EXHIBIT 4.2
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). THEY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
BE INCORPORATED
WARRANT TO PURCHASE UP TO ____________ SHARES OF
COMMON STOCK
(VOID AFTER MARCH 31, 2001)
This certifies that __________________________, or his assigns, for value
received, is entitled to purchase from Be Incorporated, a California corporation
(the "Company"), up to _______________ shares of fully paid and nonassessable
Common Stock of the Company (the "Common Stock") at a price of one dollar
($1.00) per share (the "Warrant Price"), upon surrender to the Company at its
principal offices of this Warrant properly endorsed with the form of
Subscription Notice attached hereto completed and duly signed and upon payment
in cash or by check of the Warrant Price for the number of shares for which this
Warrant is exercised, which shall not exceed the number of shares that have then
become exercisable hereunder.
This Warrant shall expire at 5:00 p.m. (California time) on March 31, 2001
with respect to all shares other than those that have been exercised prior to
that time.
This Warrant is subject to the following terms and conditions:
1. The purchase rights represented by this Warrant are exercisable at the
option of the holder of record hereof, either as an entirety, or for any part of
the number of shares of Common Stock (but not for a fraction of a share) which
may be purchased hereunder.
2. The Company agrees at all times to reserve a sufficient number of
shares of authorized but unissued Common Stock, when and as required for the
purpose of complying with the terms of this Warrant.
3. Nothing contained in this Warrant shall be construed as conferring
upon the holder hereof or any other person the right to vote or to consent or to
receive notice as a shareholder in respect of meetings of shareholders for the
election of directors of the Company or any other matters or any rights
whatsoever as a shareholder of the Company; and no dividends or interest shall
be payable or accrued in respect of this Warrant or the interest represented
hereby or the shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised.
4. This Warrant is transferable on the books of the Company at its
principal office by the above named holder of record in person or by duly
authorized attorney, upon surrender to this Company properly endorsed. If there
is no such transfer, the Company may treat the original holder of record of this
Warrant as the absolute owner hereof for all purposes and shall not be affected
by any notice to the contrary.
5. In the event of changes in the outstanding Common Stock of the Company
by reason of stock dividends, split-ups, recapitalizations, reclassifications,
mergers, consolidations, combinations or exchanges of shares, separations,
reorganizations, liquidations, or the like, the number and class of shares
available under the Warrant in the aggregate and the Warrant Price shall be
correspondingly adjusted by the Board of Directors of the Company. The
adjustment shall be such as will give the holder of the Warrant upon exercise,
with respect to all shares of Common Stock that have not been exercised at that
time, for the same aggregate Warrant Price the total number, class and kind of
shares as he would have owned had the Warrant been exercised prior to the event
and had he continued to hold such shares until after the event requiring
adjustment.
6. No fractional share shall be issued upon exercise of this Warrant.
7. In the event of any reclassification or recapitalization of the
capital stock of the Company, any merger or consolidation of the Company, or any
transfer of all or substantially all of the assets of the Company to any other
corporation, entity, or person, or any voluntary or involuntary dissolution,
liquidation, or winding up of the Company, the Company shall mail to the holder
of this Warrant at least thirty (30) days prior to the record date specified
therein, a notice specifying (i) the date on which any such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation, or
winding up is expected to become effective, (ii) the time, if any, that is to be
fixed, as to when the holders of record of Common Stock (or other securities)
shall be entitled to exchange their shares of Common Stock (or other securities)
for securities or other property deliverable upon such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation, or
winding up, and (iii) the terms of the merger.
8. The Company will pay all taxes and other governmental charges that may
be imposed in respect of the issue or delivery of shares of Common Stock upon
exercise of this Warrant, including, without limitation, any tax or other charge
imposed in connection with any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which this Warrant was so
registered.
9. This Warrant has not been registered under the Act. Neither this
Warrant nor any interest herein may be sold, offered for sale, pledged,
hypothecated or otherwise transferred without an effective registration
statement for the Warrant under such Act, an opinion of counsel satisfactory to
the Company that registration is not required or an applicable exemption from
such Act. Each certificate representing any shares of Common Stock issued upon
the exercise of this Warrant shall bear the following legend (in addition to any
legend required under applicable state securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY
2
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
10. This Warrant is issued in and shall be governed by the laws of the
State of California, as applied to contracts entered into in California between
California residents and to be performed entirely within California.
11. This Warrant is the only warrant issued by the Company to the holder
and supersedes and cancels all prior warrants issued by the Company to the
holder, whether or not such prior warrants have become exercisable or have been
transferred without notice to the Company.
IN WITNESS WHEREOF the Company has caused this Warrant to be duly executed
by its officers thereunto duly authorized this ____ day of ___________, 19__.
BE INCORPORATED
____________________________
ATTEST:
______________________________
3
SUBSCRIPTION NOTICE
(TO BE SIGNED ONLY UPON EXERCISE OF WARRANT)
To_______________________:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, __________ ____________ (__________ ) shares of Common
Stock of Be Incorporated and herewith makes payment of ( $ ) therefor, and
requests that the certificates for such shares be issued in the name of, and
delivered to, ____________________________ whose address is
_____________________________________________________________.
_______________________________________________________________________________
The undersigned represents that it is acquiring such Common Stock for its
own account for investment and not with a view to or for sale in connection with
any distribution thereof (subject, however, to any requirement of law that the
disposition thereof shall at all times be within its control.)
DATED:___________________
__________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
__________________________________________
__________________________________________
(Address)
1