EXHIBIT 4.27
NEITHER THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES ISSUABLE UPON
EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (B) IF REASONABLY
REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT. THESE SECURITIES AND THE SECURITIES
ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH
SECURITIES.
COMMUNICATION INTELLIGENCE
CORPORATION
[FORM OF] ADDITIONAL COMMON STOCK
PURCHASE WARRANT
Warrant No.
_____________ Dated: ____________
Communication Intelligence Corporation, a
Delaware corporation (the “ Company ”), hereby
certifies that, for value received, _____________________, or its
registered assigns (the “ Holder ”), is entitled
to purchase from the Company up to a total of ________________
shares of common stock, $0.01 par value per share (the “
Common Stock ”), of the Company (each such share, a
“ Warrant Share ” and all such shares, the
“ Warrant Shares ”) at an exercise price equal
to $0.06 (as adjusted from time to time as provided in Section
9 , the “ Exercise Price ”), at any time
from the date hereof and through and including June 30, 2012 (the
“ Expiration Date ”), and subject to the
following terms and conditions. This Warrant (this
“ Warrant ”) is one of a series of similar
warrants (collectively, the “ Warrants ”) issued
pursuant to that certain Credit Agreement, dated as of June 5,
2008, by and among the Company, the Lenders party thereto and SG
Phoenix LLC, as Collateral Agent, as amended by Amendment No. 1 to
the Credit Agreement, dated as of May 28, 2009 (collectively, as
the same may be further amended, modified, supplemented or amended
and restated from time to time, the “ Credit Agreement
”).
. In addition to the terms defined
elsewhere in this Warrant, capitalized terms that are not otherwise
defined herein have the meanings given to such terms in the Credit
Agreement.
2. Registration of
Warrant
. The Company shall register this
Warrant, upon records to be maintained by the Company for that
purpose (the “ Warrant Register ”), in the name
of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as
the absolute owner hereof for the purpose of any exercise hereof or
any distribution to the Holder, and for all other purposes, absent
actual notice to the contrary.
3. Registration of
Transfers
. The Company shall register the
transfer of any portion of this Warrant in the Warrant Register,
upon surrender of this Warrant, with the Form of Assignment
attached hereto as Annex A duly completed and signed,
to the transfer agent or to the Company at its address specified
herein. Upon any such registration or transfer, a new
warrant to purchase Common Stock, in substantially the form of this
Warrant (any such new warrant, a “ New Warrant
”), evidencing the portion of this Warrant so transferred
shall be issued to the transferee and a New Warrant evidencing the
remaining portion of
this Warrant not so transferred, if
any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be
deemed the acceptance by such transferee of all of the rights and
obligations of a holder of a Warrant.
4. Exercise and
Duration of Warrants .
(a) This Warrant shall
be exercisable by the registered Holder at any time from the date
hereof and through and including the Expiration Date. At
6:30 p.m. New York City time on the Expiration Date, the portion of
this Warrant not exercised prior thereto shall be and become void
and of no value; provided that , if on the Expiration Date,
there is no effective Registration Statement covering the resale of
the Warrant Shares, then this Warrant shall be deemed to have been
exercised in full (to the extent not previously exercised) on a
“cashless exercise” basis at 6:30 p.m. New York City
time on the Expiration Date. The Company may not call or
redeem any portion of this Warrant without the prior written
consent of the affected Holder.
5. Delivery of
Warrant Shares .
(a) Other than as may
be required in connection with registration of a transfer of this
Warrant, the Holder shall not be required to physically surrender
this Warrant unless this Warrant is being exercised in
full. To effect exercises hereunder, the Holder shall
duly execute and deliver to the Company at its address for notice
set forth herein (or to such other address as the Company may
designate by notice in writing to the Holder), an Exercise Notice
in the form of Annex B hereto, along with the Warrant Share
Exercise Log in the form of Annex C hereto, and shall pay
the Exercise Price, if applicable, multiplied by the number of
Warrant Shares that the Holder intends to purchase
hereunder. The Company shall promptly (but in no event
later than three Trading Days after the Date of Exercise (as
defined herein)) issue or cause to be issued and cause to be
delivered to or upon the written order of the Holder a certificate
for the Warrant Shares issuable upon such exercise. The
Company shall, upon request of the Holder, and subsequent to the
date on which a Registration Statement covering the resale of the
Warrant Shares has been declared effective by the SEC, use
commercially reasonable efforts to deliver Warrant Shares hereunder
electronically through the Depository Trust Corporation or another
established clearing corporation performing similar
functions. A “ Date of Exercise ” for
purposes of this Warrant, means the date on which the Holder shall
have delivered to the Company: (i) the Exercise Notice (with the
Warrant Exercise Log attached to it), appropriately completed and
duly signed and (ii) if such Holder is not utilizing the cashless
exercise provisions set forth in this Warrant, payment of the
Exercise Price for the number of Warrant Shares so indicated by the
Holder to be purchased. If by the third Trading Day
after the Date of Exercise, the Company fails to deliver the
required number of Warrant Shares, the Holder will have the right
to rescind the exercise. If by the third Trading Day
after a Date of Exercise, the Company fails to deliver the required
number of Warrant Shares, and if after such third Trading Day and
prior to the receipt of such Warrant Shares, the Holder purchases
(in an open market transaction or otherwise) shares of Common Stock
to
deliver in satisfaction of a sale by
the Holder of Warrant Shares which the Holder anticipated receiving
upon such exercise (a “ Buy In ”), then the
Company shall (i) pay in cash to the Holder the amount by which (x)
the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (A) the number of
Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue by (B) the closing
bid price of the Common Stock on the exercise date and (ii) at the
option of the Holder, either reinstate the portion of the Warrant
and equivalent number of Warrant Shares for which such exercise was
not honored or deliver to the Holder the number of shares of
Warrant Shares that would have been issued had the Company timely
complied with its exercise and delivery obligations
hereunder. The Holder shall provide the Company written
notice indicating the amounts payable to the Holder in respect of
the Buy In.
(b) In the event that
a Holder surrenders this Warrant following one or more partial
exercises, the Company shall, provided that the applicable
number of Warrant Shares related to each such partial exercise has
been delivered pursuant to Section 5(a) , cancel such
surrendered Warrant and issue or cause to be issued to the Holder,
at the Company’s expense, a New Warrant evidencing the right
to purchase the remaining number of Warrant Shares.
(c) The
Company’s obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the
same, any waiver or consent with respect to any provision hereof,
the recovery of any judgment against any Person or any action to
enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged breach by the
Holder or any other Person of any obligation to the Company or any
violation or alleged violation of law by the Holder or any other
Person, and irrespective of any other circumstance which might
otherwise limit such obligation of the Company to the Holder in
connection with the issuance of Warrant Shares. Nothing
herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms
hereof.
6. Charges, Taxes
and Expenses
. Issuance and delivery of
certificates for Warrant Shares upon exercise of this Warrant shall
be made without charge to the Holder for any issue or transfer tax,
withholding tax, transfer agent fee or other incidental tax or
expense in respect of the issuance of such certificates, all of
which taxes and expenses shall be paid by the Company; 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
registration of any certificates for Warrant Shares or Warrants in
a name other than that of the Holder. The Holder shall
be responsible for all other tax liability that may arise as a
result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
7. Replacement of
Warrant
. If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation hereof, or
in lieu of and substitution for this Warrant, a New Warrant, but
only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and
reasonable indemnity (which shall not include a surety bond), if
requested. Applicants for a
New Warrant under such circumstances
shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the
Company may prescribe. If a New Warrant is requested as
a result of a mutilation of this Warrant, then the Holder shall
deliver such mutilated Warrant to the Company as a condition
precedent to the Company’s obligation to issue the New
Warrant.
8. Reservation of
Warrant Shares .
(a) The Company
covenants that it will at all times reserve and keep available out
of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares that are then issuable and
deliverable upon the exercise of this entire Warrant, free from
preemptive rights or any other contingent purchase rights of
persons other than the Holder (after giving effect to the
adjustments and restrictions of Section 9 , if
any). The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of
the applicable Exercise Price in accordance with the terms hereof,
be duly and validly authorized, issued and fully paid and
non-assessable. The Company will take all such action as
may be necessary to assure that such shares of Common Stock may be
issued as provided herein without violation of any applicable law
or regulation, or of any requirements of any securities exchange or
automated quotation system upon which the Common Stock may be
listed. The Company will notify its transfer agent for
the Common Stock of the reservation of shares of Common Stock as
required under this provision.
(b) Insufficient
Authorized Shares . If at any time after June 30,
2009, and prior to the Expiration Date, the Company does not have a
sufficient number of authorized and unreserved shares of Common
Stock to satisfy its obligation to reserve for issuance upon
exercise of this Warrant and Warrants of like tenor at least a
number of shares of Common Stock as shall from time to time be
necessary to effect the exercise of all of the Warrants of like
tenor then outstanding (an “ Authorized Share Failure
”), then the Company shall promptly take all action necessary
to increase the Company's authorized shares of Common Stock to an
amount sufficient to allow the Company to reserve the required
amount for the Warrants of like tenor then
outstanding. Without limiting the generality of the
foregoing sentence, as soon as practicable after the date of the
occurrence of an Authorized Share Failure, but in no event later
than ninety (90) days after the occurrence of such Authorized Share
Failure, the Company shall hold a meeting of its stockholders for
the approval of an increase in the number of authorized shares of
Common Stock. In connection with such meeting, the
Company shall provide each stockholder with a proxy statement and
shall use commercially reasonable efforts to solicit its
stockholders' approval of such increase in authorized shares of
Common Stock and to cause its board of directors to recommend to
the stockholders that they approve such proposal.
. The Exercise Price and number of
Warrant Shares issuable upon exercise of this Warrant are subject
to adjustment from time to time as set forth in this Section
9.
(a) Stock Dividends
and Splits . If at any time while this Warrant is
outstanding, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in shares of Common Stock or
by a split-up of shares of Common Stock or other similar event,
then, on the effective
date thereof, the number of shares
issuable on exercise of each Warrant shall be increased in
proportion to such increase in outstanding shares and the then
applicable Exercise Price shall be correspondingly decreased, each
in accordance with Section 9(h) .
(b) Change in
Option Price or Conversion Rate . If, at any time
after the date hereof, (1) the purchase price or exercise price
provided for in any warrants or other rights to subscribe for or to
purchase, or any options for the purchase of, Common Stock or any
stock or security convertible into or exchangeable for Common Stock
that are outstanding as of the date hereof (such warrants, rights
or options being called “ Options ” and such
convertible or exchangeable stock or securities being called
“ Convertible Securities ”) issued by the
Corporation is reduced, (2) the number of shares into which the
Option is exercisable is increased, (3) the additional
consideration, if any, payable upon the conversion or exchange of
any Convertible Securities is increased (if such consideration is
payable to the holder of the Convertible Securities) or decreased
(if such consideration is payable by the holder of the Convertible
Securities), or (4) the rate at which Convertible Securities are
convertible into or exchangeable for Common Stock is increased or
the conversion price is decreased (including, but not limited to,
such increases or decreases, as applicable, under or by reason of
provisions designed to protect against dilution), the Exercise
Price in effect at the time of such event shall forthwith be
readjusted to the Exercise Price which would have been in effect at
such time had such Options or Convertible Securities still
outstanding pr
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