EXHIBIT 4.4
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT, SUCH
SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS.
GLOBIX CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
March __, 2003
This warrant (this "WARRANT") certifies that, for good and
valuable consideration, Globix Corporation, a Delaware corporation (the
"COMPANY"), grants to Communication Technology Advisors LLC or its permitted
assigns (the "WARRANTHOLDER"), the right to subscribe for and purchase from the
Company, at any time during the Exercise Period (as defined herein), 500,000
shares of the Common Stock, par value $0.01 of the Company (the "WARRANT
SHARES"), at the exercise price per share of $3.00 (the "EXERCISE PRICE"), all
subject to the terms, conditions and adjustments herein set forth. The number of
Warrant Shares is subject to adjustment as provided in Article III.
This Warrant is being issued against delivery of the
Warrantholder's payment to the Company of the $25,000.00 purchase price of this
Warrant.
1. DEFINITIONS
1.1. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"AFFILIATE" with respect to any Person, shall mean any other
Person that directly or indirectly, controls, is controlled by, or is under
common control with, such Person.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
a day on which national banks are authorized by law to close in the State of New
York.
"CLOSING PRICE" of a share of Common Stock for any day shall
mean the last reported sales price, regular way, or, in the event that no sale
takes place on such day, the average of the reported closing bid and asked
prices, regular way, in either case as reported on the principal national
securities exchange on which such Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the Nasdaq National Market System or the Nasdaq SmallCap Market or, if such
security is not quoted on the Nasdaq National Market System or the Nasdaq
SmallCap Market, the average of the closing bid and asked prices on each such
day in the over-the-counter market as reported by Nasdaq or, if bid and asked
prices for such security on each such day shall not have been reported by
Nasdaq, the average of the bid and asked prices for such day as furnished
by any reputable investment banking firm regularly making a market in such
security selected for such purpose by the Board of Directors of the Company or a
committee thereof. If the Closing Price cannot be calculated on such date on any
of the foregoing bases, the Closing Price of such security on such date shall be
the fair market value as reasonably determined by an Independent Financial
Expert selected for such purpose by the Board of Directors of the Company or a
committee thereof.
"COMMON STOCK" means the common stock, par value $0.01 per
share, of the Company.
"EXCHANGE ACT" mean the Securities Exchange Act of 1934, as
amended from time to time.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state,
local or other governmental authority or regulatory body having jurisdiction
over the Company, its Affiliates or the Warrantholder.
"INDEPENDENT FINANCIAL EXPERT" means a nationally recognized
investment banking firm that does not (and whose directors, officers, employees
and Affiliates do not) have a direct or indirect financial interest in the
Company or any of its Affiliates, that has not been and at the time it is called
upon to give independent financial advice to the Company is not (and none of
whose directors, officers, employees or Affiliates is) a promoter, director or
officer of the Company or any of its Affiliates, and that does not provide any
advice or opinions to the Company or any of its Affiliates.
"PERSON" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
II. EXERCISE OF WARRANT
2.1. EXERCISE PERIOD. On the terms and subject to the
conditions contained herein, the Warrantholder may exercise this Warrant on any
Business Day starting on March __, 2003 and ending at 5:00 p.m., Eastern
Standard Time, on March __, 2013 (the "EXERCISE PERIOD"), for all or any part of
the Warrant Shares.
2.2. EXERCISE PROCEDURE. To exercise this Warrant, the
Warrantholder shall deliver to the Company at its principal executive offices:
(a) payment of the aggregate Exercise Price in the manner provided in Section
2.3 (as computed by multiplying (A) the Exercise Price by (B) the number of
shares of Common Stock for which the Warrantholder is exercising this Warrant at
such time); (b) a completed and properly executed Notice of Exercise in
substantially the form attached hereto as Annex I; and (c) this Warrant. Upon
receipt of the aggregate Exercise Price and the required deliverables pursuant
to the preceding sentence, the Company shall, within three (3) Business Days
thereafter, subject to receipt of any required regulatory approvals (including
expiration of any required waiting period), deliver to the Warrantholder duly
executed certificate(s) representing the aggregate number of shares of Common
Stock issuable upon such exercise, together with cash in lieu of any fraction of
a Warrant Share as provided in Section 2.6. Such stock certificate(s) shall be
in such denominations and registered in the name(s) as the Warrantholder shall
request in the Notice of Exercise. If this Warrant shall have been exercised in
part,
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the Company shall deliver to the Warrantholder a new warrant evidencing the
rights of the Warrantholder to purchase the remaining Warrant Shares issuable
(which shall in all other respects be identical to this Warrant). All shares of
Common Stock issuable upon the exercise of this Warrant pursuant to the terms
hereof shall be validly issued, fully paid and nonassessable and without any
preemptive rights.
2.3. PAYMENT OF EXERCISE PRICE. The Exercise Price may be
payable hereunder by the delivery by certified check or by wire transfer of
immediately available funds to the account of the Company of an amount equal to
the Exercise Price.
2.4. RESTRICTIONS. The Company shall not be required to issue
any shares of Common Stock under this Warrant if the issuance of such shares
would constitute a violation by the Company of any provision of any law, rule or
regulation of (i) any Governmental Authority, including without limitation,
compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR ACT"), and compliance with registration or qualification
requirements of applicable federal and state securities laws or (ii) any
applicable self governing organization or stock exchange, including without
limitation, the rules, regulations or listing requirements of any such
organization or stock exchange. If at any time the Company shall determine,
based upon the advice of counsel, that the registration, qualification or
listing of any shares subject to this Warrant under any applicable state or
federal law or other applicable rules or regulations (including those of any
applicable stock exchange), or any filing or expiration of any waiting period
under the HSR Act, is necessary as a condition of, or in connection with, the
issuance of shares, the Company shall not be required to issue any shares of
Common Stock under this Warrant unless and until the Company has received
evidence reasonably satisfactory to it that such laws, rules or regulations have
been complied with and/or such filing has been made and the applicable waiting
period has expired under the HSR Act; provided, however, that nothing in this
Section 2.4 shall limit the Company's obligations under Article V of this
Warrant.
2.5. PAYMENT OF TAXES. The Company shall pay all stamp taxes
and other similar charges with respect to the issue or delivery of Common Stock
hereunder. The Company shall not be required to pay any transfer tax or other
similar charge imposed in connection with the issue of any stock certificate in
any name other than that of the Warrantholder, and in such case the Company
shall not be required to issue or deliver any stock certificate until such tax
or other charge has been paid or it has been established to the reasonable
satisfaction of the Company that no such tax or other charge is due.
2.6. FRACTIONAL SHARES. The Company shall not be required to
issue any fractional shares of Common Stock upon exercise of this Warrant. In
lieu of any fractional share to which the Warrantholder would otherwise be
entitled upon exercise of this Warrant, the Company shall make a cash payment in
an amount equal to the product of (a) the Closing Price per share of Common
Stock on the date of exercise multiplied by (b) the fraction of a share.
III. ADJUSTMENTS
3.1. SUBDIVISION OR COMBINATION OF COMMON STOCK. If the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) its outstanding shares of Common Stock into a
greater number of shares, then as of the record date for effecting such
subdivision the number of shares issuable upon exercise of this Warrant will be
proportionately increased and the Exercise Price in effect immediately prior to
such subdivision shall be proportionately decreased. If the Company at any time
combines (by reverse stock split, recapitalization or otherwise) its outstanding
shares of Common Stock into a smaller number of shares, then as of the record
date for effecting such combination the number of shares issuable upon exercise
of this Warrant will be proportionately
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decreased and the Exercise Price in effect immediately prior to such combination
shall be proportionately increased.
3.2. CONSOLIDATION, MERGER, ETC. In case of any consolidation
or merger of the Company with or into any other corporation, entity or person,
or (a) any other corporate reorganization, in which the Company shall not be the
continuing or surviving entity of such consolidation, merger or reorganization
or in connection with which the Common Stock (or other securities issuable upon
exercise of this Warrant) shall be changed into or exchanged for stock of any
other entity or cash or other property, (b) any transaction in which in excess
of 50% of the Company's voting power is transferred to a person not a
stockholder immediately prior to the consummation of such transaction, (c) any
sale of all or substantially all of the assets of the Company or (d) a capital
reorganization or reclassification of the Common Stock (or other securities
issuable upon exercise of this Warrant) that does not result in an adjustment
pursuant to Section 3.1 (any such transaction being hereinafter referred to as a
"Reorganization"), then, in each case, the Warrantholder, on exercise hereof at
any time after the consummation or effective date of such Reorganization, shall
receive, in lieu of the Warrant Shares issuable on such exercise prior to the
date of such Reorganization, the stock, other securities, cash or other property
to which such holder would have been entitled upon the date of such
Reorganization if such holder had exercised this Warrant immediately prior
thereto.
3.3. NOTICE OF ADJUSTMENT. Whenever an event necessitating an
adjustment to this Warrant pursuant to this Article III occurs, the Company
shall promptly deliver written notice thereof, by first class mail, postage
prepaid, addressed to the Warrantholder in accordance with Section 7.5, which
notice shall state the increase or decrease in the number or other denominations
of securities purchasable and exercise price payable upon the exercise of this
Warrant setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
IV. RESTRICTIONS ON TRANSFER
4.1. RESTRICTIONS ON TRANSFER. The Warrantholder, by its
acceptance of this Warrant, agrees to be bound by the provisions of this Article
IV and acknowledges and confirms that this Warrant and any Warrant Shares issued
upon exercise of this Warrant have not been registered under the Securities Act
or any applicable state securities laws, and may not be sold or transferred
except in compliance with and subject to the Securities Act and such state
securities laws. Unless and until this Warrant and such Warrant Shares have been
registered under the Securities Act and such state securities laws, the Company
may require, as a condition to effecting any sale or transfer of this Warrant or
such Warrant Shares on the books of the Company, an opinion of counsel
reasonably satisfactory to the Company to the effect that an exemption from
registration under the Securities Act and such state securities laws is
available for the proposed transfer or assignment or a certification reasonably
satisfactory to the counsel of the Company in its professional determination
from the transferee that it is an "ACCREDITED INVESTOR" as defined under the
Securities Act and regulations promulgated thereunder. Any purported sale or
transfer of this Warrant and/or such Warrant Shares shall be null and void
unless made in compliance with the conditions set forth in this Article IV.
Except as provided in Section 4.2, (a) this Warrant and any warrant of the
Company issued in exchange or replacement for this Warrant shall be stamped or
otherwise imprinted with a legend in substantially the form set forth on the
cover of this Warrant, (b) each stock certificate for Warrant Shares issued upon
the exercise of this Warrant and each stock certificate issued upon the transfer
of any such Warrant Shares shall be stamped or otherwise imprinted with a legend
substantially to the same effect.
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4.2. TERMINATION OF RESTRICTIONS. The restrictions imposed by
Section 4.1 upon the transferability of this Warrant and the Warrant Shares
shall terminate: (a) when and so long as this Warrant or any such Warrant Shares
shall have been effectively registered under the Securities Act and transferred
in compliance therewith; or (b) when the Company shall have received an opinion
of counsel reasonably satisfactory to it that this Warrant or such Warrant
Shares may be transferred without registration thereof under the Securities Act;
provided, however, that if the Warrant Shares have been held (both legally and
beneficially) by the Warrantholder for at least one (1) year and are proposed to
be sold in compliance with Rule 144 under the Securities Act, no such opinion of
counsel shall be required. Whenever the legend requirements imposed by Section
4.1 shall terminate as to this Warrant or the Warrant Shares, the holder of this
Warrant or any Warrant Shares shall be entitled to receive from the Company, at
the Company's expense, a new warrant or a new stock certificate representing the
Warrant Shares, as the case may be, not bearing the restrictive legend described
in Section 4.1.
4.3. COMPLIANCE WITH SECURITIES LAWS. The Warrantholder, by
acceptance hereof, represents to the Company that this Warrant and any Warrant
Shares purchased upon exercise of this Warrant 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 such Warrant Shares except under circumstances that will
not result in a violation of the Securities Act or any applicable state
securities laws.
4.4. TRANSFER PROCEDURE. Subject to compliance with the other
provisions of this Article IV, transfer of this Warrant, in whole or in part,
shall occur upon surrender of this Warrant at the principal executive offices of
the Company, together with a duly executed written assignment of this Warrant
and funds sufficient to pay any transfer taxes payable upon the making of such
transfer and, if required, an opinion of counsel reasonably acceptable to
counsel of the Company in its professional determination concerning the
compliance of such transfer with the Securities Act and applicable state
securities laws. Upon receipt of such items, the Company shall execute and
deliver a new warrant or warrants in the name of the assignee or assignees and
in the denomination(s) 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.
4.5. MAINTENANCE OF TRANSFER BOOKS. The Company agrees to
maintain, at the principal executive office of the Company, books or records for
the registration and the registration of transfer of this Warrant or any warrant
of the Company issued in exchange for this Warrant.
V. NECESSARY ACTIONS
The Company will: (a) use its reasonable best efforts to
obtain all such authorizations, approvals, exemptions or consents from any
Governmental Authority having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant (including, without
limitation, making all necessary filings with such Governmental Authorities);
(b) take all necessary steps (including, without limitation, making appropriate
amendments to its certificate of incorporation) to ensure that the Company has
authorized a sufficient number of authorized but unissued shares of Common Stock
to provide for the issuance of the Warrant Shares; (c) reserve from such
authorized but unissued shares of common stock and keep available for issuance
pursuant to this Warrant a sufficient number of shares of Common Stock to
provide for the issuance of the Warrant Shares upon the exercise of this
Warrant; (d) if and so long as any shares of Common Stock are listed on a
national securities exchange, if permitted by the rules of such exchange, list
and keep listed on such exchange, upon official notice of issuance, all shares
of Common Stock issuable upon exercise of this Warrant; and (d) take all
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actions as may be necessary or appropriate to ensure that the Company may
validly and legally issue fully paid and non-assessable shares of Common Stock
upon the exercise of this Warrant that are not subject to any preemptive rights
and are free from all taxes, liens, security interests, charges, and other
encumbrances with respect to the issuance thereof, other than taxes in respect
of any transfer occurring contemporaneously with such issuance. If the Company
determines that registration of the Warrant Shares under any federal or state
securities law or any other governmental approval is required prior to the
issuance of the Warrant Shares, then the Company shall use its reasonable best
efforts to secure such registration or approval, and the right to exercise this
Warrant shall be extended until 15 days after the completion of any such
registration or approval.
VI. LOSS OR MUTILATION
On receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and (a) in the
case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company; or (b) in the case
of mutilation, on surrender and cancellation of this Warrant, the Company shall
execute and deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
VII. MISCELLANEOUS
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to the Warrant.
7.2 NONWAIVER. No course of dealing or any delay or failure to
exercise any right hereunder on the part of the Warrantholder shall operate as a
waiver of such right or otherwise prejudice the Warrantholder's rights, powers
or remedies.
7.3 BINDING EFFECT; NO THIRD-PARTY BENEFICIARIES. 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 or
permitted assigns, any rights, remedies, obligations or liabilities under or by
reason of this Warrant.
7.4 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.
7.5 NOTICES. Except as otherwise expressly provided herein,
all notices and deliveries referred to in this Warrant shall be in writing
(including facsimile transmission or similar writing) and shall be given to such
party at its address or facsimile number set forth on the signature pages
hereof. Each such notice, request or other communication shall be deemed
received by the other party (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section 7.5 and
confirmation of receipt is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section 7.5.
7.6 SEVERABILITY. Whenever possible, each provision of this
Warrant will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant is held by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not
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affect any other provision of this Warrant or the validity, legality or
enforceability of this Warrant in any other jurisdiction. In such event, this
Warrant will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
7.7 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this warrant and the issuance of securities
hereunder will be governed by and construed in accordance with the internal laws
of the State of Delaware, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
7.8 RIGHTS OR LIABILITIES AS STOCKHOLDER. The Warrantholder
shall be deemed to have become a holder of record of the shares of Common Stock
issuable under Section 2.2 as of the date on which all required deliverables
pursuant to Section 2.2 have been received by the Company. Until such time the
Warrantholder shall not have any voting rights or other rights or liabilities of
a stockholder of the Company with respect to the Common Stock issuable
hereunder.
7.9 AMENDMENT. No amendment or waiver of any provision of this
Warrant shall be effective without the prior written consent of the Company and
the Warrantholder.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
GLOBIX CORPORATION
By: _________________________
Name: _________________________
Title: _________________________
Warrantholder Information:
COMMUNICATION TECHNOLOGY ADVISORS LLC
00 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Annex I
NOTICE OF EXERCISE
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the
right represented by this Warrant to purchase _________ shares of Common Stock,
and herewith tenders to the Company as payment for such shares the amount of
$__________ in accordance with the terms of this Warrant. The undersigned
requests that a certificate for such shares be registered in the name of each of
the following:
Name: __________________
Address: _________________
_________________
_________________
and that each certificate be delivered to the above at the address indicated.
The undersigned represents that it is an "accredited investor"
(as defined in applicable rules and regulations under the Securities Act of
1933, as amended), and that it is acquiring such shares of Common Stock for its
own account for investment and not with a view to or for sale in connection with
any distribution thereof.
Dated: __________________________
Signature ___________________________
___________________________
(Print Name)
___________________________
(Xxxxxx Xxxxxxx)
___________________________
(City) (State) (Zip Code)
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