous.
9.1 Replacement of Warrants. Upon receipt of evidence
reasonably satisfactory to Company of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement in an amount reasonably
satisfactory to Company, or (in the case of mutilation) upon surrender and
cancellation of the mutilated Warrant, Company will execute and deliver, in
lieu thereof, a new Warrant of like tenor.
9.2 Successors. All the covenants, agreements,
representations and warranties contained in this Warrant shall bind the parties
hereto and their respective heirs, executors, administrators, distributees,
successors and assigns, except Holder may not assign or transfer this Warrant.
9.3 Change; Waiver. Neither this Warrant nor any term
hereof may be changed, waived, discharged or terminated orally but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
9.4 Headings. The section headings in this Warrant are
inserted for purposes of convenience only and shall have no substantive effect.
IN WITNESS WHEREOF, Company has caused this Warrant to be signed by
its duly authorized officer, and this Warrant to be dated as of January 14,
1998.
WANDERLUST INTERACTIVE, INC.
By:________________________________________________
Xxx Xxxxx III, Chief Executive Officer
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EXHIBIT A
SUBSCRIPTION FORM
To: Wanderlust Interactive, Inc.
The undersigned, the holder of the attached Warrant, hereby
irrevocably elects to exercise the purchase right represented by that Warrant
for, and to purchase under that Warrant, ________ shares of Common Stock of
Wanderlust Interactive, Inc., a Delaware corporation, and herewith makes payment
of ____________________________________ ($) for those shares, and requests that
the certificates for those shares be issued in the name of
____________________________________ and delivered
to____________________________________________ whose address is _______
________________________________________.
Dated: _____________________
