Exhibit 4.8
THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER THE ACT OR IN A TRANSACTION WHICH QUALIFIES AS
AN EXEMPT TRANSACTION UNDER THE ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER.
DATE: September ___, 2000
EDGE TECHNOLOGY GROUP, INC. COMMON STOCK PURCHASE WARRANT
Edge Technology Group, Inc., a Delaware corporation (the
"Company"), hereby certifies that, for value received for
services rendered in connection with the Company's formation and
initial offering of securities, _____________ (the "Holder"), or
assigns, is entitled, subject to the terms set forth below, on or
after the date hereof through September 1, 2005 to purchase from
the Company up to ________________ (_________) fully paid and
non-assessable shares of common stock in the Company, par value
$0.01 per share ("Common Stock"), at the exercise price of Three
Dollars and No/100 ($3.00) per share (the "Exercise Price"), the
number and character of shares of such Common Stock being subject
to adjustment as provided below. The term "Common Stock" shall
mean, unless the context otherwise requires, the shares of such
Common Stock or other securities or property at the time
deliverable upon the exercise of this Warrant. The term "Warrant"
as used herein shall include this Warrant and also any warrants
delivered in substitution or exchange therefor as provided
herein.
1. EXERCISE OF WARRANT. Subject to compliance with the
provisions hereof, this Warrant may be exercised by Holder, in
whole or in part, during the period of exercise specified above,
at any time or from time to time, by surrendering the Warrant at
the principal office of the Company, together with the form of
Election to Exercise in substantially the form of Exhibit A,
fully executed, and with payment in cash or immediately available
funds of the sum obtained by multiplying (a) the number of shares
of Common Stock for which the Warrant is being exercised by (b)
the Exercise Price (provided, that no cash need be delivered if
the Holder elects the "net issue exercise" alternative described
below). This Warrant may be exercised for less than the full
number of shares of Common Stock or any fraction thereof called
for hereby, during the period of exercise specified above, at any
time or from time to time, in the manner set forth in this
Section 1. Upon any partial exercise, the number of shares
receivable upon the exercise of this Warrant as a whole, and the
sum payable upon the exercise of this Warrant as a whole, shall
be proportionately reduced. Upon such partial exercise, this
Warrant shall be surrendered and a new Warrant of the same tenor
and for the purchase of the number of such shares not purchased
upon such exercise shall be issued by the Company to Holder. For
purposes of this Section, a Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date
of its surrender for exercise as provided above.
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2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as
practicable after any exercise of this Warrant and payment of any
required Exercise Price (and in any event within five (5) days),
the Company, at its expense, will cause to be issued in the name
of and delivered to Holder a certificate or certificates for the
number of fully paid and non-assessable shares of Common Stock,
together with any other securities or property to which Holder is
entitled upon exercise, plus, in lieu of any fractional share of
Common Stock to which such holder would otherwise be entitled,
cash in an amount determined in accordance with Section 3(e)
hereof. The Company agrees that the shares so purchased shall be
deemed to be issued as of the close of business on the date of
the applicable exercise of this Warrant and payment of the
required Exercise Price.
3. ANTI-DILUTION PROVISIONS AND OTHER ADJUSTMENTS. In
order to prevent dilution of the right granted hereunder, the
Exercise Price shall be subject to adjustment from time to time
in accordance with this Section 3. Upon each adjustment of the
Exercise Price pursuant to this Section 3, Holder shall
thereafter be entitled to acquire upon exercise, at the Exercise
Price resulting from such adjustment, the number of shares of
Common Stock obtainable by multiplying the Exercise Price in
effect immediately prior to such adjustment by the number of
shares of Common Stock acquirable immediately prior to such
adjustment and dividing the product thereof by the Exercise Price
resulting from such adjustment.
(a) Subdivisions and Combinations. In case the Company shall
at any time subdivide its outstanding shares of Common Stock into
a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision shall be proportionately
reduced, and, conversely, in case the outstanding shares of
Common Stock of the Company shall be combined into a smaller
number of shares, the Exercise Price in effect immediately prior
to such combination shall be proportionately increased.
(b) Reorganization, Reclassification, Share Exchange,
Consolidation, Merger or Sale of Assets. If any capital
reorganization or reclassification of the capital stock of the
Company, or share exchange, consolidation or merger of the
Company with another entity, or the sale of all or substantially
all of its assets to another entity shall be effected in such a
way that holders of Common Stock shall be entitled to receive
stock, securities, cash or other property with respect to or in
exchange for Common Stock, then, as a condition of such
reorganization, reclassification, share exchange, consolidation,
merger or sale, lawful and adequate provision shall be made
whereby Holder shall have the right to acquire and receive upon
exercise of this Warrant such shares of stock, securities, cash
or other property issuable or payable (as part of the
reorganization, reclassification, share exchange, consolidation,
merger or sale) with respect to or in exchange for such number of
outstanding shares of Common Stock as would have been received
upon exercise of this Warrant at the Exercise Price then in
effect. The Company will not effect any such share exchange,
consolidation, merger or sale unless, prior to the consummation
thereof, the successor entity (if other than the Company)
resulting from such share exchange, consolidation or merger or
the entity purchasing such assets shall assume by written
instrument mailed or delivered to Holder at the last address of
such holder appearing on the books of the Company, the obligation
to deliver to such holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such
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holder may be entitled to purchase. If a purchase, tender or
exchange offer is made to and accepted by the holders of more
than 50% of the outstanding shares of Common Stock, the Company
shall not effect any share exchange, consolidation, merger or
sale with the person having made such offer or with any Affiliate
of such person, unless prior to the consummation of such share
exchange, consolidation, merger or sale Holder shall have been
given a reasonable opportunity to then elect to receive upon the
exercise of this Warrant either the stock, securities or assets
then issuable with respect to the Common Stock or the stock,
securities or assets, or the equivalent, issued to previous
holders of Common Stock in accordance with such offer. For
purposes hereof the term "Affiliate" with respect to any given
person shall mean any person controlling, controlled by or under
common control with the given person.
(c) Notices of Record Date. If:
(i) the Company shall declare any cash dividend upon its
Common Stock, or
(ii) the Company shall declare any dividend upon its Common
Stock payable in stock or declare any special dividend or
make any other distribution to the holders of its Common
Stock, or
(iii) the Company shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of
stock of any class or other rights, or
(iv) there shall be any capital reorganization or
reclassification of the capital stock of the Company,
including any subdivision or combination of its outstanding
shares of Common Stock, or share exchange, consolidation or
merger of the Company with, or sale of all or substantially
all of its assets to, another entity, or
(v) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in connection with such event, the Company shall
give to Holder (A) at least ten (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 dividend,
distribution or subscription rights or for determining
rights to vote in respect of any such reorganization,
reclassification, share exchange, consolidation, merger,
sale, dissolution, liquidation or winding up; and (B) in the
case of any such reorganization, reclassification, share
exchange, consolidation, merger, sale, dissolution,
liquidation or winding up, at least ten (10) days' prior
written notice of the date when the same shall take place.
Such notice in accordance with the foregoing clause (A)
shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto, and such
notice in accordance with this clause (B) shall also specify
the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization,
reclassification, share exchange, consolidation, merger,
sale, dissolution, liquidation or winding up, as
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the case may be. Each such written notice shall be
addressed to Holder at the address of Holder as shown on the
books of the Company.
(d) Adjustment by Board of Directors. If any event occurs as
to which, in the opinion of the Board of Directors of the
Company, the provisions of this Section 3 are not strictly
applicable or if strictly applicable would not fairly protect the
rights of Holder in accordance with the essential intent and
principles of such provisions, then the Board of Directors shall
make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to
protect such rights as aforesaid, but in no event shall any
adjustment have the effect of increasing the Exercise Price as
otherwise determined pursuant to any of the provisions of this
Section 3, except in the case of a combination of shares of a
type contemplated in Section 3(a) and then in no event to an
amount larger than the Exercise Price as adjusted pursuant to
Section 3(a).
(e) Fractional Shares. The Company shall not issue fractions
of shares of Common Stock upon exercise, partial exercise
pursuant to Section 1(a) of this Warrant. If any fraction of a
share of Common Stock would, except for the provisions of this
paragraph, be issuable upon such exercise of this Warrant, the
Company shall in lieu thereof pay to the person entitled thereto
an amount in cash equal to the current value of such fraction of
a share, calculated to the nearest one-hundredth (1/100) of a
share of Common Stock, to be computed in the manner set forth in
Section 1(b) hereof.
(f) Officers' Statement as to Adjustments. Whenever the
Exercise Price shall be adjusted as provided in Section 3 hereof,
the Company shall file at each office designated for the exercise
of this Warrant a statement, signed by the Chief Executive
Officer, the President or any Vice President of the Company,
showing in reasonable detail the facts requiring such adjustment
and the Exercise Price that will be effective after such
adjustment. The Company shall also cause a written notice
setting forth any such adjustments to be sent to the record
holder of this Warrant at its address appearing on the stock
register. If such notice relates to an adjustment resulting from
an event referred to in Section 3(e), such notice shall be
included as part of the notice required to be mailed and
published under the provisions of Section 3(e) hereof.
4. NO IMPAIRMENT. The Company will not, by amendment of
its charter or through reorganization, share exchange,
consolidation, merger, dissolution, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant. Without
limiting the generality of the foregoing, the Company will not
increase the par value of any shares of stock receivable upon the
exercise of this Warrant above the amount payable therefor upon
such exercise, and at all times will take all such action as may
be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable stock upon the
exercise of this Warrant.
5. RESERVATION OF STOCK. The Company shall at all times
reserve and keep available out of its authorized but unissued
stock, solely for the issuance and delivery upon the exercise of
this Warrant and other similar warrants, options and other rights
to purchase Common Stock, such number of its duly authorized
shares of Common Stock as from time to time shall be issuable
upon
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the exercise of this Warrant and all other similar warrants,
options or rights to purchase Common Stock at the time
outstanding.
6. REPLACEMENT OF WARRANT. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of
loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount
reasonably satisfactory to it, or (in the case of mutilation)
upon surrender and cancellation thereof, the Company will issue,
in lieu thereof, a new Warrant of like tenor.
7. REMEDIES. The Company stipulates that the remedies at
law of Holder in the event of any default by the Company in the
performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that the same may
be specifically enforced.
8. TRANSFERS AND LEGENDS. Subject to the further
provisions of this Section 8, this Warrant and all rights
hereunder are transferable, in whole or in part, at the agency or
office of the Company by the Holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant properly
endorsed as provided in Exhibit B hereto. Each taker and holder
of this Warrant, by taking or holding the same, consents and
agrees that this Warrant, when endorsed in blank, shall be deemed
negotiable, and when so endorsed the Holder hereof may be treated
by the Company and all other persons dealing with this Warrant as
the absolute owner hereof for any purposes and as the person
entitled to exercise the rights represented by this Warrant, or
to the transfer hereof on the books of the Company, any notice to
the contrary notwithstanding; but until each transfer on such
books, the Company may treat the registered holder hereof as the
owner hereof for all purposes.
Holder acknowledges and agrees with the following
provisions:
(a) Absent an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), covering the
disposition of this Warrant or the shares of Common Stock
issuable upon exercise of this Warrant, Holder will not sell or
transfer this Warrant or any or all of such shares of Common
Stock without first providing the Company with an opinion of
counsel (which may be an opinion of Holder) to the effect that
such sale or transfer will be exempt from the registration and
prospectus delivery requirements of the Act.
(b) Each certificate representing shares of Common Stock
issued pursuant to this Warrant, unless at the time of exercise
such Warrant shares are registered under the Act, shall bear a
legend in substantially the following form on the face thereof:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY BE
TRANSFERRED OR RESOLD ONLY IN COMPLIANCE WITH SUCH SECURITIES
LAWS. Any certificate issued at any time in exchange or
substitution for any certificate bearing such legend (except a
certificate issued upon completion of a distribution under a
registration statement covering the securities represented) shall
also bear such legend unless, in the opinion of counsel to the
Company, the securities represented thereby may be transferred as
contemplated by such holder without violation of the registration
requirements of the Act.
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(c) Prior to the exercise of this Warrant, Holder will not be
entitled to any rights of a shareholder of the Company with
respect to shares for which this Warrant shall be exercisable,
including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
(d) The Company shall not be required to pay any Federal or
state transfer tax or charge that may be payable in respect of
any transfer involved in the issuance or delivery of certificates
for Common Stock or to issue or deliver any certificates for
Common Stock upon the exercise of this Warrant until any and all
such taxes and charges shall have been paid by Holder or until it
has been established to the Company's satisfaction that no such
tax or charge is due.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company hereby represents and warrants to Holder that:
(a) Authorization and Delivery. This Warrant has been duly
authorized and executed by the Company and when delivered will be
the valid and binding obligation of the Company enforceable in
accordance with its terms.
(b) Warrant Shares. The shares of Common Stock issuable pursuant
to this Warrant have been duly authorized and reserved for
issuance by the Company and, when issued and paid for in
accordance with the terms hereof, will be validly issued, fully
paid and nonassessable.
(c) Rights and Privileges. The rights, preferences, privileges
and restrictions granted to or imposed upon such shares of Common
Stock and the holders thereof are as set forth herein and in the
Company's Articles of Incorporation and Bylaws, true and complete
copies of which have been delivered to the original Holder
(d) No Inconsistency. The execution and delivery of this Warrant
are not, and the issuance of the shares of Common Stock upon
exercise of this Warrant in accordance with the terms hereof,
will not (i) violate any provision of the Company's Articles of
Incorporation and Bylaws, (ii) contravene any law, governmental
rule or regulation, judgment or order applicable to the Company,
(iii) contravene any provision of, or constitute a default under,
any indenture, mortgage, contract or other instrument of which
the Company is a party or by which it is bound or (iv) require
the consent or approval of, the giving of notice to, the
registration with the taking of any action in respect of or by,
any Federal, state or local government authority or agency or
other person.
10. REPRESENTATIONS AND WARRANTIES OF HOLDER. Holder hereby
represents and warrants to the Company that:
(a) Knowledge, Skill and Experience. It has substantial
knowledge, skill and experience in making investment decisions of
the type represented by this Warrant and the shares of Common
Stock issuable upon exercise of this Warrant.
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(b) Capable of Bearing Risks. It is capable of evaluating the
risk of its investment in this Warrant and the shares issuable
upon exercise of this Warrant and is able to bear the economic
risk of such investment, including the risk of losing the entire
investment.
(c) Acquiring for its Own Account. This Warrant and the
shares of Common Stock issuable upon exercise of this Warrant are
being acquired by it for investment purposes only, for its own
account and not with a present view to any distribution thereof
in violation of applicable securities laws.
(d) Compliance with Securities Law. If Holder should in the
future decide to dispose of the shares issuable upon exercise of
this Warrant, it is understood that it may so do only in
compliance with the Act and applicable state securities laws.
(e) Access to Information. The Company has made available to
Holder the opportunity to ask questions of and to receive answers
from the Company's officers, directors and other authorized
representatives concerning the Company and its business and
prospects and Holder has been permitted to have access to all
information which it has requested in order to evaluate the
merits and risks of the purchase of the Warrant hereunder.
Accredited Investor. Holder is an "Accredited Investor," as
defined in Rule 501(a) promulgated under the Securities Act of
1933, as amended.
(f) Acknowledgement. Holder understands that (i) this Warrant
and the shares of Common Stock issuable upon exercise of this
Warrant have not been registered under the Act by reason of their
issuance in a transaction exempt from the registration
requirements of the Act, (ii) this Warrant and the shares of
Common Stock issuable upon exercise of this Warrant must be held
indefinitely unless they are registered under the Act and
applicable state securities laws or a subsequent disposition
thereof is exempt from such registration (and, upon request,
evidence satisfactory to the Company is provided by Holder of the
availability of such exemptions, including, upon request, the
delivery to the Company of opinions of counsel, which opinions
and counsel are satisfactory to the Company), and (iii) this
Warrant and the shares of Common Stock issuable upon exercise of
this Warrant may bear a legend to such effect.
11. SUBDIVISION OF RIGHTS. This Warrant (as well as any new
warrants issued pursuant to the provisions of this Warrant) is
exchangeable, upon the surrender hereof by Holder, at the
principal office of the Company for any number of new warrants of
like tenor and date representing in the aggregate the right to
subscribe for and purchase the number of shares of Common Stock
that may be subscribed for and purchased hereunder.
12. REGISTRATION RIGHTS. Reference is hereby made to that
certain Registration Rights Agreement dated June 13, 1997 by and
among the Company and certain stockholders of the Company
(including Glacier Capital Limited and Summitt Capital Limited,
collectively "G&S"), as subsequently amended (the "Registration
Rights Agreement"). The Company hereby grants to Holder piggyback
registration rights associated with the shares issuable upon
exercise of this Warrant in connection with any registration
rights requested by G&S under the Registration Rights Agreement
on the terms specified therein.
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13. MAILING OF NOTICES. All notices and other
communications from the Company to Holder shall be mailed by
first-class certified mail, postage prepaid, or by a recognized
overnight delivery service, to the address furnished to the
Company in writing by the last Holder who shall have furnished an
address to the Company in writing. Notice shall be deemed
delivered three (3) business days after deposit with the United
States Postal Service and one (1) business day after deposit with
an overnight delivery service.
14. HEADINGS. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise
affect the meaning hereof.
15. CHANGE, WAIVER. Neither this Warrant nor any term
hereof may be changed, waived, discharged or terminated orally
but only by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination
is sought.
16. GOVERNING LAW. This Warrant shall be construed and
enforced in accordance with the laws of the State of Delaware
without regard to principles of conflicts of laws.
[Signature page follows]
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IN WITNESS WHEREOF, the Company, by the undersigned
thereunto duly authorized, has duly executed this Warrant as of
the date first written above.
EDGE TECHNOLOGY GROUP, INC.,
a Delaware corporation
By:__________________________
Name:________________________
Title:_______________________
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Exhibit A
Election to Exercise
[To be signed only upon exercise of Warrant]
The undersigned, the Holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by
such Warrant for ___________ shares of Common Stock of Edge
Technology Group, Inc., a Delaware corporation. Accordingly, the
Holder herewith makes payment of $___________ in full payment of
the exercise price.
The undersigned requests that the certificates for such
shares be issued in the name of _______________________ and be
delivered to ______________ whose address is:
Dated:____________ By_____________________________________
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant)
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Exhibit B
Endorsement
[To be 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 the __________ shares of the
Common Stock of Edge Technology Group, Inc. 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:_____________ By________________________________
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
Address:__________________________
__________________________
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