Unassociated Document


    
      Exhibit
10.5

    

     

    THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER THESE SECURITIES NOR
ANY INTEREST THEREIN MAY BE TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF
WITHOUT REGISTRATION UNDER THAT ACT OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

     

    ISSUE
DATE: _________________

     

    WARRANT
TO PURCHASE COMMON STOCK

    of

    THWAPR,
INC.

    a
Delaware corporation

     

    This
certifies that for value received ______________, or his
permitted registered assigns ("Holder"), is
entitled, subject to the terms set forth below, to purchase from THWAPR, INC., a
Delaware corporation (the "Company"), up to
_____________ (______) shares of the common stock of the Company ("Common
Stock") at the price of ____ Dollar ($____) per share (the "Purchase Price"),
upon surrender of this Warrant at the principal office of the Company referred
to below, with the subscription form attached hereto (the "Subscription Form")
duly executed, and simultaneous payment therefor in the manner specified in
Section 1 hereof. The Purchase Price and the number of shares of Common Stock
purchasable hereunder (the "Warrant Shares") are
subject to adjustment as provided in Section 3 of this Warrant.

     

    As used
herein, (i) "Exercise
Date shall mean the particular date (or dates) on which this Warrant is
exercised, (ii) "Issue
Date" shall mean the date of this Warrant reflected above, (iii) "Warrant" shall
include this Warrant and any warrant delivered in substitution or exchange
therefor as provided herein and (iv) "Warrant Shares" shall
mean any shares of Common Stock acquired by Holder upon exercise of this
Warrant

     

    1.  Expiration.  This
warrant shall expire five years from the date of issue as noted
above.

     

    2.
Exercise.

     

    (a) This
Warrant may be exercised, in whole or in part, at any time or from time to time,
on any business day, for all or any part of the number of shares of Common Stock
called for hereby, by surrendering it at the principal office of the Company,
220 12th Avenue,
New York, NY 10001 together with a completed and executed Subscription Form,
together with delivery of a certified or cashier's check in an amount equal to
(i) the number of shares of Common Stock being purchased, multiplied by (ii) the
Purchase Price. Notwithstanding the foregoing, in the event of the closing of
the Company's sale or transfer of all or substantially all of its assets, or the
closing of the acquisition of the Company by another entity by means of merger,
consolidation or other transaction or series of related transactions, resulting
in the exchange of the outstanding shares of the Company's capital stock such
that the stockholders of the Company prior to such transaction own, directly or
indirectly, less the 50% of the voting power of the surviving entity (an
"Acquisition"), this Warrant shall, on the date of such event, no longer be
exercisable and become null and void. In the event of a proposed transaction of
the kind described above, the Company shall use its best efforts to notify the
holder of the Warrant at least thirty (30) days prior to the consummation of
such event or transaction.

     

    
      
         


      

      
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    (b) This
Warrant may be exercised for less than the full number of shares as of the
Exercise Date. Upon such partial exercise, this Warrant shall be surrendered,
and a new Warrant of the same tenor and for the purchase of the Warrant Shares
not purchased upon such exercise shall be issued to Holder by the
Company.

     

    (c) A
Warrant 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 Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of such shares of
record as of the close of business on such date. As soon as practicable on or
after such date, and in any event within five (5) 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 Common Stock
issuable upon such exercise, together with cash, in lieu of any fraction of a
share, equal to such fraction of the current fair market value of one full share
as reasonably determined in good faith by the Company's Board of Directors (the
"Board").

     

    3.
Payment of Taxes.   All shares of Common Stock issued upon
the exercise of a Warrant shall be validly issued, fully paid and non-assessable
and the Company shall pay all taxes and other governmental charges that may be
imposed in respect of the issue or delivery thereof, other than any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for shares of Common Stock in any name other than that of the
registered Holder of the Warrant surrendered in connection with the purchase of
such shares, and in such case the Company shall not be required to issue or
deliver any stock certificate until such tax or other charge has been paid or it
has been established to the Company's satisfaction that no tax or other charge
is due.

     

    4.
Certain Adjustments.

     

    (a) Automatic
Adjustment. Any Company adjustment in the nature of a stock dividend,
stock split (e.g. splits) rights generally, reclassification, Extraordinary
Dividend or Distribution or other event which adjusts the number of authorized
and/or issued Common Shares or adds value to the shares (herein of dividends in
cash, or property) shall accrue proportionately to the benefit of the Holder and
the Common Shares callable by the same as provided herein as if, mutatis
mutandis, each had exercised the Warrant and held Warrant Shares, plus all prior
accretion, from the date of Warrant issuances to the date, or dates, this
paragraph is triggered. For the avoidance of doubt, a two for one common stock
split, or a 100% stock dividend doubles the number of Warrant Shares obtainable
upon Warrant exercise; a $10 cash dividend on each share of Common Stock means,
on subsequent exercise, the Company issues the Holder $10 (without interest, for
purposes of simplicity) per Warrant Share; an opportunity extended to Common
shareholders to participate in a favorable arrangement ... e.g. a so-called
pre-emptive (including rights offering) or tag along rights .. shall be extended
contemporaneously to the Holders on an as-if exercisable basis.

     

    
      
         


      

      
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    (b) Adjustment for
Reorganization, Consolidation, Merger. In case of any reclassification or
change of outstanding Company securities or of any reorganization of the Company
(or any other corporation the stock or securities of which are at the time
receivable upon the exercise of this Warrant) or any similar corporate
reorganization on or after the date hereof, then and in each such case the
Holder, upon the exercise hereof at any time after the consummation of such
reclassification, change, reorganization, merger or conveyance, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consummation, the stock or
other securities or property to which the Holder would have been entitled upon
such consummation if the Holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in paragraph (a); and in
each such case, the terms of this Section 3 shall be applicable to the Company
securities properly receivable upon the exercise of this Warrant after such
consummation.

     

    (c) Adjustments for Dividends in
Common Stock. In case at any time after the Issue Date the Company shall
declare any dividend on the Common Stock which is payable in Common Stock, the
number of Warrant Shares evidenced hereby shall be proportionately increased and
the Purchase Price shall be proportionately decreased.

     

    (d) Stock Split and Reverse
Stock Split. If the Company at any time or from time to time after the
Issue Date effects a subdivision of the outstanding Common Stock, the Purchase
Price then in effect immediately before that subdivision shall be
proportionately decreased and the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be proportionately increased.
If the Company at any time or from time to time after the Issue Date combines
the outstanding shares of Common Stock into a smaller number of shares, the
Purchase Price then in effect immediately before that combination shall be
proportionately increased and the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be proportionately decreased.
Each adjustment under this Section 3(d) shall become effective at the close of
business on the date the subdivision or combination becomes
effective.

     

    e) Accountants' Certificate as
to Adjustment. In each case of an adjustment in the shares of Common
Stock receivable on the exercise of the Warrant, the Company at its expense
shall cause independent public accountants of recognized standing selected by
the Company (who may be the independent public accountants then auditing the
books of the Company) to compute such adjustment in accordance with the terms of
the Warrant and prepare a certificate setting forth such adjustment and showing
the facts upon which such adjustment is based. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant at the time
outstanding.


    
      
         


      

      
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    In case
any event shall occur as to which the provisions of Section 3 are not strictly
applicable, but the failure to make any adjustment would not fairly protect the
purchase rights represented by this Warrant in accordance with the essential
intent and principles of such section, then, in each such case, the Company
shall, at its expense, appoint a firm of independent public accountants of
recognized national standing (who may be the independent public accountants
regularly employed by the Company) to issue a report which shall determine the
adjustment, if any, on a basis consistent with the essential intent and
principles established in Section ___, necessary to preserve without dilution
the purchase rights represented by this Warrant. Upon receipt of such report,
the Company will promptly mail a copy thereof to the Holder and shall make the
adjustments described therein. If at any time conditions shall arise by reason
of action taken by the Company which in the reasonable opinion of the Board of
Directors are not adequately covered by the provisions hereof and which might
materially and adversely affect the rights of the Holder or if at any time any
such conditions are expected to arise by reason of any action contemplated by
the Company, the Board of Directors shall make adjustments, if any (not
inconsistent with the standards established in this Article II), of the Warrant
Price (including, if necessary, any adjustment as to the securities for which
the Warrants may thereafter be exercisable) and any distribution which is or
would be required to preserve the rights of the Holder.

     

    (f) No
Dilution or Impairment. Subject to the provisions of Section 1(a)(B), the
Company will not, by amendment of its restated articles of incorporation or
through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of the Warrants, but will at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holders of the Warrants against dilution or other
impairment.

     

    5.
Notices of Record Date.   If
the Company shall take a record of the holders of its Common Stock (or other
stock or securities at the time receivable upon the exercise of the Warrants)
for the purpose of entitling them to receive any dividend or other distribution,
or any right to subscribe for or purchase any shares of stock of any class or
any other securities, or to receive any other right, or of any voluntary
dissolution, liquidation or winding-up of the Company, then, and in each such
case, the Company will mail or cause to be mailed to each holder of a Warrant at
the time outstanding a notice specifying, as the case may be, (1) the date on
which a record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, or (2) the date on which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock (or such stock or securities at the time receivable upon
the exercise of the Warrants) shall be entitled to exchange their shares of
Common Stock (or such other stock or securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up. Such notice shall be
mailed at least 30 days prior to the date therein
specified.

     

    
      
         


      

      
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    6.
Registration Rights.  Subject to the approval of the Company's
board of directors, the Company shall take all actions necessary to grant to the
Holder with respect to the Warrant Shares the registration rights granted to
"Future Registrable Securities," as that term is defined in the First Amended
Registration Rights Agreement by and between the Company and its
shareholders.

     

    7. Restrictions
on Transfer.  Neither this Warrant nor the Warrant Shares may
be assigned, disposed of, encumbered, or otherwise transferred (any such action,
a "Transfer"), except to an Affiliate (as that term is defined in Rule 405 as
promulgated under the Securities Act), or any officer of the Holder or its
Affiliates, or (ii) to any underwriter in connection with an effective
registration statement ("Registration Statement") filed under the Securities Act
used in connection with a public offering of the Company's common stock ("Public
Offering"), provided as to (ii) that this Warrant is exercised upon such
Transfer and the shares of Common Stock issued upon such exercise are sold by
such underwriter as part of such Public Offering and, as to both (i) and (ii),
only in accordance with and subject to the provisions of the Securities Act and
the rules and regulations promulgated thereunder. If at the time of a Transfer,
a Registration Statement is not in effect to register this Warrant or the
Warrant Shares, the Company may require the Holder to make such representations,
and may place such legends on certificates representing this Warrant, as may be
reasonably required in the opinion of counsel to the Company to permit a
Transfer without such registration.

     

    8.
No
Rights as Shareholder.  Prior
to the exercise of this Warrant, the Holder shall not be entitled to any rights
of a shareholder with respect to the Warrant Shares, including without
limitation the right to vote such Warrant Shares, receive dividends or other
distributions thereon, exercise preemptive rights or be notified of stockholder
meetings, and such Holder shall not be entitled to any notice or other
communication concerning the business or affairs of the Company. However,
nothing in this Section 8 shall limit the right of the holder to be provided the
notices required under this Warrant. In addition, nothing contained in this
Warrant shall be construed as imposing any liabilities on such Holder to
purchase any securities (upon exercise of this Warrant or otherwise) or as a
stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors of the Company.

     

    9.
Compliance
with Securities Act.  The Holder, by acceptance hereof, agrees
that this Warrant and the Warrant Shares to be issued upon exercise hereof are
being acquired for investment and not with a view towards resale and that it
will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares
to be issued upon exercise hereof except under circumstances which will not
result in a violation of the Securities Act. Upon exercise of this Warrant, the
holder hereof shall confirm in writing, in the form of Exhibit A, that the
Warrant Shares so purchased are being acquired for investment and not with a
view toward distribution or resale. This Warrant and all shares of Warrant
Shares issued upon exercise of this Warrant (unless registered under the
Securities Act) shall be stamped or imprinted with the legend indicated on the
first page of this Warrant.

     

    10. Loss
or Mutilation.  Upon receipt by the Company of evidence
satisfactory to it (in the exercise of reasonable discretion) of the ownership
of and the loss, theft, destruction or mutilation of any Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it (in the
exercise of reasonable discretion), and (in the case of mutilation) upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof a new Warrant in lieu of the lost or mutilated
Warrant.

     

    
      
         


      

      
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    11. Reservation of Common
Stock.  The Company shall at all times reserve and keep
available for issue upon the exercise of Warrants such number of its authorized
but unissued shares of Common Stock as will be sufficient to permit the exercise
in full of all outstanding Warrants.

     

    12. Notices.  All
notices and other communications from the Company to the Holder of this Warrant
shall be mailed by first-class registered or certified mail, postage prepaid, to
the address furnished to the Company by Holder.

     

    13. Change;
Waiver.  Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.

     

    14. Headings.  The
headings in this Warrant are for purposes of convenience in reference only, and
shall not be deemed to constitute a part hereof.

     

    15. Law
Governing.  This Warrant shall be construed and enforced in
accordance with and governed by the internal laws, and not the law of conflicts,
of Delaware.

     

    16.  Restrictions on
Shares.  Upon exercise, the Holder of any shares of the
Company’s capital stock shall be subject to the same restrictions that may be
imposed on comparable shares of the same class of Company stock as imposed on
such shares pursuant to any merger, acquisition or other transaction giving rise
to such restrictions on transfer and/or hypothecation by the Holder of such
shares.

     

    THWAPR,
INC.

     

    By:
______________________________________

     

    _________________________________________

     

    [Officer
of Thwapr, Inc.]

     

    ACCEPTED
AND AGREED:

     

    Warrant
Holder

     

    By:
_____________________________________

     

    Name:
______________________

     

    
      
         


      

      
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    SUBSCRIPTION
FORM

     

    (To be
executed only upon exercise of Warrant)

     

    The
undersigned registered owner of this Warrant irrevocably exercises this Warrant
and purchases ____________ of the number of shares of the Common Stock of
THWPRR, INC., a Delaware corporation, purchasable with this Warrant, and
herewith makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant.

     

    The
undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.

     

    By:
______________________________ Date: __________

     

    Name:

     

    Address:

     

    
      
        
        

      

      
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    FORM
OF ASSIGNMENT

     

    FOR VALUE
RECEIVED the undersigned registered owner of this Warrant hereby sells, assigns
and transfers unto the Assignee named below all of the rights of the undersigned
under the within Warrant, with respect to the number of shares of Common Stock
set forth below:

     

    
      
        
          
            
              
                
                  	
                          Name
      of Assignee

                        	 
      	
                          Address

                        	 
      	
                          #
      of Shares

                        
	 
      	 
      	 
      	 
      	 
      
	 
      	
                            

                        	 
      	
                            

                        	 
      


                

              

            

          

        

      

    

     

    and does
hereby irrevocably constitute and appoint ____________________________________
as Attorney-in-Fact to make such transfer on the books of THWAPR, INC., a
Delaware corporation, maintained for the purpose, with full power of
substitution in the premises.

     

    By:
_________________________________ Date: __________

     

    Name:

     

    Address:

     

    Witness:
____________________________________________

     

    
      
         


      

      
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