EXHIBIT 2
iMALL, INC.
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF iMALL, INC.
ISSUE DATE ______________ _____, ___
WARRANT NO. W-1 [5,000,000]* WARRANT SHARES
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED OR DISPOSED OF UNLESS REGISTERED OR QUALIFIED UNDER SAID
ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL THAT SUCH REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS
ARE NOT REQUIRED UNDER ANY SUCH LAWS.
FOR VALUE RECEIVED, iMALL, INC., a Nevada corporation (the "Company"),
hereby certifies that First Data Merchant Services Corporation, a Florida
corporation, its successor or permitted assigns (collectively, the "Holder"), is
entitled, subject to the provisions of this Warrant, to purchase from the
Company, at the times specified herein, a number of the fully paid and non-
assessable shares of Common Stock of the Company, par value $.008 per share (the
"Common Stock"), equal to the Warrant Share Amount (as hereinafter defined) at a
purchase price per share equal to the Exercise Price (as hereinafter defined).
SECTION 1. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended.
"Articles of Incorporation" means the Articles of Incorporation, as
amended, of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
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* The actual number shall be subject to anti-dilution adjustment as provided in
Section 8.1(c) of the Investment Agreement.
"Closing Price" on any day means: (1) if the shares of Common Stock
then are listed and traded on a national securities exchange, the closing price
on such day as reported by such national securities exchange on which the shares
of Common Stock are listed and traded; (2) if the shares of Common Stock then
are not listed and traded on any such securities exchange, the last reported
sale price on such day on the National Market of The National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ"); or (3) if the
shares of Common Stock then are not traded on the NASDAQ National Market, the
average of the highest reported bid and the lowest reported asked price on such
day as reported by NASDAQ.
"Common Share Equivalent" means, with respect to any security of the
Company and as of a given date, a number which is, (i) in the case of a share of
Common Stock, one, (ii) in the case of all or a portion of any right, warrant or
other security which may be exercised for a share or shares of Common Stock, the
number of shares of Common Stock receivable upon exercise of such security (or
such portion of such security), and (iii) in the case of any security
convertible or exchangeable into a share or shares of Common Stock, the number
of shares of Common Stock that would be received if such security were converted
or exchanged on such date.
"Common Stock" shall have the meaning set forth in the first paragraph
hereof.
"Company" shall have the meaning set forth in the first paragraph
hereof.
"Convertible Securities" shall have the meaning set forth in Section
7(d).
"Determination Date" shall have the meaning set forth in Section 7(f).
"Exercise Price" means a price per Warrant Share equal to $[17.00]**.
"Expiration Date" means 5:00 p.m., New York City time on October 30,
2003.
"Fair Market Value" as at any date of determination means, as to
shares of the Common Stock, if the Common Stock is publicly traded at such time,
the average of the daily Closing Prices of a share of Common Stock for the ten
(10) consecutive trading days ending on the most recent trading day prior to the
date of determination. If the shares of Common Stock are not publicly traded at
such time, and as to all things other than the Common Stock, Fair Market Value
shall be determined in good faith by an independent nationally recognized
investment banking firm selected by the Company and acceptable to the Holder and
which shall have no other substantial relationship with the Company.
"Holder" shall have the meaning set forth in the first paragraph
hereof.
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** Subject to anti-dilution adjustment as provided in Section 8.1(c) of the
Investment Agreement.
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"Options" shall have the meaning set forth in Section 7(d).
"Person" means an individual, partnership, corporation, limited
liability company, trust, joint stock company, association, joint venture, or
any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by such Person.
"Warrant Share Amount" means [5,000,000 (Five Million)]*** shares of
Common Stock as such number may be adjusted pursuant to Sections 7 and 9.
"Warrant Shares" means the shares of Common Stock deliverable upon
exercise of this Warrant, as adjusted from time to time.
SECTION 2. Exercise of Warrant. (a) Subject to the terms of Section
8, the Holder is entitled to exercise this Warrant in whole or in part at any
time, or from time to time, until the Expiration Date or, if such day is not a
Business Day, then on the next succeeding day that shall be a Business Day. To
exercise this Warrant, the Holder shall deliver to the Company this Warrant,
including the Warrant Exercise Subscription Form forming a part hereof duly
executed by the Holder, together with payment of the applicable Exercise Price.
Upon such delivery and payment, the Holder shall be deemed to be the holder of
record of the number of Warrant Shares equal to the Warrant Share Amount (or, in
the case of a partial exercise of this Warrant, a ratable number of such
shares), notwithstanding that the stock transfer books of the Company shall then
be closed or that certificates representing such shares shall not then be
actually delivered to the Holder.
(b) At the option of the Holder, the Exercise Price may be paid in
cash (including by wire transfer of immediately available funds) or by certified
or official bank check or bank cashier's check payable to the order of the
Company or by any combination of such cash or check. If the Holder requests the
Company to permit a cashless exercise of the Warrant as provided for below in
this paragraph (b) and the Company consents to such cashless exercise, then the
Exercise Price may be paid in whole or in part by reducing the number of shares
of Common Stock issuable to the Holder by a number of shares of Common Stock
that have a Fair Market Value equal to the Exercise Price which otherwise would
have been paid (so that the net number of shares of Common Stock issued in
respect of such exercise shall equal the number of shares of Common
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*** The actual number shall be subject to anti-dilution adjustment as provided
in Section 8.1(c) of the Investment Agreement.
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Stock that would have been issuable had the Exercise Price been paid entirely in
cash, less a number of shares of Common Stock with a Fair Market Value equal to
the portion of the Exercise Price paid in kind). The Company shall pay any and
all documentary, or similar issue or transfer taxes payable in respect of the
issue or delivery of the Warrant Shares. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any transfer
involved in the issue or delivery of Warrants or Warrant Shares (or other
securities or assets) in a name other than that in which the Warrants so
exercised were registered, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Company the amount of
such transfer tax or has established, to the satisfaction of the Company, that
such transfer tax has been paid.
(c) If the Holder exercises this Warrant in part, this Warrant shall
be surrendered by the Holder to the Company and a new Warrant of the same tenor
and for the unexercised number of Warrant Shares shall be executed by the
Company. The Company shall register the new Warrant in the name of the Holder
or in such name or names of its transferee pursuant to Section 6 as may be
directed in writing by the Holder and deliver the new Warrant to the Person or
Persons entitled to receive the same.
(d) Upon surrender of this Warrant in conformity with the foregoing
provisions, the Company shall, subject to the expiration of any applicable
waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act, transfer
to the Holder of this Warrant appropriate evidence of ownership of the shares of
Common Stock or other securities or property (including any money) to which the
Holder is entitled, registered or otherwise placed in, or payable to the order
of, the name or names of the Holder or such transferee as may be directed in
writing by the Holder, and shall deliver such evidence of ownership and any
other securities or property (including any money) to the Person or Persons
entitled to receive the same, together with an amount in cash in lieu of any
fraction of a share as provided in Section 5, subject to any required
withholding.
SECTION 3. Restrictive Legend. Each certificate representing shares
of Common Stock issued pursuant to this Warrant, unless at the time of exercise
such shares are registered under the Securities Act, shall bear a legend
substantially in the form of the legend set forth on the first page of this
Warrant.
SECTION 4. Reservation of Shares. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Warrant such number of its authorized but unissued shares of Common Stock
or other securities of the Company from time to time issuable upon exercise of
this Warrant as will be sufficient to permit the exercise in full of this
Warrant. The Company hereby represents and agrees that all such shares shall be
duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and clear of all
preemptive or similar rights, except to the extent imposed by or as a result of
the status, act or omission of, the Holder.
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SECTION 5. Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this Warrant
and in lieu of delivery of any such fractional share upon any exercise hereof,
the Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the Fair Market Value thereof; provided, however, that, in the
event that the Company combines or reclassifies the outstanding shares of its
Common Stock into a smaller number of shares, it shall be required to issue
fractional shares to the Holder if the Holder exercises all or any part of this
Warrant, unless the Holder has consented in writing to such reduction and
provided the Company with a written waiver of its right to receive fractional
shares in accordance with this Section 5.
SECTION 6. Transfer, Exchange or Assignment of Warrant. (a) Each
taker and holder of this Warrant by taking or holding the same, consents and
agrees that the registered 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.
(b) Subject to the terms of the Investment Agreement, dated as of
October 30, 1998, between the Company and First Data Merchant Services
Corporation, the Stockholders Agreement, dated as of October 30, 1998, among the
Company, First Data Merchant Services Corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, and the requirements of state and federal
securities laws, the Holder shall be entitled, without obtaining the consent of
the Company, to assign and transfer this Warrant, at any time in whole or from
time to time in part, to any Person or Persons; provided, however, that unless
such transfer is pursuant to an effective registration statement under the
Securities Act, as a condition to any such transfer the Company shall be
entitled to receive an opinion of counsel that such transfer is exempt from the
registration and prospectus delivery requirements of the Securities Act and any
applicable qualification requirements of any state securities laws. Purported
transfers in violation hereof shall be void. Subject to the first sentence of
this Section 6(b), upon surrender of this Warrant to the Company, together with
the attached Warrant Assignment Form duly executed, the Company shall, without
charge, execute and deliver a new Warrant in the name of the assignee or
assignees named in such instrument of assignment and, if the Holder's entire
interest is not being assigned, in the name of the Holder and this Warrant shall
promptly be canceled.
(c) Upon receipt by the Company of evidence satisfactory to it (in
the exercise of its reasonable discretion) of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
indemnification or security reasonably required by the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
(d) The Company shall pay all expenses, documentary or similar issue
taxes (other than transfer taxes) and other charges payable in connection with
the preparation, issuance and delivery of Warrants hereunder.
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SECTION 7. Anti-Dilution Provisions. So long as any Warrants are
outstanding, the Warrant Share Amount shall be subject to change or adjustment
as follows:
(a) Common Stock Dividends, Subdivisions, Combinations. In case the
Company shall (i) pay or make a dividend or other distribution to all holders of
its Common Stock in shares of Common Stock, (ii) subdivide or split the
outstanding shares of its Common Stock into a larger number of shares, or (iii)
combine the outstanding shares of its Common Stock into a smaller number of
shares (which in the case of this clause (iii) shall not in any event be done
without the express written approval of Holders of a majority of the outstanding
Warrants, which approval shall not be unreasonably withheld), then in each such
case the Warrant Share Amount shall be adjusted to equal the number of such
shares to which the holder of this Warrant would have been entitled upon the
occurrence of such event had this Warrant been exercised immediately prior to
the happening of such event or, in the case of a stock dividend or other
distribution, prior to the record date for determination of shareholders
entitled thereto. An adjustment made pursuant to this Section 7(a) shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) Reorganization or Reclassification. In case of any capital
reorganization or any reclassification or similar transaction affecting the
capital stock of the Company pursuant to a transaction not the subject of
Section 9 below, this Warrant shall thereafter be exercisable for the number of
shares of capital stock or other securities or property receivable upon such
capital reorganization or reclassification of capital stock or other
transaction, as the case may be, by a holder of the number of shares of Common
Stock into which this Warrant was exercisable immediately prior to such capital
reorganization or reclassification of capital stock; and, in any case,
appropriate adjustment (as determined in good faith by the Board of Directors of
the Company) shall be made for the application of the provisions herein set
forth with respect to the rights and interests thereafter of the Holder to the
end that the provisions set forth herein shall thereafter be applicable, as
nearly as reasonably practicable, in relation to any shares of capital stock or
other securities or property thereafter deliverable upon the exercise of this
Warrant. An adjustment made pursuant to this Section 7(b) shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(c) Distributions of Assets or Securities Other than Common Stock.
In case the Company shall, by dividend or otherwise, distribute to all holders
of its Common Stock shares of any class of its capital stock (other than Common
Stock), or other debt or equity securities or evidences of indebtedness of the
Company, or options, rights or warrants to purchase any of such securities, cash
or other assets, then in each such case the Warrant Share Amount shall be
adjusted by multiplying the Warrant Share Amount immediately prior to the date
of such dividend or distribution by a fraction, of which the numerator shall be
the Fair Market Value per share of Common Stock at the record date for
determining shareholders entitled to such dividend or distribution, and of which
the denominator shall be such Fair Market Value per share less the Fair Market
Value of the portion of the securities, cash, other assets or evidences of
indebtedness so distributed applicable to one share of Common Stock. An
adjustment made pursuant to this
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Section 7(c) shall become effective immediately after the effective date of such
event retroactive to the record date, if any, for such event.
(d) Below Market Issuances of Common Stock and Convertible
Securities. In case the Company shall issue Common Stock (or options, rights or
warrants to purchase shares of Common Stock (collectively, "Options") or other
securities convertible into or exchangeable or exercisable for shares of Common
Stock (such other securities, collectively, "Convertible Securities")) at a
price per share (or having an effective exercise, exchange or conversion price
per share together with the purchase price thereof) less than the Fair Market
Value per share of Common Stock on the date such Common Stock (or Options or
Convertible Securities), is sold or issued (provided that no sale of securities
pursuant to an underwritten public offering shall be deemed to be for less than
Fair Market Value), then in each such case the Warrant Share Amount shall
thereafter be adjusted by multiplying the Warrant Share Amount immediately prior
to the date of issuance of such Common Stock (or Options or Convertible
Securities) by a fraction, the numerator of which shall be (x) the sum of (i)
the number of Common Share Equivalents represented by all securities outstanding
immediately prior to such issuance and (ii) the number of additional Common
Share Equivalents represented by all securities so issued multiplied by (y) the
Fair Market Value of a share of Common Stock immediately prior to the date of
such issuance, and the denominator of which shall be (x) the product of (A) the
Fair Market Value of a share of Common Stock immediately prior to the date of
such issuance and (B) the number of Common Share Equivalents represented by all
securities outstanding immediately prior to such issuance plus (y) the aggregate
consideration received by the Company for the total number of securities so
issued plus, (z) in the case of Options or Convertible Securities, the
additional consideration required to be received by the Company upon the
exercise, exchange or conversion of such securities; provided, however, that no
adjustment shall be required in respect of issuances of Common Stock (or options
to purchase Common Stock) pursuant to stock option or other employee benefit
plans in effect on the date hereof, or approved by the Board of Directors of the
Company after the date hereof. Notwithstanding anything herein to the contrary,
(1) no further adjustment to the Warrant Share Amount shall be made upon the
issuance or sale of Common Stock pursuant to (x) the exercise of any Options or
(y) the conversion or exchange of any Convertible Securities, if in each case
the adjustment in the Warrant Share Amount was made as required hereby upon the
issuance or sale of such Options or Convertible Securities or no adjustment was
required hereby at the time such Option or Convertible Security was issued, and
(2) no adjustment to the Warrant Share Amount shall be made upon the issuance or
sale of Common Stock upon the exercise of any Options existing on the original
issue date hereof, without regard to the exercise price thereof. An adjustment
made pursuant to this Section 7(d) shall become effective immediately after such
Common Stock, Options or Convertible Securities are sold. This Warrant and all
Warrants of like tenor shall be deemed not to be Options or Convertible
Securities.
(e) Below Market Distributions or Issuances of Preferred Stock or
Other Securities. In case the Company shall issue non-convertible and non-
exchangeable preferred stock (or other debt or equity securities or evidences of
indebtedness of the Company (other than
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Common Stock or Options or Convertible Securities) or options, rights or
warrants to purchase any of such securities) at a price per share (or other
similar unit) less than the Fair Market Value per share (or other similar unit)
of such preferred stock (or other security) on the date such preferred stock (or
other security) is sold (provided that no sale of preferred stock or other
security pursuant to an underwritten public offering shall be deemed to be for
less than its Fair Market Value), then in each such case the Warrant Share
Amount shall thereafter be adjusted by multiplying the Warrant Share Amount
immediately prior to the date of issuance of such preferred stock (or other
security) by a fraction, the numerator of which shall be the product of (i) the
number of Common Share Equivalents represented by all securities outstanding
immediately prior to such issuance and (ii) the Fair Market Value of a share of
Common Stock immediately prior to the date of such issuance, and the denominator
of which shall be (x) the product of (A) the number of Common Share Equivalents
represented by all securities outstanding immediately prior to such issuance and
(B) the Fair Market Value of a share of the Common Stock immediately prior to
the date of such issuance minus (y) the difference between (1) the aggregate
Fair Market Value of such preferred stock (or other security) and (2) the
aggregate consideration received by the Company for such preferred stock (or
other security). An adjustment made pursuant to this Section 7(e) shall become
effective immediately after such preferred stock (or other security) is sold.
(f) Above Market Repurchases of Common Stock. If at any time or from
time to time the Company or any Subsidiary thereof shall repurchase, by self-
tender offer, private purchase or otherwise, any shares of Common Stock (or any
Options or Convertible Securities) at a purchase price in excess of the Fair
Market Value thereof, on the Business Day immediately prior to the earliest of
(i) the date of such repurchase, (ii) the commencement of an offer to
repurchase, or (iii) the public announcement of either (such date being referred
to as the "Determination Date"), the Warrant Share Amount shall be determined by
multiplying the Warrant Share Amount immediately prior to such Determination
Date by a fraction, the numerator of which shall be the product of (1) the
number of Common Share Equivalents represented by all securities outstanding
immediately prior to such Determination Date minus the number of Common Share
Equivalents represented by the securities repurchased or to be purchased by the
Company or any Subsidiary thereof in such repurchase and (2) the Fair Market
Value of a share of Common Stock immediately prior to such Determination Date,
and the denominator of which shall be (x) the product of (A) the number of
Common Share Equivalents represented by all securities outstanding immediately
prior to the Determination Date and (B) the Fair Market Value of a share of
Common Stock immediately prior to such Determination Date minus (y) the sum of
(1) the aggregate consideration paid by the Company in connection with such
repurchase and (2) in the case of Options or Convertible Securities, the
additional consideration required to be received by the Company upon the
exercise, exchange or conversion of such securities.
(g) Above Market Repurchases of Preferred Stock or Other Securities.
If at any time or from time to time the Company or any Subsidiary thereof shall
repurchase, by self-tender offer, private purchase or otherwise, any shares of
non-convertible and non-exchangeable
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preferred stock (or other debt or equity securities or evidences of indebtedness
of the Company (other than Common Stock or Options or Convertible Securities) or
options, rights or warrants to purchase any of such securities), at a purchase
price in excess of the Fair Market Value thereof, on the Business Day
immediately prior to the Determination Date, the Warrant Share Amount shall be
determined by multiplying the Warrant Share Amount immediately prior to the
Determination Date by a fraction, the numerator of which shall be the product of
(i) the number of Common Share Equivalents represented by all securities
outstanding immediately prior to such Determination Date and (ii) the Fair
Market Value of a share of Common Stock immediately prior to such Determination
Date, and the denominator of which shall be (x) the product of (A) the number of
Common Share Equivalents represented by all securities outstanding immediately
prior to such Determination Date and (B) the Fair Market Value of a share of
Common Stock immediately prior to such Determination Date minus (y) the
difference between (1) the aggregate consideration paid by the Company in
connection with such repurchase and (2) the aggregate Fair Market Value of such
preferred stock (or other security).
(h) Other Dilutive Events. In case any event shall occur as to
which the other provisions of this Section 7 are not strictly applicable but as
to which the failure to make any adjustment would not fairly protect the
purchase rights represented by this Warrant in accordance with the essential
intent and principles hereof, then, upon the written request of the Holder, the
Company shall determine what adjustments, if any, are required to be made to the
Exercise Price and/or the Warrant Share Amount on a basis consistent with the
essential intent and principles established herein as a result of such event in
order to preserve the purchase rights represented by this Warrant, which
determination shall be made in good faith by the Board of Directors of the
Company.
(i) Readjustment of Warrant Share Amount. If (i) the purchase price
provided for in any Option or the additional consideration, if any, payable upon
the conversion or exchange of any Convertible Securities or the rate at which
any Convertible Securities are convertible into or exchangeable for Common Stock
shall change at any time (other than under or by reason of provisions designed
to protect against dilution upon an event which results in a related adjustment
pursuant to this Section 7), or (ii) any Options or Convertible Securities shall
have irrevocably terminated, lapsed or expired, the Warrant Share Amount then in
effect shall forthwith be readjusted (effective only with respect to any
exercise of this Warrant after such readjustment) to the Warrant Share Amount
which would then be in effect had the adjustment made upon the issuance, sale,
distribution or grant of such Options or Convertible Securities been made based
upon such changed purchase price, additional consideration or conversion rate,
as the case may be (in the case of any event referred to in clause (i) of this
paragraph (i)) or had such adjustment not been made (in the case of any event
referred to in clause (ii) of this paragraph i)).
(j) Exercise Price Adjustment. Upon each adjustment of the Warrant
Share Amount pursuant to this Section 7, the Exercise Price shall thereafter be
equal to an adjusted Exercise Price determined (to the nearest cent) by
multiplying the Exercise Price immediately prior to such adjustment by a
fraction, the numerator of which shall be the Warrant Share Amount
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in effect immediately prior to such adjustment and the denominator of which
shall be the Warrant Share Amount in effect immediately after such adjustment.
(k) Consideration. If any shares of Common Stock, Options or
Convertible Securities shall be issued, sold or distributed for cash, the
consideration received in respect thereof shall be deemed to be the amount
received by the Company therefor, before deduction therefrom of any reasonable,
customary and adequately documented expenses incurred in connection therewith.
If any shares of Common Stock, Options or Convertible Securities shall be
issued, sold or distributed for a consideration other than cash, the amount of
the consideration other than cash received by the Company shall be deemed to be
the Fair Market Value of such consideration, before deduction of any reasonable,
customary and adequately documented expenses incurred in connection therewith.
If any shares of Common Stock, Options or Convertible Securities shall be issued
in connection with any merger in which the Company is the surviving corporation,
the amount of consideration therefor shall be deemed to be the Fair Market Value
of such portion of the assets and business of the non-surviving corporation as
shall be attributable to such Common Stock, Options or Convertible Securities,
as the case may be. If any Options shall be issued in connection with the
issuance and sale of other securities of the Company, together comprising one
integral transaction in which no specific consideration is allocated to such
Options by the parties thereto, such Options shall be deemed to have been issued
without consideration.
(l) No Impairment. The Company will not, by amendment of its
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 7 and in the taking of all such action as may be necessary or
appropriate in order to protect the conversion rights of the Holder against
impairment. Without limiting the generality of the foregoing, the Company will
not increase the par value of any shares of Common Stock receivable on the
exercise of the Warrants above the amount payable therefor on such exercise.
(m) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Warrant Share Amount pursuant to this Section
7, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Holder 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 the Holder, furnish or cause to
be furnished to the Holder a like certificate setting forth (1) such adjustments
and readjustments and (2) 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 this Warrant.
(n) Proceedings Prior to Any Action Requiring Adjustment. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this
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Section 7, the Company shall take any action which may be necessary, including
obtaining regulatory approvals or exemptions, in order that the Company may
thereafter validly and legally issue as fully paid and nonassessable all shares
of Common Stock which the Holder is entitled to receive upon exercise thereof.
(o) Notice of Adjustment. Upon the record date or effective date, as
the case may be, of any action which requires or might require an adjustment or
readjustment pursuant to this Section 7, the Company shall forthwith file in the
custody of its Secretary or an Assistant Secretary at its principal executive
office and with its stock transfer agent or its warrant agent, if any, an
officers' certificate showing the adjusted Warrant Share Amount determined as
herein provided, setting forth in reasonable detail the facts requiring such
adjustment and the manner of computing such adjustment. Each such officers'
certificate shall be signed by the chairman, president, chief financial officer
or secretary of the Company. Each such officers' certificate shall be made
available at all reasonable times for inspection by the Holder or any Holder of
a Warrant executed and delivered pursuant to Section 6(b) and the Company shall,
forthwith after each such adjustment, mail a copy, by first-class mail, of such
certificate to the Holder or any such Holder.
(p) Payments in Lieu of Adjustment. The Holder shall, at its option,
be entitled to receive, in lieu of the adjustment pursuant to Section 7(c)
otherwise required thereof, on (but not prior to) the date of exercise of the
Warrants, the evidences of indebtedness, other securities, cash, property or
other assets which such Holder would have been entitled to receive if it had
exercised its Warrants for shares of Common Stock immediately prior to the
record date with respect to such distribution. The Holder may exercise its
option under this Section 7(p) by delivering to the Company a written notice of
such exercise simultaneously with its notice of exercise of this Warrant.
SECTION 8. Redemption. (a) Subject to the other provisions of this
Section 8, the Warrant may be redeemed, at the option of the Company, at any
time at a redemption price equal to 0.266 shares of Common Stock (subject to
adjustment as provided in paragraph (f) of this Section 8) per Warrant Share if,
and only if, the Closing Price of a share of Common Stock for at least twenty
(20) out of thirty (30) consecutive trading days ending not more than thirty
(30) calendar days preceding the date on which notice of redemption is first
given to the Holder shall have been at least $25.50 (subject to adjustment as
provided in paragraph (f) of this Section 8; such amount, as so adjusted, being
hereinafter referred to as the "Target Price").
(b) If the Company is entitled to redeem this Warrant pursuant to
paragraph (a) of this Section 8 and desires to effect such redemption, it shall
furnish (in accordance with Section 11) a notice of redemption to the Holder at
least ninety (90) calendar days before the date fixed for redemption.
(c) The notice of redemption shall specify (i) the redemption price,
(ii) the date fixed for redemption, (iii) the place where this Warrant shall be
delivered and the redemption price
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paid and (iv) that the right to exercise the Warrant shall terminate at 5:00
p.m. (New York time) on the Business Day immediately preceding the date fixed
for redemption.
(d) Any right to exercise the Warrant shall terminate at 5:00 p.m.
(New York time) on the Business Day immediately preceding the date fixed for
redemption.
(e) If the Warrant has not been exercised prior to the date fixed for
redemption, then on such date the Company shall deliver or cause to be delivered
to or upon the written order of the Holder the shares of Common Stock
constituting the redemption price. No surrender of this Warrant shall be
required, which on and after the date fixed for redemption shall confer on the
Holder no rights except the right to receive the redemption price.
(f) If the shares of Common Stock are subdivided or combined into a
greater or smaller number of shares of Common Stock by one or more stock
dividends or a stock split or a reverse stock split, the Target Price and the
redemption price per Warrant Share shall be proportionately adjusted to reflect
such event.
(g) If, prior to the termination of exercisability of this Warrant
pursuant to paragraph (d) of this Section, the Holder is not entitled to
exercise all or any portion of this Warrant due to its failure to receive any
third party approval or the existence of any injunction or regulatory restraint
prohibiting such exercise (including, without limitation, any required clearance
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act), the date fixed for
redemption shall automatically be deemed to be extended to a date that is the
later of (i) the date fixed for redemption in the notice of redemption and (ii)
the fifteenth business day following the receipt of such approval or the lifting
or elimination of such injunction or restraint. The Holder and the Company
shall use reasonable best efforts to obtain all such approvals and to cause any
such injunctions or restraints to be lifted or eliminated as soon as
practicable.
(h) In the event the Holder exercises this Warrant after receipt of a
notice of redemption sent pursuant to Section 8(b), then the Company shall make
a payment (the "Lost Interest Payment") to compensate the Holder on an after-tax
basis for the loss of the time value of money with respect to the aggregate
income tax payable by the Holder as a result of the exercise of this Warrant
prior to the Expiration Date. The Lost Interest Payment (including, without
limitation, the amount needed to compensate the Holder on an after-tax basis)
shall be calculated based on the following terms and assumptions (as well as any
others upon which the Holder and the Company shall reasonably agree):
(i) it shall be assumed that all income realized by the Holder is
subject to federal, and all applicable state, local and other, taxation at
the highest marginal rates in effect for the taxable year or period during
which the exercise occurs;
(ii) a 7% per annum interest rate (compounded quarterly) shall be
used;
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(iii) the calculation shall be based on the period from and
including the date of exercise of this Warrant through and including the
Expiration Date; and
(iv) the same amount of income would have been recognized if this
Warrant had been exercised on the Expiration Date rather than on the date
of exercise after receipt of a notice of redemption sent pursuant to
Section 8(b).
If, prior to the Expiration Date, the Holder shall sell or otherwise dispose of
(in a taxable transaction) all or a portion of the shares of Common Stock
received upon an exercise after receipt of a notice of redemption sent pursuant
to Section 8(b), then the Holder shall refund to the Company the allocable
portion of the Lost Interest Payment.
SECTION 9. Consolidation, Merger or Sale or Assets. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company to the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, the Holder shall have the right thereafter to exercise this
Warrant for the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock for which this Warrant may have been exercised
immediately prior to such consolidation, merger, sale or transfer. Adjustments
for events subsequent to the effective date of such a consolidation, merger,
sale or transfer of assets shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Warrant. In any such event, effective
provisions shall be made in the certificate or articles of incorporation of the
resulting or surviving corporation, in any contract of sale, merger, conveyance,
lease, transfer or otherwise so that the provisions set forth herein for the
protection of the rights of the Holder shall thereafter continue to be
applicable; and any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon exercise, such securities, cash and other
property. The provisions of this Section 9 shall similarly apply to successive
consolidations, mergers, sales, leases or transfers.
SECTION 10. Notices. Any notice, demand or delivery required or
permitted by this Warrant shall be in writing and shall be given to the Holder
or to the Company, as the case may be, at its address (or facsimile number) set
forth below, or such other address (or facsimile number) as shall have been
furnished to the party giving or making such notice, demand or delivery:
If to the Company: iMall, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holder: First Data Merchant Services Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
-and-
First Data Merchant Services Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy, or (ii)
if given by any other means, when received at the address specified herein.
SECTION 11. Rights of the Holder. Prior to the exercise of any
Warrant, the Holder shall not, by virtue hereof, be entitled to any rights of a
stockholder of the Company, including, without limitation, the right to vote, to
receive dividends or other distributions, to exercise any preemptive right or to
receive any notice of meetings of shareholders or any notice of any proceedings
of the Company, except as may be specifically provided for herein.
SECTION 12. Governing Law. This Warrant and all rights arising
hereunder shall be construed and determined in accordance with the internal laws
of the State of Nevada and the performance thereof shall be governed and
enforced in accordance with such laws.
SECTION 13. Amendments; Waivers. Any provision of this Warrant may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case
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of an amendment, by the Holder and the Company, or in the case of a waiver, by
the party against whom the waiver is to be effective. No failure or delay by
either party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 14. Interpretation. When a reference is made in this Warrant
to a Section, such reference shall be to a Section of this Warrant unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Warrant, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Warrant shall refer to this Warrant as a whole and not
to any particular provision of this Warrant. The definitions contained in this
Warrant are applicable to the singular as well as the plural forms of such terms
and to the masculine as well as to the feminine and neuter genders of such term.
References to a person are also to its permitted successors and assigns and, in
the case of an individual, to his heirs and estate, as applicable. If the
Holder represents more than one Person, then wherever in this Warrant there is
contemplated any authorization, direction or other action by the Holder such
authorization, direction or other action shall be deemed to have been effected
if the holders of Warrants (or portions of this Warrant) covering a majority of
the Warrant Shares approve in writing such authorization, direction or other
action.
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IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed by its duly authorized officer and to be dated as of the date first above
written.
iMALL, INC.
By:___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
ATTEST:
By:___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President, Secretary/Treasurer
and Chief Financial Officer
ACKNOWLEDGED AND AGREED:
FIRST DATA MERCHANT SERVICES CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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WARRANT EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of the Warrant
after delivery of the Warrant Exercise Notice)
To: iMall, Inc.
The undersigned irrevocably exercises the Warrant for the purchase of
__________ shares (the "Shares") of Common Stock, par value $.008 per share
("Common Stock"), of iMall, Inc. (the "Company") at an exercise price of
$_______ per Share and herewith makes payment of $__________ (such payment being
made in cash or by certified or official bank or bank cashier's check payable to
the order of the Company or by any permitted combination of such cash or check
or, if permitted by the terms of paragraph (b) of Section 2 of the Warrant, by
the reduction of the number of shares of Common Stock that otherwise would be
issued upon this exercise by the number of shares of Common Stock that have a
value equal to such exercise price), all on the terms and conditions specified
in this Warrant, surrenders this Warrant and all right, title and interest
therein to the Company and directs that the Shares deliverable upon the exercise
of this Warrant be registered or placed in the name and at the address specified
below and delivered thereto.
Date: _______ __, ____.
______________________________________
(Name - Please Print)
______________________________________
(Signature of Owner)
______________________________________
(Street Address)
______________________________________
(City) (State) (Zip Code)
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the within Warrant to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
WARRANT ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and transfers
unto _____________________________________________________ (the "Assignee"),
(please type or print in block letters)
________________________________________________________________________________
(insert address)
its right to purchase up to _____ shares of Common Stock represented by this
Warrant and does hereby irrevocably constitute and appoint _____________________
Attorney, to transfer the same on the books of the Company, with full power of
substitution in the premises.
Signature: _____________________________________