EXHIBIT 3.2
THE SECURITIES
REPRESENTED HEREBY MAY
NOT BE TRANSFERRED
UNLESS (I)
SUCH SECURITIES HAVE BEEN REGISTERED
FOR SALE PURSUANT TO THE SECURITIES ACT OF
1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD
PURSUANT TO RULE 144(K), OR
(III) THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL REASONABLY
SATISFACTORY TO
IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933 OR QUALIFICATION
UNDER APPLICABLE STATE SECURITIES LAWS.
THIS WARRANT
SHALL BE VOID AFTER
5:00 P.M. EASTERN TIME
ON APRIL __,
2010 (the "EXPIRATION DATE").
No. B-____
CATCHER, INC.
WARRANT TO PURCHASE ______ SHARES OF
COMMON STOCK, PAR VALUE $0.001 PER SHARE
For VALUE RECEIVED,
_____________________________ ("Warrantholder"), is entitled
to purchase, subject to the provisions of this
Warrant, from Catcher,
Inc., a
Delaware corporation (the "Company"), at any time not later than 5:00 P.M.,
Eastern time, on the Expiration
Date (as defined
above), at an exercise price
per share equal to $27.78 (the exercise
price in effect being
herein called the
"Warrant Price"), ______ shares ("Warrant Shares") of the Company's Common
Stock, par value $0.001 per share ("Common
Stock"). The Warrant Price shall be
adjusted to $2.00 following the
transactions (the
"Transactions")
contemplated
by the Subscription Agreement (as defined below) and the Memorandum (as such
term is described in the Subscription
Agreement).
The number of Warrant
Shares
purchasable upon exercise of this Warrant
and the Warrant Price shall be subject
to further adjustment from time to time as
described herein.
Section 1.
REGISTRATION. The Company shall maintain books for the transfer
and registration of the Warrant.
Upon the initial
issuance of this Warrant, the
Company shall issue and register the
Warrant in the name of the Warrantholder.
Section 2.
TRANSFERS. A provided
herein, this Warrant
may be transferred
only pursuant to a registration statement filed under the Securities Act of
1933, as amended (the "Securities Act"), or
an exemption from such registration.
Subject to such restrictions, the Company shall transfer this
Warrant from time
to time upon the books to be maintained
by the Company for
that purpose,
upon
surrender thereof for transfer properly endorsed or accompanied
by appropriate
instructions for transfer and such other
documents as may be reasonably required
by the Company, including, if required by the Company, an opinion of
Warrantholders' counsel to the effect that such transfer is exempt from the
registration requirements of the Securities
Act, to establish that such transfer
is being made in accordance with the terms hereof, and a new Warrant shall be
issued to the transferee and the surrendered Warrant shall be canceled by
the
Company.
Section 3.
EXERCISE OF WARRANT.
Subject to the
provisions
hereof, the
Warrantholder may exercise the Warrant in whole
or in part at any time prior to
its expiration upon surrender of
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the Warrant, together with delivery of the duly
executed Warrant
exercise form
attached hereto as Appendix A (the
"Exercise Agreement")
and payment by
cash,
certified check or wire transfer of funds
for the aggregate
Warrant Price for
that number of Warrant Shares then being
purchased, to the Company during normal
business hours on any business day at the
Company's principal
executive offices
(or such other office or agency of the
Company as it may
designate by notice to
the Warrantholder). The Warrant Shares so
purchased shall be deemed to be issued
to the Warrantholder or the Warrantholder's designees, as the record owner of
such shares, as of the close of business on
the date on which this Warrant shall
have been surrendered (or evidence of loss, theft or destruction thereof and
security or indemnity satisfactory to the
Company), the Warrant Price shall have
been paid and the completed Exercise Agreement shall have been delivered.
Certificates for the Warrant Shares so purchased, representing the aggregate
number of shares specified in the Exercise
Agreement, shall be
delivered to the
Warrantholder within reasonable time, not exceeding five (5) business days,
after this Warrant shall have been so
exercised. The
certificates so
delivered
shall be in such denominations as may be requested by the Warrantholder and
shall be registered in the name of the
Warrantholder or such other name as shall
be designated by the Warrantholder. If this Warrant shall have been
exercised
only in part, then, unless this Warrant has expired,
the Company shall, at
its
expense, at the time of delivery of such certificates, deliver to the
Warrantholder a new Warrant representing the number of shares with respect
to
which the Warrant shall not then have been
exercised. As used herein, "business
day" means a day, other than a Saturday or Sunday, on which banks in New York
City are open for the general transaction of business. Each exercise hereof
shall constitute the re-affirmation by the Warrantholder that the
representations and warranties contained in Article 1 of the Subscription
Agreement (the "Subscription Agreement") dated April __, 2005 between the
Company and the Subscribers thereto are true and correct in all material
respects with respect to the Warrantholder
as of the time of such exercise.
Section 4.
COMPLIANCE WITH THE SECURITIES ACT OF 1933. Except as provided
in the Subscription Agreement, the Company
may cause the legend set forth on the
first page of this Warrant to be set forth
on each Warrant or similar legend on
any security issued or issuable upon exercise
of this Warrant,
unless counsel
for the Company is of the opinion as to
any such security
that such legend
is
unnecessary.
Section 5.
PAYMENT OF TAXES. The
Company will pay any
documentary stamp
taxes attributable to the initial
issuance of Warrant
Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may
be payable in respect of any transfer
involved in the issuance or delivery of any
certificates for Warrant Shares in a
name other than that of the Warrantholder in respect of which such
shares are
issued, and in such case, the Company
shall not be required to issue or deliver
any certificate for Warrant Shares or any Warrant
until the person
requesting
the same has paid to the Company the amount of such tax or
has established
to
the Company's reasonable satisfaction that such tax has been paid. The
Warrantholder shall be responsible for
income taxes due under federal, state or
other law, if any such tax is due.
Section 6.
MUTILATED OR MISSING
WARRANTS. In case this Warrant shall be
mutilated, lost, stolen, or destroyed,
the Company shall
issue in exchange and
substitution of and upon cancellation of the mutilated
Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant
Shares, but only
upon receipt of evidence reasonably satisfactory of the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
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Section 7.
RESERVATION OF COMMON
STOCK. The Company hereby covenants that
within forty five (45) days of the date of
this Warrant, there will be reserved,
and the Company shall at all applicable times thereafter keep reserved until
issued (if necessary) as contemplated by this Section 7, out of the
authorized
and unissued shares of Common Stock, sufficient shares to provide for the
exercise of the rights of purchase represented by this Warrant. The
Warrantholder shall not exercise this
Warrant within such forty-five day period.
The Company agrees that all Warrant Shares issued upon due exercise of the
Warrant shall be, at the time of delivery
of the certificates
for such Warrant
Shares, duly authorized, validly issues,
fully paid and non-assessable shares of
Common Stock of the Company.
Section 8.
ADJUSTMENTS.
Subject and pursuant
to the provisions
of this
Section 8, unless waived in a particular
case by the Warrantholder, the Warrant
Price and number of Warrant Shares subject to this Warrant shall be
subject to
adjustment from time to time as set forth
hereinafter.
(a) If the Company
shall, at any time or
from time to time while
this Warrant is outstanding, pay a dividend
or make a distribution on its Common
Stock in shares of Common Stock, subdivide its outstanding shares of Common
Stock into a greater number of shares or combine its outstanding shares of
Common Stock into a smaller number of
shares or issue by reclassification of its
outstanding shares of Common Stock any shares
of its capital stock
(including
any such reclassification in connection
with a consolidation or merger in which
the Company is continuing the corporati
