THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES
LAWS. THIS WARRANT AND SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, OR OTHERWISE TRANSFERRED
UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR UPON RECEIPT BY THE COMPANY OF AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
2008-_____
WARRANT TO PURCHASE SHARES
OF THE COMMON STOCK OF
ASKMENOW, INC.
(Void after Expiration Date - ____________,
2013)
Issue
Date: __________, 2008
This
certifies that ___________________, a __________________ with
a principal business address of ___________________
(or
any valid transferee thereof, the “
Holder ”),
for value received, shall be entitled to purchase from AskMeNow,
Inc., a Delaware corporation having its principal place of business
at 26 Executive Park, Suite 250, Irvine, California 92614 (together
with its successors and assigns, the “
Company ”),
subject to the terms and conditions set forth herein,
_________________ (#) fully paid and non-assessable shares of the
Company’s common stock, par value $.01 per share
(“
Common Stock ”),
at a price equal to $.10 per share, at any time and from time to
time commencing as of the issue date set forth above (the
“
Issue Date ”)
and continuing up to and including 12:00 p.m. (California time) on
___________, 2013 (“
Expiration Date ”);
provided ,
however ,
if such date is not a Business Day, then on the Business Day
immediately following such date. The shares purchasable upon
exercise of this Warrant, and the purchase price per share, each as
adjusted from time to time pursuant to the provisions of this
Warrant, are hereinafter sometimes referred to as the
“
Warrant Shares ”
and the “
Exercise Price ,”
respectively.
This
Warrant is being issued to the Holder in connection with the
Company’s $1,000,000 offering (the “
Offering ”)
of up to 1,000,000 shares of Series D Convertible Preferred Stock,
$.01 par value, of the Company (the “
Series D Stock ”)
that are automatically convertible into shares of the
Company’s Common Stock upon the earlier to occur of the six
month anniversary of the date of the final sale of shares of Series
D Stock in the Offering (the “
Closing Date ”)
or a Change of Control Transaction (as such term is defined in the
Certificate of Designations, Preferences, Privileges, Powers and
Rights for the Series D Stock). This Warrant is one of several that
will be issued in the Offering, all identical except for names and
amounts. An aggregate of 2,000,000 warrants will be issued by the
Company if the full $1,000,000 Offering is completed. Such warrants
are being issued on the basis of two (2) warrants for every one (1)
dollar invested.
1.
Exercise; Issuance of Certificates; Payment for Shares
.
1.
Mechanics of Exercise .
This Warrant is exercisable, in whole at any time or in part from
time to time, commencing on the Issue Date and prior to 12:00 P.M.
(California time) on the Expiration Date, upon the surrender to the
Company at its principal place of business (or at such other
location as the Company may advise the Holder in writing) of this
Warrant properly endorsed and delivery of an exercise notice in
substantially the form attached hereto as
Schedule A duly
completed and signed, accompanied by payment in full of the
aggregate Exercise Price for the number of Warrant Shares for which
this Warrant is being exercised as determined in accordance with
the provisions hereof. Payment shall be made by cash, certified or
bank check or wire transfer of immediately available funds to the
Company. This Warrant is exercisable in whole or in part, in
increments of 5,000 shares, and in no event shall any exercise
hereof be for fewer than 5,000 Warrant Shares unless fewer than
5,000 Warrant Shares are then purchasable under this
Warrant. In
the case of the exercise for less than all of the Warrant Shares
represented by this Warrant, the Company shall cancel this Warrant
certificate upon the surrender hereof and shall execute and deliver
a new Warrant certificate or certificates of like tenor for the
balance of the Warrant Shares for which this Warrant has not yet
been exercised. The
Company agrees that the shares of Common Stock purchased under this
Warrant shall be deemed to be issued to the Holder hereof, and the
Holder deemed to be the record owner of such shares, as of
immediately prior to the close of business on the date on which the
exercise notice attached hereto as
Schedule A is
delivered, and this Warrant surrendered, to the Company as provided
herein (such date, the “
Exercise Date ”).
Certificates for the shares of Common Stock purchased upon
exercise, together with any other securities or property to which
the Holder is entitled upon such exercise, shall be delivered to
the Holder by the Company at the Company’s expense within a
reasonable time after the rights represented by this Warrant have
been so exercised, and in any event within 10 business days of the
Exercise Date. Each Common Stock certificate so delivered shall be
in such denominations as may be requested by the Holder hereof and
shall be registered on the Company’s books in the name
designated by such Holder.
1.2
Shares to be Fully Paid; Reservation of Shares
.
The
Company covenants and agrees that all shares of Common Stock which
may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be duly authorized, validly issued,
fully paid and nonassessable and free from all preemptive rights of
any shareholder and free of all taxes, liens and charges with
respect to the issue thereof. The Company further covenants and
agrees that, during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized and reserved, for the purpose of issue or transfer
upon exercise of the subscription rights evidenced by this Warrant,
a sufficient number of shares of authorized but unissued Common
Stock when and as required to provide for the exercise of the
rights represented by this Warrant. The Company will take all such
action as may be reasonably 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
domestic securities exchange upon which the Common Stock or other
securities may be listed;
provided ,
however ,
that the Company shall not be required to effect a registration
under federal or state securities laws with respect to any exercise
hereunder.
2.
Determination or Adjustment of Exercise Price and Number of
Shares .
The Exercise Price and the number of Warrant Shares purchasable
upon the exercise of this Warrant shall be subject to adjustment
from time to time upon the occurrence of certain events described
in this Section 2. Upon each adjustment of the Exercise Price, the
Holder of this Warrant shall thereafter be entitled to purchase, at
the Exercise Price resulting from such adjustment, the number of
shares obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment,
and dividing the product thereof by the Exercise Price resulting
from such adjustment.
2.1
Subdivision or Combination of Common Stock .
If at any time after the Issue Date hereof and prior to the
exercise or Expiration Date hereof the Company shall subdivide or
reclassify its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to
such subdivision shall be proportionately reduced, and conversely,
in case the outstanding shares of Common Stock of the Company shall
be combined or reclassified into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination
shall be proportionately increased. Any adjustment under this
Subsection 2.1 shall become effective at the close of business on
the date the subdivision or combination becomes
effective.
2.2
Dividends in Common Stock or Other Stock or Securities
.
If at any time or from time to time after the Issue Date hereof and
prior to the exercise or Expiration Date hereof the holders of
Common Stock (or any shares of stock or other securities at the
time receivable upon the exercise of this Warrant) shall have
received or become entitled to receive, without payment therefor,
shares of Common Stock or any shares of capital stock or other
securities which are at any time directly or indirectly convertible
into or exchangeable for Common Stock, or any rights or options to
subscribe for, purchase or otherwise acquire any of the foregoing
by way of dividend or other distribution, then and in each such
case, the Holder shall, upon the exercise of this Warrant, be
entitled to receive, in addition to the number of shares of Common
Stock or other capital stock receivable thereupon, and without
payment of any additional consideration therefor, the amount of
stock and other securities which such Holder would hold on the date
of such exercise had the Holder been the holder of record of such
Common Stock as of the date on which holders of Common Stock
received or became entitled to receive such shares or all other
additional stock and other securities.
2.3
Reorganization, Reclassification, Consolidation, Merger or
Sale .
If at any time after the Issue Date hereof and prior to the
exercise or Expiration Date hereof
any
recapitalization, reclassification or reorganization of the capital
stock of the Company, or any consolidation or merger of the Company
with another corporation, or the sale of all or substantially all
of its assets or other transaction shall be effected in such a way
that holders of Common Stock shall be entitled to receive stock,
securities, or other assets or property (an “
Organic Change ”),
then, as a condition of such Organic Change, lawful and adequate
provisions shall be made by the Company whereby the Holder hereof
shall thereafter have the right, upon exercise of this Warrant, to
purchase and receive (in lieu of the shares of the Common
Stock of the Company immediately theretofore purchasable and
receivable upon the exercise of the rights represented by this
Warrant) such shares of stock, securities or other assets or
property as may be issued or payable with respect to or in exchange
for a number of outstanding shares of such Common Stock equal to
the number of
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