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Exhibit 10.9
NEITHER THIS WARRANT NOR THE STOCK FOR WHICH IT MAY BE EXERCISED HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR
ANY OTHER FEDERAL OR STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT AS EXPRESSLY PROVIDED HEREIN. WITHOUT LIMITING THE
FOREGOING, NEITHER THIS WARRANT NOR THE STOCK FOR WHICH IT MAY BE EXERCISED MAY
BE TRANSFERRED FOR A PERIOD OF TWELVE (12) MONTHS AFTER THE DATE OF ISSUANCE OF
THIS WARRANT OR THE EXERCISE OF THE STOCK PURCHASE RIGHTS HEREUNDER UNLESS
PERMITTED BY THE TERMS OF THIS WARRANT AND APPLICABLE LAW.
iBIZ TECHNOLOGY CORP.
COMMON STOCK PURCHASE WARRANT
This certifies that, for value received, _______________, an individual
("Holder") is entitled to subscribe for, and purchase from iBIZ TECHNOLOGY
CORP., a Florida corporation ("Company"), 400,000 shares, subject to adjustment
as set forth in Article II below, ("Warrant Shares") of Common Stock of the
Company, par value $.001 per share ("Common Stock"), at the exercise price of
$0.75 per share for the first 300,000 shares and $1.00 per share for the
remaining 100,000 shares, which prices are subject to adjustment as set forth in
Article II below, ("Exercise Price"), at any time and from time to time
beginning on the date of this Warrant as set forth below ("Exercise Date"), and
ending on the date that is three (3) years after the date of this Warrant or, if
earlier, thirty (30) days from notice of the effectiveness of the Registration
Statement described below in Section 3.03 ("Expiration Date"), upon written
notice from the Holder to the Company ("Notice") and subject to the terms
provided herein.
This Warrant is subject to the following provisions, terms and
conditions:
ARTICLE I.
EXERCISE; RESERVATION OF SHARES
Section 1.01 Warrant Exercise. The rights represented by this Warrant
may be exercised by the Holder at any time and from time to time prior to the
expiration of this Warrant, upon Notice, by the surrender at the principal
office of the Company of this Warrant together with a duly executed subscription
in the form annexed hereto ("Subscription Form") and accompanied by payment, in
certified or immediately available funds, of the Exercise Price for the number
of Warrant Shares specified in the Subscription Form. The shares so purchased
shall be deemed to be issued to the Holder as the record owner of such shares as
of the close of business on the date on which this Warrant shall be exercised as
hereinabove provided. No fractional shares or scrip representing fractional
shares shall be issued upon exercise of this Warrant and the number of shares
that shall be issued upon such exercise shall be rounded to the nearest whole
share without the payment or receipt of any additional consideration.
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Section 1.02 Certificates. Certificates for the shares purchased
pursuant to Section 1.01 shall be delivered to the Holder within a reasonable
time after the rights represented by this Warrant shall have been so exercised,
and a new Warrant in the name of the Holder representing the rights, if any,
that shall not have been exercised prior to the Expiration Date with respect to
this Warrant shall also be delivered to such Holder within such time, with such
new Warrant to be identical in all other respects to this Warrant. The term
"Warrant," as used herein, includes any Warrants into which this Warrant may be
divided or combined and any subsequent Warrants issued upon the transfer or
exchange or reissuance upon loss hereof.
Section 1.03 Reservation of Shares. The Company represents, warrants,
covenants and agrees:
(a) That all shares of Common Stock that may be issued upon
exercise of this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof;
(b) That during the period the rights represented by this
Warrant may be exercised, the Company will at all times have
authorized, and reserved for the purpose of issue and delivery upon
exercise of the rights evidenced by this Warrant, a sufficient number
of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant; and
(c) If the Common Stock is listed on any national
securities exchange or similar trading market, the shares of Common
Stock that may be issued upon exercise of this Warrant will, prior to
or on the date that a Registration Statement covering the Warrant
Shares is effective, also be listed on such exchange subject to notice
of issuance.
ARTICLE II.
ADJUSTMENTS
Section 2.01 Reorganization, Reclassification, Consolidation, Merger or
Sale.
(a) Capital Events. If any reorganization or
reclassification of the capital stock of the Company, or any
consolidation or merger of the Company with another corporation, or the
sale of all or substantially all of its assets to another corporation
(in any instance, a "Capital Event") shall be effected in such a way
that holders of Common Stock shall be entitled to receive stock,
securities or assets (including cash) with respect to or in exchange
for their Common Stock, then, as a condition of such Capital Event,
lawful and adequate provisions shall be made whereby the Holder hereof
shall thereafter have the right to purchase and receive upon the basis
and upon the terms and conditions specified in this Warrant and in lieu
of the shares of the Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, an amount of such shares of stock, securities or
assets (including cash) as may have been issued or payable with respect
to or in exchange for a number of
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outstanding shares of such Common Stock equal to the number of shares
of such stock immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby had such Capital Event
not taken place.
(b) Preservation of Value. In the case of any Capital
Event, appropriate provision shall be made with respect to the rights
and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for
adjustment of the number of shares that may be issued upon exercise of
this Warrant and the Exercise Price hereof) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock,
securities or assets (including cash) thereafter deliverable upon the
exercise of the rights represented hereby.
(c) Obligation Expressly Assumed. The Company shall not
effect any consolidation, merger or sale of all or substantially all of
its assets, unless prior to the consummation thereof the successor
corporation (if other than the Company) resulting from such
consolidation or merger, or the corporation into or for the securities
of which the previously outstanding stock of the Company shall be
changed in connection with such consolidation or merger, or the
corporation purchasing such assets, as the case may be, shall assume by
written instrument executed and mailed or delivered to the registered
Holder at the last address of such Holder appearing on the books of the
Company, the obligation to deliver to such Holder, upon exercise of
this Warrant, such shares of stock, securities or assets (including
cash) as, in accordance with the foregoing provisions, such Holder may
be entitled to purchase.
Section 2.02 Subdivision or Combination of Stock. In the event that the
Company shall at any time subdivide or split its outstanding shares of Common
Stock into a greater number of shares, the number of Warrant Shares subject to
issuance upon exercise of this Warrant at the opening of business on the day
upon which such subdivision becomes effective shall be proportionately
increased. In the event that the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the number of shares
subject to issuance upon exercise of this Warrant at the opening of business on
the day upon which such subdivision becomes effective shall be proportionately
decreased. Any such increase or decrease, as the case may be, shall become
effective immediately after the opening of business on the day following the day
upon which such subdivision or combination, as the case may be, becomes
effective.
Section 2.03 Stock Dividends. In the event that the Company shall at
any time declare any dividend or distribution upon its Common Stock payable in
stock, the number of Warrant Shares subject to issuance upon exercise of this
Warrant shall be increased by the number (and the kind) of shares which would
have been issued to the holder of this Warrant if this Warrant were exercised
immediately prior to such dividend. Such increase shall become effective
immediately after the opening of business on the day following the record date
for such dividend or distribution.
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Section 2.04 Equitable Adjustment. In the event the Company shall
participate in any extraordinary corporate event or transaction not otherwise
provided for herein, including a so-called issuer self-tender, there shall be
made an equitable and proportionate adjustment in the number of shares issuable
upon exercise of this Warrant and the Exercise Price consistent with the
principles of other such adjustments provided for in this Article II.
Section 2.05 Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares of the Company owned or
held by or for the account of the Company.
Section 2.06 Minimum Adjustment. No adjustment in the number of shares
that may be issued upon exercise of this Warrant as provided in this Article II
shall be required unless such adjustment would require an increase or decrease
in such number of shares of at least one percent (1%) of the then adjusted
number of shares of Common Stock that may be issued upon exercise of this
Warrant; provided, however, that any such adjustments that by reason of the
foregoing are not required to be made shall be carried forward and taken into
account and included in determining the amount of any subsequent adjustment; and
provided further, that if the Company shall at any time subdivide or combine the
outstanding shares of Common Stock or issue additional shares of Common Stock as
a dividend, said percentage shall forthwith be proportionately adjusted so as to
appropriately reflect the same.
Section 2.7 Adjustment of Exercise Price. Whenever the number of shares
of Common Stock that may be issued upon exercise of this Warrant is adjusted and
effective at the time such adjustment is effective, as provided in Sections
2.01, 2.02 and 2.03 of this Article II, the Exercise Price shall be adjusted (to
the nearest whole cent) by multiplying each such Exercise Price immediately
prior to such adjustment by a fraction (x) the numerator of which shall be the
number of shares of Common Stock which may be issued upon the exercise of each
such Warrant immediately prior to such adjustment, and (y) the denominator of
which shall be the number of shares of Common Stock so purchasable immediately
thereafter. The Company may retain a firm of independent certified public
accountants (which may not be the regular accountants employed by the Company)
to make any required computation, and a certificate signed by such firm shall be
conclusive evidence of the correctness of such adjustment.
Section 2.8 Record Date. In the event that the Company shall not take a
record of the holders of its Common Stock for the purpose of entitling them to
receive a dividend payable in Common Stock, then such record date shall be
deemed for the purposes of this Article II to be the date of the issue or sale
of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend.
Section 2.9 Officer's Certificate. Whenever the Exercise Price shall be
adjusted as provided in this Article II, the Company shall forthwith file with
its Secretary and retain in the permanent records of the Company, an officer's
certificate showing the adjusted Exercise Price determined as provided in this
Article II, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional or fewer shares of
Common Stock, and such other facts as may be reasonably necessary to show the
reason for and the method of
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computing such adjustment. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Holder.
Section 2.10 Notice of Adjustment. Upon any adjustment of the number of
shares that may be issued upon exercise of this Warrant or the Exercise Price,
the Company shall give notice thereof to the Holder, which notice shall state
the increase or decrease, if any, in the number of shares that may be issued
upon the exercise of this Warrant and the Exercise Price, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
Section 2.11 Definition of "Common Stock". As used in this Article II,
the term "Common Stock" shall mean and include all of the Company's authorized
Common Stock of any class as constituted on the date of this Warrant as set
forth below, and shall also include any capital stock of any class of the
Company thereafter authorized that shall not be limited to a fixed sum or stated
value in respect of the rights of the holders thereof to participate in
dividends or the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company.
Section 2.12 Exclusion of Certain Stock. Notwithstanding anything in
this Article II, no adjustment of the Exercise Price or the number of shares to
be issued upon exercise of this Warrant shall be made upon, (i) the grant of
options under any stock option plan of the Company now existing or hereafter
adopted by the Company (as any such plan may be amended from time to time) or
(ii) the issuance of shares of Common Stock upon the exercise of options granted
under any such plan or (iii) other events where adjustment is not specifically
required by this Warrant.
ARTICLE III.
TRANSFER RESTRICTIONS; REGISTRATION RIGHTS
Section 3.01 Securities Law Transfer Restrictions. By taking and
holding this Warrant, the Holder (i) acknowledges that neither this Warrant nor
any shares of Common Stock that may be issued upon exercise of this Warrant have
been registered under the Securities Act or any applicable state securities or
blue sky law (collectively, "Securities Laws"); (ii) agrees not to sell,
transfer or otherwise dispose of this Warrant, and agrees not to sell, transfer
or otherwise dispose of any such shares of Common Stock without registration
unless the sale, transfer or disposition of such shares can be effected without
registration and in compliance with the Securities Laws; and (iii) agrees not to
sell, transfer or otherwise dispose of this Warrant or any portion thereof or
interest therein except as otherwise expressly permitted herein. No part of this
Warrant or any portion thereof or interest therein may be transferred, whether
voluntarily, involuntarily or by operation of law, except to a Permitted
Transferee as hereinafter defined. "Permitted Transferee" shall mean a successor
by inheritance or intestate succession to any interest in this Warrant or any
portion thereof and who accepts by written instrument reasonably acceptable to
the Company each of the terms and conditions that govern this Warrant. Without
limiting the foregoing, no rights in this Warrant or the stock for which it may
be exercised may
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be transferred for twelve (12) months after the date of issuance of this Warrant
or the exercise of the stock purchase rights hereunder. Any certificate for
shares of Common Stock issued upon exercise of this Warrant shall bear an
appropriate legend describing the foregoing restrictions, unless such shares of
Common Stock have been effectively registered under the applicable Securities
Laws.
Section 3.02 Provision of Information by Holder. The Holder shall make
available to the Company such written information, presented in form and content
satisfactory to the Company, as the Company may reasonably request, from time to
time, in order to make the determination provided for in Section 3.01.
Section 3.03 Registration Rights. The following provisions shall apply
irrespective of whether the Holder holds this Warrant or has exercised this
Warrant and holds Warrant Shares, and shall apply during the period beginning on
the date of this Warrant as set forth below ("Issue Date") and continuing until
the Expiration Date:
(a) The Company shall use reasonable best efforts to,
within one year from the Issue Date, include the Warrant Shares in a
registration statement ("Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act, and have
such Registration Statement declared effective no later than the first
anniversary after the Exercise Date so that upon issuance the Warrant
Shares will be freely tradeable, provided that the Holder shall furnish
to the Company all appropriate information in connection therewith as
the Company may reasonably request. The Company shall use its
reasonable best efforts to ensure that such Registration Statement
shall remain continuously effective for ninety (90) days after its
effectiveness.
(b) The Company shall (i) bear the costs, expenses and fees
incurred in connection with any such registration, excluding any broker
fees, selling commissions, and out-of-pocket costs and expenses of the
Holder; (ii) use its reasonable best efforts to keep any such
registration statement effective through the Expiration Date, as
amended from time to time, as necessary; (iii) supply prospectuses and
other documents as the Holder may reasonably request; (iv) use its
reasonable best efforts to register and qualify the Warrant Shares for
sale in such states as the Holder designates; (v) do any and all other
acts and things that may be necessary or desirable to enable Holder to
consummate the public sale or other disposition of the Warrant Shares;
and (vi) enter into cross-indemnification arrangements with the Holder
with respect to matters arising from such Registration Statement and
public offering.
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ARTICLE IV.
MISCELLANEOUS
Section 4.01 Transfer of Warrants. No right or interest in this Warrant
shall be transferable except as provided in Article III.
Section 4.02 Notices. Any notice or communication to be given pursuant
to this Warrant shall be in writing and shall be delivered in person or by
certified mail, return receipt requested, in the United States mail, postage
prepaid. Notices to the Company shall be addressed to the Company's principal
office. Notices to the Holder shall be addressed to the Holder's address as
reflected in the records of the Company. Notices shall be effective upon
delivery in person, or, if mailed, at midnight on the fifth business day after
mailing.
Section 4.03 Issue Tax. The issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
the Holder for any issuance tax in respect thereof, provided that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than that of the Holder of the Warrant exercised.
Section 4.04 No Shareholder Rights. This Warrant shall not entitle the
Holder to any voting rights or other rights as a shareholder of the Company.
Section 4.05 Current Information. The Company shall cause copies of all
financial statements and reports, proxy statements and other documents that are
provided to its shareholders to be sent by first class mail, postage prepaid, on
the date of mailing to such shareholders, to the Holder at the address reflected
in the records of the Company.
Section 4.06 Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of Arizona.
Section 4.07 Headings; Interpretation. The section headings used herein
are for convenience of reference only and are not intended to define, limit or
describe the scope or intent of any provision of this Warrant. When used in this
Warrant, the term "including" shall mean "including, without limitation."
Section 4.08 Successors. The covenants, agreements and provisions of
this Warrant shall bind the parties hereto and their respective successors and
permitted assigns.
Section 4.09 Integrated Agreement; Modification. This Warrant is a
complete statement of the agreement of the parties with respect to the subject
matter hereof and may be modified only by written instrument executed by the
parties.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be issued as
of the ____________ day of ____________, 1999.
ATTEST: iBIZ TECHNOLOGY CORP.
By: By:
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Secretary Xxx Xxxxxxxxx, President
------------------,
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SUBSCRIPTION FORM
(To be Executed only upon Exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant and purchases _______ shares of Common Stock of iBIZ TECHNOLOGY
CORP., a Florida corporation, that may be issued under this Warrant and herewith
delivers the sum of $__________ in full payment of the Exercise Price for such
shares, all on the terms and conditions specified in this Warrant. Such shares
are to be delivered to such holder at the address reflected in the records of
the Company unless contrary instructions are herein given.
Deliver certificates to:
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Dated:
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(Signature of Registered Owner)
------------------------------------
(Street Address)
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(City) (State) (Zip Code)
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UNANIMOUS CONSENT OF THE DIRECTORS
IN LIEU OF SPECIAL MEETING OF
THE BOARD OF DIRECTORS OF
IBIZ TECHNOLOGY CORP.
The undersigned, being all of the directors of iBIZ TECHNOLOGY
CORP., a Florida corporation, hereby consent to the following action taken
without a meeting:
RESOLVED, that the Warrant attached hereto is hereby
approved by the Board, the undersigned having determined that
the consideration for the Warrant and the stock obtainable
thereunder is adequate, and the President is hereby authorized
to issue such Warrant to Xxxxx Xxxxxxx.
This consent, and all executed counterparts hereof, shall be
deemed effective as of the ___ day of __________, 1999, and shall be filed with
the minutes of the proceedings of the Board.
DIRECTORS:
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Xxxxxxx Xxxxxxxxx
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Xxxx X. Xxxxx
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Xxxxx Xxxxxxx
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Xxxx Xxxxxxx
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