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EXHIBIT 4.5
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
(COLLECTIVELY THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") BUT HAVE BEEN
OFFERED AND SOLD IN RELIANCE ON THE EXEMPTIONS FROM REGISTRATION PROVIDED BY
REGULATION D AND REGULATION S PROMULGATED UNDER THE SECURITIES ACT. THE
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE
SECURITIES ACT OR THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL STATING THAT SUCH DISPOSITION
DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND THAT SUCH
DISPOSITION IS IN COMPLIANCE WITH ALL OTHER APPLICABLE LAWS, RULES, REGULATIONS
AND ORDINANCES.
HARBINGER CORPORATION
WARRANT
FOR THE PURCHASE
OF SHARES OF COMMON STOCK
WARRANT NO: ____________________ DATE OF GRANT: DATE, 1996
HOLDER: ________________________
NUMBER OF SHARES: ______________ PURCHASE PRICE PER SHARE: $_____
FOR VALUE RECEIVED, HARBINGER CORPORATION, a Georgia corporation (the
"Company"), hereby certifies that ______________________________________ (the
"Holder"), is entitled, subject to the provisions of this Warrant, to purchase
from the Company, during the period commencing on the date hereof and ending on
the Expiration Date (as defined in Section 1 below), up to _________________
fully paid and non-assessable shares of Common Stock at the Purchase Price Per
Share set forth above (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $.0001 per
share, of the Company as constituted on date, 1996 (the "Issue Date"). The
number of shares of Common Stock to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth. The shares
of Common Stock deliverable upon such exercise, and as adjusted from time to
time, are hereinafter referred to as "Warrant Stock." The term "Other
Securities" means any other equity or debt securities that may be issued by the
Company in addition thereto or in substitution for the Warrant Stock. The term
"Company" means and includes the corporation named above as well as (i) any
immediate or more remote successor corporation resulting from the merger or
consolidation of such corporation (or any immediate or more remote successor
corporation of such corporation) with another corporation, or (ii) any
corporation to which such corporation (or any immediate or more remote
successor corporation of such corporation) has transferred its property or
assets as an entirety or substantially as an entirety.
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Upon receipt by the Company of evidence reasonably 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
shall execute and deliver a new Warrant of like tenor and date. 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.
The Holder agrees with the Company that this Warrant is issued, and
all the rights hereunder shall be held, subject to all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF WARRANT. This Warrant may be exercised in
whole or in part at any time, or from time to time, during the period
commencing on the date hereof and expiring 5:00 p.m. Eastern Time on the second
anniversary of the date hereof (the "Expiration Date") or, if such day is a day
on which banking institutions in New York are authorized by law to close, then
on the next succeeding day that shall not be such a day (provided, however,
that in no event may this warrant be exercised after date, 199__), 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 Warrant
Exercise Form attached hereto duly executed and accompanied by payment (either
in cash or by certified or official bank check, payable to the order of the
Company) of the Exercise Price for the number of shares specified in such form
and instruments of transfer, if appropriate, duly executed by the Holder or his
or her duly authorized attorney. If this Warrant should be exercised in part
only, the Holder shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable hereunder. Upon receipt by
the Company of this Warrant, together with the Exercise Price, 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. The Company shall pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares
of Common Stock on exercise of this Warrant.
2. RESERVATION OF SHARES. The Company shall at all times
reserve for issuance and delivery upon exercise of this Warrant all shares of
Common Stock or other shares of capital stock of the Company (and Other
Securities) from time to time receivable upon exercise of this Warrant. All
such shares (and Other Securities) shall be duly authorized and, when issued
upon such exercise, shall be validly issued, fully paid and non-assessable and
free of all preemptive rights.
3. FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but the Company shall pay the Holder an amount equal to the fair
market value of such fractional share of Common Stock in lieu of each fraction
of a share otherwise called for upon any exercise of this Warrant. For purposes
of this Warrant, the fair market value of a share of Common Stock shall be
determined as follows:
(a) If the Common Stock is listed on a national
securities exchange within the United States or admitted to unlisted trading
privileges on such exchange or listed for trading on The Nasdaq Stock Market,
the current market value shall be the average of the last reported sale price
of the Common Stock on such exchange or system for the ten trading days
immediately preceding the date of exercise of this Warrant or if no such last
sale is made or reported on any of such trading days, the average of the
closing bid and closing asked prices for such day on such exchange or system;
or
(b) If the Common Stock is not so listed or
admitted to unlisted trading privileges, the current market value shall be the
mean of the last reported bid and asked prices reported by the National
Quotation Bureau, Inc. on the last business day prior to the date of the
exercise of this Warrant; or
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(c) If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked prices are not so
reported, the current market value shall be an amount, not less than book value
thereof as at the end of the most recent fiscal year of the Company ending
prior to the date of the exercise of the Warrant, determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company.
4. HOLDER DOES NOT HAVE THE RIGHTS OF A SHAREHOLDER.
The Holder shall not, by virtue hereof, be entitled to any rights of a
shareholder in the Company, either at law or in equity, and the rights of the
Holder are limited to those expressed in this Warrant.
5. ANTI-DILUTION PROVISIONS.
5.1 ADJUSTMENT FOR RECAPITALIZATION. If the
Company shall at any time subdivide its outstanding shares of Common Stock (or
other securities at the time receivable upon the exercise of the Warrant) by
recapitalization, reclassification or split-up thereof, or if the Company shall
declare a stock dividend or distribute shares of Common Stock to its
stockholders, the number of shares of Common Stock subject to this Warrant
immediately prior to such subdivision shall be proportionately increased, and
if the Company shall at any time combine the outstanding shares of Common Stock
by recapitalization, reclassification or combination thereof, the number of
shares of Common Stock subject to this Warrant immediately prior to such
combination shall be proportionately decreased. Any such adjustment, and any
adjustment to the Exercise Price pursuant to this Section 5.1; shall be
effective at the close of business on the effective date of such subdivision or
combination or if any adjustment is the result of a stock dividend or
distribution then the effective date for such adjustment based thereon shall be
the record date therefor. Whenever the number of shares of Common Stock
purchasable upon the exercise of this Warrant is adjusted, as provided in this
Section 5.1, the Exercise Price shall be adjusted to the nearest cent by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise immediately prior to such adjustment, and
(y) the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
5.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION,
MERGER, ETC. In case of any reorganization of the Company (or any other
corporation, the securities of which are at the time receivable on the exercise
of this Warrant) after the Issue Date or in case after such date the Company
(or any such other corporation) shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant upon the
exercise thereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the securities and property receivable upon the exercise of
this Warrant prior to such consummation, the securities or property to which
such Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto; in each such case, the terms
of this Warrant shall be applicable to the securities or property receivable
upon the exercise of this Warrant after such consummation.
5.3 RESTRICTIONS ON CERTAIN ACTIONS. The Company
shall not, by amendment of its Articles of Incorporation or through
reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of the Warrant. Without
limiting the generality of the foregoing, while any Warrant is outstanding, the
Company (a) shall not permit the par value, if any, of the shares of stock
receivable upon the exercise of this Warrant to be above the amount payable
therefor upon such exercise and (b) shall take all such action as may be
necessary or appropriate in order that the Company may validly and legally
issue or sell fully paid and non-assessable stock upon the exercise of all
Warrants at the time outstanding.
5.4 CERTIFICATE AS TO ADJUSTMENTS. In each case
of an adjustment in the number of shares of Common Stock receivable on the
exercise of the Warrant, the Company at its expense shall promptly compute such
adjustment in accordance with the terms of the Warrant and prepare a
certificate executed by an executive officer of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company shall forthwith mail a copy of each such certificate to the Holder.
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6. TRANSFER TO COMPLY WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS. This Warrant and any Warrant Stock or Other Securities may not
be sold, transferred, pledged, hypothecated or otherwise disposed of except as
follows: (a) to a person who, in the opinion of counsel to the Company, is a
person to whom this Warrant or the Warrant Stock or Other Securities may
legally be transferred without registration and without the delivery of a
current prospectus under the Securities Act with respect thereto, and in
compliance with all other laws, rules, regulations, and ordinances, and then
only against receipt of an agreement of such person to comply with the
provisions of this Section 6 with respect to any resale or other disposition of
such securities; or (b) 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. In the event any Holder
shall propose to sell, transfer, pledge, or hypothecate or otherwise dispose of
this Warrant, such Holder shall first (i) 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, and (ii) deliver to the Company of the opinion of counsel to the
Holder as required by the legend set forth at Section 7 hereof. Upon receipt
of the foregoing and provided that the Company has received an opinion of its
counsel that such proposed sale, transfer, pledge or hypothecation is in
compliance with all applicable laws, rules, regulations and ordinances, the
Company shall 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.
7. LEGEND. Unless the shares of Warrant Stock or Other
Securities have been registered under the Securities Act, upon exercise of any
of the Warrants and the issuance of any of the shares of Warrant Stock, all
certificates representing shares shall bear on the face thereof substantially
the following legend:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND ISSUABLE UPON
EXERCISE HEREOF (COLLECTIVELY THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER THE PROVISIONS OF THE SECURITIES LAWS OF
ANY OTHER JURISDICTION, BUT HAVE BEEN ACQUIRED BY THE REGISTERED
HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN RELIANCE ON STATUTORY
EXEMPTIONS UNDER THE SECURITIES ACT, AND IN COMPLIANCE WITH ALL OTHER
APPLICABLE LAWS, RULES, REGULATIONS AND ORDINANCES. THE SECURITIES
MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT IN A
TRANSACTION WHICH IS EXEMPT UNDER PROVISIONS OF THE SECURITIES ACT,
AND WHICH IS IN COMPLIANCE WITH ALL OTHER APPLICABLE SECURITIES LAWS,
RULES, REGULATIONS AND ORDINANCES, OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR IN A TRANSACTION OTHERWISE IN COMPLIANCE
WITH SUCH APPLICABLE LAWS, RULES, REGULATIONS AND ORDINANCES; AND IN
THE CASE OF AN EXEMPTION, ONLY IF THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION OF THE SECURITIES UNDER THE SECURITIES ACT, AND
THAT SUCH TRANSACTION IS IN COMPLIANCE WITH ALL OTHER APPLICABLE LAWS,
RULES, REGULATIONS AND ORDINANCES.
8. NOTICES. All notices required hereunder shall be in
writing and shall be deemed given when delivered personally, when delivered by
facsimile against an electronic acknowledgment of delivery thereto, when
delivered by a reputable world-wide courier contracting for delivery in three
days or less, or five days after mailing when mailed by certified or registered
mail, return receipt requested, to the Company or the Holder, as the case may
be, for whom such notice is intended, at the address of such party as set forth
below, or at such other address of which the Company or the Holder has been
advised by notice hereunder.
9. APPLICABLE LAW. The Warrant is issued under and shall
for all purposes be governed by and construed in accordance with the laws of
the State of Georgia, United States of America, without giving effect to the
conflict of laws rules applicable therein.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
on its behalf, in its corporate name, by its duly authorized officer, all as of
the day and year first above written.
Attest:
HARBINGER CORPORATION
By:
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▇▇▇▇ ▇. ▇▇▇▇, Secretary C. ▇▇▇▇▇ ▇▇▇▇▇, Chairman and
Chief Executive Officer
[Corporate Seal]
Address of Holder Address of Company:
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