Exhibit 4.9
NEITHER THIS
WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) OR ANY OTHER APPLICABLE STATE
SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PURSUANT TO REGULATION D AND
SUCH OTHER SECURITIES LAWS. NEITHER THIS WARRANT NOR THE
SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, PLEDGED,
TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN
A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
PROVISIONS OF THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS. THIS
WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF A UNITED STATES
PERSON UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE, AS REQUIRED BY REGULATION
D.
STOCK PURCHASE
WARRANT
To Purchase 100,000 Shares of Common
Stock of
ION NETWORKS INC.
THIS CERTIFIES that, for value received, Carmen
Vena (the “Holder”), is entitled, upon the terms and
subject to the limitations on exercise 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 September 9, 2009 (the “Termination
Date”) but not thereafter, to subscribe for and purchase from
ION NETWORKS, Inc., a corporation incorporated in the State of
Delaware, with offices at 120 Corporate Boulevard, South
Plainfield, New Jersey 07080 (the “Company”), up to
100,000 shares (the “Warrant Shares”) of Common Stock,
$0.001 par value, of the Company (the “Common
Stock”). The purchase price of one share of Common
Stock (the “Exercise Price”) under this Warrant shall
be $0.05. The Exercise Price and the number of shares
for which the Warrant is exercisable shall be subject to adjustment
as provided herein.
1. Title to
Warrant . Prior to the Termination Date and subject
to compliance with applicable laws, this Warrant and all rights
hereunder are transferable, in whole or in part, at the office or
agency of the Company by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant together with
the Assignment Form annexed hereto properly endorsed.
2. Authorization of
Shares . The Company covenants that all shares of
Common Stock which may be issued upon the exercise of rights
represented by this Warrant will, upon exercise of the rights
represented by this Warrant, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and
charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such
issue).
3. Exercise of
Warrant .
(a) Except as provided in Section 4
herein, exercise of the purchase rights represented by this Warrant
may be made at any time or times on or after the Initial Exercise
Date, and before the close of business on the Termination Date by
the surrender of this Warrant and the Notice of Exercise Form
annexed hereto duly executed, at the office of the Company (or such
other office or agency of the Company as it may designate by notice
in writing to the registered holder hereof at the address of such
holder appearing on the books of the Company) and upon payment of
the Exercise Price of the shares thereby purchased by wire transfer
or cashier’s check drawn on a United States bank, the holder
of this Warrant shall be entitled to receive a certificate for the
number of shares of Common Stock so purchased. Certificates for
shares purchased hereunder shall be delivered to the holder hereof
within three (3) Trading Days after the date on which this Warrant
shall have been exercised as aforesaid. This Warrant shall be
deemed to have been exercised and such certificate or certificates
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 and all taxes required to be paid by Holder, if any,
pursuant to Section 5 prior to the issuance of such shares, have
been paid. For the purposes of this Agreement, (i)
“Trading Day” shall mean any day on which the Principal
Market is open for business and (ii) “Principal Market”
shall mean initially the Nasdaq National Market and shall include
the American Stock Exchange, Nasdaq National Market, the Nasdaq
SmallCap Market, Bulletin Board or the New York Stock Exchange if
the Company is listed and trades on such market or
exchange.
(b) If this Warrant shall have been
exercised in part, the Company shall, 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 shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical
with this Warrant.
(c) If no registration statement is
effective permitting the resale of the shares of Common Stock
issued upon exercise of this Warrant at any time commencing one
year after the issuance date hereof, then this Warrant shall also
be exercisable by means of a “cashless exercise” in
which the holder shall be entitled to receive a certificate for the
number of shares equal to the quotient obtained by dividing [(A-B)
(X)] by (A), where:
(A) = the
average of the high and low trading prices per share of Common
Stock on the Trading Day preceding the date of such election on the
Nasdaq National Market, or if the Common Stock is not traded on the
Nasdaq National Market, then the Principal Market in terms of
volume, and converted into US Dollars;
(B) = the
Exercise Price of the Warrants; and
(X) = the
number of shares issuable upon exercise of the Warrants in
accordance with the terms of this Warrant.
4. 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 pay a cash adjustment in respect of such final
fraction in an amount equal to the Exercise Price.
5. Charges, Taxes and
Expenses . Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made
without charge to the holder hereof 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 of this Warrant or in such name or names as may be directed
by the holder of this Warrant; provided, however, that in the event
certificates for shares of Common Stock are to be issued in a name
other than the name of the holder of this Warrant, this Warrant
when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof;
and the Company may require, as a condition thereto, the payment of
a sum sufficient to reimburse it for any transfer tax incidental
thereto.
6. Closing of
Books . The Company will not close its shareholder
books or records in any manner which prevents the timely exercise
of this Warrant.
7. Transfer, Division
and Combination . (a) Subject to compliance with any
applicable securities laws, transfer of this Warrant and all rights
hereunder, in whole or in part, shall be registered on the books of
the Company to be maintained for such purpose, upon surrender of
this Warrant at the principal office of the Company, together with
a written assignment of this Warrant substantially in the form
attached hereto duly executed by Holder or its agent or attorney
and funds sufficient to pay any transfer taxes payable upon the
making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in
the denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new holder for the
purchase of shares of Common Stock without having a new Warrant
issued.
(b) This
Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by
Holder or its agent or attorney. Subject to compliance
with Section 7(a), as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for the Warrant or Warrants to
be divided or combined in accordance with such notice.
(c) The
Company shall prepare, issue and deliver at its own expense (other
than transfer taxes) the new Warrant or Warrants under this Section
7.
(d) The
Company agrees to maintain, at its aforesaid office, books for the
registration and the registration of transfer of the
Warrants.
8. Registration of
Warrant Shares . (a) If (but without any
obligation to do so) the Company proposes to register (including
for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its stock or other
securities under the Act in connection with the public offering of
such securities solely for cash (other than a registration
statement relating either to the sale of securities to employees of
the Company pursuant to a stock option, stock purchase or similar
plan or a SEC Rule 145 transaction), the Company shall, at such
time, promptly give each Holder written notice of such proposed
registration. Upon the written request of each Holder
given within twenty (20) days after mailing of such notice by the
Company in accordance with Section 18(d) hereof, the Company shall,
subject to the provisions of Section 8(c), endeavor to cause to be
registered under the Act all of the Warrant Shares that each such
Holder has requested to be registered.
(b) Whenever required under this
Section 8(a) to effect the registration of any Warrant Shares, the
Company shall, as expeditiously as reasonably possible use
reasonable efforts to (i) file a registration statement (the "
Registration Statement "), registering for resale the
Warrant Shares and (ii) cause the Registration Statement to be
declared effective under the Securities Act of 1933, as amended
(the " Act ") as soon thereafter as reasonably
practicable. The Company promptly shall provide each
Holder with such copies of the final prospectus contained in the
Registration Statement after it becomes effective as they shall
reasonably request. In addition, the Company shall (a)
use reasonable efforts to keep the Registration Statement effective
for a period ending on the earlier of (x) 120 days from its
effective date or (y) when all such Warrant Shares can be sold
without limitation or delay under Rule 144 and (b) file all reports
and forms required to be filed by it under the Securities Exchange
Act of 1934, as amended (" Reports ") on a timely basis so
long as each Holder owns any Warrant Shares and shall provide each
Holder copies thereof when filed.
(c) Notwithstanding anything
contained herein to the contrary, the Company shall be entitled to
postpone the filing of the Registration Statement otherwise
required to be prepared and filed by it in accordance with
subparagraph (b) or, in the event the Registration Statement has
been declared effective, without suspending such effectiveness,
instruct the Holder promptly in writing (or any subsequent holders
thereof) not to sell or distribute any Warrant Shares (a "
Delay ") as long as the reason for non-disclosure continues,
if the Company would be required to disclose in the Registration
Statement the existence of any fact relating to a material business
situation, transaction or negotiation, or would be required to
disclose information that the Company has not otherwise made
public, in each case, that the Company reasonably determines is in
the best interests of the Company not to disclose at such time, and
unless and until each Holder furnishes to the Company in writing
information that may be required to prepare the disclosure required
by Items 507 and 508 of Regulation S-B promulgated under the Act,
with respect to such Holder's Warrant Shares being sold under the
Registration Statement provided that , with respect
to Delays because of information related to the Company (rather
than disclosure required to be provided by the holders), the
Company shall only be entitled to a maximum of three (3) Delays,
each Delay not to exceed a period of thirty (30) days; and
further provided , that no period of Delay shall
commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably
cooperate with the Company in connection with the preparation and
filing of the Registration Statement and execute and deliver any
agreements or instruments reasonably requested by the Company or
its counsel in connection therewith and (ii) upon discovery that,
or upon the happening of any event as a result of which, the
Registration Statement (or any prospectus included therein), as
then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made (as
determined by the Company or its counsel in its sole discretion),
forthwith discontinue its disposition of Warrant Shares pursuant to
the Registration Statement, until such time as such Holder (or any
holders) have received a supplemented or amended prospectus from
the Company relating thereto. The Company agrees to use
its best efforts to prepare any necessary amendments or supplements
to the Registration Statement as soon as reasonably practicable
after the same becomes necessary and to provide to each Holder
quantities of such amendments or supplements reasonably sufficient
for the distribution thereof.
(e) The Company shall indemnify and
hold harmless each Holder and its respective officers, directors,
employees, members, agents, affiliates and control persons (each of
the foregoing, a " Holder Indemnitee ") who is or may be a
party or is or may be threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason
of or arising from any actual or alleged misrepresentation or
misstatement of facts or omission to represent or state any fact or
omission to state a fact necessary to make the facts stated under
the circumstances not materially misleading, in the Registration
Statement or any amendment or supplement thereto or to the
prospectus incorporated therein from and against any claim, losses,
liabilities, costs and expenses (including attorney's fees,
judgments, fines and amounts paid in settlement) (" Loss ")
actually and reasonably incurred by any such Holder Indemnitee in
connection with such claim, action, suit or proceeding or the
defense thereof, except to the extent such Loss is the direct
result of a misstatement or omission for which such Holder
Indemnitee is liable to the Company under Section 9(i);
provided , however , that the indemnification
contained in this Section 8(e) with respect to any preliminary
prospectus shall not inure to the benefit of any Holder Indemnitee
on account of any such Loss arising from the sale of the Warrant
Shares by such Holder Indemnitee to any person if a copy of the
definitive
