Exhibit 4.8.5
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. NEITHER THIS
WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
OFFERED FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES AND BLUE SKY LAW.
WARRANT
Warrant No. ________ _______________, 20___
To Purchase ___________ Shares of Common Stock of
First Montauk Financial Corp., a New Jersey corporation (the "Company")
1. Number of Shares; Exercise Price; Term. This certifies that for good and
valuable consideration, receipt and sufficiency of which are hereby acknowledged
__________ ("Holder") is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time from after the date hereof and at or prior to
11:59 p.m. Central Time, on _______________, 20___ [INSERT DATE FIVE YEARS FROM
DATE OF ISSUANCE] (the "Expiration Time"), but not thereafter, to acquire from
the Company, in whole or in part, from time to time, up to _______ fully paid
and nonassessable shares (the "Shares") of Common Stock, no par value, of the
Company ("Common Stock"), at a purchase price of $0.35 per share (the "Exercise
Price"). The right to purchase all of the Shares under the Warrant shall vest
immediately upon issuance of this Warrant. The number of Shares, type of
security and Exercise Price are subject to adjustment as provided herein, and
all references to "Common Stock" and "Exercise Price" herein shall be deemed to
include any such adjustment or series of adjustments.
2. Exercise of Warrant. The purchase rights represented by this Warrant are
exercisable by the Holder, in whole or in part, at any time, prior to the
Expiration Time, by the surrender of this Warrant and the Notice of Exercise
annexed hereto, all duly completed and executed on behalf of the Holder, at the
office of the Company in Red Bank, New Jersey (or such other office or agency of
the Company as it may designate by notice in writing to the Holder at the
address of the Holder appearing on the books of the Company) and upon payment of
the Exercise Price for the Shares thereby purchased (by cash, certified or
cashier's check, or wire transfer payable to the Company). Thereupon, the Holder
as the holder of this Warrant, shall be entitled to receive from the Company a
stock certificate in proper form representing the number of Shares so purchased,
and a new Warrant in substantially identical form and dated as of such exercise
for the purchase of that number of Shares equal to the difference, if any,
between the number of Shares subject hereto and the number of Shares as to which
this Warrant is so exercised.
3. Issuance of Shares. Certificates for Shares purchased hereunder shall be
delivered to the Holder within a reasonable period of time after the date on
which this Warrant shall have been exercised in accordance with the terms
hereof. All Shares that may be issued upon the exercise of this Warrant shall,
upon such exercise, be duly and validly authorized and issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect of the
issuance thereof (other than liens or charges created by or imposed upon the
Holder as the holder of the Warrant or taxes in respect of any transfer
occurring contemporaneously or otherwise specified herein). The Company agrees
that the Shares so issued shall be and shall for all purposes be deemed to have
been issued to the Holder as the record owner of such Shares as of the close of
business on the date on which this Warrant shall have been exercised or
converted in accordance with the terms hereof. The Company will at all times
reserve and keep available, solely for issuance, sale and delivery upon the
exercise of this Warrant, such number of Shares, equal to the number of such
Shares purchasable upon the exercise of this Warrant.
4. No Fractional Shares or Scrip. No fractional Shares or scrip representing
fractional Shares shall be issued upon the exercise of this Warrant. In lieu of
any fractional Share to which the Holder as the holder hereof would otherwise be
entitled, the Holder shall be entitled, at its option, to receive either (i) a
cash payment equal to the excess of fair market value for such fractional Share
above the Exercise Price for such fractional share (as determined in good faith
by the Company) or (ii) a whole Share if the Holder tenders the Exercise Price
for one whole share.
5. No Rights as Shareholders. This Warrant does not entitle the Holder as a
holder hereof to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof.
6. Exchange and Registry of Warrant. This Warrant is exchangeable, upon the
surrender hereof by the Holder as the registered holder at the office or agency
of the Company referenced in Section 2 hereof, for a new Warrant in
substantially identical form and dated as of such exchange. The Company shall
maintain at the office or agency referenced in Section 2 hereof, a registry
showing the name and address of the Holder as the registered holder of this
Warrant. This Warrant may be surrendered for exchange or exercise, in accordance
with its terms, at the office of the Company, and the Company shall be entitled
to rely in all respects, prior to written notice to the contrary, upon such
registry.
7. Loss, Theft, Destruction or Mutilation of Warrant. 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 indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new Warrant of like tenor and dated as of such cancellation
and reissuance, in lieu of this Warrant.
8. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or a Sunday or shall be a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day not a
Saturday or a Sunday or a legal holiday.
9. Adjustments of Rights. The Exercise Price and/or the number of Shares
purchasable hereunder are subject to adjustment from time to time as follows:
9.1 Special Definitions. For purposes of this Section 9, the following
definitions apply:
(a) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued (or, pursuant to Section 9.3, deemed to be
issued) by the Company after the Note Date, other than shares
of Common Stock issued or issuable:
(i) upon conversion of the Promissory Note;
(ii) upon exercise of this Warrant or any warrant issued in
connection with the Promissory Note;
(iii) upon the exercise of any Anti-Dilution Exempt Securities (as
defined and listed in the Purchase Agreement) for shares of
Common Stock outstanding as of the Note Date;
(iv) for which adjustment of the Exercise Price (defined below)
is made pursuant to the Sections 9.6, 9.7 or 9.8 below;
(b) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities convertible into or
exchangeable for Common Stock, directly or indirectly.
(c) "Exercise Price" shall mean the Exercise Price, as adjusted.
(d) "Note Date" shall mean the date of the Promissory Note.
(e) "Options" shall mean rights, options, or warrants to subscribe
for, purchase or otherwise acquire Common Stock or Convertible
Securities.
9.2 No Adjustment of Exercise Price. No adjustment in the Exercise Price
shall be made in respect of the issuance of Additional Shares of Common
Stock unless the consideration per share (determined pursuant to
Section 9.5 hereof) for an Additional Share of Common Stock issued or
deemed to be issued by the Company is less than the Exercise Price in
effect on the date of, and immediately prior to, such issue.
9.3 Deemed Issue of Additional Shares of Common Stock. In the event the
Company at any time or from time to time after the Note Date shall
issue any Options or Convertible Securities or shall fix a record date
for the determination of holders of any class of securities then
entitled to receive any such Options or Convertible Securities, then
the maximum number of shares (as set forth in the instrument relating
thereto without regard to any provisions contained therein designed to
protect against dilution) of Common Stock issuable upon the exercise of
Options or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be
deemed to be Additional Shares of Common Stock issued as of the time of
such issue or, in case such a record date shall have been fixed, as of
the close of business on such record date, provided that in any such
case in which Additional Shares of Common Stock are deemed to be
issued:
(a) no further adjustments in the Exercise Price shall be made
upon the subsequent issue of such Convertible Securities or
shares of Common Stock upon the exercise of such Options or
conversion or exchange of such Convertible Securities;
(b) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any
increase or decrease in the consideration payable to the
Company, or decrease or increase in the number of shares of
Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Exercise Price computed upon the
original issue thereof (or upon the occurrence of a record
date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under such
Convertible Securities;
(c) upon the expiration of any such Options or any rights of
conversion or exchange under such Convertible Securities which
shall not have been exercised, the Exercise Price computed
upon the original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration, be
recomputed as if:
(i) in the case of Convertible Securities or Options for Common
Stock, the only Additional Shares of Common Stock issued
were the shares of Common Stock, if any, actually
issued upon the exercise of such Options or the conversion
or exchange of such Convertible Securities; and the
consideration received therefor was the consideration
actually received by the Company for the issue of all
such Options, whether or not exercised, plus the
consideration actually received by the Company upon such
exercise, or for the issue of all such Convertible
Securities which were actually converted or exchanged, plus
the additional consideration, if any, actually received
by the Company upon such conversion or exchange; and
(ii) in the case of Options for Convertible Securities, only the
Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of such Options; and
the consideration received by the Company for the Additional
Shares of Common Stock deemed to have been then issued was the
consideration actually received by the Company for the issue
of all such Options, whether or not exercised, plus the
consideration deemed to have been received by the Company upon
the issue of the Convertible Securities with respect to which
such Options were actually exercised;
(d) no readjustment pursuant to subsections (c)(i) or (c)(ii)
above shall have the effect of increasing the Exercise Price
to an amount which exceeds the lower of (i) the Exercise Price
on the original adjustment date immediately prior to such
adjustment, or (ii) the Exercise Price that would have
resulted from other issuances of Additional Shares of Common
Stock between the Note Date and such readjustment date
immediately prior to such adjustment; and
(e) in the case of any Options which expire by their terms not
more than 30 days after the date of issue thereof, no
adjustment of the Exercise Price shall be made until the
expiration or exercise of all such Options, whereupon such
adjustment shall be made.
9.4 Adjustment of Exercise Price Upon Issuance of Additional Shares of
Common Stock. In the event the Company at any time after the Note Date
shall issue Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to Section 9.3)
without consideration or for a consideration per share less than the
Exercise Price in effect on the date of and immediately prior to such
issuance, then and in such event, the Exercise Price shall be reduced,
concurrently with such issuance, to a price (calculated to the nearest
cent) equal to the lower of (1) the Exercise Price in effect on the
date of and immediately prior to such issuance or (2) ninety percent
(90%) of the Weighted Average Dilution Price (the "Recalculated
Price"); provided, that (A) if the Weighted Average Dilution Price is
less than or equal to $0.28 and greater than or equal to $0.25, the
Recalculated Price shall equal $0.25, and (B) if the Weighted Average
Dilution Price is less than $0.25, the Recalculated Price shall equal
the Weighted Average Dilution Price. As used herein, the "Weighted
Average Dilution Price" shall be determined by multiplying the Exercise
Price in effect on the date of and immediately prior to such issuance
by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issuance plus the
number of shares of Common Stock which the aggregate consideration
received by the Company for the total number of Additional Shares of
Common Stock so issued would purchase at the Exercise Price in effect
immediately prior to such issuance; and the denominator of which shall
be the number of shares of Common Stock outstanding immediately prior
to such issuance, plus the number of such Additional Shares of Common
Stock so issued. For the purpose of the foregoing calculation of the
Weighted Average Dilution Price, the number of shares of Common Stock
outstanding immediately prior to such issuance shall be calculated on a
fully converted basis, as if all Convertible Securities had been fully
converted into shares of Common Stock immediately prior to such
issuance; provided that the number of shares of Common Stock deemed
issuable upon conversion or exchange of such outstanding Convertible
Securities shall not give effect to any adjustments to the conversion
or exchange price or conversion or exchange rate of such Convertible
Securities resulting from the issuance of Additional Shares of Common
Stock that is the subject of this calculation).
9.5 Determination of Consideration. For purposes of this Section 9, the
consideration received by the Company for the issue of any Additional
Shares of Common Stock shall be computed as follows:
(a) Cash and Property. Such consideration shall:
(i) insofar as it consists of cash, be computed at the aggregate
amount of cash received by the Company excluding amounts paid
or payable for accrued interest or accrued dividends;
(ii) insofar as it consists of property other than cash, be
computed at the fair value thereof at the time of such issue,
as determined in good faith by the Company and Holder; and
(iii) in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of
the Company for consideration which covers both, be the
proportion of such consideration so received, computed as
provided in subsections (i) and (ii) above, as determined in
good faith by the Company and Holder.
(b) Options and Convertible Securities. The consideration per
share received by the Company for Additional Shares of Common
Stock deemed to have been issued pursuant to Section 9.3,
relating to Options and Convertible Securities, shall be
determined by dividing: (x) the total amount, if any,
received or receivable by the Company as consideration
for the issuance of such Options or Convertible Securities,
plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein
designed to protect against dilution) payable to the
Company upon the exercise of such Options or the conversion
or exchange of such Convertible Securities; or in the case
of Options for Convertible Securities, the exercise of
such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities;
by (y) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to
any provision contained therein designed to protect against
the dilution) issuable upon the exercise of such Options or
conversion or exchange of such Convertible Securities.
9.6 Adjustments to Exercise Price for Stock Dividends and for Combinations
or Subdivisions of Common Stock. In the event that the Company at any
time or from time to time after the Note Date (a) shall declare or pay,
without consideration, any dividend on the Common Stock payable in
Common Stock or in any right to acquire Common Stock for no
consideration, (b) shall effect a subdivision of the outstanding shares
of Common Stock into a greater number of shares of Common Stock (by
stock split, reclassification or otherwise than by payment of a
dividend in Common Stock or in any right to acquire Common Stock), or
(c) in the event the outstanding shares of Common Stock shall be
combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, then the Exercise Price in
effect immediately prior to such event shall, concurrently with the
effectiveness of such event, be proportionately decreased or increased,
as appropriate. In the event that the Company shall declare or pay,
without consideration, any dividend on the Common Stock payable in any
right to acquire Common Stock for no consideration, then the Company
shall be deemed to have made a dividend payable in Common Stock in an
amount of shares equal to the maximum number of shares issuable upon
exercise of such rights to acquire Common Stock.
9.7 Adjustments for Reclassification and Reorganization. If the Common
Stock issuable upon exercise of this Warrant shall be changed into the
same or a different number of shares of any other class or classes of
stock, whether by capital reorganization, reclassification or otherwise
(other than a subdivision or combination of shares provided for in
Section 9.6 or a merger or other reorganization referred to in Section
9.8), the Exercise Price then in effect shall, concurrently with the
effectiveness of such reorganization or reclassification, be
proportionately adjusted so that (i) this Warrant shall be exercisable
for the number of shares of such other class or classes of stock
equivalent to the number of shares of Common Stock that would have been
subject to receipt by the holders upon exercise of this Warrant
immediately before that change.
9.8 Recapitalizations. If at any time or from time to time there shall be a
recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for
elsewhere in this Section 9), provision shall be made so that the
Holder of this Warrant shall thereafter be entitled to receive upon
exercise of this Warrant the number of shares of stock or other
securities or property of the Company or otherwise, to which a holder
of Common Stock deliverable upon exercise would have been entitled on
such recapitalization. In any such case, appropriate adjustment shall
be made in the application of the provisions of this Section 9 with
respect to the rights of the Holder of this Warrant after the
recapitalization to the end that the provisions of this Section 9
(including adjustment of the Exercise Price then in effect and the
number of shares purchasable upon exercise of this Warrant) shall apply
in a manner following such event as nearly equivalent as may be
practicable to the manner in which such provisions apply prior to such
event.
9.9 Adjustment of Number of Shares. Upon each adjustment in the Exercise
Price pursuant to this Section 9, the number of Shares purchasable
hereunder shall be adjusted, to the nearest whole Share, to the product
obtained by multiplying the number of Shares purchasable immediately
prior to such adjustment in the Exercise Price by a fraction (i) the
numerator of which shall be the Exercise Price immediately prior to
such adjustment, and (ii) the denominator of which shall be the
Exercise Price immediately after such adjustment.
9.10 Notice of Adjustments; Notices. Whenever the Exercise Price or number
or type of securities issuable hereunder shall be adjusted pursuant to
this Section 9, the Company shall issue and provide to the Holder as
the holder of this Warrant, within ten (10) days after the event
requiring the adjustment, a certificate signed by an officer of the
Company setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such
adjustment was calculated and the Exercise Price and number of Shares
purchasable hereunder after giving effect to such adjustment.
10. Charges, Taxes and Expenses. Certificates for Shares issued upon exercise of
this Warrant shall be issued in the name of the Holder. Issuance of certificates
for Shares upon the exercise of this Warrant shall be made without charge to the
Holder for any issue or transfer tax or other incidental expense in respect of
the issuance of such certificates, all of which taxes and expenses shall be paid
by the Company.
11. Attorneys' Fees. In any litigation, arbitration or court proceeding between
the Company and the Holder as the holder of this Warrant relating hereto, the
prevailing party shall be entitled to reasonable attorneys' fees and expenses
incurred in enforcing this Warrant.
12. Binding Effect; Governing Law. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a contract
under the laws of Illinois and for all purposes shall be construed in accordance
with and governed by the laws of said state, without giving effect to the
conflict of laws principles.
13. Amendments. This Warrant may be amended and the observance of any term of
this Warrant may be waived only with the written consent of the Company and the
Holder as the holder hereof.
14. Notice. All notices hereunder shall be in writing and shall be given in
accordance with the Note Purchase Agreement dated December 7, 2007 between the
Holder and the Company.
15. Entire Agreement. This Warrant, the Note Purchase Agreement, the form
attached hereto, and the agreements referred to herein and therein contain the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or undertakings with
respect thereto.
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IN WITNESS WHEREOF, First Montauk Financial Corp. has caused this
Warrant to be executed by its duly authorized officer.
Dated as of: _________________________
First Montauk Financial Corp.,
a New Jersey corporation
By: /s/ Victor K. Kurylak
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Its: President and Chief Executive Officer
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FORM OF NOTICE OF EXERCISE
To: First Montauk Financial Corp.
1. The undersigned hereby elects to purchase ________________ shares (the
"Shares") of Common Stock, no par value, of First Montauk Financial Corp. (the
"Company") pursuant to the terms of the attached Warrant (the "Warrant"), and
tenders herewith payment of the purchase price and any transfer taxes payable
pursuant to the terms of the Warrant.
2. The Shares to be received by the undersigned upon exercise of the Warrant are
being acquired for its own account, not as a nominee or agent, and not with a
view to resale or distribution of any part thereof, and the undersigned has no
present intention of selling, granting any participation in, or otherwise
distributing the same, except in compliance with applicable federal and state
securities laws. The undersigned further represents that it does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to the Shares. The undersigned believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Shares.
3. The undersigned understands that the Shares are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from the Company in transactions not involving a public offering and
that under such laws and applicable regulations such securities may be resold
without registration under the Securities Act of 1933, as amended (the "Act"),
only in certain limited circumstances. In this connection, the undersigned
represents that it is familiar with Rule 144 of the Act, as presently in effect,
and understands the resale limitations imposed thereby and by the Act.
4. The undersigned understands the certificates evidencing the Shares may bear
one or all of the following legends:
4.1 "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"), OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED SOLELY FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES AND BLUE SKY LAW."
4.2 Any legend required by applicable state law.
5. Please issue a certificate or certificates representing said Shares in the
name of the undersigned.
6. Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned.
Date:
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Signature