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EXHIBIT 4.73
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
OFFERED FOR SALE OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.
WARRANT
TO PURCHASE [__________] SHARES OF COMMON STOCK OF
VERSO TECHNOLOGIES, INC.
No.
[___________] February 19, 2008
THIS CERTIFIES THAT , for value received,
[_________________] or its registered assigns (the “
Holder
”) is entitled to purchase from Verso Technologies, Inc., a
Minnesota corporation (the “ Company
”), at any time or from time to time after 9:00 a.m.,
Atlanta, Georgia time, on August 20, 2008 (the “ Exercise Date
”) and prior to 5:00 p.m., Atlanta, Georgia time, on the date
which is five (5) years from the Exercise Date (the “
Expiration
Date ”), at the place where the Warrant Agency (as
hereinafter defined) is located, at the Exercise Price (as
hereinafter defined), the number of shares of common stock, $.01
par value (the “ Common Stock
”), of the Company specified above, subject to the terms and
conditions as hereinafter provided.
Capitalized
terms used and not otherwise defined in this Warrant shall
have the meanings set forth in Article IV hereof.
ARTICLE I
EXERCISE OF WARRANTS
1.1
Method of
Exercise .
(a) To
exercise this Warrant in whole or in part, the Holder shall
deliver to the Company at the Warrant Agency: (i)
this Warrant; (ii) a written notice, substantially in the
form of the subscription notice attached hereto as Annex 1 ,
of such Holder’s election to exercise this Warrant,
which notice shall specify the number of whole shares of
Common Stock to be purchased, the denominations of the share
certificate or certificates desired and the name or names of
the Eligible Holder(s) in which such certificates are to be
registered (the “ Exercise
Notice ”); and (iii) payment of the Exercise
Price with respect to such shares of Common
Stock. Such payment may be made, at the option of
the Holder, by cash, money order, certified or bank
cashier’s check, wire transfer or, subject to and
accordance with Section 1.1(b), by a cash-less exercise of
this Warrant.
(b) In
lieu of exercising this Warrant for cash, the Holder may
elect, at any time after the Exercise Date and prior to the
Expiration Date, to receive shares equal to the value (as
determined below) of this Warrant (or the portion thereof
being exercised) by surrender of this Warrant to the Company
at the Warrant Agency, together with the properly endorsed
Exercise Notice, in which event the Company shall issue to the
Holder a number of shares of Common Stock computed using the
following formula:
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where
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X
=
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the
number of shares of Common Stock to be issued to the
Holder;
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Y
=
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the
number of shares of Common Stock purchasable under this Warrant or,
if only a portion of this Warrant is being exercised, the portion
of this Warrant being exercised (at the date of
exercise);
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A
=
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the
Fair Market Value of one share of Common Stock (at the date of
exercise); and
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B
=
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the
Exercise Price per share (as adjusted to the date of
exercise).
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(c) The
Company shall, as promptly as practicable and in any event
within five (5) Business Days thereafter, execute and deliver
or cause to be executed and delivered, in accordance with an
Exercise Notice delivered pursuant to Section 1.1(a) or
1.1(b), a certificate or certificates representing the
aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so
delivered shall be in such denominations as may be specified
in such notice (or, if such notice shall not specify
denominations, one certificate shall be issued) and shall be
issued in the name of the Holder or such other name or names
of Eligible Holder(s) as shall be designated in such
notice. Such certificate or certificates shall be
deemed to have been issued, and such Holder or any other
Person so designated to be named therein shall be deemed to
have exercised this Warrant and for all purposes to have
become holders of record of such shares, as of the date the
aforementioned notice is received by the
Company. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of
the certificate or certificates, deliver to the Holder a new
Warrant evidencing the right to purchase the remaining shares
of Common Stock called for by this Warrant, which new Warrant
shall in all other respects be identical with this
Warrant. The Company shall pay all expenses payable
in connection with the preparation, issuance and delivery of
share certificates and new Warrants as contemplated by Section
2.6 below (other than transfer or similar taxes in connection
with the transfer of securities), except that, if share
certificates or new Warrants shall be registered in a name or
names other than the name of the Holder, funds sufficient to
pay all transfer taxes payable as a result of such transfer
shall be paid by the Holder at the time of delivering the
aforementioned notice or promptly upon receipt of a written
request of the Company for payment.
(d) If
this Warrant shall be surrendered for exercise within any
period during which the transfer books for shares of the
Common Stock purchasable upon the exercise of this Warrant are
closed for any purpose, then the Company shall not be required
to make delivery of certificates for the Common Stock
purchasable upon such exercise until the date of the reopening
of said transfer books.
1.2
Shares To Be
Fully Paid and Nonassessable . All shares of
Common Stock issued upon the exercise of this Warrant shall be
validly issued, fully paid and nonassessable.
1.3
No
Fractional Shares To Be Issued . The Company
shall not be required to issue fractions of shares of Common
Stock upon exercise of this Warrant. The Holder may
only elect to exercise this Warrant with respect to a whole
number of shares of the Common Stock.
1.4
Securities Laws;
Share Legend . The Holder, by acceptance of
this Warrant, agrees that this Warrant and all shares of
Common Stock issuable upon exercise of this Warrant will be
disposed of only in accordance with the Securities Act of
1933, as amended, and any successor Federal statue, and the
rules and regulations of the Commission promulgated thereunder
(the “ Securities
Act ”). In addition to any other
legend which the Company may deem advisable under the
Securities Act and applicable state securities laws, all
certificates representing shares of Common Stock (as well as
any other securities issued hereunder in respect of any such
shares) issued upon exercise of this Warrant shall be endorsed
as follows:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED.
Any
certificate issued at any time in exchange or substitution for
any certificate bearing such legend (except a new certificate
issued upon completion of a public distribution pursuant to a
registration statement under the Securities Act) shall also
bear such legend unless, in the opinion of counsel (in form
and substance reasonably satisfactory to the Company) selected
by the Holder of such certificate and reasonably acceptable to
the Company, the securities represented thereby need no longer
be subject to restrictions on resale under the Securities
Act.
1.5
Exercise
Limitations . Notwithstanding anything
herein to the contrary, the Company shall not effect any
exercise of this Warrant, and the Holder shall not have the
right to exercise any portion of this Warrant, pursuant to
Section 1.1 or otherwise, to the extent that after giving
effect to such issuance after exercise as set forth on the
applicable Exercise Notice, the Holder (together with such
Holder’s Affiliates, and any other Person or entity
acting as a group together with the Holder or any of the
Holder’s Affiliates) would beneficially own in excess of
the Beneficial Ownership Limitation. For purposes of
this Section 1.5, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Securities Exchange Act
of 1934, as amended (the “ Exchange
Act ”), and the rules and regulations promulgated
thereunder. To the extent that the limitation
contained in this Section 1.5 applies, the determination of
whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates)
and of which portion of this Warrant is exercisable shall be
made in good faith by the Company in consultation with the
Holder. In addition, a determination as to any
group status as contemplated above shall be determined in
accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder. The
“ Beneficial
Ownership Limitation ” shall be 19.99% of the
number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock
issuable upon exercise of this Warrant. The
provisions of this Section 1.5 shall be construed and
implemented in a manner otherwise than in strict conformity
with the terms of this Section 1.5 to correct this Section 1.5
(or any portion hereof) which may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The
limitations contained in this Section 1.5 shall apply to all
Eligible Holders of this Warrant.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE AND
REPLACEMENT OF WARRANT
2.1
Warrant
Agency . Until such time, if any, as an
independent agency shall be appointed by the Company to
perform services described herein with respect to this Warrant
(the “ Warrant
Agency ”), the Company shall perform the
obligations of the Warrant Agency provided herein at its
principal office address or such other address as the Company
shall specify by prior written notice to the
Holder.
2.2
Ownership of
Warrant . The Company may deem and treat the
Person in whose name this Warrant is registered as the holder
and owner hereof (notwithstanding any notations of ownership
or writing hereon made by any Person other than the Company)
for all purposes and shall not be affected by any notice to
the contrary, until presentation of this Warrant for
registration of transfer as provided in this Article
II.
2.3
Transfer of
Warrant . This Warrant may only be
transferred to a purchaser subject to and in accordance with
this Section 2.3 and Section 1.4 hereof, and any attempted
transfer which is not in accordance with this Section 2.3 and
Section 1.4 hereof shall be null and void and the transferee
shall not be entitled to exercise any of the rights of the
holder of this Warrant. The Company agrees to
maintain at the Warrant Agency books for the registration of
such transfers of Warrants, and transfer of this Warrant and
all rights hereunder shall be registered, in whole or in part,
on such books, upon surrender of this Warrant at the Warrant
Agency in accordance with this Section 2.3, together with a
written assignment of this Warrant, substantially in the form
of the assignment attached hereto as Annex 2 ,
duly executed by the Holder or its duly authorized agent or
attorney-in-fact, with signatures guaranteed by a bank or
trust company or a broker or dealer registered with FINRA, and
funds sufficient to pay any transfer taxes payable upon such
transfer. Upon surrender of this Warrant in
accordance with this Section 2.3, the Company (subject to
being satisfied that such transfer is in compliance with
Section 1.4 hereof) shall execute and deliver a new Warrant or
Warrants of like tenor and representing in the aggregate the
right to purchase the same number of shares of Common Stock in
the name of the assignee or assignees and in the denominations
specified in the instrument of assignment, and this Warrant
shall promptly be canceled. Notwithstanding the
foregoing, a Warrant may be exercised by a new holder without
having a new Warrant issued. The Company shall not
be required to pay any Federal or state transfer tax or charge
that may be payable in respect of any transfer of this Warrant
or the issuance or delivery of certificates for Common Stock
in a name other than that of the registered holder of this
Warrant.
2.4
Division or
Combination of Warrants . This Warrant may
be divided or combined with other Warrants, in connection with
the partial exercise of this Warrant, upon surrender hereof
and of any Warrant or Warrants with which this Warrant is to
be combined at the Warrant Agency, together with a written
notice specifying the names and denominations in which the new
Warrant or Warrants are to be issued, signed by the holders
hereof and thereof or their respective duly authorized agents
or attorneys-in-fact. Subject to compliance with
Sections 1.4 and 2.3 hereof as to any transfer which may be
involved in the 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.
2.5
Loss, Theft,
Destruction or Mutilation of Warrant Certificates
. Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of indemnity
or security (in customary form) reasonably satisfactory to the
Company, or, in the case of any such mutilation, upon
surrender and cancellation of such Warrant and upon
reimbursement of the Company’s reasonable incidental
expenses, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of
like tenor and representing the right to purchase the same
aggrega
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