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EXHIBIT 4.3
XXXXXXX.XXX, INC.
STOCK PURCHASE WARRANT
THIS STOCK PURCHASE WARRANT is issued by xxxxxxx.xxx, inc., a Georgia
corporation (the "Company"), on this ___ day of _________, ______ by the Company
to ___________________________________ (hereinafter referred to as "Holder,"
which term shall include any subsequent assignee or transferee of this Warrant).
1. Issuance of Warrant. In consideration of the Holder's providing
certain financing to the Company, the Company hereby grants to the Holder the
right to purchase ____________ (_________) shares of the Company's common stock,
without par value (the "Common Stock"), upon the surrender hereof, at the
Exercise Price (as defined in Section 3 below) per share. The shares of Common
Stock issuable upon exercise of this Warrant are hereinafter referred to as the
"Warrant Shares." The number of Warrant Shares and the Exercise Price are
subject to adjustment as provided in Section 8 below.
2. Term. Subject to the terms and conditions set forth herein, this
Warrant shall be exercisable from the date hereof until 5:00 p.m. eastern time
on the tenth (10th) anniversary of the date of this Warrant (the "Expiration
Date") and shall be void thereafter.
3. Price. The purchase price per share for which the Warrant Shares may
be purchased pursuant to the terms of this Warrant shall be Three Dollars and
Twenty-Eight Cents ($3.28) per share (the "Exercise Price") as adjusted from
time to time pursuant to Section 8 hereof.
4. Exercise.
(a) This Warrant may be exercised by the Holder hereof in whole or
in part at any time and from time to time from the date of hereof until the
Expiration Date by surrender of this Warrant and the Notice of Exercise attached
hereto as Exhibit A, duly completed and executed on behalf of the Holder, at the
principal executive office of the Company, or at such other address as the
Company shall designate in a written notice to the Holder hereof, together with
a certified check payable to the Company for the aggregate Exercise Price of the
Warrant Shares so purchased; provided, however, that this Warrant must be
exercised in minimum increments of five hundred (500) shares (or, if fewer, the
number of Warrant Shares for which this Warrant is then exercisable).
(b) Upon exercise of this Warrant as aforesaid, the person entitled
to receive the Warrant Shares issuable upon such exercise shall be treated for
all purposes as the holder of record of such shares as of the close of business
on the date of exercise. As promptly as practicable on or after such date, and
in any event within ten (10) days thereafter, the Company shall execute and
deliver to the Holder of this Warrant a certificate or certificates for the
total number of whole Warrant Shares for which this Warrant is being exercised,
in such names and denominations as are requested by such Holder. If this Warrant
shall be exercised with respect to fewer than all of the Warrant
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Shares, the Company, at its expense, will issue to the Holder a new Warrant
covering the number of Warrant Shares with respect to which this Warrant shall
not have been exercised, which new Warrant shall be identical to this Warrant
except for the number of shares. If, upon exercise of this Warrant, the Holder
would be entitled to acquire a fractional share of the Company's Common Stock,
such fractional share shall be disregarded, and the number of shares subject to
this Warrant shall be rounded down to the next lower number of shares, and the
Holder shall be entitled to receive from the Company a cash payment equal to the
product of the per share Exercise Price multiplied by such fraction. The Company
covenants and agrees that it will pay when due any and all state and federal
issue taxes which may be payable in respect of the issuance of this Warrant or
the issuance of any Warrant Shares upon exercise of this Warrant.
5. Covenants. The Company covenants and agrees that all Warrant Shares
which may be issued upon exercise of this Warrant will, upon issuance and
payment therefor, be legally and validly issued and outstanding, fully paid and
nonassessable. The Company shall at all times reserve and keep available for
issuance upon the exercise of this Warrant such number of authorized but
unissued shares of Common Stock as will be sufficient to permit the exercise in
full of this Warrant.
6. Transfer of Warrant. This Warrant may only be transferred by
presentation of the Warrant to the Company with written instructions for such
transfer. Upon such presentation for transfer, the Company shall promptly
execute and deliver a new Warrant or Warrants in the form hereof in the name of
the assignee or assignees and in the denominations specified in such
instructions.
7. Warrant Holder Not Shareholder. This Warrant does not confer upon
the Holder, as such, any right whatsoever as a shareholder of the Company.
8. Adjustment Upon Changes in the Company Common Stock.
(a) If all or any portion of this Warrant shall be exercised
subsequent to the date of any stock split, stock dividend, recapitalization,
combination of shares of the Company or other similar event occurring after the
date hereof, or the record date therefor, as applicable, then the Holder
exercising this Warrant shall receive, for the aggregate price paid upon such
exercise, the aggregate number and class of shares which such Holder would have
received if this Warrant had been exercised immediately prior to the date of
such stock split, stock dividend, recapitalization, combination of shares or
other similar event, or the record date therefor, as applicable. If any
adjustment under this Section 8(a) would create a fractional share of Common
Stock or a right to acquire a fractional share of Common Stock, such fractional
share shall be disregarded and the number of shares subject to this Warrant
shall be the next higher number of shares, rounding all fractions upward.
Whenever there shall be an adjustment pursuant to this Section 8(a), the Company
shall forthwith notify the Holder or Holders of this Warrant of such adjustment,
setting forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated. For purposes hereof, the
granting of stock or options pursuant to a merger, asset acquisition, option
agreement or other transaction where all of the shareholders of the Company do
not participate shall not be
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considered a stock split, stock dividend, recapitalization, combination of
shares of the Company, or other similar event giving rise to an adjustment.
(b) If all or any portion of this Warrant shall be exercised
subsequent to any merger, consolidation, exchange of shares, separation,
reorganization or liquidation of the Company, or other similar event where all
of the shareholders of the Company participate, or the record date therefor, as
applicable, as a result of which all shares of Common Stock shall be changed
into the same or a different number of shares of the same or another class or
classes of securities of the Company or another entity, or the holders of Common
Stock are entitled to receive cash or other property, then the Holder exercising
this Warrant shall receive, for the aggregate price paid upon such exercise, the
aggregate number and class of shares, cash or other property which such Holder
would have received if this Warrant had been exercised immediately prior to such
merger, consolidation, exchange of shares, separation, reorganization or
liquidation or other similar event, or the record date therefor, as applicable.
If any adjustment under this Section 8(b) would create a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded and the number of shares subject to this
Warrant shall be the next higher number of shares, rounding all fractions
upward. Whenever there shall be an adjustment pursuant to this Section 8(b), the
Company shall forthwith notify the Holder or Holders of this Warrant of such
adjustment, setting forth in reasonable detail the event requiring the
adjustment and the method by which such adjustment was calculated.
(c) If the Company shall issue shares of Common Stock, or options,
warrants or other rights convertible into Common Stock, for a per share price,
exercise price or consideration of or valued at less than the Exercise Price
then in effect, then unless such issuance is, or is made in connection with, an
"Exempted Event," as defined below, the Exercise Price shall be reduced to a
price equal to the lower per share price, exercise price or consideration. For
the purposes of this Warrant, the following shall be deemed to be Exempted
Events if approved by a majority of the Company's Board of Directors (or with
respect to (C) below, a majority of the members of the Compensation Committee of
the Board of Directors), including a majority of the directors of the Company
who are not employees of the Company:
(A) the acquisition of another corporation or entity by the
Company by merger, purchase of substantially all the assets or other
reorganization as a result of which the Company or its shareholders prior to the
transaction own more than 50% of the voting power of the resulting corporation
or other entity;
(B) equipment leases or borrowings, direct or indirect, from
financial or other institutions regularly engaged in such business;
(C) the issuance of shares of Common Stock, and options, warrants
or rights convertible into Common Stock, to employees, consultants or directors
of the Company pursuant to any incentive agreement or arrangement;
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(D) a transaction in which the Company licenses any
intellectual property to be used in the business of the Company; or
(E) a strategic joint venture or alliance between the Company
and another party to which the securities are issued, or an affiliate thereof.
9. Notice of Certain Events. In case:
(a) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of capital
stock of any class, or to receive any other rights; or
(b) of any capital reorganization, any reclassification of shares
of capital stock of the Company (other than a subdivision or combination of
outstanding shares of Common Stock to which Section 8 applies), or any
consolidation or merger of the Company or the sale or transfer of all or
substantially all of the assets of the Company; or
(c) of any voluntary dissolution, liquidation, or winding up of the
Company;
then the Company shall mail (at least ten (10) days prior to the applicable date
referred to in subclause (x) or in subclause (y) below, as the case may be), to
the Holder at the address set forth in the Company's stock records, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, or rights, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, or rights are to be determined, or (y) the date on which
such capital reorganization, reclassification, consolidation, merger, sale,
transfer dissolution, liquidation, or winding up is expected to become
effective, and, if applicable, the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such reclassification,
capital reorganization, consolidation, merger, sale, transfer, dissolution,
liquidation, or winding up.
10. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Georgia applicable to agreements made
entirely within the State.
11. Severability. If any provision(s) of this Warrant or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Warrant and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
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12. Counterparts. This Warrant may be executed in any number of
counterparts and by different parties to this Warrant in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same Warrant.
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be executed by
its duly authorized officer to be effective as of the ___ day of _________,
____.
xxxxxxx.xxx, inc.
By:
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X. Xxxx Xxxxxx, Chief Executive Officer
Accepted:
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(Name of Warrant Holder)
By:
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Name:
Title:
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EXHIBIT A
NOTICE OF EXERCISE
To: xxxxxxx.xxx, inc.
The undersigned, the Holder of the foregoing Warrant and pursuant to
the terms hereof, hereby elects to exercise rights represented by said Warrant
for, and to purchase thereunder, shares of the Company's Common Stock covered by
said Warrant, and tenders herewith payment of the purchase price in full for
such shares of $_________, by cash, through the delivery of a certified check.
The undersigned hereby requests that certificates for such shares (or
any other securities or other property issuable upon such exercise) be issued in
the name of and delivered to the undersigned at the address set forth below.
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Date: By:
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Its:
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Address:
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