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EXHIBIT 4.6
NEITHER THESE SECURITIES NOR THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN EXEMPTION THEREFROM. ANY
SUCH TRANSFER MAY ALSO BE SUBJECT TO APPLICABLE STATE SECURITIES LAWS.
CROSS MEDIA MARKETING CORPORATION
Warrant for the Purchase of Shares of
Common Stock
No. TW-_____ [________] Shares
FOR VALUE RECEIVED, CROSS MEDIA MARKETING CORPORATION, a Delaware
corporation (f/k/a Symposium Corporation, the "COMPANY"), hereby certifies that
[_______________], or registered assigns, (the "HOLDER") is entitled to purchase
from the Company, subject to the provisions of this Warrant (the "WARRANT"), at
any time on or after [_________________] (the "INITIAL EXERCISE DATE"), and
prior to 5:00 P.M., New York City time, on the third anniversary of the Initial
Exercise Date (the "TERMINATION DATE"), [_______________] ([____________]) fully
paid and non-assessable shares of the Common Stock, $.001 par value, of the
Company ("COMMON STOCK"), at an initial exercise price of $[_______] per share
of Common Stock (the "INITIAL PER SHARE EXERCISE PRICE"), but subject to the
provisions regarding vesting set forth in Section 1(a) below. The number of
shares of Common Stock to be received upon exercise of this Warrant and the
price to be paid for each share of Common Stock are subject to possible
adjustment from time to time as hereinafter set forth. The shares of Common
Stock or other securities or property deliverable upon such exercise as adjusted
from time to time are hereinafter sometimes referred to as the "WARRANT SHARES."
The exercise price of a share of Common Stock in effect at any time and as
adjusted from time to time is hereinafter sometimes referred to as the "PER
SHARE EXERCISE PRICE." The Per Share Exercise Price is subject to adjustment as
hereinafter provided.
1. EXERCISE OF WARRANT.
(a) This Warrant may be exercised in whole or in part, at any time by
its Holder commencing on the Initial Exercise Date and prior to the Termination
Date by presentation and surrender of this Warrant, together with the duly
executed subscription form
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and representations and warranties attached at the end hereof, at the address
set forth in Subsection 8(a) hereof, together with payment, by certified or
official bank check or wire transfer payable to the order of the Company, of the
product of (x) the Per Share Exercise Price multiplied by (y) the number of
Warrant Shares subject to (1) this Warrant or (2) the proportionate part thereof
if exercised in part (such product, the "AGGREGATE EXERCISE PRICE"); provided,
however, that the maximum number of Warrant Shares that the Holder may purchase
upon any exercise hereof shall be the amount by which (x) the total number of
vested Warrant Shares as of the date of such exercise, (which number shall
include Warrant Shares, if any, purchased upon any previous partial exercise of
this Warrant (the "PREVIOUSLY PURCHASED WARRANT SHARES")) exceeds (y) the total
number of Previously Purchased Warrant Shares. The [______________] Warrant
Shares shall vest on the first anniversary of the Initial Exercise Date but such
vesting shall occur only if the Holder (i) continues to be an "active Dealer"
(as defined in the Dealer Agreement between the Company's subsidiary, Media
Outsourcing, Inc., successor to Direct Sales International LP, and the Holder)
as of such anniversary date and (ii) has not breached any of the terms of such
Dealer Agreement. Once vested, Warrant Shares may be purchased upon exercise of
this Warrant at any time, or from time to time, prior to the Termination Date.
All numbers of shares contained in this Section shall be subject to adjustment
as set forth below.
(b) If this Warrant is exercised in part only, the Company shall, upon
presentation of this Warrant upon such exercise, execute and deliver (along with
the certificate for the Warrant Shares purchased) a new Warrant evidencing the
rights of the Holder hereof to purchase the balance of the Warrant Shares
purchasable hereunder upon the same terms and conditions as herein set forth.
Upon proper exercise of this Warrant, the Company promptly shall deliver
certificates for the Warrant Shares to the Holder duly legended as authorized by
the subscription form. No fractional shares or scrip representing fractional
shares shall be issued upon exercise of this Warrant; provided that the Company
shall pay to the holder of the Warrant cash in lieu of such fractional shares.
(c) In lieu of exercising this Warrant by paying the Aggregate Exercise
Price in cash pursuant to Section 1(a) above, the Holder may, from time to time,
convert this Warrant, in whole or in part (but subject to the vesting provisions
set forth in Section 1(a)), into a number of shares of Common Stock equal to the
quotient obtained by dividing (i) the amount by which (A) the aggregate Current
Market Price (as defined in Section 1(d) below) of the number of Warrant Shares
being converted determined as of the date of conversion exceeds (B) the
Aggregate Exercise Price of the number of Warrant Shares being converted by (ii)
the Current Market Price of one Warrant Share as of such date. Notwithstanding
the foregoing, the Holder may not convert this Warrant if any Action (as
hereinafter defined) resulting in an adjustment (whether given effect or carried
over pursuant to Section 3(d)) of the Per Share Exercise Price pursuant to
Section 3 hereof has occurred during the Determination Period (as hereinafter
defined) immediately preceding the date of such proposed conversion.
(d) "Current Market Price" as of any date means the average of the
daily market prices of the Common Stock for the twenty (20) consecutive trading
days immediately preceding the day on which "Current Market Price" is being
determined (such period, the "DETERMINATION PERIOD"). The market price for each
such trading day shall be: (i) if the Common Stock is listed or admitted to
trading on any securities exchange, the closing price,
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regular way, on such day, or if no sale takes place on such day, the average of
the closing bid and asked price on such day; (ii) if the Common Stock is not
then listed or admitted to trading on any securities exchange but is listed on
The NASDAQ Stock Market, the last reported sale price on such day on The NASDAQ
Stock Market, or if no sale takes place on such day, the average of the last
reported bid and asked prices on such day, as reported by The NASDAQ Stock
Market; or (iii) if the Common Stock is not then listed or admitted to trading
on any securities exchange or on The NASDAQ Stock Market, the average of the
reported high bid and low asked prices on such day, as reported by a the OTC
Bulletin Board, (the "OTCBB") if the Common Stock is quoted on the OTCBB, or a
reputable quotation service, or a newspaper of general circulation service in
the Borough of Manhattan, City and State of New York, customarily published on
each business day, designated by the Company, or if there shall be no bid and
asked prices on such day, the average of the high bid and low asked prices, as
so reported, on the most recent day (not more than ten (10) days prior to the
date in question) for which prices have been so reported.
2. RESERVATION OF WARRANT SHARES; FULLY PAID SHARES; TAXES. The Company
hereby represents that it has, and until expiration of this Warrant agrees that
it shall, reserve for issuance or delivery upon exercise of this Warrant, such
number of shares of the Common Stock as shall be required for issuance and/or
delivery upon exercise of this Warrant in full, and agrees that all Warrant
Shares so issued and/or delivered will be validly issued, fully paid and
non-assessable, and further agrees to pay all taxes and charges (other than
income taxes) that may be imposed upon such issuance and/or delivery. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of Common Stock (or
other securities or assets) in a name other than that in which this Warrant is
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of such tax or
has established, to the satisfaction of the Company, that such tax has been paid
or need not be paid.
3. PROTECTION AGAINST DILUTION.
(a) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its Common Stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares or (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
(each of (i) through (iii) an "ACTION"), then the Per Share Exercise Price shall
be adjusted to be equal to the product of (i) a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately prior to such
Action and the denominator of which is the number of shares of Common Stock
outstanding immediately following such Action, multiplied by (ii) the Per Share
Exercise Price immediately prior to such Action. An adjustment made pursuant to
this Subsection 3(a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification.
(b) Whenever the Per Share Exercise Price is adjusted pursuant to
subsection 3(a), the number of Warrant Shares issuable upon payment of the
Aggregate Exercise Price shall be adjusted to be equal to the product of the
number of Warrant Shares issuable upon payment of the Aggregate Exercise Price
immediately prior to such adjustment multiplied by a fraction, the numerator of
which shall be the Aggregate Exercise Price payable immediately prior to such
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adjustment and the denominator which shall be the Aggregate Exercise Price
payable immediately after such adjustment and all other references to numbers of
Warrant Shares set forth herein shall be correspondingly adjusted.
(c) In the event of any capital reorganization or reclassification, or
any consolidation or merger to which the Company is a party other than a merger
or consolidation in which the Company is the continuing corporation, or in case
of any sale or conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
of this Warrant shall have the right thereafter to receive on the exercise of
this Warrant the kind and amount of securities, cash or other property which the
Holder would have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance had this Warrant been exercised immediately prior to the
effective date of such reorganization, reclassification, consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if necessary,
appropriate adjustment shall be made in the application of the provisions set
forth in this Section 3 with respect to the rights and interests thereafter of
the Holder of this Warrant to the end that the provisions set forth in this
Section 3 shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the exercise of this Warrant. The above
provisions of this Subsection 3(c) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, statutory
exchanges, sales or conveyances. The issuer of any shares of stock or other
securities or property thereafter deliverable on the exercise of this Warrant
shall be responsible for all of the agreements and obligations of the Company
hereunder. A sale of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes.
(d) No adjustment in the Per Share Exercise Price shall be given effect
unless such adjustment would require an increase or decrease of at least $0.05
per share of Common Stock; provided, however, that any adjustments which by
reason of this Subsection 3(d) are not given effect shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 3 shall be made to the nearest cent or to the nearest 1/100th of a
share, as the case may be. Anything in this Section 3 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Per Share Exercise Price, in addition to those required by this Section 3, as it
in its discretion shall deem to be advisable in order that any stock dividend,
subdivision of shares or distribution of rights to purchase stock or securities
convertible or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
(e) Whenever the Per Share Exercise Price is adjusted as provided in
this Section 3 and upon any modification of the rights of a Holder of Warrants
in accordance with this Section 3, the Chief Financial Officer, or equivalent
officer, of the Company shall prepare a certificate setting forth the Per Share
Exercise Price and the number of Warrant Shares after such adjustment or the
effect of such modification, a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same and cause copies
of such certificate to be mailed to the Holder.
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(f) If, as a result of an adjustment made pursuant to this Section 3,
the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder of any Warrant promptly after such adjustment) shall
determine the allocation of the adjusted Per Share Exercise Price between or
among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
(g) Notwithstanding anything else contained herein to the contrary, the
Per Share Exercise Price shall not be decreased to be equal to an amount less
than the authorized par value of the Company as in effect at the time of the
exercise of this Warrant under Section 1 hereof.
4. LIMITED TRANSFERABILITY. This Warrant may not be sold, transferred,
assigned or hypothecated by the Holder except in compliance with the provisions
of the Act and the applicable state securities "blue sky" laws, and is so
transferable only upon the books of the Company which it shall cause to be
maintained for such purpose. The Company may treat the registered Holder of this
Warrant as he or it appears on the Company's books at any time as the Holder for
all purposes. The Company shall permit any Holder of a Warrant or his duly
authorized attorney, upon written request during ordinary business hours, to
inspect and copy or make extracts from its books showing the registered holders
of Warrants. All Warrants issued upon the transfer or assignment of this Warrant
will be dated the same date as this Warrant, and all rights of the holder
thereof shall be identical to those of the Holder.
5. LOSS, ETC., OF WARRANT. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, of
indemnity reasonably satisfactory to the Company and, if requested by the
Company, of a bond reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
6. INVESTMENT INTENT.
(a) The Holder represents, by accepting this Warrant, that it
understands that this Warrant and any securities obtainable upon exercise of
this Warrant have not been registered for sale under Federal or state securities
laws and are being offered and sold to the Holder pursuant to one or more
exemptions from the registration requirements of such securities laws. The
Holder represents, by accepting this Warrant, that it is an "accredited
investor" within the meaning of Regulation D under the Securities Act of 1933,
as amended (the "ACT"). In the absence of an effective registration of such
securities or an exemption therefrom, any certificates for such securities shall
bear the legend set forth on the first page hereof. The Holder understands that
it must bear the economic risk of its investment in this Warrant and any
securities obtainable upon exercise of this Warrant for an indefinite period of
time, as this Warrant and such securities have not been registered under Federal
or state securities laws and therefore cannot be sold unless subsequently
registered under such laws, unless as exemption from such registration is
available.
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(b) The Holder, by his acceptance of its Warrant, represents to the
Company that it is acquiring this Warrant and will acquire any securities
obtainable upon exercise of this Warrant for its own account for investment and
not with a view to, or for sale in connection with, any distribution thereof in
violation of the Act. The Holder agrees that this Warrant and any such
securities will not be sold or otherwise transferred unless (i) a registration
statement with respect to such transfer is effective under the Act and any
applicable state securities laws or (ii) such sale or transfer is made pursuant
to one or more exemptions from the Act.
7. STATUS OF HOLDER. This Warrant does not confer upon the Holder any
right to vote or to consent to or receive notice as a stockholder of the
Company, as such, in respect of any matters whatsoever, or any other rights or
liabilities as a stockholder, prior to the exercise hereof.
8. NOTICES. No notice or other communication under this Warrant shall
be effective unless, but any notice or other communication shall be effective
and shall be deemed to have been given if, the same is in writing and is mailed
by first-class mail, postage prepaid, addressed to:
(a) the Company at 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000
or such other address as the Company has designated in writing to the Holder; or
(b) the Holder at
or such other address as the Holder has designated in writing to the Company.
9. HEADINGS. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
10. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
principles of conflicts of law thereof.
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IN WITNESS WHEREOF, Xxxxxx Xxxxxxx acting for and on behalf of the
Company, has executed this Warrant as of [_____________________].
CROSS MEDIA MARKETING CORPORATION
By:
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Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
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SUBSCRIPTION
The undersigned, ____________________________, pursuant to the
provisions of the foregoing Warrant, hereby elects (A) to exercise the within
Warrant to the extent of purchasing _____________________ shares of Common Stock
of Cross Media Marketing Corporation thereunder and hereby makes payment of
$_______________ by certified or official bank check in payment of the exercise
price therefor, or (B) to convert the within Warrant or portion thereof into
______________ shares of such Common Stock. [Holder must fill in the applicable
blank above].
Date: Signature:
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Address:
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CASHLESS EXERCISE
The undersigned, ____________________________, pursuant to subsection
1(b) of the foregoing Warrant, hereby elects to exchange the foregoing Warrant
for ______________ shares of Common Stock. The actual number of shares the
undersigned shall receive shall be reduced pursuant to the subsection 1(b) of
the Warrant. The undersigned hereby confirms the representations and warranties
made by the undersigned under Section 6 of the Warrant.
REPRESENTATIONS AND WARRANTIES
The undersigned Holder hereby represents and warrants to the Company as
follows:
a. The Holder is acquiring the Warrant Shares for his own account, for
investment purposes only and not with a view towards or in connection with
public sale or distribution thereof. The Warrant Shares may not be offered for
sale, sold or otherwise transferred except pursuant to an effective registration
statement under the Act and in compliance with the applicable securities laws of
any state or other jurisdiction, or pursuant to an opinion of counsel
satisfactory to the Company that such registration is not required and such
compliance has been obtained. The Company may affix an appropriate legend to any
certificate(s) representing the Warrant Shares to reflect the foregoing.
b. The Holder understands that the Warrant Shares are being offered and
sold by the Company in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Company is relying upon the accuracy of, and the
compliance by the Holder with his representations and warranties set forth in
this letter, in determining the availability of such exemption and the
eligibility of the Holder to acquire the Warrant Shares.
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c. The Holder acknowledges that he has had access to the reports and
other documents filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, and that he has
been given an opportunity to ask questions of, and to receive answers from, the
Company's management personnel concerning the Company's business and the Warrant
Shares. The Holder has been provided access to all materials relating to the
business, financial position and results of operations of the Company, and all
other materials requested by the Holder by enable him to make an informed
investment decision with respect to the acquisition of the Warrant Shares. The
Holder has such knowledge and experience in financial and business matters that
he is capable of evaluating the merits and risks of an investment in the
Company's securities.
d. The Holder is (i) an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act, (ii) experienced in making
investments of the kind represented by the Warrant Shares, and (iii) capable, by
reason of his business and financial experience, of evaluating the relative
merits and risks of an investment in the Warrant Shares.
e. The Holder understands that an investment in the Warrants involves a
high degree of risk, and has the financial ability to bear the economic risk of
this investment in the Warrants, including a complete loss of such investment.
The Holder has adequate means for providing for his current financial
requirements and has no need for liquidity with respect to this investment.
Date: Signature:
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Address:
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ASSIGNMENT
FOR VALUE RECEIVED _______________________________________ hereby
sells, assigns and transfers unto _____________________________________ the
foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _____________________________, attorney, to transfer said
Warrant on the books of Cross Media Marketing Corporation.
Date: Signature:
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Address:
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby assigns and
transfers unto _________________________ the right to purchase __________ shares
of the Common Stock, par value $.001, of Cross Media Marketing Corporation
covered by the foregoing Warrant, and a proportionate part of said Warrant and
the rights evidenced thereby, and does irrevocably constitute and appoint
__________________________, attorney, to transfer that part of said Warrant on
the books of Cross Media Marketing Corporation.
Date: Signature:
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Address:
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