NAVIDEC, INC.
BROKER
WARRANT TO PURCHASE COMMON STOCK
Certificate No. Warrants
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April 13, 1998
Navidec, Inc. ("Company") certifies that, for valuable consideration,
receipt of which is hereby acknowledged, that _____________________ ("Holder")
is entitled to purchase from the Company _________ (the "Shares") at the price
of $4.50 per Share ("Purchase Price").
1. Exercise.
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a. Time of Exercise. This Warrant may be exercised in whole or in
part (but not as to fractional shares) at the office of the Company, at any
time or from time to time on or after April 13, 1998, provided, however,
that this Warrant shall expire and be null and void if not exercised in the
manner herein provided, by 5:00 p.m. EST, on April 13, 2003, the
"Expiration Date."
b. Manner of Exercise. This Warrant is exercisable at the
Purchase Price, payable in cash or by check, payable to the order of the
Company, subject to adjustment as provided in Section 3 hereof. Upon
surrender of this Warrant with the annexed Subscription Form duly executed,
together with payment of the Purchase Price for the Units purchased (and
any applicable transfer taxes) at the offices of the Company's Transfer
Agent, American Securities Transfer and Trust, Inc., 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, the Holder shall be entitled to
receive a certificate or certificates for the Shares so purchased.
c. Delivery of Stock Certificates. As soon as practicable, but
not exceeding 10 days, after complete or partial exercise of this Warrant,
the Company, at its expense, shall cause to be issued in the name of the
Holder (or upon payment by the Holder of any applicable transfer taxes, the
Holder's assigns) certificate or certificates for the number of fully paid
and non-assessable Shares to which the Holder shall be entitled upon such
exercise, to which the Holder shall be entitled upon such exercise,
determined in accordance with Section 2 hereof.
d. Record Date of Issuance of Shares. Irrespective of the date of
issuance and delivery of certificates for any stock or securities issuable
upon the exercise of this Warrant, each person (including a corporation or
partnership) in whose name any such certificate is to be issued shall for
all purposes be deemed to have become the holder of record of the stock or
other securities represented thereby immediately prior to the close of
business on the date on which a duly executed Subscription Form containing
notice of exercise of this Warrant and payment of the Purchase Price is
received by the Company's Transfer Agent.
2. Adjustment of Purchase Price. The Purchase Price shall be subject to
adjustment as follows:
a. In case the Company shall (1) pay a dividend in shares of its
capital stock (other than an issuance of shares of capital stock to holders
of Common Stock who have elected to receive a dividend in shares in lieu of
cash), (ii) subdivide its outstanding shares of Common Stock, (iii) reduce,
consolidate or combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) Issue by reclassification of its shares
of Common Stock any shares of the Company, the Purchase Price in effect
immediately prior thereto shall be adjusted to that amount determined by
multiplying the Purchase Price in effect immediately prior to such date by
a fraction, of which the numerator shall be the number of shares of Common
Stock outstanding on such date before giving effect to such divisions,
subdivision, reduction, combination or consolidation or stock dividend and
of which the denominator shall be the number of shares of Common Stock
after giving affect thereto. The number of shares issuable shall also be
adjusted upward or downward determined by multiplying the number of
warrants owned by the Holder by a fraction of which the denominator shall
be the number of shares of Common Stock outstanding on such date before
giving effect to such divisions, subdivision, reduction, combination or
consolidation or stock dividend and of which the numerator shall be the
number of shares of Common Stock after giving affect thereto. Such
adjustment shall be made successively whenever any such effective date or
record date shall occur. An adjustment made pursuant to this subsection (a)
shall become effective retroactively to the Effective Date immediately
after the record date in the case of a dividend and shall become effective
immediately after the effective date In the case of a subdivision,
reduction, consolidation, combination or reclassification.
b. If the Common Stock issuable upon the conversion of the
Warrant shall be changed into the same or a different number of shares of
any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of
shares or stock dividend provided for above, or a reorganization, merger,
consolidation or sale of assets provided for in this Section 2), then, and
in each such event, the Holder of this Warrant shall have the right
thereafter to convert such Warrant into the kind and amount of shares of
Common Stock and other securities and property receivable upon such
reorganization, reclassification, or other change by the Holders of the
number of shares of Common Stock into which such Warrant might have been
converted, as reasonably determined by the Company's board of directors,
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
c. If at any time or from time to time there shall be a capital
reorganization of the Common Stock (other than a subdivision, combination,
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reclassification or exchange of shares provided for elsewhere in this
Section 2) or a merger or consolidation of the Company with or into another
corporation, or the sale of all or substantially all of the Company's
properties and assets to any other person, then, as a part of such
reorganization, merger, consolidation or sale, provision shall be made as
reasonably determined by the Company's board of directors so that the
Holder of the Warrant shall thereafter be entitled to receive upon
conversion of such Warrant, the number of shares of stock or other
securities or property of the Company or of the successor corporation
resulting from such merger or consolidation or sale, to which a holder of
Common Stock deliverable upon conversion would have been entitled on such
capital reorganization, merger, consolidation or sale.
d. The adjustments provided for in this Section 2 are cumulative
and shall apply to successive divisions, subdivisions, reductions,
combinations, consolidations, issues, distributions or other events
contemplated herein resulting in any adjustment under the provisions or
this section, provided that, notwithstanding any other provision of this
section, no adjustment of the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Purchase Price then In effect; provided, however, that any adjustment which
by reason of this subsection (a) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
e. Upon each adjustment of the Purchase Price, the Company shall
give prompt written notice thereof addressed to the Holder at the address
of such Holder as shown on the records of the Company, which notice shall
state the Purchase Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares issuable upon the conversion of
the Holder's warrants, setting forth in reasonable detail the method of
calculation and the facts upon which such calculations is based.
f. In the event of any question arising with respect to the
adjustments provided for In this Section 2, such question shall be
conclusively determined by an opinion of independent certified public
accountants appointed by the Company (who may be the auditors of the
Company) and acceptable to the Holder of this Warrant. Such accountants
shall have access to all necessary records of the Company, and such
determination shall be binding upon the Company and the Holder.
g. The Company may in its sole discretion and without any
obligation to do so reduce the Purchase Price then in effect by giving 15
days' written notice to the Holders. The Company may limit such reduction
as to its temporal duration or may impose other conditions thereto in its
sole discretion.
3. Call Provision. If the closing bid price of the Company's Common Stock
is equal to or above $8.40 per share for 20 consecutive trading days at any time
prior to the Expiration Date the Company may call this Warrant. Notice of the
call will be mailed at least thirty (30) days before the date fixed by the board
of directors of the Company as the date of the call (the "Call Date"). If the
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Holder fails to exercise the Warrant prior to the Call Date, it will expire. For
purposes of this Section the closing bid price of the Common Stock on any
particular date means (i) if the shares are listed on any national securities
exchange or reported in the Nasdaq System, the closing bid price as reported for
transactions on the exchange or Nasdaq for the period in question, or (ii) if
the Common Stock is publicly traded on the OTC bulletin board ("OTCBB") but not
listed on any exchange or reported on Nasdaq, the average of the means between
bona fide bid and asked prices on the dates in question as quoted by three
independent market makers. This right of call shall not restrict the right of
the Holder to Exercise the Warrants prior to the Call Date.
4. Restriction on Transfer. The Holder, by its acceptance hereof,
represents, warrants, covenants and agrees that (i) the Holder has knowledge of
the business and affairs of the Company, and (ii) this Warrant and the Shares
issuable upon the exercise of this Warrant are being acquired for investment and
not with a view to the distribution hereof and that absent an effective
registration statement under the Securities Act of 1933 as amended (the "Act")
covering the disposition of this Warrant or the Shares issued or issuable upon
exercise of this Warrant, they will not be sold, transferred, assigned,
hypothecated or otherwise disposed of without first providing the Company with
an opinion of counsel (which may be counsel for the Company) or other evidence,
reasonably acceptable to the Company, to the effect that such sale, transfer,
assignment, hypothecation or other disposal will be exempt from the registration
and prospectus delivery requirements of the Act and the registration or
qualification requirements of any applicable state securities laws. The Holder
consents to the making of a notation in the Company's records or giving to any
transfer agent of the Warrant or the Shares an order to implement such
restriction on transferability.
This Warrant shall beer the following legend or a legend of similar import,
provided, however, that such legend shall be removed or not placed upon the
Warrant if such legend Is no longer necessary to assure compliance with the
Securities Act of 1933, as amended:
THESE WARRANTS AND THE SHARES ISSUABLE UPON THEIR EXERCISE HAVE NOT BEEN
REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE BECAUSE THEY ARE BELIEVED TO BE EXEMPT FROM
REGISTRATION UNDER REGULATION S PROMULGATED PURSUANT TO THE ACT. THIS WARRANT IS
"RESTRICTED" AND MAY NOT BE RESOLD OR TRANSFERRED NOR MAY THE WARRANT BE
EXERCISED BY OR ON BEHALF OF ANY U. S. PERSON EXCEPT AS PERMITTED UNDER THE ACT
PURSUANT TO THE REGISTRATION OF THE SECURITIES OR EXEMPTION THEREFROM.
5. Payment of Taxes. All Shares issued upon the exercise of this Warrant
shall be validly issued, fully paid and non-assessable and the Company shall pay
all taxes and other governmental charges (other than income tax) that may be
imposed in respect of the issue or delivery thereof. The Company shall not be
required, however, to pay any tax or other charge imposed In connection with any
transfer involved in the issue of any certificate for Shares in any name other
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than that of the Holder surrendered in connection with the purchase of such
Shares, and In such case the Company shall not be required to issue or deliver
any stock certificate until such tax or other charge has been paid or it has
been established to the Company's satisfaction that no tax or other charge is
due.
6. Reservation of Common Stock. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of issuance upon the exercise of this Warrant, such number of
shares of Common Stock as shall be issuable upon the exercise hereof. The
Company covenants and agrees that, upon exercise of this Warrant and payment of
the Purchase Price thereof, all Shares of Common Stock issuable upon such
exercise shall be duly and validly issued, fully paid and non-assessable.
7. Notices to Holder. Nothing contained in this Warrant shall be construed
as conferring upon the Holder hereof the right to vote or to consent or to
receive notice as a shareholder in respect of any meetings of shareholders for
the election of directors or any other matter or as having any rights whatsoever
as a shareholder of the Company. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered or mailed by registered or certified mail, postage
prepaid, return receipt requested:
a. If to the Holder, to the address of such Holder as shown on
the books of the Company, or
b. If to the Company, to the address set forth in Section 2(b)
hereof or to any other address notice of which is delivered to the Holder
by regular mail.
8. Replacement of Warrant. Upon receipt of evidence reasonably satisfactory
to the Company of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and (in case of loss, theft or destruction) upon
delivery of an indemnity agreement in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of the
mutilated Warrant, the Company will execute and deliver, in lieu thereof, a new
Warrant of like tenor.
9. Successors. All the covenants, agreements, representations and
warranties contained in this Warrant shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
10. Changes or Waiver. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
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11. Headings. The section headings in this Warrant are inserted for
purposes of convenience only and shall have no substantive effect.
12. Governing Law. This Warrant shall for all purposes be construed and
enforced in accordance with, and governed by, the internal laws of the United
States and the State of Colorado, without giving effect to principles of
conflict of laws.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer and this Warrant to be dated as of the date first above
written.
NAVIDEC, INC.
By:
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Xxxxx Xxxxxx, President
Countersigned:
By:
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Secretary
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EXHIBIT A
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SUBSCRIPTION FORM
(To be Executed by the Registered Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to purchase
of the Shares covered by this Warrant according to the conditions hereof and
herewith makes payment of the Purchase Price of such Shares in full.
No. of Warrants Exercised _______________________
Amount of exercise price delivered $______________
Dated _________________, 199___.
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Signature (must be as listed on Warrant Certificate)
Name Shares to be issued to:
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Address for delivery:
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