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CAREERENGINE NETWORK, INC.
AND
▇▇▇▇▇ & COMPANY, INC.
FORM OF
PLACEMENT AGENT'S
WARRANT AGREEMENT
Dated as of June 28, 2000
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PLACEMENT AGENT'S WARRANT AGREEMENT dated as of June __, 2000 between
CAREERENGINE NETWORK, INC., a Delaware corporation (the "Company"), and ▇▇▇▇▇ &
COMPANY, INC. (hereinafter referred to variously as the "Holder" or the
"Placement Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company proposes to issue to the Placement Agent or its
designee(s) warrants ("Warrants") to purchase a number of placement agent units
(the "Placement Agent Units") of the Company equal to 10% of the aggregate
number of units (the "Units") sold in the Placement (as defined below). Each
Unit sold in the Placement consists of (i) a debenture (collectively the
"Debentures") in the principal amount of $50,000 bearing interest at an annual
rate of 12% and convertible into shares of the Company's common stock, $0.10 par
value per share (the "Common Stock") at an initial price of $2.00 per share,
12,500 Class A Redeemable Common Stock Purchase Warrants (the "Class A
Warrants"), and 12,500 Class B Redeemable Common Stock Purchase Warrants (the
"Class B Warrants" and collectively with the Class A Warrants, the "Stock
Purchase Warrants"). Each Class A Warrant entitles the holder to purchase one
share of Common Stock at an initial price of $4.00 per share and each Class B
Warrant entitles the holder to purchase one share of Common Stock at an initial
price of $6.00 per share. Each Placement Agent Unit consists of (i) at the
holder's option except as otherwise provided herein, either (A) a Debenture, or
(B) up to such number of fully paid and non-assessable shares of Common Stock
which is equal to the total number of securities issuable upon conversion of the
original principal amount of a Debenture issued in the Placement (whether or not
the Debentures have been converted and notwithstanding whether or not the
Debentures have been repaid) based upon an initial conversion price equal to
$2.00 per share,
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subject to such adjustments as found in the Debenture (collectively (the
"Debenture Shares"), (ii) 12,500 Class A Warrants and (iii) 12,500 Class B
Warrants; and
WHEREAS, the Placement Agent has agreed pursuant to the placement agent
agreement (the "Placement Agent Agreement") dated as of June __, 2000, by and
between the Placement Agent and the Company, to act as the exclusive placement
agent in connection with the proposed private offering of up to eighty (80)
Units (the "Placement") on a best efforts basis at an offering price of $50,000
per Unit; and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued at each Closing (as such term is defined in the Placement Agent
Agreement) by the Company to the Placement Agent in consideration for, and as
part of the Placement Agent's compensation in connection with, the Placement
Agent acting as the exclusive placement agent pursuant to the Placement Agent
Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the
Placement Agent to the Company of Ten dollars ($10.00), the agreements herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Grant. The Holder is hereby granted the right to purchase, at any
time from the last Closing Date (as such term is defined in the Placement Agent
Agreement) until 5:00 p.m. New York time on the date five years from such
Closing Date, a number of Placement Agent Units equal to 10% of the aggregate
number of Units sold in the Placement at an exercise price of $60,000 per
Placement Agent Unit subject to the terms and conditions of this Agreement.
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2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
substantially in the form set forth in Exhibit A, attached hereto and made a
part hereof, with such appropriate insertions, omissions, substitutions, and
other variations as required or permitted by this Agreement.
3. Exercise of Warrant.
3.1 Method of Exercise for Cash. The Warrants are exercisable for cash
at the exercise price per Placement Agent Unit as set forth in Section 6 hereof
payable by certified or official bank check in New York Clearing House funds.
Upon surrender of a Warrant Certificate, together with the annexed Form of
Election to Purchase pursuant to this Section 3.1 (the "Cash Election Form")
duly executed and payment of the Exercise Price (as hereinafter defined) for
Placement Agent Units purchased, at the Company's principal offices in New York
(currently located ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10048)
the registered holder ("Holder" or "Holders") of a Warrant Certificate shall be
entitled to receive (i) at the option of the Holder (the "Exercise Option"),
either (A) a Debenture in the principal amount of $50,000 times the number of
Warrants exercised (the "Principal Amount"), or (B) a certificate or
certificates for such number of Debenture Shares as shall equal the Principal
Amount divided by the then existing conversion price of the Debentures; and (ii)
the Stock Purchase Warrants so purchased. The Holder shall exercise the Exercise
Option by checking the appropriate box in the Cash Election Form. The purchase
rights represented by each Warrant Certificate are exercisable at the option of
the Holder thereof, in whole or in part (but not as to fractional shares of the
Common Stock underlying the Warrants). Warrants may be exercised to purchase all
or part of the Placement Agent Units represented thereby. In the case of the
purchase of less than all the Placement Agent Units purchasable under any
Warrant Certificate,
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the Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
unexercised balance of the Placement Agent Units purchasable thereunder.
3.2 Exercise by Surrender of Warrant. In lieu of any cash payment
required to exercise the Warrants, the Holder(s) shall have the right at any
time and from time to time to exercise the Warrants in full or in part by
surrendering the Warrant Certificate , together with the annexed Form of
Election to Purchase pursuant to this Section 3.2 in the manner specified in
Section 3.1 in exchange for the number of Placement Agent Units equal to the
product of: (x) the number of Placement Agent Units as to which the Warrants are
being exercised, multiplied by (y) a fraction, the numerator of which is the
Market Price (as defined below) of the Placement Agent Units less the Exercise
Price of the Placement Agent Units and the denominator of which is the Market
Price per Placement Agent Unit. For the purposes of this Section 3.2, Market
Price shall be calculated on the date on which the form of election attached
hereto is deemed to have been sent to the Company pursuant to Section 13 hereof
("Notice Date"). Anything to the contrary not withstanding, the Placement Agent
Units purchased pursuant to this Section 3.2 shall consist solely of Debenture
Shares and Stock Purchase Warrants and the Holder shall have no rights to
acquire any Debentures.
3.3 Definition of Market Price.
(a) As used herein, the phrase "Market Price" of the Placement Agent
Units, the Common Stock or the Stock Purchase Warrants at any date shall be
deemed to be, the average of the daily closing prices for the thirty (30)
consecutive trading days commencing forty five (45) trading days before such
date. The closing price for each day shall be the last reported sales
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price regular way or, in case no such reported sale takes place on such day, the
closing bid price regular way, in either case as officially reported by the
principal securities exchange on which the Units, the Common Stock or the Stock
Purchase Warrants, as the case may be, are listed or admitted to trading or by
the Nasdaq National Market ("NNM") or the Nasdaq Small Cap Market ("NSC"), or,
if the Units, the Common Stock or the Stock Purchase Warrants are not listed or
admitted to trading on any national securities exchange or quoted on NNM or NSC,
the average closing bid price as furnished by the National Association of
Securities Dealers, Inc. ("NASD") through the National Association of Securities
Dealers Automated Quotation System ("Nasdaq"), or similar organization if Nasdaq
is no longer reporting such information.
(b) If the Market Price of the Placement Agent Units cannot be
determined pursuant to Section 3.3(a), the Market Price of the Placement Agent
Units shall be deemed to be the sum of the Market Price of the Common Stock
which is equal to the total number of securities issuable upon conversion of the
original principal amount of a Debenture and the Market Price of the Stock
Purchase Warrants.
(c) If the Market Price of the Common Stock cannot be determined
pursuant to Section 3.3(a) above, the Market Price of the Common Stock shall be
determined in good faith (using customary valuation methods) by resolution of
the members of the Board of Directors of the Company, based on the best
information available to it.
(d) If the Market Price of the Stock Purchase Warrants cannot be
determined pursuant to Section 3.3(a) above, the Market Price of the Stock
Purchase Warrants shall equal the difference between the Market Price of the
Common Stock and the Exercise Price of the Stock Purchase Warrant.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of Debentures or certificates for the Debenture Shares, as the case may
be, the Stock Purchase
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Warrants, or other securities, property or rights underlying such Warrants
(collectively the "Underlying Securities") shall be made forthwith (and in any
event such issuance shall be made within five (5) business days thereafter)
without charge to the Holder thereof including, without limitation, any tax
which may be payable in respect of the issuance thereof, and such certificates
shall (subject to the provisions of Sections 5 and 7 hereof) be issued in the
name of, or in such names as may be directed by, the Holder thereof; provided,
however, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
such certificates in a name other than that of the Holder and the Company shall
not be required to issue or deliver such certificates unless or until the person
or persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
The Warrant Certificates and the certificates representing the
Underlying Securities shall be executed on behalf of the Company by the manual
or facsimile signature of the then Chairman or Vice Chairman of the Board of
Directors or President or Vice President of the Company under its corporate seal
reproduced thereon, attested to by the manual or facsimile signature of the then
Secretary or Assistant Secretary of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
5. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
and the securities issuable upon exercise thereof, are being acquired as an
investment and not with a view to the distribution thereof.
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6. Exercise Price; Adjustment of Debenture Conversion and Stock
Purchase Warrant Exercise Prices.
6.1 Exercise Price. The exercise price of each Warrant shall be $60,000
per Placement Agent Unit.
6.2 Adjustment of Debenture Conversion and Stock Purchase Warrant
Exercise Prices . The conversion price of the Debentures and the exercise prices
of the Stock Purchase Warrants underlying the Placement Agent Units shall be
adjusted in accordance with the "anti-dilution" provisions set forth in such
securities commencing on the date hereof.
7. Registration Rights.
7.1 Registration Under the Securities Act of 1933. The Warrants and the
Underlying Securities have not been registered under the Securities Act of 1933
(the "Act"). The Warrants and upon exercise, in part or in whole, of the
Warrants, certificates representing the Underlying Securities shall bear the
following legend:
The securities represented by this certificate have not been registered under
the Securities Act of 1933 (the "Act"), and may not be offered, sold, pledged
hypothecated, assigned or transferred except pursuant to (i) an effective
registration statement under the Act, (ii) to the extent applicable, Rule 144
under the Act (or any similar rule under such Act relating to the disposition of
securities), or (iii) an opinion of counsel, if such opinion shall be reasonably
satisfactory to counsel to the issuer, that an exemption from registration under
such Act is available.
7.2 Piggyback Registration. If, at any time during the five-year period
commencing on the date the Warrants are issued, the Company proposes to register
any of its securities under the Act (other than pursuant to Form ▇-▇, ▇-▇ or a
comparable registration statement) the Company will give written notice by
registered mail, at least thirty (30) days prior to the filing of each such
registration statement, to the Placement Agent and to all other Holders of the
Underlying Securities of its intention to do so. If the Placement Agent or other
Holders of
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the Underlying Securities notify the Company within twenty (20) days after
receipt of any such notice of its or their desire to include any such securities
in such proposed registration statement, the Company shall afford the Placement
Agent and such Holders of the Underlying Securities the opportunity to have any
such Underlying Securities registered under such registration statement.
Notwithstanding the provisions of this Section 7.2, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 7.2 (irrespective of whether a written request for inclusion of any
such securities shall have been made) 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.
7.3 Demand Registration.
(a) At any time during the five-year period commencing on the date the
Warrants are issued, if the Company is subject to the reporting requirements
under Section 13 or Section 15(g) of the Securities and Exchange Act of 1934
(the "Exchange Act"), the Holders of the Underlying Securities representing a
"Majority" (as hereinafter defined) of such securities (assuming the exercise of
all of the Warrants) shall have the right (which right is in addition to the
registration rights under Section 7.2 hereof), exercisable by written notice to
the Company, to have the Company prepare and file with the Securities and
Exchange Commission (the "Commission"), on one occasion, a registration
statement and such other documents, including a prospectus, as may be necessary
in the opinion of both counsel for the Company and counsel for the underwriter,
if any, and the Holders, in order to comply with the provisions of the Act, so
as to permit a public offering and sale of their respective Underlying
Securities for nine (9) consecutive months by such Holders and any other Holders
of the Underlying Securities who
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notify the Company within ten (10) days after receiving notice from the Company
of such request.
(b) The Company covenants and agrees to give written notice of any
registration request under this Section 7.3 by any Holder or Holders to all
other registered Holders of the Underlying Securities within ten (10) days from
the date of the receipt of any such registration request.
7.4 Covenants With Respect to Registration. In connection with any
registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees
as follows:
(a) The Company shall use its best efforts to file a registration
statement within sixty (60) days of receipt of any demand therefor, shall use
its best efforts to have any registration statement declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell
Underlying Securities such number of prospectuses as shall reasonably be
requested.
(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions or other charges
of any broker-dealer acting on behalf of Holder(s)), fees and expenses in
connection with all registration statements filed pursuant to Sections 7.2 and
7.3 hereof including, without limitation, the Company's legal and accounting
fees, printing expenses, blue sky fees and expenses.
(c) The Company will use its best efforts to qualify or register the
Underlying Securities included in a registration statement for offering and sale
under the securities or blue sky laws of such states as reasonably are requested
by the Holder(s), provided that the Company shall not be obligated to execute or
file any general consent to service of process or to qualify as a foreign
corporation to do business under the laws of any such jurisdiction.
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(d) The Company shall indemnify the Holder(s) of the Underlying
Securities to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of them may
become subject under the Act, the Exchange Act or otherwise, arising from such
registration statement but only to the same extent and with the same effect as
the provisions contained in Section 6 of the Placement Agent Agreement pursuant
to which the Company has agreed to indemnify the Placement Agent.
(e) The Holder(s) of the Underlying Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
in writing furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such registration statement to the same
extent and with the same effect as the provisions contained in Section 6 of the
Placement Agent Agreement pursuant to which the Placement Agent has agreed to
indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to exercise their Warrants prior to the initial filing of any
registration statement or the effectiveness thereof.
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(g) For purposes of this Agreement, the term "Majority" in reference to
the Holders of Underlying Securities shall mean in excess of fifty percent (50%)
of then outstanding Underlying Securities that (i) are not held by the Company,
an affiliate, officer, creditor, employee or agent thereof or any of their
respective affiliates, members of their family, persons acting as nominees or in
conjunction therewith and (ii) have not been resold to the public pursuant to a
registration statement filed with the Commission under the Act.
8. Merger or Consolidation or Sale .
(a) In case of any consolidation of the Company with, or merger of the
Company with, or merger of the Company into, another corporation (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding Common Stock), the corporation formed by such consolidation
or merger shall execute and deliver to the Holder a supplemental warrant
agreement providing that the holder of each Warrant then outstanding or to be
outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of Underlying
Securities for which such Warrant might have been exercised immediately prior to
such consolidation, merger, sale or transfer. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
(b) In the event of (i) the sale by the Company of all or substantially
all of its assets, or (ii) the engagement by the Company in a "Rule 13e-3
transaction" as defined in paragraph (a)(3) of Rule 13e-3 of the General Rules
and Regulations under the Exchange Act, or (iii) a distribution to the Company's
stockholders of any cash, assets, property, rights, evidences of indebtedness,
securities or any other thing of value, or any combination thereof, the Holders
of
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the unexercised Warrants shall receive notice of such sale, transaction or
distribution twenty (20) days prior to the date of such sale or the record date
for such transaction or distribution, as applicable, and, if they exercise such
Warrants prior to such date, they shall be entitled, in addition to the shares
of Common Stock issuable upon the exercise thereof, to receive such property,
cash, assets, rights, evidence of indebtedness, securities or any other thing of
value, or any combination thereof, on the payment date of such sale, transaction
or distribution.
9. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Placement Agent Units in such denominations
as shall be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up or down, as
the case may be, to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
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11. Reservation of Securities. The Company shall at all times reserve
and keep available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon the exercise of the Warrants, such number of shares of
Common Stock or other securities, properties or rights as shall be issuable upon
the exercise thereof. The Company covenants and agrees that, upon exercise of
the Warrants and payment of the Exercise Price therefor, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive rights of
any stockholder.
12. Notices to Warrant Holders. Nothing contained in this Agreement
shall be construed as conferring upon the Holders the right to vote or to
consent or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company. If, however, at any time
prior to the expiration of the Warrants and their exercise, any of the following
events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor; or
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(c) a dissolution, liquidation or winding up of the Company (other than
in connection with a consolidation or merger) or a sale of all or substantially
all of its property, assets and business as an entirety shall be proposed; then,
in any one or more of said events, the Company shall give written notice of such
event at least fifteen (15) days prior to the date fixed as a record date or the
date of closing the transfer books for the determination of the stockholders
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
13. Notices.
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, return receipt requested:
(a) If to the registered Holder of the Warrants, to the address of such
Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 hereof or
to such other address as the Company may designate by notice to the Holders.
14. Supplements and Amendments. The Company and the Placement Agent may
from time to time supplement or amend this Agreement without the approval of any
Holders
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of Warrant Certificates (other than the Placement Agent) in order to cure any
ambiguity, to correct or supplement any provision contained herein which may be
defective or inconsistent with any provisions herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Placement Agent may deem necessary or desirable and which the Company
and the Placement Agent deem shall not adversely affect the interests of the
Holders of Warrant Certificates. To otherwise amend this Agreement, the prior
written consent of the holders of at least a majority of the Underlying
Securities shall be required.
15. Successors. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate at the close of
business on June 28, 2007. Notwithstanding the foregoing, the indemnification
provisions of Section 7 shall survive such termination until the close of
business on June 28, 2013.
17. Governing Law; Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company, the Placement Agent and the Holders hereby agree that any
action, proceeding or claim against it arising out of, or relating in any way
to, this Agreement shall be brought and enforced in the courts of the State of
New York or of the United States of America for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company, the Placement Agent and the Holders hereby
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irrevocably waive any objection to such exclusive jurisdiction or inconvenient
forum. Any such process or summons to be served upon any of the Company, the
Placement Agent and the Holders (at the option of the party bringing such
action, proceeding or claim) may be served by transmitting a copy thereof, by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address as set forth in Section 13 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the party
so served in any action, proceeding or claim. The Company, the Placement Agent
and the Holders agree that the prevailing party(ies) in any such action or
proceeding shall be entitled to recover from the other party(ies) all of
its/their reasonable legal costs and expenses relating to such action or
proceeding and/or incurred in connection with the preparation therefor.
18. Entire Agreement; Modification. This Agreement (including the
Placement Agent Agreement to the extent portions thereof are referred to herein)
contain the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought.
19. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Placement Agent and any
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other registered Holder(s) of the Warrant Certificates or Underlying Securities
any legal or equitable right, remedy or claim under this Agreement; and this
Agreement shall be for the sole and exclusive benefit of the Company and the
Placement Agent and any other Holder(s) of the Warrant Certificates or
Underlying Securities.
22. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
[SEAL]
CAREERENGINE NETWORK, INC.
By: ________________________________
Name:
Title:
Attest:
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Secretary
▇▇▇▇▇ & COMPANY, INC.
By: ________________________________
Name:
Title:
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THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "ACT"), OR ANY STATE SECURITIES STATUTE AND MAY NOT BE OFFERED SOLD,
PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT PURSUANT TO: (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF THE OPINION SHALL
BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, 2005
No. W ______ ____ Warrants
FORM OF WARRANT CERTIFICATE
This Warrant Certificate certifies that ▇▇▇▇▇ & Company, Inc., or
registered assigns, is the registered holder of _______ Warrants to purchase,
at any time from June 28, 2000 until 5:00 p.m. New York time on June 28, 2005
("Expiration Date"), up to four (4) placement agent units (the "Placement Agent
Units") of CareerEngine Network, Inc., a Delaware corporation (the "Company"),
at the exercise price (the "Exercise Price"), of $60,000 per Placement Agent
Unit upon surrender of this Warrant Certificate and payment of the Exercise
Price at an office or agency of the Company, or by surrender of this Warrant
Certificate in lieu of cash payment, but subject to the conditions set forth
herein and in the Placement Agent's Warrant Agreement dated as of June 28, 2000,
between the Company and ▇▇▇▇▇ & Company, Inc. (the "Warrant Agreement"). Payment
of the Exercise Price shall be made by certified or official bank check in New
York Clearing House funds payable to the order of the Company or by surrender of
this Warrant Certificate. Each Placement Agent Unit shall consist of (i) except
as
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otherwise provided in the Warrant Agreement, such number of fully paid and
non-assesable shares of common stock, $0.10 par value per share (the "Common
Stock") which is equal to a total number of securities issuable upon conversion
of $50,000 in principal amount of the debenture (the "Debentures") issued in the
Placement (whether or not the Debentures have been converted and notwithstanding
whether or not the Debentures have been repaid) based upon an initial conversion
price equal to $2.00 per share, subject to such adjustments as found in the
Debenture, or a Debenture in the principal amount of $50,000; (ii) 12,500 Class
A Warrants; and (iii) 12,500 Class B Warrants. Each Class A Warrant entitles the
holder to purchase one share of Common Stock at an initial price of $4.00 per
share and each Class B Warrant entitles the holder to purchase one share of
Common Stock at an initial price of $6.00 per share.
No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the
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Warrant Agreement, without any charge except for any tax or other governmental
charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of ____, 2000
CAREERENGINE NETWORK, INC.
[SEAL] By: ________________________________
Name:
Title:
Attest:
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Secretary
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[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase Placement Agent Units and
herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of CareerEngine
Network, Inc. (the "Company") in the amount of $ , all in accordance with the
terms of Section 3.1 of the Placement Agent's Warrant Agreement by and between
the Company and ▇▇▇▇▇ & Company, Inc.
The undersigned elects to purchase [check box]
[_] Debenture in the principal amount $ _______*.
[_] ________ ** shares of Common Stock
The undersigned requests that certificates for such securities be
registered in the name of whose address is _____________________ and that such
certificates be delivered to whose address is ________________.
Dated:_________________
Signature __________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
_____________________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
--------
* $50,000 times the number Placement Agent Units purchased.
** 50,000 times the number Placement Agent Units purchased divided by the
conversion price of the Debenture (initially $2.00) as adjusted as of the time
of exercise of the right, represented by this Warrant Certificate. The adjusted
exercise price can be obtained from the Company.
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[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.2]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase Placement Agent Units all
in accordance with the terms of Section 3.2 of the Placement Agent's Warrant
Agreement between CareerEngine Network, Inc. and ▇▇▇▇▇ & Company, Inc. The
undersigned requests that certificates for such securities be registered in the
name of ___________________ whose address is and that such certificates be
delivered to ________________________ whose address is.
Dated: __________________
Signature ___________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
_____________________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
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[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _______________ hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _____ Attorney, to transfer
the within Warrant Certificate on the books of the within-named Company, with
full power of substitution.
Dated: ______________
Signature ___________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
_____________________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
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