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EXHIBIT 4.2
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
OR THE SECURITIES LAWS OF ANY STATE, PURSUANT TO ONE OR MORE
EXEMPTIONS THEREFROM. THIS WARRANT MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR OTHERWISE DISPOSED OF WITHOUT REGISTRATION UNDER SUCH LAWS
OR PURSUANT TO EXEMPTIONS THEREUNDER.
Void after 5:00 p.m. New York Time, on October 23, 2000
Warrant to Purchase ____________ Shares of Common Stock
WARRANT TO PURCHASE COMMON STOCK
OF
XPLOR CORPORATION
This is to Certify That, FOR VALUE RECEIVED,
________________________________ , or assigns ("Holder"), is entitled to
purchase, subject to the provisions of this Warrant, from Xplor Corporation, a
Delaware corporation ("Company"), __________________ fully paid, validly issued
and nonassessable shares of Common Stock, par value $0.01 per share, of the
Company ("Common Stock") at a price of $3.00 per share at any time or from time
to time during the period from the date hereof to October 23, 2000 but not
later than 5:00 p.m. New York City Time, on October 23, 2000. The number of
shares of Common Stock to be received upon the exercise of this Warrant and the
price to be paid fro each share of Common Stock may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock deliverable upon
such exercise, and as adjusted from time to time, are hereinafter sometimes
referred to as "Warrant Shares" and the exercise price of a share of Common
Stock in effect at any time and as adjusted from time to time is hereinafter
sometimes referred to as the "Exercise Price".
(a) EXERCISE OF WARRANT. This Warrant may be exercised
in whole or in part at any time or from time to time on or after the date
hereof and until October 23, 2000 (the "Exercise Period"); provided, however,
that if either such day is a day on which banking institutions in the State of
New York are authorized by law to close, then this Warrant may be exercised, in
whole or in part, on the next succeeding day which shall not be such a day.
This Warrant may be exercised by presentation and surrender hereof to the
Company at its principal office, or at the office of its stock transfer agent,
if any, with the Purchase Form annexed hereto duly executed and accompanied by
payment of the Exercise Price for the number of Warrant Shares specified in
such form. As soon as practicable after each such exercise of this Warrant,
but not later than seven (7) days from the date of such exercise, the Company
shall issue and deliver to the Holder a certificate or certificates for the
Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designee. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof to purchase
the balance of the Warrant Shares purchasable thereunder. Upon receipt by the
Company of this Warrant at its office, or by the stock transfer agent of the
Company at its office, in proper form for exercise, the Holder
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shall be deemed to be the holder of record of the shares of Common Stock
issuable upon such exercise, notwithstanding that the stock transfer books of
the Company shall then be closed or that certificates representing such shares
of Common Stock shall not then be physically delivered to the Holder.
(b) TRANSFER RESTRICTION LEGEND. Each certificate
representing Warrant Shares initially issued upon exercise of this Warrant,
unless at the time of exercise such Warrant Shares are registered under the
Securities Act, shall bear the following legend (and any additional legend
required by any securities exchange on which the Warrant Shares may at the time
be listed) on the fact thereof:
"The securities represented hereby have not been registered under the
Securities Act of 1933, and the transfer of such securities is subject
to the restrictions set forth in the Warrant pursuant to which such
securities have been issued, a copy of which is available for
inspection at the principal executive offices of Xplor Corporation,
and no transfer of such securities shall be valid or effective unless
and until the terms and conditions of said Warrant shall have been
complied with."
Any certificate issued at any time upon transfer of, or in exchange for or
replacement of, any certificate bearing such legend (except a new certificate
issued upon completion of a public distribution of the securities represented
thereby pursuant to a registration under the Securities Act) shall also bear
such legend unless, in the opinion of counsel for the Company, or such other
counsel as shall be acceptable to the Company, in each case addressed and
delivered to the Company, the securities represented thereby need no longer be
subject to the restrictions contained in this Warrant. The provisions of this
Warrant shall be binding upon all subsequent holders of certificates bearing
the above legend and shall also be applicable to all subsequent holders of this
Warrant.
(c) RESTRICTIONS ON TRANSFER.
(1) General Restrictions. Notwithstanding any
provisions contained in this Warrant to the contrary, this Warrant and the
related Warrant Shares bearing the legend as provided in Section (b) of this
Warrant shall not be transferable except upon the conditions specified in this
Section (c), which conditions are intended, among other things, to insure
compliance with the provisions of the Securities Act in respect of the transfer
of this Warrant or of such Warrant Shares. The registered holder of this
Warrant agrees that it will neither (i) transfer this Warrant prior to delivery
to the Company of the opinion of counsel referred to in, and to the effect
described in, Section (c)(2), or until registration hereof under the Securities
Act, nor (ii) transfer such Warrant Shares prior to delivery to the Company of
the opinion of counsel referred to in, and to the effect described in, Section
(c)(2), or until registration of such Warrant Shares under the Securities Act
has become effective.
(2) Statement of Intention to Transfer: Opinion of
Counsel. The registered holder of this Warrant, by its acceptance hereof,
agrees that prior to any transfer
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of this Warrant or any transfer of the related Warrant Shares bearing the
legend as provided in Section (b) of this Warrant, said holder will deliver to
the Company a statement setting forth either said holder's intention with
respect to the disposition of this Warrant or of any Warrant Shares (whichever
is involved in such transfer), in either such case, together with a signed copy
of the opinion of said holder's counsel as shall be acceptable to the Company,
as to the necessity or non-necessity for registration under the Securities Act
in connection with such transfer. Each such opinion shall either be addressed
to the Company or state that the Company may rely thereon. The following
provisions shall then apply:
i. If, in the opinion of said holder's counsel, the
proposed transfer of this Warrant or the proposed transfer of
such Warrant Shares may be effected without registration under
the Securities Act of this Warrant or such Warrant Shares, as
the case may be, then the registered holder of this Warrant
shall be entitled to transfer this Warrant or to transfer such
Warrant Shares in accordance with the statement of intention
delivered by said holder to the Company.
ii. If, in the opinion of said counsel, either the
proposed transfer of this Warrant or such Warrant Shares may
not be effected without registration under the Securities Act
of this Warrant or such Warrant Shares, as the case may be,
the registered holder of this Warrant shall not be entitled to
transfer this Warrant or such Warrant Shares, as the case may
be, until such registration is effective.
(d) RESERVATION OF SHARES. The Company shall at all
times reserve for issuance and/or delivery upon exercise of this Warrant such
number of shares of its Common Stock as shall be required for issuance and
delivery upon exercise of the Warrants.
(e) FRACTIONAL SHARES. No fractional shares or
script representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the current market value of a share, determined as
follows:
(1) If the Common Stock is listed on a national
securities exchange or admitted to unlisted trading privileges
on such exchange or listed for trading on the Nasdaq National
Market, the current market value shall be the last reported
sale price of the Common Stock on such exchange or market on
the last business day prior to the date of exercise of this
Warrant or if no such sale is made on such day, the average
closing bid and asked prices for such day on such exchange or
market; or
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(2) If the Common Stock is not so listed or
admitted to unlisted trading privileges, but is traded on the
Nasdaq SmallCap Market, the current Market Value shall be the
average of the closing bid and asked prices for such day on
such market and if the Common Stock is not so traded, the
current market value shall be the mean of the last reported
bid and asked prices reported by the National Quotation
Bureau, Inc. on the last business day prior to the date of the
exercise of this Warrant; or
(3) If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked
prices are not so reported, the current market value shall be
an amount, not less than book value thereof as at the end of
the most recent fiscal year of the Company ending prior to the
date of the exercise of the Warrant, determined in such
reasonable manner as may be prescribed by the Board of
Directors of the Company.
(f) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT.
This Warrant is exchangeable, without expense, at the option of the Holder,
upon presentation and surrender hereof to the Company or at the office of its
stock transfer agent, if any, for other warrants of different denominations
entitling the holder thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. This Warrant is not transferable
other than by will or pursuant to the laws of descent and distribution and
except as provided under Subsection (c) hereof. Upon surrender of this Warrant
to the Company at its principal office or at the office of its stock transfer
agent, if any, with the Assignment Form annexed hereto duly executed and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be canceled. This Warrant may be
divided or combined with other warrants which carry the same rights upon
presentation hereof at the principal office of the Company or at the office of
its stock transfer agent, if any, together with a written notice specifying the
names and denominations in which new Warrants are to be issued and signed by
the Holder hereof. The term "Warrant" as used herein includes any Warrants
into which this Warrant may be divided or exchanged. 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) of
reasonably satisfactory indemnification, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be
at any time enforceable by anyone.
(g) RIGHTS OF THE HOLDER. The Holder shall not, by
virtue hereof, be entitled to any rights of a shareholder in the Company,
either at law or equity, and the rights of the Holder are limited to those
expressed int eh Warrant and are not enforceable against the Company except to
the extent set forth herein.
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(h) ANTI-DILUTION PROVISIONS. The Exercise Price
in effect at any time and the number and kind of securities purchasable upon
the exercise of the Warrants shall be subject to adjustment from time to time
upon the happening of certain events as follows:
(1) In case the Company shall (i) declare a
dividend or make a distribution on its outstanding shares of
Common Stock in shares of Common Stock, (ii) subdivide or
reclassify its outstanding shares of Common Stock into a
greater number of shares, or (iii) combine or reclassify its
outstanding shares of 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 of the effective
date of such subdivision, combination or reclassification
shall be adjusted so that it shall equal the price determined
by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common
Stock outstanding after giving effect to such action, and the
numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to such action. Such
adjustment shall be made immediately prior to such action.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(2) Whenever the Exercise Price payable upon
exercise of each Warrant is adjusted pursuant to Subsection
(1) above, the number of Shares purchasable upon exercise of
this Warrant shall simultaneously be adjusted by multiplying
the number of Shares initially issuable upon exercise of this
Warrant by the Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as
adjusted.
(3) In the event that at any time, as a result of
an adjustment made pursuant to Subsection (1) above, the
Holder of this Warrant thereafter 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 this 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 Subsection (1) above.
(i) REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(1) The Company shall advise the Holder of this
Warrant of the Warrant Shares or any then holder of Warrants
or Warrant Shares (such person being collectively referred to
herein as "holder") by written notice at least two weeks prior
to the filing of any registration statement or post-effective
amendment thereto under the Securities
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Act of 1933 covering securities of the Company and will for
the period until October 23, 2001, upon the request of any
such holder, include in any such registration statement such
information as may be required to permit a public offering of
the Warrant Shares. In connection with its filing of any
registration statement or post-effective amendment thereto,
the Company shall supply prospectuses and other documents as
the Holder may request in order to facilitate the public sale
or other disposition of the Warrant Shares, qualify the
Warrant Share for sale in such states as any such holder
designates and do any and all other acts and things which may
be necessary or desirable to enable such Holders to consummate
the public sale or other disposition of the Warrant Shares.
(2) If any registration pursuant to Subsection 1 of
this Section (i) shall be underwritten in whole or in part,
the Company may require that the Warrant Shares requested for
inclusion pursuant to Subsection 1 of this Section (i) be
included int eh underwriting on the same terms and conditions
as the securities otherwise being sold through the
underwriters. In the event that in the good faith judgment of
the managing underwriter of such public offering the inclusion
of all of the Warrant Shares covered by a request for
registration would reduce the number of shares to be offered
by the Company or interfere with the successful marketing of
the shares of stock offered by the Company, the number of
Warrant Shares otherwise to be included in the underwritten
public offering may be reduced pro rata (by number of shares)
among the holders thereof requesting such registration or
excluded in their entirety if so required by the underwriter.
To the extent only a portion of the Warrant Shares is included
in the underwritten public offering, those Warrant Shares
which are thus excluded from the underwritten public offering
shall be withheld from the market by the holders thereof for a
period, not to exceed 120 days, which the managing underwriter
reasonably determines is necessary in order to effect the
underwritten public offering.
The obligation of the Company under Subsection 2 of this
Section (i) shall be limited to two registration statements.
(3) The Company shall bear the entire cost and
expense of any registration of securities initiated by it
under Subsection (1) of this Section (i) notwithstanding that
Warrant Shares may be included in any such registration. Any
holder whose Warrant Shares are included in any such
registration statement pursuant to this Section (i) shall,
however, bear the fees of his own counsel and any
registration fees, transfer taxes or underwriting discounts
or commissions applicable to the Warrant Shares sold by him
pursuant thereto.
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XPLOR CORPORATION
[SEAL] By:
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Name:
Dated: May , 1997 Title:
Attest:
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Name:
Title:
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PURCHASE FORM
Dated ____________________________, 1998.
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ___________ share of Common Stock and
hereby makes payment of _________________ in payment of the actual exercise
price thereof.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
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(Please typewrite or print in block letters)
Address
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Signature
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ASSIGNMENT FORM
FOR VALUE RECEIVED, __________________________________ hereby
sells, assigns and transfers unto
Name
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(Please typewrite or print in block letters)
Address
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the right to purchase Common Stock represented by this Warrant to the extent of
____________shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint __________________ as attorney, to transfer
the same on the books of the Company with full power of substitution in the
premises.
Date , 1998.
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Signature
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