EXHIBIT 4.4
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Warrant to Purchase
WA-1 **25,000**
Shares of Common Stock
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NEITHER THIS WARRANT NOR THE SHARES OF CLASS A COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN
EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON JULY 15, 2001
SERIES A COMMON STOCK PURCHASE WARRANT
OF
IAS COMMUNICATIONS, INC.
This is to certify that, FOR VALUE RECEIVED, or
registered assigns ("Holder"), is entitled to purchase, on the terms and
subject to the provisions of this Warrant, from IAS Communications, Inc., an
Oregon corporation (the "Company"), at an exercise price per share of
and /100 dollars ($ . ), twenty five thousand
(25,000) shares of no par value class A common stock ("Common Stock"), of the
Company at any time during the period (the "Exercise Period"), commencing on the
date of issuance of this Warrant and ending at 5:00 P.M. New York City time, on
July 15, 2001; provided, however, that if such date is a day on which banking
institutions in the State of New York are authorized by law to close, then on
the next succeeding day which shall not be such a day. The number of shares of
Common Stock to be issued upon the exercise of this Warrant and the price to be
paid for a share of Common Stock may be adjusted from time to time in the manner
set forth in this Warrant. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "Warrant Shares," and the exercise price for the purchase of a share of
Common Stock pursuant to this Warrant, as the same may be adjusted from time to
time is hereinafter sometimes referred to as the "Exercise Price." Reference in
the Warrant to the "Series A Warrants" shall mean any or all of the warrants
designated as Series A Common Stock Purchase Warrants by the Company. The Series
A Warrants were issued pursuant to a subscription agreement dated July 13, 1998
(the "Subscription Agreement"), between the Company and the initial holder of
the Warrant.
(a) EXERCISE OF WARRANT.
(1) This Warrant may be exercised in whole at any time or in part
from time to time during the Exercise Period by presentation and surrender of
this Warrant to the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form
annexed hereto duly executed and accompanied by payment of the Exercise Price
for the number of shares of Common Stock specified in such form. Payment of the
Exercise Price may be made either by check (subject to collection) in the amount
of the Exercise Price or by delivery of such number of shares of Common Stock as
has a current value, determined in the manner provided for in Paragraph (a)(2)
of this Warrant (with the current value being based on the market price of the
Common Stock on the date the Warrant, accompanied by the shares of Common Stock
delivered in respect of such exercise, is received by the Company or its
transfer agent), equal to the Exercise Price. If this Warrant should be
exercised in part only, whether pursuant to this Paragraph (a)(1) or pursuant to
Paragraph (a)(2) of this Warrant, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder hereof to purchase the balance of the shares of Common
Stock purchasable hereunder. Upon receipt by the Company of this Warrant at its
office, or by the stock transfer agent of the Company at its office, in proper
form for exercise, the Holder shall be deemed to be the holder of record of the
shares of Common Stock issuable upon such exercise, notwithstanding that the
stock transfer books of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
the Holder.
(2) In lieu of exercising this Warrant by payment of the Exercise
Price pursuant to Paragraph (a)(1) of this warrant, the Holder shall have the
right to convert this Warrant, in whole or in part to the extent that this
Warrant has not been exercised pursuant to said Paragraph (a)(1), for the number
of shares of Common Stock determined by (i) multiplying (x) the number of shares
as to which this Warrant is being exercised by (y) the difference between the
current value per share of Common Stock on the date of exercise and the Exercise
Price per share, as in effect on such date, and (ii) dividing the result so
obtained by the current value per share of Common Stock on the date of exercise.
The date of exercise shall mean, for purposes of this Paragraph (a)(2), the date
on which this Warrant accompanied by the notice of exercise is received by the
Company. The current value per share of Common Stock shall be determined as
follows:
(A) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange or listed
for trading on the Nasdaq Stock Market ("Nasdaq") or other automated quotation
system which provides information as to the last sale price, the current value
shall be the average of the reported last sale prices of one share of Common
Stock on such exchange or system on the last five (5) trading days prior to the
date of exercise of this Warrant, or if, on any of such dates, no such sale is
made, the average of the closing bid and asked prices for such date on such
exchange or system shall be used; or
(B) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current value shall be the mean the average of the
reported last bid and asked prices of one share of Common Stock as reported by
Nasdaq, the National Quotation Bureau, Inc. or other similar reporting service,
on the last five (5) trading day prior to the date of the exercise of this
Warrant; or
(C) If the Common Stock is not so listed or admitted to unlisted
trading
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privileges and bid and asked prices are not so reported, the current value of
one share of Common Stock shall be an amount, not less than book value,
determined in such reasonable manner as may be prescribed by the Board of
Directors of the Company.
(b) RESERVATION OF SHARES. The Company hereby agrees that at all times
there shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of shares of Common Stock as shall be required for issuance
and delivery upon exercise of this Warrant and that it shall not, without the
prior approval of the holders of a majority of the Series A Warrants then
outstanding, increase the par value of the Common Stock.
(c) FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise of this Warrant,
the Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the current market value of such fractional share, determined in
the manner set forth in Paragraph (a)(2) of this Warrant, except that the price
shall be based on the closing price on the last trading day before the date of
exercise.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations entitling the
holder thereof to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Subject to the provisions of Paragraph (k) of this
Warrant, upon surrender of this Warrant to the Company or at the office of its
stock transfer agent, if any, with the Assignment Form annexed hereto duly
executed and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant in the name of the assignee
named in such instrument of assignment and this Warrant shall promptly be
canceled. This Warrant may be divided or combined with other Warrants which
carry the same rights upon presentation hereof at the office of the Company or
at the office of its stock transfer agent, if any, together with a written
notice specifying the names and denominations in which new Warrants are to be
issued and signed by the Holder hereof. The term "Warrant" as used herein
includes any Warrants into which this Warrant may be divided or exchanged. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Warrant, if mutilated, the Company will execute and deliver
a new Warrant of like tenor. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue of this
Warrant, be entitled to any rights of a stockholder in the Company, either at
law or equity, and the rights of the Holder are limited to those expressed in
the Warrant and are not enforceable against the Company except to the extent set
forth in this Warrant.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time
and the
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number and kind of securities purchasable upon exercise of each Warrant shall be
subject to adjustment as follows:
(1) In case the Company shall, subsequent to July 6, 1998, (A) pay a
dividend or make a distribution on its shares of Common Stock in shares of
Common Stock (B) subdivide or reclassify its outstanding Common Stock into a
greater number of shares, or (C) combine or reclassify its outstanding Common
Stock into a smaller number of shares or otherwise effect a reverse split, the
Exercise Price in effect at the time of the record date for such dividend or
distribution or of the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the Holder of this
Warrant exercised after such date shall be entitled to receive the aggregate
number and kind of shares which, if this Warrant had been exercised immediately
prior to such time, he would have owned upon such exercise and been entitled to
receive upon such dividend, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed in this
Paragraph (f)(1) shall occur.
(2) In case the Company shall, subsequent to July 6, 1998, issue
rights or warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities convertible into
Common Stock) at a price (or having a conversion price per share) less than the
current market price of the Common Stock (as defined in Paragraph (f)(5) of this
Warrant) on the record date mentioned below, the Exercise Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Exercise Price in effect immediately prior to the date of such issuance by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding on the record date mentioned below plus the number of shares
determined by multiplying the price or the conversion price at which additional
shares of Common Stock are offered by the number of shares of Common Stock being
offered by the number of shares being issued, including shares being issued upon
conversion of any convertible securities, and dividing the result so obtained by
the current market price of the Common Stock, and of which the denominator shall
be the number of shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock offered for subscription or
purchased (or into which the convertible securities so offered are convertible).
Such adjustment shall be made successively whenever such rights or warrants are
issued and shall become effective immediately after the record date for the
determination of stockholders entitled to receive such rights or warrants; and
to the extent that shares of Common Stock or securities convertible into Common
Stock are not delivered after the expiration of such rights or warrants, the
Exercise Price shall be readjusted to the Exercise Price which would then be in
effect had the adjustments made upon the issuance of such rights or warrants
been made upon the basis of delivery of only the number of shares of Common
Stock (or securities convertible into Common Stock) actually delivered.
(3) In case the Company shall, subsequent to July 6, 1998, distribute
to all holders of Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions paid out of current earnings and
dividends or distributions referred to in Paragraph (f)(1) of this Warrant) or
subscription rights or warrants (excluding those referred to in Paragraph (f)(2)
of this Warrant), then in each such case the Exercise Price in effect thereafter
shall be determined by multiplying the Exercise Price in effect
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immediately prior thereto by a fraction, of which the numerator shall be the
total number of shares of Common Stock outstanding multiplied by the current
market price per share of Common Stock (as defined in Paragraph (f)(5) of this
Warrant), less the fair market value (as determined by the Company's Board of
Directors) of said assets or evidences of indebtedness so distributed or of such
rights or warrants, and of which the denominator shall be the total number of
shares of Common Stock outstanding multiplied by such current market price per
share of Common Stock. Such adjustment shall be made successively whenever such
a record date is fixed. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such
distribution.
(4) Whenever the Exercise Price payable upon exercise of each Warrant
is adjusted pursuant to Paragraphs (f)(1), (2) or (3) of this Warrant, the
number of shares of Common Stock purchasable upon exercise of each Warrant shall
simultaneously be adjusted by multiplying the number of shares of Common Stock
issuable upon exercise of each Warrant in effect on the date thereof by the
Exercise Price in effect on the date thereof and dividing the product so
obtained by the Exercise Price, as adjusted. In no event shall the Exercise
Price per share be less than the par value per share, and, if any adjustment
made pursuant to Paragraph (f)(1), (2) or (3) would result in an exercise price
of less than the par value per share, then, in such event, the Exercise Price
per share shall be the par value per share. The Company agrees not to increase
the par value of the Common Stock other than in connection with a reverse split
or combination or shares or other recapitalization, in which event any such
increase shall not be greater that which would result from the application of
the adjustments provided in Paragraph (f)(1) of this Warrant to the par value.
(5) For the purpose of any computation under Paragraphs (f)(2) and
(3) of this Warrant, the current market price per share of Common Stock at any
date shall be deemed to be the average of the daily closing prices for thirty
(30) consecutive trading days commencing forty five (45) trading days before
such date. The closing price for each day shall be the reported last sale price
regular way or, in case no such reported sale takes place on such day, the
average of the reported last bid and asked prices regular way, in either case on
the principal national securities exchange on which the Common Stock is admitted
to trading or listed or on Nasdaq, or if not listed or admitted to trading on
such exchange or such market, the average of the reported highest bid and
reported lowest asked prices as reported by Nasdaq, the National Quotation
Bureau, Inc. or other similar organization if Nasdaq is no longer reporting such
information, or if not so available, the fair market price as determined by the
Board of Directors.
(6) No adjustment in the Exercise 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
Paragraph (f)(6) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Paragraph
(f) shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. Anything in this Paragraph (f) to the contrary
notwithstanding, the Company shall be entitled, but shall not be required, to
make
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such changes in the Exercise Price, in addition to those required by this
Paragraph (f), as it in its discretion shall determine to be advisable in order
that any dividend or distribution in shares of Common Stock, subdivision,
reclassification or combination of Common Stock, issuance of warrants to
purchase Common Stock or distribution of evidences of indebtedness or other
assets (excluding cash dividends) referred to hereinabove in this Paragraph (f)
hereafter made by the Company to the holders of its Common Stock shall not
result in any tax to the holders of its Common Stock or securities convertible
into Common Stock.
(7) The Company may retain a firm of independent public accountants
of recognized standing selected by the Board of Directors (who may be the
regular accountants engaged by the Company) to make any computation required by
this Paragraph (f), and a certificate signed by such firm shall be conclusive
evidence of the correctness of such adjustment.
(8) In the event that at any time, as a result of an adjustment made
pursuant to Paragraph (f)(1) of this Warrant, the Holder of any Warrant
thereafter shall become entitled to receive any shares of the Company, other
than Common Stock, thereafter the number of such other shares so receivable upon
exercise of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in Paragraphs (f)(1) to (6), inclusive, of
this Warrant.
(9) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon exercise of Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in this and similar Warrants initially
issued by the Company.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted
as required by the provisions of Paragraph (f) of this Warrant, the Company
shall forthwith file in the custody of its Secretary or an Assistant Secretary
at its principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price and the adjusted number of
shares of Common Stock issuable upon exercise of each Warrant, determined as
herein provided, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional shares of Common
Stock, if any, and such other facts as shall be necessary to show the reason for
and the manner of computing such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder,
and the Company shall, forthwith after each such adjustment, mail, by first
class mail, a copy of such certificate to the Holder at the Holder's address set
forth in the Company's Warrant Register.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (1) if the Company shall pay any dividend or make any distribution
upon Common Stock (other than a regular cash dividend payable out of retained
earnings) or (2) if the Company shall offer to the holders of Common Stock for
subscription or purchase by them any share of any class or any other rights or
(3) if any capital reorganization of the Company, reclassification of the
capital stock of the Company, consolidation or merger of the Company
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with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed by certified mail, return receipt requested, to the Holder, at
least fifteen days prior to the date specified in clauses (i) and (ii), as the
case may be, of this Paragraph (h) a notice containing a brief description of
the proposed action and stating the date on which (i) a record is to be taken
for the purpose of such dividend, distribution or rights, or (ii) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any is
to be fixed, as of which the holders of Common Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the class issuable upon exercise of this Warrant) or in case
of any sale, lease or conveyance to another corporation of the property of the
Company as an entirety, the Company shall, as a condition precedent to such
transaction, cause effective provisions to be made so that the Holder shall have
the right thereafter by exercising this Warrant, to purchase the kind and amount
of shares of stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
which might have been purchased upon exercise of this Warrant immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance. Any
such provision shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Warrant. The foregoing provisions of this Paragraph (i) shall similarly apply to
successive reclassifications, capital reorganizations and changes of shares of
Common Stock and to successive consolidations, mergers, sales or conveyances.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(1) The holder of this Warrant and/or the Warrant Shares shall be
entitled to the benefits of the registration provisions of the Subscription
Agreement with the same effect as if such rights were set forth verbatim in this
Warrant.
(2) In the event that, for any reason and for any period, the Warrant
Shares shall not be registered pursuant to a current and effective registration
statement or such registration statement shall cease to be current, the last day
of the exercise period shall be extended by two (2) days for each day that the
registration statement shall not be available to the holder of this Warrant or
the Warrant Shares.
(k) TRANSFER TO COMPLY WITH THE SECURITIES ACT. This Warrant or the
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Warrant Shares or any other security issued or issuable upon exercise of this
Warrant may not be sold or otherwise disposed of except as follows:
(1) To a person who, in the opinion of counsel for the Company, is a
person to whom this Warrant or Warrant Shares may legally be transferred without
registration and without the delivery of a current prospectus under the
Securities Act with respect thereto and then only against receipt of an
agreement of such person to comply with the provisions of this Paragraph (k)
with respect to any resale or other disposition of such securities which
agreement shall be satisfactory in form and substance to the Company and its
counsel; or
(2) to any person upon delivery of a prospectus then meeting the
requirements of the Securities Act relating to such securities and the offering
thereof for such sale or disposition.
Dated as of , 1998
IAS COMMUNICATIONS, INC.
By:______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
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PURCHASE FORM
Dated:
____ The undersigned hereby irrevocably exercises this Warrant to the extent of
purchasing ______________ shares of Common Stock and hereby makes payment
of $________________ in payment of the Exercise Price therefor.
____ The undersigned hereby irrevocably exercises this Warrant to the extent of
purchasing__________ shares of Common Stock and hereby makes payment of
$________________ in payment of the Exercise Price therefor by delivery of
shares of Common Stock pursuant to Paragraph (a)(1) of this Warrant.
____ The undersigned hereby irrevocably elects to exchange this Warrant to the
extent of __________________ shares of Common Stock pursuant to the
provision of Paragraph (a)(2) of this Warrant.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
Name _____________________________________________
(Please typewrite or print in block letters)
Signature ________________________________________
Social Security or Employer Identification No. _________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, hereby sells,
assigns and transfer unto
Name _____________________________________________
(Please typewrite or print in block letters)
Address __________________________________________
Social Security or Employer Identification No. _________________
The right to purchase Common Stock represented by this Warrant to the extent of
________________ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint ____________________________________ attorney
to transfer the same on the books of the Company with full power of
substitution.
Signature ________________________________________
Signature Medallion Guaranteed:
__________________________________________________
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