Exhibit 10.6
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
REGULATION S OF THE SECURITIES ACT, AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER
THE PROVISIONS OF THE SECURITIES ACT.
STOCK PURCHASE WARRANT
To Purchase 33,500 Shares of Common Stock of
Atlantic Technology Ventures, Inc.
(Warrant No. __)
THIS CERTIFIES that, for value received, BH Capital Investments, L.P.
(the "Holder"), is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time on or after the date hereof (the "Initial
Exercise Date") and on or prior to the close of business on the date ending five
(5) years from the Initial Exercise Date (the "Termination Date"), but not
thereafter, to subscribe for and purchase from Atlantic Technology Ventures,
Inc., a corporation incorporated in Delaware (the "Company"), up to Thirty-Three
Thousand Five Hundred (33,500) shares (the "Warrant Shares") of Common Stock,
$.001 par value, of the Company (the "Common Stock"). The purchase price of one
share of Common Stock (the "Exercise Price") under this Warrant shall be the
lower of (x) $3.19 or (y) 110% of the Market Price of the Common Stock
immediately preceding the 180th day following the Initial Exercise Date.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth for such terms in the Preferred Stock and Warrants Purchase Agreement
as dated September 28, 2000, between the Company and the investors party thereto
(the "Purchase Agreement")). The Exercise Price and the number of shares for
which the Warrant is exercisable shall be subject to adjustment as provided
herein. In the event of any conflict between the terms of this Warrant and the
Purchase Agreement, the Purchase Agreement shall control.
1. Title to Warrant. Prior to the Termination Date and subject
to compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by the
Holder hereof in person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto properly endorsed.
2. Authorization of Shares. The Company covenants that all
shares of Common Stock which may be issued upon the exercise of rights
represented by this Warrant will, upon exercise of the rights represented by
this Warrant, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with
such issue).
3. Exercise of Warrant.
(a) Except as provided in Sections 3(b), 3(c) or 4 herein,
exercise of the purchase rights represented by this Warrant may be made at any
time or times on or after the Initial Exercise Date, and before the close of
business on the Termination Date by the surrender of this Warrant and the Notice
of Exercise Form annexed hereto duly executed, at the office of the Company (or
such other office or agency of the Company as it may designate by notice in
writing to the registered Holder hereof at the address of such Holder appearing
on the books of the Company) and upon payment of the Exercise Price of the
shares thereby purchased by wire transfer or cashier's check drawn on a United
States bank, the Holder of this Warrant shall be entitled to receive a
certificate for the number of shares of Common Stock so purchased. This Warrant
may also be exercised in whole or in part by means of a "cashless exercise" by
tendering this Warrant to the Company to receive a number of shares of Common
Stock equal in Market Value to the difference between the Market Value of the
shares of Common Stock issuable upon such exercise of this Warrant and the total
cash exercise price of that part of the Warrant being exercised. "Market Value"
for this purpose shall be the closing price of the Common Stock as reported by
Bloomberg L.P. on the date of such cashless exercise. Certificates for shares
purchased hereunder shall be delivered to the Holder hereof within three (3)
trading days after the date on which this Warrant shall have been exercised as
aforesaid. This Warrant shall be deemed to have been exercised and such
certificate or certificates shall be deemed to have been issued, and the Holder
or any other person so designated to be named therein shall be deemed to have
become the Holder of record of such shares for all purposes, as of the date the
Warrant has been exercised if the Holder has paid the Company the Exercise Price
and all taxes required to be paid by the Holder, if any, pursuant to Section 5
prior to the issuance of such shares. If this Warrant shall have been exercised
in part, the Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased shares of Common
Stock called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
(b) Anything in Section 3(a) to the contrary
notwithstanding, in no event shall the Holder be entitled to exercise this
Warrant if, upon giving effect to such exercise, the Holder and its "affiliates"
(as defined in Rule 405 under the Securities Act) would beneficially own an
aggregate number of shares of Common Stock that would exceed 9.9% of the
outstanding shares of the Common Stock following such exercise. For purposes of
this Section 3(b), the aggregate number of shares of Common Stock beneficially
owned by the Holder and its affiliates shall include the number of shares of
Common Stock issuable upon exercise of the Warrants with respect to which the
determination is being made, but shall exclude the number of shares of Common
Stock which would be issuable upon exercise or conversion of the unexercised or
unconverted portion of any other Securities (including, without limitation, any
Purchased Shares or other Warrants), subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially owned by the
Holder and its affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 3(b), beneficial ownership shall be calculated in
accordance with Section 13(d) of the Securities Act. For purposes of this
Section 3(b), in determining the number of outstanding shares of Common Stock
the Holder may rely on the number of outstanding shares of Common Stock as
reflected in (1) the Company's most recent quarterly or annual filing with the
SEC, as the case may be, (2) a more recent public announcement by the Company or
(3) any other notice by the Company or its transfer agent setting forth the
number of shares of Common Stock outstanding. For any reason at any time, upon
the written or oral request of the Holder, the Company shall immediately confirm
orally and in writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to conversion of the Purchased Shares and
exercises of Warrants by the Holder since the date as of which such number of
outstanding shares of Common Stock was reported. To
the extent that the limitation contained in this Section 3(b) applies, the
determination of whether this Warrant is exercisable (in relation to other
Securities owned by the Holder) shall be in the sole discretion of the Holder,
and the exercise of this Warrant shall be deemed to be the Holder's
determination of whether this Warrant is exercisable (in relation to other
Securities owned by the Holder), subject to such aggregate percentage
limitation, and the Company shall have no obligation or right to verify or
confirm the accuracy of such determination. Nothing contained herein shall be
deemed to restrict the right of the Holder to exercise this Warrant at such time
as such exercise will not violate the provisions of this Section. The Holder may
waive the provisions of this Section 3(b) as to itself (and solely as to itself)
upon not less than 75 days' prior notice to the Company, and the provisions of
this Section 3(b) shall continue to apply until such 75th day (or such later
date as may be specified in such notice of waiver). No exercise in violation of
this Section, but otherwise in accordance with this Warrant, shall affect the
status of the Common Stock issued upon such exercise as validly issued, fully
paid and nonassessable.
(c) Notwithstanding any other provision herein, the Company
shall not be obligated to issue any shares of Common Stock upon exercise of this
Warrant if the issuance of such shares of Common Stock would exceed any cap or
limitation on the number of shares (the "Exchange Cap") imposed by the rules or
regulations of the Principal Market, if and to the extent applicable, except
that such limitation shall not apply in the event that the Company (i) obtains
the approval of its stockholders as required by applicable rules and regulations
of the Principal Market for issuances of Common Stock in excess of the Exchange
Cap, or (ii) obtains a written opinion from outside counsel to the Company that
such approval is not required, which opinion shall be reasonably satisfactory to
the Investors. Until such approval or written opinion is obtained or such action
has been taken by the Investors, no Holder of this Warrant shall be issued, upon
exercise this Warrant, shares of Common Stock in an amount that, when added to
all Securities issued to such Holder, is greater than the product of (x) the
Exchange Cap amount multiplied by (y) a fraction, the numerator of which is the
number of Warrant Shares issuable upon exercise to such Holder pursuant to this
Warrant and the denominator of which is the aggregate amount of all the Warrant
Shares issuable upon exercise to the Holders of all Warrants issued under the
Purchase Agreement (the "Cap Allocation Amount"). In the event that the Holder
shall sell or otherwise transfer any portion of this Warrant, the transferee
shall be allocated a pro rata portion of the Holder's Cap Allocation Amount. In
the event that the Holder shall exercise all of this Warrant into a number of
shares of Common Stock that, in the aggregate, is less than the Holder's Cap
Allocation Amount, then the difference between the Holder's Cap Allocation
Amount and the number of shares of Common Stock actually issued to such Holder
shall be allocated to the respective Cap Allocation Amounts of the Investors on
a pro rata basis in proportion to the number of Warrant Shares issuable upon
exercise then held by the Investors.
4. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be
entitled to purchase upon such exercise, the Company shall issue one additional
share of Common Stock.
5. Charges, Taxes and Expenses. Issuance of certificates for
shares of Common Stock upon the exercise of this Warrant shall be made without
charge to the Holder hereof for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be issued in
the name of the Holder or in such name or names as may be directed by the
Holder; provided, however, that in the event certificates for shares of Common
Stock are to be issued in a name other than the name of the Holder, this Warrant
when surrendered for exercise shall be accompanied by the Assignment Form
attached hereto duly executed by the Holder; and the Company may require, as a
condition thereto, the payment of a sum sufficient to reimburse it for any
transfer tax incidental thereto.
6. Further Assurances. The Company will take all action that
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of stock, free from all taxes,
liens and charges with respect to the issue thereof, on the exercise of all or
any portion of this Warrant from time to time outstanding.
7. Transfer, Division and Combination. (a) Subject to
compliance with any applicable securities laws, transfer of this Warrant and all
rights hereunder, in whole or in part, shall be registered on the books of the
Company to be maintained for such purpose, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by the Holder or
its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such
payment, the Company shall execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A Warrant, if properly assigned, may be
exercised by a new Holder for the purchase of shares of Common Stock without
having a new Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by the Holder or its agent or attorney.
Subject to compliance with Section 7(a), as to any transfer which may be
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
Section 7.
(d) The Company agrees to maintain, at its aforesaid
office, books for the registration and the registration of transfer of the
Warrants.
8. No Rights as Shareholder until Exercise. This Warrant does
not entitle the Holder hereof to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon the surrender of
this Warrant and the payment of the aggregate Exercise Price, the Warrant Shares
so purchased shall be and be deemed to be issued to such Holder as the record
owner of such shares as of the close of business on the later of the date of
such surrender or payment.
9. Loss, Theft, Destruction or Mutilation of Warrant. The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which shall include the posting of a bond only if the Holder is not the
purchaser of this Warrant under the Purchase Agreement or an affiliate of such
purchaser), and upon surrender and cancellation of such Warrant or stock
certificate, if mutilated, the Company will make and deliver a new Warrant or
stock certificate of like tenor and dated as of such cancellation, in lieu of
such Warrant or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal holiday, then
such action may be taken or such right may be exercised on the next succeeding
day not a Saturday, Sunday or legal holiday.
11. Adjustments of Exercise Price and Number of Warrant
Shares.
(a) Stock Splits, etc. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time upon the happening of any of the
following. In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock to the Holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares of Common Stock, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares of Common Stock or (iv)
issue any shares of its capital stock in a reclassification of the Common Stock,
then the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which he would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such adjustment of the kind
and number of Warrant Shares or other securities of the Company which are
purchasable hereunder, the Holder shall thereafter be entitled to purchase the
number of Warrant Shares or other securities resulting from such adjustment at
an Exercise Price per Warrant Share or other security obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment by the number
of Warrant Shares purchasable pursuant hereto immediately prior to such
adjustment and dividing by the number of Warrant Shares or other securities of
the Company resulting from such adjustment. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective date of such
event retroactive to the record date, if any, for such event.
(b) Reorganization, Reclassification, Merger, Consolidation
or Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock), or sell,
transfer or otherwise dispose of all or substantially all its property, assets
or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock,
then the Holder shall have the right thereafter to receive, upon exercise of
this Warrant, the number of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and Other
Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of shares of
Common Stock for which this Warrant is exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 11.
For purposes of this Section 11, "common stock of the successor or acquiring
corporation" shall include stock of such corporation of any class which is not
preferred as to dividends or assets over any other class of stock of such
corporation and which is not subject to redemption and shall also include any
evidences of indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either immediately or upon
the arrival of a specified date or the happening of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 11 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
(c) Rights of Holders Upon Dilutive Issuances. Subject to
the exclusions contained in subsection 11(d) below, if during the period ending
twelve (12) months following each Closing Date (the "MFN Period"), the Company
sells any shares of its Common Stock in a capital raising transaction at a Per
Share Selling Price (as defined in the Company's Series B Certificate of
Designations) lower than the Exercise Price per share applicable to that
Closing, then the Exercise Price of the Warrants purchased at that Closing and
then unexercised shall be adjusted downward to equal such lower Per Share
Selling Price. The Company shall give to the Holders written notice of any such
sale within 24 hours of the closing of any such sale.
(d) Exclusions. Anything herein to the contrary
notwithstanding, the Company shall not be required to make any adjustment of the
Exercise Price in the case of (i) the issuance or sale of options, or the shares
of stock issuable upon exercise of such options, to purchase shares of Common
Stock to directors, officers, employees or consultants of the Company pursuant
to stock options or stock purchase plans or agreements in existence on the date
hereof, whether "qualified" for tax purposes or not, pursuant to plans or
arrangements approved by the Board of Directors and stockholders, (ii) the
issuance of Common Stock pursuant to warrants outstanding as of the date hereof
and (iii) the issuance of Common Stock upon conversion of the Series A Preferred
Stock or Series B Preferred Stock. The issuances or sales described in the
preceding clauses (i), (ii) and (iii) shall be ignored for purposes of
calculating any adjustment to the Exercise Price.
(e) Nominal Adjustment. The Company shall not be required
to make an adjustment in the Exercise Price under this Section 11 if such
adjustment is less that $0.01. However, the Company shall be required to carry
forward on its books all adjustments that would have been made but for this
Section 11(d) and shall take such adjustment into account when making subsequent
adjustments under this Section 11. All calculations under this Section 11 shall
be made to the nearest cent.
12. Voluntary Adjustment by the Company. The Company may at
any time during the term of this Warrant, reduce the then current Exercise Price
to any amount and for any period of time deemed appropriate by the Board of
Directors of the Company.
13. Notice of Adjustment. Whenever the number of Warrant
Shares or number or kind of securities or other property purchasable upon the
exercise of this Warrant or the Exercise Price is adjusted, as herein provided,
the Company shall promptly mail by registered or certified mail, return receipt
requested, to the Holder of this Warrant notice of such adjustment or
adjustments setting forth the number of Warrant Shares (and Other Property)
purchasable upon the exercise of this Warrant and the Exercise Price of such
Warrant Shares (and Other Property) 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. Such notice, in the absence of
manifest error, shall be conclusive evidence of the correctness of such
adjustment.
14. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of
Common Stock for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right; or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of
the Company with, or any sale, transfer or other disposition of all or
substantially all the property, assets or business of the Company to, another
corporation; or
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in any one or more of such
cases, the Company shall give to the Holder (i) at least 30 days' prior written
notice of the date on which a record date shall be selected for such dividend,
distribution or right or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 30 days' prior
written notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause also shall specify (i) the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, the date on which the holders of Common Stock shall be entitled to any
such dividend, distribution or right, and the amount and character thereof, and
(ii) the date on which any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up is to take place and the time, if any such time is to be fixed, as of which
the holders of Common Stock shall be entitled to exchange their shares of Common
Stock for securities or Other Property deliverable upon such disposition,
dissolution, liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to the Holder at the last address of the Holder
appearing on the books of the Company and delivered in accordance with Section
16(d).
15. Authorized Shares.
(a) The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Principal Market.
(b) The Company shall not by any action, including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (ii) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the exercise of this Warrant, and (iii) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant.
(c) Upon the request of the the Holder, the Company will at
any time during the period this Warrant is outstanding acknowledge in writing,
in form reasonably satisfactory to the Holder, the continuing validity of this
Warrant and the obligations of the Company hereunder.
(d) Before taking any action which would cause an
adjustment reducing the current Exercise Price below the then par value, if any,
of the Warrant Shares, the Company shall take any corporate action which may be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at such adjusted Exercise Price.
(e) Before taking any action which would result in an
adjustment in the number of Warrant Shares or in the Exercise Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto,
as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
16. Miscellaneous.
(a) Jurisdiction. This Warrant shall be binding upon any
successors or assigns of he Company. This Warrant shall constitute a contract
under the laws of Delaware without regard to its conflict of law principles or
rules, and be subject to arbitration pursuant to the terms set forth in the
Purchase Agreement.
(b) Restrictions. The Holder hereof acknowledges that the
Warrant Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any
delay or failure to exercise any right hereunder on the part of the Holder shall
operate as a waiver of such right or otherwise prejudice the Holder's rights,
powers or remedies, notwithstanding all rights hereunder terminate on the
Termination Date. If the Company fails to comply with any provision of this
Warrant, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable
attorneys' fees, including those of appellate proceedings, incurred by the
Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other document required
or permitted to be given or delivered to the Holder hereof by the Company shall
be delivered in accordance with the notice provisions of the Purchase Agreement.
(e) Limitation of Liability. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Common Stock,
and no enumeration herein of the rights or privileges of the Holder hereof,
shall give rise to any liability of the Holder for the purchase price of any
Common Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
(f) Remedies. The Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Warrant. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(g) Successors and Assigns. Subject to applicable
securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the Company
and the successors and permitted assigns of the Holder. The provisions of this
Warrant are intended to be for the benefit of all holders from time to time of
this Warrant and shall be enforceable by any such Holder or holder of Warrant
Shares.
(h) Indemnification. The Company agrees to indemnify and
hold harmless the Holder from and against any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, attorneys' fees,
expenses and disbursements of any kind which may be imposed upon, incurred by or
asserted against the Holder in any manner relating to or arising out of any
failure by the Company to perform or observe in any material respect any of its
covenants, agreements, undertakings or obligations set forth in this Warrant;
provided, however, that the Company will not be liable hereunder to the extent
that any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, attorneys' fees, expenses or disbursements are
found in a final non-appealable judgment by a court to have resulted from the
Holder's bad faith or willful misconduct in its capacity as a stockholder or
warrantholder of the Company.
(i) Amendment. This Warrant may be modified or amended or
the provisions hereof waived with the written consent of the Company and the
Holder.
(j) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
(k) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
[Signature page follows]
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer thereunto duly authorized.
Dated: September 28, 2000
ATLANTIC TECHNOLOGY VENTURES, INC.
By: /S/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: President
NOTICE OF EXERCISE
To: Atlantic Technology Ventures, Inc.
(1) The undersigned hereby elects to purchase ________ shares
of Common Stock (the "Common Stock"), of Atlantic Technology Ventures, Inc.,
pursuant to the terms of the attached Warrant, and [ ] tenders herewith payment
of the exercise price in full OR [ ] tenders the Warrant for cashless exercise,
together with all applicable transfer taxes, if any.
(2) Calculation of cashless exercise value, if applicable:
_________________
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(3) Please issue a certificate or certificates representing
said shares of Common Stock in the name of the undersigned or in such other name
as is specified below:
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(Name)
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(Address)
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Dated:
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Signature
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to exercise the Warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights
evidenced thereby are hereby assigned to____________________________ whose
address is
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Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _______________________________
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Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
