EXHIBIT 4.12
THE REGISTERED HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT
WILL NOT SELL, TRANSFER OR ASSIGN THIS WARRANT EXCEPT AS HEREIN PROVIDED.
NO SALE, OFFER TO SELL, OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE SHALL BE MADE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT THE PROPOSED TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF SAID ACT.
VOID AFTER 5:00 P.M. EASTERN TIME, SEPTEMBER 25, 2006
WARRANT
FOR THE PURCHASE OF
25,000 SHARES OF COMMON STOCK
OF
DRIVERSHIELD CORP.
1. WARRANT.
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THIS CERTIFIES THAT, in consideration of $10.00 and other good
and valuable consideration, duly paid by or on behalf of Rotom Enterprises,
Inc., a New York corporation ("Colin Winthrop") or its registered assigns
("Holder"), as registered owner of this Warrant, to DriverShield Corp.
("Company"), Holder is entitled, at any time from the date hereof (the
"Commencement Date"), and at or before 5:00 p.m., Eastern Time, September 25,
2006 ("Expiration Date"), to subscribe for, purchase and receive, in whole or
in part, up to Twenty-five Thousand (25,000) shares of Common Stock, $.015 par
value, of the Company ("Common Stock"). If the Expiration Date is a day on which
banking institutions are authorized by law to close in the State of New York,
then this Warrant may be exercised on the next succeeding day that is not such a
day in accordance with the terms herein. During the period ending on the
Expiration Date, the Company agrees not to take any action that would terminate
the Warrant. This Warrant is initially exercisable at a price of $.87 per share
of Common Stock purchased; provided, however, that upon the occurrence of any of
the events specified in Section 6 hereof, the rights granted by this Warrant,
including the exercise price and the number of shares of Common Stock to be
received upon such exercise, shall be adjusted as therein specified. The term
"Exercise Price" shall mean the initial exercise price or the adjusted exercise
price, depending on the context, of a share of Common Stock. The term
"Securities" shall mean the shares of Common Stock issuable upon exercise of
this Warrant.
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2. EXERCISE.
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2.1 EXERCISE FORM. In order to exercise this Warrant, the exercise form
attached hereto must be duly executed and completed and delivered to the
Company, together with this Warrant and payment of the Exercise Price for the
Securities being purchased. If the subscription rights represented hereby shall
not be exercised at or before 5:00 p.m., Eastern time, on the Expiration Date,
this Warrant shall become and be void without further force or effect, and all
rights represented hereby shall cease and expire.
2.2 EFFECT OF EXERCISE. Upon payment of the aggregate Exercise Price
(rounded up to the nearest cent) for the Securities being purchased, the Company
shall, as promptly as practicable thereafter, cause to be executed and deliver
to the Holder, or the Holder's nominee, a certificate or certificates
representing the aggregate number of Securities specified in the exercise form.
Each stock certificate so delivered shall be in such denomination as may be
requested by the Holder, and shall be registered in the name of the Holder or
such other name as shall be designated by the Holder. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
execution and delivery of such stock certificates.
2.3 LEGEND. Each certificate for Securities purchased under this
Warrant shall bear a legend as follows, unless such Securities have been
registered under the Securities Act of 1933, as amended (the "Securities Act"):
2.4 CONVERSION RIGHT.
2.4.1 DETERMINATION OF AMOUNT. In lieu of the payment of the
Exercise Price in cash, the Holder shall have the right (but not the obligation)
to convert this Warrant, in whole or in part, into Common Stock ("Conversion
Right"), as follows: upon exercise of the Conversion Right, the Company shall
deliver to the Holder (without payment by the Holder of any of the Exercise
Price) that number of shares of Common Stock equal to the quotient obtained by
dividing (x) the "Value" (as defined below) of the portion of the Warrant being
converted at the time the Conversion Right is exercised by (y) the Market Price.
The "Value" of the portion of the Warrant being converted shall equal the
remainder derived from subtracting (a) the Exercise Price multiplied by the
number of shares of Common Stock underlying the portion of the Warrant being
converted from (b) the Market Price of the Common Stock multiplied by the number
of shares of Common Stock underlying the portion of the Warrant being converted.
As used herein, the term "Market Price" at any date shall be deemed to be the
last reported sale price of the Common Stock on such date, or, in case no such
reported sale takes place on such day, the average of the last reported sale
prices for the immediately preceding three trading days, in either case as
officially reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading, or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or if any such exchange
on which the Common Stock is listed is not its principal trading market, the
last reported sale price as furnished by the National Association of Securities
Dealers, Inc. ("NASD") through the Nasdaq National Market or SmallCap Market,
or, if applicable, the OTC Bulletin Board, or if the Common Stock is not listed
or admitted to trading on any of the foregoing markets, or similar organization,
as determined in good faith by resolution of the Board of Directors of the
Company, based on the best information available to it. The "closing price" at
any date shall be deemed to be: (i) the last sale price regular way as reported
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading, or (ii) if the Common Stock is not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices
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regular way for the Common Stock as reported by the Nasdaq National Market or
Nasdaq Small Cap Market of the Nasdaq Stock Market, Inc. ("NASDAQ") or (iii) if
the Common Stock is not listed or admitted for trading on any national
securities exchange, and is not reported by NASDAQ, the average of the closing
bid and asked prices in the over-the-counter market as furnished by the National
Quotation Bureau, Inc. or if no such quotation is available, the fair market
value of the Common Stock as determined in good faith by the Board of Directors
of the Company.
2.4.2 EXERCISE OF CONVERSION RIGHT. Provided the Market Price
of the Company's Common Stock shall have exceeded $5.00 per share for twenty
(20) consecutive trading days following the Commencement Date, the Conversion
Right may be exercised by the Holder on any business day on or after the
Commencement Date and not later than the Expiration Date by: (a) delivering the
Warrant with a duly executed exercise form attached hereto with the conversion
section completed to the Company, exercising the Conversion Right and specifying
the total number of shares of Common Stock the Holder will purchase pursuant to
such conversion, and (b) receiving the consent of the Company to such conversion
which shall be evidenced by a duly authorized officer of the Company executing
the exercise form that had been executed by the Holder.
NO SALE, OFFER TO SELL, OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE SHALL BE MADE IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH ANY APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT THE PROPOSED TRANSFER IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT.
3. TRANSFER.
---------
3.1 GENERAL RESTRICTIONS. The registered Holder of this Warrant, by its
acceptance hereof, agrees that it will not sell, transfer or assign or
hypothecate this Warrant to anyone except upon compliance with, or pursuant to
exemptions from, applicable securities laws. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment form attached
hereto duly executed and completed, together with this Warrant and payment of
all transfer taxes, if any, payable in connection therewith. The Company shall
immediately transfer this Warrant on the books of the Company and shall execute
and deliver a new Warrant or Warrants of like tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the aggregate number of
shares of Common Stock purchasable hereunder or such portion of such number as
shall be contemplated by any such assignment.
3.2 RESTRICTIONS IMPOSED BY THE SECURITIES ACT. This Warrant and the
securities underlying this Warrant shall not be transferred unless and until (i)
the Company has received the opinion of counsel for the Holder that such
securities may be sold pursuant to an exemption from registration under the
Securities Act, and applicable state law, the availability of which is
established to the reasonable satisfaction of the Company, or (ii) a
registration statement relating to such Securities has been filed by the Company
and declared effective by the Securities and Exchange Commission and compliance
with applicable state law.
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4. NEW WARRANTS TO BE ISSUED.
--------------------------
4.1 PARTIAL EXERCISE OR TRANSFER. Subject to the restrictions in
Section 3 hereof, this Warrant may be exercised or assigned in whole or in part.
In the event of the exercise or assignment hereof in part only, upon surrender
of this Warrant for cancellation, together with the duly executed exercise or
assignment form and funds (or conversion equivalent) sufficient to pay any
Exercise Price and/or transfer tax, the Company shall cause to be delivered to
the Holder without charge a new Warrant of like tenor to this Warrant in the
name of the Holder evidencing the right of the Holder to purchase the aggregate
number of shares of Common Stock and Warrants purchasable hereunder as to which
this Warrant has not been exercised or assigned.
4.2 LOST CERTIFICATE. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, or destruction of this Warrant and of
reasonably satisfactory indemnification, or upon surrender of this Warrant if
mutilated, the Company shall execute and deliver a new Warrant of like tenor and
date. Any such new Warrant executed and delivered as a result of such loss,
theft, mutilation or destruction shall constitute a substitute contractual
obligation on the part of the Company.
5. REGISTRATION RIGHTS
-------------------
5.1 [Intentionally left blank)
5.2 "PIGGY-BACK" REGISTRATION.
5.2.1 GRANT OF RIGHT. The Holders of this Warrant shall have
the right for a period of five years from the Commencement Date to include all
or any part of this Warrant and the shares of Common Stock issuable upon the
exercise of the Warrant (collectively, the "Registrable Securities") as part of
any registration of securities filed by the Company (other than on Form S-4, or
pursuant to Form S-8 or any equivalent form); provided, however, that if, in the
written opinion of the Company's managing underwriter or underwriters, if any,
for such offering (the "Underwriter"), the inclusion of the Registrable
Securities, when added to the securities being registered by the Company or the
selling stockholder(s), will exceed the maximum amount of the Company's
securities which can be marketed (a) at a price reasonably related to their then
current market value, or (b) without materially and adversely affecting the
entire offering, the Company shall nevertheless register all or any portion of
the Registrable Securities required to be so registered but such Registrable
Securities shall not be sold by the holders until 90 days after the registration
statement for such offering has become effective or for such longer period as
the managing underwriter may require, but not exceeding 360 days; and provided
further that, if any securities are registered for sale on behalf of other
stockholders in such offering and such stockholders have not agreed to defer
such sale until the expiration of such period, the number of securities to be
sold by all stockholders in such public offering during such period shall be
apportioned pro rata among all such selling stockholders, including all holders
of the Registrable Securities, according to the total amount of securities of
the Company owned by said selling stockholders, including all holders of the
Registrable Securities.
5.2.2 TERMS. In the event of such a proposed registration, the
Company shall furnish the then holders of outstanding Registrable Securities
with not less than thirty days written notice prior to the proposed date of
filing of such registration statement. Such notice to the holders shall continue
to be given for each registration statement filed by the Company until such time
as all of the Registrable Securities have been sold by the holder. The holders
of the Registrable Securities shall exercise the "piggy-back" rights provided
for herein by giving written
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notice, within twenty days of the receipt of the Company's notice of its
intention to file a registration statement.
5.2.3 EXPENSES. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities.
5.2.4 REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in this Section 5.2, the Company
will as expeditiously as possible:
(a) prepare and as soon thereafter as possible file with the
Commission the requisite registration statement to effect such
registration and thereafter use its best efforts to cause such
registration statement to become effective, provided that
before filing such registration statement or any amendments
thereto, the Company will furnish to counsel selected by the
holders whose Registrable Securities are to be included in
such registration copies of all such documents proposed to be
filed, which documents will be subject to the review of such
counsel;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement continuously effective until all of the
Registrable Securities are sold (or all are eligible for
resale without restriction under Rule 144(k), and to comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement until such time as all of such securities have been
disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement;
(c) furnish to each seller of Registrable Securities covered
by such registration statement such number of conformed copies
of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits, but
only one copy thereof to each such seller), such number of
copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents
in order to facilitate the disposition of the Registrable
Securities owned by such seller, as such seller may reasonably
request;
(d) use its best efforts to register or qualify such
Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky
laws of such jurisdictions as each seller thereof shall
reasonably request, to keep such registration or qualification
in effect for so long as such registration statement remains
in effect, and to take any other action which may be
reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the
securities owned by such seller, provided that the Company
shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in
any jurisdiction where it would not otherwise be required to
qualify but for the requirements of this subdivision (d);
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(e) use its best efforts to cause all Registrable Securities
covered by such registration statement or the intended method
of resale thereof to be registered with or approved by such
other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company or the
intended method of resale of Registrable Securities to enable
the seller or sellers thereof to consummate the disposition of
such Registrable Securities;
(f) notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of
the happening of any event as a result of which, the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made, and
at the request of any such seller, promptly prepare and
furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers
of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made;
(g) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act, and will furnish to
each such seller of Registrable Securities at least five
business days prior to the filing thereof a copy of any
amendment or supplement to such registration statement or
prospectus and shall not file any such amendment or supplement
to which any such seller or any Requesting Holder shall have
reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the
requirements of the Securities Act or of the rules or
regulations thereunder; and
(h) in connection with the preparation and filing of each
registration statement under the Securities Act pursuant to
this Agreement, to give the holders of Registrable Securities
registered under such registration statement, and their
counsel and accountants the opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of
them such access to its books and records and such
opportunities to discuss the business of the Company with its
officers and the independent public accountants who have
certified its financial statements as shall be necessary, in
the opinion of such holders' counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
5.3 GENERAL TERMS.
5.3.1 INDEMNIFICATION.
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(a) The Company shall indemnify the holder(s) of the
Registrable Securities to be sold pursuant to any registration statement
hereunder and each person, if any, who controls such holders within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage,
expense or liability (including all reasonable attorneys' fees and other
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the
Securities Act, the Exchange Act or otherwise, arising from or related to such
registration statement, or any filings made with any state securities regulatory
agency or the NASD. The holder(s) of the Registrable Securities to be sold
pursuant to such registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, against all loss, claim,
damage, expense or liability (including all reasonable attorneys' fees and other
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which they may become subject under the Securities Act,
the Exchange Act or otherwise, arising from information furnished by or on
behalf of such holders, with respect to such holders, or their successors or
assigns, in writing, for specific inclusion in such registration statement,
provided that in no event shall any holder of the Registrable Securities be
required to indemnify the Company of any loss, claim, damage, expense or
liability which exceeds the amount of the actual net proceeds received by such
holder pursuant to the sale of Registrable Securities pursuant to such
registration statement.
(b) If any action is brought against a party hereto,
("Indemnified Party") in respect of which indemnity may be sought against the
other party ("Indemnifying Party"), such Indemnified Party shall promptly notify
Indemnifying Party in writing of the institution of such action and Indemnifying
Party shall assume the defense of such action, including the employment and fees
of counsel reasonably satisfactory to the Indemnified Party, and the payment of
actual expenses. Such Indemnified Party shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the employment of
such counsel shall have been authorized in writing by Indemnifying Party in
connection with the defense of such action, or (ii) Indemnifying Party shall not
have employed counsel to defend such action, or (iii) such indemnified Party
shall have been advised by counsel that there may be one or more legal defenses
available to it which may result in a conflict between the Indemnified Party and
indemnifying Party (in which case Indemnifying Party shall not have the right to
direct the defense of such action on behalf of the Indemnified Party), in any of
which events, the reasonable fees and expenses of not more than one additional
firm of attorneys and, to the extent required, one firm to act as local counsel
in each jurisdiction in which an action is pending, designated in writing by the
Indemnified Party shall be borne by Indemnifying Party. Notwithstanding anything
to the contrary contained herein, if Indemnified Party shall assume the defense
of such action as provided above, Indemnifying Party shall not be liable for any
settlement of any such action effected without its written consent.
(c) If the indemnification or reimbursement provided for
hereunder is finally judicially determined by a court of competent jurisdiction
to be unavailable to an Indemnified Party (other than as a consequence of a
final judicial determination of willful misconduct, bad faith or gross
negligence of such Indemnified Party), then Indemnifying Party agrees, in lieu
of indemnifying such Indemnified Party, to contribute to the amount paid or
payable by such Indemnified Party (i) in such proportion as is appropriate to
reflect the relative benefits received, or sought to be received, by
Indemnifying Party on the one hand and by such Indemnified Party on the other or
(ii) if (but only if) the allocation provided in clause (i) of this sentence is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in such clause (i) but also the
relative fault of Indemnifying Party and of such Indemnified Party; provided,
however, that in no event shall the aggregate
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amount contributed by a holder of Registrable Securities exceed the net
proceeds, if any, earned by such holder pursuant to the resale of Registrable
Securities pursuant to such registration statement.
(d) The rights accorded to indemnified Parties hereunder shall
be in addition to any rights that any Indemnified Party may have at common law,
by separate agreement or otherwise.
5.3.2 EXERCISE OF WARRANTS. Nothing contained in this Warrant shall be
construed as requiring the Holder(s) to exercise their Warrants prior to or
after the initial filing of any registration statement or the effectiveness
thereof.
5.3.3 DOCUMENTS DELIVERED TO HOLDERS. The Company shall furnish to each
holder participating in any of the foregoing offerings and to each Underwriter
of any such offering, if any, a signed counterpart, addressed to such holder or
Underwriter, of (a) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under any
underwriting agreement related thereto), and (b) a "cold comfort" letter dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, a letter dated the date of the closing
under the underwriting agreement) signed by the independent public accountants
who have issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities. The Company shall
also deliver promptly to each holder participating in the offering requesting
the correspondence and memoranda described below and to the managing underwriter
copies of all correspondence between the Commission and the Company, its counsel
or auditors and all memoranda relating to discussions with the Commission or its
staff with respect to the registration statement and permit each holder and
underwriter to do such investigation, upon reasonable advance notice, with
respect to information contained in or omitted from the registration statement
as it deems reasonably necessary to comply with applicable securities laws or
rules of the NASD. Such investigation shall include access to books, records and
properties and opportunities to discuss the business of the Company with its
officers and independent auditors, all to such reasonable extent and at such
reasonable times and as often as any such holder shall reasonably request. The
cost for the opinion of counsel and the "cold comfort" letter referenced in this
section shall be borne by the Company.
5.3.4 RULE 144. The Company will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, will upon the request of any holder of
Registrable Securities, make publicly available other information, if such
information is readily available by the Company and can be obtained by the
Company without material expense) and will take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission. Upon the request
of any holder of Registrable Securities, the
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Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
5.3.5 RULE 144A. The Company covenants that, except at such
times as the Company is a reporting company under Section 13 or 15(d) of the
Exchange Act, the Company shall upon written request from any holder of
Registrable Securities, provide to any such holder and to any prospective
institutional transferee of Registrable Securities designated by such holder,
such financial and other information as is available to the Company or can be
obtained by the Company without material expense and as such holder may
reasonably determine is required to permit a transfer of such Registrable
Securities to comply with the requirements of Rule 144A promulgated by the
Commission under the Securities Act.
5.3.6 ASSIGNMENT. This provisions of this Section 5 shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, and assigns. In addition, and whether or
not any express assignment shall have been made, the provisions of this Warrant
which are for the benefit of the holders of Registrable Securities as such shall
be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities.
5.3.7 NOMINEES FOR BENEFICIAL OWNERS. In the event that
Registrable Securities are held by a nominee for the beneficial owner hereof,
the beneficial owner thereof may, at its option and by written notice to the
Company, be treated as the holder of such Registrable Securities for the
purposes of any request or other action by any holder or holders of Registrable
Securities pursuant to this Warrant (or any determination of any percentage of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Warrant).
5.4 EVIDENCE OF RIGHTS. The Company shall execute and deliver to any
Holder who surrenders this Warrant for exercise a separate agreement or
instrument evidencing the registration rights set forth herein applicable to the
Securities purchased pursuant to such exercise.
6. ADJUSTMENTS.
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6.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any time the
Company shall
(i) establish a record date for the determination of holders
of record of its Common Stock for the purpose of entitling them to
receive a dividend payable in, or other distribution of,
(ii) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or
(iii) combine its outstanding shares of common stock into a
smaller number of shares of Common Stock.
then (i) the Securities for which this Warrant is exercisable shall be adjusted
immediately after the occurrence of any such event to equal the number of shares
of Common Stock which a record holder of the same number of shares of common
stock for which this warrant is exercisable immediately prior to the occurrence
of such event would own or be entitled to receive after the happening of such an
event, and (ii) the Exercise Price shall be adjusted to equal (x)
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the Exercise Price multiplied by the Securities for which this Warrant is
exercisable immediately prior to the adjustment divided by (y) the Securities
for which this Warrant is exercisable immediately after such adjustment.
6.2 OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The
following provisions shall be applicable to the making of adjustments to the
Securities for which this Warrant is exercisable and the Exercise Price at which
such Warrant Shares may be purchased upon exercise of this Warrant provided for
in this Section 6:
(a) WHEN ADJUSTMENTS TO BE MADE. The adjustments required by
this Section 6 shall be made whenever and as often as any event
requiring an adjustment shall occur, except that any adjustment of the
Securities for which this Warrant is exercisable that would otherwise
be required may be postponed (except in the case of a subdivision or
combination of shares of the Common Stock, as provided for in Section
6.1) up to, but not beyond the date of exercise of this Warrant if such
adjustment by itself and with other adjustments not previously made
adds or subtracts less than I% of the Securities for which this Warrant
is exercisable immediately prior to the making of such adjustment. Any
adjustment representing a change of less than such minimum amount
(except as aforesaid) which is postponed shall be carried forward and
made on the earlier of the date of exercise or the date on which such
adjustment, together with other adjustments required by this Section 6
and not previously made, would result in a minimum adjustment. For the
purpose of any adjustment, any event shall be deemed to have occurred
at the close of business on the date of its occurrence.
(b) FRACTIONAL INTEREST. In computing adjustments under this
Section 6, fractional interests in the Common Stock shall be taken into
account to the nearest 1/10th of a share.
(c) WHEN ADJUSTMENT NOT REQUIRED. If the Company shall
establish a record date for the determination of the holders of record
of the Common Stock for the purpose of entitling them to receive a
dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders thereof, legally
abandon its plan to pay or deliver such dividend, distribution,
subscription or purchase rights, then thereafter no adjustment shall be
required by reason of the establishment of such record date and any
such adjustment previously made in respect thereof shall be rescinded
and annulled.
(d) CHALLENGE TO GOOD FAITH DETERMINATION. Whenever the Board
of Directors of the Company shall be required to make a determination
in good faith of the fair value of any item under this Warrant, such
determination may be challenged in good faith by the Holder and any
dispute shall be resolved by a business valuation or appraisal firm of
recognized national standing selected by the Company and acceptable to
the Holder (and if not acceptable to the Holder, an investment banking
firm of recognized national standing selected by the Company and
acceptable to the Holder). The fees of such valuation or appraisal firm
(or investment banker) shall be borne by such Holder if the Company's
calculation is determined to be correct and otherwise shall be borne by
the Company.
(f) ESCROW OF PROPERTY. If the Company shall establish a
record date for the determination of the holders of record of its
Common Stock for the purpose of entitling them to receive any
distribution of any kind of property whatsoever, but prior to the
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payment of such distribution the Holder exercises this Warrant, upon
payment of the Exercise Price, such property shall be held in escrow
for the Holder by the Company to be issued to the Holder upon the
occurrence of such distribution and to the extent such distribution
actually takes place. Notwithstanding any other provision to the
contrary herein, if the distribution for which such record date was
established fails to occur or is rescinded, then such escrowed property
shall be returned to the Company.
6.3 REORGANIZATION, RECLASSIFICATION, MERGER OR CONSOLIDATION. If the
Company shall at any time reorganize or reclassify the outstanding shares of
Common Stock (other than a change in par value, or from no par value to par
value, or from par value to no par value, or as a result of a subdivision or
combination) or consolidate with or merge into another corporation (where the
Company is not the continuing corporation after such merger or consolidation),
the Holder shall thereafter be entitled to receive upon exercise of this Warrant
in whole or in part, the same kind and number of shares of stock and other
securities, cash or other property (and upon the same terms and with the same
rights) as would have been distributed to the Holder upon such reorganization,
reclassification, consolidation or merger had the Holder exercised this Warrant
immediately prior to such reorganization, reclassification, consolidation or
merger (subject to subsequent adjustments under this Section 6). The Holder
shall pay upon such exercise the Exercise Price that otherwise would have been
payable pursuant to the terms of this Warrant. If any such reorganization,
reclassification, consolidation or merger results in a cash distribution in
excess of the Exercise Price provided by this Warrant, the Holder may, at the
Holder's option, exercise this Warrant without making payment of the Exercise
Price, and in such case the Company shall, upon distribution to such Holder,
consider the Exercise Price to have been paid in full, and in making settlement
to such Holder, shall deduct an amount equal to the Exercise Price from the
amount payable to such Holder. Notwithstanding anything herein to the contrary,
the Company will not effect any such reorganization, reclassification, merger or
consolidation unless prior to the consummation thereof, the corporation which
may be required to deliver any stock, securities or other assets upon the
exercise of this Warrant shall agree by an instrument in writing to deliver such
stock, cash, securities or other assets to the Holder. A sale, transfer or lease
of all or substantially all of the assets of the Company to another person shall
be deemed a reorganization, reclassification, consolidation or merger for the
foregoing purposes.
6.4 EXCEPTIONS TO ADJUSTMENT OF EXERCISE PRICE AND SECURITIES. Anything
herein to the contrary notwithstanding, the Company shall not make any
adjustment of the Exercise Price or the number of Securities in the case of the
issuance of this Warrant, any adjustment in the number of shares issuable upon
exercise of this Warrant or the exercise price therefor, or the issuance of
shares of Common Stock upon exercise of this Warrant.
6.5 CHIEF FINANCIAL OFFICER'S OPINION. Upon each adjustment of the
Exercise Price and upon each change in the Securities issuable upon the exercise
of this Warrant, and in the event of any change in the rights of the Holder by
reason of other events herein set forth, then and in each such case, the Company
will promptly obtain an opinion of the chief financial officer of the Company,
stating the adjusted Exercise Price and the new number of Securities so
issuable, or specifying the other shares of the Common Stock, securities or
assets and the amount thereof receivable as a result of such change in rights,
and setting forth in reasonable detail the method of calculation and the facts
upon which such calculation is based. The Company will promptly mail a copy of
such opinion to the Holder. If the Holder disagrees with such calculation, the
Company agrees to obtain within thirty (30) business days an opinion of a firm
of independent certified public accountants selected by the Company's Board of
Directors and acceptable to the Holder to review such calculation and the
opinion of such firm of independent certified public accountants shall be final
and binding on the parties and shall be
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conclusive evidence of the correctness of the computation with respect to any
such adjustment of the Exercise Price and any such change in the number of
Securities so issuable. The fees of such accountants shall be borne by such
Holder if the Company's calculation is determined by such accountants to be
correct and otherwise shall be borne by the Company.
6.6 COMPANY TO PREVENT DILUTION. In case at any time or from time to
time conditions arise by reason of action taken by the Company, which in the
good faith opinion of its Board of Directors or the Holder are not adequately
covered by the provisions of this Section 6, and which might materially and
adversely affect the exercise rights of the Holder, the Board of Directors of
the Company shall appoint such firm of independent certified public accountants
acceptable to the Holder, which shall give such firm's opinion upon the
adjustment, if any, on a basis consistent with the standards established in the
other provisions of this Section 6, necessary with respect to the number of
Securities or the Exercise Price so as to preserve, without dilution (other than
as specifically contemplated by this Warrant), the exercise rights of the
Holder. Upon receipt of such opinion, the Board of Directors of the Company
shall forthwith make the adjustments described therein.
6.7 NOTICE OF CERTAIN PROPOSED ACTIONS. In the event the Company shall
propose to take any action of the types described in Sections 6.1 or 6.3, the
Company shall forward, at the same time and in the same manner, to the Holder
such notice, if any, that the Company shall give to the holders of any class or
series of capital stock of the Company. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of any such action.
6.8 DEFINITIONS. As used in this Section 6, the following capitalized
terms have the following meanings:
"Market Price" means the average of the daily closing prices
of one share of Common Stock for the fifteen (15) consecutive business day
period ending the day before the day in question and such average will be
adjusted for any stock dividend, split, combination or reclassification that
took effect during such fifteen (15) business day period. The "closing price"
for each day shall be determined pursuant to Section 2.4.1.
6.9 ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of this Warrant, nor shall it be required to issue scrip or
pay cash in lieu of any 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 or other securities,
properties or rights.
7. RESERVATION AND LISTING. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of this Warrant, such number of shares of Common Stock
or other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of the Warrants
and payment of the Exercise Price therefor, all shares. of Common Stock and
other securities issuable upon such exercise shall be duly and validly issued,
fully paid and non-assessable and not subject to preemptive rights of any
stockholder. As long as the Warrants shall be outstanding, the Company shall use
its best efforts to cause all shares of Common Stock issuable upon exercise of
the Warrants to be listed (subject to official notice of issuance) on all the
securities exchanges (or, if applicable on Nasdaq) on which the Common Stock is
then listed and/or quoted.
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8. [INTENTIONALLY LEFT BLANK]
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9. CERTAIN NOTICE REQUIREMENTS.
----------------------------
9.1 HOLDER'S RIGHT TO RECEIVE NOTICE. Nothing herein shall be construed
as conferring upon the Holder the right to vote or consent or to receive notice
as a stockholder for the election of directors or any other matter, or as having
any rights whatsoever as a stockholder of the Company, If, however, at any time
prior to the expiration of the Warrants and their exercise, any of the events
described in Section 9.2 shall occur, then, in one or more of said events, the
Company shall give written notice of such event at least fifteen days prior to
the date fixed as a record date or the date of closing the transfer books for
the determination of the stockholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription rights, or entitled to vote
on such proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of the closing of the transfer books, as
the case may be.
9.2 EVENTS REQUIRING NOTICE. The Company shall be required to give the
notice described in this Section 9 upon one or more of the following events: (i)
if the Company shall take a record of the holders of its shares of Common Stock
for the purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company, or (ii) the Company shall
offer to all the holders of its Common Stock any additional shares of capital
stock of the Company or securities convertible into or exchangeable for shares
of capital stock of the Company, or any option, right or warrant to subscribe
therefor, or (iii) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business shall be proposed.
9.3 TRANSMITTAL OF NOTICES. All notices, requests, consents and other
communications under this Warrant shall be in writing and shall be deemed to
have been duly made on the date of delivery if delivered personally or sent by
overnight courier, with acknowledgment of receipt to the party to which notice
is given, or on the fifth day after mailing if mailed to the party to whom
notice is to be given, by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as follows: (i) if to the
registered Holder of this Warrant, to the address of such Holder as shown on the
books of the Company, or (ii) if to the Company, to its principal executive
office.
10. MISCELLANEOUS.
--------------
10.1 HEADINGS. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Warrant.
10.2 ENTIRE AGREEMENT. This Warrant (together with the other agreements
and documents being delivered pursuant to or in connection with this Warrant)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter hereof.
10.3 BINDING EFFECT. This Warrant shall inure solely to the benefit of
and shall be binding upon, the Holder and the Company and their respective
successors, legal
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representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Warrant or any provisions herein contained.
10.4 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Warrant shall be
governed by and construed and enforced in accordance with the law of the State
of New York, without giving effect to conflict of laws. The Company hereby
agrees that any action, proceeding or claim against it arising out of, or
relating in any way to this Warrant shall be brought and enforced in the courts
of the State of New York, County of Nassau, or of the United States of America
for the Eastern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any process or summons to be served upon the Company may be
served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to the Company at its office
located at 51 East Bethpage Road, Plainview, New York 11803, or its current
executive offices. Such mailing shall be deemed personal service and shall be
legal and binding upon the Company in any action, proceeding or claim. The
Company agrees that the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable attorneys'
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
10.5 WAIVER, ETC. The failure of the Company or the Holder to at any
time enforce any of the provisions of this Warrant shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Warrant or any provision hereof or the right of the Company or
any Holder to thereafter enforce each and every provision of this Warrant. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions
of this Warrant shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such
waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, non-compliance or non-fulfillment.
10.6 AVOIDANCE OF CERTAIN ACTIONS. The Company will not, by amendment
of its articles of incorporation or through any reorganization, transfer of
assets, consolidation, merger, share exchange, 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 in carrying out
all of the provisions of this Warrant and in the taking of all such actions as
may be necessary or appropriate in order to protect the rights of the Holder
against impairment and in particular, will not cause the par value, if any, of
any share of Common Stock to be or become greater than the then effective
Exercise Price.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer as of the 8th day of February 2002.
DriverShield Corp.
By: /S/ BARRY SIEGEL
---------------------------------------
Name: Barry Siegel
Title: Chairman of the Board, Secretary
and Chief Executive Officer
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