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Exhibit 10.8
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE REGISTERED HOLDER OF THIS WARRANT HAS AGREED THAT
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS WARRANT OR ANY OF SAID
SHARES MAY BE MADE WITHOUT REGISTRATION UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAW, UNLESS THE HOLDER SHALL DELIVER TO
THE ISSUER AN OPINION (IN FORM SATISFACTORY TO THE ISSUER) OF COUNSEL
SATISFACTORY TO THE ISSUER THAT NO SUCH REGISTRATION IS REQUIRED.
SCREAMING ▇▇▇▇▇.▇▇▇ INC.
COMMON STOCK PURCHASE WARRANT
Warrant No. 3 50,000 Shares
This certifies that, for value received,
▇▇▇▇▇ ASSOCIATES, INC.
or its assigns, are entitled, subject to the terms and conditions hereinafter
set forth, at or before 5:00 p.m., New York time, on February 4, 2005, but not
thereafter, to purchase up to 50,000 shares (the "Shares") of Common Stock, par
value $.01 per share ("Common Stock"), of Screaming ▇▇▇▇▇.▇▇▇ Inc., a Delaware
corporation (the "Company"). The purchase price payable upon the exercise of
this Warrant shall initially be $5.60 per share, said amount being subject to
adjustment as described herein (the "Warrant Price").
Upon delivery of this Warrant with the Purchase Form attached hereto duly
executed, together with payment of the Warrant Price for the shares of Common
Stock thereby purchased, at the principal office of the Company (which is
located at the Company's address as set forth in Section 11) or at such other
address as the Company may designate by notice in writing to the registered
holder hereof (the "Holder"), the Holder shall be entitled to receive a
certificate or certificates for the Shares so purchased. All Shares issued upon
the exercise of this Warrant will, upon issuance, be fully paid and
nonassessable and free from all taxes, liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
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Section 1. Transferability and Form of Warrant
l.l. Registration. This Warrant is numbered and registered on the books of
the Company. The Company shall be entitled to treat the Holder as the sole owner
of this Warrant for all purposes and, unless the provisions of Section 1.2 shall
be complied with, shall not be bound to recognize any equitable or other claim
to or interest in this Warrant on the part of any other person, and shall not be
liable for any registration of transfer of this Warrant which is to be
registered in the name of a fiduciary or the nominee of a fiduciary unless made
with actual knowledge that a fiduciary or nominee is committing a breach of
trust in requesting such registration of transfer.
1.2. Transfer. This Warrant shall be transferable only on the books of the
Company maintained at its principal office in New York, New York, or wherever
its principal office may then be located, upon delivery of this Warrant either
duly endorsed by the Holder or by the Holder's duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment, or
authority to transfer. In all cases of transfer by an attorney, the original
letter of attorney, duly approved, or an official copy thereof, duly certified,
shall be deposited and remain with the Company. In case of transfer by
executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be required
to be deposited and remain with the Company in its discretion. Upon any
registration of transfer, the Company shall execute and deliver a new Warrant to
the person entitled thereto.
Section 2. Exchange of Warrant Certificate
This Warrant certificate may be exchanged for another certificate or
certificates entitling the Holder to purchase a like aggregate number of Shares
as this certificate then entitles the Holder to purchase. Any Holder of this
Warrant desiring to exchange this Warrant certificate shall make such request in
writing delivered to the Company, and shall surrender this certificate, properly
endorsed, to the Company. Thereupon, the Company shall execute and deliver to
the person entitled thereto a new Warrant certificate or certificates, as the
case may be, as so requested.
Section 3. Term of Warrant; Exercise of Warrant
Subject to the terms of this Warrant, the Holder shall have the right, at
any time during the period commencing at 9:00 a.m., New York time, on the date
hereof, until 5:00 p.m., New York time, on February 4, 2005 (the "Termination
Date"), to purchase from the Company the number of fully paid and nonassessable
Shares to which the Holder may at the time be entitled to purchase pursuant to
this Warrant, upon surrender, to the Company at this principal office, of this
Warrant certificate, together with the Purchase Form attached hereto duly
completed and signed, and upon payment to the Company of the Warrant Price for
the number of Shares in respect of which this Warrant is then being exercised.
Payment of the aggregate Warrant Price shall be made in cash, or be certified or
cashier's check, or by delivery of shares of Common Stock valued at their
Current Market Price (as hereinafter defined) on the date of exercise, or a
combination thereof.
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Upon surrender of this Warrant and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch, to or upon the written order of the Holder and (subject to the
restrictive legend on the first page of this Warrant) in such name or names as
the Holder may designate, a certificate or certificates for the number of full
Shares so purchased upon the exercise of this Warrant, together with cash, as
provided in Section 9 hereof, in respect of any fractional Shares otherwise
issuable upon such surrender. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such Shares as of the date of the
surrender of this Warrant and payment of the Warrant Price as aforesaid;
provided that if, at the date of surrender of this Warrant and payment of such
Warrant Price, the transfer books for the Shares or other class of stock
purchasable upon the exercise of this Warrant shall be closed, the certificates
for the Shares in respect of which this Warrant is then exercised shall be
issuable as of the date on which such books shall next be opened (whether before
or after the Termination Date) and until such date the Company shall be under no
duty to deliver any certificate for such Shares; and provided further that the
transfer books of record, unless otherwise required by law, shall not be closed
at any one time for a period longer than twenty days. The rights of purchase
represented by this Warrant shall be exercisable, at the election of the Holder,
either in full or from time to time in part and, in the event that this Warrant
is exercised in respect of fewer than all of the Shares at any time prior to the
date of expiration of this Warrant, a new Warrant certificate to purchase the
remaining Shares will be issued.
Section 4. Payment of Taxes
The Company will pay all documentary stamp taxes, if any, attributable to
the initial issuance of Shares upon the exercise of this Warrant; provided that
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in such issuance.
Section 5. Mutilated or Missing Warrant
In case the certificate evidencing this Warrant shall be mutilated, lost,
stolen or destroyed, the Company may, in its discretion, issue and deliver in
exchange and substitution for and upon cancellation of this certificate if it is
mutilated, or in lieu of and substitution for this certificate if it is lost,
stolen or destroyed, a new Warrant certificate of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence satisfactory to
the Company of such loss, theft or destruction of this Warrant and indemnity, if
requested, also satisfactory to the Company. Applicants for such substitute
Warrant certificate shall also comply with such other reasonable regulations and
pay such other reasonable charges as the Company may prescribe.
Section 6. Reservation of Shares
There have been reserved, and the Company shall at all times keep reserved,
out of its authorized Common Stock, a number of shares of Common Stock
sufficient to provide for the exercise of the rights of purchase represented by
this Warrant. Any transfer agent for the Common
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Stock or for any other shares of the Company's capital stock issuable upon the
exercise of any of the rights of purchase aforesaid will be irrevocably
authorized and directed at all times to reserve such number of authorized
shares as shall be requisite for such purpose. The Company will keep a
photocopy of this Warrant on file with any transfer agent for the Common Stock
or for any shares of the Company's capital stock issuable upon the exercise of
the rights of purchase represented by this Warrant.
SECTION 7. PURCHASE BY THE COMPANY; REGISTRATION
7.1 Right to Require Repurchase of Warrant by the Company. The Holder
shall, at any time prior to the Termination Date, have the right, subject to the
terms and conditions set forth in this subsection 7.1, to cause the Company to
purchase this Warrant, in whole or in part (such right being the "Warrant Put"),
at a price of $14.40 per share (payable in cash), as adjusted in the manner of
the Warrant Price in Section 8 hereof (the "Warrant Put Price"), by delivery to
the Company of the Warrant and written notice of the exercise of the Warrant Put
(the "Warrant Put Notice"). The Company shall, within 30 days of receipt of the
Warrant and the Warrant Put Notice, pay the Warrant Put Price to the Holder, or
such person or persons as the Holder may designate in the Warrant Put Notice.
7.2 Right to Require Repurchase of Shares by the Company.
(a) The following terms used in this Section 7.2 and in Section 7.3 hereof
shall have the indicated definitions:
(1) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(2) "Rule 144" shall mean Rule 144 issued by the Securities and
Exchange Commission under the Securities Act, 17 CFR Section 230.144, or
any successor to such rule.
(3) "Warrant Derived Shares" shall mean the Warrant Shares and any
Shares that were issued to Holder by reason of its ownership of Warrant
Shares or Warrant Derived Shares due to Subtenant's stock split, stock
dividend, recapitalization or similar corporate action. Any Shares that are
sold, exchanged, or otherwise transferred out of the beneficial or record
ownership of Holder shall no longer be considered Warrant Derived Shares
and shall entitle the owner thereof to no rights under this Agreement.
(4) "Warrant Shares" shall mean the Shares owned beneficially and of
record by Holder that were obtained upon the exercise of this Warrant.
(5) "Always Restricted Shares" shall mean that number of Warrant
Derived Shares for which neither the set of conditions in subparagraph (i)
following nor the condition in subparagraph (ii) following has have ever
been satisfied:
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(i) (x) there is available current public information with respect to
the Company that satisfies the conditions of subsection (c) of Rule 144;
(y) the Holder has held such Warrant Derived Shares for the
holding period required in subsection (d) of Rule 144; and
(z) the Holder would have been be able to sell such number of
Warrant Derived Shares under the volume limitations of subsection (e)
of Rule 144 (considering the period of time that conditions (x) and
(y) hereof have been satisfied); or
(ii) such Warrant Derived Shares are registered pursuant to the
Securities Act.
(b) The Holder shall have the right at any time and from time to
time, subject to the terms and conditions set forth in this section 7.2, to
cause the Company to purchase from it a number of Warrant Derived Shares in an
amount less than or equal to the total number of Holder's Always Restricted
Shares (such right being the "Share Put"). The purchase price for such Warrant
Derived Shares shall be $20.00 per share (payable in cash), as adjusted in the
manner of the Warrant Price in Section 8 hereof, with such adjustment taking
into consideration all events both prior to and subsequent to the exercise of
this Warrant (the "Share Put Price"). The Share Put shall be exercised by
delivery to the Company of the Shares and written notice of the exercise of the
Share Put (the "Share Put Notice"). The Company shall, within 30 days of
receipt of the Shares and the Share Put Notice, pay the Share Put Price to the
Holder, or such person or persons as the Holder may designate in the Share Put
Notice.
7.3 Right to Participate in Share Registration. If the Company at any time
or times later than one year after the effective date of the Company's initial
offering of equity securities determines to prepare and file a registration
statement under the Securities Act (except a registration statement connection
with the acquisition of any entity or business or any employee benefit plan,
including any stock option plan, or on Form S-4 or Form S-8 under the Securities
Act or any successor forms thereto) in connection with the proposed offer of
sale of Shares, which registration statement does not consist exclusively of
securities to be sold for the account of the Company, the Company shall notify
the Holder of such event and shall permit Holder to include in such registration
statement such number of Warrant Derived Shares as determined by multiplying (i)
the number of Warrant Derived Shares held by the Holder by (ii) the Highest
Shareholder Percentage. The Highest Shareholder Percentage shall be the highest
number determined by comparing the numbers computed for each other shareholder
for whom shares of Stock are being registered in the registration statement by
dividing (x) the number of shares of Stock to be included in such registration
by such shareholder by (y) the total number of Shares beneficially owned by such
shareholder. In all cases the Holder shall be subject to the same rights and
agree to be bound by the same restrictions, if any, as other shareholders may be
subject to with respect to the sales pursuant to the subject registration
statement as provided herein. In the event that other shareholders are required
to pay registration expenses, the Holder shall only be responsible for its pro
rata share of
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such expenses based on the number of Shares to be registered by Holder and by
the total number of shares to be registered by all shareholders. If the offering
that is subject of such registration is underwritten, in whole or in part, and
the managing underwriter advises the Company in writing that the inclusion of
Holder's Shares proposed to be included in such registration would interfere
with the successful marketing (including pricing) of the securities proposed to
be registered by the Company, than the number of Holder's Shares to be included
in the underwritten offering may be reduced or excluded altogether.
SECTION 8. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES
8.1 Adjustments. The Warrant Price and the number and kind of securities
purchasable upon the exercise of this Warrant shall be subject to adjustment
from time to time upon the happening of certain events, as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common Stock
or make a distribution in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company,
the number of Shares purchasable upon exercise of this Warrant immediately prior
thereto shall be adjusted so that the Holder of this Warrant shall be entitled
to receive the kind and number of Shares or other securities of the Company
which he would have owned or have been entitled to receive after the happening
of any of such event or any record date with respect thereto. An adjustment made
pursuant to this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
(b) In case the Company shall issue rights, options or warrants to all or
substantially all holders of its shares of Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase shares of Common Stock
at a price per share which is lower at the record date of such issuance than the
Current Market Price per share of Common Stock (as defined in paragraph (d)
below) at the date of such issuance, the number of Shares thereafter purchasable
upon the exercise of this Warrant shall be determined by multiplying the number
of Shares theretofore purchasable upon exercise of this Warrant by a fraction,
of which the numerator shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, options or warrants plus the number of
additional shares of Common Stock offered for subscription or purchase, and of
which the denominator shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of shares of
Common Stock so offered would purchase at such Current Market Price. Such
adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective retroactively immediately after the record date for
the determination of stockholders entitled to receive such rights, options or
warrants.
(c) In case the Company shall distribute to all or substantially all
holders of its shares of Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions
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out of earnings) or rights, options or warrants or convertible securities
containing the right to subscribe for or purchase shares of Common Stock
(excluding those referred to in paragraph (b) above), then in each such case
the number of Shares thereafter purchasable upon the exercise of this Warrant
shall be determined by multiplying the number of Shares theretofore purchasable
upon exercise of this Warrant by a fraction, of which the numerator shall be
the then Current Market Price per share of Common Stock (as defined in
paragraph (d) below) on the date of such distribution, and of which the
denominator shall be such Current Market Price per share of Common Stock, less
the then fair value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights,
options or warrants, or of such convertible securities applicable to one share
of Common Stock. Such adjustment shall be made whenever any such distribution
is made, and shall become effective on the date of distribution retroactive to
the record date for the determination of shareholders entitled to receive such
distribution.
(d) For the purposes of this Warrant, the Current Market Price per share of
Common Stock of the Company at any date shall be deemed to be (i) if the shares
of Common Stock are traded in the over-the-counter market and not on any
national securities exchange and not in the GNOSTIC National Market System, the
average of the mean between the bid and asked price per share, as reported by
The National Quotation Bureau, Incorporated, or an equivalent generally accepted
reporting service, for the twenty (20) consecutive trading days immediately
preceding the date for which the determination of Current Market Price is to be
made, or (ii) if the shares of Common Stock are traded on a national securities
exchange or in the GNOSTIC National Market System, the average daily per share
closing price on the principal national securities exchange on which they are so
listed or in the GNOSTIC National Market System, as the case may be, for the
twenty (20) consecutive trading days immediately preceding the date for which
the determination of Current Market Price is to be made. The closing price
referred to in clause (ii) above shall be the last reported sales price or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices, in either case on the principal national
securities exchange on which the shares of Common Stock are then listed or in
the GNOSTIC National Market System. If the Current Market Price cannot be
determined in accordance with the foregoing, it shall be the fair market value
per share of Common Stock as determined in good faith by the Company's Board of
Directors.
(e) No adjustment in the number of shares purchasable hereunder shall be
required unless such adjustment would require an increase or decrease of at
least 1 percent in the number of Shares purchasable upon the exercise of this
Warrant; provided that any adjustments which by reason of this paragraph (e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment.
(f) Whenever the number of Shares purchasable upon the exercise of this
Warrant is adjusted as herein provided, the Warrant Price per Share payable
upon exercise of this Warrant shall be adjusted by multiplying such Warrant
Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Shares purchasable upon the exercise of this
Warrant
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immediately prior to such adjustment, and of which the denominator shall be the
number of Shares so purchasable immediately thereafter.
(g) When the number of Shares purchasable upon the exercise of this
Warrant or the Warrant Price is adjusted as herein provided, the Company shall
promptly mail to the Holder by first class mail, postage prepaid, notice of such
adjustment or adjustments together with a certificate of a firm of independent
public accountants selected by the Board of Directors of the Company (who may be
the regular accountants employed by the Company) setting forth the number of
Shares purchasable upon the exercise of this Warrant and the Warrant Price of
such Shares after such adjustment, a brief statement of the facts requiring such
adjustment and the computation by which such adjustment was made. Such
certificate shall be conclusive evidence of the correctness of such adjustment
absent manifest error.
(h) For the purpose of this subsection 8.1, the term "shares of Common
Stock" shall mean (i) the class of stock designated as the Common Stock of the
Company on the date of this Warrant, or (ii) any other class of stock resulting
from successive changes or reclassifications of such shares consisting solely of
changes in par value, or from par value to no par value, or from no par value to
par value. In the event that at any time, as a result of an adjustment made
pursuant to this subsection 8.1, the Holder shall become entitled to purchase
any shares of the Company other than shares of Common Stock, thereafter the
number of such other shares so purchasable upon exercise of this Warrant, and
the Warrant Price of such shares, shall be subject to adjustment form time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Shares contained in paragraphs (a) through (g),
inclusive, above, and the provisions of Section 3 and subsections 8.2 through
8.4, inclusive, with respect to the shares shall apply on like terms to any such
other shares.
(i) Upon the expiration of any rights, options, warrants or conversion
privileges, if any thereof shall not have been exercised, the number of shares
purchasable upon exercise of this Warrant and the Warrant Price, to the extent
this Warrant shall not then have been exercised, shall, upon such expiration, be
readjusted and shall thereafter be such as they would have been had it been
originally adjusted (or had the original adjustment not been required, as the
case may be) on the basis of (1) the only shares of Common Stock so issued were
the shares of Common Stock, if any, actually issued or sold upon the exercise of
such rights, options, warrants or conversion rights and (2) such shares of
Common Stock, if any, were issued or sold for the consideration actually
received by the Company for the issuance, sale or grant of all of such rights,
options, warrants or conversion rights, whether or not exercised; provided that
no such readjustment shall have the effect of increasing the Warrant Price by an
amount in excess of the amount of the adjustment initially made in respect of
the issuance, sale or grant of such rights, options, warrants or convertible
rights.
8.2 No Adjustment for Dividends. Except as provided in subsection 8.1, no
adjustment in respect of any dividends shall be made during the term of this
Warrant or upon the exercise of this Warrant.
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8.3 No Adjustment in Certain Cases. No adjustments shall be made pursuant
to this Section 8 in connection with the issuance of (a) such number of shares
of Common Stock (as adjusted for all stock dividends, stock splits, subdivisions
and combinations) as are issued to employees, officers, directors, consultants
or members of the Advisory Board of the Company, or other persons performing
services for the Company, pursuant to any stock option plan, stock purchase plan
or management incentive plan, agreement or arrangement approved by the Board,
and (b) any shares of Common Stock (or securities convertible into shares of
Common Stock) as consideration for the acquisition by the Company of assets or
equity interests in any business entity.
8.4 Preservation of Purchase Rights upon Reclassification, Consolidation,
etc. In case of consolidation of the Company with or merger of the Company into
another corporation or in case of any sale or conveyance to another corporation
of the property, assets or business of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute an agreement with the Holder that
the Holder shall have the right thereafter upon payment of the Warrant Price in
effect immediately prior to such action to purchase upon exercise of this
Warrant the kind and amount of Shares and other securities and property which he
would have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had this Warrant been exercised
immediately prior to such action. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 8. The Company shall mail an executed copy of any
such agreement by first class mail, postage prepaid, to the Holder. The
provisions of this subsection 8.4 shall similarly apply to successive
consolidations, mergers, sales, or conveyances.
SECTION 9. FRACTIONAL INTERESTS
The Company shall not be required to issue fractional Shares on the
exercise of this Warrant. If more than one of the Warrants shall be presented
for exercise in full at the same time by the same Holder, the number of full
Shares which shall be issuable upon the exercise thereof shall be computed on
the basis of the aggregate number of Shares represented by this Warrant and the
other Warrants so presented. If any fraction of a Share would, except for the
provisions of this Section 9, be issuable on the exercise of this Warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to the
Current Market Price per Share (as defined in paragraph 8.1(d) above) multiplied
by such fraction.
SECTION 10. NO RIGHT AS STOCKHOLDERS; NOTICES TO HOLDER
Nothing contained in this Warrant shall be construed as conferring upon the
Holder or the Holder's transferees the right to vote or to receive dividends or
to consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. If, however, at any
time prior to the expiration of this Warrant and prior to its exercise, any of
the following events shall occur:
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(a) any action which would require an adjustment pursuant to subsections
8.1 or 8.4, or
(b) a dissolution, liquidation, or winding up of the Company (other than
in connection with a consolidation, merger, or sale of all or
substantially all of its property, assets, and business as an
entirety) shall be proposed;
the Company shall in each such case give notice in writing of such event to the
Holders as provided in Section 11 hereof. Failure to publish or mail such
notice or any defect therein or in the publication or mailing thereof shall not
affect the validity of any action taken in connection with such dividend,
distribution, or subscription rights, or proposed dissolution, liquidation or
winding up.
SECTION 11. NOTICES
(a) Any notice to the Company pursuant to this Warrant shall be in writing
and shall be deemed to have been duly given if delivered or mailed certified
mail, return receipt requested, to the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President. The Company may from time
to time change the address to which such notices are to be delivered or mailed
hereunder by notice to the Holder in accordance with paragraph (b) below.
(b) Any notice pursuant to this Warrant by the Company to the Holder shall
be in writing and shall be deemed to have been duly given if mailed, postage
prepaid, to the Holder at the Holder's address on the books of the Company.
SECTION 12. SUPPLEMENTS AND AMENDMENTS
The Company may from time to time supplement or amend this Warrant, without
the approval of the Holder, in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provisions herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company may deem necessary or
desirable and which shall not be inconsistent with the provisions of this
Warrant and which shall not adversely affect the interest of the Holder. Any
other amendment to this Warrant may be made only by a written instrument
executed by the Company and the Holder.
SECTION 13. SUCCESSORS
All the covenants and provisions of this Warrant by or for the benefit of
the Company or the Holder shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 14. MERGER OR CONSOLIDATION OF THE COMPANY
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The Company will not merge or consolidate with or into any other
entity unless the entity resulting from such merger or consolidation (if not
the Company) shall expressly assume the due and punctual performance and
observance of each and every covenant and condition of this Warrant to be
performed and observed by the Company.
Section 15. Applicable Law
This Warrant shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be construed in accordance
with the laws of said state.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by the officer named below and its corporate seal to be affixed thereto.
Date: February 4, 2000
SCREAMING ▇▇▇▇▇.▇▇▇ INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Chairman
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SCREAMING ▇▇▇▇▇.▇▇▇ INC.
COMMON STOCK PURCHASE WARRANT
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, shares (the "Shares") provided for therein, and requests that
certificates for the Shares be issued in the name of:
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(Please Print or Type Name, Address and Social Security Number)
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and, if said number of Shares shall not be all the Shares purchasable hereunder,
that a new Warrant Certificate for the balance of the unpurchased Shares be
registered in the name of the undersigned Warrantholder as below indicated and
delivered to the address stated below:
(Please Print)
Dated:
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Name of Warrantholder:
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Address:
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Signature:
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Note: The above signature must correspond with the name as written upon the
face of this Warrant Certificate in every particular, without alteration
or enlargement or any change whatever.
Signature Guaranteed: ______________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)
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