EXHIBIT 4.0
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK WHICH MAY BE ISSUED ON ITS
EXERCISE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND NEITHER THIS WARRANT NOR ANY SUCH SHARES MAY BE OFFERED,
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) THEY ARE
REGISTERED UNDER THE SECURITIES ACT OR (2) THE HOLDER HAS DELIVERED TO THE
ISSUER AN OPINION OF COUNSEL, WHICH OPINION SHALL BE SATISFACTORY TO THE ISSUER,
TO THE EFFECT THAT THERE IS AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THAT REGISTRATION
OTHERWISE IS NOT REQUIRED.
TASTY FRIES, INC.
WARRANT TO PURCHASE _________ SHARES OF COMMON STOCK
FOR VALUE RECEIVED, _______________________________________ or his
transferees or assigns (the "Holder"), is entitled to purchase, subject to the
provisions hereof, from TASTY FRIES, INC., a Nevada corporation (the "Issuer"),
__________ fully paid, validly issued and non-assessable shares of common stock,
par value $.001 per share (the "Common Stock"), of the Issuer (the "Shares") at
an exercise price of $1.90 which will entitle the holder to receive one share of
Common Stock, subject to adjustment as provided below. The right to purchase the
Shares under this Warrant is exercisable, in whole or in part, at any time after
the date of this Warrant and prior to 5:00 p.m., New York City time, on May 31,
1999. The Shares deliverable upon exercise of this Warrant (including any
adjusted number of Shares issuable pursuant to the provisions of this Warrant)
are hereinafter sometimes referred to as "Warrant Shares" and the exercise price
per Share in effect at any time and as adjusted from time to time is hereinafter
sometimes referred to as the
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"Exercise Price." This Warrant and all warrants issued upon transfer, division
or in substitution thereof are hereinafter sometimes referred to as the
"Warrants."
(a) EXERCISE OF WARRANT. This Warrant may be exercised by presentation
and surrender to the Issuer at its principal office, with the Purchase Form
annexed hereto duly executed and accompanied by payment of the Exercise Price
for the Warrant Shares. Payment shall be made by wire transfer or by certified
or official bank check. As soon as practicable after the exercise of this
Warrant, and in any event within five New York Stock Exchange, Inc. trading
days, the Issuer shall issue and deliver to the Holder a certificate or
certificates representing the number of Shares issuable upon the exercise of
this Warrant (or such lesser number as shall be indicated on the Purchase Form),
registered in the name of the Holder or its designee(s). If this Warrant is
exercised only in part, the Issuer also shall issue and deliver to the Holder a
new Warrant, substantially in the form of this Warrant, covering the number of
Warrant Shares which then are issuable hereunder. Upon receipt by the Issuer of
this Warrant at its office, in proper form for exercise, the Holder shall as of
that date be deemed to be the holder of record of the number of Warrant Shares
specified in the Purchase Form. The Issuer shall pay any and all documentary
stamps or similar issue or transfer taxes payable in respect of the issue or
delivery of Warrant Shares on the exercise of this Warrant.
(b) RESERVATION OF SHARES. The Issuer shall at all times reserve and
keep available, free from pre-emptive rights, out of its authorized but unissued
capital stock, for issuance on the exercise of this Warrant, such number of
Shares as shall be required for issuance and delivery upon the exercise of this
Warrant.
(c) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall
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be issued upon the exercise of this Warrant. With respect to any fraction of a
Share called for upon any exercise hereof, the Issuer shall pay to the Holder
an amount in cash equal to such fraction multiplied by the Current Market Price
per Share.
As used in this Warrant, the "Current Market Price" of the Warrant
Shares at any date shall be the last reported sale price per share on the New
York Stock Exchange, Inc. trading day preceding that date. The "last reported
sale price" for any day shall be (i) the last reported sale price of the Common
Stock on the National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation System (the "NASDAQ" National Market System"),
or any similar system of automated dissemination of quotations of securities
prices then in common use, if so quoted, or (ii) if not quoted as described in
clause (c)(i), the last bid quotation for the Common Stock as reported by the
National Quotation Bureau Incorporated if at least two securities dealers have
inserted bid quotations for the Common Stock, or (iii) if the Common Stock is
listed or admitted for trading on any national securities exchange, the last
sale price, or the closing bid price if no sale occurred, of the Common Stock on
the principal securities exchange on which the Common Stock is listed. If none
of the conditions set forth above is met, the Current Market Price shall be the
last sale price for a share of the Issuer's restricted Common Stock as sold by
the Issuer in an offering exempt from registration under Regulation D of the
Securities Act or similar exemption.
(d) TRANSFER OF WARRANT. This Warrant may be transferred in whole or in
part at any time; provided, however, that the Holder shall not transfer this
Warrant to more than five persons or entities. Any such assignment shall be
effectuated by the Holder executing the Assignment Form annexed hereto and
surrendering this Warrant for cancellation to the Issuer at its principal
office,
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whereupon the Issuer shall issue in the name or names specified by the Holder
(including the Holder) a new Warrant or Warrants of like tenor and representing
in the aggregate rights to purchase the same number of Shares as are purchasable
hereunder. Notwithstanding the foregoing, neither this Warrant nor the Warrant
Shares shall be transferable unless (i) a registration statement under the
Securities Act covering the Warrant Shares is in effect at such time or (ii) the
Issuer has received at the Holder's sole expense an opinion from Issuer's
counsel or from the Holder's counsel (which such counsel and opinion shall be
reasonably satisfactory to the Issuer and its counsel) to the effect that such
registration is not required and that the transfer being requested complies with
applicable federal and state securities laws. In the event that the Holder seeks
an opinion as to the transfer without registration from the Holder's counsel,
the Issuer shall provide to the extent it is available without unreasonable
effort or expense, such factual information to the Holder's counsel as may
reasonably be requested for the purpose of rendering such opinion.
(e) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the Issuer of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, including, in the Issuer's sole discretion, the
posting of a security bond or similar instrument at the Holder's sole expense,
and upon surrender and cancellation of this Warrant, if mutilated, the Issuer
will execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered shall not constitute an additional contractual
obligation on the part of the Issuer, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
(f) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights
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of a stockholder in the Issuer, either at law or equity, and the rights of the
Holder are limited to those expressed in this Warrant and are not enforceable
against the Issuer except to the extent set forth herein.
(g) ANTI-DILUTION RIGHTS.
(i) If at any time after the date hereof the Issuer declares
or authorizes any dividend (other than a cash dividend), stock split, reverse
stock split, combination, exchange of Shares, or there occurs any
recapitalization, merger, consolidation, sale or acquisition of property or
stock, reorganization or liquidation, or if the outstanding Shares are changed
into the same or a different number of Shares of the same or another class or
classes of stock of the Issuer, then the Issuer shall cause effective provision
to be made so that the Holder shall, upon exercise of this Warrant following
such event, be entitled to receive the number of shares of stock or other
securities or the cash or property of the Issuer (or of the successor
corporation or other entity resulting from any consolidation or merger) to which
the Warrant Shares (and any other securities) deliverable upon the exercise of
this Warrant would have been entitled if this Warrant had been exercised
immediately prior to the earlier of (i) such event and (ii) the record date, if
any, set for determining the stockholders entitled to participate in such event,
and the Exercise Price shall be adjusted appropriately so that the aggregate
amount payable by the Holder hereof upon the full exercise of this Warrant
remains the same. The Issuer shall not effect any recapitalization,
consolidation or merger unless, upon the consummation thereof, the successor
corporation or entity shall assume by written instrument the obligation to
deliver to the Holder hereof the shares of stock, securities, cash or property
that the Holder shall be entitled to acquire in accordance with the foregoing
provisions,
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which instrument shall contain provisions calculated to ensure for the Holder,
to the greatest extent practicable, the benefits provided for in this Warrant.
(ii) If pursuant to the provisions of this Section (g) the
Holder would be entitled to receive shares of stock or other securities upon the
exercise of this Warrant in addition to the Shares issuable upon exercise of
this Warrant, then the Issuer shall at all times reserve and keep available
sufficient shares of other securities to permit the Issuer to issue such
additional shares or other securities upon the exercise of this Warrant.
(iii) The Issuer shall at any time if so requested by the
Holder furnish a written summary of all adjustments made pursuant to this
paragraph (g) promptly following any such request.
(h) SURVIVAL. Any obligation of the Issuer under this Warrant, the
complete performance of which may require performance beyond the term of this
Warrant, shall survive the expiration of such term.
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(i) AMENDMENTS AND WAIVERS. The respective rights and obligations of
the Issuer and the Holder may be modified or waived only by a writing executed
by the party against whom the amendment or waiver is to be enforced.
IN WITNESS WHEREOF, the Issuer has caused this Warrant to be duly
executed and delivered as of May 31, 1996.
TASTY FRIES, INC.
By:
-----------------------------
Xxxxxx X. Xxxxx, President
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PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant as to ______________ shares and hereby makes payment of $______________
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR ISSUANCE OF COMMON STOCK CERTIFICATES
Name: _______________________________________________________
(Please typewrite or print in block letters)
Address: _______________________________________________________
_______________________________________________________
Signature:____________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________________________
hereby sells, assigns and transfer unto
Name: _______________________________________________________
(Please typewrite or print in block letters)
Address: _______________________________________________________
_______________________________________________________
the right to purchase Common Stock represented by this Warrant to the extent of
__________ Common Stock as to which such right is exercisable and does hereby
irrevocably constitute and appoint ____________ Attorney, to transfer the same
on the books of the Issuer with full power of substitution in the premises.
Dated: ______________, 199_
Signature:____________________
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