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Exhibit 4.2
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
(COLLECTIVELY, THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAWS ("BLUE SKY LAWS"). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES OR ANY INTEREST THEREIN MAY
BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND ANY APPLICABLE BLUE SKY LAWS OR (B) IF THE CORPORATION HAS
BEEN FURNISHED BOTH WITH AN OPINION OF COUNSEL FOR THE HOLDER, WHICH OPINION AND
COUNSEL SHALL BE SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT NO
REGISTRATION IS REQUIRED BECAUSE OF THE AVAILABILITY OF AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE BLUE SKY LAWS, AND WITH
ASSURANCES THAT THE TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION WILL BE MADE ONLY IN COMPLIANCE WITH THE CONDITIONS OF ANY SUCH
REGISTRATION OR EXEMPTION.
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WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF
EL CAPITAN PRECIOUS METALS, INC.
Warrant No.: ______ Date: November 5, 2004
THIS CERTIFIES THAT, for value received, or its successors or assigns
(collectively, the "Holder") is entitled to purchase from El Capitan Precious
Metals, Inc. (the "Corporation"), (_________) fully paid and nonassessable
shares (the "Shares") of the Corporation's common stock (the "Common Stock"), at
an exercise price of Seventy-Five Cents ($0.75) per Share (the "Exercise
Price"), subject to adjustment as herein provided. This Warrant may be exercised
by Holder at any time from and after the date hereof until the date three years
from the date hereof, at which time all of Holder's rights hereunder shall
expire.
This Warrant is subject to the following provisions, terms and
conditions:
1. Exercise of Warrant. The rights represented by this Warrant may be
exercised by the Holder, in whole or in part (but not as to any fractional
shares of Common Stock), by the surrender of this Warrant (properly endorsed, if
required, at the Corporation's principal office, or such other office or agency
of the Corporation as the Corporation may designate by notice in writing to the
Holder at the address of such Holder appearing on the Corporation's books at any
time within the period above indicated), and upon payment to it by certified
check, bank draft or cash of the purchase price for such Shares (or exercise
pursuant to Section 2 below). The Corporation agrees that 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 have
been surrendered and payment for such Shares shall have been made as aforesaid.
Certificates for the Shares so purchased shall be delivered to the Holder within
a reasonable time, not exceeding 30 days, after the rights represented by this
Warrant shall have been so exercised and, unless this Warrant has expired, a new
Warrant representing the number of Shares, if any, with respect to which this
Warrant shall not then have been exercised shall also be delivered to the Holder
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within such time. The Corporation may require that any such new Warrant or any
certificate for Shares purchased upon the exercise hereof bear a legend
substantially similar to that which is contained on the face of this Warrant.
2. Cashless Exercise. The rights represented by this Warrant may be
exercised by the Holder, in whole or in part (but not to as any fractional share
of Common Stock) by the surrender of this Warrant (properly endorsed, if
required, at the Corporation's principal office, or such other office or agency
of the Corporation as the Corporation may designate by notice in writing to the
Holder at the address of such Holder appearing on the Corporation's books at any
time within the period above named), together with a notice of cashless
exercise. Upon surrender of this Warrant and receipt of a notice of cashless
exercise, the Holder shall be entitled to receive (without payment by the Holder
of any exercise price) that number of Shares equal to the number of Shares
subject to such notice of cashless exercise multiplied by a fraction, the
numerator of which shall be the difference between (i) the Fair Market Value of
one share of Common Stock and (ii) the Exercise Price, and the denominator of
which shall be the Fair Market Value of one share of Common Stock. For purposes
of this Warrant, "Fair Market Value" of the Common Stock shall mean the average
of the Common Stock closing prices reported by the principal exchange or market,
as the case may be, for the ten business days immediately preceding the date of
the notice of cashless exercise or, in the event no public market shall exist
for the Common Stock at the time of such cashless exercise, Fair Market Value
shall mean the fair market value of the Common Stock as the same shall be
determined in the good faith discretion of the Corporation's board of directors,
after full consideration of all factors then deemed relevant by such board in
establishing such value, including by way of illustration and not limitation,
the per-share purchase price of Common Stock or per-security convertible into
one share of Common Stock of the most recent sale of shares of Common Stock or
securities convertible into Common Stock by the Corporation after the date
hereof, all as evidenced by the vote of a majority of the directors then in
office.
3. Transferability. This Warrant is issued upon the following terms, to
which Holder consents and agrees:
(a) Until this Warrant is transferred on the books of the
Corporation, the Corporation will treat the Holder of this Warrant, registered
as such on the books of the Corporation, as the absolute owner hereof for all
purposes without effect given to any notice to the contrary.
(b) This Warrant may not be exercised, and this Warrant and the
Shares underlying this Warrant shall not be transferable, except in compliance
with all applicable state and federal securities laws, regulations and orders,
and with all other applicable laws, regulations and orders.
(c) The Warrant may not be transferred, and the Shares issuable upon
exercise of this Warrant, may not be transferred without the Holder obtaining an
opinion of counsel, which opinion and counsel are satisfactory to the
Corporation, stating that the proposed transaction will not result in a
prohibited transaction under the Securities Act and applicable Blue Sky Laws. By
accepting this Warrant, the Holder agrees to act in accordance with any
conditions imposed on such transfer by any such opinion of counsel.
(d) Neither the issuance of this Warrant nor the issuance of the
Shares issuable upon exercise of this Warrant have been registered under the
Securities Act.
4. Certain Covenants of the Corporation. The Corporation covenants and
agrees that all Shares which may be issued upon the exercise of the rights
represented by this Warrant, upon issuance and full payment for the Shares so
purchased, will be duly authorized and issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue hereof, except
those that may be created by or imposed upon the Holder or its property; and,
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without limiting the generality of the foregoing, the Corporation covenants and
agrees that it will from time to time take all such actions as may be required
to ensure that the par value per share of the Common Stock is at all times equal
to or less than the Exercise Price per Share issuable pursuant to this Warrant.
The Corporation further covenants and agrees that during the period within which
the rights represented by this Warrant may be exercised, the Corporation will at
all times have authorized and available, free of preemptive or other rights, for
the purpose of issue upon exercise of the purchase rights evidenced by this
Warrant, a sufficient number of shares of its Common Stock to provide for the
full exercise of the rights represented by this Warrant.
5. Adjustment of Exercise Price and Number of Shares. The Exercise Price
and number of Shares are subject to the following adjustments:
(a) Stock Dividend, Stock Split or Stock Combination. If (i) any
dividends on any class of the Corporation's capital stock payable in Common
Stock or securities convertible into or exercisable for Common Stock
(collectively, "Common Stock Equivalents") shall be paid by the Corporation,
(ii) the Corporation shall divide its then-outstanding shares of Common Stock
into a greater number of shares, or (iii) the Corporation shall combine its
outstanding shares of Common Stock, by reclassification or otherwise, then, in
any such event, the Exercise Price in effect immediately prior to such event
shall (until adjusted again pursuant hereto) be adjusted immediately after such
event to a price (calculated to the nearest full cent) equal to the quotient of
(x) the number of shares of Common Stock outstanding immediately prior to such
event, multiplied by the Exercise Price in effect immediately prior to such
event, divided by (y) the total number of shares of Common Stock outstanding
immediately after such event. No adjustment of the Exercise Price shall be made
if the amount of such adjustment shall be less than $.05 per Share; but any such
adjustment not required then to be made shall be carried forward and shall be
made at the time and together with the any subsequent adjustment(s) which,
together with any adjustment(s) so carried forward, shall amount to not less
than $.05 per Share.
(b) Number of Shares Issuable on Exercise of Warrants. Upon each
adjustment of the Exercise Price pursuant to this Section, the Holder shall
thereafter (until another such adjustment) be entitled to purchase, at the
adjusted Exercise Price, the number of Shares, calculated to the nearest full
Share, equal to the quotient of (i) the product of (A) the number of Shares
issuable under this Warrant (as then adjusted pursuant hereto prior to the
current adjustment), multiplied by (B) the Exercise Price in effect prior to
such adjustment, divided by (ii) the adjusted Exercise Price.
(c) Notice of Adjustment. Upon any adjustment of the Exercise Price
and any increase or decrease in the number of Shares of Common Stock issuable
upon the exercise of the Warrant, then, and in each such case, the Corporation
shall within 30 days thereafter give written notice thereof, by first-class
mail, postage prepaid, addressed to each Holder as shown on the books of the
Corporation. Any such notice shall state the adjusted Exercise Price and
adjusted number of Shares issuable upon the exercise of the Warrant, and shall
set forth in reasonable detail the methods of calculation of such adjustments
and the facts upon which such calculations were based.
(d) Effect of Reorganization, Reclassification or Merger. If at any
time while this Warrant is outstanding there should be (i) any reorganization of
the Corporation's capital stock (other than splits or combinations of Common
Stock contemplated by and provided for in Section 5(a)), (ii) any consolidation
or merger of the Corporation with another corporation, limited liability
Corporation, partnership or other business entity, or any sale, conveyance,
lease or other transfer by the Corporation of all or substantially all of its
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property to any other corporation, limited liability Corporation, partnership or
other business entity, which is effected in such a manner that the holders of
Common Stock shall be entitled to receive cash, stock, securities or assets with
respect to or in exchange for Common Stock, or (iii) any dividend or any other
distribution upon any class of the Corporation's capital stock payable in
capital stock of a different class, other securities of the Corporation, or
other Corporation property (other than cash), then, as a part of such
transaction, lawful provision shall be made so that Holder shall have the right
thereafter to receive, upon the exercise hereof, the number of shares of stock
or other securities or property of the Corporation or of the successor entity
resulting from a consolidation or merger, or of the entity to which the property
of the Corporation has been sold, conveyed, leased or otherwise transferred, as
the case may be, which the Holder would have been entitled to receive upon such
capital reorganization, reclassification of capital stock, consolidation,
merger, sale, conveyance, lease or other transfer, if this Warrant had been
exercised immediately prior to such capital reorganization, reclassification of
capital stock, consolidation, merger, sale, conveyance, lease or other transfer.
In any such case, appropriate adjustments (as determined by the Corporation's
board of directors) shall be made in the application of the provisions of this
Warrant to the end that the provisions set forth herein shall thereafter be
applicable, as near as reasonably may be, in relation to any shares or other
property thereafter deliverable upon the exercise of the Warrant as if the
Warrant had been exercised immediately prior to such capital reorganization,
reclassification of capital stock, such consolidation, merger, sale, conveyance,
lease or other transfer and the Holder had carried out the terms of the exchange
as provided for by such capital reorganization, consolidation or merger.
6. Right to Call and Redeem. The Corporation shall have the right, at any
time upon 30 days prior written notice, to call and redeem all or any portion of
this Warrant (in any such case, the "Call Right") provided that (a) the closing
sale price of the Corporation's Common Stock on the Over-the-Counter Bulletin
Board (or other market, exchange or listing service) remains at or above $1.25
per share of Common Stock for a period of ten consecutive trading days, and (b)
the resale of the Shares issuable upon exercise of this Warrant are covered by a
then-effective registration statement filed with the SEC. The Corporation shall
exercise the Call Right by delivering written notice to the Holder, indicating
the Corporation's exercise of the Call Right described herein. Upon any exercise
of the Call Right, the purchase price for such redemption shall equal one-tenth
of One Cent ($0.001) per Share issuable hereunder and redeemed pursuant to the
Call Right.
7. No Rights as Shareholder. This Warrant shall not entitle the Holder
hereof to any voting rights or other rights as a shareholder of the Corporation.
8. Loss or Mutilation. Upon receipt by the Corporation from Holder of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity reasonably satisfactory
to the Corporation, and in case of mutilation upon surrender and cancellation
hereof, the Corporation will execute and deliver in lieu hereof a new Warrant of
like tenor to Holder; provided, however, in the case of mutilation no indemnity
shall be required if this Warrant in identifiable form is surrendered to the
Corporation for cancellation.
9. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Nevada without regard to its
conflicts-of-law provisions.
10. Amendments and Waivers. The provisions of this Warrant may not be
amended, modified or supplemented, and waiver or consents to departures from the
provisions hereof may not be given, unless the Corporation agrees in writing and
has obtained the written consent of the Holder.
11. Successors and Assigns. All the terms and conditions of this Warrant
shall be binding upon and inure to the benefit of the permitted successors and
assigns of the Corporation and Holder.
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12. Headings and References. The headings of this Warrant are for
convenience only and shall not affect the interpretation of this Warrant. Unless
the context indicates otherwise, all references herein to Sections are
references to Sections of this Warrant.
13. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing. Notices sent to the Holder
shall be mailed, hand delivered or faxed and confirmed to the Holder at his, her
or its address set forth in the Corporation's records. Notices sent to the
Corporation shall be mailed, hand delivered or faxed and confirmed to El Capitan
Precious Metals, Inc., c/o Xxxxxxx X. Xxxxxxx, 00000 X. Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 , or to such other address as the Corporation or the
Holder shall notify the other as provided in this Section.
14. Counterparts. This warrant may be executed by the Corporation and
attested to in counterparts.
Signature Page Follows
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IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
signed by its duly authorized officer on the date first set forth above.
EL CAPITAN PRECIOUS METALS, INC.:
By:
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XXXXXXX X. XXXXXXX
President
ATTEST:
By:
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XXXXXX X. XXXXX, Treasurer
Signature Page - Warrant No. ____
SUBSCRIPTION FORM
(To be signed only upon exercise of Warrant)
THE UNDERSIGNED, the holder of the Warrant referenced below, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, _______________________________ shares of
common stock of El Capitan Precious Metals, Inc. (the "Shares") to which such
Warrant relates, herewith makes payment of $_____________________ therefor in
cash, certified check, bank draft or pursuant to the cashless-exercise provision
of Section 2 of the Warrant, and hereby requests that a certificate evidencing
the Shares be delivered to _______________________________________, the address
of whom is set forth below the signature of the undersigned:
Dated:
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(Signature)
-----------------------------------
(Printed Name)
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(Address)
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(Address)
Warrant No. _____, dated November 5, 2004 (the "Warrant")
ASSIGNMENT FORM
(To be signed only upon authorized transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, transfers and
conveys unto _________________________________ the right to purchase shares of
common stock of El Capitan Precious Metals, Inc. (the "Corporation") to which
the Warrant referenced below relates, and hereby appoints
_________________________________ as his, her or its attorney to transfer said
right on the books of the Corporation with full power of substitution in the
premises.
Dated:
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(Signature)
-----------------------------------
(Printed Name)
-----------------------------------
(Address)
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(Address)
Warrant No. _____, dated November 5, 2004 (the "Warrant")
