EXHIBIT 10.6
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE ASSIGNED UNLESS SO REGISTERED OR AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT IS AVAILABLE. THIS LEGEND SHALL BE ENDORSED UPON ANY
WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT AGREEMENT
FOR JUNIOR PREFERRED STOCK OF
AUTO DATA NETWORK, INC.
Warrant No. ____
Date of Issuance: _________ __, 2004 Warrant to purchase an aggregate
of __________ shares of Junior
Preferred Stock
THIS CERTIFIES that, for value received, [_________________________],
or his/her/its permitted transferees, successors or assigns (collectively, the
"HOLDER"), is entitled to purchase from AUTO DATA NETWORK, INC., a Delaware
corporation (the "COMPANY"), at any time, and from time to time, during the
exercise period referred to in Section 1 hereof, [__________________________]
([____________]) fully paid, validly issued and nonassessable shares (the
"WARRANT SHARES") of Junior Preferred stock of the Company, par value $0.00l per
share (the "JUNIOR PREFERRED STOCK"), at the exercise price of One Dollar and
Ninety Cents ($1.90) per share (the "WARRANT SHARE PRICE"). Securities issuable
upon exercise of this Warrant and the Warrant Share Price payable therefor are
subject to adjustment from time to time as hereinafter set forth. As used
herein, the term "Warrant" shall include any warrant or warrants hereafter
issued in consequence of the exercise of this Warrant Agreement in part or
transfer of this Warrant in whole or in part. Capitalized terms used herein and
not defined have the respective meanings given to them in that certain Amended
and Restated Agreement and Plan of Merger, dated as of August 2, 2004, by and
among the Company, the Holder and the other parties named therein (the "Merger
Agreement").
The Company shall register this Warrant, upon records to be maintained
by the Company for that purpose (the "WARRANT REGISTER"), in the name of the
record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, and the Company shall not be affected by
notice to the contrary.
Subject to Section 4 of this Warrant and the applicable provisions of
the Merger Agreement and applicable law, the Company shall register the transfer
of any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed and signed,
to the Transfer Agent (as defined in Section 1.(a) herein) or to the Company.
Upon any such registration or transfer, a new warrant to purchase Common Stock,
in substantially the form of this Warrant (any such new warrant, a "NEW
WARRANT"), evidencing the portion of this Warrant so transferred shall be issued
to the transferee and a New Warrant evidencing the remaining portion of this
Warrant not so transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant. Any transfer or assignment of this Warrant and Warrant Shares
obtained by the Holder in exercise of this Warrant is subject to any applicable
restrictions under the Merger Agreement, if any, and the requirements that such
securities be registered under the Securities Act and applicable state
securities laws or exempt from registration under such laws.
1. EXERCISE; PAYMENT FOR OWNERSHIP INTEREST.
(a) Upon the terms and subject to the conditions set forth herein, this
Warrant may be exercised in whole or in part by the Holder hereof at any time,
or from time to time, on or after the date hereof and on or prior to 5 p.m. New
York local time on the earliest date to occur (the "EXPIRATION DATE")of (x)
[INSERT FIVE YEAR ANNIVERSARY OF ISSUANCE DATE] (the "Expiration Maturity Date")
and (y) the Early Expiration Date, as such term is defined herein, by
presentation and surrender of this Warrant to the principal offices of the
Company, or at the office of its Transfer Agent (the "Transfer Agent"), if any,
together with the Purchase Form annexed hereto, duly executed, and accompanied
by payment to the Company of an amount equal to the Warrant Share Price
multiplied by the number of Warrant Shares as to which this Warrant is then
being exercised in U.S. dollars by certified or official bank check or wire
transfer of immediately available funds of the cash purchase price; provided,
however, that in each case, the minimum number of Warrant Shares as to which
this Warrant is being exercised shall be the lesser of (i) 1,000 Warrant Shares
or (ii) all Warrant Shares then held by the Holder on an as exercised basis;
provided, further, that in the event of any merger, consolidation or sale, lease
or transfer of all or substantially all of the assets of the Company, prior to
the Expiration Date, the Holder shall have the right to exercise this Warrant
commencing at such time through the Expiration Date into the kind and amount of
shares of stock and other securities and property (including cash) receivable by
a holder of the number of shares of Common Stock into which this Warrant might
have been exercisable immediately prior thereto. Any transfer of Warrant Shares
obtained by the Holder in exercise of this Warrant is subject to the requirement
that such transfer be in compliance with the applicable provisions of the Merger
Agreement, if any, and that such securities be registered under the Securities
Act, and applicable state securities laws or exempt from registration under such
laws. The Holder of this Warrant shall be deemed to be a stockholder of the
Warrant Shares as to which this Warrant is exercised in accordance herewith
effective immediately after the close of business on the date on which the
Holder shall have delivered to the Company this Warrant in proper form for
exercise and payment in U.S. dollars
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by certified or official bank check or wire transfer of immediately available
funds of the cash purchase price for the number of Warrant Shares as to which
the exercise is being made, notwithstanding that the stock transfer books of the
Company shall be then closed or that certificates representing such Warrant
Shares shall not then be physically delivered to the Holder. The Company shall
not enter into any merger, consolidation or sale, lease or transfer of all or
substantially all of the assets of the Company unless effective provision shall
be made so as to give effect to the provisions set forth in this subsection (a).
(i) As used herein, "Early Expiration Date" means ten (10)
business days after delivery of written notice by the Company to the
Holder that the average of the Market Price (as defined herein) for a
share of Company Common Stock underlying the Junior Preferred Stock for
thirty consecutive trading days was equal to or greater than Four
Hundred Percent (400%) of the then-applicable Warrant Share Price.
Notwithstanding the foregoing, there can be no "Early Expiration Date"
if the Warrant Shares are not either covered by an effective
registration statement under the Securities Act or an applicable
exemption from registration under the Securities Act;
(ii) As used herein, "Market Price" means, with respect to the
shares of Common Stock, (i) if the shares are listed or admitted for
trading on any national securities exchange or included in The Nasdaq
National Market or Nasdaq SmallCap Market, the last reported sales
price as reported on such exchange or market; (ii) if the shares are
not listed or admitted for trading on any national securities exchange
or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the average of the last reported closing bid and asked quotation for
the shares as reported on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") or a similar service if
NASDAQ is not reporting such information; or (iii) if the shares are
not listed or admitted for trading on any national securities exchange
or included in The Nasdaq National Market or Nasdaq SmallCap Market or
quoted by NASDAQ or a similar service, the average of the last reported
bid and asked quotation for the shares as quoted by a market maker in
the shares (or if there is more than one market maker, the bid and
asked quotation shall be obtained from two market makers and the
average of the lowest bid and highest asked quotation) (such applicable
trading market to be referred to as the "TRADING MARKET"). In the
absence of any available public quotations for the Common Stock, the
Board shall determine in good faith the fair value of the Common Stock,
which determination shall be set forth in a certificate by the
Secretary of the Company.
(iii) As used herein, "Trading Day" means a day on which the
principal Trading Market with respect to the Common Stock is open for
the transaction of business.
(b) If this Warrant shall be exercised in part only, the Company, upon
surrender of this Warrant for cancellation, shall execute and deliver, promptly
(but in no event more than ten business days after such surrender), a new
Warrant evidencing the rights of the Holder thereof to purchase the balance of
the Warrant Shares purchasable hereunder as to which the Warrant has not been
exercised. If this Warrant is exercised in part, such exercise shall be for a
whole number of Warrant Shares. Upon any exercise and surrender of this Warrant,
the Company (i) will issue and deliver to the Holder a certificate or
certificates in the name of the Holder for the
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largest whole number of Warrant Shares to which the Holder shall be entitled
and, if this Warrant is exercised in whole, in lieu of any fractional Warrant
Share to which the Holder otherwise might be entitled, cash in an amount equal
to the fair value of such fractional Warrant Share (determined in such
reasonable and equitable manner as the Board of Directors of the Company (the
"BOARD") shall in good faith determine), and (ii) will deliver promptly
thereafter (but in no event more than ten business days thereafter) to the
Holder such other securities, properties and cash which the Holder may be
entitled to receive upon such exercise, or the proportionate part thereof if
this Warrant is exercised in part, pursuant to the provisions of this Warrant.
(c) This Warrant may be exercised by means of a "cashless exercise" in
which the Holder shall tender to the Company the Warrant for the amount of
Warrant Shares for which it is being exercised, along with the written notice of
exercise, and the Holder shall be entitled to receive a certificate for the
number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)]
by (A), where:
(A) = the Market Price on the Trading Day immediately
preceding the date of such election;
(B) = the Warrant Share Price of this Warrant, as
adjusted; and
(X) = the number of Warrant Shares issuable upon exercise
of this Warrant in accordance with the terms of this
Warrant by means of a cash exercise rather than a
cashless exercise.
2. ANTI-DILUTION PROVISIONS. The Warrant Share Price in effect at any time
and the number and kind of securities issuable upon exercise of this Warrant
shall be subject to adjustment from time to time upon the happening of certain
events as follows:
2.1 Adjustments.
(a) DEFINITION OF ADDITIONAL STOCK. The term "Additional Shares of
Common Stock" includes all shares of Common Stock issued by the Company after
the Date of Issuance, other than:
(i) Shares of Common Stock (subject to appropriate adjustment
for any stock dividend, stock split, combination or other similar
recapitalization affecting such shares) issuable or issued to the
Company's employees, directors or consultants pursuant to a stock
option plan or restricted stock plan or other compensation plan
approved by the Board;
(ii) Shares of Common Stock issued or issuable pursuant to
securities outstanding at the Date of Issuance or agreements to issue
such securities or underlying shares of Common Stock which agreements
are outstanding at the Date of Issuance;
(iii) Shares of Common Stock issued or issuable pursuant to
subsection 2.1(b)(iv) below;
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(iv) Shares of Common Stock issuable upon exercise of options
or warrants, or upon conversion of convertible securities or other
rights, outstanding as of the Date of Issuance; and
(v) Shares of capital stock or options or warrants to purchase
capital stock issued to financial institutions or lessors in
connections with commercial credit agreements, equipment financings or
similar transactions or to other corporations, persons or entities in
connection with acquisitions, mergers or similar business combinations,
partnership arrangements, strategic alliances, licensing arrangements
or similar non-capital raising transactions approved by the Board,
including within this exception shares issued to raise capital provided
that the use of proceeds is to consummate such non-capital raising
transactions.
(b) DIVIDEND, SUBDIVISION, COMBINATION OR RECLASSIFICATION OF COMMON
STOCK. In the event that the Company shall at any time or from time to time
after the issuance of this Warrant but prior to the exercise hereof:
(i) make a dividend or distribution on the outstanding shares
of Common Stock payable in capital stock;
(ii) subdivide or reclassify or reorganize its outstanding
shares of Common Stock into a greater number of shares;
(iii) combine or reclassify or reorganize its outstanding
shares of Common Stock into a smaller number of shares; or
(iv) issue, by reclassification of its Common Stock or other
reorganization, any Additional Shares of Common Stock;
then the number and kind of Warrant Shares purchasable upon exercise of this
Warrant shall be adjusted so that the Holder upon exercise hereof shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company that the Holder would have owned or have been entitled to receive
after the happening of any of the events described above had this Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. Whenever the number of Warrant Shares purchasable upon
exercise hereof is adjusted as herein provided, the Warrant Price shall be
adjusted by multiplying the Warrant Price by a fraction, the numerator of which
is equal to the number of shares of Common Stock purchasable prior to the
adjustment and the denominator of which is equal to the number of shares of
Common Stock purchasable after the adjustment. An adjustment made pursuant to
this Section 2.1(b) 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 issuance.
If, as a result of an adjustment made pursuant to this Section 2.1(b), the
Holder of this Warrant thereafter surrendered for exercise shall become entitled
to receive shares of two or more classes of capital stock or shares of Common
Stock and
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any other class of capital stock of the Company, the Board (whose good faith
determination shall be applied fairly and ratably to all holders of Warrants and
shall be conclusive and shall be described in a written notice to all holders of
Warrants promptly after such adjustment) shall determine in good faith the
allocation of the adjusted Warrant Share Price between or among the shares of
such classes of capital stock or shares of Common Stock and such other class of
capital stock.
The adjustment to the number of Warrant Shares purchasable upon the
exercise of this Warrant described in this Section 2.1(b) shall be made each
time any event listed in paragraphs (i) through (iv) of this Section 2.1(b)
occurs.
(c) ISSUANCE OF COMMON STOCK BELOW WARRANT SHARE PRICE. If the Company
shall issue any Additional Shares of Common Stock after the date hereof
(excluding any such issuance for which an adjustment is made under the foregoing
subsection (b)), for no consideration or for a consideration per share less than
the Warrant Share Price in effect on the date of and immediately prior to such
issue, then in such event, the Warrant Share Price shall be reduced,
concurrently with such issue, to a price equal to the quotient obtained by
dividing:
(A) an amount equal to (x) the total number of shares
of Common Stock outstanding immediately prior to such issuance or sale
multiplied by the Market Price in effect immediately prior to such
issuance or sale, plus (y) the aggregate consideration received or
deemed to be received by the Company upon such issuance or sale, by
(B) the total number of shares of Common Stock
outstanding immediately after such issuance or sale.
(d) ISSUANCE OF OPTIONS AND CONVERTIBLE SECURITIES DEEMED ISSUANCE OF
ADDITIONAL SHARES OF COMMON Stock. If the Company, at any time or from time to
time after the Date of Issuance, shall issue any options, warrants or other
rights to purchase Common Stock (collectively, "OPTIONS") or securities that, by
their terms, directly or indirectly, are convertible into or exchangeable for
shares of Common Stock ("CONVERTIBLE Securities") or shall fix a record date for
the determination of holders of any class of securities entitled to receive any
such Options or Convertible Securities, then the maximum number of shares of
Common Stock (as set forth in the instrument relating thereto without regard to
any provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that in any such case in
which Additional Shares of Common Stock are deemed to be issued pursuant to this
Section 2.1(d):
(i) no further adjustment in the Warrant Share Price shall be
made upon the subsequent issue of Convertible Securities or shares of
Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities and, upon the expiration of any
such Option or the termination of any such right to convert or exchange
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such Convertible Securities, the Warrant Share Price then in effect
hereunder shall forthwith be increased to the Warrant Share Price which
would have been in effect at the time of such expiration or termination
had such Option or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been issued,
and the Common Stock issuable thereunder shall no longer be deemed to
be outstanding;
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decrease in the number of
shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Warrant Share Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall, upon any
such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities,
provided that no readjustment pursuant to this clause (ii) shall have
the effect of increasing the Warrant Share Price to an amount which
exceeds the lower of (A) the Warrant Share Price on the original
adjustment date, or (B) the Warrant Share Price that would have
resulted from any issuance of Additional Shares of Common Stock between
the original adjustment date and such readjustment date;
(iii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any decrease in the
consideration payable to the Company, or increase in the number of
shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Warrant Share Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall, upon any
such decrease or increase becoming effective, be recomputed to reflect
such decrease or increase insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities,
provided that no readjustment pursuant to this clause (iii) shall have
the effect of decreasing the Warrant Share Price to an amount which
exceeds the lower of (A) the Warrant Share Price on the original
adjustment date, or (B) the Warrant Share Price that would have
resulted from any issuance of Additional Shares of Common Stock between
the original adjustment date and such readjustment date; and
(iv) if such Options or Convertible Securities cover shares
which are excluded from the definition of Additional Shares of Common
Stock by Section 2.1(a), then this Section 2.1(d) shall not apply to
those underlying shares.
(iv) DETERMINATION OF CONSIDERATION. For purposes of this
Subsection 2.1(d), the consideration received by the Company for the
issue of any Additional Shares of Common Stock shall be computed as
follows:
(A) CASH AND PROPERTY: Such consideration shall:
(1) insofar as it consists of cash, be
computed at the aggregate of cash
received by the Company, excluding
amounts paid or payable for accrued
interest or accrued dividends;
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(2) insofar as it consists of property
other than cash, be computed at the
fair market value thereof at the
time of such issue, as determined in
good faith by the Board; and
in the event Additional Shares of Common Stock are issued together with other
shares or securities or other assets of the Company for consideration which
covers both, be the proportion of such consideration so received, computed as
provided in clauses (1) and (2) above, as determined in good faith by the Board.
(B) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares
of Common Stock deemed to have been issued pursuant to Subsection
2.1(d)(ii), relating to Options and Convertible Securities, shall be
determined by dividing
(1) the total amount, if any, received
or receivable by the Company as
consideration for the issue of such
Options or Convertible Securities,
plus the minimum aggregate amount of
additional consideration (as set
forth in the instruments relating
thereto, without regard to any
provision contained therein for a
subsequent adjustment of such
consideration) payable to the
Company upon the exercise of such
Options or the conversion or
exchange of such Convertible
Securities, or in the case of
Options for Convertible Securities,
the exercise of such Options for
Convertible Securities and the
conversion or exchange of such
Convertible Securities, by
(2) the maximum number of shares of
Common Stock (as set forth in the
instruments relating thereto,
without regard to any provision
contained therein for a subsequent
adjustment of such number) issuable
upon the exercise of such Options or
the conversion or exchange of such
Convertible Securities.
In the event that at any time, as a result of an adjustment made
pursuant to this Section 2.1, the Holder of this Warrant thereafter shall become
entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained herein.
(e) EXTRAORDINARY DISTRIBUTIONS. In case the Company shall at any time
or from time to time, after the issuance of the Warrant but prior to the
exercise hereof, distribute to all holders of its Common Stock (including any
such distribution made in connection with a
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consolidation or merger in which the Company is the continuing or surviving
corporation and the Common Stock is not changed or exchanged) cash, evidences of
indebtedness, securities or other property or assets (excluding any such event
for which adjustment is made under Section 2) or rights or warrants to subscribe
for or purchase any of the foregoing, then, and in each such case, the Holder
shall be entitled to participate in any such distribution based on the number of
shares of Common Stock it would have been entitled to receive had the Warrant
been exercised immediately prior to the occurrence of such distribution, as if
the Holder were the owner of such shares of Common Stock at the time of such
distribution. Notwithstanding the foregoing, this Section 2.1(e) shall be of no
force or effect until and unless such time as the Company shall grant a similar
right to holders of warrants issued after the date hereof, at which time the
Holders shall be entitled to the same protection for extraordinary dividends as
granted to such future holders of warrants, if any.
2.2 OTHER ACTION AFFECTING WARRANT SHARES. If the Company takes any
action affecting its shares of Common Stock after the date hereof, that would be
covered by Section 2.1 but for the manner in which such action is taken or
structured, which would in any way diminish the value of this Warrant, then the
Warrant Share Price shall be adjusted in such manner as the Board shall in good
faith determine to be equitable under the circumstances.
2.3 NOTICE OF ADJUSTMENTS. Upon the occurrence of each adjustment or
readjustment of the Warrant Share Price pursuant to this Section 2, the Company
at its expense will as promptly as possible, but in any event within ten (10)
business days, compute such adjustment or readjustment in accordance with the
terms of this Warrant and prepare a certificate setting forth such adjustment or
readjustment, including a statement of the adjusted Warrant Share Price or
adjusted number of shares of Common Stock, if any, issuable upon exercise of
each Warrant, describing in reasonable detail the transaction giving rise to
such adjustments and showing in detail the facts upon which such adjustment or
readjustment is based. The Company will forthwith mail, by first class mail,
postage prepaid, a copy of each such certificate to the Holder of this Warrant
at the address of such Holder as shown on the books of the Company, and to its
Transfer Agent.
2.4 OTHER NOTICES. If at any time:
(a) the Company shall (i) offer for subscription pro rata to the
holders of shares of the Common Stock any additional equity in the Company or
other rights; or (ii) pay a dividend in additional shares of the Common Stock or
distribute securities or other property or assets to the holders of shares of
the Common Stock (including, without limitation, cash, evidences of indebtedness
and equity and debt securities);
(b) there shall be any capital reorganization or reclassification or
consolidation or merger of the Company with, or sale, transfer or lease of all
or substantially all of its assets to, another entity; or
(c) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
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then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, (x) at least 10 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend, distribution or issuance;
PROVIDED THAT such ten (10) day period shall be increased to thirty (30) days in
the case of Section 2.4(a)(ii), and (y) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, at least 10 days' prior written notice of the date when the same
shall take place if no stockholder vote is required and at least 10 days' prior
written notice of the record date for stockholders entitled to vote upon such
matter if a stockholder vote is required. Such notice in accordance with the
foregoing clause (x) shall also specify, in the case of any such subscription
rights, the date on which the holders of shares of Common Stock shall be
entitled to exercise their rights with respect thereto, and such notice in
accordance with the foregoing clause (y) shall also specify the date on which
the holders of shares of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be.
2.5 ADJUSTMENT CALCULATIONS. No adjustment in the Warrant Share Price
shall be required unless such adjustment would require an increase or decrease
of at least one cent ($0.01) in such price; provided, however, that any
adjustments which by reason of this Section 2.5 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment
required to be made hereunder. All calculations under this Section 2 shall be
made to the nearest cent or to the nearest one-hundredth of a share, as the case
may be.
2.6 APPRAISAL. If a majority in interest of the Holders reasonably
disagrees with any of the Board's determinations referred to in this Section 2
(each, a "DETERMINATION"), and such majority of Holders shall notify the Company
of its disagreement by furnishing to the Company a written notice setting forth
in reasonable detail the fact of such dispute, the basis for such dispute, and
such Holders' alternative calculation (such notice, a "DETERMINATION DISPUTE
NOTICE"), and such Determination Dispute Notice is received by the Company
within seven (7) days of the Company having given notice of the Determination to
the Holders, then the Company and a majority in interest of such Holders (the
"WARRANT REPRESENTATIVE") shall resolve such Determination Dispute in accordance
with the terms and provisions of this Section 2.6. The Holders agree that this
Section 2.6 sets forth the exclusive mechanism for the Holders to make any such
dispute and to resolve the same, and shall not be entitled to make any such
dispute in any other manner. The Company and the Warrant Representative shall
use good faith efforts to mutually agree upon the designation of a single
Qualified Appraiser (as defined below) within seven (7) business days of the
receipt by the Company of a valid Determination Dispute Notice received by the
Company in within the time period set forth above in this Section 2.6. If such a
single Qualified Appraiser is designated, that person shall make a
Determination. If the Company and the Warrant Representative do not so agree
upon the designation of a single Qualified Appraiser within such period, then
within five (5) business days following the end of such period, each of the
Company and the Warrant Representative by written notice to the other shall
designate a Qualified Appraiser (or if any party fails to so select a Qualified
Appraiser within the time period specified, the Person selected by the other
party shall be the Qualified Appraiser) and the two Qualified Appraisers so
designated shall within ten (10) business days of
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their designation jointly designate a third Qualified Appraiser, and such third
Qualified Appraiser so designated, solely, shall independently make a
Determination. The parties may submit the basis for their respective views to
the Appraiser in writing. In such event, each party shall furnish its submission
to the other party at the same time as the submission is furnished to the
Qualified Appraiser, and the other party shall have two (2) business days within
which to furnish a single rebuttal to such original submission. The Qualified
Appraiser may consider such submissions in reaching the Determination. If there
is only a single Qualified Appraiser, the fees and expenses of the Qualified
Appraiser shall be paid equally by the Company and the Warrant Representative.
If three Qualified Appraisers are appointed, the Company shall pay the fees and
expenses of the Qualified Appraiser which it appoints, the Warrant
Representative shall pay the fees and expenses of the Qualified Appraiser which
it appoints, and the fees and expenses of the third Qualified Appraiser shall be
shared equally by the Company and the Warrant Representative. The designated
Qualified Appraiser shall make the Determination not later than ten (10)
business days following the appointment of the Qualified Appraiser making the
Determination. The Determination made by the applicable Qualified Appraiser
shall be final, conclusive and binding on the parties hereto. None of the
Qualified Appraisers shall be affiliated with any of the Company, the Warrant
Representative or another Qualified Appraiser. For the purposes of this
Agreement, "QUALIFIED APPRAISER" shall mean an individual who is engaged on a
regular basis (although not necessarily full time) in valuing securities or
arrangements similar to this Agreement, as the case may be, and may include (but
shall not be limited to) professional business appraisers, investment bankers or
accountants.
3. NO VOTING RIGHTS AS STOCKHOLDERS OR LIABILITIES. Except as otherwise
provided herein, this Warrant shall not be deemed to 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. Nothing contained in
this Warrant shall be deemed as imposing any liabilities on the Holder to
purchase any securities whether such liabilities are asserted by the Company or
by creditors or stockholders of the Company or otherwise.
4. WARRANTS TRANSFERABLE. Subject to the terms hereof, this Warrant and
all rights hereunder are transferable, subject to the applicable terms of the
Merger Agreement, if any, and applicable law, in whole or in part, upon
surrender of this Warrant with a properly executed Form of Assignment at the
principal offices of the Company. This Warrant and the underlying shares of
Common Stock may not be offered, sold or transferred except in compliance with
the applicable terms of the Merger Agreement, if any, and the Securities Act,
and any applicable state securities laws, or an exception therefrom, and then
only against receipt of an agreement of the person to whom such offer or sale or
transfer is made to comply with the provisions of this Warrant with respect to
any resale or other disposition of such securities; provided that no such
agreement shall be required from any person purchasing this Warrant or the
underlying shares of Common Stock pursuant to a registration statement effective
under the Securities Act. No such disposition shall occur without an opinion of
such Holder's counsel, which opinion shall be reasonably satisfactory to the
Company's counsel.
5. WARRANTS EXCHANGEABLE; ASSIGNMENT; LOSS, THEFT, DESTRUCTION, ETC. This
Warrant is exchangeable, without expense, upon surrender hereof by the Holder
hereof at the principal offices of the Company, or at the office of its Transfer
Agent, if any, for new Warrants of like tenor representing in the aggregate the
right to subscribe for and purchase the Warrant Shares which may be subscribed
for
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and purchased hereunder, each such new Warrant to represent the right to
subscribe for and purchase such Warrant Shares as shall be designated by such
Holder hereof at the time of such surrender. Upon surrender of this Warrant to
the Company at its principal office, or at the office of its Transfer Agent, if
any, with an instrument of assignment duly executed and funds sufficient to pay
any transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be cancelled. This Warrant may be divided or
combined with other warrants which carry the same rights upon presentation
hereof at the principal office of the Company, or at the office of its Transfer
Agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. The term "Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of indemnity reasonably satisfactory to the Company, or, in the case of
any such mutilation, upon surrender or cancellation of this Warrant, the Company
will issue to the Holder hereof a new Warrant of like tenor, in lieu of this
Warrant, representing the right to subscribe for and purchase the Warrant Shares
which may be subscribed for and purchased hereunder. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation of
the Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
6. LEGENDS; INVESTMENT REPRESENTATIONS. Any certificate evidencing the
securities issued upon exercise of this Warrant shall bear a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
OTHER SECURITIES LAWS, AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED UNLESS SO REGISTERED OR
AN EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY OTHER APPLICABLE
SECURITIES LAWS IS AVAILABLE.
7. MODIFICATIONS AND WAIVERS. The Holder of this Warrant acknowledges and
agrees that the terms of this Warrant may be amended, modified or waived only by
the written agreement between the Holder and the Company.
8. EXPENSES. The Company shall pay all expenses and other charges payable
in connection with the preparation, issuance and delivery of this Warrant and
all substitute Warrants. The Holder shall pay all taxes in connection with any
sale, assignment or other transfer of this Warrant.
9. BOOKS. The Company shall maintain, at the office or agency of the
Company maintained by the Company, books for the registration and transfer of
the Warrant.
10. RESERVATION OF WARRANT SHARES. The Company or, if appointed, the
transfer agent for the Common Stock, and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Warrant on file with the Transfer
Agent and with
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every subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of the rights of purchase represented by this
Warrant. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to the Holder pursuant
to Section 2.5 hereof.
11. [Intentionally Omitted]
12. LISTING ON SECURITIES EXCHANGES; REGISTRATION. If, and so long as, any
class of the Company's Common Stock shall be listed on any national securities
exchange (as defined in the Exchange Act) or NASDAQ, the Company shall use its
reasonable best efforts to, at its expense, obtain and maintain the approval for
listing upon official notice of issuance of all shares of the Company's Common
Stock which may be acquired upon conversion of the then outstanding Warrant
Shares and maintain the listing of Warrant Shares after their issuance; and the
Company will so list on such national securities exchange or NASDAQ, if
applicable, will register under the Exchange Act (or any similar statute then in
effect), and will maintain such listing of, any other securities that at any
time are issuable upon exercise of this Warrant if and at the time any
securities of the same class shall be listed on such national securities
exchange or NASDAQ by the Company.
13. NO DILUTION OR IMPAIRMENT. The Company will not act for the purpose of
avoiding or seeking to avoid the observance or performance of any of the terms
of this Warrant, by amendment of its certificate or articles of incorporation or
other organizational documents or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other action, but will, at all times, in good faith, assist in the carrying out
of all such terms. Without limiting the generality of the foregoing, the Company
will not increase the par value of any shares of stock receivable on the
exercise of this Warrant above the amount payable therefor on such exercise.
14. MISCELLANEOUS.
14.1 NOTICES. All notices and other communications shall be mailed by
first-class certified or registered mail, postage prepaid, sent by reputable
overnight delivery, delivered by hand or sent by facsimile as follows:
If to the Company:
Auto Data Network, Inc.
712 Fifth Avenue, 19th Floor
New York, New York 10019
Attention: Chief Executive Officer
Telephone: (212)897-6848
and with a copy to:
Auto Data Network, Inc.
712 Fifth Avenue, 19th Floor
New York, New York 10019
Attention: Andrew J. Cosentino
Telephone: (212)897-6910
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If to the Holder: The address and/or facsimile furnished to the Company
in writing by the last registered Holder of this
Warrant who shall have furnished an address and/or
facsimile to the Company in writing.
except that any of the foregoing may from time to time by written notice to the
other designate another address which shall thereupon become its effective
address for the purposes of this paragraph. Any notices, requests or consents
hereunder shall be deemed given, and any instruments delivered, five days after
they have been mailed by first-class certified or registered mail, postage
prepaid, or upon receipt if delivered by a reputable overnight courier or if
delivered personally or by facsimile transmission.
14.2 ENTIRE AGREEMENT. This Warrant, including the exhibits and
documents referred to herein which are a part hereof, contain the entire
understanding of the parties hereto with respect to the subject matter and may
be amended only by a written instrument executed by the parties hereto or their
successors or assigns. Any paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Warrant.
14.3 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York with respect to contracts made
and to be fully performed therein, without regard to the conflicts of laws
principles thereof. The parties hereto hereby agree that any suit or proceeding
arising under this Warrant, or in connection with the consummation of the
transactions contemplated hereby, shall be brought solely in a federal or state
court located in the County of New York and State of New York. By its execution
hereof, both the Company and the undersigned hereby consent and irrevocably
submit to the in personam jurisdiction of the federal and state courts located
in the County of New York and State of New York and agree that any process in
any suit or proceeding commenced in such courts under this Warrant may be served
upon it personally or by certified or registered mail, return receipt requested,
or by Federal Express or other courier service, with the same force and effect
as if personally served upon the applicable party in New York and in the city or
county in which such other court is located. The parties hereto each waive any
claim that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense of lack of in personam jurisdiction with respect
thereto.
14.4 HEADINGS. The headings of this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
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IN WITNESS WHEREOF, this Warrant Agreement has been executed as of the
date first written above.
AUTO DATA NETWORK, INC.
By:
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Name:
Title:
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PURCHASE FORM
Dated: __________
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ Warrant Shares and hereby makes full
cash payment of $_____________ in payment of the exercise price thereof.
The undersigned has had the opportunity to ask questions of and receive
answers from the officers of the Company regarding the affairs of the Company
and related matters, and has had the opportunity to obtain additional
information necessary to verify the accuracy of all information so obtained.
[The undersigned understands that the shares have not been registered
under the Securities Act of 1933, as amended, or the securities laws of any
other jurisdiction, and hereby represents to the Company that the undersigned is
acquiring the shares for its own account, for investment, and not with a view
to, or for sale in connection with, the distribution of any such shares.] [THIS
MAY NOT APPLY DEPENDING UPON WHETHER A REGISTRATION STATEMENT IS EFFECTIVE.]
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(Signature)
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(Print or type name)
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(Address)
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NOTICE: The signature of this Purchase Form must correspond with the
name as written upon the face of the within Warrant, or upon the assignment
thereof, if applicable, in every particular, without alteration, enlargement or
any change whatsoever.
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________ the right represented by the within Warrant to
purchase ________ shares of Common Stock of _____________ to which the within
Warrant relates and appoints _____________ attorney to transfer said right on
the books of ___________________ with full power of substitution in the
premises.
Dated: __________________ ___, 200__
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(Signature must conform in all respects to name of holder as specified on the
face of the Warrant)
Address of Transferee:
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In the presence of:
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CONSENT OF ASSIGNEE
I HEREBY CONSENT to abide by the terms and conditions of the within
Warrant.
Dated:
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(Signature of Assignee)
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(Print or type name)