Solar Energy Initiatives, Inc.
Exhibit
4.1
THIS
WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER
THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER
SAID ACT OR, AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE, CUSTOMARY FOR
OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS, THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 OR REGULATION S
UNDER SUCH ACT.
Right to
Purchase [insert] Shares of Common Stock, par value $0.001 per
share
STOCK
PURCHASE WARRANT
THIS CERTIFIES THAT, for value
received, [insert name]
or his/her registered assigns, is entitled to purchase from Solar Energy Initiatives,
Inc., a Delaware corporation (the “Company”), at any time or from time to
time during the period specified in Paragraph 2 hereof, [insert number] fully
paid and nonassessable shares of the Company’s Common Stock, par value $0.001
per share (the “Common Stock”), at an exercise price per share equal to $0.60
(the “Exercise Price”). The term “Warrant Shares,” as used herein,
refers to the shares of Common Stock purchasable hereunder.
This
Warrant is subject to the following terms, provisions, and
conditions:
1. Manner of Exercise; Issuance
of Certificates; Payment for Shares.
Subject
to the provisions hereof, this Warrant may be exercised by the holder hereof, in
whole or in part, by the surrender of this Warrant, together with a completed
exercise agreement in the form attached hereto (the “Exercise Agreement”), to
the Company during normal business hours on any business day at the Company’s
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof), and upon payment to the Company
in cash, by certified or official bank check or by wire transfer for the account
of the Company of the Exercise Price for the Warrant Shares specified in the
Exercise Agreement. The Warrant Shares so purchased shall be deemed
to be issued to the holder hereof or such holder’s designee, as the record owner
of such shares, as of the close of business on the date on which this Warrant
shall have been surrendered, the completed Exercise Agreement shall have been
delivered, and payment shall have been made for such shares as set forth
above. Certificates for the Warrant Shares so purchased, representing
the aggregate number of shares specified in the Exercise Agreement, shall be
delivered to the holder hereof within a reasonable time, not exceeding ten (10)
business days, after this Warrant shall have been so exercised. If
this Warrant shall have been exercised only in part, then, unless this Warrant
has expired, the Company shall, at its expense, at the time of delivery of such
certificates, deliver to the holder a new Warrant representing the number of
shares with respect to which this Warrant shall not then have been
exercised.
1
2. Period of
Exercise.
This
Warrant is exercisable at any time or from time to time on or after the date on
which this Warrant is issued and delivered and before 6:00 p.m., New York, New
York time on the 36 month anniversary of the date of issuance (the “Exercise
Period”)
3. Certain Agreements of the
Company.
The
Company hereby covenants and agrees as follows:
(a) Shares to
be Fully Paid. All Warrant
Shares will, upon issuance in accordance with the terms of this Warrant, be
validly issued, fully paid, and nonassessable and free from all taxes, liens,
and charges with respect to the issue thereof.
(b) Reservation
of Shares. During the
Exercise Period, the Company shall at all times have authorized, and reserved
for the purpose of issuance upon exercise of this Warrant, a sufficient number
of shares of Common Stock to provide for the exercise of this
Warrant.
(c) Successors
and Assigns. This Warrant will
be binding upon any entity succeeding to the Company by merger, consolidation,
or acquisition of all or substantially all the Company’s assets.
(d) Registration
Rights. If the Company at any time proposes to register any of
its securities under the Act, including under an S-1 Registration Statement or
otherwise, it will each such time give written notice to all holders of
outstanding warrants of its intention so to do. Upon the written
request of a holder or holders of any such warrants given within 30 days after
receipt of any such notice, the Company will use its best efforts to cause all
shares underlying the exercise of such warrants to be registered under the Act
(with the securities which the Company at the time propose to register);
provided, however, that the Company may, as a condition precedent to its
effective such registration, require each Holder to agree with the Company and
the managing underwriter or underwriters of the offering to be made by the
Company in connection with such registration that such Holder will not sell any
securities of the same class or convertible into the same class as those
registered by the Company (including any class into which the securities
registered by the Company are convertible) for such reasonable period after such
registration becomes effective (not exceeding 90 days) as shall then be
specified in writing by such underwriter or underwriters if in the opinion of
such underwriter or underwriters the Company's offering would be materially
adversely affected in the absence of such an agreement. All expenses
incurred by the Company in complying with this Section, including without
limitation all registration and filing fees, listing fees, printing expenses,
fees and disbursements of all independent accountants, or counsel for the
Company and the expense of any special audits incident to or required by any
such registration and the expenses of complying with the securities or blue sky
laws of any jurisdiction shall be paid by the Company.
2
4. Issue
Tax.
The
issuance of certificates for Warrant Shares upon the exercise of this Warrant
shall be made without charge to the holder of this Warrant or such shares for
any issuance tax or other costs in respect thereof, provided that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than the holder of this Warrant.
5. No Rights or Liabilities as
a Shareholder.
This
Warrant shall not entitle the holder hereof to any voting rights or other rights
as a shareholder of the Company. No provision of this Warrant, in the
absence of affirmative action by the holder hereof to purchase Warrant Shares,
and no mere enumeration herein of the rights or privileges of the holder hereof,
shall give rise to any liability of such holder for the Exercise Price or as a
shareholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
6. Transfer, Exchange, and
Replacement of Warrant.
(a) Restriction
on Transfer. This Warrant and
the rights granted to the holder hereof are transferable, in whole or in part,
upon surrender of this Warrant, together with a properly executed assignment in
the form attached hereto, at the office or agency of the Company, provided,
however, that any transfer or assignment shall be subject to the conditions set
forth in Paragraph 6(f) hereof. Until due presentment for
registration of transfer on the books of the Company, the Company may treat the
registered holder hereof as the owner and holder hereof for all purposes, and
the Company shall not be affected by any notice to the contrary.
(b) Warrant
Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company, for new Warrants of like tenor representing in the
aggregate the right to purchase the number of shares of Common Stock which may
be purchased hereunder, each of such new Warrants to represent the right to
purchase such number of shares as shall be designated by the holder hereof at
the time of such surrender.
(c) Replacement
of Warrant. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction,
or mutilation of this Warrant and, in the case of any such loss, theft, or
destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company, or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant, the Company, at its
expense, will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
(d) Cancellation;
Payment of Expenses. Upon the
surrender of this Warrant in connection with any transfer, exchange, or
replacement as provided in this Paragraph 6, this Warrant shall be promptly
canceled by the Company. The Company shall pay all taxes (other than
securities transfer taxes) and all other expenses (other than legal expenses, if
any, incurred by the holder or transferees) and charges payable in connection
with the preparation, execution, and delivery of Warrants pursuant to this
Paragraph 6.
(e) Register. The Company shall
maintain, at its principal executive offices (or such other office or agency of
the Company as it may designate by notice to the holder hereof), a register for
this Warrant, in which the Company shall record the name and address of the
person in whose name this Warrant has been issued, as well as the name and
address of each transferee and each prior owner of this Warrant.
3
(f) Exercise
or Transfer Without Registration. If, at the time
of the surrender of this Warrant in connection with any exercise, transfer, or
exchange of this Warrant, this Warrant (or, in the case of any exercise, the
Warrant Shares issuable hereunder), shall not be registered under the Securities
Act of 1933, as amended (the “Securities Act”) and under applicable state
securities or blue sky laws, the Company may require, as a condition of allowing
such exercise, transfer, or exchange, (i) that the holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion of
counsel, which opinion and counsel are acceptable to the Company, to the effect
that such exercise, transfer, or exchange may be made without registration under
said 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(a) promulgated under the Securities
Act; provided that no such opinion, letter or status as an “accredited investor”
shall be required in connection with a transfer pursuant to Rule 144 under the
Securities Act. The first holder of this Warrant, by taking and
holding the same, represents to the Company that such holder is acquiring this
Warrant for investment and not with a view to the distribution
thereof. In no event shall the Holder be permitted to assign the
Warrant unless provided with express written consent by the
Company.
7. [Intentionally
Omitted]
8. Notices.
All
notices, requests, and other communications required or permitted to be given or
delivered hereunder to the holder of this Warrant shall be in writing, and shall
be personally delivered, or shall be sent by certified or registered mail or by
recognized overnight mail courier, postage prepaid and addressed, to such holder
at the address shown for such holder on the books of the Company, or at such
other address as shall have been furnished to the Company by notice from such
holder. All notices, requests, and other communications required or
permitted to be given or delivered hereunder to the Company shall be in writing,
and shall be personally delivered, or shall be sent by certified or registered
mail or by recognized overnight mail courier, postage prepaid and addressed, to
the office of the Company at the address set forth in the Purchase Agreement, or
at such other address as shall have been furnished to the holder of this Warrant
by notice from the Company. Any such notice, request, or other
communication may be sent by facsimile, but shall in such case be subsequently
confirmed by a writing personally delivered or sent by certified or registered
mail or by recognized overnight mail courier as provided above. All
notices, requests, and other communications shall be deemed to have been given
either at the time of the receipt thereof by the person entitled to receive
such notice at the address of such person for purposes of this Paragraph 8, or,
if mailed by registered or certified mail or with a recognized overnight mail
courier upon deposit with the United States Post Office or such overnight mail
courier, if postage is prepaid and the mailing is properly addressed, as the
case may be.
9. Governing
Law.
THIS
WARRANT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF FLORIDA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF
LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION
OF THE UNITED STATES FEDERAL COURTS LOCATED IN OR NEAR JACKSONVILLE, FLORIDA
WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS WARRANT, THE AGREEMENTS ENTERED
INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT
A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT
OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN
ANY DISPUTE ARISING UNDER THIS WARRANT SHALL BE RESPONSIBLE FOR ALL FEES AND
EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN
CONNECTION WITH SUCH DISPUTE.
4
10. Miscellaneous.
(a) Amendments. This Warrant and
any provision hereof may only be amended by an instrument in writing signed by
the Company and the holder hereof.
(b) Descriptive
Headings. The descriptive
headings of the several paragraphs of this Warrant are inserted for
purposes of reference only, and shall not affect the meaning or construction of
any of the provisions hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the
Company has caused this Warrant to be signed by its duly authorized
director.
| SOLAR ENERGY INITIATIVES, INC. | |||
|
Dated
as of __________ __, 2009
|
By:
|
/s/ | |
| Name: Xxxxx Xxxx | |||
| Title: Chief Executive Officer | |||
6
FORM
OF EXERCISE AGREEMENT
Dated: ________ __,
20__
To: ______________________
The
undersigned, pursuant to the provisions set forth in the within Warrant, hereby
agrees to purchase ________ shares of Common Stock covered by such Warrant, and
makes payment herewith in full therefor at the price per share provided by
such Warrant in cash or by certified or official bank check in the amount of
equal to $_________. Please issue a certificate or certificates
for such shares of Common Stock in the name of and pay any cash for any
fractional share to:
|
|
|
||
| Name | |||
| Signature: | |||
| Address: | |||
|
Note:
|
The
above signature should correspond exactly with the name
on
the face of the within Warrant, if
applicable.
|
||
7
FORM
OF ASSIGNMENT
FOR VALUE RECEIVED, the
undersigned hereby sells, assigns, and transfers all the rights of the
undersigned under the within Warrant, with respect to the number of shares of
Common Stock covered thereby set forth hereinbelow, to:
Name of
Assignee Address No of
Shares
, and
hereby irrevocably constitutes and appoints ___________________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the
premises.
Dated: ________
__, 20__
|
In
the presence of:
|
|
||
| Name | |||
| Signature: | |||
| Title of Signing Officer or Agent (if any): | |||
| Address: | |||
|
Note:
|
The
above signature should correspond exactly with the name
on
the face of the within Warrant, if
applicable.
|
||
