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EXHIBIT 4.6
WARRANT AGREEMENT
Agreement made as of ______________, 1997, between DIDAX INC., a
Delaware corporation, with offices at 0000 Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000 (the "Company"), and American Stock Transfer & Trust Company, a
New York corporation, with offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(herein called, the"Warrant Agent").
WHEREAS, the Company has determined to issue and deliver up to
2,300,000 Redeemable Common Stock Purchase Warrants ( the "Warrants")
evidencing the right of the holders thereof to purchase an aggregate of
2,300,000 shares of common stock, $.01 par value per share, of the Company
("Common Stock"), which Warrants are to be issued and delivered in connection
with the Company's initial public offering ("IPO") of Common Stock and
Redeemable Common Stock Purchase Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company for the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in
accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1. Form of Warrant. Each Warrant shall be issued in registered form
only, shall be in substantially the form of Exhibit "A" hereto, the provisions
of which are incorporated herein and shall be signed by, or bear the facsimile
signature of, the Chairman or President and Secretary or Assistant
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Secretary of the Company and shall bear a facsimile of the Company's seal. In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to be Chairman or President and Secretary or Assistant
Secretary of the Company before such Warrant is issued, it may be issued with
the same effect as if he had not ceased to be such at the date of issuance. No
Warrant may be exercised until it has been countersigned by the Warrant Agent
as provided in Section 2.3 hereof.
2.2. Effect of Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no
effect.
2.3. Events for Countersignature. The Warrant Agent shall countersign
a Warrant only upon the occurrence of either of the following events:
(i) if the Warrant is to be issued in exchange or substitution for one
or more previously countersigned Warrants, as hereinafter provided, or
(ii) if the Company instructs the Warrant Agent to do so.
2.4. Registration.
2.4.1. Warrant Register. The Warrant Agent shall maintain books
("Warrant Register"), for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.4.2. Registered Holder. Prior to due presentment for registration
of transfer of any Warrant, the Company and the Warrant Agent may deem and
treat the person in whose name such Warrant shall be registered upon the
Warrant Register ("Registered Holder"), as the absolute owner of such Warrant
and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the Warrant Certificate made by anyone other than
the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
2.5. Detachabilitv of Warrants. The Warrant Agent understands that the
Warrants may be traded separately.
3. Terms and Exercise of Warrants.
3.1. Warrant Price. Each Warrant shall, when countersigned by the
Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Warrant and of this Warrant Agreement, to purchase from the Company one
share of Common Stock for $5.75 per whole share, subject to the adjustments
provided in Section 4 hereof. The term "Warrant Price" as used in this
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Warrant Agreement refers to the price per share at which Common Stock may be
purchased at the time a Warrant is exercised.
3.2. Duration of Warrants. A Warrant may be exercised only during the
period ("Exercise Period") commencing on ___________, 1997 and terminating at
4:00 p.m., New York, New York time, on ____________, 2002; provided, however,
that the Exercise Period of the Warrants shall terminate earlier on the date
fixed for redemption of such Warrants as provided in Section 6 of this
Agreement ("Expiration Date"). Each Warrant not exercised on or before the
Expiration Date shall become void, and all rights thereunder and all rights in
respect thereof under this Agreement shall cease at the close of business on
the Expiration Date. The Company has the right, in its sole discretion, to
extend the expiration date of the Warrants on five business days' prior written
notice to the holders of the Warrants.
3.3. Exercise of Warrants.
3.3.1. Payment. A Warrant, when countersigned by the Warrant Agent,
may be exercised by the registered holder thereof by surrendering it, at the
office of the Warrant Agent, or at the office of its successor as Warrant
Agent, in the Borough of Manhattan, City and State of New York, with the
purchase form, as set forth in the Warrant and in substantially the form of
Exhibit "A" hereto, duly executed, and by paying in full, in lawful money of
the United States, the Warrant Price for each full share of Common Stock as to
which the Warrant is exercised and any and all applicable taxes due in
connection with the exercise of the Warrant, the exchange of the Warrant for
the Common Stock, and the issuance of the Common Stock. Upon exercise of any
Warrant, the Warrant Agent shall promptly remit the payment received for the
Warrant to the Company or its agent, as the Company may direct in writing.
3.3.2. Issuance of Certificates. As soon as practicable after the
exercise of any Warrant, the Company shall issue to the registered holder of
such Warrant a certificate or certificates for the number of full shares of
Common Stock to which he is entitled, registered in such name or names as may
be directed by him, and if such Warrant shall not have been exercised in full,
a new countersigned Warrant for the number of shares as to which such Warrant
shall not have been exercised. Notwithstanding the foregoing, the Company shall
not be obligated to deliver any securities pursuant to the exercise of a
Warrant unless a registration statement under the Securities Act of 1933 with
respect to the securities is effective. Warrants may not be exercised by, or
securities issued to, any registered holder in any state in which such exercise
would be unlawful.
3.3.3. Valid Issuance. All shares of Common Stock issued upon the
proper exercise of a Warrant in conformity with this Agreement shall be validly
issued.
3.3.4. Date of Issuance. Each person in whose name any such
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the registered holder of record of such shares on the
date on which the Warrant was surrendered, and payment of the Warrant
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Price was made, irrespective of the date of delivery of such certificate,
except that, if the date of such surrender and payment is a date when the stock
transfer books of the Company are closed, such person shall be deemed to have
become the holder of such shares at the close of business on the next
succeeding date on which the stock transfer books are open.
4. Adjustments.
4.1. Stock Dividends - Split-Ups. If after the date hereof, and
subject to the provisions of Section 4.5 below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in shares of
Common Stock or by a split-up of shares of Common Stock or other similar event,
then, on the effective date of such stock dividend or split-up, the number of
shares issuable on exercise of each Warrant shall be increased in proportion to
such increase in outstanding shares and the then applicable Warrant Price shall
be correspondingly decreased.
4.2. Aggregation of Shares. If after the date hereof, and subject to
the provisions of Section 4.5, the number of outstanding shares of Common Stock
is decreased by a consolidation, combination or reclassification of shares of
Common Stock or other similar event, then, upon the effective date of such
consolidation, combination or reclassification, the number of shares issuable
on exercise of each Warrant shall be decreased in proportion to such decrease
in outstanding shares and the then applicable Warrant Price shall be
correspondingly increased.
4.3. Reorganization, etc. If after the date hereof any capital
reorganization or reclassification of the Common Stock of the Company, or
consolidation or merger of the Company with another corporation, or the sale of
all or substantially all of its assets to another corporation or other similar
event shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger, or sale, lawful and fair provision
shall be made whereby the Warrant holders shall thereafter have the right to
purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented thereby, such shares of stock, securities, or assets as
may be issued or payable with respect to or in exchange for the number of
outstanding shares of such Common Stock equal to the number of shares of such
stock immediately theretofore purchasable and receivable upon the exercise of
the rights represented by the Warrants, had such reorganization,
reclassification, consolidation, merger, or sale not taken place and in such
event appropriate provision shall be made with respect to the rights and
interests of the Warrant holders to the end that the provisions hereof
(including, without limitation, provisions for adjustment of the Warrant Price
and of the number of shares purchasable upon the exercise of the Warrants)
shall thereafter be applicable, as nearly as may be in relation to any share of
stock, securities, or assets thereafter deliverable upon the exercise hereof.
The Company shall not effect any such consolidation, merger, or sale
unless prior to the consummation thereof the successor corporation (if other
than the Company) resulting from such consolidation or merger, or the
corporation purchasing such assets, shall assume by written instrument executed
and delivered to the Warrant Agent the obligation to deliver to the Warrant
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holders such shares of stock, securities, or assets as, in accordance with the
foregoing provisions, such holders may be entitled to purchase.
4.4. Notices of Changes in Warrant. Upon every adjustment of the
Warrant Price or the number of shares issuable on exercise of a Warrant, the
Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting from such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon the
occurrence of any event specified in Sections 4.1., 4.2., or 4.3., then, in any
such event, the Company shall give written notice in the manner set forth above
on the record date for such event, or the effective date of such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding up or issuance of shares. Such notice shall also specify
the date as of which the holders of Common Stock of record shall participate in
such dividend, distribution, or subscription rights, or shall be entitled to
exchange their Common Stock for stock, securities, or other assets deliverable
upon such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, winding up or issuance. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
event.
4.5. No Fractional Shares. Notwithstanding any provision contained in
this Warrant Agreement to the contrary, the Company shall not issue fractional
shares upon exercise of Warrants. If, by reason of any adjustment made pursuant
to this Section 4, the holder of any Warrant would be entitled, upon the
exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, purchase such fractional interest,
determined as follows:
(i) If the Common Stock is listed on a National Securities Exchange or
admitted to unlisted trading privileges on such exchange or listed for trading
on the Nasdaq National Market or Nasdaq SmallCap Market, the current value
shall be the last reported sale price of the Common Stock on such exchange on
the last business day prior to the date of exercise of the Warrant or if no
such sale is made on such day, the average of the closing bid and asked prices
for such day on such exchange; or
(ii) If the Common Stock is not listed or admitted to unlisted trading
privileges, the current value shall be the mean of the last reported bid and
asked prices reported by the National Quotation Bureau, Inc. on the last
business day prior to the date of the exercise of the Warrant; or;
(iii) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the current
value shall be an amount determined in such reasonable manner as may be
prescribed by the Board of Directors of the Company.
4.6. Form of Warrant. The form of Warrant need not be changed because
of any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this Agreement. However,
the Company may at any time in its sole discretion make any change in the
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form of Warrant that the Company may deem appropriate and that does not affect
the substance thereof, and any Warrant hereafter issued or countersigned,
whether in exchange or substitution for an outstanding Warrant or otherwise,
may be in the form as so changed.
5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal
aggregate number of Warrants shall be issued and the old Warrant shall be
cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by
the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrants may be surrendered
to the Warrant Agent, together with a written request for exchange or transfer,
and thereupon the Warrant Agent shall issue in exchange therefor one or more
new Warrants as requested by the registered holder of the Warrants so
surrendered, representing an equal aggregate number of Warrants; provided,
however, that in the event that a Warrant surrendered for transfer bears a
restrictive legend, the Warrant Agent shall not cancel such Warrant and issue
new Warrants in exchange therefor until the Warrant Agent has received an
opinion of counsel for the Company stating that such transfer may be made and
indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to
effect any registration of transfer or exchange which will result in the
issuance of a Warrant for a fraction of a Warrant.
5.4. Service Charges. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with the terms
of this Agreement, the Warrants required to be issued pursuant to the
provisions of this Section 5, and the Company, whenever required by the Warrant
Agent, will supply the Warrant Agent with Warrants duly executed on behalf of
the Company for such purpose.
6. Redemption.
6.1. Redemption. The Warrants may be redeemed, at the option of the
Company, as a whole at any time or in part from time to time, after _______,
1997, and prior to their expiration, in any proportion as the Company in its
sole discretion may determine, at the office of the Warrant Agent, upon the
notice referred to in Section 6.2., at the price of $.25 per Warrant
("Redemption Price"), provided that the closing bid price of the Common Stock
as reported on Nasdaq, or the closing sale price, as reported on a national or
regional securities exchange, as applicable, of the shares of the
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Common Stock for 30 consecutive trading days ending within 10 days of the
notice of redemption of the Warrants averages in excess of $10.00 per share,
subject to adjustment, and further provided that the Company shall give written
notice of the Company's intent to redeem the Warrants at least five business
days prior to the date of the notice of redemption. Prior to the ________,
1998, the Warrants will not be redeemable by the Company without the written
consent of Xxxxxx Xxxxx Securities, Inc.("Xxxxxx"). The provisions of this
Section 6.1 shall not be modified, amended or deleted without the prior written
consent of Xxxxxx.
6.2. Date Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all or any part of the Warrants, the Company
shall fix a date for the redemption. Notice of redemption shall be mailed by
first class mail, postage prepaid, by the Company or the Company's agent at its
direction not less than 30 days from the date fixed for redemption to the
registered holders of the Warrants to be redeemed at their last addresses as
they shall appear on the registration books. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the registered holder received such notice.
6.3. Exercise After Notice of Redemption. The Warrants may be
exercised in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2. hereof and prior to the date fixed for redemption. On and after the
redemption date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the redemption price.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1. No Rights as Stockholder. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to receive dividends, or other
distributions, exercise any preemptive rights or rights to vote or to consent
or to receive notice as stockholders in respect of the meetings of stockholders
or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant
is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may
on such terms as to indemnity or otherwise as they may in their discretion
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof, issue a new Warrant of like denomination, tenor, and date as the
Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time enforceable by anyone.
7.3. Reservation of Common Stock. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
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7.4. Registration Statement. The Company has filed with the
Securities and Exchange Commission a Registration Statement No. 333-25937
("Registration Statement") on Form SB-2 for the registration, under the
Securities Act of 1933, of, among others, the Warrants and the Common Stock
issuable upon exercise of the Warrants.
7.5. Registration of Common Stock. The Company will use its best
efforts to cause the Registration Statement to become effective and to maintain
the effectiveness of such Registration Statement or another registration
statement with respect to such Common Stock underlying the Warrants until the
expiration or redemption of the Warrants in accordance with the provisions of
this Agreement.
8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. The Company will from time to time promptly pay
all taxes and charges that may be imposed upon the Company or the Warrant Agent
in respect of the issuance or delivery of shares of Common Stock upon the
exercise of Warrants, but the Company shall not be obligated to pay any
transfer taxes in respect of the Warrants or such shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant Agent, or
any successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities (other than those incurred
prior to such resignation or discharge) hereunder after giving sixty (60) days'
notice in writing to the Company and may be removed by the Company upon sixty
(60) days' notice. If the office of the Warrant Agent becomes vacant by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If the Company
shall fail to make such appointment within a period of 30 days after it has
been notified in writing of such resignation or incapacity by the Warrant
Agent, then the holder of any Warrant may apply to the Supreme Court of the
State of New York for the County of New York for the appointment of a successor
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation in good standing and having its principal
office in the Borough of Manhattan, City and State of New York, and authorized
under such laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. After appointment, any successor
Warrant Agent shall be vested with all the authority, powers, rights,
immunities, duties, and obligations of its predecessor Warrant Agent with like
effect as if originally named as Warrant Agent hereunder, without any further
act or deed; but if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent all the
authority, powers, and rights of such predecessor Warrant Agent hereunder; and
upon request of any successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and obligations.
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8.2.2. Notice of Successor Warrant Agent. In the event a successor
Warrant Agent shall be appointed, the Company shall give notice thereof to the
predecessor Warrant Agent and the transfer agent for the Common Stock not later
than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any corporation into
which the Warrant Agent may be merged or with which it may be consolidated or
any corporation resulting from any merger or consolidation to which the Warrant
Agent shall be a party shall be the successor Warrant Agent under this
Agreement without any further act.
8.2.4. Records. The Warrant Agent shall, upon request by the Company,
deliver to the Company a copy of the transfer records relating to the Warrants
subject to the payment of any amounts required to be paid pursuant to Section
8.3.1.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant Agent the
aggregate sum of $500 per month for (i) its services as Warrant Agent hereunder
and (ii) its services as transfer agent to the Company, and to reimburse the
Warrant Agent, upon demand and presentation of appropriate vouchers or
receipts, for the reasonable costs incurred by the Warrant Agent in connection
with its services as Warrant Agent hereunder.
8.3.2. Further Assurances. The Company and the Warrant Agent agree
to perform, execute, acknowledge, and deliver or cause to be performed,
executed, acknowledged, and delivered all such further and other acts,
instruments, and assurances as may reasonably be required by the Warrant Agent
or the Company for the carrying out or performing of the provisions of this
Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. Whenever in the performance of
its duties under this Warrant Agreement, the Warrant Agent shall deem it
necessary or desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a statement signed
by the Chairman or President of the Company and delivered to the Warrant Agent.
The Warrant Agent may rely upon such statement for any action taken or suffered
in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder only
for its own negligence or willful misconduct or any actions taken in bad faith.
The Company agrees to indemnify the Warrant Agent and save it harmless against
any and all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent in the execution of
this Agreement except as a result of the Warrant Agent's negligence, willful
misconduct, or bad faith.
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8.4.3. Exclusions. The Warrant Agent shall have no responsibility
with respect to the validity or execution of any Warrant (except its
countersignature thereof; nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under the
provisions of Section 4. hereof or responsible for the manner, method, or
amount of any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment; nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued pursuant to this
Agreement or any Warrant or as to whether any shares of Common Stock will when
issued be valid and fully paid and nonassessable.
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise
of Warrants.
8.6. Right to Consult Counsel. The Warrant Agent may at any time
consult with legal counsel of its selection satisfactory to it (who may be
legal counsel for the Company), and the Warrant Agent shall incur no liability
or responsibility to the Company or to any registered holder for any action
taken, suffered or omitted by it in good faith in accordance with the opinion
or advice of such counsel.
9. Miscellaneous Provisions.
9.1. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this
Warrant Agreement to be given or made by the Warrant Agent or by the holder of
any Warrant to or on the Company shall be sufficiently given or made if sent by
certified mail, or private courier service, postage prepaid, addressed to the
address as set forth above (until another address is filed in writing by the
Company with the Warrant Agent). Any notice, statement or demand authorized by
this Agreement to be given or made by the holder of any Warrant or by the
Company to or on the Warrant Agent shall be sufficiently given or made if sent
by certified mail or private courier service, postage prepaid, addressed to the
address as set forth above (until another address is filed in writing by the
Warrant Agent with the Company).
9.3. Applicable Law. The validity, interpretation, and performance of
this Agreement and of the Warrants shall be governed in all respects by the
laws of the State of New York.
9.4. Persons Having Rights under this Agreement. Nothing in this
Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to
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confer upon, or give to, any person or corporation other than the parties
hereto and the registered holders of the Warrants and, for the purposes of
Sections 6 hereof, Xxxxxx. Xxxxxx shall be deemed to be a third party
beneficiary of this Agreement with respect to Sections 6.1 hereof. All
covenants, conditions, stipulations, promises, and agreements contained in this
Warrant Agreement shall be for the sole and exclusive benefit of the parties
hereto (and Xxxxxx to the extent set forth above) and their successors and
assigns and of the registered holders of the Warrants.
9.5. Examination of the Warrant Agreement. A copy of this Agreement
shall be available at all reasonable times at the offices of the Warrant Agent
in the Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his or her Warrant for inspection by it.
9.6. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
9.7. Effect of Headings. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not
affect the interpretation thereof.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto under their respective corporate seals as of the day and year
first above written.
DIDAX INC.
By:
---------------------------
Authorized Representative
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
---------------------------
Authorized Representative
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EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
No. W______ ______Warrants
Cusip No. 253624 11 8
VOID AFTER _______, 2002
REDEEMABLE COMMON STOCK PURCHASE WARRANT CERTIFICATE TO
PURCHASE COMMON STOCK OF
DIDAX INC.
This Warrant Certificate certifies that ____________________________
or registered assigns thereof, is the registered holder of Warrants (the
"Warrants") to purchase shares of common stock, $.001 par value per share (the
"Shares") of DIDAX INC., a Delaware corporation (the"Company"). Each Warrant
evidenced hereby entities the holder to purchase from the Company on or before
4:00 p.m., Eastern Time, on ___________, 2002 (the "Expiration Date") one fully
paid and nonassesable Share at the initial exercise price, subject to
adjustment in certain events (the "Exercise Price"), of $5.75 per share upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
office or agency of the Warrant Agent in New York, New York, but only subject
to the conditions set forth herein and in the Warrant Agreement, dates as of
the Effective Date (the "Warrant Agreement") between the Company and American
Stock Transfer & Trust Company, as Warrant Agent (the"Warrant Agent"). All
capitalized terms used but not defined herein have the meanings set forth in
the Warrant Agreement. Payment of the Exercise Price may be made in cash or by
certified or official bank check payable to the order of the Company. Reference
is hereby made to the further provisions of this Warrant Certificate,
including, without limitation, those set forth on the reverse hereof, and such
further provisions are incorporated herein by reference and will for all
purposes have the same effect as though fully set forth herein. This Warrant
Certificate shall not be valid unless countersigned by the Warrant Agent. This
Warrant Certificate is negotiable. The Warrants may be redeemed as provided in
the Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
DIDAX INC.
Dated: By:
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Dated: By:
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[seal]
[Continued on next page]
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Countersigned:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent
By:
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Authorized Officer
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[FORM OF REVERSE OF REDEEMABLE COMMON STOCK PURCHASE WARRANTS]
ELECTION TO PURCHASE
(To Be Executed Upon Exercise of the Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase Shares and herewith
tenders in payment for such Shares cash or a certified or official bank check
payable to the order of the Company in the amount of $___________ all in
accordance with the terms hereof. The undersigned requests that a certificate
for such Shares be registered in the name of ___________ whose address is
___________ and that such certificate be delivered to whose address is
____________. If said number of Shares is less than all the Shares purchasable
hereunder, the undersigned requests that a new Warrant Certificate representing
Warrants to purchase the remaining balance of the Shares be registered in the
name of whose address is and that such certificate be delivered to ____________
whose address is ___________.
The undersigned represents that the exercise of the within Warrant was
solicited by a member of the National Association of Securities Dealers, Inc.
If not solicited by an NASD member, please write "unsolicited" in the space
below. Unless otherwise indicated by listing the name of an NASD member firm,
it will be assumed that the exercise was "unsolicited."
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Dated: X
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Signature
X
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Address
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Taxpayer Identification Number(s)
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Signature(s) Guaranteed
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ASSIGNMENT
To Be Executed by the Registered Holder
If Such Holder desires to transfer the Warrant Certificate
FOR VALUE RECEIVED, ____________hereby sells, assigns and transfers unto
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[please print or type name and address]
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[please insert social security or other identifying number]
(all)_________ of the Warrants evidenced by this Warrant Certificate, together
with all right, title and interest therein, and does hereby irrevocably
constitute and appoint _____________________________________________Attorney,
to transfer this Warrant Certificate on the books of the Company, with full
power of substitution.
Dated: X
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X
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Signature(s) Guaranteed
X
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