Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR
OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
COMMON STOCK PURCHASE WARRANT
To Purchase __________ Shares of Common Stock of
LIGHTEN UP ENTERPRISES INTERNATIONAL, INC.
THIS COMMON STOCK PURCHASE WARRANT (this "WARRANT") CERTIFIES
that, for value received, _________________________ (the "HOLDER"), is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date of issuance of this
Warrant (the "INITIAL EXERCISE DATE") and on or prior to the five year
anniversary of the Initial Exercise Date (the "TERMINATION DATE") but not
thereafter, to subscribe for and purchase from Lighten Up Enterprises
International, Inc., a Nevada corporation (the "COMPANY"), up to _______________
shares (the "WARRANT SHARES") of Common Stock, par value $0.001 per share, of
the Company (the "COMMON STOCK"). The purchase price of one share of Common
Stock (the "EXERCISE PRICE") under this Warrant shall be [$0.75/$1.00] subject
to adjustment hereunder.
In addition to the terms defined elsewhere in this Warrant the
following capitalized terms shall have the following meanings:
"BUSINESS DAY" means any day other than a Saturday, Sunday or
legal holiday in the State of California.
"PERSON" means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision
thereof) or any other entity of any kind.
"REGISTRATION STATEMENT" means a registration statement filed
by the Company with the Securities and Exchange Commission ("SEC") for a public
offering and sale of
securities of the Company (other than a registration statement on Form S-8 or
Form S-4, or their successors, or any other form for a limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"SUBSCRIPTION AGREEMENT" means that certain Subscription
Agreement entered into between the original Holder of this Warrant and Lighten
Up Enterprises International, Inc., which provided for, among other things, the
original purchase of this Warrant from Lighten Up Enterprises International,
Inc.
"TRADING DAY" means (i) a day on which the Common Stock is
traded or quoted on a Trading Market, or (ii) if the Common Stock is not traded
or quoted on a Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding to its functions
of reporting price); provided, that in the event that the Common Stock is not
traded or quoted as set forth in (i), and (ii) hereof, that Trading Day shall
mean a Business Day.
"TRADING MARKET" means the following markets or exchanges on
which the Common Stock is listed or quoted for trading on the date in question:
the NASDAQ SmallCap Market, the American Stock Exchange, the New York Stock
Exchange, the NASDAQ National Market or the OTC Bulletin Board.
1. TITLE TO WARRANT. Prior to the Termination Date and
subject to compliance with applicable laws and SECTION 7 of this Warrant, this
Warrant and all rights hereunder are transferable, in whole or in part, to up to
three (3) Persons in any 12 month period, at the office or agency of the Company
by the Holder in person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto properly endorsed. The
transferee shall sign an investment letter in form and substance reasonably
satisfactory to the Company.
2. AUTHORIZATION OF SHARES. The Company covenants that
all Warrant Shares which may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon exercise of such purchase rights in
accordance with the terms and conditions of this Warrant, including, without
limitation, payment of the Exercise Price, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
3. EXERCISE OF WARRANT.
(a) Exercise of the purchase rights represented
by this Warrant may be made at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery
to the Company of a duly executed facsimile copy of the Notice of
Exercise Form annexed hereto, at the office of the Company (or such
other office or agency of the Company as it may designate by notice in
writing to the registered Holder at the address of such Holder
appearing on the books of the Company); PROVIDED, HOWEVER, within five
(5) Trading Days of the date said Notice of Exercise is delivered to
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the Company, the Holder shall have surrendered this Warrant to the
Company and the Company shall have received payment of the aggregate
Exercise Price of the Warrant Shares thereby purchased by wire transfer
or cashier's check drawn on a United States bank. Certificates for
shares purchased hereunder shall be delivered to the Holder within
three (3) Trading Days from the latest to occur of delivery to the
Company of the Notice of Exercise Form, surrender of this Warrant and
payment of the aggregate Exercise Price as set forth above ("WARRANT
SHARE DELIVERY DATE"). This Warrant shall be deemed to have been
exercised and the Warrant Shares (to which the exercise relates) shall
be deemed to have been issued, and Holder or any other person so
designated to be named therein shall be deemed to have become a holder
of record of such shares for all purposes, as of the date of the latest
to occur of (i) delivery to the Company of the Notice of Exercise Form,
(ii) surrender of this Warrant and (iii) payment of the aggregate
Exercise Price as set forth above and all taxes required to be paid by
the Holder, if any, pursuant to SECTION 5 ("EXERCISE DATE").
(b) If this Warrant shall have been exercised in
part, the Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
(c) Subject to the provisions of this SECTION 3,
if there is (i) an effective Registration Statement registering the
resale of the Warrant Shares by the Holder, (ii) the closing bid price
of the Common Stock for each of ten (10) consecutive Trading Days (the
"MEASUREMENT PERIOD", which period shall not have commenced until after
such Registration Statement shall have been declared effective by the
SEC) equals or exceeds [$0.9375/$1.25] (the "THRESHOLD PRICE") (subject
to adjustment for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of the Common Stock
that occur after the date of the Subscription Agreement) and (iii) the
average daily trading volume for the Measurement Period equals or
exceeds 100,000 shares, then the Company may, within two (2) Trading
Days of such period, call for cancellation of all or any portion of
this Warrant for which a Notice of Exercise has not yet been delivered
(such right, a "CALL"). To exercise this right, the Company must
deliver to the Holder an irrevocable written notice (a "CALL NOTICE"),
indicating therein the unexercised portion of this Warrant to which
such notice applies. If the conditions set forth below for such Call
are satisfied, from the period from the date of the Call Notice through
and including the Call Date (as defined below), then any portion of
this Warrant subject to such Call Notice for which a Notice of Exercise
shall not have been received from and after the date of the Call Notice
will be cancelled at 6:30 p.m. (Pacific Standard Time) on the fifteenth
(15th) Trading Day after the date the Call Notice is received by the
Holder (such date, the "CALL DATE"). Any unexercised portion of this
Warrant to which the Call Notice does not pertain will be unaffected by
such Call Notice. In furtherance thereof, the Company covenants and
agrees that it will honor all Notices of Exercise with respect to
Warrant Shares subject to a Call Notice that are tendered from the time
of delivery of the Call Notice through 6:30 p.m. (PST) on the Call
Date. The parties agree that any Notice of Exercise delivered following
a Call Notice shall first
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reduce to zero the number of Warrant Shares subject to such Call Notice
prior to reducing the remaining Warrant Shares available for purchase
under this Warrant. For example, if (x) this Warrant then permits the
Holder to acquire 100 Warrant Shares, (y) a Call Notice pertains to 75
Warrant Shares, and (z) prior to 6:30 p.m. (PST) on the Call Date the
Holder tenders a Notice of Exercise in respect of 50 Warrant Shares,
then (1) on the Call Date the right under this Warrant to acquire 25
Warrant Shares will be automatically cancelled, (2) the Company, in the
time and manner required under this Warrant, will have issued and
delivered to the Holder 50 Warrant Shares in respect of the exercise
following receipt of the Call Notice, and (3) the Holder may, until the
Termination Date, exercise this Warrant for 25 Warrant Shares (subject
to adjustment as herein provided and subject to subsequent Call
Notices). Subject again to the provisions of this SECTION 3(C), the
Company may deliver subsequent Call Notices for any portion of this
Warrant for which the Holder shall not have delivered a Notice of
Exercise. Notwithstanding anything to the contrary set forth in this
Warrant, the Company may not deliver a Call Notice or require the
cancellation of this Warrant (and any Call Notice will be void),
unless, from the beginning of the ten (10) consecutive Trading Days
used to determine whether the Common Stock has achieved the Threshold
Price through the Call Date, (i) the Company shall have honored in
accordance with the terms of this Warrant all Notices of Exercise
delivered by 6:30 p.m. (PST) on the Call Date, (ii) the Registration
Statement shall be effective as to all Warrant Shares and the
prospectus thereunder available for use by the Holder for the resale of
all such Warrant Shares and (iii) the Common Stock shall be listed or
quoted for trading on the Trading Market. The Company's right to Call
the Warrant shall be exercised ratably among all holders of warrants
issued pursuant to Subscription Agreements entered into as part of the
same financing.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares
or scrip representing fractional shares shall be issued upon the exercise of
this Warrant. As to any fraction of a share which the Holder would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price.
5. CHARGES, TAXES AND EXPENSES. Issuance of certificates
for Warrant Shares shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Holder or in such name or
names as may be directed by the Holder; PROVIDED, HOWEVER, that in the event
certificates for Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied
by the Assignment Form attached hereto duly executed by the Holder; and the
Company may require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
6. CLOSING OF BOOKS. The Company will not close its
stockholder books or records in any manner which prevents the timely exercise of
this Warrant, pursuant to the terms hereof.
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7. TRANSFER, DIVISION AND COMBINATION.
(a) Subject to compliance with any applicable
securities laws and the conditions set forth
in SECTIONS 1 and 7(e) hereof, and to the last sentence of Section 1.8
of the Subscription Agreement and the first sentence of Section 1.10 of
the Subscription Agreement, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant at
the principal office of the Company, together with a written assignment
of this Warrant substantially in the form attached hereto duly executed
by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and
deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination or denominations specified in such
instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled.
(b) This Warrant may be divided or combined with
other Warrants (if such other Warrants are upon the same terms, other
than number of Warrant Shares, as this Warrant) upon presentation
hereof at the aforesaid office of the Company, together with a written
notice specifying the names and denominations in which new Warrants are
to be issued, signed by the Holder or its agent or attorney. Subject to
compliance with SECTION 7(a), as to any transfer which may be involved
in such 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.
(c) The Company shall prepare, issue and deliver
at its own expense (other than transfer taxes) the new Warrant or
Warrants under this SECTION 7.
(d) The Company agrees to maintain, at its
aforesaid office, books for the registration and the registration of
transfer of the Warrants.
(e) If, at the time of the surrender of this
Warrant in connection with any transfer of this Warrant, the transfer
of this Warrant shall not be registered pursuant to an effective
registration statement under the Securities Act and under applicable
state securities or blue sky laws, the Company may require, as a
condition of allowing such transfer (i) that the Holder or transferee
of this Warrant, as the case may be, furnish to the Company a written
opinion of counsel reasonably acceptable to the Company (which opinion
shall be in form, substance and scope customary for opinions of counsel
in comparable transactions) to the effect that such transfer may be
made without registration under the Securities Act and under applicable
state securities or blue sky laws, (ii) that the holder or transferee
execute and deliver to the Company an investment letter in form and
substance acceptable to the Company and (iii) that the transferee be an
"accredited investor" as defined in Rule 501 promulgated under the
Securities Act or a qualified institutional buyer as defined in Rule
144A(a) under the Securities Act.
8. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Warrant
does not entitle the Holder to any voting rights or other rights as a
shareholder of the Company prior to the exercise
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hereof. Upon the exercise of this Warrant, the Warrant Shares so purchased shall
be, and be deemed to be, issued to such Holder as the record owner of such
shares as of the close of business on the Exercise Date with respect to such
exercise.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT.
The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and upon surrender and cancellation of such
Warrant, if mutilated, the Company will make and deliver a new Warrant of like
tenor and dated as of such cancellation, in lieu of such Warrant.
10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal holiday, then
such action may be taken or such right may be exercised on the next succeeding
day not a Saturday, Sunday or legal holiday.
11. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES; STOCK SPLITS, ETC. The number and kind of securities purchasable upon
the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time upon the happening of any of the following. In case
the Company shall (i) pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to holders of its outstanding Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then the number of
Warrant Shares purchasable upon exercise of this Warrant immediately prior
thereto shall be adjusted so that the Holder shall be entitled to receive the
kind and number of Warrant Shares or other securities of the Company which it
would have owned or have been entitled to receive had such Warrant been
exercised in advance thereof. Upon each such adjustment of the kind and number
of Warrant Shares or other securities of the Company which are purchasable
hereunder, the Holder shall thereafter be entitled to purchase the number of
Warrant Shares or other securities resulting from such adjustment at an Exercise
Price per Warrant Share or other security obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares purchasable pursuant hereto immediately prior to such adjustment and
dividing by the number of Warrant Shares or other securities of the Company that
are purchasable pursuant hereto immediately after such adjustment. An adjustment
made pursuant to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event. For example, if the Company declared a 1-for-4 reverse stock split and
400 Warrant Shares were purchasable hereunder, then immediately after such
1-for-4 reverse stock split the Warrant Shares purchasable hereunder would
become 100 and the Exercise Price would become [$3.00/$4.00] per share. Such
Exercise Price is obtained by multiplying the current [$0.75/$1.00] Exercise
Price by 400 Warrant Shares purchasable under this example and dividing the
product by 100 Warrant Shares purchasable after the 1-for-4 reverse stock split.
12. REORGANIZATION, RECLASSIFICATION, MERGER,
CONSOLIDATION OR DISPOSITION OF ASSETS. In case the Company shall reorganize its
capital, reclassify its capital stock, consolidate
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or merge with or into another corporation (where the Company is not the
surviving corporation or where there is a change in or distribution with respect
to the Common Stock of the Company), or sell, transfer or otherwise dispose all
or substantially all of its property, assets or business to another corporation
and, pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the successor
or acquiring corporation, or any cash, shares of stock or other securities or
property of any nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of the successor or
acquiring corporation ("OTHER PROPERTY"), are to be received by or distributed
to the holders of Common Stock of the Company, then the Holder shall have the
right thereafter to receive, upon exercise of this Warrant, the number of shares
of common stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and Other Property receivable upon or as a
result of such reorganization, reclassification, merger, consolidation or
disposition of assets by a Holder of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such event. In case of
any such reorganization, reclassification, merger, consolidation or disposition
of assets ("Extraordinary Transaction"), the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Warrant to be performed and observed by the Company and all the obligations and
liabilities hereunder, subject to such modifications as may be deemed
appropriate (as determined in good faith by resolution of the Board of Directors
of the Company) in order to provide for adjustments of Warrant Shares for which
this Warrant is exercisable which shall be as nearly equivalent as practicable
to the adjustments provided for in this SECTION 12. As soon as commercially
practicable following the Extraordinary Transaction, the successor or acquiring
corporation (if other than the Company), shall deliver to Holder a new warrant
in repacement of this Warrant consistent with the provisions referenced in the
immediately preceding sentence against receipt by such successor or acquiring
corporation of the original of this Warrant. For purposes of this SECTION 12,
"common stock of the successor or acquiring corporation" shall include stock of
such corporation of any class which is not preferred as to dividends or assets
over any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock
or other securities which are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or the
happening of a specified event and any warrants or other rights to subscribe for
or purchase any such stock. The foregoing provisions of this SECTION 12 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
13. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may
at any time during the term of this Warrant reduce the then current Exercise
Price to any amount and for any period of time deemed appropriate by the Board
of Directors of the Company.
14. NOTICE OF ADJUSTMENT. Whenever the number of Warrant
Shares or number or kind of securities or other property purchasable upon the
exercise of this Warrant or the Exercise Price is adjusted, as herein provided,
the Company shall give notice thereof to the Holder, which notice shall state
the number of Warrant Shares (and other securities or property) purchasable upon
the exercise of this Warrant and the Exercise Price of such Warrant Shares (and
other securities or property) after such adjustment, setting forth a brief
statement of the facts
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requiring such adjustment and setting forth the computation by which such
adjustment was made.
15. NOTICE OF CORPORATE ACTION. If at any time:
(a) the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to
receive a dividend or other distribution, or any right to subscribe for
or purchase any evidences of its indebtedness, any shares of stock of
any class or any other securities or property, or to receive any other
right, or
(b) there shall be any capital reorganization of
the Company, any reclassification or recapitalization of the capital
stock of the Company or any consolidation or merger of the Company with
(other than a consolidation or merger in which the Company is the
surviving corporation), or any sale, transfer or other disposition of
all or substantially all the property, assets or business of the
Company to, another corporation, or
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least fifteen (15) days' prior written notice of the date on which a record date
shall be selected for such dividend, distribution or right or for determining
rights to vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least
fifteen (15) days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause also shall specify
(i) the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the date on which the holders of Common Stock
shall be entitled to any such dividend, distribution or right, and the amount
and character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property
deliverable upon such disposition, dissolution, liquidation or winding up. Each
such written notice shall be sufficiently given if addressed to Holder at the
last address of Xxxxxx appearing on the books of the Company and delivered in
accordance with SECTION 17(d).
16. AUTHORIZED SHARES. The Company covenants that during
the period the Warrant is outstanding, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this
Warrant (the "REQUIRED MINIMUM"). If, on any date, the number of authorized but
unissued (and otherwise unreserved) shares of Common Stock is less than the
Required Minimum on such date, then the Board of Directors of the Company shall
use commercially reasonable efforts to amend the Company's certificate or
articles of incorporation to increase the number of authorized but unissued
shares of Common Stock to at least the
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number of shares of Common Stock that would result from the full exercise of the
Warrant Shares at such time, as soon as possible and in any event not later than
the 75th day after such date. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action as may be
necessary to assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of
the Trading Market upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the
Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant. Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (b) take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this
Warrant, and (c) use commercially reasonable efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.
Before taking any action which would result in an adjustment
in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
17. MISCELLANEOUS.
(a) GOVERNING LAW. This Warrant shall be
governed by and construed in accordance with the internal laws of the
State of California without regard to the conflicts of laws principles
thereof. The parties hereto hereby irrevocably agree that any suit or
proceeding arising directly and/or indirectly pursuant to or under this
Warrant, shall be brought solely in a federal or state courts located
in the State of California. By its execution hereof, the parties hereby
covenant and irrevocably submit to the IN PERSONAM jurisdiction of the
federal and state courts located in the State of California and agree
that any process in any such action may be served upon any of them
personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as
if personally served upon them in the State of California. The parties
hereto waive any claim that any such jurisdiction is not a convenient
forum for any such suit or proceeding and any defense or lack of IN
PERSONAM jurisdiction with respect thereto.
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(b) RESTRICTIONS. The Holder acknowledges that
the Warrant Shares acquired upon the exercise of this Warrant, if not
registered, will have restrictions upon resale imposed by state and
federal securities laws.
(c) XXXXXXXXX AND ATTORNEYS' FEES. No course of
dealing or any delay or failure to exercise any right hereunder on the
part of Holder shall operate as a waiver of such right or otherwise
prejudice Xxxxxx's rights, powers or remedies, notwithstanding the fact
that all rights hereunder terminate on the Termination Date. If any
action, suit, arbitration or other proceeding for the enforcement of
this Warrant is brought with respect to or because of an alleged
dispute, breach, default or misrepresentation in connection with any of
the provisions hereof, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred
in that proceeding, in addition to any other relief to which it or he
may be entitled.
(d) NOTICES. All notices that are required or
may be given pursuant to this Warrant must be in writing and delivered
personally, by a recognized courier service, by a recognized overnight
delivery service, or by registered or certified mail, postage prepaid,
to the parties at the following addresses (or to the attention of such
other Person or such other address as any party may provide to the
other parties by notice in accordance with this section):
If to the Holder:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Attention:
---------------------------------
Telephone:
---------------------------------
With a copy to:
--------------------------------------------
--------------------------------------------
Attention:
---------------------------------
Telephone:
---------------------------------
If to the Company:
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
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With a copy to:
Xxxxxxxxx Xxxxxxx, LLP
Met Life Building
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Any such notice or other communication will be deemed to have been
given and received (whether actually received or not) on the day it is
personally delivered or delivered by courier or overnight delivery
service or, if mailed, when actually received.
(e) REMEDIES. Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under
this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Warrant and hereby agrees to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
(f) SUCCESSORS AND ASSIGNS. Subject to
applicable securities laws, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of
Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant and shall be
enforceable by any such Holder.
(g) AMENDMENT. This Warrant may be modified or
amended only with the written consent of the Company and the Holder.
Waiver of any provision of this Warrant shall be in writing.
(h) SEVERABILITY. Wherever possible, each
provision of this Warrant shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or
the remaining provisions of this Warrant.
(i) HEADINGS. The headings used in this Warrant
are for the convenience of reference only and shall not, for any
purpose, be deemed a part of this Warrant.
********************
11
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: ___________ ___, 2005
LIGHTEN UP ENTERPRISES INTERNATIONAL, INC.
By:________________________________________
Name:
Title:
12
NOTICE OF EXERCISE
To: Lighten Up Enterprises International, Inc.
(1) The undersigned hereby elects to purchase ________ Warrant
Shares of the Company pursuant to the terms of the attached Warrant (only if
exercised in full), and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Payment shall take the form of lawful money of the United
States.
(3) Please issue a certificate or certificates representing
said Warrant Shares in the name of the undersigned or in such other name as is
specified below:
-------------------------------
The Warrant Shares shall be delivered to the following:
-------------------------------
-------------------------------
-------------------------------
(4) ACCREDITED INVESTOR. The undersigned is an "accredited
investor" as defined in Regulation D under the Securities Act of 1933, as
amended.
[PURCHASER]
By: ______________________________
Name:
Title:
Dated: ________________________
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights
evidenced thereby are hereby assigned to
_______________________________________________ whose address is
__________________________________________________________________.
__________________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
