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Exhibit 4.1
THE SECURITIES EVIDENCED BY THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE 144 UNDER
THE ACT, OR THE COMPANY RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF SUCH
SECURITIES REASONABLY SATISFACTORY TO THE
COMPANY STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS
EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT.
WARRANT TO PURCHASE COMMON STOCK
OF
VISTA.COM, INC.
____ ___, 2005
Warrant No. W-___
1. Number of
Shares Subject to Warrant. FOR VALUE RECEIVED, on and after
the date of this Warrant, and subject to
the terms and conditions herein set
forth,
______________________________________________________, and its
assigns
(the "HOLDER"), is entitled to purchase
from Vista.com, Inc., a Washington
corporation (the "COMPANY"), at any time
before the Termination Date (as defined
in Section 7 below), at an exercise price
per share equal to $____ (the "WARRANT
PRICE"), ______ shares of Common Stock of
the Company (the "WARRANT STOCK") upon
exercise of this Warrant pursuant to
Section 5 hereof or conversion of this
Warrant pursuant to Section 6 hereof. The
Warrant Price and number of shares of
Warrant Stock are subject to adjustment in
accordance with Section 2.
2. Adjustments
and Notices. The Warrant Price and the number of shares of
Warrant Stock shall be subject to
adjustment from time to time in accordance
with the following provisions:
a. Subdivision, Stock Dividends or Combinations. In case the
Company
shall at any time subdivide the outstanding
shares of Warrant Stock or shall
issue a dividend in the form of securities
with respect to the shares of Warrant
Stock, the Warrant Price in effect
immediately prior to such subdivision or the
issuance of such dividend shall be
proportionately decreased, and the number of
shares of Warrant Stock purchasable
immediately prior to such subdivision or
issuance of dividend shall be
proportionately increased, and in case the Company
shall at any time combine the outstanding
shares of Warrant Stock, the Warrant
Price in effect immediately prior to such
combination shall be proportionately
increased, and the number of Warrant Stock
purchasable immediately prior to such
combination shall be proportionately
decreased, effective at the close of
business on the date of such subdivision,
dividend or combination, as the case
may be.
b. Reclassification, Exchange, Substitution or Other
Distribution.
Upon any reclassification, exchange,
substitution or other event that results in
a change of the number
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and/or class of the Warrant Stock issuable
upon exercise of this Warrant or upon
the payment of a dividend in securities or
property other than shares of Warrant
Stock, Holder shall be entitled to receive,
upon exercise of this Warrant, the
number and kind of securities and property
that Holder would have received if
this Warrant had been exercised immediately
before the record date for such
reclassification, exchange, substitution or
other event or immediately prior to
the record date for such dividend. The
Company or its successor shall promptly
issue to Holder a new Warrant for such new
securities or other property. The new
Warrant shall provide for adjustments which
shall be as nearly equivalent as may
be practicable to the adjustments provided
for in this Section 2 including,
without limitation, adjustments to the
Warrant Price and to the number of
securities or property issuable upon
exercise of the new Warrant. The provisions
of this Section 2.b shall similarly apply
to successive reclassifications,
exchanges, substitutions or other events
and successive dividends.
c. Corporate Transaction. In case of: (i) any merger, share
exchange
or consolidation of the Company, if
following such merger, share exchange or
consolidation the holders of the Company's
outstanding voting securities
immediately prior to such merger or
consolidation own less than a majority of
the outstanding voting securities of the
surviving corporation; (ii) any sale,
lease, exchange or other transfer in one
transaction or a series of related
transactions of all or substantially all of
the Company's assets other than a
transfer of the Company's assets to a
majority-owned subsidiary; or (iii)
approval by the holders of the Warrant
Stock of any plan or proposal for the
liquidation or dissolution of the Company
(each, a "CORPORATE TRANSACTION"), the
Company shall deliver to Holder written
notice of any proposed Corporation
Transaction at least ten (10) days prior to
the effective date thereof.
d. Fractional Shares. No fractional shares shall be issuable
upon
exercise or conversion of this Warrant and
the number of shares to be issued
shall be rounded down to the nearest whole
share. If a fractional share interest
arises upon any exercise or conversion of
this Warrant, the Company shall
eliminate such fractional share interest by
paying Holder an amount computed by
multiplying the fractional interest by the
fair market value of a full share.
3. No
Shareholder Rights. This Warrant, by itself, as distinguished
from
any shares purchased hereunder, shall not
entitle Holder to any of the rights of
a shareholder of the Company. Upon the
exercise or conversion of this Warrant,
Holder hereby agrees, if requested by the
Company, to execute and deliver a
counterpart signature page to, and
otherwise agrees to become bound by, any
shareholder agreement then currently in
effect.
4.
Representations of the Company and Reservation of Stock. This
Warrant
has been duly and validly authorized,
executed and delivered by the Company and
constitutes a valid and binding agreement
of the Company enforceable against the
Company in accordance with its terms. All
shares of Warrant Stock that may be
issued upon the exercise or conversion of
this Warrant shall, upon issuance in
accordance with the terms hereof, be duly
authorized, validly issued, fully paid
and nonassessable, and free of any liens
and encumbrances, except for
restrictions on transfer provided for
herein or under applicable federal and
state securities laws. On and after the
date of this Warrant, the Company will
reserve from its authorized and unissued
shares of Warrant Stock a sufficient
number of shares to provide for the
issuance of the maximum amount of Warrant
Stock issuable upon the exercise or
conversion of this Warrant.
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Issuance of this Warrant shall constitute
full authority to the Company's
officers who are charged with the duty of
executing stock certificates to
execute and issue the necessary
certificates for shares of Warrant Stock
issuable upon the exercise or conversion of
this Warrant.
5. Exercise of
Warrant. This Warrant may be exercised in full or any
portion hereof at any time after the date
hereof and prior to the Termination
Date for the number of shares of Warrant
Stock for which this Warrant is then
exercisable, by the surrender of this
Warrant, together with the Notice of
Exercise and Investment Representation
Statement in the forms attached hereto as
Attachments 1 and 2, respectively, duly
completed and executed at the principal
office of the Company, specifying the
number of shares of Warrant Stock to be
purchased and accompanied by payment in
full of the Warrant Price in cash or by
check with respect to such shares of
Warrant Stock. This Warrant or any portion
hereof shall be deemed to have been
exercised immediately prior to the close of
business on the date of its surrender for
exercise as provided above, and the
person entitled to receive the shares of
Warrant Stock issuable upon such
exercise shall be treated for all purposes
as Holder of such shares of record as
of the close of business on such date. As
promptly as practicable after such
date, but in any event within ten (10)
business days thereafter, the Company
shall issue and deliver to the person or
persons entitled to receive the same a
certificate or certificates for the number
of full shares of Warrant Stock
issuable upon such exercise. The Company
will report any "spread" on the
exercise of this Warrant by filing Form
1099-MISC with the Internal Revenue
Service as required by law. If this Warrant
shall be exercised for less than the
total number of shares of Warrant Stock
then issuable upon exercise, promptly
after surrender of this Warrant upon such
exercise, the Company will execute and
deliver a new Warrant, dated the date
hereof, evidencing the right of Holder to
the balance of the Warrant Stock
purchasable hereunder upon the same terms and
conditions set forth herein.
6. Conversion.
In lieu of exercising this Warrant or any portion hereof,
Holder hereof shall have the right to
convert this Warrant or any portion hereof
into Warrant Stock by executing and
delivering to the Company at its principal
office the written Notice of Conversion and
Investment Representation Statement
in the forms attached hereto as Attachments
2 and 3, specifying the portion of
this Warrant to be converted, and
accompanied by this Warrant. The number of
shares of Warrant Stock to be issued to
Holder upon such conversion shall be
computed using the following formula:
X = (P)(Y)(A-B)/A
Where
X =
the number of shares of Warrant Stock to be issued to Holder
for the portion of this Warrant being converted.
P = the portion of this Warrant being converted expressed as a
decimal fraction.
Y = the total number
of shares of Warrant Stock issuable upon
exercise of this Warrant in full.
A = the fair market value of one share of Warrant Stock, which
shall mean (i) the fair market value of the Company's common
stock issuable upon
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conversion of such share as of the last business day
immediately prior to the date the notice of conversion is
received by the Company, as determined in good faith by the
Company's Board of Directors, or (ii) if this Warrant is
being converted in conjunction with a public offering of
stock, the price to the public per share pursuant to the
offering.
B = the Warrant Price on the date of conversion.
Any portion of this Warrant that is
converted shall be immediately canceled.
This Warrant or any portion hereof shall be
deemed to have been converted
immediately prior to the close of business
on the date of its surrender for
conver
