**EXHIBIT 4.6**

 

**THIS WARRANT AND THE COMMON STOCK RECEIVABLE UPON THEEXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (“THEACT”), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE TRANSFERRED OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVEREGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, REASONABLYSATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED.**

 

**Void After 5:00 P.M., Pacific Time,on March 31, 2010**

 

**WARRANT TO PURCHASE COMMON STOCK**

 

**CENTIV, INC.**

 
| **WARRANT NO. W-      ** |   | **ORIGINAL ISSUE DATE:  MARCH 31, 2003** |
|--------------------------------------------------------|--------|-----------------------------------------------|

 

This is to Certify That, **FOR VALUE RECEIVED**,                         (“Holder”) is entitled to purchase, subject to the provisions of this Warrant,from **CENTIV,INC.**(the “Company”), at any time until 5:00 P.M., PacificTime, on March 31, 2010 (“Expiration Date”),            shares(“Shares”) of the Company’s Common Stock, $.001 par value per share (“CommonStock”), which number is subject to adjustment from time to time as provided inthis Warrant.  The exercise price of theWarrant shall be $0.50 per Share, subject to adjustment as provided in Section8 hereof (“Exercise Price”).

 

This Warrant has been issued pursuant to theSecurities Purchase Agreement dated March 31, 2003, among the Company and thepurchasers identified therein (as amended from time to time, the “PurchaseAgreement”).  The Holder is entitled tothe rights in the Purchase Agreement and in the Investor Rights Agreement datedMarch 31, 2003 among the Company and the aforementioned purchasers (as amendedfrom time to time, the “Investor Rights Agreement”), including the rightsrelating to the registration of the shares of Common Stock issuable under thisWarrant, unless the Holder is not a party to those agreements and has not beenvalidly assigned rights therein.

 

1.                                       Exercise of Warrant. This Warrant may be exercised in whole or in part at any time or fromtime to time until the Expiration Date or if the Expiration Date is a day onwhich banking institutions are authorized by law to close, then on the nextsucceeding day which shall not be such a day, by presentation and surrenderhereof to the Company or at the office its stock transfer agent, if any, withthe Purchase Form annexed hereto as Exhibit A duly executed and, unless a netexercise is being made in accordance with Section 2, accompanied by payment ofthe Exercise Price for the number of Shares specified in such Form, in cash orcheck payable to the order of the Company. The Shares so purchased shall be deemed to be issued to the Holder orthe Holder’s designee, as the record owner of such shares, as of the close ofbusiness on the date on which this Warrant shall have been surrendered and thecompleted Exhibit A shall have been delivered and, unless a net exercise isbeing made in accordance with Section 2, payment shall have been made for suchShares as set forth above or, if such day is not a business day, on the nextsucceeding business day.  The Shares sopurchased, representing the aggregate number of shares

 

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specified in the executedExhibit A, shall be delivered to the holder hereof within a reasonable time,not exceeding ten (10) business days, after this Warrant shall have been soexercised.  If (a) the Company’s transferagent is participating in the Depository Trust Company (“DTC”) Fast AutomatedSecurities Transfer program, and (b) the certificates therefor are not requiredto bear a legend and the holder is not obligated to return such certificate forthe placement of a legend thereon, the Company, upon request of the Holder,shall cause its transfer agent to electronically transmit the Shares sopurchased to the Holder by crediting the account of the holder or its nomineewith DTC through its Deposit Withdrawal Agent Commission system (“DTC Transfer”).  If the aforementioned conditions to a DTCTransfer are not satisfied or such transfer is not so requested by the Holder,the Company shall deliver to the holder physical certificates representing theShares so purchased.

 

If this Warrant is exercised in part only, the Companyshall, upon surrender of this Warrant for cancellation, execute and deliver anew Warrant evidencing the right of the Holder to purchase the balance of theShares purchasable hereunder. Upon receipt by the Company of this Warrant atthe office of the Company, in proper form for exercise and, unless a netexercise if being made in accordance with Section 2, accompanied by theExercise Price, the Holder shall be deemed to be the holder of record of theShares issuable upon such exercise, notwithstanding that the stock transferbooks of the Company shall then be closed or that cer­tificates representingsuch Shares shall not then be actually delivered to the Holder.

 

2.                                       Net Exercise. The Holder, in lieu of paying cash uponthe exercise of the Warrant, may receive a number of shares of Common Stockcalculated according to the following formula without the payment of any cashin consideration for the cancellation of all or a portion of the Warrant:

 

X =[(V - E) x N]  ̧ V

 

where “X” equals thenumber of shares of Common Stock to be received upon cancellation of theWarrant (or the portion hereof being cancelled) pursuant to this Section 2; “N”equals the number of shares of Common Stock issuable upon Warrant exercise ifexercised for cash; “E” equals the exercise price of the Warrant; and “V”equals the value of a share of Common Stock on the date the Holder exercisesthis Warrant calculated as follows: (a) if the stock of the Company is listedon any established stock exchange or a national market system, including,without limitation, the Nasdaq Stock Market, its value shall be the closingsales price for such stock or the closing bid if no sales were reported, asquoted on such system or exchange (or the largest such exchange) for the datethe value is to be determined (or if there are no sales for such date, then forthe last preceding business day on which there were sales), as reported in the WallStreet Journal or similar publication; or (b) if the stock of the Companyis regularly quoted by a recognized securities dealer but selling prices arenot reported, its value shall be the mean between the high bid and low askedprices for the stock on the date the value is to be determined (or if there areno quoted prices for such date, then for the last preceding business day onwhich there were quoted prices).

 

3.**                                      **Reservation of Shares. The Company hereby agrees that at all times that this Warrant remainsoutstanding there shall be reserved for issuance and/or delivery upon exerciseof this Warrant such number of shares of Common Stock as shall be required forissuance or delivery upon exercise of this Warrant.

 

4.**                                      **Limit on Fractional Shares. No fractional Shares, shares or scrip repre­senting fractional sharesshall be issued upon the exercise of this Warrant.

 

5.                                       Shares to be Fully Paid. All Shares will, upon issuance in accordance with the terms of thisWarrant, be validly issued, fully paid and nonassessable and free from alltaxes, liens, claims and encumbrances.

 

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6.                                       Exchange, Assignment or Loss of Warrant. This Warrant is exchangeable, without expense, at the option of theHolder, upon presentation and surrender hereof to the Company for otherWarrants of different denominations entitling the Holder thereof to purchase(under the same terms and conditions as provided by this Warrant) in theaggregate the same number of Shares purchasable hereunder.  Subject to Section 12, any transfer or assignmentshall be made by surrender of this Warrant to the Company with the AssignmentForm annexed hereto as Exhibit B duly executed and with funds sufficient to payany transfer tax; whereupon the Company shall, without charge, execute anddeliver a new Warrant in the name of the assignee named in such instrument ofassignment and this Warrant shall promptly be canceled.  This Warrant may be divided or combined withother Warrants which carry the same rights upon presentation hereof at theoffice of the Company or at the office of its stock transfer agent, if any,together with a written notice specifying the names and denominations in whichnew Warrants are to be issued and signed by the Holder hereof.  The term “Warrant” as used here­in includesany warrants issued in substitution for or replacement of this Warrant, or intowhich this Warrant may be divided or exchanged.  Upon receipt by the Company of evidence satisfactory to it of theloss, theft, destruction or mutilation of this Warrant, and (in the case ofloss, theft or destruction) of reasonably satisfactory indemnification, andupon surrender and cancellation of this Warrant, if mutilated, the Company willexecute and deliver a new Warrant of like tenor and date.  Subject to such right of indemnification,any such new Warrant executed and de­livered shall constitute an additionalcontractual obligation on the part of the Company, whether or not this Warrantso lost, stolen, destroyed or mutilated shall be at any time enforceable byanyone.

 

7.                                       Rights of the Holder. The Holder shall not, by virtue hereof, be entitled to any rights of ashareholder in the Com­pany, either at law or equity, and the rights of theHolder are limited to those expressed in the Warrant (and, if the Holder is aparty or an assignee or rights therein, the Purchase Agreement and the InvestorRights Agreement) and are not enforce­able against the Company except to theextent set forth herein (or therein).

 

8.**                                      **Adjustment Provisions. The number and type of shares issuable upon exercise of this Warrantshall be subject to adjustment from time to time as follows:

 

(a)                                  If the number of shares of Common Stockoutstanding is increased by a stock dividend payable in shares of Common Stockor by a subdivision or split-up of shares of Common Stock, then, following therecord date for the determination of holders of Common Stock entitled toreceive such stock dividend, subdivision or split-up, the number of shares ofCommon Stock for which this Warrant is exercisable and the Exercise Price shallbe appropriately adjusted so that the number of shares of Common Stock issuableon exercise of this Warrant shall be increased, and the Exercise Price shall bedecreased, in proportion to such increase in outstanding shares.

 

(b)                                 If the number of shares of Common Stockoutstanding is decreased by a combination of the outstanding shares of CommonStock, then, following the record date for such combination, the number ofshares of Common Stock for which this Warrant is exercisable and the ExercisePrice shall be appropriately adjusted so that the number of shares of CommonStock issuable on exercise of this Warrant shall be decreased, and the ExercisePrice increased, in proportion to such decrease in outstanding shares.

 

(c)                                  In the event of any capitalreorganization of the Company, any reclassification of the stock of the Company(other than a change in par value or from no par value to par value or from parvalue to no par value or as a result of a stock dividend or subdivision,split-up or combination of shares), any consolidation or merger of the Company,or any sale, lease,

 

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conveyance to anotherperson of the property of the Company pursuant to which the Company’s CommonStock is converted into other securities, cash or assets, each Warrant shallafter such reorganization, reclassification, consolidation, merger orconveyance be exercisable into the kind and number of shares of stock or othersecurities or property of the Company or of the corporation resulting from suchconsolidation or surviving such merger to which the holder of the number ofshares of Common Stock deliverable (immediately prior to the time of suchreorganization, reclassification, consolidation or merger) upon exercise ofsuch Warrant would have been entitled upon such reorganization,reclassification, consolidation, merger or conveyance.  The provisions of this clause shallsimilarly apply to successive reorganizations, reclassifications,consolidations, mergers or conveyances.

 

(d)                                 If any event occurs of the type contemplatedby the adjustment provisions of this Section 8 but not expressly provided forby such provisions, the Company will give notice of such event to the Holders,and the Company’s Board of Directors will make an appropriate adjustment in theExercise Price and the number of shares of Common Stock acquirable uponexercise of this Warrant so that the rights of the holder shall be neitherenhanced nor diminished by such event.

 

9.                                       Statement of Adjustment. Whenever the Exercise Price shall be adjusted as provided in Section 8,the Company shall make available for inspection by the Holder during regularbusiness hours, at its principal executive offices or at such other place asmay be designated by the Company, a statement, signed by its chief executiveofficer or president, showing in detail the facts requiring such adjustment andthe Exercise Price that shall be in effect after such adjustment.  The Company shall also cause a copy of suchstatement to be sent by first class certified mail, return receipt requestedand postage prepaid, to Holder at such Holder’s address appearing on theCompany’s records.

 

10.                                 Notification of Other Events. In case at any time:

 

(a) the Company shalldeclare any dividend upon the Common Stock payable in shares of stock of any classor make any other distribution (other than dividends or distributions payablein cash out of retained earnings consistent with the Company’s past practiceswith respect to declaring dividends and making distributions) to the holders ofthe Common Stock;

 

(b) the Company shalloffer for subscription pro rata to the holders of the Common Stock anyadditional shares of stock of any class or other rights;

 

(c) there shall be anycapital reorganization of the Company, or reclassification of the Common Stock,or consolidation or merger of the Company with or into another corporation orentity such that the holders of the Company’s capital stock immediately priorto such transaction or series of related transactions hold less than 50% of thecapital stock of the surviving corporation or entity immediately after suchtransaction or series of transactions, or sale of all or substantially all ofthe Company’s assets to another corporation or entity; or

 

(c) there shall be avoluntary or involuntary dissolution, liquidation or winding-up of the Company;

 

then, in each such case,the Company shall give to the Holder (i) notice of the date or estimated dateon which the books of the Company shall close or a record shall be taken fordetermining the holders of Common Stock entitled to receive any such dividend,distribution or subscription rights or for determining the holders of CommonStock entitled to vote in respect of any such reorganization, reclassification,consolidation, merger, sale, dissolution, liquidation or winding-up and (ii) inthe case of

 

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any such reorganization,reclassification, consolidation, merger, sale, dissolution, liquidation orwinding-up, notice of the date (or, if not then known, a reasonable estimatethereof by the Company) when the same shall take place.  Such notice shall also specify the date onwhich the holders of Common Stock shall be entitled to receive such dividend,distribution or subscription rights or to exchange their Common Stock for stockor other securities or property deliverable upon such reorganization,reclassification, consolidation, merger, sale, dissolution, liquidation, orwinding-up, as the case may be.  Suchnotice shall be given at least twenty (20) days prior to the record date or thedate on which the Company’s books are closed in respect thereto.  The Company shall publicly disclose theevents with respect to which any notice delivered hereunder relates prior todelivery of such notice to the holder of this Warrant.

 

11.                                 Notices.  Unlessotherwise provided herein, any notice, request, instruction or other documentto be given hereunder by any party shall be in writing and delivered in personor by courier or by facsimile transmission (followed by mailing certified mail,postage prepaid, return receipt requested) or mailed by certified mail, postageprepaid, return receipt requested, as follows: (a) to the Holder at theHolder’s address as it appears in the records of the Company or at such otheraddress as the Holder may otherwise indicate in a written notice delivered tothe Company or (b) to the Company, at 998 Forest Edge Drive, Vernon Hills, IL60061, Attn: President, or at such other address as the Company may otherwiseindicate in a written notice delivered to Holder.  All such notices, requests, instructions, documents and othercommunications will (i) if delivered personally to the address as provided inthis Section 11, be deemed given upon delivery, (ii), if delivered by facsimiletransmission to the facsimile number as provided in this Section 8, be deemedgiven upon receipt, and (iii) if delivered by mail in the manner describedabove to the address as provided in this Section 11, five (5) days after beingplaced in the mail.

 

12.                                 Transfer to Comply with the SecuritiesAct of 1933.  The Company may cause the following legend,or one similar thereto, to be set forth on each certificate representing theShares or any other security issued or issuable upon exer­cise of this Warrant:

 

The securitiesrepresented by this certificate may not be offered for sale, sold or otherwisetransferred in the absence of an effective registration statement under theSecurities Act of 1933 (the “Act”), and under any applicable state securitieslaw, an opinion of counsel satisfactory to the Company that such registrationis not, in the circumstances required, or evidence satisfactory to the Companythat the Shares have been sold in compliance with Rule 144 promulgated underthe Act.

 

Neither this Warrant nor any Shares issued upon theexercise hereof shall be transferred other than pursuant to an effectiveregistration statement under the Securities Act or an exemption from theregistration provisions thereof. Notwithstanding the foregoing, following the date on which the Shares havebeen registered under the Securities Act of 1933, as amended (the “Act”),pursuant to the Investor Rights Agreement or otherwise may be sold by theholder pursuant to Rule 144(k) promulgated under the Act (or a successor rule),the Shares shall not bear any restrictive legend.

 

13.                                 Exemption from Registration for WarrantExercise.

 

The Company and the Holder acknowledge that theCompany will be relying on an exemption from the registration requirements ofthe Act to deliver Shares to the Holder(s) upon the exercise of theWarrant.  The Holder agrees to providethe Company with such information and representations as may be requested bythe Company in order to establish a claim to an exemption from the registrationrequirements of the Act, and any applicable state securities laws, including, arepresentation that the Holder(s) are taking the Shares for investment, and notwith a view to distribution.

 

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14.                                 Governing Law; Jurisdiction. This Warrant shall be governed by and construed in accordance with thelaws of the State of California applicable to contracts made and to beperformed in the State of California. Each of the Company and the Holder irrevocably consents to thenon-exclusive jurisdiction of the United States federal courts and state courtslocated in San Francisco, California in any suit or proceeding based on orarising under this Warrant.  Each of theCompany and the Holder irrevocably waives any objection to the laying of venueand the defense of an inconvenient forum to the maintenance of such suit orproceeding in such courts.  Each of theCompany and the Holder further agrees that service of process upon it mailed bycertified or registered mail to the address set forth in Section 11 shall bedeemed in every respect effective service of process upon it in any such suitor proceeding.  Nothing herein shallaffect the Holder’s right to serve process in any other manner permitted bylaw.  Each of the Company and the Holderagrees that a final non-appealable judgment in any such suit or proceedingshall be conclusive and may be enforced in other jurisdictions by suit on suchjudgment or in any other lawful manner.

 

15.                                 Successors and Assigns. The rights evidenced hereby shall inure to the benefit of and be bindingupon the successors of the Company and the successors and assigns of the Holderhereof.  The provisions of this Warrantare intended to be for the benefit of all Holders from time to time of thisWarrant and shall be enforceable by any such Holder.

 

16.                                 Amendment.  This Warrantmay not be modified or amended or the provisions hereof waived except by thewritten consent of the Company and the Holder.

 

17.                                 Other Actions. The Company will not avoid or seek to avoid the observance or performanceof any of the terms to be observed or performed by it hereunder, but will atall times in good faith assist in the carrying out of all the provisions ofthis Warrant and in the taking of all such action as may reasonably berequested by the holder of this Warrant in order to protect the economicbenefit inuring to the holder hereof and the exercise privilege of the holderof this Warrant against dilution or other impairment, consistent with the tenorand purpose of this Warrant.

 
|   | CENTIV, INC. |   |
|--------|--------------|--------|
|   |         |   |
|   | By:          |   |
|   |         | Name:  |   |
|   |         | Title: |   |

 

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**EXHIBIT A**

 

**PURCHASE FORM**

**Dated:              ,200   **

 

The undersigned herebyirrevocably elects to exercise the Warrant to the extent of purchasing               shares of Common Stock of Centiv, Inc.

 

[Check one of thefollowing:]

 

           The undersigned is tendering herewith$              in payment of the exercise price of the shares purchased.

 

           The undersigned elects to cancel the Warrant in consideration for the issuanceof shares in lieu of a cash payment pursuant to Section 2 of the Warrant.

 

[   ]  The undersigned requests that the Companycause its transfer agent to electronically transmit the Common Stock beingacquired hereby to the account of the undersigned or its nominee (which is                                 )with DTC through its Deposit Withdrawal Agent Commission System (“DTCTransfer”).

 

**INSTRUCTIONS FOR REGISTRATION OFSHARES**

 
| Name:            |                                          |   |
|------------------|-----------------------------------------------|--------|
|             | (Please  typewrite or print in block letters) |   |
|             |                                          |   |
| Address:         |                                          |   |
|             |                                          |   |
| Signature:  |                                          |   |
|                  |                                               |        |  |

 

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**EXHIBIT B**

 

**ASSIGNMENT FORM**

**Dated:                   ,200  **

** **

**FOR VALUE RECEIVED,**                                                                                            

 

hereby sells, assigns andtransfers unto

 
| Name:    |                                          |   |
|----------|-----------------------------------------------|--------|
|     | (Please  typewrite or print in block letters) |   |
|     |                                          |   |
| Address: |                                          |   |
|          |                                               |        |  |

 

the right to purchaseShares represented by this Warrant to the extent of                         sharesCommon Stock as to which such right is exercisable and does hereby irrevocablyconstitute and appoint **                               **,attorney, to transfer the same on the books of the Company with full power ofsubstitution in the premises.

 
|   | Signature: |   |
|--------|------------|--------|

 

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