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Exhibit 10.20
NEITHER THIS WARRANT NOR ANY SHARES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE
SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY SUCH SHARES MAY BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND STATE SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM SUCH REGISTRATION.
WARRANT NO. FOR THE PURCHASE OF SHARES
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AXCESS INC.
COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, _______________________
("_____________"), or its successors in interest, assigns or transferees
(collectively, the "Warrant Holder"), is entitled to purchase from AXCESS Inc.,
a Delaware corporation (the "Company"), __________ shares of the Company's
Common Stock (as defined in paragraph 9(a) hereof) (the "Warrant Shares") at
the exercise price of _______________________ ($______) per share ("Exercise
Price"). The number of Warrant Shares and the Exercise Price shall be adjusted
and readjusted or changed from time to time in accordance with paragraph 4
hereof.
This Warrant may be exercised at any time and from time to time on or
prior to the third anniversary of the date of issuance set forth on the
signature page of this Warrant.
1. Exercise of Warrant.
The rights represented by this Warrant may be exercised by the Warrant
Holder, in whole or in part, by (a) delivering to the Company a duly executed
notice of exercise in the form of Annex A hereto and (b) at the Warrant
Holder's option, either (i) delivering a check payable to (or wire transfer to
the account of) the Company in an amount equal to the product of (x) the
Exercise Price times (y) the number of Warrant Shares as to which this Warrant
is being exercised (such product, the "Total Exercise Price") or (ii)
delivering to the company a letter (the "Conversion Letter") requesting
conversion or exchange of a portion of any
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indebtedness owed by the Company to the Warrant Holder in an amount equal to
the Total Exercise Price or (iii) surrendering to the Company a portion of this
Warrant with a "Value" (as defined below) equal to the Total Exercise Price.
For the purpose of clause (b)(iii) above, "Value" shall mean the product of (I)
the amount by which the average closing price per share of the Company's Common
Stock over the ten trading days preceding the date of exercise, as reported in
the Wall Street Journal, exceeds the Exercise Price and (II) the number of
Warrant Shares as to which this Warrant is surrendered for the purpose of
effecting payment for Warrant Shares. This Warrant shall be deemed to have
been exercised immediately prior to the close of business on the date of
delivery of a duly executed notice of exercise, together with the amount (in
cash or by delivering the Conversion Letter or by surrender of a portion of
this Warrant) payable upon exercise of this Warrant and, as of such moment, (i)
the rights of the Warrant Holder, as such, with respect to the number of
Warrant Shares as to which this Warrant is being exercised (and, if applicable,
surrendered as payment of the Total Exercise Price) shall cease, and (ii) such
Warrant Holder shall be deemed to be the record holder of the shares of Common
Stock issuable upon such exercise. As soon as practicable after the exercise,
in whole or in part, of this Warrant, and in any event within 5 business days
thereafter, the Company at its expense (including the payment by it of any
applicable issuance or stamp taxes) will cause to be issued in the name of and
delivered to the Warrant Holder, or as the Warrant Holder (upon payment by the
Warrant Holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock to which the Warrant Holder shall be entitled upon such exercise. In the
event of partial exercise of this Warrant and, if applicable, partial surrender
of this Warrant pursuant to clause (b)(iii) of this paragraph, the Warrant need
not be delivered to the Company provided that the Warrant Holder agrees to make
a notation of such partial exercise and, if applicable, surrender on the
Warrant. If this Warrant is delivered to the Company, the Company shall issue
and deliver to the Warrant Holder a new Warrant evidencing the rights to
purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical to this Warrant.
2. Investment Representation.
The Warrant Holder by accepting this Warrant represents that the
Warrant Holder is acquiring this Warrant for its own account or the account of
an affiliate for investment purposes and not with the view to any offering or
distribution and that the Warrant Holder will not sell or otherwise dispose of
this Warrant or the underlying Warrant Shares in violation of applicable
securities laws. The Warrant
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Holder acknowledges that the certificates representing any Warrant Shares will
bear a legend indicating that they have not been registered under the Act, and
may not be sold by the Warrant Holder except pursuant to an effective
registration or pursuant to an exemption from registration. The Warrant Holder
shall be entitled to include the Warrant Shares in any demand or piggyback
registration to which Warrant Holder is otherwise entitled in respect of Common
Stock held by it, in accordance with (and subject to) the terms and conditions
of any agreement between the Company and the Warrant Holder with respect to
such registration rights.
3. Validity of Warrant and Issue of Shares.
The Company represents and warrants that this Warrant has been duly
authorized and validly issued and covenants and agrees that all shares of
Common Stock that may be issued upon the exercise of the rights represented by
this Warrant will, when issued upon such exercise, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees
that during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant.
4. Antidilution Provisions.
The terms of this Warrant shall be subject to adjustment as follows:
(a) If the Company shall (i) pay a stock dividend or make a
distribution to holders of Common Stock in shares of its Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock of
the Company, (A) the Exercise Price shall be increased or decreased, as the
case may be, to an amount which shall bear the same relation to the Exercise
Price in effect immediately prior to such action as the total number of shares
outstanding immediately prior to such action shall bear to the total number of
shares outstanding immediately after such action and (B) this Warrant
automatically shall be adjusted so that it shall thereafter evidence the right
to purchase the kind and number of Warrant Shares or other securities which the
Warrant Holder would have owned and would have been entitled to receive after
such action if this Warrant had been exercised
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immediately prior to such action or any record date with respect thereto. An
adjustment made pursuant to this subparagraph (a) shall become effective
retroactively immediately after the record date in the case of a dividend or
distribution of Common Stock and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
(b) If the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of (i) assets (other than cash dividends or cash
distributions payable out of consolidated net income or retained earnings or
dividends payable in Common Stock), (ii) evidences of indebtedness or other
debt or equity securities of the Company, or of any corporation other than the
Company (except for the Common Stock of the Company) or (iii) subscription
rights, options or warrants to purchase any of the foregoing assets or
securities, whether or not such rights, options or warrants are immediately
exercisable (hereinafter collectively called "Distributions on Common Stock"),
the Company shall make provisions for the Warrant Holder to receive upon
exercise of this Warrant, a proportional amount (depending upon the extent to
which this Warrant is exercised) of such assets, evidences of indebtedness,
securities or such other rights, as if such Warrant Holder had exercised this
Warrant on or before such record date.
(c) In the case of any consolidation or merger of the Company with
or into another corporation or the sale of all or substantially all the assets
of the Company to another person or entity, this Warrant thereafter shall be
exercisable for the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Company deliverable upon exercise of this Warrant would have been entitled upon
such consolidation, merger or sale; and, in such case, appropriate adjustment
shall be made in the application of the provisions in this paragraph 4, to the
end that the provisions set forth in this paragraph 4 (including provisions
with respect to changes in and adjustments of the exercise price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other securities or property thereafter deliverable upon the
exercise of this Warrant.
(d) Upon the occurrence of each adjustment or readjustment of the
exercise price or any change in the number of Warrant Shares or in the shares
of stock or other securities or property deliverable upon exercise of this
Warrant pursuant to this paragraph 4, the Company at its expense shall promptly
compute such adjustment or readjustment and change in accordance with the terms
hereof
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and furnish to each holder hereof a certificate signed by the chief financial
officer of the Company, setting forth such adjustment or readjustment and
change and showing in detail the facts upon which such adjustment or
readjustment and change is based. The Company shall, upon the written request
at any time of the Warrant Holder, furnish or cause to be furnished to such
Holder, a similar certificate setting forth (i) such adjustment or readjustment
and change, (ii) the Exercise Price then in effect, and (iii) the number of
Warrant Shares and the amount. if any, of other shares of stock and other
securities and property which would be received upon the exercise of the
Warrant.
(e) The Company shall not be required upon the exercise of this
Warrant to issue any fraction of shares, but shall make any adjustment therefor
by rounding the number of shares obtainable upon exercise to the next highest
whole number of shares.
5. Transfer of Rights.
This Warrant is transferable in whole or in part, at the option of the
Warrant Holder upon delivery of the Warrant Assignment Form annexed as Annex B
hereto, duly executed. The Company shall execute and deliver a new Warrant or
Warrants in the form of this Warrant with appropriate changes to reflect the
issuance of subsequent Warrants, in the name of the assignee or assignees named
in such instrument of assignment and, if the Warrant Holder's entire interest
is not being transferred or assigned, in the name of the Warrant Holder, and
this Warrant shall promptly be canceled. Any transfer or exchange of this
Warrant shall be without charge to the Warrant Holder and any new Warrant or
Warrants issued shall be dated the date hereof. The term "Warrant" as used
herein includes any Warrants into which this Warrant may be divided or for
which it may be exchanged. The Warrant Holder (and not the Company) will be
responsible for any stamp, transfer or other taxes payable on any such
transfer.
6. Lost, Mutilated or Missing Warrant.
Upon receipt by the Company of evidence satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and upon surrender and
cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like denomination and date.
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7. Rights of Warrant Holder.
The Warrant Holder shall not, by virtue hereof, be entitled to any
voting or other rights of a shareholder of the Company, either at law or
equity, and the rights of the Warrant Holder are limited to those expressed in
this Warrant.
8. Successors.
All the provisions of this Warrant by or for the benefit of the
Company or the Warrant Holder shall bind and inure to the benefit of their
respective successors and assigns.
9. Miscellaneous.
(a) As used herein, the term "Common Stock" shall mean and include
the Company's currently authorized common stock, $.01 par value per share, and
stock of any other class or other consideration into which such currently
authorized Common Stock may hereafter have been changed.
(b) This Warrant shall be construed in accordance with and
governed by the laws of the State of Delaware.
(c) The caption headings used in this Warrant are for convenience
of reference only and shall not be construed in any way to affect the
interpretation of any provisions of this Warrant.
10. Notices.
Any notice pursuant to this Warrant shall be effective if sent by
first class mail, postage prepaid, or delivered by facsimile transmission,
addressed as follows:
If to the Company, then to it at:
AXCESS Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(or to such other address as the Company may have furnished in writing
to the Warrant Holder for this purpose); and
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If to the Warrant Holder, then to it at such address as such Warrant
Holder may have furnished in writing to the Company for this purpose.
IN WITNESS WHEREOF, the Company, intending to be legally bound hereby, has
caused this Warrant to be signed by its Vice President, and attested by its
Secretary or Assistant Secretary as of the date set forth below.
AXCESS INC.
By:
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Name:
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Title:
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Attest:
Name:
Title:
ISSUANCE DATE:
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ANNEX A
COMMON STOCK PURCHASE WARRANT
NOTICE OF EXERCISE
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To: AXCESS INC.
The undersigned, pursuant to the provisions set forth in Warrant No. ________,
hereby irrevocably elects and agrees to purchase ________ shares of the
Company's Common Stock covered by such Warrant, and makes payment herewith in
full therefor of the Total Exercise Price of $__________.
The undersigned hereby represents that the undersigned is exercising such
Warrant for its own account or the account of an affiliate and will not sell or
otherwise dispose of the underlying Warrant Shares in violation of applicable
securities laws. If said number of shares is less than all of the shares
purchasable hereunder the undersigned requests that a new Warrant evidencing
the rights to purchase the remaining Warrant Shares (which new Warrant shall in
all other respects be identical to the Warrant exercised hereby) be registered
in the name of ____________________________________ whose address is:
Signature:
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Printed Name:
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Address:
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ANNEX B
ASSIGNMENT
FOR VALUE RECEIVED ______________________ hereby sells, assigns and
transfers all of its rights as set forth in Warrant No. ________ with respect
to the shares of the Company's Common Stock covered thereby as set forth below
unto:
NAME OF ASSIGNEE(S) ADDRESS(ES) NO. OF SHARES
All notices to be given by the Company to the Warrant Holder pursuant
to paragraph 10 of Warrant No. ________ shall be sent to the Assignee(s) at the
above stated address(es), and, if the number of shares being hereby assigned is
less than all of the shares covered by Warrant No. ________, than also to the
undersigned.
The undersigned requests that the Company execute and deliver, if
necessary to comply with the provisions of paragraph 5 of Warrant No. ________,
a new Warrant or, if the number of shares being hereby assigned is less than
all of the shares covered by Warrant No. ________, new Warrants in the name of
the undersigned, the assignee and/or the assignees, as is appropriate.
Dated:
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Signature:
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Printed Name:
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Address:
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