THE WARRANT REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THIS WARRANT AND SUCH SECURITIES MAY NOT BE SOLD, ASSIGNED OR
OTHERWISE TRANSFERRED EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO THE
COMPANY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
CORPORATION STATING THAT SUCH SALE, ASSIGNMENT OR TRANSFER IS EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND LAWS.
---------------------------
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. W-___ ______ Shares
BY THIS WARRANT (this "Warrant"), GEXA CORP., a Texas corporation (the
"Company"), certifies that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, ____________________, a
____________________, along with its registered assigns (collectively "Holder"),
is entitled to subscribe for and purchase from the Company, subject to the terms
and conditions set forth herein, at any time after July 8, 2004, ("Effective
Date"), but prior to July 16, 2010, or, if such date is not a business day, the
next succeeding business day (the "Exercise Period"), ______ (subject to
adjustment as set forth herein) fully paid and non-assessable shares (the
"Shares") of the Company's Common Stock, $0.01 par value per share (the "Common
Stock"), at a price per share equal to $1.00 (subject to adjustment as set forth
herein) (the "Exercise Price"), for the aggregate purchase price of
$[______].00.
1. Exercise of Warrant, Company Office. This Warrant may be exercised at
any time or from time to time during the Exercise Period as to the entire number
or any lesser number of whole Shares, by the surrender of this Warrant to the
Company at its office at 00 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, or
such other place as is designated in writing by the Company pursuant to this
Section 1, together with (a) a duly executed election in substantially the form
of Exhibit A attached hereto and made a part hereof for all purposes, and (b) a
check drawn on Holder's bank, provided good funds exist in said account, payable
to the order of the Company in an amount equal to the Exercise Price multiplied
by the number of Shares of Common Stock being purchased pursuant to such
election. For so long as this Warrant is outstanding, the Company shall continue
to maintain an office in Houston, Texas, where notices, presentations and
demands in respect of this Warrant may be made upon it and shall notify the
Holder in writing at least fifteen (15) days before changing the location of any
such office.
2. Stock Ownership; Stock Certificates; Partial Exercise. Upon each
exercise of this Warrant, the Holder shall be deemed to be the holder of record
of the Shares of Common Stock issuable upon such exercise, when such transfer is
effected on the stock transfer books of the Company. In the event the Company
fails to record such Warrant exercise on the stock transfer books, then the
Holder shall be deemed to be the holder of record of the Shares of Common Stock,
notwithstanding that the stock transfer books of the Company shall not have been
closed or certificates representing such Shares shall not then have been
actually delivered to the Holder. As soon as possible after each such exercise
of this Warrant, the Company shall issue and deliver to the Holder a certificate
or certificates for the Shares issuable upon such exercise issued in such
denominations as may be specified by the Holder and registered in the name of
the Holder or, subject to Sections 3 and 10 hereof, such other name or names as
shall be designated in the Holder's election to exercise. If this Warrant should
be exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the right of the
Holder to purchase the balance of the Shares subject to purchase hereunder on
the terms and conditions set forth herein (including all changes and adjustments
that have occurred hereunder). The Company will, at the time of each exercise of
this Warrant, upon the request of the Holder hereof, acknowledge in writing its
continuing obligation to afford to the Holder all rights to which the Holder
shall continue to be entitled after such exercise in accordance with the terms
of this Warrant; provided, however, that if the Holder of this Warrant shall
fail to make any such request, such failure shall not affect the continuing
obligation of the Company to afford such rights to the Holder.
3. Company Records; Transfer, Assignment, Exchanges.
(a) Company Records. This Warrant, and any warrants issued in substitution
hereof, upon complete or partial transfer, assignment or exercise (the
"Warrants") shall be numbered and shall be registered in the warrant register of
the Company (the "Warrant Register") as they are issued. The Company shall treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes, except that if any Warrant is properly
transferred or assigned and notice of such transfer or assignment is given to
the Company, the Company shall treat the transferee or assignee as the owner
thereof for all purposes.
(b) Transfers, Assignments, and Exchanges. The Warrant shall be transferred
by the Company upon delivery thereof duly endorsed by the Holder or by its duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In case of transfer by
executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced if requested by the
Company in its reasonable discretion. The Company shall immediately register all
assignments and transfers in the Warrant Register and, upon any registration of
assignment or transfer, the Company shall deliver a new Warrant or Warrants to
the person or entity entitled thereto on the terms and conditions set forth
herein (including all changes and adjustments that have occurred hereunder). A
Warrant, if properly transferred or assigned, may be exercised by a subsequent
Holder without having a new Warrant issued. The Warrants may be exchanged at the
option of the Holder thereof for another Warrant, or other Warrants, of
different denominations and representing in the aggregate the right to purchase
the same number of Shares of Common Stock on the terms and conditions set forth
herein (including all changes and adjustments that have occurred hereunder) upon
surrender to the Company or its duly authorized agent. All provisions of this
Section 3 shall be subject to Section 10 below.
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4. Reservation of Shares. The Company shall reserve and keep available at
all times solely for the purpose of providing for the exercise of this Warrant
the maximum number of Shares of Common Stock as to which this Warrant may then
be exercised. All such Shares shall be duly authorized and free of preemptive
rights and, when issued upon such exercise, shall be validly issued and fully
paid and non-assessable with no liability on the part of the holders thereof.
5. Certain Adjustments.
(a) Number of Shares; Exercise Price. The number of Shares of Common Stock
which the Holder of this Warrant shall be entitled to receive upon each exercise
hereof shall be determined by multiplying the number of Shares of Common Stock
which would otherwise (but for the provisions of this Section 5) be issuable
upon such exercise, as designated by the Holder hereof, by a fraction of which
(i) the numerator is $1.00 and (ii) the denominator is the Exercise Price in
effect on the date of such exercise. The Exercise Price shall be adjusted and
readjusted from time to time as provided in this Section 5 and, as so adjusted
or readjusted, shall remain in effect until a further adjustment or readjustment
thereof is required by this Section 5.
(b) Issuance of Additional Shares of Stock or Certain Convertible
Securities. If the Company shall issue any Common Stock without consideration or
for consideration per share less than $1.50 per share (the "Minimum Price"),
other than shares of Common Stock issued or issuable pursuant to options,
warrants or other rights to purchase or acquire Common Stock outstanding as of
the date of this Warrant, the Exercise Price in effect immediately prior to each
such issuance shall immediately (except as otherwise expressly provided below)
be reduced in accordance with the following formula:
EP1 = $[______].00.
[(O+N)/(1-P)] - (O+N)
where:
EP1 = the adjusted Exercise Price;
O = the total number of shares of Common Stock
outstanding immediately prior to the
issuance in question, on a fully diluted
basis, excluding the original number of
Shares issuable upon exercise of this
Warrant;
N = the number of additional shares of Common
Stock issued in such issuance; and
P = the numerical percentage ownership of the
Common Stock of the Company, prior to such
issuance of any additional shares of Common
Stock, represented by the Shares of Common
Stock issued or issuable upon exercise of
this Warrant, such percentage being
determined on a fully diluted basis
inclusive of the Shares issued and issuable
hereunder.
3
For the purposes of any adjustment of the Exercise Price pursuant to
this Section 5(b), the following provisions shall be applicable:
(A) Cash. In the case of the issuance of Common Stock for cash, the amount
of the consideration received by the Company shall be deemed to be the amount of
the cash proceeds received by the Company for such Common Stock after deducting
therefrom any discounts, commissions, taxes or other expenses allowed, paid or
incurred by the Company for any underwriting or otherwise in connection with the
issuance and sale thereof.
(B) Consideration Other Than Cash. In the case of the issuance of Common
Stock (otherwise than upon the conversion of shares of capital stock or other
securities of the Company) for a consideration in whole or in part other than
cash, including securities acquired in exchange therefor (other than securities
of the Company that by their terms are exchangeable for such Common Stock), the
consideration other than cash shall be deemed to be the fair value thereof as
determined in good faith by the Board of Directors of the Company and
irrespective of any accounting treatment; provided, that such fair value as
determined by the Board of Directors shall not exceed the aggregate Current
Market Price (as hereinafter defined) of the shares of Common Stock being issued
as of the date on which the Board of Directors authorizes the issuance of such
shares.
(C) Options and Convertible Securities. In the case of the issuance of (i)
options, warrants or other rights to purchase or acquire Common Stock (whether
or not at the time exercisable), (ii) securities by their terms convertible into
or exchangeable for Common Stock (whether or not at the time so convertible or
exchangeable), or (iii) options, warrants or rights to purchase such convertible
or exchangeable securities (whether or not at the time exercisable), the
subparagraphs below shall apply. The term "Fully Diluted Common Stock" shall
mean (i) the aggregate of all issued and outstanding shares of Common Stock of
the Company, and (ii) the aggregate maximum number of shares of Common Stock as
determined in subparagraph 1 below, and (iii) the aggregate maximum number of
shares of Common Stock as determined in subparagraph 2 below:
(1) the aggregate maximum number of shares of Common Stock deliverable upon
exercise of such options, warrants or other rights to purchase or acquire Common
Stock shall be deemed to have been issued at the time such options, warrants or
rights were issued and for a consideration equal to the consideration
(determined in the manner provided in subclauses (A) and (B) above), if any,
received by the Company upon the issuance of such options, warrants or rights
plus the minimum purchase price provided in such options, warrants or rights for
the Common Stock covered thereby;
(2) the aggregate maximum number of shares of Common Stock deliverable upon
conversion of or in exchange for any such convertible or exchangeable
securities, or upon the exercise of options, warrants or other rights to
4
purchase or acquire such convertible or exchangeable securities and the
subsequent conversion or exchange thereof, shall be deemed to have been issued
at the time such securities were issued or such options, warrants, or rights
were issued and for a consideration equal to the consideration, if any, received
by the Company for any such securities and related options, warrants or rights
(excluding any cash received on account of accrued interest or accrued
dividends), plus the additional consideration (determined in the manner provided
in subclauses (A) and (B) above), if any, to be received by the Company upon the
conversion or exchange of such securities, or upon the exercise of any related
options, warrants or rights to purchase or acquire such convertible or
exchangeable securities and the subsequent conversion or exchange thereof;
(3) on any change in the number of shares of Common Stock deliverable upon
exercise of any such options, warrants or rights or conversion or exchange of
such convertible or exchangeable securities or any change in the consideration
to be received by the Company upon such exercise, conversion or exchange,
including, but not limited to, a change resulting from the anti-dilution
provisions thereof, the Exercise Price as then in effect shall forthwith be
readjusted to such Exercise Price as would have been obtained had an adjustment
been made upon the issuance of such options, warrants or rights not exercised
prior to such change, or of such convertible or exchangeable securities not
converted or exchanged prior to such change, upon the basis of such change;
(4) on the expiration or cancellation of any such options, warrants or
rights or the termination of the right to convert or exchange such convertible
or exchangeable securities, if the Exercise Price shall have been adjusted upon
the issuance thereof, the Exercise Price shall forthwith be readjusted to such
Exercise Price as would have been obtained had an adjustment been made upon the
issuance of such options, warrants, rights or such convertible or exchangeable
securities on the basis of the issuance of only the number of shares of Common
Stock actually issued upon the exercise of such options, warrants or rights, or
upon the conversion or exchange of such convertible or exchangeable securities;
and
(5) if the Exercise Price shall have been adjusted upon the issuance of any
such options, warrants, rights or convertible or exchangeable securities, no
further adjustment of the Exercise Price shall be made for the actual issuance
of Common Stock upon the exercise, conversion or exchange thereof.
(c) Stock Dividends, Subdivisions, Reclassifications or Combinations. If
the Company shall (i) declare a dividend or make a distribution on its Common
Stock in shares of its Common Stock, (ii) subdivide or reclassify the
outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify the outstanding Common Stock into a smaller number of
shares, the Exercise Price in effect at the time of the record date for such
dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be proportionately adjusted so that the Holder of this
Warrant who exercises this Warrant after such date shall be entitled to receive
the number of shares of Common Stock which he would have owned or been entitled
to receive had this Warrant been exercised immediately prior to the date of such
stock dividend, subdivision, reclassification or combination. Successive
adjustments in the Exercise Price shall be made whenever any event specified
above shall occur.
5
(d) Other Distributions. In case the Company shall fix a record date for
the making of a distribution to all holders of shares of its Common Stock (i) of
shares of any class other than its Common Stock or (ii) of evidence of
indebtedness of the Company or any subsidiary or (iii) of assets (excluding cash
dividends or distributions, and dividends or distributions referred to in
Section 5(c) above) or (iv) of rights or warrants (excluding those referred to
in Section 5(b)), in each case the Exercise Price in effect immediately prior
thereto shall be reduced to the price determined by multiplying the Exercise
Price in effect immediately prior to any such distribution by the fraction
determined by dividing (A) an amount equal to the difference resulting from (x)
fair market value price per share of Common Stock on such record date, less (y)
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive) of said shares or evidences of indebtedness
or assets or rights or warrants to be so distributed divided by the number of
shares of Common Stock outstanding on such record date, by (B) the fair market
value price per share of Common Stock on such record date. Such adjustment shall
be made successively whenever such a record date is fixed. In the event that
such distribution is not so made, the Exercise Price then in effect shall be
readjusted, effective as of the date when the Board of Directors determines not
to distribute such shares, evidence of indebtedness, assets, rights or warrants,
as the case may be, to the Exercise Price which would then be in effect if such
record date had not been fixed.
(e) Other Dilutive Events. In case any event shall occur as to which the
provisions of this Section 5 are not strictly applicable but the failure to make
any adjustment relating thereto would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles of this Section 5, then, in each such case, the Company shall
immediately make all adjustments necessary to preserve, without dilution, the
purchase rights represented by this Warrant on a basis consistent with the
intent and principles established in this Section 5 and shall also immediately
appoint a firm of independent certified public accountants of recognized
national standing (which may be the regular auditors of the Company if they
satisfy such standard), which shall give their opinion that such adjustment, if
any, preserves, without dilution, the purchase rights represented by this
Warrant on a basis consistent with the intent and principles established in this
Section 5. Upon receipt of such opinion, the Company will immediately deliver a
copy thereof to the Holder of this Warrant. The Company shall not, by amendment
of its certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, 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, and will at all times in good faith assist
in carrying out all of such terms and in the taking of all such actions as may
be necessary or appropriate in order to protect the rights of the Holder of this
Warrant against dilution or other impairment. Without limiting the generality of
the foregoing, the Company (i) will not permit the par value of any shares of
stock receivable upon the exercise of this Warrant to exceed the amount payable
therefor upon such exercise, (ii) will take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of stock on the exercise of the Warrants from time
to time outstanding, and (iii) will not take any action that results in any
adjustment of the Exercise Price if the total number of shares of Common Stock
issued or issuable after such action, upon the exercise of all of the Warrants,
would exceed the total number of shares of Common Stock then authorized by the
Company's certificate of incorporation and available for the purpose of issuance
upon such exercise.
6
(f) Notice. Whenever there shall be an adjustment as provided in this
Section 5, the Company shall within three (3) days cause written notice thereof
to be given to the Holder, which notice shall be accompanied by an officer's
certificate setting forth the Exercise Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof. However, the failure by the Company to satisfy its
obligations under this Section 5(f) shall not in any manner affect or alter the
rights of the Holder under this Warrant.
(g) Fractional Shares. The Company shall not be required to issue fractions
of shares of Common Stock or other capital stock of the Company upon the
exercise of Warrants. If any fraction of a share would be issuable upon the
exercise of any Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
fair value of such share of Common Stock (as determined in good faith by the
Board of Directors of the Company but not less than the fair market value) on
the date of exercise of the Warrant.
(h) Current Market Price. The Current Market Price at any date shall mean
the average of the daily closing prices per share of Common Stock for the 20
consecutive trading days prior to such date (as adjusted for any stock dividend,
split, combination or reclassification that took effect during such 20 trading
day period, as determined by the Board of Directors of the Company). The closing
price for each day shall be the last reported sale price regular way or, in case
no such reported sale takes place on such day, the average of the last closing
bid and asked prices regular way, in either case on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or if not listed or admitted to trading on any national securities exchange, the
closing sale price for such day reported by NASDAQ, if the Common Stock is
traded over-the-counter and quoted in the National Market System, or if the
Common Stock is so traded, but not so quoted, the average of the closing
reported bid and asked prices of the Common Stock as reported by NASDAQ or any
comparable system or, if the Common Stock is not listed on NASDAQ or any
comparable system, the average of the closing bid and asked prices as furnished
by two members of the National Association of Securities Dealers, Inc. selected
from time to time by the Company for that purpose. If the Common Stock is not
traded in such manner that the quotations referred to above are available for
the period required hereunder, the Current Market Price per share of Common
Stock shall be deemed to be the fair value as determined by the Board of
Directors of the Company in good faith and irrespective of any accounting
treatment.
7
(i) Treasury Stock. For the purposes of this Section 5, the sale,
reissuance, or other disposition (but not a cancellation) of any of the shares
of Common Stock theretofore held in the Company's treasury shall be deemed to be
an issue thereof.
(j) Valid Issuance. All Shares of Common Stock which may be issued upon the
exercise of this Warrant will upon issuance by the Company be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof, and the Company shall take no action which
will cause a contrary result (including, without limitation, any action which
would cause the Exercise Price to be less than the par value, if any, of the
Common Stock).
6. Certain Corporate Events or Actions.
(a) Consolidation, Merger, Etc. In case of any consolidation with or merger
of the Company with or into another corporation or other entity (except for a
merger or consolidation in which the Company is the continuing corporation other
than as a subsidiary of another corporation or other entity), or in case of any
sale, lease or conveyance to another corporation or other entity of the property
of the Company as an entirety or substantially as an entirety, such successor,
purchasing, leasing or receiving corporation or other entity, as the case may
be, shall, prior to and as a condition to the occurrence of such event, (i)
execute with the Holder an agreement providing that the Holder shall have the
right thereafter to receive upon exercise of this Warrant the kind and amount of
shares of stock and other securities, property, cash or any combination thereof
receivable upon such consolidation, merger, sale, lease or conveyance by a
holder of the number of shares of Common Stock for which this Warrant might have
been exercised immediately prior to such consolidation, merger, sale, lease or
conveyance and (ii) make effective provision in its certificate of incorporation
or otherwise, if needed, in order to effect such agreement. Such agreement shall
provide for adjustments which shall be equivalent to the adjustments in Section
5.
(b) Reclassification, Etc. In case of any reclassification or change of the
Shares of Common Stock issuable upon exercise of this Warrant or in case of any
consolidation or merger of another corporation or other entity with or into the
Company in which the Company is the continuing corporation (other than as a
subsidiary of another corporation or other entity) and in which there is a
reclassification or change (including a change to the right to receive cash or
other property) of the shares of Common Stock, the Holder shall have the right
thereafter to receive upon exercise of this Warrant the kind and amount of
shares of stock and other securities, property, cash or any combination thereof
receivable upon such reclassification, change, consolidation or merger by a
holder of the number of shares of Common Stock into which this Warrant would
have been exercisable immediately prior to such reclassification, change,
consolidation or merger. Thereafter, appropriate provision (as determined by the
Board of Directors of the Company in good faith) shall be made for adjustments
which shall be equivalent to the adjustments in Section 5.
7. Certain Notices. In case at any time the Company shall propose or have
knowledge of any proposal:
8
(a) to pay any dividend or make any distribution on Shares of Common Stock
or to fix a record date for the making of any such dividend or distribution to
holders of Common Stock; or
(b) to take, or fix a record date for, any action that would result in any
adjustment to the Exercise Price pursuant to Section 5; or
(c) to effect any reclassification or change of outstanding Shares of
Common Stock, or consolidation or merger, or sale, lease or conveyance of a
majority of its property, of the type addressed in Section 6; or
(d) to effect any voluntary or involuntary liquidation, dissolution or
winding-up of the Company;
then, and in any one or more of such cases, the Company shall give written
notice thereof to the Holder at least 20 days prior to the date on which (i) the
books of the Company shall close, or a record date shall be set, for any such
action described in Section 7(a) or (b) or (ii) such reclassification, change,
consolidation, merger, sale, lease, conveyance, liquidation, dissolution or
winding-up shall be effective, as the case may be.
8. Expenses. The Company shall pay all reasonable costs, fees, taxes and
expenses payable in connection with the preparation, issuance and delivery from
time to time of Warrants and of Shares of Common Stock issued upon the exercise
of Warrants. Notwithstanding anything to the contrary contained herein, the
Holder shall be liable to pay all stock transfer taxes, if any.
9. Securities Act. In order to exercise the Warrant, the Holder shall
certify that it is acquiring the Shares of Common Stock for investment only and
not with a view to distribution. This Warrant and the Shares of Common Stock or
other securities issued upon exercise of this Warrant shall be subject to a
stop-transfer order (except with respect to a transfer by the original Holder of
this Warrant to its partners) and the certificate or certificates evidencing any
such Shares or securities shall bear the following legend, unless in the opinion
of counsel to the Holder exercising any Warrant such legend is not required in
order to comply with the Securities Act of 1933, as amended (the "Securities
Act"), which opinion shall be satisfactory to the Company, or unless the
offering and sale of the Shares or other securities issued upon exercise of the
Warrants have been registered under the Securities Act, and in each such case
such restriction on transfer and legend shall be removed:
"THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
SUCH SECURITIES MAY NOT BE SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO
THE CORPORATION OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION STATING THAT SUCH SALE,
ASSIGNMENT OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER SUCH
ACT AND LAWS."
9
10. Loss of Warrant. The Company will execute and deliver a new Warrant of
like tenor and date upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (i) in the
case of loss, theft or destruction, upon receipt by the Company of indemnity
satisfactory to the Company, or (ii) in the case of mutilation, upon
presentation, surrender, and cancellation of this Warrant.
11. No Rights or Liabilities as a Stockholder. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof any rights as a
stockholder of the Company or as imposing any obligation upon such Holder to
purchase any securities or as imposing any liability upon such Holder as a
stockholder of the Company, whether such obligation or liability is asserted by
the Company or by creditors of the Company at law or in equity.
12. Governing Law. This Warrant shall be governed by and construed in
accordance with the internal laws of the State of Texas.
13. Remedies. The Company stipulates that the remedies at law of the Holder
of this Warrant in the event of any default or threatened default by the Company
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate, and that, to the extent permitted by applicable
law, such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise; provided, however, that (i)
the Company shall not seek specific enforcement of its rights under this Warrant
unless the Holder is acting in contravention of its obligations or outside of
its rights under this Warrant and (ii) the Company hereby agrees to indemnify
and hold harmless the Holder from any costs, liabilities, losses or expenses
incurred by the Holder caused by or otherwise associated with a claim by the
Company for specific enforcement of its rights under this Warrant if such claim
is not a claim permitted to be made pursuant to clause (i) immediately
preceding.
14. Notices. All notices and other communications provided for herein shall
be delivered or mailed by registered or certified mail, return receipt
requested, postage prepaid, addressed (a) if to any Holder of any Warrant, to
the address of such Holder as set forth in the Warrant Register or to such other
address as such Holder has notified the Company of in writing, or (b) if to the
Company, to the address set forth in Section 1 or to such other address as the
Company has notified such Holder of pursuant to Section 1 and this Section 14;
provided, however, that the exercise of any Warrant shall be effective in the
manner provided in Section 1. All notices given pursuant to this Warrant shall
be deemed to be effective upon receipt thereof by the party to whom such notice
is addressed.
15. Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. Any provision of this Warrant that shall be prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
10
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. The Company waives any provision of law that shall render
any provision of this Warrant illegal or unenforceable in any respect except to
the extent otherwise prohibited by law. The section and paragraph headings used
in this Warrant are inserted for convenience only and shall not be used for any
interpretive purpose.
[Signature page follows]
11
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its Chief Executive Officer.
Dated: __________, 2004 GEXA CORP.,
a Texas corporation
By:_____________________________________
Xxxx Xxxxxxx, Chief Executive Officer
12
EXHIBIT A TO WARRANT
To: ______________________
______________________
______________________
ELECTION TO EXERCISE
The undersigned hereby exercises his, her or its rights to subscribe
for Shares of Common Stock covered by the within Warrant and tenders the Warrant
and payment herewith in the amount of $_____ in accordance with the terms
thereof, and requests that certificates for such shares in the following
denominations be issued in the name of, and delivered to, the person[s] at the
following address[es].
________________________________________________
________________________________________________
________________________________________________
(Print Address[es] and Social Security Number[s] or
Employer Identification Number[s] as applicable)
and, if said number of shares shall not be all the shares covered by the within
Warrant, that a new Warrant for the balance remaining of the shares covered by
the within Warrant be registered in the name of, and delivered to, the
undersigned at the address stated below:
Date:____________ Name:___________________________________
(Print)
___________________________________
(Signature)
Address:___________________________________
___________________________________
A-1