Exhibit 4.5
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED
UNTIL (I) A REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II)
THE COMPANY SHALL HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
XXXXXX EQUIPMENT, INC.
COMMON STOCK PURCHASE WARRANT
Warrant No. R-
Original Issue Date: January 31, 2005
THIS CERTIFIES THAT, FOR VALUE RECEIVED, Redwood Consultants, LLC. or
its registered assigns ("Holder") is entitled to purchase, on the terms and
conditions hereinafter set forth, at any time or from time to time from the date
hereof until 5:00 p.m., Eastern Time, on third anniversary of the Original Issue
Date set forth above, or if such date is not a day on which the Company (as
hereinafter defined) is open for business, then the next succeeding day on which
the Company is open for business (such date is the "Expiration Date"), but not
thereafter, to purchase up to [ ] shares of the Common Stock, par value $.001
per share (the "Common Stock"), of Xxxxxx Equipment, Inc., a Delaware
corporation (the "Company"), at a purchase price of four dollars ($4.00) per
share (the "Exercise Price"), such number of shares and Exercise Price being
subject to adjustment upon the occurrence of the contingencies set forth in this
Warrant. Each share of Common Stock as to which this Warrant is exercisable is a
"Warrant Share" and all such shares are collectively referred to as the "Warrant
Shares."
Section 1. Exercise of Warrant; Conversion of Warrant.
(a) This Warrant may, at the option of Holder, be exercised in whole or
in part from time to time by delivery to the Company at its principal office,
Attention: President, on or before 5:00 p.m., Eastern Time, on the Expiration
Date, (i) a written notice of such Holder's election to exercise this Warrant
(the "Exercise Notice"), which notice may be in the form of the Notice of
Exercise attached hereto, properly executed and completed by Holder or an
authorized officer thereof, (ii) payment for the Warrant Shares ("Payment"), as
further described in Section 1(b), below, and (iii) this Warrant (the items
specified in (i), (ii), and (iii) are collectively the "Exercise Materials").
(b) Payment may be made by check payable to the order of the Company,
in an amount equal to the product of the Exercise Price multiplied by the number
of Warrant Shares specified in the Exercise Notice.
(c) As promptly as practicable after its receipt of the Exercise
Materials, Company shall execute or cause to be executed and delivered to Holder
a certificate or certificates representing the number of Warrant Shares
specified in the Exercise Notice, together with cash in lieu of any fraction of
a share, and if this Warrant is partially exercised, a new warrant on the same
terms for the unexercised balance of the Warrant Shares. The stock certificate
or certificates shall be registered in the name of Holder or such other name or
names as shall be designated in the Exercise Notice. The date on which the
Warrant shall be deemed to have been exercised (the "Effective Date"), and the
date the person in whose name any certificate evidencing the Common Stock issued
upon the exercise hereof is issued shall be deemed to have become the holder of
record of such shares, shall be the date the Company receives the Exercise
Materials, irrespective of the date of delivery of a certificate or certificates
evidencing the Common Stock issued upon the exercise or conversion hereof,
provided, however, that if the Exercise Materials are received by the Company on
a date on which the stock transfer books of the Company are closed, the
Effective Date shall be the next succeeding date on which the stock transfer
books are open. All shares of Common Stock issued upon the exercise or
conversion of this Warrant will, upon issuance, be fully paid and nonassessable
and free from all taxes, liens, and charges with respect thereto.
Section 2. Adjustments to Warrant Shares. The number of Warrant Shares
issuable upon the exercise hereof shall be subject to adjustment as follows:
(a) In the event the Company is a party to a consolidation,
share exchange, or merger, or the sale of all or substantially all of
the assets of the Company to, any person, or in the case of any
consolidation or merger of another corporation into the Company in
which the Company is the surviving corporation, and in which there is a
reclassification or change of the shares of Common Stock of the
Company, this Warrant shall after such consolidation, share exchange,
merger, or sale be exercisable for the kind and number of securities or
amount and kind of property of the Company or the corporation or other
entity resulting from such share exchange, merger, or consolidation, or
to which such sale shall be made, as the case may be (the "Successor
Company"), to which a holder of the number of shares of Common Stock
deliverable upon the exercise (immediately prior to the time of such
consolidation, share exchange, merger, or sale) of this Warrant would
have been entitled upon such consolidation, share exchange, merger, or
sale; and in any such case appropriate adjustments shall be made in the
application of the provisions set forth herein with respect to the
rights and interests of Holder, such that the provisions set forth
herein shall thereafter correspondingly be made applicable, as nearly
as may reasonably be, in relation to the number and kind of securities
or the type and amount of property thereafter deliverable upon the
exercise of this Warrant. The above provisions shall similarly apply to
successive consolidations, share exchanges, mergers, and sales. Any
adjustment required by this Section 2 (a) because of a consolidation,
share exchange, merger, or sale shall be set forth in an undertaking
delivered to Holder and executed by the Successor Company which
provides that Holder shall have the right to exercise this Warrant for
the kind and number of securities or amount and kind of property of the
Successor Company or to which the holder of a number of shares of
Common Stock deliverable upon exercise (immediately prior to the time
of such consolidation, share exchange, merger, or sale) of this Warrant
would have been entitled upon such consolidation, share exchange,
merger, or sale. Such undertaking shall also provide for future
adjustments to the number of Warrant Shares and the Exercise Price in
accordance with the provisions set forth in Section 2 hereof.
(b) In the event the Company should at any time, or from time
to time after the Original Issue Date, fix a record date for the
effectuation of a stock split or subdivision of the outstanding shares
of Common Stock or the determination of holders of Common Stock
entitled to receive a dividend or other distribution payable in
additional shares of Common Stock, or securities or rights convertible
into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter referred to
as "Common Stock Equivalents") without payment of any consideration by
such holder for the additional shares of Common Stock or the Common
Stock Equivalents (including the additional shares of Common Stock
issuable upon exercise or exercise thereof), then, as of such record
date (or the date of such dividend, distribution, split, or subdivision
if no record date is fixed), the number of Warrant Shares issuable upon
the exercise hereof shall be proportionately increased and the Exercise
Price shall be appropriately decreased by the same proportion as the
increase in the number of outstanding Common Stock Equivalents of the
Company resulting from the dividend, distribution, split, or
subdivision. Notwithstanding the preceding sentence, no adjustment
shall be made to decrease the Exercise Price below $.001 per Share.
(c) In the event the Company should at any time or from time
to time after the Original Issue Date, fix a record date for the
effectuation of a reverse stock split, or a transaction having a
similar effect on the number of outstanding shares of Common Stock of
the Company, then, as of such record date (or the date of such reverse
stock split or similar transaction if no record date is fixed), the
number of Warrant Shares issuable upon the exercise hereof shall be
proportionately decreased and the Exercise Price shall be appropriately
increased by the same proportion as the decrease of the number of
outstanding Common Stock Equivalents resulting from the reverse stock
split or similar transaction.
(d) In the event the Company should at any time or from time
to time after the Original Issue Date, fix a record date for a
reclassification of its Common Stock, then, as of such record date (or
the date of the reclassification if no record date is set), this
Warrant shall thereafter be convertible into such number and kind of
securities as would have been issuable as the result of such
reclassification to a holder of a number of shares of Common Stock
equal to the number of Warrant Shares issuable upon exercise of this
Warrant immediately prior to such reclassification, and the Exercise
Price shall be unchanged.
(e) The Company will not, by amendment of its Certificate of
Incorporation or through reorganization, consolidation, merger,
dissolution, issue, or sale of securities, sale of assets or any other
voluntary action, void or seek to avoid the observance or performance
of any of the terms of the Warrant, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate in order to protect the
rights of Holder against dilution or other impairment. Without limiting
the generality of the foregoing, the Company (x) will not create a par
value of any share of stock receivable upon the exercise of the Warrant
above the amount payable therefor upon such exercise, and (y) will take
all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and non-assessable
shares upon the exercise of the Warrant.
(f) When any adjustment is required to be made in the number
or kind of shares purchasable upon exercise of the Warrant, or in the
Exercise Price, the Company shall promptly notify Holder of such event
and of the number of shares of Common Stock or other securities or
property thereafter purchasable upon exercise of the Warrants and of
the Exercise Price, together with the computation resulting in such
adjustment.
(g) The Company covenants and agrees that all Warrant Shares
which may be issued will, upon issuance, be validly issued, fully paid,
and non-assessable. The Company further covenants and agrees that the
Company will at all times have authorized and reserved, free from
preemptive rights, a sufficient number of shares of its Common Stock to
provide for the exercise of the Warrant in full.
Section 3. No Stockholder Rights. This Warrant shall not
entitle Holder hereof to any votingrights or other rights as a stockholder of
the Company.
Section 4. Transfer of Securities.
(a) This Warrant and the Warrant Shares and any shares of
capital stock received in respect thereof, whether by reason of a stock
split or share reclassification thereof, a stock dividend thereon, or
otherwise, shall not be transferable except upon compliance with the
provisions of the Securities Act of 1933, as amended (the "Securities
Act") and applicable state securities laws with respect to the transfer
of such securities. The Holder, by acceptance of this Warrant, agrees
to be bound by the provisions of Section 4 hereof and to indemnify and
hold harmless the Company against any loss or liability arising from
the disposition of this Warrant or the Warrant Shares issuable upon
exercise hereof or any interest in either thereof in violation of the
provisions of this Warrant.
(b) Each certificate for the Warrant Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon or otherwise, and each
certificate for any such securities issued to subsequent transferees of any such
certificate shall (unless otherwise permitted by the provisions hereof) be
stamped or otherwise imprinted with a legend in substantially the following
form:
"NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER."
Section 5. Miscellaneous.
(a) The terms of this Warrant shall be binding upon and shall
inure to the benefit of any successors or permitted assigns of the Company and
Holder.
(b) Except as otherwise provided herein, this Warrant and all
rights hereunder are transferable by the registered holder hereof in person or
by duly authorized attorney on the books of the Company upon surrender of this
Warrant, properly endorsed, to the Company. The Company may deem and treat the
registered holder of this Warrant at any time as the absolute owner hereof for
all purposes and shall not be affected by any notice to the contrary.
(c) Notwithstanding any provision herein to the contrary,
Holder may not exercise, sell, transfer, or otherwise assign this Warrant unless
the Company is provided with an opinion of counsel satisfactory in form and
substance to the Company, to the effect that such exercise, sale, transfer, or
assignment would not violate the Securities Act or applicable state securities
laws.
(d) This Warrant may be divided into separate warrants
covering one share of Common Stock or any whole multiple thereof, for the total
number of shares of Common Stock then subject to this Warrant at any time, or
from time to time, upon the request of the registered holder of this Warrant and
the surrender of the same to the Company for such purpose. Such subdivided
Warrants shall be issued promptly by the Company following any such request and
shall be of the same form and tenor as this Warrant, except for any requested
change in the name of the registered holder stated herein.
(e) Any notices, consents, waivers, or other communications
required or permitted to be given under the terms of this Warrant must be in
writing and will be deemed to have been delivered (a) upon receipt, when
delivered personally, (b) upon receipt, when sent by facsimile, provided a copy
is mailed by U.S. certified mail, return receipt requested, (c) three (3) days
after being sent by U.S. certified mail, return receipt requested, or (d) one
(1) day after deposit with a nationally recognized overnight delivery service,
in each case properly addressed to the party to receive the same.
If to Holder, to the registered address of Holder appearing on the
books of the Company. Each party shall provide five (5) days prior written
notice to the other party of any change in address, which change shall not be
effective until actual receipt thereof
(f) The corporate laws of the State of California shall govern
all issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by the internal laws of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of New York. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting the City of New York,
borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Warrant shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Warrant in that jurisdiction or the
validity or enforceability of any provision of this Warrant in any other
jurisdiction.
[Signatures on the following page]
SIGNATURE PAGE
TO
COMPANY
COMMON STOCK PURCHASE WARRANT
IN WITNESS WHEREOF, the Company, has caused this Warrant to be executed
in its name by its duly authorized officers under seal, and to be dated as of
the date first above written.
XXXXXX EQUIPMENT, INC.
By:
----------------------------
Name:
Title:
ASSIGNMENT
(To be Executed by the Registered Holder to effect a Transfer of the
foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and
transfers unto
___________________________________________________________________________ the
foregoing Warrant and the rights represented thereto to purchase shares of
Common Stock of Xxxxxx Equipment, Inc. in accordance with terms and conditions
thereof, and does hereby irrevocably constitute and appoint ________________
Attorney to transfer the said Warrant on the books of the Company, with full
power of substitution.
Holder:
-------------------------------
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Address
Dated: __________________, 20__
In the presence of:
-------------------------------
EXERCISE or conversion notice
[To be signed only upon exercise of Warrant]
To: Xxxxxx Equipment, Inc.
The undersigned Holder of the attached Warrant hereby irrevocably
elects to exercise the Warrant for, and to purchase thereunder, _____ shares of
Common Stock of Xxxxxx Equipment, Inc., issuable upon exercise of said Warrant
and hereby surrenders said Warrant.
The undersigned herewith requests that the certificates for such shares
be issued in the name of, and delivered to the undersigned, whose address is
_________________________ .
If electronic book entry transfer, complete the following:
Account Number:
-----------------------------------
Transaction Code Number:
---------------------------
Dated: ___________________
Holder:
-----------------------------------
-----------------------------------
By:
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Name:
Title:
NOTICE
The signature above must correspond to the name as written upon the
face of the within Warrant in every particular, without alteration or
enlargement or any change whatsoever.
