Exhibit 4.2
THIS WARRANT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) NOR UNDER
ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR
OTHERWISE TRANSFERRED EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR AN
EXEMPTION THEREFROM.
AMENDED AND RESTATED WARRANT TO
PURCHASE COMMON STOCK
OF
FNDS3000 CORP.
This is to Certify That, FOR VALUE
RECEIVED, Sherington Holdings, LLC or its assigns (collectively,
“ Holder ”), is entitled to purchase, any time
and from time to time during the Exercise Period (as defined in
Section (a) below) and subject to the provisions of this
warrant (the “ Amended and Restated Warrant ”),
from FNDS3000 Corp., a Delaware corporation (the “
Company ”), an aggregate of 12,462,185 fully paid,
validly issued and nonassessable shares (the “ Warrant
Shares ”) of common stock of the Company (the “
Common Stock ”), at a price equal to Thirty-Five Cents
($0.35) per share. Notwithstanding the foregoing, this Amended and
Restated Warrant shall not be exercisable by Holder unless and
until there has occurred a full or partial exercise of (i) any
of an aggregate of 10,387,202 warrants for Common Stock that the
Company hereby represents and warrants are outstanding as of
July 1, 2009 (the “ Outstanding Warrants
”), or (ii) any of an aggregate of 7,000,159 stock
options to purchase Common Stock that the Company hereby represents
and warrants are outstanding as of July 1, 2009 (the “
Outstanding Options ”), or (iii) any other
options, warrants or other securities convertible into Common Stock
not included in (i) or (ii) above but that are
outstanding as of July 1, 2009 (but excluding the warrants
issued in connection with the $1,000,000 private placement of
Common Stock of even date herewith and any convertible notes
outstanding and issued to Investor) (if any, the “ Other
Outstanding Convertible Securities ”) (such Outstanding
Warrants and Outstanding Options and Other Outstanding Securities
having been issued to persons not affiliated with Holder).
Furthermore, any exercise of this Amended and Restated Warrant by
Holder may be for up to (and not exceeding) a number of Warrant
Shares such that, giving effect to such exercise, there would
result a fraction of 0.4175, the numerator of which being the
aggregate number of Warrant Shares so exercised under this Warrant
through such time, and the denominator of which being the sum of
(i) the aggregate of all Warrant Shares so exercised under
this Warrant through such time, plus (ii) the aggregate number
of shares of Common Stock for which Outstanding Warrants have been
exercised through such time, plus (iii) the aggregate number
of shares of Common Stock for which Outstanding Options have been
exercised through such time, plus (iv) the aggregate number of
shares of Common Stock for which Other Outstanding Convertible
Securities have been exercised through such time; i.e., Holder
shall have the ability, upon any exercise of this Warrant, to
maintain up to 41.75% of all Common Stock issued pursuant to the
exercise of Outstanding Options, Outstanding Warrants, Other
Outstanding Convertible Securities and this Warrant, in the
aggregate through such date of, and giving effect to, such
exercise. The Company shall provide written notice promptly, and in
any event within five (5) days, of any full or partial
exercise of the Outstanding Warrants or Outstanding Options or
Other Outstanding Convertible Securities, which notice shall
provide Holder with the number of shares of Common Stock for which
Outstanding Warrants or Outstanding Options or Other Outstanding
Convertible Securities are exercised, as the case may be, and the
identity of the persons who have so exercised.
The number of shares of Common Stock
to be received upon exercise of this Amended and Restated Warrant
and the price to be paid for each share of Common Stock may be
adjusted from time to time as hereinafter set forth. The exercise
price of a share of Common Stock in effect at any time and as
adjusted from time to time is hereinafter sometimes referred to as
the “ Exercise Price ”.
This Amended and Restated Warrant
amends and restates it is entirety that certain warrant between the
parties dated January 6, 2009 (the “ Existing
Warrant ”), it being the intention of the parties that
all of the terms of the Existing Warrant, as amended hereby, are
restated in and are replaced by the terms of this Amended and
Restated Warrant, but this Amended and Restated Warrant shall not
be deemed or construed to have been issued in payment,
satisfaction, cancellation or novation of the Existing
Warrant.
(a) EXERCISE OF WARRANT. This
Amended and Restated Warrant may be exercised in whole or in part
at any time and from time to time beginning on July 1, 2009
(the “ Issue Date ”) through December 31,
2013 (the “ Exercise Period ”). This Amended and
Restated Warrant may be exercised, in whole or in part, by written
notice of such exercise (each, an “ Exercise Notice
”) to the Company at its principal office with the Purchase
Form annexed hereto duly executed and accompanied by payment of the
Exercise Price for the number of Warrant Shares specified in such
form. As soon as practicable after each such exercise of the
warrants, the Company shall issue and deliver to the Holder a
certificate or certificates for the Warrant Shares issuable upon
such exercise, registered in the name of the Holder or its
designee. Upon receipt by the Company of an Exercise Notice and the
appropriate aggregate Exercise Price for the applicable amount of
Common Stock at its office in proper form for exercise, the Holder
shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not
then be physically delivered to the Holder. On or before the first
business day following the date on which the Company has received
the Exercise Notice and the Exercise Price, the Company shall
transmit by facsimile to Holder (i) an acknowledgment of
confirmation of receipt of the Exercise Notice and (ii) a
capitalization table showing in detail the names, addresses,
ownership, voting or other interests of all outstanding equity
securities of the Company and instruments convertible into Common
Stock and any other equity securities of the Company, and the
calculation of the number of Warrant Shares to be issued pursuant
to this Amended and Restated Warrant.
(b) RESERVATION OF SHARES. The
Company covenants and agrees that all shares of Common Stock which
may be issued upon exercise of this Amended and Restated Warrant
will, upon issuance, be duly authorized and validly issued, fully
paid and nonassessable, and no personal liability will attach to
the holder thereof. The Company shall at all times reserve solely
for issuance and/or delivery upon exercise of this Amended and
Restated Warrant such number of shares of its Common Stock as shall
be required for issuance and delivery upon exercise of this Amended
and Restated Warrant; and if at any time the number of authorized
but unissued shares of Common Stock shall be insufficient to effect
the issuance of the Warrant Shares, the Company shall take such
corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such
purpose.
(c) FRACTIONAL SHARES. No fractional
shares or script representing fractional shares shall be issued
upon the exercise of this Amended and Restated Warrant, but rather
the number of shares of Common Stock to be issued shall be rounded
up to the nearest whole number.
(d) EXCHANGE, TRANSFER, ASSIGNMENT
OR LOSS OF WARRANT. This Amended and Restated Warrant is assignable
(in whole, but not in part), at the option of the Holder. Upon
surrender of this Amended and Restated Warrant to the Company at
its principal office, with the Assignment Form annexed hereto duly
executed, 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 Amended and Restated
Warrant shall promptly be canceled. The term “ Amended and
Restated Warrant ” as used herein includes any Warrants
into which this Warrant may be divided or exchanged. Upon receipt
by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Amended and Restated Warrant, and
(in the case of loss, theft or destruction) receipt by the Company
of indemnification reasonably satisfactory to it, and upon
surrender and cancellation of this Amended and Restated Warrant, if
mutilated, the Company will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered
shall constitute an additional contractual obligation on the part
of the Company, whether or not this Warrant so lost, stolen,
destroyed, or mutilated shall be at any time enforceable by
anyone.
(e) RIGHTS OF THE HOLDER. The Holder
shall not, by virtue hereof, be entitled to any rights of a
stockholder in the Company in excess of those already vested in
Holder as of the date hereof, either at law or equity.
(f) ANTI-DILUTION PROVISIONS. The
number of shares of Common Stock purchasable upon the exercise of
this Amended and Restated Warrant shall be subject to adjustment
from time to time thereafter upon the happening of certain events
as follows:
(i) Dividends, Splits,
Combinations, Reclassifications . In the event the Company
shall hereafter (A) pay a stock dividend or make a stock
distribution of shares of Common Stock with respect to the Common
Stock, (B) subdivide its outstanding Common Stock into a
greater amount of Common Stock, (C) combine its outstanding
Common Stock into a smaller amount of Common Stock, or
(D) issue by reclassification of its Common Stock any other
security of the Company, the Exercise Price in effect immediately
prior to such action shall be adjusted so that Holder shall be
entitled to receive the amount of Common Stock or other capital
stock of the Company it would have owned immediately following such
action had this Amended and Restated Warrant or any remaining
portion hereof been converted in full immediately prior thereto.
All adjustments made pursuant to this Section (f)(i) 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 reclassification. If, as a result of an adjustment made pursuant
to this Section (f)(i), Holder shall become entitled to receive the
Warrant Shares and other securities of the Company, the Board of
Directors of the Company shall reasonably determine the allocation
of the adjusted Exercise Price between or among the Warrant Shares
and such other securities. If the amount of any single adjustment
of the Exercise Price required pursuant to this Section (f)(i)
would be less than one cent ($.01) at the time such adjustment is
otherwise so required to be made, such amount shall be carried
forward and adjustment with respect thereto made at the time of and
together with any subsequent adjustment which, together with such
amount and any other amount or amounts so carried forward, shall
aggregate at least one cent ($.01) when the Exercise Price is
subsequently adjusted.
(ii) Sale of Shares of Common
Stock Below Exercise Price . If at any time or from time to
time after the date this Amended and Restated Warrant is issued,
the Company issues or sells, or is deemed by the express provisions
of this Section (f)(ii) to have issued or sold, Additional Shares
of Common Stock (as hereinafter defined), other than as a dividend
or other distribution on any class of stock as provided in Section
(f)(i) above, and other than a subdivision or combination of shares
of Common Stock as provided in Section (f)(i) above, for an
Effective Price (as hereinafter defined) less than the Exercise
Price (subject to adjustment for any events after the Issue Date
described in Section (f)(i)), then the then existing Exercise Price
shall be reduced, as of the opening of business on the date of such
issue or sale, to a price equal to the Effective Price.
(A) Determination of
Consideration . For the purpose of making any adjustment
required under this Section (f)(ii), the consideration received by
the Company for any issue or sale of securities shall
(1)&n
