EXHIBIT 4.4
VOID AFTER 5:00 P.M., PHILADELPHIA TIME, ON [5th anniversary of Effective Date
of Offering] OR IF NOT A BUSINESS DAY, AS DEFINED HEREIN, AT 5:00 P.M.,
PHILADELPHIA TIME, ON THE NEXT FOLLOWING BUSINESS DAY.
UNDERWRITER'S WARRANT TO PURCHASE 85,000 SHARES OF COMMON STOCK
AND 85,000 REDEEMABLE COMMON STOCK PURCHASE WARRANTS
OF MICROLEAGUE MULTIMEDIA, INC.
NO. 1
TRANSFER RESTRICTED -- SEE SECTION 6.02
For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by Microleague Multimedia, Inc., a
Pennsylvania corporation (the "Company"), the Company hereby grants to First
Colonial Securities Group, Inc., and its registered, permitted assigns
(collectively, the "Warrantholder"), subject to the terms and conditions hereof,
the right and option to purchase 85,000 fully-paid and nonassessable shares of
the Company's $.01 par value common stock (the "Common Stock") (the "First
Colonial Shares") and 85,000 fully-paid and nonassessable redeemable Common
Stock purchase warrants (the "First Colonial Warrants"). Each First Colonial
Warrant shall be in the form of the redeemable Common Stock purchase warrant
attached hereto as Exhibit A.
ARTICLE I
Section 1.01: Definition of Terms. As used in this
Underwriter's Warrant, the following capitalized terms shall have the following
respective meanings:
(a) Business Day: A day other than a Saturday,
Sunday or other day on which banks in the Commonwealth of Pennsylvania are
authorized by law to remain closed.
(b) Common Stock: Common Stock, $0.01 par value, of
the Company.
(c) Common Stock Equivalents: Securities that are
convertible into or exercisable or exchangeable for shares of Common Stock or of
which Common Stock is a part.
(d) Company Shares: The First Colonial Shares
together with the Warrant Shares.
EXHIBIT 4.4
(e) Exchange Act: The Securities Exchange Act of
1934, as amended.
(f) Exercise Price Per Share: $________ First
Colonial Share, subject to adjustment as provided in Article III hereof.
(g) Exercise Price Per Warrant: $________ per First
Colonial Warrant, subject to adjustment as provided in Article III hereof.
(h) First Colonial Shares: The shares of Common
Stock issuable upon exercise of this Underwriter's Warrant as to such shares.
(i) First Colonial Warrants: The redeemable Common
Stock purchase warrants issuable upon exercise of this Underwriter's Warrant in
the form of First Colonial Warrant attached as Exhibit A hereto. The First
Colonial Warrants are sometimes hereinafter referred to as the "Redeemable
Warrants".
(j) First Colonial Warrant Expiration Date. The
date the right to exercise a First Colonial Warrant expires, as set forth in the
form of First Colonial Warrant attached as Exhibit A hereto.
(k) Holder: A Holder of Registrable Securities.
(l) NASD: National Association of Securities
Dealers, Inc.
(m) Offering Securities. The Redeemable Common
Stock Purchase Warrants and the shares of Common Stock of the Company (including
the shares of Common Stock issuable upon exercise of the Redeemable Common Stock
Purchase Warrants) sold by the Company to the Underwriter for sale to the public
in connection with the underwritten public offering pursuant to a registration
statement on Form SB-2, and as described in the Underwriting Agreement.
(n) Person: An individual, partnership, joint
venture, corporation, trust, limited liability company unincorporated
organization, government or any department or agency thereof, or any other
entity.
(o) Prospectus: Any prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments and
supplements to the Prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
(2)
EXHIBIT 4.4
(p) Public Offering: A public offering of any of
the Company's equity or debt securities pursuant to a registration statement
under the Securities Act.
(q) Registrable Securities: This Underwriter's
Warrant, and the First Colonial Warrants and the Company Shares issuable upon
exercise of this Underwriter's Warrant or the First Colonial Warrants to First
Colonial Securities Group, Inc., or its designees or transferees as permitted
under Section 6.02, or other securities that may be or are issued by the Company
upon the exercise of this Underwriter's Warrant or the First Colonial Warrants,
including those which may thereafter be issued by the Company in respect of any
such securities by means of any stock splits, stock dividends, recapitalizations
or the like, and as adjusted pursuant to Article III hereof.
(r) Redeemable Common Stock Purchase Warrant: The
Redeemable Common Stock Purchase Warrant sold by the Company to the Underwriter
for sale to the public in connection with the underwritten public offering
pursuant to a registration statement on Form SB-2, and as described in the
Underwriting Agreement.
(s) Registration Statement: Any registration
statement of the Company filed or to be filed with the SEC which covers any of
the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference by such registration statement.
(t) SEC: The Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act or the
Exchange Act.
(u) Securities Act: The Securities Act of 1933, as
amended.
(v) Underwriter's Warrant: This warrant, the
warrants issued on the date hereof and all other warrants that may be issued in
its or their place (together evidencing the right to purchase an aggregate of
85,000 First Colonial Shares and an aggregate of 85,000 First Colonial Warrants
(and including the right to purchase an aggregate of 85,000 Warrant Shares upon
exercise of the First Colonial Warrants)), originally issued as set forth in the
definition of Registrable Securities. The Underwriter's Warrant is sometimes
hereinafter referred to as "this Warrant."
(3)
EXHIBIT 4.4
(w) Underwriter's Warrant Expiration Date: 5:00
P.M., Philadelphia time, on [5th anniversary of Effective Date of Offering] or,
if such day is not a Business Day, the next succeeding day which is a Business
Day.
(x) Underwriting Agreement. That certain agreement
dated the date hereof between the Company and First Colonial Securities Group,
Inc. relating to the underwritten public offering of Common Stock and Redeemable
Common Stock Purchase Warrants.
(y) Warrantholder: The person(s) or entity(ies) to
whom this Underwriter's Warrant is originally issued, or any successor in
interest thereto, or any assignee or transferee thereof, in whose name this
Underwriter's Warrant is registered upon the books to be maintained by the
Company for that purpose.
(z) Warrant Shares: Shares of Common Stock issuable
upon exercise of a First Colonial Warrant.
ARTICLE II
Duration and Exercise of Warrant
Section 2.01: Duration of Warrant. Subject to the
terms contained herein, this Warrant may be exercised at any time after 9:00
A.M., Philadelphia time, on April , 1997 [Note: one year and one day after
Closing Date], and before 5:00 P.M., Philadelphia time, on the Underwriter's
Warrant Expiration Date. If this Warrant is not exercised in full on or before
the Underwriter's Warrant Expiration Date, it shall become void to the extent
not exercised, and all unexercised rights hereunder shall thereupon cease.
Section 2.02: Exercise of Warrant.
(a) The Warrantholder may exercise this Warrant, in
whole or in part, as follows:
1) By presentation and surrender of this
Warrant to the Company at its corporate office at 750 Dawson Drive, Newark,
Delaware 19713, with the Subscription Form annexed hereto duly executed and
accompanied by payment of the Exercise Price Per Share for each First Colonial
Share or the Exercise Price Per Warrant for each First Colonial Warrant to be
purchased. Payment for the First Colonial Shares or First Colonial Warrants
shall be made by certified or official bank check payable to the order of the
Company; or
(4)
EXHIBIT 4.4
2) By presentation and surrender of this
Warrant to the Company at its corporate office set forth above, with a Cashless
Exercise Form annexed hereto duly executed (a "Cashless Exercise"), for the
number of First Colonial Shares or First Colonial Warrants specified in the
Cashless Exercise Form. Such presentation and surrender shall be in lieu of the
Warrantholder's obligation to pay in cash all or any portion of the aggregate
Exercise Price Per Share or Exercise Price Per Warrant, as applicable. In the
event of a Cashless Exercise, the Warrantholder shall be entitled to receive
that number of First Colonial Shares or First Colonial Warrants determined by
multiplying the number of First Colonial Shares or First Colonial Warrants for
which the Warrantholder desires to exercise this Warrant by a fraction, the
numerator of which shall be an amount equal to the then current market price of
a share of Common Stock or a Redeemable Common Stock Purchase Warrant (as
applicable) less the Exercise Price Per Share or Exercise Price Per Warrant, as
applicable, and the denominator of which shall be the then current market price
of a share of Common Stock or a Redeemable Common Stock Purchase Warrant (as
applicable).
For purposes of any computation under this
Section 2.02(a)(2), the "then current market price" per share of Common Stock or
per Redeemable Common Stock Purchase Warrant, as applicable at any date shall be
deemed to be the greater of (A) the last sale price of the Common Stock or
Redeemable Common Stock Purchase Warrant, as applicable, on the date of exercise
of this Warrant, or (B) the weighted average for the twenty (20) consecutive
Business Days immediately prior to date of the Cashless Exercise of the daily
last sale prices of the Common Stock or Redeemable Common Stock Purchase
Warrant, as applicable, traded on the principal national securities exchange on
which the shares of Common Stock or Redeemable Common Stock Purchase Warrants,
as applicable, are admitted to trading or listed, or if not listed or admitted
to trading on any such exchange, the closing offer prices as reported by the
Nasdaq National Market or Nasdaq SmallCap Market, if and as applicable, or if
not then listed on the Nasdaq National Market or Nasdaq SmallCap Market, the
(5)
EXHIBIT 4.4
average of the highest reported bid and lowest reported asked prices as reported
by the National Association of Securities Dealers, Inc. Automated Quotations
System ("Nasdaq") or if not then publicly traded, the fair market price of a
share of Common Stock as determined in good faith by the Board of Directors of
the Company. If, at the time of a Cashless Exercise the Redeemable Common Stock
Purchase Warrants have been redeemed or are otherwise not publicly traded, then
"the then current market price for a Redeemable Common Stock Purchase Warrant"
shall be deemed to be the greater of (a) the then current market price for a
share of Common Stock, less the Exercise Price Per Warrant, or (b) the fair
market value of a First Colonial Warrant as determined in good faith by the
Board of Directors of the Company.
(b) Upon receipt of this Warrant with either the
Subscription Form duly executed and accompanied by payment of the aggregate
Exercise Price Per Share or Exercise Price Per Warrant as set forth in Section
2.02(a), or the Cashless Exercise Form duly executed, in each case for the
shares of Common Stock (i.e. First Colonial Shares) or First Colonial Warrants
for which this Warrant is then being exercised, the Company shall cause to be
issued certificates for the total number of whole shares of Common Stock or the
total number of First Colonial Warrants, which constitute the number of First
Colonial Shares or First Colonial Warrants for which this Warrant is being
exercised or the net amount thereof which the Warrantholder is entitled to
receive upon a Cashless Exercise (adjusted to reflect the effect of the
anti-dilution provisions contained in Article III hereof, if any, and as
provided in Section 4.04 hereof) in such denominations as are requested for
delivery to the Warrantholder, and the Company shall thereupon deliver such
certificates to the Warrantholder.
(c) In case the Warrantholder shall exercise this
Warrant with respect to fewer than all of the First Colonial Shares or the First
Colonial Warrants that may be purchased under this Warrant, the Company shall
execute a new warrant in the form of this Warrant for the balance of such First
Colonial Shares or the First Colonial Warrants and promptly deliver such new
warrant to the Warrantholder.
(d) The Company shall pay any and all documentary,
stamp, transfer or other transactional taxes attributable to the issuance of
this Warrant or any First Colonial Warrants, First Colonial Shares or Warrant
Shares. The Company shall not, however, be required to pay any tax imposed on
income or gross receipts of the Warrantholder or any tax which may be payable by
the Warrantholder in respect of any transfer involved in the issuance or
delivery of this Warrant in a name other than that of the Warrantholder at the
time of surrender and, until the payment of such tax, shall not be required to
issue such First Colonial Shares or First Colonial Warrants.
(e) The Company shall use its best efforts to cause
all Company Shares and all First Colonial Warrants, to be listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed or, if not then listed, use its best efforts to cause the
Company Shares to be traded on that market, if any, including the Nasdaq
SmallCap Market on which the Common Stock is then traded.
(6)
EXHIBIT 4.4
ARTICLE III
Adjustment of Shares of Common Stock
Purchasable and of Exercise Price
The Exercise Price Per Share and the Exercise Price
Per Warrant, respectively, and the number and kind of Common Stock and First
Colonial Warrants shall be subject to adjustment from time to time upon the
happening of certain events as provided in this Article III.
Section 3.01: Mechanical Adjustments. (a) If at any
time prior to the exercise of this Warrant in full, the Company shall (i) pay a
dividend or make a distribution on its shares of Common Stock in either case in
shares of Common Stock or Common Stock Equivalents; (ii) subdivide, reclassify
or recapitalize its outstanding Common Stock into a greater number of shares;
(iii) combine, reclassify or recapitalize its outstanding Common Stock into a
smaller number of shares; or (iv) issue by reclassification of its Common Stock
any shares of capital stock of the Company, the Exercise Price Per Share and the
Exercise Price Per Warrant in effect at the time of the record date of such
dividend distribution, subdivision, combination, reclassification or
recapitalization shall be adjusted so that the Warrantholder shall be entitled
to receive, upon exercise of this Warrant (including upon exercise of a First
Colonial Warrant issuable upon exercise of this Warrant), the aggregate number
and kind of shares of Common Stock which, if this Warrant and the First Colonial
Warrant issuable upon exercise of this Warrant had been exercised in full
immediately prior to such time, such Warrantholder would have owned upon such
exercise(s) and been entitled to receive upon such dividend, subdivision,
combination, reclassification or recapitalization. Any adjustment required by
this Section 3.01(a) shall be made whenever any event listed in this Section
3.01(a) shall occur.
(b) If at any time prior to the exercise of this
Warrant in full, the Company shall issue or distribute to the holders of shares
of Common Stock evidences of its indebtedness, any other securities of the
Company or any cash, property or other assets (excluding a dividend
distribution, combination, reclassification or recapitalization referred to in
Section 3.01(a), and excluding cash dividends or cash distributions paid out of
surplus, earnings or net profits legally available therefor if the full amount
thereof, together with the value of other dividends and distributions made
substantially concurrently therewith or pursuant to a plan which includes
(7)
EXHIBIT 4.4
payment thereof, is equivalent to not more than 5% of the Company's net
worth) (any such nonexcluded event being herein called a "Special Dividend"),
the Exercise Price Per Share shall be decreased immediately after the effective
date of such Special Dividend to a price determined by multiplying the Exercise
Price Per Share then in effect by a fraction the numerator of which shall be the
then current Exercise Price Per Share on such effective date less the fair
market value (as determined in good faith by the Company's Board of Directors)
of the evidences of indebtedness, securities or property, or other assets issued
or distributed in such Special Dividend applicable to one share of Common Stock,
and the denominator of which shall be the then current Exercise Price Per Share.
Any adjustment required by this Section 3.01(b) shall be made whenever the
effective date of any such Special Dividend occurs. The Exercise Price Per
Warrant shall be adjusted by the same percentage as the Exercise Price Per Share
is adjusted in accordance with the foregoing.
(c) If at any time prior to the exercise of this
Warrant in full, the Company shall make a distribution to the holders of shares
of Common Stock of profits legally available therefor and dividends or
distributions covered by Section 3.01(a) or (b) or subscription rights, options
or warrants for Common Stock or Common Stock Equivalents, then in each such case
the Exercise Price Per Share in effect after the effective date of such
distribution shall be adjusted to the price determined by multiplying the
Exercise Price Per Share in effect immediately prior thereto by a fraction, the
numerator of which shall be (i) the total number of shares of Common Stock
outstanding multiplied by (ii) the current Exercise Price Per Share less the
fair market value (as determined in good faith by the Company's Board of
Directors) of such assets or evidences of indebtedness so distributed or of such
Common Stock subscription rights, options and warrants or of such Common Stock
Equivalents applicable to one share of Common Stock, and the denominator of
which shall be (i) the total number of shares of Common Stock outstanding
multiplied by (ii) the current Exercise Price Per Share. Any adjustment required
by this Section 3.01(c) shall be made whenever the effective date of any such
distribution occurs. To the extent such shares of Common Stock (or Common Stock
Equivalents) are not delivered after the expiration of such subscription rights,
options or warrants, the Exercise Price Per Share shall be readjusted to the
Exercise Price Per Share which would then be in effect had the adjustments made
upon the issuance of such rights, options or warrants been made on the basis of
delivery of only the number of shares of Common Stock (or Common Stock
Equivalents) actually delivered, but no such readjustment shall have the effect
of increasing the Exercise Price Per Share to an amount which exceeds the lower
of (i) the Exercise Price Per Share on the original adjustment date (prior to
the original adjustment) or (ii) the Underwriter's Warrant Exercise Price that
would have resulted from any other adjustments pursuant to this Article III
(other than adjustments for the issuance of subscription rights, options or
warrants which expire unexercised). The Exercise Price Per Warrant shall be
adjusted by the same percentage as the Exercise Price Per Share is adjusted.
(8)
EXHIBIT 4.4
(d) No adjustment in the Exercise Price Per Share
or Exercise Price Per Warrant shall be required in the case of (i) the issuance
by the Company of options to purchase in the aggregate up to [Note: 10% of
current outstanding shares] shares of Common Stock, subject to adjustment,
pursuant to the Company's Stock Option Plan in effect on the date hereof and the
issuance by the Company of shares upon the exercise of such options, and (ii)
the issuance by the Company of Common Stock pursuant to the exercise of any
currently issued and outstanding warrant. The number of shares of Common Stock
set forth in this paragraph (d) is subject to adjustment in accordance with any
anti-dilution provisions existing on the date hereof under the terms of the
instruments governing their issuance.
(e) Whenever the Exercise Price Per Share or
Exercise Price Per Warrant payable upon exercise of this Warrant is adjusted
pursuant to one or more of paragraphs (a), (b) and (c) of this Section 3.01, the
number of First Colonial Shares and First Colonial Warrants purchasable
hereunder shall simultaneously be adjusted by multiplying the number of First
Colonial Shares or First Colonial Warrants issuable upon exercise of this
Warrant immediately prior to the event giving rise to such adjustment by the
Exercise Price Per Share in effect on the date thereof and dividing the product
so obtained by the Exercise Price Per Share, as adjusted.
(f) No adjustment in the Exercise Price Per Share
or Exercise Price Per Warrant shall be required unless such adjustment would
require an increase or decrease of at least five cents ($.05) or one cent ($.01)
respectively in such price; provided, however, that any adjustments which by
reason of this paragraph (f) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 3.01 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(g) If at any time, as a result of any adjustment
made pursuant to Section 3.01(a), the Warrantholder shall become entitled to
receive any shares of the Company other than Common Stock, thereafter the number
of such other shares so receivable upon exercise of any Warrant shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock contained in this
Section 3.01. Any adjustments set forth in this Section 3.01(a) which are made
only to Redeemable Common Stock Purchase Warrants (and not Common Stock) of the
Company shall be applied to the First Colonial Warrants in the manner set forth
in this Section 3.01(a).
(9)
EXHIBIT 4.4
(h) In case any event shall occur as to which the
other provisions of this Article III are not strictly applicable but as to which
the failure to make any adjustment would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles hereof then, in each such case, the Holders of Underwriter's Warrants
representing the right to purchase a majority of the Company Shares subject to
all outstanding Underwriter's Warrants may appoint a firm of independent public
accountants of recognized national standing reasonably acceptable to the
Company, which shall give their opinion as to the adjustment, if any, on a basis
consistent with the essential intent and principles established herein,
necessary to preserve the purchase rights represented by the Underwriter's
Warrant. Upon receipt of such opinion, the Company will promptly mail a copy
thereof to the Holder of this Warrant and shall make the adjustments described
therein. The fees and expenses of such independent public accountants shall be
borne by the Company.
(i) If, as a result of an adjustment made pursuant
to this Article III, the Holder of any Warrant thereafter surrendered for
exercise shall become entitled to receive shares of two or more classes of
capital stock or shares of Common Stock and other capital stock of the Company
(other than as may be contemplated by this Warrant), the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder of any Warrant promptly after such adjustment) shall
determine in good faith the allocation of the adjusted per share price between
or among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
Section 3.02: Notice of Adjustment. Whenever the
number of First Colonial Shares or First Colonial Warrants or the Exercise Price
Per Share or Exercise Price Per Warrant is adjusted as herein provided, the
Company shall prepare and deliver to the Warrantholder a certificate signed by
its President and Treasurer or Secretary, setting forth the adjusted number of
First Colonial Shares or First Colonial Warrants purchasable upon exercise of
this Warrant, and the number of Warrant Shares purchasable upon the exercise of
the First Colonial Warrant, and the Exercise Price of such securities after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
Section 3.03: No Adjustment for Dividends. Except
as provided in Sections 3.01 (b) and (c) of this Agreement, no adjustment in
respect of any cash dividends shall be made during the term of this Warrant or
upon the exercise of this Warrant.
(10)
EXHIBIT 4.4
Section 3.04: Preservation of Purchase Rights in
Certain Transactions. In case of any capital reorganization or reclassification,
or any consolidation or merger to which the Company is a party, or in case of
any sale or conveyance to another entity of all or substantially all of the
property of the Company, or in the case of any statutory exchange of securities
with another corporation (including any exchange effected in connection with a
merger of a third corporation into the Company), the Holder of this Warrant
shall have the right thereafter to receive on the exercise of this Warrant the
kind and amount of securities, cash or other property which the Holder would
have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance had this Warrant (and any First Colonial Warrants issuable
upon exercise of this Warrant) been exercised immediately prior to the effective
date of such reorganization, reclassification, consolidation, merger, statutory
exchange, sale or conveyance and in any such case, if necessary, appropriate
adjustment shall be made in the application of the provisions set forth in this
Article III with respect to the rights and interests thereafter of the Holder of
this Warrant to the end that the provisions set forth in this Article III shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the exercise of this Warrant. The provisions of this Section 3.04
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances which occur
prior to the exercise, repurchase or expiration of this Warrant. The issuer of
any shares of stock or other securities or property thereafter deliverable on
the exercise of this Warrant shall be jointly and severally responsible for all
of the agreements and obligations of the Company hereunder. Notice of any such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and of such provisions so proposed to be made, shall be
mailed to the Holders of the Underwriter's Warrant not less than 30 days prior
to such event. A sale of all or substantially all of the assets of the Company
for a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
Section 3.05: Form of Warrant After Adjustments.
The form of this Warrant need not be changed because of any adjustments in the
Underwriter's Warrant or Exercise Price Per Share or Exercise Price Per Warrant
or the number or kind of the Warrant Shares or First Colonial Warrants, and
Warrants theretofore or thereafter issued may continue to express the same price
and number and kind of shares as are stated in this Warrant, as initially
issued.
(11)
EXHIBIT 4.4
ARTICLE IV
Other Provisions Relating
to Rights of Warrantholder
Section 4.01: No Rights as Shareholders; Notice to
Warrantholders. Nothing contained in this Warrant shall be construed as
conferring upon the Warrantholder in its position as such or his or its
transferees the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of shareholders for
the election of directors of the Company or of any other matter, or any rights
whatsoever as shareholders of the Company. The Company shall give notice to the
Warrantholder if, at any time prior to the expiration or exercise in full of
this Warrant, any of the following events shall occur:
(a) the Company shall effect any transactions
subject to Section 3.01 with respect to the holders of shares of Common Stock or
redeemable Common Stock purchase warrants;
(b) the Company shall offer to all holders of
shares of Common Stock or redeemable Common Stock purchase Warrants any
additional shares of Common Stock or Common Stock Equivalents or any right to
subscribe thereto;
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger, or sale of all,
or substantially all, of its property, assets, and business as an entirety)
shall be approved; or
(d) any consolidation of the Company with or merger
of the Company into another corporation, or in the case of any sale or
conveyance to another corporation of the property of the Company, as an entirety
or substantially as an entirety.
Such notice shall be given not later than ten days prior to the date fixed as a
record date or the date of closing of the Company's stock transfer books for the
determination of the shareholders entitled to such dividend, distribution, or
subscription rights, or for the determination of the shareholders entitled to
vote on such proposed merger, consolidation, sale, conveyance, dissolution,
liquidation or winding up. Such notice shall specify such record date or the
date of closing the stock transfer books, as the case may be, the date of any
shareholder meeting scheduled in connection therewith, and the anticipated
payment or closing date in connection therewith. Failure to provide such notice
shall not affect the validity of any action taken in connection with such
dividend, distribution or subscription rights, or proposed merger,
consolidation, sale, conveyance, dissolution, liquidation or winding up.
(12)
EXHIBIT 4.4
Section 4.02: Lost, Stolen, Mutilated or Destroyed
Warrants. If this Warrant is lost, stolen, mutilated or destroyed, the Company
may, on such terms as to indemnity or otherwise as it may in its reasonable
discretion impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination and tenor as, and
in substitution for, this Warrant.
Section 4.03: Reservation of Shares.
(a) The Company shall at all times reserve and keep
available for the exercise of this Warrant such number of authorized shares of
Common Stock and redeemable Common Stock purchase Warrants (i.e. First Colonial
Warrants) as are sufficient to permit the exercise in full of this Warrant
(including upon exercise of any First Colonial Warrants issuable hereunder).
(b) The Company covenants that all shares of Common
Stock and First Colonial Warrants issued on exercise of this Warrant (and shares
of common Stock issuable upon exercise of the First Colonial Warrants) will,
upon payment of the respective Exercise Price therefor in accordance with the
terms hereof, be validly issued, fully paid, nonassessable and free of any
preemptive or similar rights.
Section 4.04: No Fractional Shares. Anything
contained herein to the contrary notwithstanding, the Company shall not be
required to issue any fraction of a share in connection with the exercise of
this Warrant, and in any case where the Warrantholder would, except for the
provisions of this Section 4.04, be entitled under the terms of this Warrant to
receive a fraction of a share upon the exercise of this Warrant, the Company
shall, upon the exercise of this Warrant and receipt of the Exercise Price Per
Share, issue the smaller number of whole First Colonial Shares or Warrant Shares
purchasable upon exercise of this Warrant or the First Colonial Warrant and
shall make an equitable cash adjustment in respect of such fraction of a share
to which the Warrantholder would otherwise be entitled.
ARTICLE V
Treatment of Warrantholder
Prior to due presentment for registration of
transfer of all or any portion of this Warrant in compliance with Section 6.02
hereof, the Company may deem and treat the Warrantholder as the absolute owner
of this Warrant (notwithstanding any notation of ownership or other writing
hereon) for all purposes and shall not be affected by any notice to the
contrary. Upon such due presentment, the Company shall register the transfer and
the assignee on its books and records.
(13)
EXHIBIT 4.4
ARTICLE VI
Split-Up, Combination.
Exchange and Transfer of Warrants
Section 6.01: Split-Up, Combination, Exchange and
Transfer of Warrants. Subject to the provisions of Section 6.02 hereof, this
Warrant may be split up, combined or exchanged for another Warrant or Warrants
containing the same terms to purchase a like aggregate number of First Colonial
Shares and First Colonial Warrants. If the Warrantholder desires to split up,
combine or exchange this Warrant, he or it shall make such request in writing
delivered to the Company and shall surrender to the Company this Warrant and any
other Underwriter's Warrant to be so split up, combined or exchanged. Upon any
such surrender for a split up, combination or exchange, the Company shall
execute and deliver to the person entitled thereto a Warrant or Warrants, as the
case may be, as so requested. The Company shall not be required to effect any
split up, combination or exchange which will result in the issuance of a Warrant
entitling the Warrantholder to purchase upon exercise a fraction of a share of
Common Stock or a fractional Warrant. The Company may require such Warrantholder
to pay a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any split up, combination or exchange of Warrants.
Section 6.02: Restrictions on Transfer. This
Warrant may not be sold, hypothecated, assigned or transferred (any such action,
a "Transfer"), except (i) to First Colonial Securities Group, Inc., any
underwriter participating in the public offering contemplated by the
Underwriting Agreement, any successor to the business of such companies, or any
officer of such companies, or (ii) to any underwriter in connection with a
Public Offering of the Common Stock, but only in accordance with and subject to
the provisions of the Securities Act and the rules and regulations promulgated
thereunder. Any permitted Transfer of this Warrant may be in whole or in part.
(14)
EXHIBIT 4.4
ARTICLE VII
Registration Under the Securities Act
The Registrable Securities shall be registered under the
Company's Registration Statement on Form SB-2 pursuant to the initial public
offering contemplated by the Underwriting Agreement, and an effective
Registration Statement (and such registrations or other filings as may be
required under any state securities or blue sky laws requested by a holder of
Registrable Securities) shall be maintained by the Company as to the Registrable
Securities at all times during which any of such Registrable Securities are
outstanding.
ARTICLE VIII
Other Matters
Section 8.01: Expenses of Transfer. The Company
shall from time to time promptly pay, subject to the provisions of Section 6.01
and paragraph (d) of Section 2.02, all documentary, stamp, transfer or other
transactional taxes that may be imposed upon the Company in respect to the
issuance or delivery of First Colonial Shares, First Colonial Warrants or
Warrant Shares upon the exercise of this Warrant, or the First Colonial Warrants
by the Warrantholder.
Section 8.02: Successors and Assigns. All the
covenants, obligations and provisions of this Warrant by or for the benefit of
the Company and the Warrantholder shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 8.03: Amendments and Waivers. The
provisions of this Warrant, including the provisions of this sentence, may not
be amended, modified or supplemented, and waiver or consents to departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of holders of at least a majority of the outstanding Registrable
Securities. Holders shall be bound by any consent authorized by this Section
8.03 whether or not certificates representing such Registrable Securities have
been marked to indicate such consent.
Section 8.04: Counterparts. This Warrant may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
Section 8.05: Governing Law. This Warrant shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to the law of conflicts.
(15)
EXHIBIT 4.4
Section 8.06: Severability. In the event that any
one or more of the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provisions in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
Section 8.07: Integration/Entire Agreement. This
Warrant is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Warrant supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
Section 8.08: Computations of Consent. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (other than the Warrantholder or subsequent Holders if they are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(16)
EXHIBIT 4.4
Section 8.09: Notices. Notice or demand pursuant to
this Warrant to be given or made by the Warrantholder to or on the Company shall
be sufficiently given or made if sent by registered or certified mail, postage
prepaid, or by overnight courier, addressed, until another address is designated
in writing by the Company, as follows:
Microleague Multimedia, Inc.
750 Dawson Drive
Newark, Delaware 19713
Any notice or demand authorized by this Warrant to
be given or made by the Company to or on the Warrantholder or a Holder of
Registrable Securities shall be sufficiently given or made if sent by registered
or certified mail, postage prepaid, or by overnight courier to the Warrantholder
or the Holder of Registrable Securities at his or its last known address as it
shall appear on the books of the Company.
Section 8.10: Headings. The headings herein have
been inserted for convenience of reference only and are not part of this Warrant
and shall not affect the interpretation thereof.
IN WITNESS WHEREOF, this Warrant has been duly
executed by the Company under its corporate seal as of the ____ day of April,
1996.
MICROLEAGUE MULTIMEDIA, INC.
By:
-----------------------------------------
Neil B. Swartz
Title: Chairman and Chief
Executive Officer
Attest:
-------------------------
Secretary
The undersigned accepts this Warrant and agrees to
abide by the terms herein which are applicable to the Holder.
FIRST COLONIAL SECURITIES
GROUP, INC.
By:
-------------------------------------
Ben Lichtenberg, Director of
Investment Banking
(17)
EXHIBIT 4.4
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, _________________________
hereby sells, assigns and transfers unto _____________________ the within
Warrant Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint __________________ attorney, to
transfer said Warrant Certificate on the books of Microleague Multimedia, Inc.
with respect to the number of First Colonial Warrants or First Colonial Shares
set forth below, with full power of substitution in the premises:
No. of First No. of First
Name(s) of Colonial Colonial
Assignee(s) Address Warrants Shares
If such number of Warrants shall not be all the First Colonial Warrants and
First Colonial Shares represented by the Warrant Certificate, a new Warrant
Certificate shall be issued in the name of said undersigned for the balance
remaining of the First Colonial Warrants and First Colonial Shares represented
by said Warrant Certificate.
Dated: ____________________, 19__
- -----------------------------------
Note: The above signature should correspond exactly with the name on the face
of this Warrant Certificate.
(18)
EXHIBIT 4.4
SUBSCRIPTION FORM
(To be executed upon exercise of Warrant)
Microleague Multimedia, Inc.
The undersigned hereby irrevocably elects to
exercise the right of purchase represented by the within Warrant Certificate
for, and to purchase thereunder, _____________________ shares of Common Stock
and ___________________________ First Colonial Warrants, as provided for
therein, and tenders herewith payment of the purchase price in full in the form
of cash or a certified or official bank check in the amount of $____________.
Please issue a certificate or certificates for such
Common Stock and First Colonial Warrants in the name of:
Name
------------------------------------------------
----------------------------------------------------
(Please Print Name, Address and Social Security No.)
Signature
------------------------------------------
NOTE: The above signature should correspond exactly
with the name on the first page of this Warrant
Certificate or with the name of the assignee appearing
in the assignment form below.
If such number of shares or First Colonial Warrants
shall not be all the shares of Common Stock or First Colonial Warrants
purchasable under the within Warrant Certificate, a new Warrant Certificate
shall be issued in the name of the undersigned for the balance remaining of the
shares of Common Stock and First Colonial Warrants purchasable thereunder.
(19)
EXHIBIT 4.4
CASHLESS EXERCISE FORM
(To be executed upon exercise of Warrant
pursuant to Section 2.02(a)(ii))
The undersigned hereby irrevocably elects to
surrender its Warrant for _________ shares of Common Stock and ________________
First Colonial Warrants or such lesser number of shares of Common Stock and
First Colonial Warrants as may be purchased pursuant to the Cashless Exercise
provisions of the within Warrant, as provided for in Section 2.02(a)(ii) of such
Warrant.
Please issue a certificate or certificates for such
Common Stock and First Colonial Warrants in the name of:
Name
------------------------------------------------
----------------------------------------------------
(Please Print Name, Address and Social Security No.)
Address
----------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
Social Security Number
Signature
--------------------------------------------
NOTE: The above signature should correspond exactly with
the name on the first page of this Warrant or with the
name of the assignee appearing in the assignment form
below.
If said number of shares or First Colonial Warrants
shall not be all the shares of Common Stock or First Colonial Warrants
purchasable under the within Warrant Certificate, a new Warrant Certificate is
to be issued in the name of the undersigned for the balance remaining of the
shares of Common Stock and First Colonial Warrants purchasable thereunder.
(20)
EXHIBIT A TO UNDERWRITERS WARRANT AGREEMENT
First Colonial Securities Group, Inc., or registered assigns, ("Registered
Holder") is the owner of 85,000 warrants ("Warrants"). Each Warrant initially
entitles the Registered Holder to purchase, subject to the terms and conditions
set forth in this Certificate and in the Underwriter's Warrant (as hereinafter
defined), one fully paid and nonassessable share (subject to adjustment as
hereinafter provided) of the Common Stock, par value $.01 per share ("Common
Stock") of MicroLeague Multimedia, Inc., a Pennsylvania corporation ("Company"),
at any time before the Expiration Date (as hereinafter defined) upon the
presentation and surrender of this Warrant Certificate with the Subscription
Form on the reverse hereof duly executed, at the office of the Company or its
successor accompanied by payment of the $____________ ("Purchase Price") per
Warrant, subject to adjustment as provided herein, in lawful money of the United
States in cash, or by good certified or official bank check payable to the order
of the Company, or as otherwise provided in the Underwriter's Warrant.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms set forth in the
Underwriter's Warrant dated May __, 1996 issued to and accepted by First
Colonial Securities Group, Inc. ("Underwriter's Warrant"), to all the terms and
provisions of which the Registered Holder, by acceptance of this Warrant
Certificate, and the Company hereby accepts. In the event of certain
contingencies provided for in the Underwriter's Warrant (or if not provided for
in the Underwriter's Warrant, and not contrary to or inconsistent with the
Underwriter's Warrant, then as provided for in the Redeemable Warrant Agreement
(the "Warrant Agreement") by and between the Company and StockTrans, Inc., as
Warrant Agent), the Purchase Price, the number of shares of Common Stock subject
to purchase upon the exercise of each Warrant represented hereby and the
Redemption Price are subject to modifications or adjustment. Reference is made
to the Underwriter's Warrant and the Warrant Agreement for a more complete
statement of the rights and limitations of the rights of the Registered Holder
hereof, the rights and duties of the Warrant Agent and the rights and
obligations of the Company hereunder and thereunder. Copies of the Warrant
Agreement and the Underwriter's Warrant are on file at the office of the
Company.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on the
first to occur of the third anniversary of the date the original Registered
Holder acquired this Warrant, or May __, 2001, or such earlier date as the
Warrant shall be redeemed. If such date shall be a holiday in the Commonwealth
of Pennsylvania or a day on which the banks are authorized to close, then the
Expiration Date shall mean 5:00 p.m. (New York time) the next following day
which in the Commonwealth of Pennsylvania is not a holiday or a day on which
banks are authorized to close.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder. The Company shall not be required upon the exercise of the
Warrant represented hereby to issue any fractions of shares, but shall make an
adjustment therefor in cash on the basis of the market value of any such
fractional interest (computed as provided in the Underwriter's Warrant). In case
that this Warrant is exercised with respect to less than all of such shares, a
new Warrant certificate or certificates will be issued on such surrender for the
number of Warrants represented hereby which were not so exercised. Prior to the
exercise of any Warrant represented hereby, the holder shall not be entitled to
any rights of a shareholder of the Company, including without limitation the
right to vote or to receive dividends or other distributions, and shall not be
entitled to receive any notice of any proceedings of the Company except as
provided in the Underwriter's Warrant or in the Warrant Agreement. Prior to the
due presentation for registration of transfer of this Warrant Certificate, the
Company may deem and treat the Registered Holder as the absolute owner hereof
and of each Warrant represented hereby (notwithstanding any notation of
ownership or other writing hereon made by anyone other than a duly authorized
officer of the Company) for all purposes, and the Company shall not be affected
by any notice to the contrary.
This Warrant Certificate is exchangeable, upon the surrender hereof by
the Registered Holder at the corporate office of the Company, for a new Warrant
Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificate to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender.
Upon due presentment, together with any tax or other governmental
charge imposed in connection therewith, for registration of transfer of this
Warrant Certificate at such office, a new Warrant Certificate or Warrant
Certificates representing an equal aggregate number of Warrants will be issued
to the transferee in exchange therefor.
The Company shall not be obligated to deliver any securities pursuant
to the exercise of any Warrants unless a registration statement under the
Securities Action of 1933 with respect to such securities is effective. The
Company has covenanted and agreed that it will file a registration statement or
a post-effective amendment to its existing registration statement and will use
its best efforts to cause the same to become effective and to keep it current
while any of the Warrants are outstanding and exercisable.
The Warrants may be redeemed at the option of the Company, in whole at
any time or in part from time to time, after the Warrants become exercisable and
prior to their expiration, by paying in cash, or certified check or bank check,
therefor $.10 per Warrant, upon at least forty-five (45) days written notice
mailed to the Registered Holder at any time, if the last sales price of the
Common Stock has been at least $___________ per share (the "Redemption Price")
for not fewer than ten (10) of the fifteen (15) consecutive trading days during
a period ending on the third business day prior to the date on which the notice
of redemption is given. If on any trading day there have not been any sales, the
last sales price on such day shall be the last sales price of the Common Stock
on the next preceding prior trading day. Each Warrant not exercised on or before
the date called for in such notice shall become void, and all rights thereunder
shall terminate.
If this Warrant shall be surrendered for exercise within any period
during which the transfer books for Common Stock or other securities purchasable
upon the exercise of this Warrant are closed for any purpose, the Company shall
not be required to make delivery of certificates for the securities purchasable
upon such exercise until the date of the reopening of said transfer books.
This Warrant and each Warrant represented hereby shall be construed in
accordance with and governed by the laws of the Commonwealth of Pennsylvania.
This Warrant Certificate shall not be valid unless counter signed by
the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed manually or in facsimile by two of its officers thereunto duly
authorized and a facsimile of its corporate seal to be imprinted herein.
COUNTERSIGNED: