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EXHIBIT 4.3
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS WARRANT HAS BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT AND SAID STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO COMPANY THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT AND SAID STATE SECURITIES LAWS.
WANDERLUST INTERACTIVE, INC.
WARRANT TO PURCHASE COMMON STOCK
WANDERLUST INTERACTIVE, INC, a Delaware corporation ("Company"),
certifies that _________ ("Holder"), is entitled to purchase from Company, at
any time during the period set forth in Section 2.1 hereof, up to a maximum of
______ fully paid and nonassessable shares (the "Shares") of Company's common
stock, $0.01 par value per share (the "Common Stock"), for a price per share
equal to the Purchase Price (as hereafter defined).
This Warrant and the Common Stock issuable upon exercise hereof are
subject to the terms and conditions hereinafter set forth:
1. Definitions. As used in this Warrant, the following terms shall
mean:
1.1 "Issuance Date" - December 16, 1997, the effective date of
the original issuance of this Warrant.
1.2 "Purchase Price" - $0.625 per share of the Company's Common
Stock.
1.3 "Subscription Form" - The form attached to this Warrant as
Exhibit A.
1.4 "Warrant" - This Warrant or any warrant delivered in
substitution or exchange therefor as provided herein.
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2. Exercise.
2.1 Time of Exercise. This Warrant may be exercised at the
office of Company in whole or part at any time commencing on the Issuance Date
and terminating on December 31, 2004.
2.2 Manner of Exercise. Subject to the provisions of Section
2.3 hereof, this Warrant is exercisable at the Purchase Price per share of
Common Stock issuable hereunder payable in cash or by check, payable to the
order of Company, or by cancellation of any then existing indebtedness owed by
Company to the Holder, or any combination thereof. Upon surrender of this
Warrant with the annexed Subscription Form duly executed, together with payment
of the Purchase Price for the Shares purchased at Company's principal executive
offices in California, the Holder shall be entitled to receive a certificate or
certificates for the Shares so purchased. The purchase rights represented by
this Warrant are exercisable at the option of the Holder hereof, in whole or
part, during any period in which this Warrant may be exercised as set forth
above.
2.3 Net Issue Election. The Holder may elect to receive,
without the payment by the Holder of any additional consideration, that number
of shares of Common Stock equal to the value of this Warrant, or any portion
hereof, by the surrender of this Warrant, or such portion, to the Company, with
the annexed Subscription Form duly executed by Holder, at the principal
executive offices of the Company. Thereupon, the Company shall issue to such
Holder such number of fully paid and nonassessable shares of Common Stock as is
computed using the following formula:
X = Y (A-B)
_______
A
where X = the number of shares of Common stock to be
issued to Holder pursuant to this Section 2.3;
Y = the number of shares of Common
Stock covered by this Warrant in
respect of which the net issue
election is made;
A = the "fair market value" of one
share of Common Stock, at the time
the net issue election is made; and
B = the Purchase Price in effect under
this Warrant at the time the net
issue election is made.
The term "fair market value" of one share of Common Stock on any date shall mean
the average of the daily closing prices for a share of Common Stock on the five
consecutive trading days commencing 10 business days before the date upon which
this Warrant, with the annexed Subscription Form duly executed, is received by
the Company. The closing price for each day shall be: (i) the average of the
last reported sales prices on the specified days (or if there is no reported
sale on any such trading date, the average of the closing bid and asked prices
on such trading date)
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if the Common Stock shall be listed or admitted to trading on any national
securities exchange; (ii) the closing price, if reported, or if the closing
price is not reported, the average of the closing bid and asked prices, as
reported by the Nasdaq SmallCap Market(sm) or similar source or, if no such
source exists, as furnished by two members of the National Association of
Securities Dealers, Inc., selected by the Company for that purpose, on the
specified dates if the Common Stock is not traded or admitted to trading on
Nasdaq. In the event that clause (iii) in the immediately preceding sentence is
applicable, the Board of Directors of the Company shall promptly respond in
writing to any inquiry by the Holder hereof as to the fair market value of one
share of Common Stock.
2.4 Delivery of Stock Certificates. As soon as practicable,
but not exceeding 10 business days, after exercise of this Warrant, Company, at
its expense, shall cause to be issued in the name of the Holder and deliver to
the Holder a certificate for the number of fully paid and nonassessable Shares
so purchased.
2.5 Record Date of Transfer of Shares. Irrespective of the
date of issuance and delivery of certificates for any Shares of Common Stock or
other securities issuable upon the exercise of this Warrant, each person in
whose name any such certificate is to be issued shall for all purposes be deemed
to have become the holder of record of the Shares of Common Stock or other
securities represented thereby immediately prior to the close of business on the
date on which a duly executed Subscription Form containing notice of exercise of
this Warrant and payment for the number of Shares as to which this Warrant shall
have been exercised shall have been delivered to Company.
3. Adjustments. In the event that the outstanding shares of Common
Stock of Company are at any time increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of
Company or of another corporation through reorganization, merger, consolidation,
liquidation, recapitalization, stock split, combination of shares or stock
dividends payable with respect to such shares of Common Stock, appropriate
adjustments in the number, kind and price of such securities then subject to
this Warrant shall be made effective as of the date of such occurrence so that
the position of the Holder upon exercise will be the same as it would have been
had the Holder owned immediately prior to the occurrence of such event the
number of shares of Common Stock subject to this Warrant. Such adjustment shall
be made successively whenever any event listed above shall occur and Company
will notify the Holder of each such adjustment. Any fraction of a share
resulting from any adjustment shall be eliminated and the price per share of the
remaining shares subject to this Warrant adjusted accordingly.
4. Transfer of Warrant and Shares.
4.1 Restrictions on Transfer. The Holder, by the Holder's
acceptance hereof, represents, warrants, covenants, and agrees that (a) the
Holder has knowledge of the business and affairs of Company, and (b) this
Warrant and the Shares issuable upon the exercise of this Warrant are being
acquired for investment and not with a view to the distribution hereof, and that
absent an effective registration statement under the Securities Act of 1933, as
amended ("1933 Act"), covering the disposition of this Warrant or the Shares
issued or issuable upon exercise of this Warrant, they will not be sold,
transferred, assigned, hypothecated or otherwise disposed of without first
providing Company, if Company so requests, with an opinion of counsel,
reasonably satisfactory to Company, to the effect that such sale, transfer,
assignment, hypothecation or other disposal will be exempt from
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the registration and prospectus delivery requirements of the 1933 Act, and the
Holder consents to Company making a notation in its records or giving to any
transfer agent of the Warrant or the Shares an order to implement such
restriction on transferability. Subject to the foregoing, this Warrant is
transferable and may be assigned or hypothecated from the date hereof. Upon
surrender of this Warrant to the Company at its principal office with the
Subscription Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, Company shall, without charge, execute and deliver a new Warrant
in the name of the assignees named in such instrument of assignment and this
warrant shall promptly be canceled.
5. Payment of Taxes. All Shares issued upon the exercise of this
Warrant shall be validly issued, fully paid and nonassessable, and Company shall
pay all taxes and other governmental charges that may be imposed in respect of
the issue or delivery thereof. Company shall not be required, however, to pay
any tax or other charge imposed in connection with any transfer involved in the
issue of any Shares into any name other than that of the Holder surrendered in
connection with the purchase of such Shares, and in such case 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 Company's satisfaction that
no tax or other charge is due.
6. Reservation of Common Stock. Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of issuance upon the exercise of this Warrant, such number of
shares of Common Stock as shall be issuable upon the exercise hereof.
7. Piggyback Registration Rights. Company acknowledges and agrees that
the Holder will have the following "piggyback" registration rights with respect
to the Shares of Common Stock purchased by the Holder pursuant to the Holder's
exercise of this Warrant:
(a) If any time Company proposes to register any of its shares
of Common Stock under the 1933 Act (other than in connection with a merger,
acquisition or exchange offer or pursuant to Form S-8 or successor form),
Company will give written notice, by registered mail, at least 30 days prior to
the filing of such registration statement to the Holder of its intention to do
so. Upon written request of the Holder given within 15 days after receipt of any
such notice of the Holder's desire to include any of the Shares purchasable by
the Holder pursuant to this Warrant in such proposed registration statement,
Company shall afford the Holder the opportunity to have such Shares registered
under such registration (subject to any underwriter's approval thereof). The
"piggyback" registration rights described in this Section 7(a) shall terminate
as to any Shares elected to be purchased by Holder on the date which is two
years after the issuance of such Shares. Any sales of such Shares by the Holder
pursuant to such registration statement shall be effected through the
underwriter of such registered offering, if any, and the Holder shall compensate
the underwriter in accordance with its customary compensation practices.
(b) Notwithstanding anything to the contrary contained in the
provisions of this Section 7, Company shall have the right at any time after it
shall have given written notice pursuant to this Section 7 (irrespective of
whether a written request for inclusion of any such Shares shall have been made
by the Holder) to elect not to file any such proposed registration statement, or
to withdraw the same after the filing but prior to the effective date thereof.
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(c) Company shall indemnify and hold harmless the Holder from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement of a material fact contained in any registration statement
filed by Company under the 1933 Act by reason of this Section 7, any
post-effective amendment to such registration statement, or any prospectus
included therein, or caused by any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission based upon information furnished
or required to be furnished in writing to the Company by the Holder (or the
authorized representatives or agents of the Holder) expressly for use therein,
which indemnification shall include each person, if any, who controls the Holder
within the meaning of the 1933 Act and each officer, director, employee and
agent of the Holder; provided, however, that the indemnification in this Section
7(c) with respect to any prospectus shall not inure to the benefit of the Holder
(or to the benefit of any person controlling the Holder) on account of any such
loss, claim, damage or liability arising from the sale of such Shares by the
Holder, if a copy of a subsequent prospectus correcting the untrue statement or
omission in such earlier prospectus was provided to the Holder of such Shares by
Company prior to the subject sale and the subsequent prospectus was not
delivered or sent by the Holder to the purchaser of such Shares prior to such
sale; and provided further that Company shall not be obligated to so indemnify
the Holder of such Shares or any other person referred to above unless the
Holder or such other person, as the case may be, shall at the same time
indemnify Company, its directors, each officer signing the registration
statement and each person, if any, who controls Company within the meaning of
the 1933 Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement of a material fact contained in any
registration statement or any prospectus required to be filed or furnished in
connection with such public offering or caused by any omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission based upon
information furnished in writing to Company by Holder of such Shares expressly
for use therein.
(d) If for any reason the indemnification provided for in
Section 7(c) above is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim, damage,
liability or expense referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations.
(e) All expenses, filing fees and other costs incurred by
Company in connection with any registration of securities pursuant to this
Section 7 (exclusive of underwriting discounts and selling commissions
applicable to any sale of registered securities) shall be borne by Company.
(f) In the case of any registration effected by Company
pursuant to the provisions of this Section 7, Company will: (i) furnish to the
Holder of such Shares such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the 1933 Act, and
such other documents as the Holder may reasonably request in order to facilitate
the disposition of such Shares owned by the Holder, and (ii) notify the Holder
of such Shares covered
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by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
8. Notices.
8.1 Notices to be Given. Nothing contained in this Warrant
shall be construed as conferring upon the Holder hereof the right to vote or to
consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter or as having any
rights whatsoever as a shareholder of Company. If, however, at any time prior to
the expiration of the Warrant and prior to its exercise, Company intends to
issue a cash dividend, then Company shall give written notice of such issuance
of such cash dividend to the Holder at least 15 days prior to the date fixed for
issuance of such cash dividend.
8.2 Addresses. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the following addresses:
(a) If to Holder:
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Attn: -------------------
(b) If to Company:
Wanderlust Interactive, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxx, III, Chief
Executive Officer
9. Miscellaneous.
9.1 Replacement of Warrants. Upon receipt of evidence
reasonably satisfactory to Company of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement in an amount reasonably
satisfactory to Company, or (in the case of mutilation) upon surrender and
cancellation of the mutilated Warrant, Company will execute and deliver, in lieu
thereof, a new Warrant of like tenor.
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9.2 Successors. All the covenants, agreements, representations
and warranties contained in this Warrant shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
9.3 Change; Waiver. Neither this Warrant nor any term hereof
may be changed, waived, discharged or terminated orally but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
9.4 Headings. The section headings in this Warrant are
inserted for purposes of convenience only and shall have no substantive effect.
IN WITNESS WHEREOF, Company has caused this Warrant to be signed by
its duly authorized officer, and this Warrant to be dated as of December 16,
1997.
WANDERLUST INTERACTIVE, INC.
By:
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Xxx Xxxxx, III, Chief Executive Officer
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EXHIBIT A
SUBSCRIPTION FORM
To: Wanderlust Interactive, Inc.
The undersigned, the holder of the attached Warrant, hereby
irrevocably elects to exercise the purchase right represented by that Warrant
for, and to purchase under that Warrant, ________ shares of Common Stock of
Wanderlust Interactive, Inc., a Delaware corporation, and herewith makes payment
of ________ ($____) for those shares, and requests that the certificates for
those shares be issued in the name of ____________ and delivered to ____________
whose address is _____________.
Dated: _____________________
_________________________________
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