EXHIBIT 4.9
Appendix III
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES
ACT"), OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE
SECURITIES LAWS OR CANADIAN SECURITIES LAWS. THESE SECURITIES OR THE
SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE TRANSFERRED
UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE LAW
OR (B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS
ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE
SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO
REGISTRATION OR QUALIFICATIONS IS LEGALLY REQUIRED FOR SUCH TRANSFER.
IF THE DISTRIBUTIONS OF THE SECURITIES REPRESENTED BY THE CERTIFICATE
WAS SUBJECT TO SECURITIES LEGISLATION OF CANADA, THEN UNLESS PERMITTED
UNDER SECURITIES LEGISLATION OF CANADA, THE HOLDER OF THESE SECURITIES
SHALL NOT TRADE THESE SECURITIES OR THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF BEFORE [THE DATE WHICH IS FOUR MONTHS FROM THE
CLOSING DATE].
- Warrants
DIVERSINET CORP.
WARRANT CERTIFICATE
This warrant certificate ("Warrant Certificate") certifies that for
value received - or registered assigns (the "Holder") is the owner of the number
of warrants ("Warrants") specified above, each of which entitles the Holder
thereof to purchase, at any time on or before the Expiration Date (hereinafter
defined) one fully paid and non-assessable common share in the capital of
Diversinet Corp., a corporation incorporated under the laws of Ontario, Canada
(the "Company"), at a purchase price of $0.72 per common share in lawful money
of the United States of America in cash or by certified or cashier's check or a
combination of cash and certified or cashier's check, subject to adjustment as
hereinafter provided. The common shares in the capital of the Company are
hereinafter referred to as "Common Shares".
1 Warrant; Purchase Price
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Each Warrant shall entitle the Holder to purchase one Common Share
and the purchase price payable upon exercise of the Warrants shall initially be
$0.72 per Common Share in lawful money of the United States of America, subject
to adjustment as hereinafter provided (the "Purchase Price"). The Purchase
Price and number of Common Shares issuable upon exercise of each Warrant are
subject to adjustment as provided in Article 6.
2 Exercise; Expiration Date
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2.1 The Warrants are exercisable, at the option of the Holder, at any
time after issuance and on or before the Expiration Date, upon surrender of this
Warrant Certificate to the Company together with a duly completed Notice of
Exercise, in the form attached hereto as Exhibit A, and payment of an amount
equal to the Purchase Price times the number of Warrants to be exercised. In
the case of exercise
of less than all the Warrants represented by this Warrant Certificate, the
Company shall cancel the Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate for the balance of such
Warrants.
2.2 The term "Expiration Date" shall mean 5:00 p.m. New York time
on March 26, 2005 or if such date shall in the State of New York be a holiday or
a day on which banks are authorized to close, then 5:00 p.m. New York time the
next following date which in the State of New York is not a holiday or a day on
which banks are authorized to close.
3 Registration and Transfer on Company Books
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3.1 The Company shall maintain books for the registration and
transfer of the Warrants and the registration and transfer of the Common Shares
issued upon exercise of the Warrants.
3.2 Prior to due presentment for registration of transfer of this
Warrant Certificate, or the Common Shares issued upon exercise of the Warrants,
the Company may deem and treat the registered Holder as the absolute owner
thereof.
3.3 Neither this Warrant nor the Common Shares issuable upon
exercise hereof have been registered under the Securities Act of 1933, as
amended (the "Act") or qualified under a prospectus filed under the Securities
Act (Ontario). The Company will not permit the transfer of this Warrant or
issue or transfer the Common Shares issuable upon exercise hereof unless (i)
there is an effective registration covering such Warrant or such shares, as the
case may be, under the Act and applicable states securities laws and is exempt
from, or not subject to, the prospectus requirements of the Securities Act
(Ontario), (ii) it first receives a letter from an attorney, acceptable to the
Company's board of directors or its agents, stating that in the opinion of the
attorney the proposed issue or transfer is exempt from registration under the
Act and under all applicable state securities laws, and exempt from, or not
subject to, the prospectus requirements of the Securities Act (Ontario), or
(iii) the transfer is made pursuant to Rule 144 under the Act, and exempt from
the prospectus requirements of the Securities Act (Ontario). The Company shall
register upon its books any permitted transfer of a Warrant Certificate, upon
surrender of same to the Company with a written instrument of transfer duly
executed by the registered Holder or by a duly authorized attorney. Upon any
such registration of transfer, new Warrant Certificate(s) shall be issued to the
transferee(s) and the surrendered Warrant Certificate shall be canceled by the
Company. A Warrant Certificate may also be exchanged, at the option of the
Holder, for new Warrant Certificates representing in the aggregate the number of
Warrants evidenced by the Warrant Certificate surrendered.
3.4 Subject to Section 3.5, at all times this Warrant and the
securities issuable upon exercise hereof shall bear a legend in the form which
appears on the face page of this Warrant Certificate by which the Holder of this
Warrant and Holder of such securities shall be bound.
3.5 This Warrant Certificate or the securities issuable upon exercise
of the Warrants hereof shall not be required to bear such legend if such
security shall be issued upon:
(i) the transfer or exchange of such security in the event that, at
the time of such transfer or exchange, (A) such security shall have been
registered under the Act, the Registration Statement in connection therewith
shall have been declared effective and such security shall have been disposed of
pursuant to such effective Registration Statement and is exempt from, or not
subject to, the
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prospectus requirements of the Securities Act (Ontario) or (B) such security
shall have been sold in compliance with Rule 144 (or any similar provision then
in force) under the Act in such a manner that resale of such security will not
require registration under the Act and is exempt from, or not subject to, the
prospectus requirements of the Securities Act (Ontario); or
(ii) the transfer or exchange of such security not bearing, nor
otherwise required under the terms hereof to bear, such legend.
4 Reservation of Shares
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The Company covenants that it will at all times reserve and keep
available out of its authorized Common Shares, solely for the purpose of issue
upon exercise of the Warrants, such number of Common Shares as shall then be
issuable upon the exercise of all outstanding Warrants. The Company covenants
that all Common Shares which shall be issuable upon exercise of the Warrants
shall be duly and validly issued and, upon payment for such shares as set forth
herein, fully paid and non-assessable and free from all taxes, liens and charges
with respect to the issue thereof (other than any taxes, liens, or charges
resulting from any action or inaction of the Holder), and that upon issuance
such shares shall be listed on each national securities exchange, if any, on
which the other Common Shares are then listed.
5 Loss or Mutilation
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Upon receipt by the Company of reasonable evidence of the ownership of
and the loss, theft, destruction or mutilation of any Warrant Certificate and,
in the case of loss, theft or destruction, of indemnity reasonably satisfactory
to the Company, or, in the case of mutilation, upon surrender and cancellation
of the mutilated Warrant Certificate, the Company shall execute and deliver in
lieu thereof a new Warrant Certificate representing an equal number of Warrants.
6 Adjustment of Purchase Price and Number of Shares Deliverable
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6.1 The number of Common Shares purchasable upon the exercise of each
Warrant (such shares being referred to in this Section 6 as the "Warrant
Shares") and the Purchase Price with respect to the Warrant Shares shall be
subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on its Common Shares payable in shares of its capital stock, (ii)
subdivide its outstanding Common Shares through stock split or otherwise, (iii)
combine its outstanding Common Shares into a smaller number of Common Shares, or
(iv) issue by reclassification of its Common Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation) other securities of the Company, the
number and/or nature of Warrant Shares purchasable upon exercise of each Warrant
immediately prior thereto shall be adjusted so that the Holder shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which he would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective retroactively as of the record date of such event.
(b) In case the Company shall issue rights, options or warrants or
securities convertible into Common Shares to the holders of its Common Shares
generally, entitling them (for a period expiring
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within forty-five (45) days after the record date referred to below in this
paragraph (b)) to subscribe for or purchase Common Shares at a price per share
which (together with the value of the consideration, if any, paid for such
rights, options, warrants or convertible securities) is lower on the record date
referred to below than 95% of the then Market Price Per Common Share (as
determined pursuant to Section 9.2), the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of Warrant Shares immediately theretofore purchasable upon exercise
of each Warrant by a fraction, of which the numerator shall be the number of
Common Shares outstanding on such record date plus the number of additional
Common Shares purchased pursuant to such offer, and of which the denominator
shall be the number of Common Shares outstanding on such record date plus the
number of shares which the aggregate offering price of the total number of
Common Shares so purchased (together with the value of the consideration, if
any, paid for such rights, options, warrants or convertible securities) would
purchase at the then Market Price Per Common Share. Such adjustment shall be
made at the expiration of the period during which such rights, options, warrants
or convertible securities may be exercised or converted, as the case may be, and
shall become effective retroactively as of the record date for the determination
of shareholders entitled to receive such rights, options, warrants or
convertible securities.
(c) In case the Company shall distribute to all holders of its Common
Shares, or all holders of Common Shares shall otherwise become entitled to
receive, shares in the capital of the Company (other than dividends or
distributions on its Common Shares referred to in paragraph (a) above),
evidences of its indebtedness or rights, options, warrants or convertible
securities providing the right to subscribe for or purchase any shares in the
capital of the Company or evidences of its indebtedness (other than any rights,
options, warrants or convertible securities referred to in paragraph (b) above),
then in each case the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number of
Warrant Shares theretofore purchasable upon the exercise of each Warrant, by a
fraction, of which the numerator shall be the then Market Price Per Common Share
(as determined pursuant to Section 9.2) on the record date mentioned below in
this paragraph (c), and of which the denominator shall be the then Market Price
Per Common Share on such record date, less the then fair value per share (as
determined by the Board of Directors of the Company, in good faith) of the
shares in the capital of the Company (other than Common Shares), evidences of
indebtedness, or of such rights, options, warrants or convertible securities,
distributable with respect to each Common Share. Such adjustment shall be made
whenever any such distribution is made, and shall become effective retroactively
as of the record date for the determination of shareholders entitled to receive
such distribution.
(d) In the event of any capital reorganization or any
reclassification (not otherwise referred to in paragraph (a) above) of the
capital stock of the Company or in case of the consolidation or merger of the
Company with another corporation (other than a consolidation or merger in which
the outstanding shares of the Company's Common Shares are not converted into or
exchanged for other rights or interests), or in the case of any sale, transfer
or other disposition to another corporation of all or substantially all the
properties and assets of the Company, the Holder of each Warrant shall
thereafter be entitled to purchase (and it shall be a condition to the
consummation of any such reorganization, reclassification, consolidation,
merger, sale, transfer or other disposition that appropriate provisions shall be
made so that such Holder shall thereafter be entitled to purchase) the kind and
amount of shares and other securities and property (including cash) which the
Holder would have been entitled to receive had such Warrants been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition;
and in any such case appropriate adjustments shall be made in the application of
the provisions of this Article 6 with respect to rights and
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interest thereafter of the Holder of the Warrants to the end that the provisions
of this Article 6 shall thereafter be applicable, as near as reasonably may be,
in relation to any shares or other property thereafter purchasable upon the
exercise of the Warrants. The provisions of this Section 6.1(d) shall similarly
apply to successive reorganizations, reclassifications, consolidations, mergers,
sales, transfers or other dispositions.
(e) Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant is adjusted, as provided in this Section 6.1, the
Purchase Price with respect to the Warrant Shares shall be adjusted by
multiplying such Purchase Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant Shares
so purchasable immediately thereafter.
6.2 In the event the Company shall declare a dividend, or make a
distribution to the holders of its Common Shares generally, whether in cash,
property or assets of any kind, including any dividend payable in stock or
securities of any other issuer owned by the Company (excluding regularly payable
cash dividends declared from time to time by the Company's Board of Directors or
any dividend or distribution referred to in Section 6.1(a) or (c) above), the
Purchase Price of each Warrant shall be reduced, without any further action by
the parties hereto, by the Per Share Value (as hereinafter defined) of the
dividend. For purposes of this Section 6.2, the "Per Share Value" of a cash
dividend or other distribution shall be the dollar amount of the distribution on
each Common Share and the "Per Share Value" of any dividend or distribution
other than cash shall be equal to the fair market value of such non-cash
distribution on each Common Share as determined in good faith by the Board of
Directors of the Company.
6.3 No adjustment in the number of Warrant Shares purchasable under
the Warrants, or in the Purchase Price with respect to the Warrant Shares, shall
be required unless such adjustment would require an increase or decrease of at
least 1% in the number of Warrant Shares issuable upon the exercise of such
Warrant, or in the Purchase Price thereof; provided, however, that any
adjustments which by reason of this Section 6.3 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All final results of adjustments to the number of Warrant Shares and the
Purchase Price thereof shall be rounded to the nearest one thousandth of a share
or the nearest cent, as the case may be. Anything in this Section 6 to the
contrary notwithstanding, the Company shall be entitled, but shall not be
required, to make such changes in the number of Warrant Shares purchasable upon
the exercise of each Warrant, or in the Purchase Price thereof, in addition to
those required by such Section, as it in its discretion shall determine to be
advisable in order that any dividend or distribution in Common Shares,
subdivision, reclassification or combination of Common Shares, issuance of
rights, warrants or options to purchase Common Shares, or distribution of shares
in the capital of the Company other than Common Shares, evidences of
indebtedness or assets (other than distributions of cash out of retained
earnings) or convertible or exchangeable securities hereafter made by the
Company to the holders of its Common Shares shall not result in any tax to the
holders of its Common Shares or securities convertible into Common Shares.
6.4 Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant or the Purchase Price of such Warrant Shares is
adjusted, as herein provided, the Company shall mail to the Holder, at the
address of the Holder shown on the books of the Company, a notice of such
adjustment or adjustments, prepared and signed by the Chief Financial Officer or
Secretary of the Company, which sets forth the number of Warrant Shares
purchasable upon the exercise of each Warrant
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and the Purchase Price of such Warrant Shares after such adjustment, a brief
statement of the facts requiring such adjustment and the computation by which
such adjustment was made.
6.5 In the event that at any time prior to the expiration of the
Warrants and prior to their exercise:
(a) the Company shall declare any distribution (other than a cash
dividend or a dividend payable in securities of the Company with respect to the
Common Shares); or
(b) the Company shall offer for subscription to the holders of Common
Shares any additional shares of any class or any other securities convertible
into Common Shares or any rights to subscribe thereto; or
(c) the Company shall declare any stock split, stock dividend,
subdivision, combination, or similar distribution with respect to the Common
Shares, regardless of the effect of any such event on the outstanding number of
shares of Common Shares; or
(d) the Company shall declare a dividend, other than a dividend
payable in shares of the Company's own Common Shares; or
(e) there shall be any capital change in the Company as set forth in
Section 6.1(d); or
(f) there shall be a voluntary or involuntary 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 entity);
(each such event hereinafter being referred to as a "Notification Event"), the
Company shall cause to be mailed to the Holder, not less than twenty (20) days
prior to the record date, if any, in connection with such Notification Event
(provided, however, that if there is no record date, or if twenty (20) days
prior notice is impracticable, as soon as practicable) written notice specifying
the nature of such event and the effective date of, or the date on which the
books of the Company shall close or a record shall be taken with respect to,
such event. Such notice shall also set forth facts indicating the effect of
such action (to the extent such effect may be known at the date of such notice)
on the Purchase Price and the kind and amount of the shares or other securities
or property deliverable upon exercise of the Warrants. For purposes here of, a
business day shall mean any day other than a Saturday, Sunday or any other day
in which commercial banks are authorized by law to be closed in New York, New
York.
6.6 The form of Warrant Certificate need not be changed because of
any change in the Purchase Price, the number of Warrant Shares issuable upon the
exercise of a Warrant or the number of Warrants outstanding pursuant to this
Section 6, and Warrant Certificates issued before or after such change may state
the same Purchase Price, the same number of Warrants, and the same number of
Warrant Shares issuable upon exercise of Warrants as are stated in the Warrant
Certificates theretofore issued pursuant to this Agreement. The Company may,
however, at any time, in its sole discretion, make any change in the form of
Warrant Certificate that it may deem appropriate and that does not affect the
substance thereof, and any Warrant Certificates thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant
Certificate or otherwise, may be in the form as so changed.
7 Voluntary Adjustment by the Company
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The Company may, at its option, at any time during the term of the
Warrants, reduce the then current Purchase Price to any amount deemed
appropriate by the Board of Directors of the Company and/or extend the date of
the expiration of the Warrants.
8 Fractional Shares and Warrants; Determination of Market Price Per
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Share
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8.1 Anything contained herein to the contrary notwithstanding, the
Company shall not be required to issue any fraction of a Common Share in
connection with the exercise of Warrants. Warrants may not be exercised in such
number as would result (except for the provisions of this paragraph) in the
issuance of a fraction of a Common Share unless the Holder is exercising all
Warrants then owned by the Holder. In such event, the Company shall, upon the
exercise of all of such Warrants, issue to the Holder the largest aggregate
whole number of Common Shares called for thereby upon receipt of the Purchase
Price for all of such Warrants and pay a sum in cash equal to the remaining
fraction of a Common Share, multiplied by its Market Price Per Share (as
determined pursuant to Section 8.2 below) as of the last business day preceding
the date on which the Warrants are presented for exercise.
8.2 As used herein, the "Market Price Per Share" with respect to any
date shall mean the average closing price per share of Company's Common Shares
for the five trading days immediately preceding such date. The closing price for
each such day shall be the last sale price regular way or, in case no such sale
takes place on such day, the average of the closing bid and asked prices regular
way, in either case on the principal securities exchange on which the Common
Shares are listed or admitted to trading, the last sale price, or in case no
sale takes place on such day, the average of the closing bid and asked prices of
the Common Shares on NASDAQ or any comparable system, or if the Common Share is
not reported on NASDAQ or a comparable system, the average of the closing bid
and asked prices as furnished by two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose. If such bid and asked prices are not available, then "Market Price Per
Share" shall be equal to the fair market value of the Company's Common Stock as
determined in good faith by the Board of Directors of the Company.
9 Governing Law
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This Warrant Certificate shall be governed by and construed in
accordance with the laws of the Province of Ontario.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed by its officers thereunto duly authorized and its corporate
seal to be affixed hereon, as of this day of March, 2002.
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DIVERSINET CORP.
By:
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Name: Nagy Moustafa
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Title: President and Chief Executive Officer
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EXHIBIT A
NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise, pursuant to
Section 2 of the Warrant Certificate accompanying this Notice of Exercise,
Warrants of the total number of Warrants owned by the undersigned
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pursuant to the accompanying Warrant Certificate, and herewith makes payment of
the Purchase Price of such shares in full.
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Name of Holder
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Signature
Address:
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