EXHIBIT 4.12
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED AS PROVIDED IN SECTION 2
No. ____ ______, 2002
AUTHENTIDATE HOLDING CORP.
COMMON STOCK PURCHASE WARRANT
For good and valuable consideration, the receipt of which is hereby
acknowledged by AUTHENTIDATE HOLDING CORP., a Delaware corporation (the
"Company"), ____________, is hereby granted the right to purchase, at any time
from 12:01 A.M., New York City time, on _____ , 2002 until 5:00 P.M., New York
City time, ______, 2007 (the "Warrant Exercise Term"), up to __________________
(_________) fully-paid and non-assessable shares of the Company's Common Stock,
$.00l par value per share ("Common Stock").
This Warrant is exercisable at a per share price of $3.26 (the
"Exercise Price"), subject to adjustment as provided in Section l hereof,
payable in cash or by certified or official bank check in New York Clearing
House funds. Upon surrender of this warrant certificate with the annexed
Subscription Form duly executed, together with payment of the Exercise Price for
the shares of Common Stock purchased at the Company's principal executive
offices (presently located at 2165 Technology Drive, Schenectady, New York
12308) the registered Holder of the Warrant ("Holder") shall be entitled to
receive a certificate or certificates for the shares of Common Stock so
purchased (the "Warrant Shares").
This Warrant is one of a duly authorized issue of Common Stock Purchase
Warrants, sold or to be sold, by the Company, in original authorized amounts,
similar in terms except for dates, share amounts and named holders and is issued
in connection with a certain Unit Purchase Agreement of even date herewith,
between the Company and the Holder and other signatories thereto (the "Purchase
Agreement"), all terms of which are incorporated herein by this reference and
hereby made a part of this Warrant. By its acceptance of this Warrant, each
Holder agrees to be bound by the terms of the Purchase Agreement. All
capitalized terms not otherwise defined herein shall have
the meanings ascribed to such terms in the Purchase Agreement.
l. Exercise of Warrant
1.1 The purchase rights represented by this Warrant
are exercisable at the option of the Holder hereof, in whole or in part (but not
as to fractional shares of the Common Stock) during any period in which this
Warrant may be exercised as set forth above. In the case of the purchase of less
than all the shares of Common Stock purchasable under this Warrant, the Company
shall cancel this Warrant upon the surrender thereof and shall execute and
deliver a new Warrant of like tenor for the balance of the shares of Common
Stock purchasable hereunder.
1.2 The issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
the Holder hereof including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall be issued in the
name of, or in such names as may be directed by, the Holder hereof; provided,
however, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of such
certificate in a name other than that of the Holder and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
1.3 Stock Dividends, Subdivisions, Reclassifications
or Combinations. If the Corporation shall (A) declare a dividend or make a
distribution on its Common Stock in shares of its Common Stock, (B) subdivide or
reclassify the outstanding shares of Common Stock into a greater number of
shares, or (C) combine or reclassify the outstanding Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
Holder after such date shall be entitled to receive the number of shares of
Common Stock which he would have owned or been entitled to receive had this
Warrant been exercised immediately prior to such date. Successive adjustments in
the Exercise Price shall be made whenever any event specified above shall occur.
1.4 Consolidation, Merger, Sale or Conveyance. In
case of any consolidation or merger of the Company with any other corporation
(other than a wholly owned subsidiary), or in case of sale or transfer of all or
substantially all of the assets of the Company, or in the case of any share
exchange whereby the Common Stock is converted into other securities or
property, the Company will be required to make appropriate provision so that the
Holder will have the right thereafter to exercise this Warrant into the kind and
amount of shares of stock and other securities and property receivable upon such
consolidation, merger, sale, transfer or share exchange by a holder of the
number of shares of Common Stock for which this Warrant was exercisable
immediately prior to such consolidation, merger, sale, transfer or share
exchange.
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1.5 The Company covenants that it will at all times
reserve and keep available out of its authorized Common Stock, solely for the
purpose of issuance upon exercise of this Warrant as herein provided, such
number of shares of Common Stock as shall then be issuable upon the exercise of
this Warrant. The Company covenants that all shares of Common Stock which shall
be so issuable shall be duly and validly issued and fully-paid and
non-assessable.
2. Restrictions on Transfer
The Holder acknowledges that he has been advised by the
Company that this Warrant and the shares of Common Stock (the "Warrant Shares")
issuable upon exercise thereof (collectively the "Securities") have not been
registered under the Securities Act of l933, as amended (the "Securities Act"),
that the Warrant is being issued, and the shares issuable upon exercise of the
Warrant will be issued, on the basis of the statutory exemption provided by
section 4(2) of the Securities Act and Regulation D promulgated thereunder,
relating to transactions by an issuer not involving any public offering, and
that the Company's reliance upon this statutory exemption is based in part upon
the representations made by the Holder contained herein. The Holder of this
Warrant Certificate acknowledges that the Holder is an "accredited investor"
within the meaning of Regulation D promulgated under the Act who has been
provided with an opportunity to ask questions of representatives of the Company
concerning the Company and that all such questions were answered to the
satisfaction of the Holder. In connection with any purchase of Warrant Shares,
the Holder agrees to execute any documents which may be reasonably required by
counsel to the Company to comply with the provisions of the Act and applicable
state securities laws. The Holder acknowledges that he has been informed by the
Company of, or is otherwise familiar with, the nature of the limitations imposed
by the Securities Act and the rules and regulations thereunder on the transfer
of securities. In particular, the Holder agrees that no sale, assignment or
transfer of the Securities shall be valid or effective, and the Company shall
not be required to give any effect to any such sale, assignment or transfer,
unless (i) the sale, assignment or transfer of the Securities is registered
under the Securities Act, and the Company has no obligations or intention to so
register the Securities except as may otherwise be provided herein, or (ii) the
Securities are sold, assigned or transferred in accordance with all the
requirements and limitations of Rule 144 under the Securities Act or such sale,
assignment, or transfer is otherwise exempt from registration under the
Securities Act. The Holder represents and warrants that he has acquired this
Warrant and will acquire the Securities for his own account for investment and
not with a view to the sale or distribution thereof or the granting of any
participation therein, and that he has no present intention of distributing or
selling to others any of such interest or granting any participation therein.
The Holder acknowledges that the securities shall bear the following legend:
"These securities have not been registered under the Securities Act of
l933. Such securities may not be sold or offered for sale, transferred,
hypothecated or otherwise assigned in the absence of an effective
registration statement with respect thereto under such Act or an
opinion of counsel to the Company that an exemption from registration
for such sale, offer, transfer, hypothecation or other assignment is
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available under such Act."
3. Registration Rights.
3.1. Registration. The rights and obligations of each of the
Company and the Holder with respect to the registration of the Warrant Shares is
as set forth in full in the Purchase Agreement and the Registration Rights
Agreement entered into between the Company and the Holder on even date herewith.
The terms and provisions of the Purchase Agreement and Registration Rights
Agreement with respect to the registration of the Warrant Shares are hereby
incorporated by reference as if set forth in full herein.
4. Exchange and Replacement of Warrant Certificates.
This Warrant Certificate is exchangeable without expense, upon
the surrender hereof by the registered Holder at the principal executive office
of the Company, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of Warrant
Shares in such denominations as shall be designated by the Holder thereof at the
time of such surrender.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Warrants, if mutilated, the Company will make and deliver a new Warrant of
like tenor, in lieu thereof and any such lost, stolen, destroyed or mutilated
warrant shall thereupon become void.
5. Elimination of Fractional Interests.
The Company shall not be required to issue certificates
representing fractions of the shares of Common Stock and shall not be required
to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by rounding any
fraction up or down to the nearest whole number of shares of Common Stock.
6. Rights of Warrant Holders.
Nothing contained in this Agreement shall be construed as
conferring upon the Holder any rights whatsoever as a stockholder of the
Company, either at law or in equity, including without limitation, or Holders
the right to vote or to consent or to receive notice as a stockholder in respect
of any meetings of stockholders for the election of directors the right to
receive dividends or any other matter.
7. Miscellaneous
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7.l All the covenants and agreements made by the
Company in this Warrant shall bind its successors and assigns.
7.2 No recourse shall be had for any claim based
hereon or otherwise in any manner in respect hereof, against any incorporator,
stockholder, officer or director, past, present or future, of the Company or of
any predecessor corporation, whether by virtue of any constitutional provision
or statute or rule of law, or by the enforcement of any assessment or penalty or
in any other manner, all such liability being expressly waived and released by
the acceptance hereof and as part of the consideration for the issue hereof.
7.3 No course of dealing between the Company and the
Holder hereof shall operate as a waiver of any right of any Holder hereof, and
no delay on the part of the Holder in exercising any right hereunder shall so
operate.
7.4 This Warrant may be amended only by a written
instrument executed by the Company and the Holder hereof. Any amendment shall be
endorsed upon this Warrant, and all future Holders shall be bound thereby.
7.5 All communications provided for herein shall be
sent, except as may be otherwise specifically provided, by registered or
certified mail: if to the Holder of this Warrant, to the address shown on the
books of the Company; and if to the Company, to 2165 Technology Drive,
Schenectady, New York 12308, attention: Office of the President, or to such
other address as the Company may advise the Holder of this Warrant in writing.
Notices shall be deemed given when mailed.
7.6 The provisions of this Warrant shall in all
respects be constructed according to, and the rights and liabilities of the
parties hereto shall in all respects be governed by, the laws of the State of
New York. This Warrant shall be deemed a contract made under the laws of the
State of New York and the validity of this Warrant and all rights and
liabilities hereunder shall be determined under the laws of said State.
7.7 The headings of the Sections of this Warrant are
inserted for convenience only and shall not be deemed to constitute a part of
this Warrant.
Remainder of page intentionally left blank. Signature page follows.
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IN WITNESS WHEREOF, AUTHENTIDATE HOLDING CORP. has caused this Warrant
to be executed in its corporate name by its officer, and its seal to be affixed
hereto.
Dated:____________ , 2002
Schenectady, New York
AUTHENTIDATE HOLDING CORP.
By:_____________________________
John T. Botti
President
ATTEST:
________________________________________
Secretary
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SUBSCRIPTION FORM
TO: Authentidate Holding Corp.
2165 Technology Drive
Schenectady, New York 12308
The undersigned Holder hereby irrevocably elects to exercise the right
to purchase shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes full payment of the Exercise Price of such
shares.
Kindly deliver to the undersigned a certificate representing the
Shares.
INSTRUCTIONS FOR DELIVERY
Name: ____________________________________________________________
(please typewrite or print in block letters)
Address: __________________________________________________________
Tax I.D. No. or Social Security No.: ____________________________________
Dated: _________________________
Signature ________________________________
STATE OF ___________)
COUNTY OF _________) ss:
On this __ day of ___________, before me personally came ________, to
me known, who being by me duly sworn, did depose and say that he resides at
__________________, that he is the holder of the foregoing instrument and that
he executed such instrument and duly acknowledged to me that he executed the
same.
_____________________________
Notary Public
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[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such
holder desires to transfer the Warrant
Certificate.)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns and
transfers unto__________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint________________ , Attorney,
to transfer the within Warrant Certificate on the books of AUTHENTIDATE HOLDING
CORP, with full power of substitution.
Dated: ___________ Signature: ___________________
________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
________________________________________
________________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
STATE OF ___________)
COUNTY OF _________) ss:
On this __ day of ___________, before me personally came ________, to
me known, who being by me duly sworn, did depose and say that he resides at
__________________, that he is the holder of the foregoing instrument and that
he executed such instrument and duly acknowledged to me that he executed the
same.
________________________________________
Notary Public
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