EXHIBIT D FORM OF COMMON STOCK PURCHASE WARRANT
Exhibit
10.3
EXHIBIT
D
FORM
OF COMMON STOCK PURCHASE WARRANT
THIS
WARRANT AND THE COMMON STOCK SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THIS WARRANT AND THE COMMON
STOCK SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO ACCELERIZE NEW
MEDIA, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
|
Right
to Purchase ________ shares of Common Stock of Accelerize New Media,
Inc.
(subject to adjustment as provided
herein)
|
FORM
OF COMMON STOCK PURCHASE WARRANT
| No. ____ |
Issue
Date: ___________, 2007
|
ACCELERIZE
NEW MEDIA, INC., a corporation organized and existing under the laws of the
State of Delaware (the “Company”), hereby certifies that, for value received,
________________________ or its assigns (the “Holder”) is entitled, subject to
the terms set forth below, to purchase from the Company at any time after the
issue date (the “Issue Date”) until 5:00 p.m., E.S.T on the seventh (7th)
anniversary of the Issue Date (the “Expiration Date”), ________ fully paid and
nonassessable shares of Common Stock at a per share purchase price of
$0.35. The aforedescribed purchase price per share, as adjusted from
time to time as herein provided, is referred to herein as the “Purchase
Price.” The number and character of such shares of Common Stock and
the Purchase Price are subject to adjustment as provided herein. The
Company may reduce the Purchase Price without the consent of the
Holder. Capitalized terms used and not otherwise defined herein shall
have the meanings set forth in that certain Subscription Agreement (the
“Subscription Agreement”) entered into by the Company and Holder of the
Warrant.
As
used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term “Company” shall include Accelerize New Media, Inc. and any corporation
which shall succeed or assume the obligations of Accelerize New Media, Inc.
hereunder.
(b) The
term “Common Stock” includes (a) the Company’s Common Stock, $0.001 par value
per share, as authorized on the date of the Subscription Agreement, and (b)
any
other securities into which or for which any of the securities described in
(a)
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c) The
term “Other Securities” refers to any stock (other than Common Stock) and
other securities of the Company or any other person (corporate or otherwise)
which the holder of the Warrant at any time shall be entitled to receive, or
shall have received, on the exercise of the Warrant, in lieu of or in addition
to Common Stock, or which at any time shall be issuable or shall have been
issued in exchange for or in replacement of Common Stock or Other Securities
pursuant to Section 4 herein or otherwise.
(d) The
term “Warrant Shares” shall mean the Common Stock issuable upon exercise of this
Warrant.
1. Exercise
of Warrant.
1.1. Number
of Shares Issuable upon Exercise. From and after the Issue Date
through and including the Expiration Date, the Holder hereof shall be entitled
to receive, upon exercise of this Warrant in whole in accordance with the terms
of subsection 1.2 or upon exercise of this Warrant in part in accordance with
subsection 1.3, [NUMBER] of shares of Common Stock of the Company, subject
to
adjustment pursuant to Section 4.
1.2. Full
Exercise. This Warrant may be exercised in full by the Holder
hereof by delivery of an original or facsimile copy of the form of subscription
attached as Exhibit A hereto (the “Subscription Form”) duly executed by such
▇▇▇▇▇▇ and surrender of the original Warrant within four (4) days of exercise,
to the Company at its principal office or at the office of its Warrant Agent
(as
provided hereinafter), accompanied by payment, in cash, wire transfer or by
certified or official bank check payable to the order of the Company, in the
amount obtained by multiplying the number of shares of Common Stock for which
this Warrant is then exercisable by the Purchase Price then in
effect.
1.3. Partial
Exercise. This Warrant may be exercised in part (but not for a
fractional share) by surrender of this Warrant in the manner and at the place
provided in subsection 1.2 except that the amount payable by the Holder on
such
partial exercise shall be the amount obtained by multiplying (a) the number
of
whole shares of Common Stock designated by the Holder in the Subscription Form
by (b) the Purchase Price then in effect. On any such partial
exercise, the Company, at its expense, will forthwith issue and deliver to
or
upon the order of the Holder hereof a new Warrant of like tenor, in the name
of
the Holder hereof or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may request, the whole number of shares of Common
Stock for which such Warrant may still be exercised.
1.4. Fair
Market Value. Fair Market Value of a share of Common Stock as of a
particular date (the “Determination Date”) shall mean:
(a) If
the Company’s Common Stock is traded on an exchange or is quoted on the Nasdaq
Stock Market, Inc., then the last sale price reported for the last business
day
immediately preceding the Determination Date;
(b) If
the Company’s Common Stock is not traded on an exchange or quoted on the Nasdaq
Stock Market, Inc. but is traded in the over-the-counter market, then the
average of the closing bid and ask prices reported for the last business day
immediately preceding the Determination Date;
(c) Except
as provided in clause (d) below, if the Company’s Common Stock is not publicly
traded, then as the Holder and the Company agree, or in the absence of such
an
agreement, by arbitration in accordance with the rules then standing of the
American Arbitration Association, before a single arbitrator to be chosen from
a
panel of persons qualified by education and training to pass on the matter
to be
decided; or
(d) If
the Determination Date is the date of a liquidation, dissolution or winding
up,
or any event deemed to be a liquidation, dissolution or winding up pursuant
to
the Company’s charter, then all amounts to be payable per share to holders of
the Common Stock pursuant to the charter in the event of such liquidation,
dissolution or winding up, plus all other amounts to be payable per share in
respect of the Common Stock in liquidation under the charter, assuming for
the
purposes of this clause (d) that all of the shares of Common Stock then
issuable upon exercise of all of the Warrants are outstanding at the
Determination Date.
1.5. Company
Acknowledgment. The Company will, at the time of the exercise of the
Warrant, upon the request of the Holder hereof acknowledge in writing its
continuing obligation to afford to such Holder any rights to which such Holder
shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant. If the Holder shall fail to make any such request,
such failure shall not affect the continuing obligation of the Company to afford
to such Holder any such rights.
1.6. Delivery
of Stock Certificates, etc. on Exercise. The Company agrees that
the shares of Common Stock purchased upon exercise of this Warrant shall be
deemed to be issued to the Holder hereof as the record owner of such shares
as
of the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within three (3) business days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the Holder hereof, or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may direct in
compliance with applicable securities laws, a certificate or certificates for
the number of duly and validly issued, fully paid and nonassessable shares
of
Common Stock (or Other Securities) to which such Holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such Holder would
otherwise be entitled, cash equal to such fraction multiplied by the then Fair
Market Value of one full share of Common Stock, together with any other stock
or
other securities and property (including cash, where applicable) to which such
Holder is entitled upon such exercise pursuant to Section 1 or
otherwise.
1.7 Cashless
Exercise.
(a) Except
as described below, if a Registration Statement (as herein after defined) is
effective and the Holder may sell its Warrant Shares upon exercise hereof
pursuant to the Registration Statement, this Warrant may be exercisable in
whole
or in part for cash only as set forth in this Section 1. If no such
Registration Statement is available during the time that such Registration
Statement is required to be effective pursuant to the terms of Section 8
hereof,, then payment upon exercise may be made at the option of the Holder
either in (i) cash, wire transfer or by certified or official bank check payable
to the order of the Company equal to the applicable aggregate Purchase Price,
(ii) by cashless exercise in accordance with Section (b) below or (iii) by
a
combination of any of the foregoing methods, for the number of Warrant Shares
specified in such form (as such exercise number shall be adjusted to reflect
any
adjustment in the total number of shares of Common Stock issuable to the holder
per the terms of this Warrant) and the holder shall thereupon be entitled to
receive the number of duly authorized, validly issued, fully-paid and
non-assessable shares of Common Stock (or Other Securities) determined as
provided herein.
(b) If
the Fair Market Value of one share of Common Stock is greater than the Purchase
Price (at the date of calculation as set forth below), in lieu of exercising
this Warrant for cash, the holder may elect to receive shares equal to the
value
(as determined below) of this Warrant (or the portion thereof being cancelled)
by surrender of this Warrant at the principal office of the Company together
with the properly endorsed Subscription Form in which event the Company shall
issue to the holder a number of shares of Common Stock computed using the
following formula:
X=Y
(A-B)
A
| Where | X= | the number of shares of Common Stock to be issued to the holder |
|
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Y=
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the
number of shares of Common Stock purchasable under the Warrant or,
if only
a portion of the Warrant is being exercised, the portion of the Warrant
being exercised (at the date of such
calculation)
|
|
|
A=
|
the
Fair Market Value of one share of the Company’s Common Stock (at the date
of such calculation)
|
|
|
B=
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Purchase
Price (as adjusted to the date of such
calculation)
|
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a.
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For
purposes of Rule 144 promulgated under the Securities Act, it is
intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the
Holder,
and the holding period for the Warrant Shares shall be deemed to
have
commenced, on the date this Warrant was originally issued pursuant
to the
Subscription Agreement.
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2. Adjustments.
2.1. Reorganization,
Consolidation, Merger, etc. In case at any time or from time to
time, the Company shall (a) effect a reorganization, (b) consolidate with or
merge into any other person or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, as a
condition to the consummation of such a transaction, proper and adequate
provision shall be made by the Company whereby the Holder of this Warrant,
on
the exercise hereof as provided in Section 1, at any time after the consummation
of such reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Common Stock
(or
Other Securities) issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash)
to
which such Holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such Holder had so
exercised this Warrant, immediately prior thereto, all subject to further
adjustment thereafter as provided in Section 3.
2.2. Dissolution. In
the event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock
and
other securities and property (including cash, where applicable) receivable
in
accordance with Section 2.1 by the Holder of the Warrants upon their exercise
after the effective date of such dissolution pursuant to this Section
2.
2.3 Adjustment
of Warrant Exercise Price and Number of Shares upon Issuance of Common Stock
or
Common Stock Derivatives. So long as this Warrant is outstanding,
if Company (a) issues or sells, or is deemed to have issued or sold, any shares
of Common Stock (including the issuance or sale of shares of Common Stock owned
or held by or for the account of the Company); or (b) issues or sells or
reprices any options or convertible securities (but excluding shares of Common
Stock, options or convertible securities issued or deemed to have been issued
by
the Company in connection with an Approved Stock Plan) for a consideration
per
share less than a price (the “Applicable Price”) equal to
the Purchase Price in effect immediately prior to such issuance or
sale or repricing, then immediately after such issue or sale the Purchase Price
shall be reduced to the Applicable Price. “Approved Stock Plan” means
any employee benefit plan which has been approved by the Board of Directors
of
the Company, pursuant to which the Company’s securities may be issued to any
employee, officer or director for services provided to the Company in that
capacity.
2.4. Continuation
of Terms. Upon any reorganization, consolidation, merger or
transfer (and any dissolution following any transfer) referred to in this
Section 2, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the Other Securities and property receivable
on
the exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any
such
transfer, as the case may be, and shall be binding upon the issuer of any Other
Securities, including, in the case of any such transfer, the person acquiring
all or substantially all of the properties or assets of the Company, whether
or
not such person shall have expressly assumed the terms of this Warrant as
provided in Section 3. In the event this Warrant does not continue in
full force and effect after the consummation of the transaction described in
this Section 2, then only in such event will the Company’s securities and
property (including cash, where applicable) receivable by the Holder of the
Warrants be delivered to the Trustee as contemplated by Section
2.2.
3. Extraordinary
Events Regarding Common Stock. In the event that the Company
shall (a) issue additional shares of Common Stock as a dividend or other
distribution on outstanding Common Stock, (b) subdivide its outstanding shares
of Common Stock, or (c) combine its outstanding shares of the Common Stock
into
a smaller number of shares of the Common Stock, then, in each such event, the
Purchase Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Purchase Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Purchase Price then in effect.
The
Purchase Price, as so adjusted, shall be readjusted in the same manner upon
the
happening of any successive event or events described herein in this
Section 3. The number of shares of Common Stock that the Holder of this Warrant
shall thereafter, on the exercise hereof as provided in Section 1, be entitled
to receive shall be adjusted to a number determined by multiplying the number
of
shares of Common Stock that would otherwise (but for the provisions of this
Section 3) be issuable on such exercise by a fraction of which (a) the numerator
is the Purchase Price that would otherwise (but for the provisions of this
Section 3) be in effect, and (b) the denominator is the Purchase Price in effect
on the date of such exercise.
4. Certificate
as to Adjustments. In each case of any adjustment or readjustment
in the shares of Common Stock (or Other Securities) issuable on the exercise
of
the Warrants, the Company at its expense will promptly cause its Chief Financial
Officer or other appropriate designee to compute such adjustment or readjustment
in accordance with the terms of the Warrant and prepare a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon
which
such adjustment or readjustment is based, including a statement of (a) the
consideration received or receivable by the Company for any additional shares
of
Common Stock (or Other Securities) issued or sold or deemed to have been
issued or sold, (b) the number of shares of Common Stock (or Other Securities)
outstanding or deemed to be outstanding, and (c) the Purchase Price and the
number of shares of Common Stock to be received upon exercise of this Warrant,
in effect immediately prior to such adjustment or readjustment and as adjusted
or readjusted as provided in this Warrant. The Company will forthwith mail
a
copy of each such certificate to the Holder of the Warrant and any Warrant
Agent
of the Company (appointed pursuant to Section 9 hereof).
5. Reservation
of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements. The Company will at all times reserve and keep
available, solely for issuance and delivery on the exercise of the Warrants,
all
shares of Common Stock (or Other Securities) from time to time issuable on
the
exercise of the Warrant. This Warrant entitles the Holder hereof to
receive copies of all financial and other information distributed or required
to
be distributed to the holders of the Company’s Common Stock.
6. Assignment;
Exchange of Warrant. Subject to compliance with applicable
securities laws, this Warrant, and the rights evidenced hereby, may be
transferred by any registered holder hereof (a “Transferor”). On the surrender
for exchange of this Warrant, with the Transferor’s endorsement in the form of
Exhibit B attached hereto (the “Transferor Endorsement Form”) and together with
an opinion of counsel reasonably satisfactory to the Company that the transfer
of this Warrant will be in compliance with applicable securities laws, the
Company at its expense, twice, only, but with payment by the Transferor of
any
applicable transfer taxes, will issue and deliver to or on the order of the
Transferor thereof a new Warrant or Warrants of like tenor, in the name of
the Transferor and/or the transferee(s) specified in such Transferor Endorsement
Form (each a “Transferee”), calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock called for on the face or
faces
of the Warrant so surrendered by the Transferor. No such transfers
shall result in a public distribution of the Warrant.
7. Replacement
of Warrant. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and,
in
the case of any such loss, theft or destruction of this Warrant, on delivery
of
an indemnity agreement or security reasonably satisfactory in form and amount
to
the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense, twice only, will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
8. Piggyback
Registration Rights. If at any time, or from time to
time, during the five year period following the issuance of the Warrant the
Company shall determine to prepare and file with the Securities and Exchange
Commission (“SEC”), a registration statement relating to an offering for its own
account or the account of others under the Act of any of its equity securities
or debt or their then equivalents (not including a registration statement of
Form S-4 or Form S-8 or other special purpose forms) (the “Registration
Statement”), then the Company shall send to the Holder a written notice of such
determination and, if within ten (10) days after receipt by the Holder, the
Company shall receive a request in writing from the Holder, the Company shall
include in such Registration Statement all or any part of such Warrant Shares
such Holder requests to be registered, provided however, that (a) if, at any
time after giving written notice of its intention to register any securities
and
prior to the effective date of the Registration Statement filed in connection
with such registration, the Company determines for any reason not to proceed
with such registration, the Company shall be relived of its obligation to
register any Warrant Shares in connection with such registration, and (B) in
case of a determination by the Company to delay registration of its securities,
the Company will be permitted to delay the registration of the Warrant Shares
for the same period as the delay in registering such other securities, in any
such case without any obligation or liability to the
Holder.
9. Warrant
Agent. The Company may, by written notice to the Holder of the
Warrant, appoint an agent (a “Warrant Agent”) for the purpose of issuing Common
Stock (or Other Securities) on the exercise of this Warrant pursuant to Section
1, exchanging this Warrant pursuant to Section 6, and replacing this
Warrant pursuant to Section 7, or any of the foregoing, and thereafter any
such
issuance, exchange or replacement, as the case may be, shall be made at such
office by such Warrant Agent.
10. Transfer
on the Company’s Books. Until this Warrant is
transferred on the books of the Company, the Company may treat the registered
holder hereof as the absolute owner hereof for all purposes, notwithstanding
any
notice to the contrary.
11. Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice
is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur or (c) three
business days after deposited in the mail if delivered pursuant to subsection
(ii) above. The addresses for such communications shall be: (i) if to
the Company to: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, and (ii) if to the
Holder, to the addresses and telecopier number set forth in the first paragraph
of this Warrant. The Company may change its address for notices but
only to an address and fax number located in the United States.
12. Miscellaneous. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. This Warrant shall
be construed and enforced in accordance with and governed by the laws of New
York. Any dispute relating to this Warrant shall be adjudicated in
New York County in the State of New York. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability
of
any other provision.
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
ACCELERIZE
NEW MEDIA,
INC.
By:_________________________
Name:_______________________
Title:________________________
Witness:
_____________________________
Exhibit
A
FORM
OF
SUBSCRIPTION
(to
be
signed only on exercise of Warrant)
TO: ACCELERIZE
NEW MEDIA, INC.
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
| ___ |
________
shares of the Common Stock covered by such Warrant;
or
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|
___
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the
maximum number of shares of Common Stock covered by such Warrant
pursuant
to the cashless exercise procedure set forth in Section
1.
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The
undersigned herewith makes payment of the full purchase price for such shares
at
the price per share provided for in such Warrant, which is
$___________. Such payment takes the form of (check applicable box or
boxes):
| ___ |
$__________
in lawful money of the United States;
and/or
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|
___
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the
cancellation of the Warrant to the extent necessary, in accordance
with
the formula set forth in Section 1, to exercise this Warrant with
respect
to the maximum number of shares of Common Stock purchasable pursuant
to
the cashless exercise procedure set forth in Section
1.
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The
undersigned requests that the certificates for such shares be issued in the
name
of, and delivered to _______________________________________ whose address
is________________________________________________
The
undersigned represents and warrants that the representations and warranties
in
Section 4 of the Subscription Agreement (as defined in this Warrant) are true
and accurate with respect to the undersigned on the date hereof.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act, or
pursuant to an exemption from registration under the Securities
Act.
Dated:___________________________
_________________________________
(Signature
must conform to name of holder as
specified
on the fact of the
Warrant.)
_________________________________
_________________________________
(Address)
Exhibit
B
FORM
OF
TRANSFEROR ENDORSEMENT
(To
be
signed only on transfer of Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferees” the right represented by
the within Warrant to purchase the percentage and number of shares of Common
Stock of ACCELERIZE NEW MEDIA, INC. to which the within Warrant relates
specified under the headings “Percentage Transferred” and “Number Transferred,”
respectively, opposite the name(s) of such person(s) and appoints each such
person Attorney to transfer its respective right on the books of ACCELERIZE
NEW
MEDIA, INC. with full power of substitution in the premises.
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Transferees
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Percentage
Transferred
|
Number
Transferred
|
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Dated: ______________,
___________
Signed
in the presence of:
___________________________________
(Name)
ACCEPTED
AND AGREED:
[TRANSFEREE]
______________________________
(Name)
|
_____________________________________________
(Signature
must conform to name of holder as
specified
on the face of the warrant)
__________________________________________
__________________________________________
(address)
__________________________________________
__________________________________________
(address)
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