EXHIBIT 4.5
NEITHER THESE SECURITIES NOR THE SECURITIES INTO
WHICH THESE SECURITIES ARE 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
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 THE
REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
SONIC FOUNDRY,
INC.
WARRANT
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Warrant No.
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Dated:
, 2005
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Sonic Foundry, Inc., a Maryland
corporation (the “Company”), hereby certifies that, for
value received,
, or its registered assigns (“Holder”), is entitled,
subject to the terms set forth below, to purchase from the Company
up to a total of .2 shares for each share of common stock
purchased, $.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 [150% of the price paid for each
share of common stock purchased] (as adjusted from time to time as
provided in Section 9, the “Exercise Price”), at
any time and from time to time from and after the date hereof and
through and including the date Five years following the date above
(the “Expiration Date”), and subject to the following
terms and conditions:
1. 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, and the Company shall not be affected by notice to
the contrary.
2. Registration of Transfers and
Exchanges .
(a) 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 duly completed and signed, to the Transfer Agent or
to the Company at the office specified in or pursuant to
Section 3(b). 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
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Warrant by the transferee thereof
shall be deemed the acceptance of such transferee of all of the
rights and obligations of a holder of a Warrant.
(b) This Warrant is exchangeable,
upon the surrender hereof by the Holder to the office of the
Company specified in or pursuant to Section 3(b) for one or
more New Warrants, evidencing in the aggregate the right to
purchase the number of Warrant Shares which may then be purchased
hereunder. Any such New Warrant will be dated the date of such
exchange.
3. Duration and Exercise of
Warrants .
(a) This Warrant shall be
exercisable by the registered Holder on any business day before
8:00 P.M., New York City time, at any time and from time to time on
or after the date hereof to and including the Expiration Date. At
8:00 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. Prior to the Expiration Date, the Company may
not call or otherwise redeem this Warrant without the prior written
consent of the Holder.
(b) Subject to Sections 2(b), 6 and
10, upon surrender of this Warrant, with the Form of Election to
Purchase attached hereto duly completed and signed, to the Company
at its address for notice set forth in Section 13 and upon
payment of the Exercise Price multiplied by the number of Warrant
Shares that the Holder intends to purchase hereunder, in the manner
provided hereunder, all as specified by the Holder in the Form of
Election to Purchase, the Company shall promptly (but in no event
later than 3 business 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 and in such name or names
as the Holder may designate, a certificate for the Warrant Shares
issuable upon such exercise, free of restrictive legends except
(i) either in the event that a registration statement covering
the resale of the Warrant Shares and naming the Holder as a selling
stockholder thereunder is not then effective or the Warrant Shares
are not freely transferable without volume restrictions pursuant to
Rule 144(k) promulgated under the Securities Act of 1933, as
amended (the “Securities Act”), or (ii) if this
Warrant shall have been issued pursuant to a written agreement
between the original Holder and the Company, as required by such
agreement. Any person so designated by the Holder to receive
Warrant Shares shall be deemed to have become holder of record of
such Warrant Shares as of the Date of Exercise of this
Warrant.
(c) A “Date of Exercise”
means the date on which the Company shall have received
(i) this Warrant (or any New Warrant, as applicable), with the
Form of Election to Purchase attached hereto (or attached to such
New Warrant) appropriately completed and duly signed, and
(ii) payment of the Exercise Price for the number of Warrant
Shares so indicated by the holder hereof to be
purchased.
(d) This Warrant shall be
exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. If less than all of the
Warrant Shares which may be purchased under this Warrant are
exercised at any time, the Company shall issue or cause to be
issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares for which no
exercise has been evidenced by this Warrant.
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4. Piggyback Registration
Rights . During the Effectiveness Period (as defined in
Section 1.2 of the Registration Rights Agreement, of even date
herewith, between the Company and the original Holder), and until
the Shelf Registration is filed, the Company may not file any
registration statement with the Securities and Exchange Commission
(other than registration statements of the Company filed on Form
S-8 or Form S-4, each as promulgated under the Securities Act,
pursuant to which the Company is registering securities pursuant to
a Company employee benefit plan or pursuant to a merger,
acquisition or similar transaction including supplements thereto,
but not additionally filed registration statements in respect of
such securities) at any time when there is not an effective
registration statement covering the resale of the Warrant Shares
and naming the Holder as a selling stockholder thereunder, unless
the Company provides the Holder with not less than 20 days notice
of its intention to file such registration statement and provides
the Holder the option to include any or all of the applicable
Warrant Shares therein. The piggyback registration rights granted
to the Holder pursuant to this Section shall continue until all of
the Holder’s Warrant Shares have been sold in accordance with
an effective registration statement or upon the Expiration Date.
The Company will pay all registration expenses in connection
therewith.
5. Registration Rights .
During the Effectiveness Period, the Company shall effect the
“Shelf Registration” for the Warrant Shares as provided
in Section 1.2 of the Registration Rights Agreement, or if
such Shelf Registration should not be declared effective or should
its effectiveness lapse for any reason during the Effectiveness
Period, the Holder shall have the “Registration Rights”
with respect to the Warrant Shares as provided in the Registration
Rights Agreement.
6. Payment of Taxes . The
Company will pay all documentary stamp taxes attributable to the
issuance of Warrant Shares upon the exercise of this Warrant;
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.
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 indemnity, if requested, satisfactory to
it. Applicants for a New Warrant under such circumstances shall
also comply with such other reasonable regulations and procedures
and pay such other reasonable charges as the Company may
prescribe.
8. Reservation of Warrant
Shares . The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized
but unissued 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 which are then issuable and
deliverable upon the exercise of this entire Warrant, free from
preemptive rights or any other actual contingent purchase rights of
persons other than the Holder (taking into account the adjustments
and restrictions of Section 9). The Company covenants that all
Warrant Shares that shall be so issuable and deliverable shall,
upon issuance and the payment of the applicable Exercise Price
in
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accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and
nonassessable.
9. Certain Adjustments . 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. Upon each such adjustment of the
Exercise Price pursuant to this Section 9, the Holder shall
thereafter prior to the Expiration Date be entitled to purchase, at
the Exercise Price resulting from such adjustment, the number of
Warrant Shares obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to
such adjustment and dividing the product thereof by the Exercise
Price resulting from such adjustment.
(a) If the Company, at any time
while this Warrant is outstanding, (i) shall pay a stock
dividend (except scheduled dividends paid on outstanding preferred
stock as of the date hereof which contain a stated dividend rate)
or otherwise make a distribution or distributions on shares of its
Common Stock or on any other class of capital stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of
Common Stock into a larger number of shares, or (iii) combine
outstanding shares of Common Stock into a smaller number of shares,
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 before such event and of which
the denominator shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding after such event.
Any adjustment made pursuant to this Section 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 or combination, and shall apply to successive
subdivisions and combinations.
(b) In case of any reclassification
of the Common Stock, any consolidation or merger of the Company
with or into another person, the sale or transfer of all or
substantially all of the assets of the Company or any compulsory
share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, then the Holder shall have the
right thereafter to exercise this Warrant only into the shares of
stock and other securities and property receivable upon or deemed
to be held by holders of Common Stock following such
reclassification, consolidation, merger, sale, transfer or share
exchange, and the Holder shall be entitled upon such event to
receive such amount of securities or property equal to the amount
of Warrant Shares such Holder would have been entitled to had such
Holder exercised this Warrant immediately prior to such
reclassification, consolidation, merger, sale, transfer or share
exchange. The terms of any such consolidation, merger, sale,
transfer or share exchange shall include such terms so as to
continue to give to the Holder the right to receive the securities
or property set forth in this Section 9(b) upon any exercise
following any such reclassification, consolidation, merger, sale,
transfer or share exchange.
(c) If the Company, at any time
while this Warrant is outstanding, shall distribute to all holders
of Common Stock (and not to holders of this Warrant) evidences of
its indebtedness or assets or rights or warrants to subscribe for
or purchase any security (excluding those referred to in Sections
9(a), (b) and (d)), then in each such case the Exercise Price
shall be determined by multiplying the Exercise Price in effect
immediately prior to the record date fixed
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for determination of stockholders
entitled to receive such distribution by a fraction of
which
