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EXHIBIT 4.4
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED
FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
Right to Purchase __________ Shares of Common Stock of Oncor, Inc.
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Common Stock Purchase Warrant
Oncor, Inc., a Maryland corporation having an address at 000 Xxxxx
Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, (the "Company"), hereby certifies that
for Ten United States Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
___________________, having an address at __________________________________
("Purchaser") or any other Warrant Holder is entitled, on the terms and
conditions set forth below, to purchase from the Company at any time after the
date hereof and ending sixty (60) months after the date hereof _______________
(______) shares of fully paid and nonassessable shares of Common Stock, $.01
par value, of the Company (the "Common Stock"), at the Purchase Price
(hereinafter defined), as the same may be adjusted pursuant to Section 5
herein.
1. Definitions.
(a) the term "Warrant" shall mean this Common Stock Purchase
Warrant, sometimes referred to in the Agreement as the Second Warrant.
(b) the term "Warrant Holder" shall mean the Purchaser or any
assignee of all or any portion of this Warrant at any given time who, at the
time of assignment, acquired the right to purchase at least 1000 Warrant Shares
(such number being subject to adjustment after the date hereof pursuant to
Section 5 herein.)
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(c) the term "Warrant Shares" shall mean the shares of Common
Stock or other securities issuable upon exercise of this Warrant.
(d) the term "Purchase Price" shall mean __________ Dollars
and __________ Cents United States Dollars ($_____) per share of Common
Stock[135% of the average Market Price for Shares of Common Stock for the five
trading days immediately preceding the Holder Conversion Date].
(e) the term "Act" shall mean the Securities Act of 1933, as
amended.
(f) the term "Exchange Act" shall mean the Securities and
Exchange Act of 1934, as amended.
(g) the term "SEC" or "Commission" shall mean the Securities
and Exchange Commission or any successor agency.
(h) the term "Rule 144" shall mean Rule 144 promulgated under
the Act, as amended, and any successor rules promulgated under the Act.
(i) other terms used herein which are defined in the
Subscription Agreement (the "Agreement") between the Company and the Purchaser
shall have the same meanings herein as therein.
2. Exercise of Warrant.
This Warrant may be exercised by the Warrant Holder, in whole or in
part, at any time and from time to time by surrender of this Warrant, together
with the form of subscription at the end hereof duly executed by the Warrant
Holder, and delivery of the Purchase Price for such Warrant Shares to the
Company, at the Company's principal office. In the event that the Warrant is
not exercised in full, the number of Warrant Shares shall be reduced by the
number of such Warrant Shares for which this Warrant is exercised, and the
Company, after receipt by it of a form of Warrant reflecting such adjusted
Warrant Shares, at its expense, shall forthwith issue and deliver to or upon
the order of the Warrant Holder a new Warrant of like tenor in the name of the
Warrant Holder or as the Warrant Holder (upon payment by the Warrant Holder of
any applicable transfer taxes) may request, reflecting such adjusted Warrant
Shares.
3. Delivery of Stock Certificates.
(a) Subject to the terms and conditions of this Warrant,
as soon as practicable after the exercise of this Warrant in full or in part,
and in any event within two (2) business days thereafter, the Company at its
expense (including, without limitation, the payment by it of any applicable
issue taxes) will cause to be issued in
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the name of and delivered to the Warrant Holder, or as the Warrant Holder (upon
payment by the Warrant Holder of any applicable transfer taxes) may lawfully
direct, a certificate or certificates for the number of fully paid and
non-assessable shares of Common Stock to which the Warrant Holder shall be
entitled on such exercise, together with any other stock or other securities or
property (including cash, where applicable) to which the Warrant Holder is
entitled upon such exercise.
(b) This Warrant may not be exercised as to fractional
shares of Common Stock. In the event that the exercise of this Warrant, in
full or in part, would result in the issuance of any fractional share of Common
Stock, then the number of Warrant Shares for which this Warrant shall have been
exercised shall be rounded up or down to the nearest whole number of Warrant
Shares.
4. Covenants Of the Company.
(a) The Company shall use its reasonable best efforts to
insure that a Registration Statement under the Act covering the issuance of the
Warrant Shares and the resale or other disposition thereof by the Warrant
Holder is effective as provided in the Registration Rights Agreement.
(b) The Company shall take all necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, including, without limitation the notification of the National
Association of Securities Dealer, Inc., for the legal and valid issuance of
this Warrant and the Warrant Shares to the Warrant Holder under this Warrant.
(c) From the date hereof through the last date on which
this Warrant is exercisable, the Company shall take all steps reasonably
necessary and within its control to insure that the Common Stock remains listed
on the Exchange and shall not amend its Certificate of Incorporation or By-laws
so as to adversely affect in any material way any rights of the Warrant Holder
under this Warrant.
(d) The Company shall at all times reserve and keep
available, solely for issuance and delivery as Warrant Shares hereunder, such
shares of Common Stock as shall from time to time be issuable as Warrant
Shares.
(e) The Warrant Shares, when issued in accordance with
the terms hereof, will be duly authorized and, when issued in accordance with
the terms hereof, shall be validly issued, fully paid and non-assessable. The
Company has authorized and reserved for issuance to the Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to this
Warrant.
(f) With a view to making available to the Warrant Holder
the benefits of Rule 144 promulgated under the Act and any other rule or
regulation of
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the SEC that may at any time permit the Warrant Holder to sell securities of
the Company to the public without registration, the Company agrees to use its
reasonable best efforts to:
(i) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the Exchange
Act; and
(iii) furnish to any Warrant Holder forthwith upon request
a written statement by the Company that it has complied with the
reporting requirements of Rule 144 and of the Act and the Exchange
Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company
as may be reasonably requested to permit any such Warrant Holder to
take advantage of any rule or regulation of the SEC permitting the
selling of any such securities without registration.
5. Adjustment of Exercise Price and Number of Shares. The number
of and kind of securities purchasable upon exercise of this Warrant and the
Purchase Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If
the Company shall at any time after the date hereof but prior to the expiration
of this Warrant subdivide its outstanding securities as to which purchase
rights under this Warrant exist, by split-up, spin-off, or otherwise, or
combine its outstanding securities as to which purchase rights under this
Warrant exist, the number of Warrant Shares as to which this Warrant is
exercisable as of the date of such subdivision, split-up, spin-off or
combination shall forthwith be proportionately increased in the case of a
subdivision, or proportionately decreased in the case of a combination.
Appropriate adjustments shall also be made to the purchase price payable per
share, but the aggregate purchase price payable for the total number of Warrant
Shares purchasable under this Warrant as of such date shall remain the same.
(b) Stock Dividend. If at any time after the date hereof
the Company declares a dividend or other distribution on Common Stock payable
in Common Stock or other securities or rights convertible into or exchangeable
or exercisable for Common Stock ("Common Stock Equivalents") without payment of
any consideration by holders of Common Stock for the additional shares of
Common Stock or the Common Stock Equivalents (including the additional shares
of Common Stock issuable upon exercise or conversion thereof), then the number
of shares of Common Stock for which this Warrant may be exercised shall be
increased as of the record date (or the date of such dividend distribution if
no record date is set) for determining which holders of Common Stock shall be
entitled to receive such
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dividends, in proportion to the increase in the number of outstanding shares
(and shares of Common Stock issuable upon conversion of all such securities
convertible into Common Stock) of Common Stock as a result of such dividend,
and the Purchase Price shall be adjusted so that the aggregate amount payable
for the purchase of all the Warrant Shares issuable hereunder immediately after
the record date (or on the date of such distribution, if applicable) for such
dividend shall equal the aggregate amount so payable immediately before such
record date (or on the date of such distribution, if applicable).
(c) Other Distributions. If at any time after the date
hereof the Company distributes to holders of its Common Stock, other than as
part of its dissolution, liquidation or the winding up of its affairs, any
shares of its capital stock, any evidence of indebtedness or any of its assets
(other than cash, Common Stock or securities convertible into Common Stock),
then the Company shall decrease the per share Purchase Price of this Warrant by
an appropriate amount based upon the value distributed on each share of Common
Stock as determined in good faith by the Company's Board of Directors.
(d) Merger, etc. If at any time after the date hereof
there shall be a merger or consolidation of the Company with or into or a
transfer of all or substantially all of the assets of the Company to another
entity, then the Warrant Holder shall be entitled to receive upon such
transfer, merger or consolidation becoming effective, and upon payment of the
aggregate Purchase Price then in effect, the number of shares or other
securities or property of the Company or of the successor corporation resulting
from such merger or consolidation, which would have been received by the
Warrant Holder for the shares of stock subject to this Warrant had this Warrant
been exercised just prior to such transfer, merger or consolidation becoming
effective or to the applicable record date thereof, as the case may be.
(e) Reclassification, etc. If at any time after the date
hereof there shall be a reorganization or reclassification of the securities as
to which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, then the Warrant Holder
shall thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the Purchase Price then in
effect, the number of shares or other securities or property resulting from
such reorganization or reclassification, which would have been received by the
Warrant Holder for the shares of stock subject to this Warrant had this Warrant
at such time been exercised.
(f) Purchase Price Adjustment. In the event that the
Company issues or sells any Common Stock or securities which are convertible
into or exchangeable for its Common Stock, or any warrants or other rights to
subscribe for or to purchase, or any options for the purchase of, its Common
Stock or any such convertible or exchangeable securities (other than shares or
options issued or which
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may be issued pursuant to the Company's employee or director option plans or
shares issued upon exercise of options, warrants or rights outstanding on the
date of the Agreement and listed in the Exchange Act Reports) at an effective
purchase price per share which is less than the Purchase Price then in effect
or the fair market value (as hereinabove defined), whichever is lower, of the
Common Stock on the trading day next preceding such issue or sale, then in each
such case, the Purchase Price in effect immediately prior to such issue or sale
shall be reduced effective concurrently with such issue or sale to an amount
determined by multiplying the Purchase Price then in effect by a fraction, (x)
the numerator of which shall be the sum of (1) the number of shares of Common
Stock outstanding immediately prior to such issue or sale, including, without
duplication, those deemed to have been issued under any provision of the
Debentures and the Warrants, plus (2) the number of shares of Common Stock
which the aggregate consideration received by the Company for such additional
shares would purchase at such fair market value or Purchase Price, as the case
may be, then in effect; and (y) the denominator of which shall be the number of
shares of Common Stock of the Company outstanding immediately after such issue
or sale including, without duplication, those deemed to have been issued under
any provision of the Debentures and Warrants. For purposes of the foregoing
fraction, Common Stock outstanding shall include, without limitation, any
Equity Offerings (as defined in the Debentures) then outstanding, whether or
not they are exercisable or convertible when such fraction is to be determined.
In the event of any such issuance for a consideration which is less
than such fair market value and also less than the Purchase Price then in
effect, then there shall be only one such adjustment by reason of such
issuance, such adjustment to be that which results in the greatest reduction of
the Purchase Price computed as aforesaid. The number of shares which may be
purchased hereunder shall be increased proportionately to any reduction in
Purchase Price pursuant to this paragraph 5(f), so that after such adjustments
the aggregate Purchase Price payable hereunder for the increased number of
shares shall be the same as the aggregate Purchase Price in effect just prior
to such adjustments.
6. No Impairment. The Company will not, by amendment of 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 action as may be
necessary or appropriate in order to protect the rights of the Warrant Holder
against impairment. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any Warrant Shares above the
amount payable therefor on such exercise, and (b) will take all such action as
may be reasonably necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares on the
exercise of this Warrant.
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7. Notice of Adjustments; Notices. Whenever the Purchase Price
or number of Shares purchasable hereunder shall be adjusted pursuant to Section
5 hereof, the Company shall execute and deliver to the Warrant Holder a
certificate setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated and the Purchase Price and number of shares purchasable
hereunder after giving effect to such adjustment, and shall cause a copy of
such certificate to be mailed (by first class mail, postage prepaid) to the
Warrant Holder.
8. Rights As Stockholder. Prior to exercise of this Warrant, the
Warrant Holder shall not be entitled to any rights as a stockholder of the
Company with respect to the Warrant Shares, including (without limitation) the
right to vote such shares, receive dividends or other distributions thereon or
be notified of stockholder meetings. However, in the event of any taking by
the Company of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class
or any other securities or property, or to receive any other right, the Company
shall mail to each Warrant Holder, at least 10 days prior to the date specified
therein, a notice specifying the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right.
9. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
the Warrant and, in the case of any such loss, theft or destruction of the
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company, upon
receipt by it of a form of Warrant reflecting the terms of the new Warrant, at
its expense will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
10. Specific Enforcement; Consent to Jurisdiction.
(a) The Company and the Warrant Holder acknowledge
and agree that irreparable damage would occur in the event that any of the
provisions of this Warrant were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent or cure breaches
of the provisions of this Warrant and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which either
of them may be entitled by law or equity.
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(b) Each of the Company and the Warrant Holder (i)
hereby irrevocably submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York for the purposes of any
suit, action or proceeding arising out of or relating to this Warrant and (ii)
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Each of the Company
and the Warrant Holder consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
in this paragraph shall affect or limit any right to serve process in any other
manner permitted by law.
11. Entire Agreement; Amendments. This Warrant, the Exhibits
hereto and the provisions contained in the Agreement, the Registration Rights
Agreement or the Debentures and incorporated into this Warrant and the Warrant
Shares contain the entire understanding of the parties with respect to the
matters covered hereby and thereby and, except as specifically set forth herein
and therein, neither the Company nor the Warrant Holder makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived or amended other than by a written
instrument signed by the party against whom enforcement of any such amendment
or waiver is sought.
12. Restricted Securities. Sections 4.5, 5.1, 5.2 and 5.3 of the
Agreement are incorporated herein by reference and hereby made a part hereof.
13. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a)
upon hand delivery or receipt by telex (with correct answer back received),
telecopy or facsimile at the address or number designated below (if delivered
on a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received), or (b) on the second business day following the date of
mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
to the Company:
Oncor, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: President
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Fax: (000) 000-0000
with copies to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
to the Warrant Holder:
with copies to:
Promethean Investment Group, L.L.C.
00 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
Either party hereto may from time to time change its address for notices under
this Section 13 by giving at least 10 days prior written notice of such changed
address to the other party hereto.
14. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of the State of New York. The
headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
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15. Expiration. The right to exercise this Warrant shall expire
sixty (60) months after the date hereof.
[Signatures on next page.]
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Dated: ONCOR, INC.
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By:
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Title:
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[CORPORATE SEAL]
Attest:
By:
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Its:
NAME OF INVESTOR:
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By its: Director and
Authorized Signatory
By:
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Name:
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Title:
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FORM OF WARRANT EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO
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The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, _________
shares of Common Stock of Oncor, Inc., a Maryland corporation (the "Company"),
and herewith makes payment of $__________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to
_________________, whose address is __________________.
Dated:
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(Signature must conform to name of
holder as specified on the face of
the Warrant)
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(Address)
Tax Identification Number:
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FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received, the undersigned hereby sells, assigns, and transfers unto
_________________ the right represented by the within Warrant to purchase
_____________ shares of Common Stock of Oncor, Inc., a Maryland corporation, to
which the within Warrant relates, and appoints _________________ Attorney to
transfer such right on the books of Oncor, Inc., with full power of
substitution the premises.
Dated:
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(Signature must conform to name of
holder as specified on the face of
the Warrant)
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(Address)
Signed in the presence of:
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