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EXHIBIT 4.1
EXHIBIT D
HOMESEEKERS.COM, INCORPORATED
Common Stock Warrant
Expiring [Date], [2003]
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Date: [Date], [2000]
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No. 1
HOMESEEKERS.COM, INCORPORATED, a Nevada corporation (herein,
together with its successors and assigns, the "Company"), for value received,
hereby certifies that Alpha Venture Capital, Incorporated, or registered
assigns, is entitled to purchase from the Company, at any time or from time
to time prior to 5:00 p.m., New York City time, on [Date], [2003] (or such
earlier date as may be determined pursuant to Section 13 hereof),
_____________ duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock, par value $.001 per share, as constituted on
[Date], [2000] (the "Common Stock"), of the Company at a purchase price of
$______ per share (subject to the adjustment in accordance with Section 2,
the "Warrant Price"), all subject to the terms, conditions and adjustments
set forth below in this Warrant.
1 EXERCISE OF WARRANT.
1.1 MANNER OF EXERCISE. Subject to Section 6, this Warrant may
be exercised by the holder hereof, in whole or in part, during normal
business hours on any Business Day by surrender of this Warrant to the
Company at the office of the Company maintained pursuant to Section 7.2(a),
accompanied by a subscription in substantially the form annexed hereto duly
executed by such holder and (a) by payment in cash or by certified or
official bank check payable to the order of the Company or by wire transfer
in the amount obtained by multiplying (i) the number of shares of Common
Stock (without giving effect to any adjustment therein) designated in such
subscription by (ii) the then applicable Warrant Price, (b) by instructing
the Company to withhold and cancel a number of shares of Common Stock then
issuable upon exercise of this Warrant with respect to which the excess of
the Market Price of the shares of Common Stock over the Warrant Price for
such canceled shares is at least equal to the Warrant Price for the shares
being purchased or (c) by any combination of the foregoing, whereupon such
holder shall be entitled to receive the number of duly authorized, validly
issued, fully paid and nonassessable shares of Common Stock (or Other
Securities) determined as provided in Section 2.
1.2 WHEN EXERCISE EFFECTIVE. Any exercise of this Warrant
shall be deemed to have been effected immediately prior to the close of
business on the Business Day on which
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this Warrant shall have been surrendered to the Company as provided in Section
1.1, and at such time the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock (or Other Securities)
shall be issuable upon such exercise as provided in Section 1.3 shall be deemed
to have become the holder or holders of record thereof.
1.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable
after the exercise of this Warrant, in whole or in part, and in any event
within three Business Days thereafter, the Company at its expense (including
the payment by it of any applicable issuance taxes) will cause to be issued
in the name of and delivered to the holder hereof or, subject to Section 6,
as such holder (upon payment by such holder of any applicable transfer taxes)
may direct:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such holder shall be entitled upon
such exercise plus, in lieu of any fractional share to which such holder
would otherwise be entitled, cash in an amount equal to the same fraction
of the Market Price per share on the Business Day next preceding the date
of such exercise; and
(b) in case such exercise is in part only, a new Warrant or
Warrants of like tenor, calling in the aggregate on the face or faces
thereof for issuance of the number of shares of Common Stock equal (without
giving effect to any adjustment therein) to the number of such shares
called for on the face of this Warrant minus the number of such shares so
designated by such holder upon such exercise as provided in Section 1.1.
2 CERTAIN ADJUSTMENTS TO WARRANT.
2.1 ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS, SUBDIVISIONS,
COMBINATIONS OR CONSOLIDATION OF COMMON STOCK.
2.1.1. STOCK DIVIDENDS, DISTRIBUTIONS OR SUBDIVISIONS. In the event
the Company shall issue additional shares of Common Stock in a stock
dividend, stock distribution or subdivision, the Warrant Price in effect
immediately prior to such stock dividend, stock distribution or subdivision
shall, concurrently with the effectiveness of such stock dividend, stock
distribution or subdivision, be proportionately decreased.
2.1.2. COMBINATIONS OR CONSOLIDATIONS. In the event the outstanding
shares of Common Stock shall be combined or consolidated, by reclassification
or otherwise, into a lesser number of shares of Common Stock, the Warrant
Price in effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
2.2 ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. Subject to
the provisions of Section 13, in case of any consolidation or merger of the
Company with or into another Company or the conveyance of all, or
substantially all, of the assets of the Company to another corporation, this
Warrant shall thereafter be exercisable to purchase the number of shares of
stock or other securities or property to which a holder of the number of
shares of Common Stock
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of the Company deliverable upon exercise of this Warrant would have been
entitled upon such consolidation, merger or conveyance; and, in any such case,
appropriate adjustment (as determined by the Board of Directors) shall be made
in the application of the provisions herein set forth with respect to the rights
and interest thereafter of the holder of this Warrant to the end that the
provisions set forth in Section 2.1 and this Section 2.2 (including provisions
with respect to changes in and other adjustments of the Warrant Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the exercise of
this Warrant.
3 NO DILUTION OR IMPAIRMENT. The Company (a) will not permit
the par value of any shares of stock receivable upon any exercise of this
Warrant to exceed the amount payable therefor upon such exercise, (b) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock upon each exercise of this Warrant and (c) will not take any action
that results in any adjustment of the Warrant Price if the total number of
shares of Common Stock (or Other Securities) issuable after such action, upon
any exercise of this Warrant, would exceed the total number of shares of
Common Stock (or Other Securities) then authorized by the Company's articles
of incorporation and available for the purpose of issuance upon such exercise.
4 REPORT AS TO ADJUSTMENTS. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable upon
the exercise or conversion of this Warrant, the Company at its expense will
promptly compute such adjustment or readjustment in accordance with the terms of
this Warrant and prepare a report setting forth such adjustment or readjustment
and showing in detail the method of calculation thereof and the facts upon which
such adjustment or readjustment is based, including a statement of the Warrant
Price in effect immediately prior to such issuance or sale and as adjusted and
readjusted (if required by Section 2) on account thereof. The Company will
forthwith (and in any event not later than 20 days following the occurrence of
the event requiring such adjustment) furnish a copy of each such report to each
holder of this Warrant, and will, upon the written request at any time of any
holder of this Warrant, furnish to such holder a like report setting forth the
Warrant Price at the time in effect and showing how it was calculated. The
Company also will keep copies of all such reports at its principal office and at
the office or agency required to be maintained by it pursuant to Section 7.2(a),
and will cause the same to be available for inspection at each such office
during normal business hours by any holder of this Warrant or any prospective
purchaser of this Warrant designated by the holder thereof.
5 RESTRICTIONS ON TRANSFER.
5.1 NOTICE OF PROPOSED TRANSFER; OPINIONS OF COUNSEL. Prior to
any transfer of any Restricted Securities that are not registered pursuant to
an effective registration statement under the Securities Act (other than a
transfer pursuant to Rule 144, Rule 144A or any comparable rule under the
Securities Act), the holder thereof will give written notice to the Company
of such holder's intention to effect such transfer and to comply in all other
respects with this Section 5.1. Each such notice shall (a) describe the
manner and circumstances of the proposed transfer in sufficient detail to
enable counsel to render the opinion referred to below and (b) designate
counsel for the holder giving such notice, which counsel shall be reasonably
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satisfactory to the Company. The holder giving such notice will submit a copy
thereof to the counsel designated in such notice. The following provisions shall
then apply:
(1) if in the written opinion of such counsel for the holder,
obtained at the holder's sole cost and expense and a copy of which shall be
delivered to the Company and shall be reasonably satisfactory in form,
scope and substance to the Company, the proposed transfer may be effected
without registration of such Restricted Securities under the Securities Act
or applicable state securities laws, such holder shall thereupon be
entitled to transfer such Restricted Securities in accordance with the
terms of the notice delivered by such holder to the Company. Each
Restricted Security or certificate, if any, issued upon or in connection
with such transfer shall bear an appropriate restrictive legend unless, in
the opinion of such counsel, such legend is no longer required to insure
compliance with the Securities Act and applicable state securities laws;
and
(2) if the opinion of such counsel rendered pursuant to the
foregoing subsection (1) is not to the effect that the proposed transfer
may legally be effected without registration of such Restricted Securities
under the Securities Act or applicable state securities laws (such opinion
to state the basis of the legal conclusions reached therein), such holder
shall not be entitled to transfer such Restricted Securities (other than a
transfer pursuant to Rule 144, Rule 144A or any comparable rule under the
Securities Act) until receipt by the Company of a further notice and a
further opinion of counsel for such holder to the effect stated in
subsection (1) above or until registration of such Restricted Securities
under the Securities Act and applicable state securities laws has become
effective.
5.2 TERMINATION OF RESTRICTIONS. The restrictions imposed by
this Section 5 upon the transferability of Restricted Securities shall cease
and terminate as to any particular Restricted Securities when, in the opinion
of counsel for the Company, such restrictions are no longer required in order
to ensure compliance with the Securities Act. Whenever such restrictions
shall terminate as to any Restricted Securities, the holder thereof shall be
entitled to receive from the Company, without expense (other than transfer
taxes, if any), new securities of like tenor not bearing an applicable
restrictive legend.
6 RESERVATION OF STOCK, ETC. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the
exercise of this Warrant, the number of shares of Common Stock (or Other
Securities) from time to time issuable upon the exercise of this Warrant. All
such securities shall be duly authorized and, when issued upon such exercise,
shall be validly issued and, in the case of shares, fully paid and
nonassessable with no liability on the part of the holders thereof. In
addition, the Company covenants to use reasonable best efforts to ensure that
any shares of Common Stock issuable upon the exercise of this Warrant are
registered pursuant to an effective registration statement under the
Securities Act. If the shares of Common Stock (or Other Securities) issuable
upon the exercise of this Warrant are not registered pursuant to an effective
registration statement under the Securities Act, the Company shall be under
no obligation to issue such securities unless the holder of this Warrant
presents satisfactory evidence to the Company that (a) such holder is, at the
time of exercise of this Warrant, an "accredited investor," as such term is
defined in Rule 501(a) of Regulation D promulgated under the Securities Act,
or (b) such shares of Common Stock (or Other Securities)
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may be issued to such holder pursuant to another available exemption from the
registration requirements of the Securities Act.
7 OWNERSHIP TRANSFER AND SUBSTITUTION OF WARRANTS.
7.1 OWNERSHIP OF WARRANTS. The Company may treat the Person in
whose name this Warrant is registered on the register kept at the principal
office of the Company as the owner and holder thereof for all purposes,
notwithstanding any notice to the contrary, except that, if and when this
Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer thereof as the owner of such Warrant for all
purposes, notwithstanding any notice to the contrary. This Warrant, if
properly assigned, may be exercised by a new holder without first having a
new Warrant issued.
7.2 OFFICE; TRANSFER AND EXCHANGE. (a) The Company will maintain
its principal office in Reno, Nevada or at such other location as it
designates in a written notice delivered to each registered holder of this
Warrant prior to any change of such location, and all notices, presentations
and demands in respect of this Warrant may be made upon it at such location.
The Company may designate from time to time by notice to the registered
holder of this Warrant an office or agency of the Company where such notices,
presentations and demands in respect of this Warrant may be made in lieu of
the Company's principal office.
(b) Upon any surrender of this Warrant, properly endorsed, for
registration of transfer or for exchange at the principal office of the
Company or the office of the Company maintained pursuant to Section 7.2(a),
the Company at its expense will (subject to compliance with Section 5, if
applicable) execute and deliver to or upon the order of the holder thereof a
new Warrant or Warrants of like tenor, in the name of such holder or as such
holder (upon payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof for the number
of shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
7.3 REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant (which may be a written statement as to such loss, theft, destruction or
mutilation) and (a) in the case of such loss, theft or destruction of any
Warrant, upon delivery of indemnity reasonably satisfactory to the Company in
form and amount, or (b) in the case of any such mutilation, upon surrender of
such Warrant for cancellation at the office of the Company maintained pursuant
to Section 7.2(a) or the principal office of the Company, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
8 DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
any other day on which U.S. Federal Reserve member banks are not open for
business in New York, New York.
"COMMISSION" shall mean the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act.
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"COMPANY" shall have the meaning specified in the opening
paragraphs of this Warrant, including any corporation that shall succeed to
or assume the obligations of the Company hereunder in compliance with Section
2.2.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"MARKET PRICE" shall mean, per share of Common Stock that the
holders of this Warrant shall be entitled to receive upon exercise hereof, on
any date specified herein, (a) the closing price per share of Common Stock on
the Nasdaq SmallCap Market or such other principal automated quotation system
or national securities exchange on which the Common Stock is then quoted or
listed, as reported in THE WALL STREET JOURNAL, or (b) if (a) is
inapplicable, a price per share thereof equal to the fair value thereof
determined in good faith by a resolution of the Board of Directors of the
Company as of a date that is within 15 days of the date as of which the
determination is to be made.
"OTHER SECURITIES" shall mean any stock (other than Common Stock)
and other securities of the Company or any other Person (corporate or
otherwise) that the holder of this Warrant at any time shall be entitled to
receive, or shall have received, upon the exercise of this Warrant, in lieu
of or in addition to Common Stock, or that at any time shall be issuable or
shall have been issued in exchange for or in replacement of Common Stock or
Other Securities pursuant to Section 2 or otherwise.
"PERSON" shall mean a corporation, an association, a partnership,
an organization or business, an individual, a government or political
subdivision thereof or a governmental agency.
"RESTRICTED SECURITIES" shall mean any (a) shares of Common Stock
issuable upon exercise of this Warrant that are not registered pursuant to an
effective registration statement under the Securities Act or (b) Other
Securities issued subsequent to any exercise of this Warrant as a dividend or
other distribution with respect to, or resulting from a subdivision of the
outstanding Other Securities into a greater number of shares by
reclassification, stock splits or otherwise, or in exchange for or in
replacement of Other Securities issued upon such exercise, which are
evidenced by a certificate or certificates bearing an applicable restrictive
legend.
"SECURITIES ACT" shall mean the Securities Act of 1933, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"WARRANT" shall have the meaning specified in the opening
paragraphs of this Warrant.
"WARRANT PRICE" shall have the meaning specified in the opening
paragraphs of this Warrant.
9 REMEDIES. The Company stipulates that the remedies at law
of the holder of this Warrant in the event of any default or threatened
default by the Company in the
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performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that, to the extent permitted by applicable law, such
terms may be specifically enforced by a decree for the specific performance of
any agreement contained herein or by an injunction against a violation of any of
the terms hereof or otherwise.
10 NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained
in this Warrant shall be construed as conferring upon any holder hereof any
rights as a stockholder of the Company or as imposing any obligation on such
holder to purchase any securities or as imposing any liabilities on such
holder as a stockholder of the Company, whether such obligation or
liabilities are asserted by the Company or by creditors of the Company.
11 NOTICES. All notices and other communications provided for
herein shall be delivered or mailed by first class mail, postage prepaid,
addressed (a) if to any holder of this Warrant, at the registered address of
such holder as set forth in the register kept by the Company, or (b) if to
the Company, at its principal office, 6490 South McCarran Boulevard, Suite
D-28, Reno, Nevada 89509, or at the address of such other principal office of
the Company as the Company shall have furnished to each holder of this
Warrant in writing; PROVIDED, HOWEVER, that the exercise of any Warrant shall
be effective in the manner provided in Section 1.
12 MISCELLANEOUS. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver,
discharge or termination is sought. Any provision of this Warrant that shall
be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the Company waives any provision
of law that shall render any provision hereof prohibited or unenforceable in
any respect. This Warrant shall be governed by the substantive laws of the
State of Nevada without reference to the choice of law rules thereof. The
headings of this Warrant are inserted for convenience only and shall not be
deemed to constitute a part hereof.
13 EXPIRATION. Subject to the provisions in Section 1.1 hereof,
the right to exercise this Warrant shall expire at 5:00 p.m., New York City
time, on the date set forth on the first page hereof.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
exercised by its officer thereunto duly authorized as of the date first written
above.
HOMESEEKERS.COM INCORPORATED
By:
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Name:
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Title:
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FORM OF SUBSCRIPTION
THE EXERCISE OF THIS WARRANT IS SUBJECT TO, AND SHALL ONLY BE EFFECTIVE
UPON, SATISFACTION OF ANY CONDITIONS SET FORTH IN SECTION 6 OF THIS WARRANT AND
ANY APPLICABLE REGULATORY FILING REQUIREMENTS SUCH AS THE PREMERGER NOTIFICATION
AND REPORT FORM FILING REQUIREMENTS OF THE HART-SCOTT-RODINO ANTITRUST
IMPROVEMENTS ACT OF 1976 AND REGULATIONS PROMULGATED PURSUANT THERETO.
[To be executed only upon exercise of Warrant]
To HOMESEEKERS.COM, INCORPORATED
The undersigned registered holder of the attached Warrant hereby
irrevocably exercises such Warrant for, and purchases thereunder,
_______ (1) shares of Common Stock of HOMESEEKERS.COM, INCORPORATED, and
herewith makes payment as follows (check as applicable): /_/ certified or
official bank check in the amount of $_________; /_/ wire transfer in the
amount of $_________; and/or /_/ cancellation of _______ shares of Common
Stock otherwise issuable under the Warrant. The undersigned requests that the
certificates for such shares be issued in the name of, and delivered to
____________________________, whose address is _______________________________
______________________________.
Dated:
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(Signature must conform in all respects to name of
holder as specified on the face of Warrant)
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(Street Address)
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(City) (State) (Zip Code)
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(1) Insert here the number of shares called for on the face of this Warrant
(or in the case of a partial exercise, the portion thereof as to which
this Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash that, pursuant to the adjustment
provisions of this Warrant, may be delivered upon exercise. In the case
of a partial exercise, a new Warrant or Warrants will be issued and
delivered, representing the unexercised portion of the Warrant, to the
holder surrendering the Warrant.
