EXHIBIT 4.5
THE SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED
OF, UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.
COMMON STOCK PURCHASE WARRANT
XYBERNAUT CORPORATION
EXPIRES JANUARY 2, 2003
No.: Number of Shares: 5,000
Date of Issuance: January 3, 2000
1. Issuance. In consideration of good and valuable
consideration, the receipt of which is hereby acknowledged by Xybernaut
Corporation, a Delaware corporation (the "Company"), E. Dell Smith or registered
assigns (the "Holder"), is hereby granted the right to purchase at any time
until 5:00 P.M., New York City time, on January 2, 2003 (the "Expiration Date"),
five thousand (5,000) fully paid and nonassessable shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock") at an initial
exercise price of $2.00 per share (the "Exercise Price").
2. Exercise of Warrants. This Warrant is exercisable in whole
or in part at the Exercise Price per share of Common Stock payable hereunder,
payable in cash or by certified or official bank check. Upon surrender of this
Warrant Certificate with the annexed Notice of Exercise Form duly executed,
together with payment of the Exercise Price for the shares of Common Stock
purchased, the Holder shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased.
3. Reservation of Shares. The Company hereby agrees that at
all times during the term of this Warrant there shall be reserved for issuance
upon exercise of this Warrant
such number of shares of its Common Stock as shall be required for issuance upon
exercise of this Warrant (the "Warrant Shares").
4. Mutilation or Loss of Warrant. Upon receipt by the Company
of evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed in this
Warrant and in the Consulting Agreement between the Company and Libra Finance SA
pursuant to which this Warrant was originally issued (the "Consulting
Agreement") and are not enforceable against the Company except to the extent set
forth herein and therein.
6. Transfer to Comply with the Securities Act; Registration
Rights.
6.1 This Warrant has not been registered under the
Securities Act of 1933, as amended, (the "Act") and has been issued to the
Holder for investment and not with a view to the distribution of either the
Warrant or the Warrant Shares. Neither this Warrant nor any of the Warrant
Shares or any other security issued or issuable upon exercise of this Warrant
may be offered, sold, transferred, pledged, encumbered, hypothecated or
otherwise disposed of in the absence of an effective registration statement
under the Act relating to such security or an opinion of counsel satisfactory to
the Company that registration is not required under the Act. Each certificate
for the Warrant, the Warrant Shares and any other security issued or issuable
upon exercise of this Warrant shall contain a legend on the face thereof, in
form and substance satisfactory to counsel for the Company, setting forth the
restrictions on transfer contained in this Section.
6.2 The Company hereby grants to the Holder piggyback
registration rights with respect to the Warrant Shares which rights shall
commence after the date of issuance of this Warrant. In the event the Company is
filing a registration statement for itself or on behalf of any of its
shareholders at any time after the date hereof, the Company shall notify the
Holder in writing reasonably in advance of such filing (but at least five (5)
business days) and give the Holder the opportunity to include all or any portion
of the Warrant Shares (whether or not previously issued, to the extent
permissible under the Act or any regulation promulgated thereunder). Upon the
Holder's notification that the Holder desires to have all or any portion of the
Warrant Shares included in such registration, the Company shall, at no cost or
expense to the Holder, include or cause to be included in such registration
statement the Warrant Shares so identified by the Holder, provided, however,
that if, in the opinion of the Company's managing underwriter or underwriters,
if any, for such offering, the inclusion of the Warrant Shares, when added to
the securities being registered by the Company or any selling stockholder(s),
will
exceed the maximum amount of the Company's securities that can be marketed (x)
at a price reasonably related to their then current market value, or (y) without
materially and adversely affecting the entire terms of the offering, then the
number of shares to be included in such offering shall be reduced, and such
shares shall be excluded from such offering in a number deemed necessary by such
managing underwriter or underwriters, based upon and subject to a pro rata
reduction of the number of Warrant Shares the Holder of such securities proposed
to include therein.
7. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage pre-paid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission, or, if mailed, two (2) days after the date of deposit in the
United States mails, as follows:
(1) if the to Company, to:
Xybernaut Corporation
12701 Fair Lakes Circle
Suite 550
Fairfax, Virginia 22033
Attn: Chief Financial Officer
Fax No.: (703) 631-3903
(2) if to the Holder, to:
E. Del Smith and Company, Inc.
1130 Connecticut Avenue, N.W.
Suite 650
Washington, DC 20036
Attn: E. Del Smith
Fax No.:
Any party may be notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
8. Supplements and Amendments; Whole Agreement. This Warrant
may be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant of even date herewith and the Consulting Agreement
contain the full understanding of the parties hereto with respect to the subject
matter hereof and thereof and there are no representations, warranties,
agreements or understandings other than expressly contained herein and therein.
9. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State.
10. Descriptive Headings. Descriptive headings of the several
Sections of this Warrant are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of
January 3, 2000.
XYBERNAUT CORPORATION
By:_______________________________________
Name: Steven A. Newman
Title: Vice Chairman
Attest:
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Chief Administrative Officer
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant Certificate dated as of __________, 2000, to purchase
__________ shares of the Common Stock, par value $.01 per share, of Xybernaut
Corporation and tenders herewith payment in accordance with Section 1 of said
Common Stock Purchase Warrant.
Please deliver the stock certificate to:
Dated:______________________
By:__________________________________