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Exhibit 4.6
THE SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE DISTRIBUTION THEREOF. THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, OR
TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO
THESE SECURITIES AND SUCH OFFER, SALE, PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH
APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION OR (II) THERE IS AN
OPINION OF COUNSEL OR OTHER EVIDENCE, IN EITHER CASE, SATISFACTORY TO THE ISSUER
OF THIS CERTIFICATE, THAT AN EXEMPTION THEREFROM IS AVAILABLE AND THAT SUCH
OFFER, SALE, PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH APPLICABLE SECURITIES LAW
OF ANY STATE OR OTHER JURISDICTION.
WARRANT CERT. NO. 2000-01 WARRANTS TO PURCHASE 15,000 SHARES OF COMMON STOCK
DATE: AUGUST 15, 2000
TRANSFERABLE WARRANTS
TO PURCHASE COMMON STOCK OF
E-SYNC NETWORKS, INC.
THIS CERTIFIES THAT, for value received, John C. Maxwell, III, with an
address of c/o Commercial Electronics, L.L.C., 375 Park Avenue, Suite 1604, New
York, New York 10152, or registered assignees, is entitled to purchase from
E-Sync Networks, Inc., a corporation organized and existing under the laws of
the State of Delaware (hereinafter called the "Company"), at a purchase price
equal to the "Exercise Price" (as hereinafter defined), at any time from and
after the date hereof to and including the "Final Exercise Date" (as hereinafter
defined), fifteen thousand (15,000) shares of the Company's Common Stock, $.01
par value (the "Warrant Shares"), subject, however, to the provisions and upon
the terms and conditions hereinafter set forth. The Exercise Price shall
initially be Five Dollars and Fifty Cents ($5.50) per share, subject to
adjustment as hereinafter provided.
Certain capitalized terms used in this Warrant Certificate and not
otherwise defined are defined in paragraph 4 hereof. By accepting this Warrant
Certificate, the holder agrees to be bound by the terms hereof.
THESE WARRANTS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. (a) Exercise of Warrants. The rights represented by this Warrant
Certificate may be exercised by the registered holder hereof, in whole or in
part (but not as to a fractional share of Common
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Stock), by (i) the delivery of this Warrant Certificate, together with a
properly completed Subscription Form, to the principal office of the Company at
35 Nutmeg Drive, Trumbull, Connecticut 06611 (or such other office or agency of
the Company as it may designate by notice in writing to the holder hereof) and
(ii) payment to the Company, in immediately available funds, of the Exercise
Price for the Warrant Shares being purchased. Certificates for the Warrant
Shares so purchased (together with a cash adjustment in lieu of any fraction of
a share) shall be delivered to the holder hereof within a reasonable time, not
exceeding twenty (20) business days, after the rights represented by this
Warrant Certificate shall have been so exercised and paid for, and, unless these
Warrants have expired, a new Warrant Certificate representing the number of
Warrants, if any, with respect to which this Warrant Certificate shall not then
have been exercised, in all other respects identical with this Warrant
Certificate, shall also be issued and delivered to the holder hereof within such
time, or appropriate notation may be made on this Warrant Certificate and the
same returned to such holder.
(b) Transfer Restriction Legend. Each certificate for Warrant
Shares issued upon exercise of these Warrants shall bear the legends appearing
on the first page of this Warrant Certificate.
2. Special Agreements of the Company. The Company covenants and agrees
that:
(a) Character of Warrant Shares. All Warrant Shares which may
be issued upon the exercise of the Warrants represented hereby, upon issuance,
will be duly authorized, validly issued, fully paid and non-assessable and free
from all taxes, liens and charges with respect to the issue thereof, and without
limiting the generality of the foregoing, that it will take from to time all
such action as may be requisite to ensure that the par value per share (if any)
of the Common Stock is at all times equal to or less than the then effective
Exercise Price, and that it will refrain from taking any action which could
pursuant to the terms of the Warrants result in the Exercise Price per share
being less than the par value per share of the Common Stock;
(b) No Violations. The Company will take all such action as
may be necessary to ensure that Warrant Shares may be so issued without
violation of any applicable United States state or federal law or regulation, or
of any requirements of any securities exchange or inter-dealer quotation system
upon which the Common Stock of the Company may be listed or quoted;
(c) Actions in Avoidance. The Company will not, by amendment
of its Certificate or Articles of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, issue or sale of securities or
otherwise, avoid or take any action which would have the effect of avoiding the
observance or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times in good faith assist in carrying
out all of the provisions of this Warrant Certificate and in taking all of such
action as may be necessary or appropriate in order to protect the rights of the
holders of these Warrants; and
(d) Financial Information. The Company will, if requested,
provide each Warrant holder copies of all annual, quarterly and current reports
required to be filed by it pursuant to Section 13 or 15 of the Securities
Exchange Act of 1934, as amended, and in addition, promptly after requested,
such other information concerning the Company as any Warrant holder may
reasonably require (i) in order to comply with any law or governmental
regulation, order of any court, or order, inquiry or investigation of any
governmental agency or instrumentality, or (ii) in order to exercise any right
or privilege of such
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Warrant holder or to enforce any obligation of the Company under the Warrants or
any agreement or instrument executed and delivered in connection therewith.
3. (a) Certain Adjustments. The Exercise Price hereof, but not the
number of shares of Common Stock that may be purchased upon the full exercise of
this Warrant, shall be reduced on each of the following dates to the amount set
forth opposite thereto if, as at the close of business on any such date, the
indebtedness evidenced by that Subordinated Term Promissory Note of even date
herewith (the "Note"), between the Company, as maker, and the initial registered
holder of this Warrant, as payee, remains unpaid, in whole or in part:
If the Note Remains Unpaid On: The Exercise Price Shall Be Decreased To:
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November 15, 2000 $4.95
February 15, 2001 $4.40
April 15, 2000 $3.85.
No further adjustments will thereafter be made to the Exercise Price based
solely on the Note remaining unpaid. The Exercise Price hereof and the number of
shares of Common Stock that may be purchased upon the full exercise of this
Warrant shall further be subject to adjustment from time to time as hereinafter
provided. If any such adjustment shall occur before the passage of one or more
of the dates set forth in the foregoing table and while the Note remains unpaid,
the amount set forth in the table to which the Exercise Price may be reduced as
at a subsequent date set forth in the table shall be appropriately adjusted.
(b) Stock Dividends, Subdivisions, Split-Ups. If, at any time
prior to the Final Expiration Date, the number of shares of Common Stock
outstanding is increased by a stock dividend payable in shares of Common Stock
or by a subdivision or split-up of shares of Common Stock, then, following the
record date fixed for the determination of holders of Common Stock entitled to
receive such stock dividend, subdivision or split-up, the Exercise Price shall
be appropriately decreased in proportion to such increase in outstanding shares.
(c) Stock Combinations. If, at any time prior to the Final
Expiration Date, the number of shares of Common Stock outstanding is decreased
by a combination of the outstanding shares of Common Stock, then, following the
record date for such combination, the Exercise Price shall be appropriately
increased in proportion to such decrease in outstanding shares.
(d) Certain Dividends. If, at any time prior to the Final
Expiration Date, the Company shall declare a cash dividend upon its Common Stock
payable otherwise than out of earnings or earned surplus or shall distribute to
holders of its Common Stock shares of its capital stock (other than Common
Stock), stock or other securities of other persons, evidences of indebtedness
issued by the Company or other persons, assets (excluding cash dividends and
distributions) or options or rights (excluding options to purchase and rights to
subscribe for Common Stock or other securities of the Company convertible into
or exchangeable for Common Stock), then, in each such case, immediately
following the record date fixed for the determination of the holders of Common
Stock entitled to receive such dividend or distribution, the Exercise Price in
effect thereafter shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction of which the
numerator shall be an amount equal to the difference of (x) the Current Market
Price of one share of Common Stock
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minus (y) the fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the stock, securities,
evidences of indebtedness, assets, options or rights so distributed in respect
of one share of Common Stock, and of which the denominator shall be such Current
Market Price.
(e) All calculations under this Section 3 shall be made to the
nearest cent or to the nearest share, as the case may be.
(f) Whenever the Exercise Price shall be increased or
decreased pursuant to subsections (b), (c) and/or (d) of this Section 3, the
number of shares of Common Stock acquirable upon the full exercise hereof shall
be increased (in the case of a decrease in the Exercise Price) or decreased (in
the case of an increase in the Exercise Price) to that number of shares of
Common Stock obtained by multiplying the number of shares for which this Warrant
was fully exercisable immediately before the event giving rise to the Exercise
Price adjustment by a fraction, the numerator of which is the Exercise Price
immediately prior to such event and the denominator of which is the Exercise
Price immediately upon the consummation of such event. Whenever the Exercise
Price shall be adjusted as provided in Section 3, the Company shall prepare a
statement showing the facts requiring such adjustment and the Exercise Price
that shall be in effect after such adjustment. The Company shall cause a copy of
such statement to be sent by mail, first class postage prepaid, to the holder of
this Warrant at its address appearing on the Company's records. Where
appropriate, such copy may be given in advance and may be included as part of
the notice required to be mailed under the provisions of subsection (b) of this
Section 3.
(g) Adjustments made pursuant to clauses (b), (c) and (d)
above shall be made on the date such issuance, dividend, subdivision, split-up,
combination or distribution, as the case may be, is made, and shall become
effective at the opening of business on the business day next following the
record date for the determination of stockholders entitled to such dividend,
subdivision, split-up, combination or distribution.
(h) In the event the Company shall propose to take any action
of the types described in clauses (b), (c) or (d) of this Section 3, the Company
shall forward, at the same time and in the same manner, to the Holder of this
Warrant such notice, if any, which the Company shall give to the holders of
capital stock of the Company.
(i) In any case in which the provisions of this Section 3
shall require that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the occurrence of such
event issuing to the holder of all or any part of this Warrant which is
exercised after such record date and before the occurrence of such event the
additional shares of capital stock issuable upon such exercise by reason of the
adjustment required by such event over and above the shares of capital stock
issuable upon such exercise before giving effect to such adjustment exercise;
provided, however, that the Company shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
4. Definitions. The terms defined in this paragraph, whenever used in
this Warrant Certificate, shall, unless the context otherwise requires, have the
respective meanings hereinafter specified:
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(a) "Common Stock" shall mean and include the Company's Common
Stock, $.01 par value, and shall also include in case of any reorganization,
reclassification, consolidation, merger or sale of assets, the stock, securities
or assets provided to holders of the Company's Common Stock in exchange
therefor.
(b) "Company" shall mean E-Sync Networks, Inc. and also
include any successor thereto with respect to the obligations hereunder, by
merger, consolidation or otherwise.
(c) "Current Market Price" shall mean, at any date and with
respect to one share of Common Stock, the average of the daily closing prices
for the 30 consecutive business days ending no more than five business days
before the day in question (as adjusted for any stock dividend, split,
combination or reclassification that took effect during such 30 business day
period). The closing price for each day shall be the last reported sales price
regular way or, in case no such reported sales took place on such day, the
average of the last reported bid and asked prices regular way, in either case on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading or as reported by Nasdaq (or if the Common Stock is not
at the time listed or admitted for trading on any such exchange or if prices of
the Common Stock are not reported by Nasdaq then such price shall be equal to
the average of the last reported bid and asked prices on such day as reported by
The National Quotation Bureau Incorporated or any similar reputable quotation
and reporting service, if such quotation is not reported by The National
Quotation Bureau Incorporated); provided, however, that if the Common Stock is
not traded in such manner that the quotations referred to herein are available
for the period required hereunder, the Current Market Price shall be determined
in good faith by the Board of Directors of the Company or, if such determination
cannot be made, by a nationally recognized independent investment banking firm
selected by the Board of Directors of the Company (or if such selection cannot
be made, by a nationally recognized independent investment banking firm selected
by the American Arbitration Association in accordance with its rules).
(d) "Final Exercise Date" shall mean August 15, 2005.
(e) "Warrant Certificate" shall mean this instrument
evidencing the Warrants issued to the Warrant holder on this date.
(f) "Warrant holder(s)" shall mean the registered holder(s) of
the Warrants.
(g) "Warrants" shall mean the Warrants represented by this
Warrant Certificate and all Warrants issued in exchange, transfer or replacement
or hereof or thereof.
(h) "Warrant Shares" shall mean the shares of Common Stock
purchased or purchasable by the holders of Warrants upon the exercise thereof
pursuant to paragraph 1.
5. Exchange, Replacement and Assignability. This Warrant Certificate is
exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company described in paragraph 1, for new Warrant Certificates of
like tenor and date representing in the aggregate the right to purchase the
number of Warrant Shares which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of Warrant Shares as
shall be designated by such holder
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hereof at the time of such surrender. Upon receipt of evidence satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant
Certificate or any such new Warrant Certificates and, in the case of any such
loss, theft or destruction, of a bond of indemnity or other security
satisfactory to the Company, or, in the case of any such mutilation, upon
surrender or cancellation of such mutilated Warrant Certificate, the Company
will issue to the holder hereof a new Warrant Certificate of like tenor and
date, in lieu of this Warrant Certificate or such new Warrant Certificates,
representing the right to purchase the number of Warrant Shares which may be
purchased hereunder. Subject to compliance with paragraph 2, this Warrant and
all rights hereunder are transferable in whole or in part upon the books of the
Company by the registered holder hereof in person or by duly authorized
attorney, and a new Warrant Certificate shall be made and delivered by the
Company, of the same tenor and date as this Warrant Certificate but registered
in the name of the transferee, upon surrender of this Warrant Certificate, duly
endorsed, to the office or agency of the Company. All expenses, taxes (other
than stock transfer taxes, which shall be the obligation of the Warrant holder)
and other charges payable in connection with the preparation, execution and
delivery of Warrants pursuant to this paragraph 5 shall be paid by the Company.
6. No Rights as Stockholder; Survival of Rights. Neither this Warrant
Certificate nor the Warrants represented hereby shall entitle the holder hereof
to any voting rights or any rights as a stockholder of the Company. The rights
and obligations of the Company, of the holder of these Warrants and of any
holder of Warrant Shares issued upon exercise of these Warrants shall survive
the exercise of these Warrants.
7. Governing Law; Amendments and Waivers; Headings. The validity,
interpretation and performance of this Warrant Certificate and each of its terms
and provisions shall be governed by the laws of the State of Connecticut. No
provision of this Warrant Certificate may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against which
enforcement of the same is sought. The headings in this Warrant Certificate are
for purposes of reference only and shall not affect the meaning or construction
of any of the provisions hereof.
8. Notices. Any notice or other document required or permitted to be
given or delivered to Warrant holders shall be delivered at, or sent by
certified or registered mail to each Warrant holder at, the address shown or to
such other address as shall have been furnished to the Company by such Warrant
holder. Any notice or other document required or permitted to be given or
delivered to the Company shall be delivered at, or sent by certified or
registered mail to the principal office of the Company at 35 Nutmeg Drive,
Trumbull, Connecticut 06611 Attention: Secretary, or such other address as shall
have been furnished to the Warrant holders by the Company.
IN WITNESS WHEREOF, E-Sync Networks, Inc. has caused this Warrant
Certificate to be signed by its duly authorized officer under its corporate
seal, duly attested by its authorized officer, and to be dated as of August 15,
2000.
E-SYNC NETWORKS, INC.
By:
Name:
Title: