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EXHIBIT 4B
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF ANY STATE. THIS WARRANT AND ANY SUCH SHARES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF REGISTRATION UNDER SAID ACT AND ALL OTHER APPLICABLE SECURITIES LAWS,
OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
WARRANT
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF
XXXX SYSTEMS, INC.
DATE OF ISSUANCE: JANUARY 15, 1997
THIS CERTIFIES that, for value received, _________________ (the
"Holder") is entitled to purchase, subject to the provisions of this Warrant,
from Xxxx Systems, Inc., a Delaware Corporation, (the "Company") at the price
of $.25 per share, _________ shares, par value $.05 per share, of the Common
Stock of the Company for a period of four (4) years from the date of this
Agreement.
1. Exercise of Warrant.
This Warrant may be exercised in whole at any time or in part from
time to time on or after January 15, 1997 and before 3:30 p.m. New York time,
January 15, 2001 or if either such day is a day on which banking institutions
in the State of New York are authorized by law to close, then on the succeeding
day which shall not be such a day, by presentation and surrender hereof to the
Company at its principal office or at the office of its stock transfer agent,
if any with the purchase form annexed hereto duly executed and accompanied by
payment of the Exercise Price for the number of shares specified in such form.
Upon receipt by the Company or its stock transfer agent of this Warrant, 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.
2. Reservations of Shares.
The Company hereby agrees that at all times during the term of this
Warrant there shall be reserved for issuance and/or delivery upon exercise of
this Warrant such number of shares of Common Stock as shall be required for
issuance or delivery upon exercise of this Warrant.
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3) Loss of Warrant
Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and (in case of loss, theft
or destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Warrant, if mutilated, the Company will execute and
deliver a new Warrant of like tenor and date.
4) Rights of the Holder
The Holder shall not, by virtue hereof, be entitled to any rights of a
shareholder in the Company, either at law or equity, and the rights of the
Holder are limited to those expressed in the Warrant and are not enforceable
against the Company except to the extent set forth herein.
5) Adjustment of Exercise Price
a) If, at any time or from time to time while this Warrant remains in
full force and effect, the Company shall subdivide or combine its outstanding
shares of Common Stock by recapitalization, reclassification, split-up or
combination thereof, the Exercise Price in effect immediately prior thereto
shall be proportionally decreased, in the case of subdivision, or increased, in
the case of combination. Any such adjustment shall become effective at the
close of business on the date that such subdivision or combination shall become
effective.
b) If, at any time or from time to time while this Warrant remains in
full force and effect, the Company shall issue to holders of its shares of
Common Stock any shares of Common Stock as a stock dividend, then, and in such
case, the Exercise Price in effect immediately prior thereto shall be decreased
to a price determined by multiplying the Exercise Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issuance and the denominator of which shall be the
number of shares outstanding immediately after such issuance.
c) Upon any adjustment of the Exercise Price as provided in Sections
5(a) and (b), the number of Warrant Shares issuable upon exercise of this
Warrant shall be changed to the number of Warrant Shares determined by dividing
(i) an amount equal to the number of shares issuable pursuant to the exercise
of this Warrant immediately prior to the adjustment multiplied by the Exercise
Price in effect immediately prior to the adjustment, by (ii) the Exercise Price
in effect immediately after the adjustment.
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d) No fractional shares or script representing fractional shares
shall be issued upon the exercise of this Warrant. With respect to any fraction
of share called for upon exercise hereof, the Company shall pay the Holder of
this Certificate an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as follows: (i) If the
Common Stock is traded on a national securities exchange or admitted to unlisted
trading privileges on such exchange, the current market value shall be the last
reported sale price of the Common Stock on such exchange on the last business
day prior to the exercise or if no such sale is made on such day, the average
closing bid and asked prices for such day on such exchange; or (ii) If the
Common Stock is not listed on a national securities exchange or admitted to
unlisted trading privileges thereon, the current market value shall be the mean
last reported bid and asked prices reported by the National Quotation Bureau,
Inc. on the last business day prior to the date of exercise; or (iii) If (i) and
(ii) above are inapplicable, then the Board or Directors of the Company shall in
good faith determine such current market value.
e) If the Company shall reclassify or reorganize the shares of
Common Stock, or if the Company shall merge or consolidate with or into another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any recapitalization or
capital reorganization of the outstanding shares of Common Stock), or if the
Company shall sell or convey all or substantially all of its assets or business
to another corporation in connection with which the Company is dissolved, lawful
provision shall be made so that the Holder shall have the right thereafter
(until the expiration of the right of exercise of this Warrant) to receive upon
the exercise hereof, for the same aggregate Exercise Price payable hereunder
immediately prior to such event, the kind and amount of shares of Common Stock
or other securities or property (including cash) which he would have been
entitled to receive if, immediately prior to such reclassification,
reorganization, merger or consolidation, or upon dissolution following such sale
or other transfer, he held the number of shares of Common Stock which were then
issuable upon the exercise of the Warrants represented hereby.
f) If the Company takes any other action affecting the shares of
Common Stock, other than action described in this Section 5, which, in the
opinion of the Board of Directors of the Company, would materially affect the
rights of the Holder, the Exercise price and the number of Warrant Shares
issuable upon exercise of these Warrants shall be adjusted in such manner, if
any, and at such time, as the Board of Directors of the Company, in good faith,
may determine to be equitable under the circumstances.
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6) Prior Notice as to Certain Events
The Company shall mail to the Holder, at his last known address
appearing on the books of the Company, not less than ten days prior notice of
the date on which (i) a record will be taken for the purpose of determining the
holders of shares of Common Stock entitled to dividends (other than cash
dividends) or subscription rights or (b) a record will be taken (or in lieu
thereof the transfer books of the Company will be closed) for the purpose of
determining the holders of shares of Common Stock entitled to notice of and to
vote at a meeting of shareholders at which any consolidation, merger,
dissolution, liquidation, winding up or sale, transfer or other disposition of
the Company's assets, property, or business shall be considered or acted upon,
as the case may be.
7) Common Stock
a) For the purpose of this Warrant Certificate, the term "Common
Stock", as used herein, shall include (i) the class of stock designated as
Common Stock, par value $.05 per share, of the Company or (ii) any class of
stock resulting from successive changes or reclassifications of such Common
Stock consisting solely of changes in par value, or from par value to no par
value to par value.
b) The Company covenants and agrees that all shares of Common Stock
which may be issued upon the exercise of the rights represented by this Warrant
Certificate will, when issued, be duly authorized, validly issued, fully paid,
non-assessable and free from all taxes, liens and charges with respect to the
issuance thereof.
8) Securities Act of 1933
This Warrant and Common Stock to be issued hereunder have not been
registered under the Securities Act of 1933 ("the Act"), must be held by the
holder indefinitely, and may not be sold, transferred, pledged, hypothecated or
otherwise disposed of unless the Holder is advised by the Company that the
securities are effectively registered under the Act, and applicable state
securities laws or that in the opinion of counsel to the Company such
disposition may be effected pursuant to an exemption under the Act.
The Common Stock to be issued upon the exercise of this Warrant will
carry the following legend:
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The shares represented by this
certificate have not been regis-
tered under the Securities Act
of 1933. The shares have been
acquired for investment and may
not be sold, transferred or
assigned in the absence of an
effective registration statement
for these shares under the
Securities Act of 1933 or an
opinion of the Company's counsel
that registration is not required
under said Act.
9. Applicable Law.
The terms and provisions set forth on this Certificate shall be
governed by and construed in accordance with the laws of the State of New York.
10. Assignment.
If assigned in accordance with Section 8 hereof, all rights and
obligations created by this Certificate shall bind the Holder hereof, his
successors and assigns.
IN WITNESS WHEREOF, the Company has executed this Certificate as of
the 15th day of January, 1997, by its duly authorized officers.
XXXX SYSTEMS, INC.
BY:
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Attest:
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Secretary
