Exhibit 4.2
NEITHER THIS SECURITY NOR THE
SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE
OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS
SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN SECURED BY SUCH SECURITIES.
ENABLE HOLDINGS, INC.
COMMON STOCK PURCHASE WARRANT
THIS COMMON STOCK PURCHASE WARRANT
(the “ Warrant ”) certifies that, for value
received,
(the “ Holder ”) is entitled, upon the terms and
the conditions hereinafter set forth, at any time on or after the
date hereof (the “ Initial Exercise Date ”) and
on or prior to the close of business on the ten year anniversary of
the date hereof (the “ Termination Date ”) but
not thereafter, to subscribe for and purchase Enable
Holdings, Inc., a Delaware corporation (the “
Company ”), up to
shares
(the “ Warrant Shares ”) of Common Stock.
The purchase price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price, as defined in
Section 1(b).
Section 1
.
Exercise .
(a)
Exercise of Warrant . Exercise of the purchase rights
represented by this Warrant may be made, in whole or in part, at
any time or times on or after the date hereof and on or before the
Termination Date by delivery to the Company of a duly executed
facsimile copy of the Notice of Exercise Form annexed hereto
(or such other office or agency of the Company as it may designate
by notice in writing to the registered Holder at the address of the
Holder appearing on the books of the Company); and, within five
business days of the date said Notice of Exercise is delivered to
the Company, the Company shall have received payment of the
aggregate Exercise Price of the shares thereby purchased by wire
transfer or cashier’s check drawn on a United States
bank. Notwithstanding anything herein to the contrary, the
Holder shall not be required to physically surrender this Warrant
to the Company until the Holder has purchased all of
the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which
case, the Holder shall surrender this Warrant to the Company for
cancellation within five business days of the date the final Notice
of Exercise is delivered to the Company. Partial exercises of
this Warrant resulting in purchases of a portion of the total
number of Warrant Shares available hereunder shall have the effect
of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant
Shares purchased. The Holder and the Company shall maintain
records showing the number of Warrant Shares purchased and the date
of such purchases. The Company shall deliver any objection to
any Notice of Exercise Form within one business day of receipt
of such notice. In the event of any dispute or discrepancy,
the records of the Holder shall be controlling and determinative in
the absence of manifest error. The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason
of the provisions of this paragraph, following the purchase of a
portion of the Warrant Shares hereunder, the number of Warrant
Shares available for purchase hereunder at any given time may be
less than the amount stated on the face hereof.
(b) Exercise Price
. The exercise price per share of the Common Stock under this
Warrant shall be $0.25 , subject to adjustment hereunder
(the “ Exercise Price ”).
(c) Cashless Exercise
. At any time after the Initial Exercise Date this Warrant
may also be exercised by means of a “cashless exercise”
in which the Holder shall be entitled to receive a certificate for
the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) times (X)] by (A), where:
(A) = the closing price on the
business day immediately preceding the date of such
election;
(B) = the Exercise Price
of this Warrant, as adjusted; and
(X) = the number of Warrant
Shares issuable upon exercise of this Warrant in accordance with
the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.
(d) Mechanics of
Exercise .
(i) Delivery of
Certificates Upon Exercise . Certificates for shares
purchased hereunder shall be transmitted by the transfer agent of
the Company to the Holder by crediting the account of the
Holder’s prime broker with the Depository Trust Company
through its Deposit Withdrawal Agent Commission (“
DWAC ”) system if the Company is a participant in such
system and the shares are eligible for resale without volume or
manner-of-sale limitations pursuant to Rule 144, and otherwise
by physical delivery to the address specified by the Holder in the
Notice of Exercise within five business days from the delivery to
the Company of the Notice of Exercise Form, surrender of this
Warrant (if required) and payment of the aggregate Exercise Price
as set forth above (“ Warrant Share Delivery Date
”). This Warrant shall be deemed to have been
exercised
on the date the Exercise Price is
received by the Company. The Warrant Shares shall be deemed
to have been issued, and Holder or any other person so designated
to be named therein shall be deemed to have become a holder of
record of such shares for all purposes, as of the date the Warrant
has been exercised by payment to the Company of the Exercise Price
(or by cashless exercise, if permitted) and all taxes required to
be paid by the Holder, if any, pursuant to
Section 2(e)(vi) prior to the issuance of such shares,
have been paid.
(ii) Delivery of New
Warrants Upon Exercise . If this Warrant shall have been
exercised in part, the Company shall, at the request of a Holder
and upon surrender of this Warrant certificate, at the time of
delivery of the certificate or certificates representing Warrant
Shares, deliver to Holder a new Warrant evidencing the rights of
Holder to purchase the unpurchased Warrant Shares called for by
this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
(iv) No Fractional
Shares or Scrip . No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of
this Warrant. As to any fraction of a share which Holder
would otherwise be entitled to purchase upon such exercise, the
Company shall at its election, either pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction
multiplied by the Exercise Price or round up to the next whole
share.
(v) Charges, Taxes
and Expenses . Issuance of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance
of such certificate, all of which taxes and expenses shall be paid
by the Company, and such certificates shall be issued in the name
of the Holder or in such name or names as may be directed by the
Holder; provided , however , that in the event
certificates for Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached
hereto duly executed by the Holder; and the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse
it for any transfer tax incidental thereto.
(vii) Closing of
Books . The Company will not close its stockholder books
or records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof.
Section 3
.
Certain Adjustments .
(a) Stock
Dividends and Splits . If the Company, at any time while this
Warrant is outstanding: (A) pays a stock dividend or otherwise
make a distribution or distributions on shares of its Common Stock
or any other equity or equity equivalent securities payable in
shares of Common Stock (which, for avoidance of doubt, shall not
include any shares of Common Stock issued by the Company upon
exercise of this Warrant), (B) subdivides outstanding shares
of Common Stock into a larger number of shares, (C) combines
(including by way of reverse stock split) outstanding shares of
Common Stock into a
smaller number of shares, or
(D) issues by reclassification of shares of the Common Stock
any shares of capital stock of the Company, then in each case the
Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event and the
number of shares issuable upon exercise of this Warrant shall be
proportionately adjusted such that the aggregate Exercise Price of
this Warrant shall remain unchanged. Any adjustment made
pursuant to this Section 3(a) shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and
shall become effective immediately after the effective date in the
case of a subdivision, combination or reclassification.
(b) Subsequent Equity
Sales . If the Company or any Subsidiary thereof, as
applicable, at any time following the Initial Exercise Date, shall
sell or grant any option to purchase, or sell or grant any right to
reprice, or otherwise dispose of or issue (or announce any offer,
sale, grant or any option to purchase or other disposition) any
Common Stock or Common Stock Equivalents entitling any Person to
acquire shares of Common Stock, at an effective price per share
less than the then Exercise Price (such lower price, the “
Base Share Price ” and such issuances collectively, a
“ Dilutive Issuance ”), then the Exercise Price
shall be reduced and only reduced to equal the Base Share Price and
the number of Warrant Shares issuable hereunder shall be increased
such that the aggregate Exercise Price payable hereunder, after
taking into account the decrease in the Exercise Price, shall be
equal to the aggregate Exercise Price prior to such
adjustment. Such adjustment shall be made whenever such
Common Stock or Common Stock Equivalents are issued.
(c) Subsequent Rights
Offerings . If the Company or any subsidiary thereof, as
applicable, at any time following the Initial Exercise Date shall
issue rights, options or warrants to all holders of Common Stock
(and not to Holders) entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the closing
price at the record date mentioned below, then the Exercise Price
shall be multiplied by a fraction, of which the denominator shall
be the number of shares of the Common Stock outstanding on the date
of issuance of such rights or warrants plus the number of
additional shares of Common Stock offered for subscription or
purchase, and of which the numerator shall be the number of shares
of the Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares which the aggregate
offering price of the total number of shares so offered (assuming
receipt by the Company in full of all consideration payable upon
exercise of such rights, options or warrants) would purchase at
such closing price. Such adjustment shall be made whenever
such rights or warrants are issued, and shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such rights, options or
warrants.
(d) Pro Rata
Distributions . If the Company, at any time while this
Warrant is outstanding, shall distribute to all holders of Common
Stock (and not to Holders of the Warrants) evidences of its
indebtedness or assets (including cash and cash dividends)
or
rights or warrants to subscribe for
or purchase any security other than the Common Stock (which shall
be subject to Section 3(b)), t
