Exhibit 4.3
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
THE SECURITIES LAWS OF ANY STATE. NEITHER SUCH WARRANTS NOR SUCH SECURITIES MAY
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT SUCH
REGISTRATION, EXCEPT UPON DELIVERY TO THE COMPANY OF SUCH EVIDENCE AS MAY BE
SATISFACTORY TO COUNSEL FOR THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER
SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
MONSTERDAATA.COM, INC.
Warrant for the Purchase of
Shares of Common Stock
No. [ ] [ ] Shares
FOR VALUE RECEIVED, MONSTERDAATA.COM, INC., a Delaware corporation
(the "Company"), hereby certifies that [ ], his designee or his permitted
assigns (the "Holder"), is entitled to purchase from the Company, up to [ ]
fully paid and non-assessable shares ("Warrant Shares") of common stock, $.01
par value per share, of the Company (the "Common Stock"). This Warrant may be
exercised by the Holder in whole at any time, or in part from time to time, on
or after [ ], 1999 and prior to 5:00 P.M., Eastern Standard Time, on the
Expiration Date (as defined below). This Warrant entitles the Holder to purchase
from the Company the number of fully-paid and non-assessable shares set forth
above at the exercise price (the "Exercise Price"), payable in lawful money of
the United States of America, of $3.75 per share; provided, however, that if the
Company fails to satisfy its obligations with regard to the registration
statement referenced in Section 7 of the Purchase Agreement, dated as of
[ ], 1999, between the Company and the original Holder relating to
certain shares of Preferred Stock of the Company (the "PSPA"), the Exercise
Price shall be reduced in accordance with the applicable terms of Section 7 of
the PSPA (which terms are deemed to be incorporated herein by reference). The
Expiration Date shall be the date of the fifth anniversary of the issuance of
this Warrant ([ ], 2004).
1. Exercise of Warrant. (a) This Warrant may be exercised by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed):
(i) at the address set forth in Section 8(a) hereof, together with
proper payment of the Exercise Price, or the proportionate part
thereof if this Warrant is exercised in part, with payment for the
Warrant Shares made by certified or official bank check payable to
the order of the Company.
(ii) by the surrender of this Warrant (with the cashless exercise
form attached hereto duly executed) (a "Cashless Exercise") at the
address set forth in Section 8(a) hereof. Such presentation and
surrender shall be deemed a waiver of the Holder's obligation to pay
the aggregate Exercise Price, or the proportionate part thereof if
this Warrant is exercised in part. In the event of a Cashless
Exercise, the Holder shall exchange its Warrant Certificate for that
number of shares of Common Stock determined by multiplying the
number of Common Shares subject to such Cashless Exercise by a
fraction, the numerator of which shall be the difference between the
then current market price per share of the Common Stock and the per
share Exercise Price, and the denominator of which shall be the then
current market price per share of the Common Stock. For purposes of
any computation under this Section, the then current market price
per share of Common Stock at any date (the "Market Price") shall be
deemed to be last sale price of the Common Stock on the business day
prior to the date of the Cashless Exercise or, in case no such
reported sales take place on such day, the average of the last
reported bid and asked prices of the Common Stock on such day, in
either case as reported on the OTC Bulletin Board of the National
Association of Securities Dealers, Inc. (the "OTCBB"), or other
similar organization if the OTCBB is no longer reporting such
information, or if not so available, the fair market price of the
Common Stock as determined by the Board of Directors.
(b) If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of the Common Stock and the Holder shall
be entitled to receive a new Warrant covering the Warrant Shares that have not
been exercised and setting forth the proportionate part of the Exercise Price
applicable to such Warrant Shares.
(c) Upon surrender of this Warrant, the Company will (i) issue a
certificate or certificates in the name of the Holder for the largest number of
whole shares of the Common Stock to which the Holder shall be entitled and, if
this Warrant is exercised in whole, in lieu of any fractional share of the
Common Stock to which the Holder shall be entitled, pay to the Holder cash in an
amount equal to the fair value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall determine), and
(ii) deliver the other securities and properties receivable upon the exercise of
this Warrant, or the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of this Warrant.
2. Reservation of Warrant Shares. The Company agrees that, prior to
the expiration of this Warrant, (i) the Company shall at all times have
authorized and in reserve, and shall keep available, solely for issuance and
delivery upon the exercise of this Warrant, the shares of Common Stock and other
securities and properties as from time to time shall be receivable upon the
exercise of this Warrant, free and clear of all restrictions on sale or
transfer, other than under Federal or state securities laws, and free and clear
of all preemptive rights and rights of first refusal.
3. Anti-Dilution Provisions. (a) In the case the Company shall
hereafter (i) pay a dividend or make a distribution on its capital stock in
shares of Common Stock, (ii)
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subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of 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 shall be adjusted so
that the Holder upon the exercise hereof shall be entitled to receive the number
of shares of Common Stock or other capital stock of the Company which he would
have owned immediately following such action had such Warrant been exercised
immediately prior thereto. An adjustment made pursuant to this Subsection 3(a)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
(b) In the case of any capital reorganization or reclassification,
or any consolidation or merger to which the Company is a party other than a
merger or consolidation in which the Company is the continuing corporation, or
in the case of any sale or conveyance to another entity of the property of the
Company as an entirety or substantially as an entirety, 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 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 Section 3 with respect to the rights and
interests thereafter of the Holder of this Warrant to the end that the
provisions set forth in this Section 3 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 above provisions of this paragraph 3(b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The issuer of any shares of stock or
other securities or property thereafter deliverable on the exercise of this
Warrant shall be 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 said
provisions so proposed to be made, shall be mailed to the Holders of the
Warrants 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.
(c) Whenever the Exercise Price is adjusted as provided in this
Section 3 and upon any modification of the rights of a Holder of Warrants in
accordance with this Section 3, the Company shall promptly mail to the Holders
of the warrants a certificate of the Company's chief financial officer setting
forth the Exercise Price and the number of Common Shares after such adjustment
or the effect of such modification, a brief statement of the facts requiring
such adjustment or modification and the manner of computing the same, and, at
the request of the Holder of any Warrant, obtain, at the Company's expense, a
certificate of a firm of independent public accountants of recognized standing
selected by the Board of Directors (who may be the
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regular auditors of the Company) to such effect and cause of such certificate to
be mailed to the Holders of the Warrants.
(d) In case any event shall occur as to which the other provisions
of this Section 3 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 Warrants representing the right to purchase a
majority of the Common Shares subject to all outstanding 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 Warrants. 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 such Holders.
(e) No adjustments in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least $0.01 per
share of Common Stock. All calculations under this Section 3 shall be made to
the nearest cent or to the nearest share, as the case may be. Anything in this
Section 3 to the contrary notwithstanding, the Company shall be entitled to make
such reductions in the Exercise Price, in addition to those required by this
Section 3 as it in its discretion shall deem to be advisable in order that any
stock dividend, subdivision of shares or distribution of rights to purchase
stock or securities convertible or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable.
4. Fully Paid Stock. The shares of the Common Stock represented by
each and every certificate for Warrant Shares delivered on the exercise of this
Warrant shall at the time of such delivery, be duly authorized, validly issued
and outstanding, fully paid and nonassessable.
5. Investment Intent; Limited Transferability. (a) The Holder
represents, by accepting this Warrant, that it understands that this Warrant and
any securities obtainable upon exercise of this Warrant have not been registered
for sale under Federal or state securities laws and are being offered and sold
to the Holder pursuant to one or more exemptions from the registration
requirements of such securities laws. In the absence of an effective
registration of such securities or an exemption therefrom, any certificates for
such securities shall bear the legend set forth on the first page hereof. The
Holder understands that it must bear the economic risk of its investment in this
Warrant and any securities obtainable upon exercise of this Warrant for an
indefinite period of time, as this Warrant and such securities have not been
registered under Federal or state securities laws and therefore cannot be sold
unless subsequently registered under such laws, unless an exemption from such
registration is available.
(b) The Holder, by its acceptance of this Warrant, represents to the
Company that (i) it is acquiring this Warrant and will acquire any securities
obtainable upon exercise of this Warrant for its own account for investment and
not with a view to, or for sale in connection with, any distribution thereof in
violation of the Securities Act, (ii) it has such sophistication,
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knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Company, (iii) it has
the ability to bear the economic risks of its investment for an indefinite
period of time and could afford a complete loss of its investment and (iv) it
had and will continue to have access to information, and the opportunity, prior
to the acquisition of the Warrant Shares and this Warrant, to ask questions of
and receive answers from representatives of the Company, in each case concerning
the finances, operations and business of the Company.
(c) The Holder agrees that this Warrant and any such securities will
not be sold or otherwise transferred unless (i) a registration statement with
respect to such transfer is effective under the Securities Act and any
applicable state securities laws or (ii) such sale or transfer is made pursuant
to one or more exemptions from the Securities Act.
(d) This Warrant may not be sold, transferred, assigned or
hypothecated by the Holder except in compliance with the provisions of the Act
and the applicable state securities "blue sky" laws, and is so transferable only
upon the books of the Company which it shall cause to be maintained for such
purpose. The Company may treat the registered Holder of this Warrant as he or it
appears on the Company's books at any time as the Holder for all purposes. The
Company shall permit any Holder of a Warrant or his duly authorized attorney,
upon written request during ordinary business hours, to inspect and copy or make
extracts from its books showing the registered holders of Warrants. All Warrants
issued upon the transfer or assignment of this Warrant will be dated the same
date as this Warrant, and all rights of the holder thereof shall be identical to
those of the Holder.
(e) The Holder has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
Warrants or the exercise of the Warrants and (ii) the opportunity to request
such additional information which the Company possesses or can acquire without
unreasonable effort or expense.
(f) The Holder did not (i) receive or review any advertisement,
article, notice or other communication published in a newspaper or magazine or
similar media or broadcast over television or radio, whether closed circuit, or
generally available or (ii) attend any seminar, meeting or investor or other
conference whose attendees were, to such Holder's knowledge, invited by any
general solicitation or general advertising.
(g) The Holder is an "accredited investor" within the meaning of
Regulation D under the Act. Such Holder is acquiring the Warrants for its own
account and not with a present view to, or for sale in connection with, any
distribution thereof in violation of the registration requirements of the
Securities Exchange Act of 1934.
(h) Either by reason of such Holder's business or financial
experience or the business or financial experience of its professional advisors
(who are unaffiliated with and who are not compensated by the Company or any
affiliate, finder or selling agent of the Company, directly or indirectly), such
Holder has the capacity to protect such Holder's interests in connection with
the transactions contemplated by this Warrant.
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6. Warrant Holder Not Shareholder. Except as otherwise provided
herein, this Warrant does not confer upon the Holder any right to vote or to
consent to or receive notice as a stockholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or liabilities as a
stockholder, prior to the exercise hereof.
7. Modification. This Agreement may not be modified, amended or
waived in any manner except by an instrument in writing signed by the Holder and
the Company. The waiver by either party of compliance with any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
such party of a provision of this Agreement.
8. Communication. No notice or other communication under this
Warrant shall be effective unless, but any notice or other communication shall
be effective and shall be deemed to have been given if, the same is in writing
and is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at 115 Stevens Avenue, Valhalla, NY 10595,
Attention: President or other address as the Company has designated in writing
to the Holder; or
(b) the Holder at [ ] or other such address as the
Holder has designated in writing to the Company.
9. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
10. Applicable Law. This Warrant shall be governed by and construed
in accordance with the law of the State of New York without giving effect to the
principles of conflicts of law thereof.
11. Assignability. The Holder shall not assign this Warrant at any
time, without the written consent of the Company, to any other party.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its President and its corporate seal to be hereunto affixed and attested by
its Secretary this [ ] day of [ ], 1999.
MONSTERDAATA.COM, INC.
By:_____________________________________
Mitchell Deutsch
President and Chief Executive Officer
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SUBSCRIPTION
The undersigned, _______________________________, pursuant to the
provisions of the foregoing Warrant, hereby agrees to subscribe for and purchase
_________________ shares of the Common Stock, par value $.01 per share, of
MonsterDaata.com, Inc. covered by said Warrant, and makes payment therefor in
full at the price per share provided by said Warrant.
Dated:_______________ Signature:______________________________
Address: ______________________________
______________________________
______________________________
CASHLESS EXERCISE
The undersigned Holder, pursuant to the provisions of the foregoing
Warrant, hereby irrevocably elects to exchange its Warrants for _________ shares
of Common Stock of MonsterDaata.com, Inc. pursuant to the Cashless Exercise
provisions of said Warrant.
Dated:_______________ Signature:______________________________
Address: ______________________________
______________________________
______________________________