EXHIBIT 4
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT: (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE HOLDER TO
THE COMPANY OF AN OPINION OF COUNSEL, SATISFACTORY TO COUNSEL FOR THE COMPANY,
STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, JULY 31, 2003
No. W-________ ________ Warrants
TELEHUBLINK CORPORATION
WARRANT CERTIFICATE
This warrant certificate (the "Warrant Certificate") certifies that
__________________ or registered assigns, is the registered holder of warrants
to purchase, at any time during the period commencing on the Commencement Date
(as hereinafter defined) and continuing until 5:00 P.M. New York City time on
July 31, 2003 (the "Expiration Date"), up to ________ fully-paid and
non-assessable shares, subject to adjustment in accordance with Section 6 hereof
(the "Warrant Shares"), of the common stock, par value $.01 per share (the
"Common Shares"), of TeleHubLink Corporation, a Delaware corporation (the
"Company"), subject to the terms and conditions set forth herein. The warrants
represented by this Warrant Certificate and any warrants resulting from a
transfer or subdivision of the warrants represented by this Warrant Certificate
shall sometimes hereinafter be referred to, individually, as a "Warrant" and,
collectively, as the "Warrants." As used herein, the term "Commencement Date"
shall mean the earliest of the Maturity Date or the Prepayment Date set forth in
that certain 10% Subordinated Convertible Debenture dated July 13, 1999 made by
the Company in favor of the holder hereof (the "Debenture").
This Warrant Certificate is one of a series of Warrant Certificates
being issued as part of a private offering pursuant to the Company's
Confidential Private Offering Memorandum dated June 8, 1999 (the "Memorandum").
1. EXERCISE OF WARRANTS. Each Warrant is initially exercisable to
purchase one Warrant Share at the Initial Exercise Price (as defined in Section
5.1 hereof), subject to adjustment as set forth in Section 6 hereof, payable in
cash or by check to the order of the Company, or any
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combination of cash or check. Upon surrender of this Warrant Certificate with
the annexed Form of Election to Purchase duly executed, together with payment of
the Exercise Price (as hereinafter defined) for the Warrant Shares purchased, at
the Company's principal offices (presently located at 24 New England Executive
Park, Burlington, MA 01803) the registered holder thereof (the "Holder" or
"Holders") shall be entitled to receive a certificate or certificates for the
Warrant Shares so purchased. The purchase rights represented by this Warrant
Certificate are exercisable at the option of the Holder hereof, in whole or in
part (but not as to fractional Common Shares). In the case of the purchase of
less than all the Warrant Shares purchasable under this Warrant Certificate, the
Company shall cancel this Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the Warrant Shares purchasable hereunder.
2. ISSUANCE OF CERTIFICATES. Exercise of the Warrants shall be deemed
to have been made at the close of business on the date on which a duly executed
Form of Election to Purchase, together with the applicable Exercise Price, is
delivered to the Company. Upon the exercise of the Warrants, the person or
persons entitled to receive the Warrant Shares shall be treated for all purposes
as having been the record holder or holders thereof as of the relevant time
described in the foregoing sentence. Upon such exercise of the Warrants, the
issuance of certificates for the Warrant Shares purchased pursuant to such
exercise shall be made forthwith (and in any event within five (5) business days
thereafter) without charge to the Holder thereof including, without limitation,
any tax which may be payable in respect of the issuance thereof, and such
certificates shall (subject to the provisions of Section 3 hereof) be issued in
the name of, or in such names as may be directed by, the Holder thereof;
provided, however, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and delivery
of any such certificates in a name other than that of the Holder and the Company
shall not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
The Warrant Certificates and, upon exercise of the Warrants, the
certificates representing the Warrant Shares shall be executed on behalf of the
Company by the manual or facsimile signature of those officers required to sign
such certificates under applicable law.
The Warrant Certificates and, upon exercise of the Warrants, in
part or in whole, certificates representing the Warrant Shares shall bear
legends substantially similar to the following:
"The securities represented by this certificate and/or the
securities issuable upon exercise thereof have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may
not be offered or sold except (i) pursuant to an effective
registration statement under the Act, (ii) to the extent
applicable, pursuant to Rule 144 under the Act (or any similar
rule under such Act relating to the disposition of securities), or
(iii) upon the delivery by the holder to the Company of an opinion
of counsel, satisfactory to counsel to the Company, stating that
an exemption from registration under such Act is available."
3. INVESTMENT INTENT. The Holder of this Warrant Certificate, by its
acceptance thereof, covenants and agrees that the Warrants and the Warrant
Shares issuable upon exercise of the
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Warrants are being acquired as an investment and not with a view to the
distribution thereof.
4. REGISTRATION RIGHTS. The Holder shall be entitled to all of the
rights set forth in the Registration Rights Agreement dated as of the date
hereof between the Company and the Holder.
5. PRICE.
5.1. INITIAL AND ADJUSTED EXERCISE PRICE. The initial exercise
price of each Warrant (the "Initial Exercise Price") shall be $2.00 per Warrant
Share.
The adjusted exercise price (the "Adjusted Exercise Price") shall
be the price which shall result from time to time from any and all adjustments
of the Initial Exercise Price in accordance with the provisions of Section 6
hereof.
5.2. EXERCISE PRICE. The term "Exercise Price" herein shall mean
the Initial Exercise Price or the Adjusted Exercise Price, depending upon the
context.
6. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
6.1. DIVIDENDS AND DISTRIBUTIONS. In case the Company shall at any
time after the date hereof pay a dividend in Common Shares or make a
distribution in Common Shares, then upon such dividend or distribution, the
Exercise Price in effect immediately prior to such dividend or distribution
shall be reduced to a price determined by dividing an amount equal to the total
number of Common Shares outstanding immediately prior to such dividend or
distribution multiplied by the Exercise Price in effect immediately prior to
such dividend or distribution, by the total number of Common Shares outstanding
immediately after such issuance or sale. For purposes of any computation to be
made in accordance with the provisions of this Section 6.1, the Common Shares
issuable by way of dividend or distribution shall be deemed to have been issued
immediately after the opening of business on the date following the date fixed
for determination of shareholders entitled to receive such dividend or
distribution.
6.2. SUBDIVISION AND COMBINATION. In case the Company shall at any
time subdivide or combine the outstanding Common Shares, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
6.3. ISSUANCES OF COMMON SHARES. If the Company shall, at any time
or from time to time after the Commencement Date, issue any Common Shares or
other securities convertible into, or exchangeable or exercisable for, Common
Shares, in each case other than Excluded Shares (as hereinafter defined), for no
consideration or for a consideration per share less than the Exercise Price in
effect immediately prior to the issuance of such Common Shares or other
securities, the Exercise Price in effect immediately prior to each such issuance
shall automatically be lowered to a price equal to the consideration per share
received by the Company upon such issuance. In the case of the issuance of
Common Shares for a consideration consisting in whole or part of property other
than cash, the value of such property shall be deemed to be the fair market
value of such property as determined in good faith by the Board of Directors of
the Company. As used herein, the term "Excluded Shares" shall mean (i) Common
Shares issued in connection with transactions described in Sections 6.1 and 6.2
hereof, (ii) Common Shares issued upon the exercise or conversion of any
options, rights, warrants or other similar securities outstanding on the date
hereof, (iii) Common Shares issued to officers,
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directors or employees of or consultants to the Company pursuant to any
agreement, plan or arrangement approved prior to the date hereof by the Board of
Directors of the Company or a committee thereof authorized to give such
approval.
6.4. ADJUSTMENT IN NUMBER OF WARRANT SHARES. Upon each adjustment
of the Exercise Price pursuant to the provisions of this Section 6, the number
of Warrant Shares issuable upon the exercise of each Warrant shall be adjusted
to the nearest full Common Share by multiplying a number equal to the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of the Warrants immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
6.5. RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any
reclassification or change of the outstanding Common Shares (other than a change
in nominal value to no nominal value, or from no nominal value to nominal value,
or as a result of a subdivision or combination), or in the case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
surviving corporation and which does not result in any reclassification or
change of the outstanding Common Shares, except a change as a result of a
subdivision or combination of such shares or a change in nominal value, as
aforesaid), or in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the Holder shall thereafter have the
right to purchase the kind and number of shares of stock and other securities
and property receivable upon such reclassification, change, consolidation,
merger, sale or conveyance as if the Holder were the owner of the Warrant Shares
issuable upon exercise of the Warrants immediately prior to any such events at a
price equal to the product of (x) the number of Warrant Shares issuable upon
exercise of the Warrants and (y) the Exercise Price in effect immediately prior
to the record date for such reclassification, change, consolidation, merger,
sale or conveyance as if such Holder had exercised the Warrants.
6.6. DETERMINATION OF OUTSTANDING COMMON SHARES. The number of
Common Shares at any one time outstanding shall include the aggregate number of
shares issued or issuable upon the exercise of outstanding options, rights and
warrants and upon the conversion or exchange of outstanding convertible or
exchangeable securities.
7. REDEMPTION OF WARRANTS. The Warrants are redeemable by the Company,
in whole or in part, on not less than thirty (30) days' prior written notice at
a redemption price of $0.10 per Warrant at any time after issuance by the
Company; provided that the closing bid quotation of the Company's Common Shares
has exceeded $3.00 (subject to adjustment consistent with the provisions of
Section 6 hereof) for a period of 30 consecutive trading days during the period
in which the Warrants are exercisable. The redemption notice shall be mailed to
the holders of the Warrants at their addresses appearing in the Warrant
register. Holders of the Warrants will have exercise rights until the close of
business on the date fixed for redemption.
8. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. This Warrant
Certificate is exchangeable without expense, upon the surrender hereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate(s) of like tenor and date representing in the aggregate the
right to purchase the same number of Warrant Shares, in such denominations as
shall be designated by the Holder thereof at the time of such surrender.
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Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of this Warrant
Certificate, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
9. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of Common Shares and shall
not be required to issue scrip or pay cash in lieu of fractional interests, it
being the intent of the parties that all fractional interests shall be
eliminated by rounding any fraction up to the nearest whole number of Common
Shares, provided that at its option the Company may pay cash in lieu of
fractional shares based on the closing sale price of the Company's Common Shares
on the exchange or market, if any, where such Common Shares are traded or quoted
at the close of business on the date on which the Warrants are deemed to have
been exercised.
10. RESERVATION OF SHARES. The Company covenants and agrees that it
will at all times reserve and keep available out of its authorized share
capital, solely for the purpose of issuance upon the exercise of the Warrants,
such number of Common Shares as shall be equal to the maximum number of Warrant
Shares issuable upon the exercise of the Warrants, for issuance upon such
exercise, and that, upon exercise of the Warrants and payment of the Exercise
Price therefor, all Warrant Shares issuable upon such exercise shall be duly and
validly issued, fully paid, nonassessable and not subject to the preemptive
rights of any shareholder.
11. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement
shall be construed as conferring upon the Holder or Holders the right to vote or
to consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having any
rights whatsoever as a shareholder of the Company. If, however, at any time
prior to the expiration of the Warrants and their exercise, any of the following
events shall occur:
(a) the Company shall take a record of the holders of its Common
Shares 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 current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Shares any additional Common Shares or other shares of capital stock of
the Company or securities convertible into or exchangeable for Common
Shares or other shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor; or
(c) 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 as an entirety
shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least twenty (20) days prior to the date fixed as a record date
or the date of closing the transfer
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books for the determination of the shareholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription rights,
options or warrants, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend or
distribution, or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
12. NOTICES All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
personally delivered or sent by registered or certified mail (return receipt
requested, postage prepaid), facsimile transmission or overnight courier:
(a) If to a registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 1 of
this Agreement or to such other address as the Company may designate by
notice to the Holders.
13. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company and the Holders inure to the benefit of their
respective successors and assigns hereunder.
14. GOVERNING LAW.
14.1. CHOICE OF LAW. This Warrant Certificate shall be deemed to
have been made and delivered in the State of New York and shall be governed as
to validity, interpretation, construction, effect and in all other respects by
the substantive laws of the State of New York, without giving effect to the
choice of laws rules thereof.
14.2. JURISDICTION AND SERVICE OF PROCESS. The Company and the
Holder each (a) agrees that any legal suit, action or proceeding arising out of
or relating to this Warrant Certificate, or any other agreement entered into
between the Company and the Holder pursuant to the Private Financing
contemplated by the Memorandum shall be instituted exclusively in the New York
State Supreme Court, County of New York or in the United States District Court
for the Southern District of New York, (b) waives any objection which the
Company or such Holder may have now or hereafter based upon FORUM NON CONVENIENS
or to the venue of any such suit, action or proceeding, and (c) irrevocably
consents to the jurisdiction of the New York State Supreme Court, County of New
York and the United States District Court for the Southern District of New York
in any such suit, action or proceeding. The Company and the Holder each further
agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the New York State Supreme
Court, County of New York or in the United States District Court for the
Southern District of New York and agrees that service of process upon the
Company or the Holder mailed by certified mail to their respective addresses
shall be deemed in every respect effective service of process upon the Company
or the Holder, as the case may be, in any suit, action or proceeding. FURTHER,
BOTH THE COMPANY AND THE HOLDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION TO
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ENFORCE THE TERMS OF THIS WARRANT CERTIFICATE AND IN CONNECTION WITH ANY
DEFENSE, COUNTERCLAIM OR CROSSCLAIM ASSERTED IN ANY SUCH ACTION.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed as of this 31st day of July, 2000.
[SEAL] TELEHUBLINK CORPORATION
By:_____________________
Name:
Title:
Attest:
_____________________________
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FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ________ Warrant Shares and
herewith tenders in payment for such Warrant Shares cash or a check payable to
the order of TeleHubLink Corporation in the amount of $_____, all in accordance
with the terms hereof. The undersigned requests that a certificate for such
Warrant Shares be registered in the name of _____________________, whose address
is ___________________________________________________________, and that such
certificate be delivered to ___________________________, whose address is
_______________________________________________________.
Dated: Signature:
________________________________
(Signature must conform in all respects to
name of holder as specified on the face of the
Warrant Certificate.)
________________________________
(Insert Social Security or Other
Identifying Number of Holder)
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ___________________hereby sells, assigns and
transfers unto
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ___________________,
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated: Signature:
________________________________
(Signature must conform in all respects to
name of holder as specified on the face of the
Warrant Certificate.)
_____________________________________
_____________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
