EXHIBIT 4.1
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HETHIS WARRANT
AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NOTIFY TECHNOLOGY CORPORATION
WARRANT TO PURCHASE ___________ SHARES
(SUBJECT TO ADJUSTMENT)
OF COMMON STOCK
(Void after ______________, 2008)
No: _______________
This certifies that for value ___________________________, or
registered assigns ("Holder"), is entitled, subject to the terms set forth
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below, at any time from and after ____________, 2001 (the "Original Issuance
Date") and before 5:00 p.m., Eastern Time, on ________________, 2008, to
purchase from Notify Technology Corporation, a California corporation (the
"Company"), _____________ shares (subject to adjustment as described herein), of
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the Common Stock, par value $0.001 per share (which authorized class of shares
is herein called the "Common Stock") of the Company, as constituted on the
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Original Issuance Date, upon surrender hereof, at the principal office of the
Company referred to below, with a duly executed subscription form in the form
attached hereto as Exhibit A and simultaneous payment therefor in lawful money
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of the United States or otherwise as hereinafter provided, at the price per
share equal to $______ per share, as may be adjusted as provided herein (the
"Purchase Price"). The number and character of such shares of Common Stock are
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subject to further adjustment as provided below, and the term "Common Stock"
shall include, unless the context otherwise requires, the stock and other
securities and property at the time receivable upon the exercise of this
Warrant. The term "Warrants" as used herein shall include this Warrant and any
warrants delivered in substitution or exchange therefor as provided herein. The
term "Series A Warrants" shall mean those warrants, including this Warrant,
issued concurrently with the Series A Preferred (defined below).
1. Exercise.
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A. This Warrant may be exercised at any time or from time to time
from and after the Original Issuance Date and before 5:00 p.m., Eastern Time, on
___________, 2008, on any business day, for the full number of shares of Common
Stock called for hereby, by surrendering it at the principal office of the
Company, at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
with the subscription form duly executed, together with payment in an amount
equal to (a) the number of shares of Common Stock called for on the face of this
Warrant, as adjusted in accordance with the preceding paragraph of this Warrant
(without giving effect to any further adjustment herein) multiplied (b) by the
Purchase Price. Payment of this amount may be made at Holder's choosing either
(1) by payment in cash or by corporate check, payable to the order of the
Company, or (2) by the Company not issuing that number of shares of Common Stock
subject to this Warrant having a Fair Market Value (as defined below) on the
date of exercise equal to such sum. This Warrant may be exercised for less than
the full number of shares of Common Stock at the time called for hereby, except
that the number of shares receivable upon the exercise of this Warrant as a
whole, and the sum payable upon the exercise of this Warrant as a whole, shall
be proportionately reduced. Upon a partial exercise of this Warrant in
accordance with the terms hereof, this Warrant shall be surrendered, and a new
Warrant of the same tenor and for the purchase of the number of such shares not
purchased upon such exercise shall be issued by the Company to Holder without
any charge therefor. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be treated for all purposes as
the holder of such shares of record as of the close of business on such date.
Within two business days after such date, the Company shall issue and deliver to
the person or persons entitled to receive the same a certificate or certificates
for the number of full shares of Common Stock issuable upon such exercise,
together with cash, in lieu of any fraction of a share, equal to such fraction
of the then Fair Market Value on the date of exercise of one full share of
Common Stock.
B. "Fair Market Value" shall mean, as of any date, (i) if shares
of the Common Stock are listed on a national securities exchange, the average of
the closing prices as reported for composite transactions during the ten (10)
consecutive trading days preceding the trading day immediately prior to such
date or, if no sale occurred on a trading day, then the mean between the closing
bid and asked prices on such exchange on such trading day; (ii) if shares of the
Common Stock are not so listed but are traded on the Nasdaq SmallCap Market
("NSCM"), the average of the closing prices as reported on the NSCM during the
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ten (10) consecutive trading days preceding the trading day immediately prior to
such date or, if no sale occurred on a trading day, then the mean between the
highest bid and lowest asked prices as of the close of business on such trading
day, as reported on the NSCM; or if applicable, the Nasdaq National Market
("NNM"), or if not then included for quotation on the NNM or NSCM, the average
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of the highest reported bid and lowest reported asked prices as reported by the
OTC Bulletin Board or the National Quotations Bureau, as the case may be, or
(iii) if the shares of the Common Stock are not then publicly traded, the fair
market price, not less than book value thereof, of the Common Stock as
determined in good faith by the independent members of the Board of Directors of
the Company (the "Board").
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2. Shares Fully Paid; Payment of Taxes. All shares of Common Stock issued
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upon the exercise of a Warrant shall be validly issued, fully paid and non-
assessable, and the Company shall pay all taxes and other governmental charges
(other than income taxes to the holder) that may be imposed in respect of the
issue or delivery thereof.
3. Transfer and Exchange. This Warrant and all rights hereunder are
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transferable, in whole or in part, on the books of the Company maintained for
such purpose at its principal office referred to above by Holder in person or by
duly authorized attorney, upon surrender of this Warrant together with a
completed and executed assignment form in the form attached as Exhibit B,
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payment of any necessary transfer tax or other governmental charge imposed upon
such transfer and an opinion of counsel reasonably acceptable the Company
stating that such transfer is exempt from the registration requirements of the
Securities Act of 1933, as amended. Upon any partial transfer, the Company will
issue and deliver to Holder a new Warrant or Warrants with respect to the shares
of Common Stock not so transferred. Each taker and holder of this Warrant, by
taking or holding the same, consents and agrees that this Warrant when endorsed
in blank shall be deemed negotiable and that when this Warrant shall have been
so endorsed, the holder hereof may be treated by the Company and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered Holder hereof as the owner for all purposes.
This Warrant is exchangeable at such office for Warrants for the same
aggregate number of shares of Common Stock, each new Warrant to represent the
right to purchase such number of shares as the Holder shall designate at the
time of such exchange.
4. Anti-Dilution Provisions.
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A. Adjustment for Dividends in Other Stock and Property
Reclassifications. In case at any time or from time to time the holders of the
Common Stock (or any shares of stock or other securities at the time receivable
upon the exercise of this Warrant) shall have received, or, on or after the
record date fixed for the determination of eligible shareholders, shall have
become entitled to receive, without payment therefor,
(1) other or additional stock or other securities or property
(other than cash) by way of dividend,
(2) any cash or other property paid or payable out of any source
other than retained earnings (determined in accordance with generally accepted
accounting principles), or
(3) other or additional stock or other securities or property
(including cash) by way of stock-split, spin-off, reclassification, combination
of shares or similar corporate rearrangement, (other than (x) additional shares
of Common Stock or any other stock or securities into which such Common Stock
shall have been changed, (y) any other stock or securities convertible into or
exchangeable for such Common Stock or such other stock or securities or (z) any
Stock Purchase Rights, issued as a stock dividend or stock-split, adjustments
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in respect of which shall be covered by the terms of Section 4.C, 4.D, 4.E or 6,
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then and in each such case Holder, upon the exercise hereof as provided in
Section 1, shall be entitled to receive the amount of stock and other securities
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and property (including cash in the cases referred to in clauses (2) and (3)
above) which such Holder would hold on the date of such exercise if on the
Original Issuance Date Holder had been the holder of record of the number of
shares of Common Stock called for on the face of this Warrant, as adjusted in
accordance with the first paragraph of this Warrant, and had thereafter, during
the period from the Original Issuance Date to and including the date of such
exercise, retained such shares and/or all other or additional stock and other
securities and property (including cash in the cases referred to in clause (2)
and (3) above) receivable by it as aforesaid during such period, giving effect
to all adjustments called for during such period by Section 4.A and Section 4.B.
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B. Adjustment for Reorganization, Consolidation and Merger. In case
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of any reorganization of the Company (or any other corporation the stock or
other securities of which are at the time receivable on the exercise of this
Warrant) after the Original Issuance Date, or in case, after such date, the
Company (or any such other corporation) shall consolidate with or merge into
another corporation or entity or convey all or substantially all its assets to
another corporation or entity, then and in each such case Holder, upon the
exercise hereof as provided in Section 1 at any time after the consummation of
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such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the stock or other securities and property receivable upon
the exercise of this Warrant prior to such consummation, the stock or other
securities or property to which such Holder would have been entitled upon such
consummation if Holder had exercised this Warrant immediately prior thereto, all
subject to further adjustment as provided in Sections 4.A, 4.B, 4.C, 4.D, 4.E
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and 4.H; in each such case, the terms of this Warrant shall be applicable to the
shares of stock or other securities or property receivable upon the exercise of
this Warrant after such consummation.
C. Sale of Shares Below Fair Market Value and Above Purchase Price.
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(1) If at any time or from time to time on or after the Original
Issuance Date, the Company issues or sells, or is deemed by the express
provisions of this Section 4.C to have issued or sold, Additional Shares of
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Common Stock (as hereinafter defined), other than as a dividend or other
distribution on any class of stock as provided in Section 4.D and other than
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upon a subdivision or combination of shares of Common Stock as provided in
Section 4.E, for an Effective Price (as hereinafter defined) less than the Fair
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Market Value but greater than the then existing Purchase Price, then and in
each such case
(A) the Holder of this Warrant shall be entitled to receive, in lieu
of the number of shares theretofore receivable upon the exercise of this
Warrant, a number of shares of Common Stock determined by (i) dividing the
original Purchase Price by the Purchase Price as adjusted as a result of such
issue or sale (as provided below), and (ii) multiplying the resulting quotient
by the number of shares of Common Stock called for on the face of this Warrant,
as adjusted in accordance with the first paragraph of this Warrant; and
(B) the then existing Purchase Price shall be reduced, as of the
opening of business on the date of such issue or sale, as follows: the Purchase
Price shall be reduced to a price determined by multiplying that Purchase Price
by a fraction (i) the numerator
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of which shall be (a) the number of shares of Common Stock outstanding at the
close of business on the day next preceding the date of such issue or sale, plus
(b) the number of shares of Common Stock which the aggregate consideration
received (or by the express provisions hereof deemed to have been received) by
the Company for the total number of Additional Shares of Common Stock so issued
would purchase at such Fair Market Value, plus (c) the number of shares of
Common Stock into which all outstanding shares of Series A Preferred Stock, par
value $0.001 per share, of the Company (the "Series A Preferred") are
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convertible at the close of business on the date next preceding the date of such
issue or sale, plus (d) the number of shares of Common Stock for which all
Series A Warrants and all other options and warrants outstanding as of the
Original Issuance Date that are exercisable for shares of Common Stock are
exercisable at the Purchase Price in effect at the close of business on the date
next preceding the date of such issue or sale, plus (e) the number of shares of
Common Stock underlying all Other Securities (as hereinafter defined) at the
close of business on the date next preceding the date of such issue or sale, and
(ii) the denominator of which shall be (a) the number of shares of Common Stock
outstanding at the close of business on the date of such issue or sale after
giving effect to such issue of Additional Shares of Common Stock, plus (b) the
number of shares of Common Stock into which all outstanding shares of Series A
Preferred of the Company are convertible at the close of business on the date
next preceding the date of such issue or sale, plus (c) the number of shares of
Common Stock for which all Series A Warrants and all other options and warrants
outstanding on the Original Issuance Date that are exercisable for shares of
Common Stock are exercisable at the Purchase Price in effect at the close of
business on the date next preceding the date of such issue or sale, plus (d) the
number of shares of Common Stock underlying the Other Securities at the close of
business on the date next preceding the date of such issue or sale.
(2) For the purpose of making any adjustment required under this
Section 4.C, the consideration received by the Company for any issue or sale of
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securities shall (i) to the extent it consists of cash be computed at the amount
of cash received by the Company, (ii) to the extent it consists of property
other than cash, be computed at the fair value of that property as determined in
good faith by the Board, (iii) if Additional Shares of Common Stock, Convertible
Securities (as hereinafter defined) or rights or options to purchase either
Additional Shares of Common Stock or Convertible Securities are issued or sold
together with other stock or securities or other assets of the Company for a
consideration which covers both, be computed as the portion of the consideration
so received that may be reasonably determined in good faith by the Board to be
allocable to such Additional Shares of Common Stock, Convertible Securities or
rights or options, and (iv) be computed after reduction for all expenses payable
by the Company in connection with such issue or sale.
(3) For the purpose of the adjustment required under this Section
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4.C, if the Company issues or sells any rights or options for the purchase of,
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or stock or other securities convertible into or exchangeable for, Additional
Shares of Common Stock (such convertible or exchangeable stock or securities
being hereinafter referred to as "Convertible Securities") and if the Effective
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Price of such Additional Shares of Common Stock is less than either the Fair
Market Value or the Purchase Price then in effect, then in each case the Company
shall be deemed to have issued at the time of the issuance of such rights or
options or Convertible Securities the maximum number of Additional Shares of
Common Stock issuable upon exercise, conversion or exchange thereof and to have
received as consideration for the
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issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights
or options or Convertible Securities, plus, in the case of such rights or
options, the minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion or exchange thereof. No further
adjustment of the Purchase Price, adjusted upon the issuance of such rights,
options or Convertible Securities, shall be made as a result of the actual
issuance of Additional Shares of Common Stock on the exercise of any such rights
or options or the conversion or exchange of any such Convertible Securities. If
any such rights or options or the conversion or exchange privilege represented
by any such Convertible Securities shall expire without having been exercised,
the Purchase Price adjusted upon the issuance of such rights, options or
Convertible Securities shall be readjusted to the Purchase Price which would
have been in effect had an adjustment been made on the basis that the only
Additional Shares of Common Stock so issued were the Additional Shares of Common
Stock, if any, actually issued or sold on the exercise of such rights or options
or rights of conversion or exchange of such Convertible Securities, and such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of all
such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities actually converted or
exchanged, plus the consideration, if any, actually received by the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) on the conversion or exchange of such Convertible
Securities.
(4) For the purpose of the adjustment required under this Section
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4.C, if the Company issues or sells, or is deemed by the express provisions of
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this subsection to have issued or sold, any rights or options for the purchase
of Convertible Securities and if the Effective Price of the Additional Shares of
Common Stock underlying such Convertible Securities is less than either the Fair
Market Value or the Purchase Price then in effect, then in each such case the
Company shall be deemed to have issued at the time of the issuance of such
rights or options the maximum number of Additional Shares of Common Stock
issuable upon conversion or exchange of the total amount of Convertible
Securities covered by such rights or options and to have received as
consideration for the issuance of such Additional Shares of Common Stock an
amount equal to the amount of consideration, if any, received by the Company for
the issuance of such rights or options, plus the minimum amounts of
consideration, if any, payable to the Company upon the exercise of such rights
or options and plus the minimum amount of consideration, if any, payable to the
Company (other than by cancellation of liabilities or obligations evidenced by
such Convertible Securities) upon the conversion or exchange of such Convertible
Securities. No further adjustment of the Purchase Price, adjusted upon the
issuance of such rights or options, shall be made as a result of the actual
issuance of the Convertible Securities upon the exercise of such rights or
options or upon the actual issuance of Additional Shares of Common Stock upon
the conversion or exchange of such Convertible Securities. The provisions of
paragraph (3) above for the readjustment of the Purchase Price upon the
expiration of rights or options or the rights of conversion or exchange of
Convertible Securities shall apply mutatis mutandis to the rights, options and
Convertible Securities referred to in this paragraph (4).
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(5) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company on or after the Original Issuance Date,
whether or not subsequently reacquired or retired by the Company other than (i)
shares of Common Stock issued upon conversion of the Series A Preferred in
accordance with the Company's Series A Designation (as defined below), (ii)
shares of Common Stock issuable upon exercise of this Warrant and the Series A
Warrants, (iii) shares of Common Stock issuable upon exercise of warrants,
options or other convertible securities to purchase Common Stock issued and
outstanding as of the Original Issuance Date (provided that the exercise price
and other terms of such warrants, options or other convertible securities are
not modified after the Original Issuance Date to adjust the exercise price),
(iv) shares of Common Stock issued to individuals who are or were employees or
directors of or consultants and advisors to the Company or any subsidiary
pursuant to stock purchases or stock option plans or other arrangements approved
by the Board or pursuant to guidelines approved by the Board, or upon exercise
of options, stock purchase rights or warrants granted to such parties pursuant
to any such plan or arrangement, (v) shares of Common Stock issued in connection
with bona fide acquisitions, mergers, joint ventures and other similar
transactions approved by the Board and (vi) shares of Common Stock issued
pursuant to any event for which adjustment is made to the conversion price under
the anti-dilution provisions provided for in Section 3(e) of the Company's
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certificate of determination for the Series A Preferred (the "Series A
Designation"), or to the Purchase Price under the anti-dilution provisions under
Section 4 of this Warrant or the Series A Warrants, (vii) shares of Common Stock
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issued in a Qualified Public Offering, (viii) shares of Common Stock issued or
issuable to customers, suppliers or other strategic partners provided that such
issuance is approved by the Board of Directors, (ix) shares of Common Stock
issued or issuable to banks, equipment lessors or other financial institutions
pursuant to a commercial leasing or debt financing transaction approved by the
Board of Directors, and (x) shares of Common Stock issued to suppliers or third
party service providers in connection with the provision of goods or services
pursuant to transactions approved by the Board of Directors. The "Effective
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Price" of Additional Shares of Common Stock shall mean the quotient determined
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by dividing the total number of Additional Shares of Common Stock issued or
sold, or deemed to have been issued or sold by the Company under this Section
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4.C, into the aggregate consideration received, or deemed to have been received,
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by the Company for such issue under this Section 4.C, for such Additional Shares
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of Common Stock. "Other Securities" with respect to an issue or sale of
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Additional Shares of Common Stock shall mean Convertible Securities other than
the Series A Preferred, and the Series A Warrants including this Warrant; "the
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number of shares of Common Stock underlying Other Securities" on a particular
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date shall mean the number of shares of Common Stock issuable upon the exercise,
conversion or exchange, as the case may be, of such Other Securities at the
close of business on such date.
(6) Other than a reduction pursuant to its applicable anti-dilution
provisions, any reduction in the conversion price of any Convertible Security,
whether outstanding on the Original Issuance Date or thereafter, or the
subscription price of any option, warrant or right to purchase Common Stock or
any Convertible Security (whether such option, warrant or right is outstanding
on the Original Issuance Date or thereafter), to an Effective Price less than
the Fair Market Value or the then Purchase Price shall be deemed to be an
issuance of such Convertible Security and the issuance of all such options,
warrants or subscription rights, and the provisions of Sections 4.C.(3), (4) and
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(5) shall apply thereto mutatis mutandis.
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(7) In case any shares of stock or other securities, other than
Common Stock, shall at the time be receivable upon the exercise of this Warrant,
and in case any additional shares of such stock or any additional such
securities (or any stock or other securities convertible into or exchangeable
for any such stock or securities) shall be issued or sold for a consideration
per share such as to dilute the purchase rights evidenced by this Warrant, then
and in each such case the Purchase Price shall forthwith be adjusted,
substantially in the manner provided for above in this Section 4.C, so as to
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protect the Holder of this Warrant against the effect of such dilution.
(8) In case the Company shall take a record of the holders of shares
of its stock of any class for the purpose of entitling them (a) to receive a
dividend or a distribution payable in Common Stock or in Convertible Securities,
or (b) to subscribe for, purchase or otherwise acquire Common Stock or
Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the Additional Shares of Common Stock issued or sold or
deemed to have been issued or sold upon the declaration of such dividend or the
making of such other distribution, or the date of the granting of such rights of
subscription, purchase or other acquisition, as the case may be.
(9) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($0.01) in
such price; provided, however, that any adjustments which by reason of this
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Section 4 are not required to be made shall be carried forward and taken into
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account in any subsequent adjustment required to be made hereunder. All
calculations under this Section 4 shall be made to the nearest cent or to the
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nearest one-hundredth of a share, as the case may be.
D. Adjustment for Certain Dividends and Distributions. If the Company
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at any time or from time to time makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event
(1) the Purchase Price then in effect shall be decreased as of the
time of such issuance or, in the event such record date is fixed, as of the
close of business on such record date, by multiplying the Purchase Price then in
effect by a fraction (A) the numerator of which is the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and (B) the denominator
of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date as the case may be, plus the number of shares of
Common Stock issuable in payment of such dividend or distribution; provided,
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however, that if such record date is fixed and such dividend is not fully paid
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or if such distribution is not fully made on the date fixed therefor, the
Purchase Price shall be recomputed accordingly as of the close of business on
such record date, and thereafter the Purchase Price shall be adjusted pursuant
to this Section 4.D as of the time of actual payment of such dividends or
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distributions; and
(2) the number of shares of Common Stock theretofore receivable upon
the exercise of this Warrant shall be increased, as of the time of such issuance
or, in the
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event such record date is fixed, as of the close of business on such record
date, in inverse proportion to the decrease in the Purchase Price.
E. Stock Split and Reverse Stock Split. If the Company at any time
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or from time to time effects a reverse stock split or subdivision of the
outstanding Common Stock, the Purchase Price then in effect immediately before
that stock split or subdivision shall be proportionately decreased and the
number of shares of Common Stock theretofore receivable upon the exercise of
this Warrant shall be proportionately increased. If the Company at any time or
from time to time effects a reverse stock split or combines the outstanding
shares of Common Stock into a smaller number of shares, the Purchase Price then
in effect immediately before that reverse stock split or combination shall be
proportionately increased and the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be proportionately decreased.
Each adjustment under this Section 4.E shall become effective at the close of
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business on the date the stock split, subdivision, reverse stock split or
combination becomes effective.
F. No Impairment. The Company will not, by amendment of its Amended
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and Restated Articles 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 to be observed or performed hereunder by the Company but
will at all times in good faith assist in the carrying out of all the provisions
of this Section 4 and in the taking of all such action as may be necessary or
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appropriate in order to protect the rights of the Holders of the Warrants
against impairment.
G. Certificate as to Adjustments. Upon the occurrence of each
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adjustment or readjustment of the Conversion Price pursuant to this Section 4,
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the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of a
Warrant a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Company shall, upon the written request at any time of any holder of a Warrant,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) Purchase Price at the time in
effect, and (iii) the number of shares of Common Stock and the amount, if any,
of other property which at the time would be received upon the exercise of the
Warrant.
H. Sale of Shares Below Fair Market Price and Below Purchase Price.
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If at any time or from time to time following the Original Issuance Date, the
Company issues or sells, or is deemed by the express provisions of this Section
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4 hereof to have issued or sold, Additional Shares of Common Stock, other than
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as a dividend or other distribution on any class of stock and other than upon a
subdivision or combination of shares of Common Stock, in either case as provided
in Section 4D and Section 4E above, for an Effective Price that is less than the
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Fair Market Value and the Purchase Price then in effect, then in each such case
(i) the Purchase Price then in effect, shall be reduced such that it is equal to
the lowest Effective Price at which any Additional Shares of Common Stock are
issued, and (ii) the number of shares of Common Stock issuable upon exercise of
the Warrant (sometimes hereinafter referred to as "Warrant Shares"), shall be
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increased to a number determined by multiplying the number of the applicable
Warrant Shares purchasable immediately prior to the applicable Purchase Price
reduction hereunder by a
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fraction, the numerator of which shall be the Purchase Price per share in effect
prior to the applicable Purchase Price reduction hereunder, and the denominator
of which shall be the Purchase Price as so reduced.
5. Notices of Record Date. In case:
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A. the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
the Warrants) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
B. of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
C. of any voluntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will mail or cause to be
mailed to each holder of a Warrant at the time outstanding a notice specifying,
as the case may be, (a) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating the amount and
character of such dividend, distribution or right, or (b) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is expected to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such stock or securities at the time receivable upon the exercise of the
Warrants) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up, such notice shall be mailed at least
twenty (20) days prior to the date therein specified.
6. Stock Purchase Rights. If at any time or from time to time, the
---------------------
Company grants or issues to the record holders of the Common Stock any options,
warrants or subscription rights (collectively, the "Stock Purchase Rights")
---------------------
entitling a holder to purchase Common Stock or any security convertible into or
exchangeable for Common Stock or to purchase any other stock or securities of
the Company, the Holder shall be entitled to acquire, upon the terms applicable
to such Stock Purchase Rights, the aggregate Stock Purchase Rights which Holder
could have acquired if Holder had been the record holder of the maximum number
of shares of Common Stock issuable upon exercise of this Warrant on both (x) the
record date for such grant or issuance of such Stock Purchase Rights, and (y)
the date of the grant or issuance of such Stock Purchase Rights.
7. Loss or Mutilation. Upon receipt by the Company of evidence
------------------
satisfactory to it (in the exercise of reasonable discretion) of the ownership
of and the loss, theft, destruction or mutilation of any Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it (in the
exercise of reasonable discretion), and (in the case of mutilation) upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof a new Warrant of like tenor.
10
8. Reservation of Common Stock. The Company shall at all times reserve
---------------------------
and keep available for issue upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants.
9. Securities Purchase Agreement and Registration Rights Agreement. This
---------------------------------------------------------------
Warrant has been issued pursuant to the Subscription Agreement dated as of
__________, 2001 between the Company and the original holder hereof (the
"Subscription Agreement"), and the transferability of this Warrant and the
-----------------------
Common Stock issuable upon the exercise hereof are subject to the Subscription
Agreement. In addition, the Holder of this Warrant and the Common Stock issuable
upon the exercise hereof are entitled to have such Common Stock registered under
the Securities Act of 1933 in accordance with the Registration Rights Agreement
referred to in the Subscription Agreement and to such remedies for breaches of,
or defaults under, such Registration Rights Agreement, as are provided below in
Section 10.
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10. Remedies for Breaches of Certain Registration Rights.
----------------------------------------------------
(a) As partial relief for a Registration Statement Default, and for
the damages to any Holder by reason of any such delay in or reduction of its
ability to sell the Registrable Securities (which remedy shall not be exclusive
of any other remedies available at law or in equity) the number of Warrant
Shares shall be increased by five (5%) percent for each aggregate thirty (30)
day period (or pro rated amounts thereof for partial thirty (30) day periods)
that (A) the Registration Statement is not declared effective by the SEC
following the Effectiveness Deadline, and/or (B) after the Registration
Statement is declared effective by the SEC, each Registration Statement is not
available for the sale of at least all of the Registrable Securities required to
be included in such Registration Statement. The capitalized terms used in this
Section 10(a) but not defined herein shall have the meanings given such terms in
-------------
the Registration Rights Agreement entered into in connection with the issuance
of the Series A Preferred by the Company, Commonwealth Associates, L.P. and the
other investors parties thereto (the "Registration Rights Agreement"), or in the
-----------------------------
Subscription Agreement (as defined in the Registration Rights Agreement.
(b) In the event of any Rule 144 Default by the Company, then, as
partial relief for damages to any Holder by reason of any delay or inability to
sell the Registrable Securities (which remedy shall not be exclusive of any
other remedies available at law or in equity), (i) the exercise price of the
Preferred Warrants as set forth herein shall be reduced by five (5%) percent for
each aggregate thirty (30) day period (or pro rated amounts thereof for partial
thirty (30) day periods) that the Holder is delayed from selling, or unable to
sell, Registrable Securities under Rule 144 due to (A) the Company's failure to
promptly provide the requisite legal opinion as referenced in Section 3.19 of
the Registration Rights Agreement, or (B) the Company's failure to comply with
the filing and other requirements under Rule 144 necessary to make such Rule
available to the Holders, and (ii) the number of Warrant Shares shall be
increased to a number determined by multiplying the number of applicable Warrant
Shares purchasable immediately prior to the applicable Purchase Price reduction
hereunder by a fraction, the numerator of which shall be the Purchase Price in
effect prior to the applicable Purchase Price reduction hereunder and the
denominator of which shall be the Purchase Price as so reduced; provided,
--------
however, that upon the first Rule 144 Default (which means a Rule 144
-------
11
Default with regard to either the Warrant Shares and/or the shares of Common
Stock issuable upon conversion of the Series A Preferred), the Company shall
have up to a thirty (30) consecutive day period to cure such Rule 144 Default
without incurring the above damage payments and if after such thirty (30) day
period expires the Rule 144 Default has not been cured, the above described
damage payments shall apply and be applied retroactively to the first day of
such Rule 144 Default; provided, further, that the Company shall not have any
-------- -------
right to a cure period of a Rule 144 Default other than the first Rule 144
Default. Notwithstanding the foregoing, so long as the Company is in a
Registration Statement Default, the exercise price of the Preferred Warrants and
the number of Warrant Shares shall not be adjusted due to a Rule 144 Default.
The capitalized terms used in this Section 10(b) but not defined herein shall
-------------
have the meanings given such terms in the Registration Rights Agreement.
11. Redemption of Warrants.
----------------------
(a) Commencing on the date sixty (60) days from the final closing of
the private placement in which the Series A Warrants were sold, on not less than
thirty (30) days' written notice (the "Redemption Notice") to all registered
-----------------
holders of the Series A Warrants being redeemed, the Series A Warrants may be
redeemed, at the option of the Company, in whole and not in part, at a
redemption price of $0.01 per Series A Warrants (the "Redemption Price"),
----------------
provided (i) the average closing bid price shall equal or exceed three (3) times
the then current Purchase Price for the twenty (20) consecutive trading days
ending on the fifth (5/th/) trading day prior to the date of the Redemption
Notice (the "Target Price"), subject to adjustments as set forth in Section
------------ -------
11(f) hereof, (ii) the Common Stock is traded on a national securities exchange
-----
or quoted on the NSCM or the NNSM; (iii) a registration statement covering the
Warrant Shares filed under the Securities Act of 1933, as amended (the "Act")
---
has been declared effective by the Securities and Exchange Commission and
remains effective on the date fixed for redemption of the Series A Warrants; and
(iv) the Registered Holders are not subject to any lock-up provisions with
respect to the Warrants and/or the Warrant Shares (the "Redemption Date").
---------------
(b) If the conditions set forth in Section 11(a) are met, and the
-------------
Company desires to exercise its right to redeem the Series A Warrants, it shall
mail a Redemption Notice to each of the Registered Holders of the Series A
Warrants to be redeemed, first class mail, postage prepaid, not later than the
thirtieth (30/th/) day before the date fixed for redemption, as provided in
Section 13 hereof.
----------
(c) The Redemption Notice shall specify (i) the Redemption Price,
(ii) the Redemption Date, (iii) the place where the Series A Warrant
Certificates shall be delivered and the redemption price paid, and (iv) that the
right to exercise the Series A Warrant shall terminate at 5:00 p.m. (New York
time) on the business day immediately preceding the Redemption Date. No failure
to mail such notice nor any defect therein or in the mailing thereof shall
affect the validity of the proceedings for such redemption except as to a holder
(a) to whom notice was not mailed or (b) whose notice was defective. An
affidavit of the Secretary or an Assistant Secretary of the Company that the
Redemption notice has been mailed shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
12
(d) Any right to exercise a Warrant shall terminate at 5:00 p.m. (New
York time) on the business day immediately preceding the Redemption Date. On and
after the Redemption Date, holders of the Series A Warrants shall have no
further rights except to receive, upon surrender of the Series A Warrant, the
Redemption Price.
(e) From and after the Redemption Date, the Company shall, at the
place specified in the Redemption Notice, upon presentation and surrender to the
Company by or on behalf of the holder thereof of one or more Series A Warrant
certificates evidencing Series A Warrants to be redeemed, deliver, or cause to
be delivered to or upon the written order of such holder a sum in cash equal to
the Redemption Price of each such Series A Warrant. From and after the
Redemption Date and upon the deposit or setting aside by the Company of a sum
sufficient to redeem all the Series A Warrants called for redemption, such
Series A Warrants shall expire and become void and all rights hereunder and
under the Warrant Certificates, except the right to receive payment of the
Redemption Price, shall cease.
(f) If the shares of Common Stock are subdivided or combined into a
greater or smaller number of shares of Common stock, the Target Price shall be
proportionately adjusted by the ratio which the total number of shares of Common
Stock outstanding immediately prior to such event bears to the total number of
shares of Common Stock to be outstanding immediately after such event.
12. Notices. All notices and other communications from the Company to the
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Holder of this Warrant shall be mailed by first class, registered or certified
mail, postage prepaid, to the address furnished to the Company in writing by the
last holder of this Warrant who shall have furnished an address to the Company
in writing.
13. Change; Modifications; Waiver. The terms of this Warrant may be
-----------------------------
amended, waived or modified by agreement of the Company, Commonwealth
Associates, L.P. and a committee to be designated by Commonwealth Associates,
L.P. whose members hold in the aggregate not less than twenty (20%) percent of
the outstanding Series A Warrants; provided, however, that no such amendment,
-------- -------
modification or waiver which would decrease the number of Warrant Shares
purchasable upon the exercise of any Series A Warrants, or increase the Purchase
Price therefor (other than as a result of the waiver or modification of any
anti-dilution provisions) shall be made without the consent in writing of the
holders of not less than fifty (50%) percent of the outstanding Series A
Warrants.
14. Headings. The headings in this Warrant are for purposes of convenience
--------
in reference only, and shall not be deemed to constitute a part hereof.
[Remainder of page intentionally left blank]
13
15. Law Governing. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of New York without regard to the
conflicts of laws principles thereof. The parties hereto hereby irrevocably
agree that any suit or proceeding arising directly and/or indirectly pursuant to
or under this Agreement, shall be brought solely in a federal or state court
located in the City, County and State of New York. By its execution hereof, the
parties hereby covenant and irrevocably submit to the in personam jurisdiction
-- --------
of the federal and state courts located in the City, County and State of New
York and agree that any process in any such action may be served upon any of
them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto waive any claim
that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with respect
-- --------
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements in an amount judicially determined.
Dated: ______________________________
NOTIFY TECHNOLOGY CORPORATION
By: _________________________
Name:
Title:
SIGNATURE PAGE TO WARRANT TO PURCHASE COMMON STOCK
14
EXHIBIT A
SUBSCRIPTION FORM
-----------------
(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably exercises this
Warrant and purchases _______ of the number of shares of Common Stock of Notify
Technology Corporation, purchasable with this Warrant, and herewith makes
payment therefor, all at the price and on the terms and conditions specified in
this Warrant.
Dated: ________________________
_____________________________________
(Signature of Registered Owner
_____________________________________
(Street Address)
_____________________________________
(City / State / Zip Code)
15
EXHIBIT B
FORM OF ASSIGNMENT
------------------
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint __________________________
Attorney to make such transfer on the books of Notify Technology Corporation,
maintained for the purpose, with full power of substitution in the premises.
Dated: ____________________________
___________________________________
(Signature)
___________________________________
(Witness)
The undersigned Assignee of the Warrant hereby makes to Notify Technology
Corporation, as of the date hereof, with respect to the Assignee, all of the
representations and warranties made by the Holder, and the undersigned Assignee
agrees to be bound by all the terms and conditions of the Warrant and the
Registration Rights Agreement, dated _________, 2001, by and among Notify
Technology Corporation, Commonwealth Associates, L.P. and the investors listed
on Schedule 1 thereto.
Dated: ____________________________
___________________________________
(Signature)
16