FORM OF WARRANT
FORM
OF WARRANT
THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD
OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT.
COMMON
STOCK PURCHASE WARRANT
January
__, 2008
This
certifies that, for good and valuable consideration, g8wave Holdings, Inc.,
a
Delaware corporation (the “Company”),
grants to _________ (the “Warrantholder”),
the
right to purchase from the Company ______ validly issued, fully paid and
nonassessable shares (the “Warrant
Shares”)
of the
Company’s Common Stock, $0.001 par value (the “Common
Stock”),
at
the purchase price per share of $0.05 (the “Exercise
Price”),
exercisable at any time and from time to time during the period (the
“Exercise
Period”)
commencing on the date hereof and ending at 5:00 P.M. Eastern Standard Time
on
the tenth (10th)
day
following the date hereof, all subject to the terms, conditions and adjustments
herein set forth.
| 1. |
DURATION
AND EXERCISE OF WARRANT; PAYMENT OF TAXES;
INFORMATION.
|
| 1.1 |
DURATION
AND EXERCISE OF WARRANT.
|
(a)
EXERCISE. This Warrant may be exercised in whole or in part by the Warrantholder
by (i) the surrender of this Warrant to the Company, with a duly executed
Exercise Form in the form attached hereto as Exhibit
A
specifying the number of Warrant Shares to be purchased, during normal business
hours on any Business Day during the Exercise Period and (ii) the delivery
of
payment to the Company, for the account of the Company, by wire transfer to
a
bank account specified by the Company of the Exercise Price for the number
of
Warrant Shares specified in the Exercise Form.
(b)
PROCEDURAL ISSUES. All Warrant Shares issued pursuant to this Section 1.1 shall
be deemed to be issued to the Warrantholder as the record holder of such Warrant
Shares as of the close of business on the Business Day on which this Warrant
shall have been surrendered and payment received for the Warrant Shares. A
stock
certificate or certificates for the Warrant Shares specified in the Exercise
Form shall be delivered to the Warrantholder as promptly as practicable, and
in
any event within ten Business Days, thereafter. If this Warrant shall have
been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the Warrantholder a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical to this Warrant. No adjustments
shall be made on Warrant Shares issuable on the exercise of this Warrant for
any
cash dividends paid or payable to holders of record of Common Stock prior to
the
date as of which the Warrantholder shall be deemed to be the record holder
of
such Warrant Shares.
1.2
PAYMENT OF TAXES. The issuance of certificates for Warrant Shares shall be
made
without charge to the Warrantholder for any stock transfer or other issuance
tax
in respect thereto; PROVIDED, HOWEVER, that the Warrantholder shall be required
to pay any and all taxes which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the then Warrantholder as reflected upon the books of the
Company.
2.
RESTRICTIONS ON TRANSFER; RESTRICTIVE LEGENDS.
2.1
RESTRICTIONS ON TRANSFER; COMPLIANCE WITH SECURITIES LAWS. This Warrant and
the
Warrant Shares issued upon the exercise of this Warrant may not be transferred
or assigned in whole or in part without compliance with all applicable federal
and state securities laws by the transferor and transferee (including the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company). The
Warrantholder, by acceptance hereof, acknowledges that this Warrant and the
Warrant Shares to be issued upon exercise hereof are being acquired solely
for
the Warrantholder’s own account and not as a nominee for any other party, and
for investment, and that the Warrantholder will not offer, sell or otherwise
dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof
except under circumstances that will not result in a violation of the Securities
Act or any state securities laws.
2.2
RESTRICTIVE LEGENDS. This Warrant shall (and each Warrant issued in substitution
for this Warrant issued pursuant to Section 4 shall) be stamped or otherwise
imprinted with a legend in substantially the following form:
“THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD
OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT.”
Except
as
otherwise permitted by this Section 2, each stock certificate for Warrant Shares
issued upon the exercise of any Warrant and each stock certificate issued upon
the direct or indirect transfer of any such Warrant Shares shall be stamped
or
otherwise imprinted with a legend in substantially the following
form:
“THE
SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT
OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT.”
Notwithstanding
the foregoing, the Warrantholder may require the Company to issue a stock
certificate for Warrant Shares without a legend if (i) such Warrant Shares
have
been registered for resale under the Securities Act or sold pursuant to Rule
144
under the Securities Act (or a successor rule thereto) or (ii) the Warrantholder
has provided an opinion of counsel addressed to the Company and reasonably
satisfactory to the Company that such registration is not required with respect
to such Warrant Shares.
3.
RESERVATION OF SHARES, ETC.
The
Company covenants and agrees that all Warrant Shares which are issued upon
the
exercise of this Warrant will, upon issuance, be validly issued, fully paid
and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof, other than taxes in
respect of any transfer occurring contemporaneously with such issue. The Company
further covenants and agrees that, during the Exercise Period, the Company
will
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide
for
the exercise of the rights represented by this Warrant.
4.
EXCHANGE, LOSS OR DESTRUCTION OF WARRANT.
Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant and, in the case of loss,
theft
or destruction, of such bond or indemnification as the Company reasonably may
require, and, in the case of such mutilation, upon surrender and cancellation
of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term “Warrant” as used in this agreement shall be deemed to include any
Warrants issued in substitution or exchange for this Warrant.
5.
OWNERSHIP OF WARRANT.
The
Company may deem and treat the person in whose name this Warrant is registered
as the holder and owner hereof (notwithstanding any notations of ownership
or
writing hereon made by anyone other than the Company) for all purposes and
shall
not be affected by any notice to the contrary.
6.
CERTAIN ADJUSTMENTS.
6.1
The
number of Warrant Shares purchasable upon the exercise of this Warrant and
the
Exercise Price shall be subject to adjustment as follows:
(a)
STOCK
DIVIDENDS. If at any time prior to the earlier of the exercise of this Warrant
in full and the expiration of the Exercise Period (i) the Company shall fix
a
record date for the issuance of any stock dividend payable in shares of Common
Stock or (ii) the number of shares of Common Stock shall have been increased
by
a subdivision or split-up of shares of Common Stock, then, on the record date
fixed for the determination of holders of Common Stock entitled to receive
such
dividend or immediately after the effective date of subdivision or split-up,
as
the case may be, the number of shares of Common Stock to be delivered upon
exercise of this Warrant will be increased so that the Warrantholder will be
entitled to receive the number of shares of Common Stock that such Warrantholder
would have owned immediately following such action had this Warrant been
exercised immediately prior thereto, and the Exercise Price will be adjusted
as
provided below in paragraph (e).
(b)
COMBINATION OF STOCK. If at any time prior to the earlier of the exercise of
this Warrant in full and the expiration of the Exercise Period the number of
shares of Common Stock outstanding shall have been decreased by a combination
of
the outstanding shares of Common Stock, then, immediately after the effective
date of such combination, the number of shares of Common Stock to be delivered
upon exercise of this Warrant will be decreased so that the Warrantholder
thereafter will be entitled to receive the number of shares of Common Stock
that
such Warrantholder would have owned immediately following such action had this
Warrant been exercised immediately prior thereto, and the Exercise Price will
be
adjusted as provided below in paragraph (e).
(c)
REORGANIZATION, ETC. If at any time prior to the earlier of the exercise of
this
Warrant in full and the expiration of the Exercise Period, any reclassification
of the Common Stock shall be effected in such a way that the holders of Common
Stock shall be entitled to receive stock or other securities (the “Other
Securities”)
with
respect to or in exchange for Common Stock, then, this Warrant shall be deemed
to be exercisable for such Other Securities.
(d)
FRACTIONAL SHARES. No fractional shares of Common Stock or scrip shall be issued
to any Warrantholder in connection with the exercise of this Warrant. Instead
of
any fractional shares of Common Stock that would otherwise be issuable to such
Warrantholder, the Company will pay to such Warrantholder a cash adjustment
in
respect of such fractional interest in an amount equal to that fractional
interest of the closing price per share of Common Stock as listed on the OTC
Bulletin Board as of the date on which the Warrant was exercised.
(e)
EXERCISE PRICE ADJUSTMENT. Whenever the number of Warrant Shares purchasable
upon the exercise of the Warrant is adjusted, as herein provided, the Exercise
Price payable upon the exercise of this Warrant shall be adjusted by multiplying
such Exercise Price immediately prior to such adjustment by a fraction, the
numerator of which shall be the number of Warrant Shares purchasable upon the
exercise of the Warrant immediately prior to such adjustment, and the
denominator of which shall be the number of Warrant Shares purchasable
immediately thereafter.
(f)
NO
DUPLICATE ADJUSTMENTS. Notwithstanding anything else to the contrary contained
herein, in no event will an adjustment be made under the provisions of this
Section 6 to the number of Warrant Shares issuable upon exercise of this Warrant
or the Exercise Price for any event if an adjustment having substantially the
same effect to the Warrantholder as any adjustment that otherwise would be
made
under the provisions of this Section 6 is made by the Company for any such
event
to the number of shares of Common Stock (or other securities) issuable upon
exercise of this Warrant or the Exercise Price.
6.2
NO
ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 6.1, no adjustment
in
respect of any dividends shall be made during the term of the Warrant or upon
the exercise of this Warrant.
6.3
NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the Exercise
Price of such Warrant Shares is adjusted, as herein provided, the Company shall
promptly mail by first class, postage prepaid, to the Warrantholder, notice
of
such adjustment or adjustments and a certificate of the chief financial officer
of the Company setting forth the number of Warrant Shares and the Exercise
Price
of such Warrant Shares after such adjustment, setting forth a brief statement
of
the facts requiring such adjustment and setting forth the computation by which
such adjustment was made.
7.
DEFINITIONS.
As
used
herein, unless the context otherwise requires, the following terms have the
following respective meanings:
BUSINESS
DAY: any day other than a Saturday, Sunday or a day on which national banks
are
authorized by law to close in the City of New York, State of New
York.
EXERCISE
FORM: an Exercise Form in the form annexed hereto as Exhibit
A.
EXERCISE
PRICE: the meaning specified on the cover of this Warrant, as such price may
be
adjusted pursuant to Section 6 hereof.
SECURITIES
ACT: the Securities Act of 1933, as amended, or any successor federal statute,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time. Reference to a particular section of the
Securities Act of 1933, as amended, shall include a reference to the comparable
section, if any, of any successor federal statute.
8.
MISCELLANEOUS.
8.1
ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between the
Company and the Warrantholder with respect to this Warrant, and supersedes
all
prior agreements and understandings, both written and oral, with regard to
the
subject matter hereof.
8.2
BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of and shall
be binding upon the Company and the Warrantholder and their respective
successors and permitted assigns. Nothing in this Warrant, expressed or implied,
is intended to or shall confer on any person other than the Company and the
Warrantholder, or their respective successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this
Warrant.
8.3
AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended except
by an
instrument or instruments in writing signed by the Company and the
Warrantholder. Either the Company or the Warrantholder may, by an instrument
in
writing, waive compliance by the other party with any term or provision of
this
Warrant on the part of such other party hereto to be performed or complied
with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent
breach.
8.4
SECTION AND OTHER HEADINGS. The section and other headings contained in this
Warrant are for reference purposes only and shall not be deemed to be a part
of
this Warrant or to affect the meaning or interpretation of this
Warrant.
8.5
FURTHER ASSURANCES. Each of the Company and the Warrantholder shall do and
perform all such further acts and things and execute and deliver all such other
certificates, instruments and documents as the Company or the Warrantholder
may,
at any time and from time to time, reasonably request in connection with the
performance of any of the provisions of this Warrant.
8.6
NOTICES. All notices and other communications required or permitted to be given
under this Warrant shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by United States mail, postage prepaid,
to
the parties hereto at the following addresses or to such other address as any
party hereto shall hereafter specify by notice to the other party
hereto:
(a)
if to
the Company, addressed to:
000
Xxxxxxxxx Xxx. Suite 201
Boston,
MA 02215
Attention:
Chief Financial Officer
(b)
if to
the Warrantholder, addressed to the Warrantholder’s address in the Company’s
records.
Except
as
otherwise provided herein, all such notices and communications shall be deemed
to have been received on the date of delivery thereof, if delivered personally,
or on the third Business Day after the mailing thereof.
8.7
SEVERABILITY. Any term or provision of this Warrant which is invalid or
unenforceable in a jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the terms and provisions of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant
in
any other jurisdiction.
8.8
GOVERNING LAW. This Warrant shall be governed by and interpreted in accordance
with the laws of the State of Delaware, except as they may be preempted by
federal law. In any action brought or arising out of this Warrant, the
Warrantholder and the Company hereby consent to the jurisdiction of any federal
or state court having proper venue within the State of Delaware and also consent
to the service of process by any means authorized by Delaware or federal
law.
8.9
TERMINATION. This Warrant shall expire at 5:00 P.M. Eastern Standard Time,
on
the tenth (10th)
day
following the date hereof.
8.10
NO
RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this Warrant shall
be
determined as conferring upon the Warrantholder any rights as a stockholder
of
the Company until the Warrantholder exercises this Warrant in whole or in part,
or as imposing any liabilities on the Warrantholder to purchase any securities
whether such liabilities are asserted by the Company or by creditors or
stockholders of the Company or otherwise.
[Signature
page follows]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer.
By: _________________________________
Name:
Title:
EXHIBIT
A
EXERCISE
FORM
(To
be
executed upon exercise of this Warrant)
The
undersigned hereby irrevocably elects to exercise the right, represented by
this
Warrant, to purchase Warrant Shares and herewith tenders payment for _______
of
the Warrant Shares to the order of g8wave Holdings, Inc. in the amount of
$_________ in accordance with the terms of this Warrant.
The
undersigned requests that a certificate (or certificates) for such Warrant
Shares be registered in the name of the undersigned and that such certificate
(or certificates) be delivered to the undersigned's address below.
In
exercising this Warrant, the undersigned hereby confirms and acknowledges that
the Warrant Shares are being acquired for investment solely for the account
of
the undersigned and not as a nominee for any other party, and that the
undersigned will not offer, sell or otherwise dispose of any such Warrant Shares
except under circumstances that will not result in a violation of the Securities
Act of 1933, as amended, or any state securities laws.
Dated:
________________________
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Signature
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(Print
Name)
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(Street
Address)
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(City)
(State)
(Zip Code)
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If
said
number of shares shall not be all the shares purchasable under the within
Warrant, a new Warrant is to be issued in the name of said undersigned for
the
balance remaining of the shares purchasable thereunder.
