Exhibit 4.6
HAIGHTS CROSS COMMUNICATIONS, INC.
Warrant for the Purchase of Shares of
Common Stock of Haights Cross Communications,
Inc.
No. [#]
Warrant to Purchase
[Number] Shares
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES
ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
“ACT”), OR ANY UNITED STATES STATE SECURITIES OR BLUE
SKY LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER
THE ACT OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES AND (3) IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES AND BLUE SKY LAWS.’
WHEREAS, Haights Cross
Communications, Inc., a Delaware corporation (the
“Company ”) previously granted to Holder a
warrant (the “ Series A Warrant ”) to
purchase shares of the Company’s Series A Preferred
Stock, par value $0.0003 per share (the “ Series A
Preferred Stock ”);
WHEREAS, on August 10,
2007, a recapitalization of the Company occurred (the “
Recapitalization ”), which among other things
reclassified the Company’s authorized and outstanding
Series A Preferred Stock into shares of common stock of the
Company, par value $0.0003 per share (the “ Common
Stock ”);
WHEREAS, pursuant to the
Recapitalization, the Investors’ Agreement referenced in the
Series A Warrant was terminated and a Shareholders’
Agreement was entered into between the Company and certain
stockholders of the Company;
WHEREAS, pursuant to the
terms of the Series A Warrant, the effect of the
Recapitalization was to entitle the Holder to exercise the
Series A Warrant for that number of
shares
of Common Stock that the Holder would have received if the
Series A Warrant had been exercised prior to the
Recapitalization;
WHEREAS, although such
adjustment occurred automatically, the Company has offered to
exchange holders’ warrant certificates for Series A
Preferred Stock for warrant certificates to purchase the
appropriate number of shares of Common Stock; and
WHEREAS, all warrants for
Common Stock derived from prior warrants for Series A
Preferred Stock, whether exchanged for new warrant certificates for
Common Stock or not, are the same series of warrants.
NOW, THEREFORE , in
consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as
follows:
FOR VALUE RECEIVED, the
Company hereby certifies that [HOLDER] , its successor or
permitted assigns (the “ Holder ”), is entitled,
subject to the provisions of this Warrant, to purchase from the
Company, at the times specified herein, [Number] fully paid
and non-assessable shares of Common Stock of the Company, par value
$0.0003 per share (the “ Warrant Shares ”), at a
purchase price per share equal to the Exercise Price (as
hereinafter defined), exercisable solely in accordance with the
procedures provided in Section (b) hereof. The number of
Warrant Shares to be received upon the exercise of this Warrant and
the price to be paid for a Warrant Share are subject to adjustment
from time to time as hereinafter set forth.
(a) DEFINITIONS.
(1) The following terms, as used
herein, have the following meanings:
“ Affiliate ”
shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as
amended.
“ Business Day ”
means any day except a Saturday, Sunday or other day on which
commercial banks in the City of New York are authorized by law to
close.
“ Common Stock ”
means the Common Stock, par value $0.0003 per share, of the Company
or other capital stock of the Company that is not preferred as to
liquidation or dividends.
“ Exercise Price ”
means $0.0003 per Warrant Share, such Exercise Price to be adjusted
from time to time as provided herein.
“ Expiration Date
” means December 10, 2011 at 5:00 p.m. New York City
time.
“ Fair Market
Value” means, with respect to one share of Common Stock
on any date, the Current Market Price Per Share, as determined
pursuant to paragraph (h)(6).
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“ Person ” means
an individual, partnership, corporation, limited liability company,
trust, joint stock company, association, joint venture, or any
other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“ Principal Holders
” means, on any date, the Holders of at least 25% of the
Warrants.
“ Warrant Certificate
” the agreement by which a company issues warrants to the
holder.
“ Warrants ” means
the Warrants to purchase Common Stock that were previously
exercisable for shares of Series A Preferred Stock prior to
the Recapitalization, whether in the form of this Warrant
Certificate to purchase Common Stock or retained in the original
form of Warrant Certificate to purchase Series A Preferred
Stock.
(b) EXERCISE OF
WARRANT.
(1) The Holder is entitled to
exercise this Warrant in whole or in part at any time, or from time
to time, until the Expiration Date or, if such day is not a
Business Day, then on the next succeeding day that shall be a
Business Day. To exercise this Warrant, the Holder shall execute
and deliver to the Company a Warrant Exercise Notice substantially
in the form annexed hereto. No earlier than ten days after delivery
of the Warrant Exercise Notice, the Holder shall deliver to the
Company this Warrant Certificate, including the Warrant Exercise
Subscription Form forming a part hereof duly executed by the
Holder. The Holder may elect (i) to receive upon exercise of
this Warrant, the number of Warrant Shares for which this Warrant
is exercisable reduced by a number of shares of Common Stock having
the aggregate Fair Market Value equal to the aggregate Exercise
Price for the Warrant Shares, (ii) to deliver as payment
shares of Common Stock having the aggregate Fair Market Value equal
to the applicable portion of the aggregate Exercise Price for the
Warrant Shares or (iii) to deliver as payment such number of
Warrants which, if exercised, would result in a number of shares of
Common Stock having an aggregate Fair Market Value equal to the
aggregate Exercise Price for the Warrant Shares. Upon such delivery
and election, the Holder shall be deemed to be the holder of record
of the relevant Warrant Shares, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such Warrant Shares shall not then be
actually delivered to the Holder. Notwithstanding anything to the
contrary in this paragraph (b)(1), if the aggregate Fair Market
Value of the Common Stock applied or delivered pursuant to (i),
(ii) or (iii) above exceeds the aggregate Exercise Price,
in no event shall the Holder be entitled to receive any amounts
from the Company.
(2) The Company shall pay any and all
documentary, stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of the Warrant Shares.
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(3) If the Holder exercises this
Warrant in part, this Warrant Certificate shall be surrendered by
the Holder to the Company and a new Warrant Certificate of the same
tenor and for the unexercised number of Warrant Shares shall be
executed by the Company. The Company shall register the new Warrant
Certificate in the name of the Holder or in such name or names of
its transferee pursuant to paragraph (f) hereof as may be directed
in writing by the Holder and deliver the new Warrant Certificate to
the Person or Persons entitled to receive the same.
(4) Upon surrender of this Warrant
Certificate in conformity with the foregoing provisions, the
Company shall transfer to the Holder of this Warrant Certificate
appropriate evidence of ownership of the shares of Common Stock or
other securities or property (including any money) to which the
Holder is entitled, registered or otherwise placed in, or payable
to the order of, the name or names of the Holder or such transferee
as may be directed in writing by the Holder, and shall deliver such
evidence of ownership and any other securities or property
(including any money) to the Person or Persons entitled to receive
the same, together with an amount in cash in lieu of any fraction
of a share as provided in paragraph (e) below.
(c) RESTRICTIVE LEGEND.
Certificates representing shares of Common Stock issued pursuant to
this Warrant shall bear a legend substantially in the form of the
legend set forth on the first page of this Warrant
Certificate.
(d) RESERVATION OF
SHARES . The Company hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise of this
Warrant such number of its authorized but unissued shares of Common
Stock or other securities of the Company from time to time issuable
upon exercise of this Warrant as will be sufficient to permit the
exercise in full of this Warrant. All such shares shall be duly
authorized and, when issued upon such exercise, shall be validly
issued, fully paid and non-assessable, free and clear of all liens,
security interests, charges and other encumbrances or restrictions
on sale and free and clear of all preemptive rights.
(e) FRACTIONAL SHARES .
No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of this Warrant and in lieu of delivery
of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction
multiplied by the Current Market Price Per Share (as defined in
paragraph (h)(6)) at the date of such exercise.
The Company further agrees that it
will not change the par value of the Common Stock from par value
$0.0003 per share to any higher par value which exceeds the
Exercise Price then in effect, and will reduce the par value of the
Common Stock upon any event described in paragraph (h) that
(i) provides for an increase in the number of shares of Common
Stock subject to purchase upon exercise of this Warrant, in inverse
proportion to and effective at the same time as such number of
shares is increased, but only to the extent that such increase in
the number of shares, together with all other such increases after
the date hereof, causes the aggregate Exercise Price of all
Warrants (without giving effect to any exercise thereof) to be
greater than $28.82 or
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(ii) would, but for this provision, reduce the Exercise Price
below the par value of the Common Stock.
(f) EXCHANGE, TRANSFER OR
ASSIGNMENT OF WARRANT .
(1) Each taker and holder of this
Warrant Certificate by taking or holding the same, consents and
agrees that the registered holder hereof may be treated by the
Company and all other Persons dealing with this Warrant Certificate
as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby.
(2) Upon surrender of this Warrant to
the Company, together with the attached Warrant Assignment Form
duly executed, the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee or assignees
named in such instrument of assignment and, if the Holder’s
entire interest is not being assigned, in the name of the Holder
and this Warrant shall promptly be canceled.
(g) LOSS OR DESTRUCTION OF
WARRANT. Upon receipt by the Company of evidence satisfactory
to it (in the exercise of its reasonable discretion) of the loss,
theft, destruction or mutilation of this Warrant Certificate, and
(in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation
of this Warrant Certificate, if mutilated, the Company shall
execute and deliver a new Warrant Certificate of like tenor and
date.
(h) ANTI-DILUTION
PROVISIONS. The Exercise Price of this Warrant and the number
of shares of Common Stock for which this Warrant may be exercised
shall be subject to adjustment from time to time upon the
occurrence of certain events as provided in this paragraph (h);
provided that, notwithstanding anything to the contrary
contained herein, the Exercise Price shall not be less than the par
value of the Common Stock, as such par value may be reduced from
time to time in accordance with paragraph (e).
(1) In case the Company shall at any
time after the date hereof (i) declare a dividend or make a
distribution on Common Stock payable in Common Stock, (ii)
subdivide or split the outstanding Common Stock, (iii) combine
or reclassify the outstanding Common Stock into a smaller number of
shares, or (iv) issue any shares of its capital stock in a
reclassification of Common Stock (including any such
reclassification in connection with a consolidation or merger in
which the Company is the continuing corporation), the Exercise
Price in effect at the time of the record date for such dividend or
distribution or of the effective date of such subdivision, split,
combination or reclassification shall be proportionately adjusted
so that, giving effect to paragraph (h)(9), the exercise of this
Warrant after such time shall entitle the holder to receive the
aggregate number of shares of Common Stock or other securities of
the Company (or shares of any security into which such shares of
Common Stock have been reclassified pursuant to clause
(iii) or (iv) above) which, if this Warrant had been
exercised immediately
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prior to such
time, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, distribution,
subdivision, split, combination or reclassification. Such
adjustment shall be made successively whenever any event listed
above shall occur.
(2) In case the Company shall issue
or sell any Common Stock (other than (I) Common Stock issued upon
exercise of the Warrants, or (II) Common Stock issued upon
exercise or conversion of any security the issuance of which caused
an adjustment under paragraphs (h)(3) or (h)(4) hereof), the
Exercise Price to be in effect after such issuance or sale shall be
determined by multiplying the Exercise Price in effect immediately
prior to such issuance or sale by a fraction, the numerator of
which shall be the sum of (x) the number of shares of Common
Stock outstanding immediately prior to the time of such issuance or
sale multiplied by the Current Market Price Per Share immediately
prior to such issuance or sale and (y) the aggregate
consideration, if any, to be received by the Company upon such
issuance or sale, and the denominator of which shall be the product
of the aggregate number of shares of Common Stock outstanding
immediately after such issuance or sale and the Current Market
Price Per Share immediately prior to such issuance or sale but in
no event will such fraction exceed 1. In case any portion of the
consideration to be received by the Company shall be in a form
other than cash, the fair market value of such noncash
consideration shall be utilized in the foregoing computation. Such
fair market value shall be determined by the Board of Directors of
the Company; provided , that if the Principal Holders shall
object to any such determination, the Board of Directors shall
retain an independent appraiser reasonably satisfactory to the
Principal Holders to determine such fair market value. The Holder
shall be notified promptly of any consideration other than cash to
be received by the Company and furnished with a description of the
consideration and the fair market value thereof, as determined by
the Board of Directors.
(3) In case the Company shall fix a
record date for the issuance of rights, options or warrants to the
holders of its Common Stock or other securities entitling such
holders to subscribe for or purchase for a period expiring within
60 days of such record date shares of Common Stock (or
securities convertible into shares of Common Stock) at a pric
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