Exhibit 10.29
THIS WARRANT OR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
(i) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii) AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED, (iii) RECEIPT OF A NO-ACTION LETTER(S) FROM THE
APPROPRIATE GOVERNMENTAL AUTHORITY(IES), OR (iv) OTHERWISE COMPLYING WITH THE
PROVISIONS OF SECTION 7 OF THIS WARRANT.
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SERIES F WARRANT TO PURCHASE SHARES
OF COMMON STOCK
Warrant No.: F-1
Deer Valley Corporation, a Florida corporation (the "COMPANY"), hereby
certifies that, for value received, VICIS CAPITAL MASTER FUND (the "HOLDER"), or
registered assigns, is the registered holder of a warrant (the "WARRANT") to
subscribe for and purchase 750,000 shares of the fully paid and nonassessable
Common Stock (as adjusted pursuant to Section 4 hereof, the "WARRANT SHARES") of
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the Company, at a price per share equal to two dollars and twenty five cents
($2.25)(the "WARRANT PRICE," as adjusted pursuant to Section 4 hereof), subject
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to the provisions and upon the terms and conditions hereinafter set forth.
As used herein, (a) the term "COMMON STOCK" shall mean the Company's
presently authorized Common Stock, par value $.001 per share, and any stock into
or for which such Common Stock may hereafter be converted or exchanged, (b) the
term "DATE OF GRANT" shall mean November 16, 2006, and (c) the term "OTHER
WARRANTS" shall mean any warrant issued upon transfer or partial exercise of
this Warrant. The term "WARRANT" as used herein shall be deemed to include
Other Warrants unless the context hereof or thereof clearly requires otherwise.
1. Term. The purchase right represented by this Warrant is exercisable, in
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whole or in part, at any time after the Date of Grant (the "INITIAL EXERCISE
DATE") and from time to time thereafter through and including the close of
business on the date five (5) years from the Initial Exercise Date (the
"EXPIRATION DATE"); provided, however, that in the event that any portion of
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this Warrant is unexercised as of the Expiration Date, the terms of Section
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2(b), below, shall apply.
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2. Exercise; Expiration; Redemption.
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a. Method of Exercise; Payment; Issuance of New Warrant. Subject to
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Section 1 hereof, the purchase right represented by this Warrant may be
exercised by the holder hereof, in whole or in part and from time to time
after the Initial Exercise Date, by the surrender of this Warrant (with the
notice of exercise form attached hereto as Exhibit A duly executed) at the
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principal office of the Company and by the payment to the Company of an
amount equal to the then applicable Warrant Price multiplied by the number
of Warrant Shares then being purchased. The person or persons in whose
name(s) any certificate(s) representing shares of Common Stock shall be
issuable upon exercise of this Warrant shall be deemed to have become the
holder(s) of record of, and shall be treated for all purposes as the record
holder(s) of, the shares represented thereby (and such shares shall be
deemed to have been issued) immediately prior to the close of business on
the date or dates upon which this Warrant is exercised. In the event of any
exercise of the rights represented by this Warrant, certificates for the
shares of stock so purchased shall be delivered to the holder hereof as
soon as possible and in any event within thirty (30) days after such
exercise and, unless this Warrant has been fully exercised, a new Warrant
representing the portion of the Warrant Shares, if any, with respect to
which this Warrant shall not then have been exercised shall also be issued
to the holder hereof as soon as possible and in any event within such
thirty (30)-day period.
b. Expiration. In the event that any portion of this Warrant is
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unexercised as of the Expiration Date, such portion of this Warrant shall
automatically expire, and the Holder shall have no rights with respect to
such unexercised portion of this Warrant.
c. Exercise Limitation. The Company shall not effect any exercise of
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this Warrant, and the Holder shall not have the right to exercise any
portion of this Warrant, pursuant to Section 2 or otherwise, to the extent
that after giving effect to such issuance after exercise as set forth on
the applicable notice of exercise, such Holder (together with such Holder's
Affiliates, and any other person or entity acting as a group together with
such Holder or any of such Holder's Affiliates), as set forth on the
applicable notice of exercise, would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned
by such Holder and its Affiliates shall include the number of shares of
Common Stock issuable upon exercise of this Warrant with respect to which
such determination is being made, but shall exclude the number of shares of
Common Stock which would be issuable upon (A) exercise of the remaining,
nonexercised portion of this Warrant beneficially owned by such Holder or
any of its Affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company subject to a
limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by such Holder or any of its affiliates. Except
as set forth in the preceding sentence, for purposes of this Section 2,
beneficial ownership shall be calculated in accordance with Section 13(d)
of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by a Holder that the Company is not representing to
such Holder that such calculation is in compliance with Section 13(d) of
the Exchange Act and such Holder is solely responsible for any schedules
required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 2 applies, the determination of
whether this Warrant is exercisable (in relation to other securities owned
by such Holder together with any Affiliates) and of which a portion of this
Warrant is exercisable shall be in the sole discretion of a Holder, and the
submission of a Notice of Exercise shall be deemed to be each Holder's
determination of whether this Warrant is exercisable (in relation to other
securities owned by such Holder together with any Affiliates) and of which
portion of this Warrant is exercisable, in each case subject to such
aggregate percentage limitation, and the Company shall have no obligation
to verify or confirm the accuracy of such determination. In addition, a
determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder. The "BENEFICIAL OWNERSHIP
LIMITATION" shall be 4.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of
Common Stock issuable upon exercise of this Warrant. The Beneficial
Ownership Limitation provisions of this Section 2 may be waived by such
Holder, at the election of such Holder, upon not less than 61 days' prior
notice to the Company to change the Beneficial Ownership Limitation to
9.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock upon exercise
of this Warrant, and the provisions of this Section 2(c) shall continue to
apply. Upon such a change by a Holder of the Beneficial Ownership
Limitation from such 4.99% limitation to such 9.99% limitation, the
Beneficial Ownership Limitation may not be further waived by such Holder.
The provisions of this paragraph shall be construed and implemented in a
manner otherwise than in strict conformity with the terms of this Section
2(c) to correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in
this paragraph shall apply to a successor holder of this Warrant.
"AFFILIATE" means any Person that, directly or indirectly through one or
more intermediaries, controls or is controlled by or is under common
control with a person, as such terms are used in and construed under Rule
144 under the Securities Act. With respect to a Holder, any investment fund
or managed account that is managed on a discretionary basis by the same
investment manager as such purchaser will be deemed to be an Affiliate of
such Holder.
3. Stock Fully Paid; Reservation of Shares. All Warrant Shares that may be
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issued upon the exercise of the rights represented by this Warrant will, upon
issuance pursuant to the terms and conditions herein, be fully paid and
nonassessable, and free from all taxes (other than any taxes determined with
respect to, or based upon, the income of the person to whom such shares are
issued), liens and charges (other than liens or charges created by actions of
the holder of this Warrant or the person to whom such shares are issued), and
pre-emptive rights with respect to the issue thereof. During the period within
which the rights represented by this Warrant may be exercised, the Company will
at all times have authorized, and reserved for the purpose of the issue upon
exercise of the purchase rights evidenced by this Warrant, a sufficient number
of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant.
4. Adjustment of Warrant Price and Number of Shares. The number and kind of
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securities purchasable upon the exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time upon the occurrence of certain
events, as follows:
a. Reclassification or Merger. In case of any reclassification, change
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or conversion of securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger of the Company with or into
another corporation (other than a merger with another corporation in which
the Company is the acquiring and the surviving corporation and which does
not result in any reclassification or change of outstanding securities
issuable upon exercise of this Warrant), or in case of any sale of all or
substantially all of the assets of the Company, the Company, or such
successor or purchasing corporation, as the case may be, shall duly execute
and deliver to the holder of this Warrant a new Warrant (in form and
substance satisfactory to the holder of this Warrant), so that the holder
of this Warrant shall have the right to receive, at a total purchase price
not to exceed that payable upon the exercise of the unexercised portion of
this Warrant, and in lieu of the shares of Common Stock theretofore
issuable upon exercise of this Warrant, the kind and amount of shares of
stock, other securities, money and property receivable upon such
reclassification, change or merger by a holder of the number of shares of
Common Stock then purchasable under this Warrant. Such new Warrant shall
provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 4.
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b. Subdivision or Combination of Shares. If at any time while this
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Warrant remains outstanding and unexpired the Company shall subdivide or
combine its outstanding shares of Common Stock, the Warrant Price shall be
proportionately decreased in the case of a subdivision or increased in the
case of a combination, effective at the close of business on the date the
subdivision or combination becomes effective.
c. Stock Dividends. If at any time while this Warrant is outstanding
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and unexpired the Company shall pay a dividend with respect to Common Stock
payable in Common Stock, then the Warrant Price shall be adjusted, from and
after the date of determination of stockholders entitled to receive such
dividend or distribution, to that price determined by multiplying the
Warrant Price in effect immediately prior to such date of determination by
a fraction (i) the numerator of which shall be the total number of shares
of Common Stock outstanding immediately prior to such dividend, and (ii)
the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend.
d. Adjustment of Number of Shares. Upon each adjustment in the Warrant
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Price, the number of Warrant Shares purchasable hereunder shall be
adjusted, to the nearest whole share, to the product obtained by
multiplying the number of Warrant Shares purchasable immediately prior to
such adjustment in the Warrant Price by a fraction, the numerator of which
shall be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately thereafter.
5. Notice of Adjustments. Whenever the Warrant Price or the number of
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Warrant Shares purchasable hereunder shall be adjusted pursuant to Section 4
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hereof, the Company shall deliver to the holder of this Warrant a certificate
signed by its chief financial officer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated, and the Warrant Price and the number of
Warrant Shares purchasable hereunder after giving effect to such adjustment.
6. Fractional Shares. No fractional shares of Common Stock will be issued
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in connection with any exercise hereunder, but in lieu of such fractional shares
the Company shall make a cash payment therefor based on the fair market value of
a share of Common Stock on the date of exercise, or round up to the next whole
number of shares, at the Company's option.
7. Compliance with Securities Act and Investor Rights Agreement;
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Disposition of Warrant or Warrant Shares.
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a. Compliance with Securities Act. The holder of this Warrant, by
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acceptance hereof, agrees that this Warrant and the shares of Common Stock
to be issued upon exercise hereof are being acquired for investment and
that such holder will not offer, sell or otherwise dispose of this Warrant,
or any shares of Common Stock to be issued upon exercise hereof except
under circumstances which will not result in a violation of the Securities
Act. Upon exercise of this Warrant, the holder hereof shall confirm in
writing that the shares of Common Stock so purchased are being acquired for
investment and not with a view toward distribution or resale. This Warrant
and all shares of Common Stock issued upon exercise of this Warrant (unless
registered under the Securities Act) shall be stamped or imprinted with a
legend in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT (i) AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO, (ii) AN OPINION OF COUNSEL FOR THE HOLDER,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED, (iii) RECEIPT OF A NO-ACTION LETTER(S) FROM THE APPROPRIATE
GOVERNMENTAL AUTHORITY(IES), OR (iv) OTHERWISE COMPLYING WITH THE
PROVISIONS OF SECTION 7 OF THE WARRANT UNDER WHICH THESE SECURITIES WERE
ISSUED DIRECTLY OR INDIRECTLY."
In addition, in connection with the issuance of this Warrant, the
holder specifically represents to the Company by acceptance of this Warrant
as follows:
(1) The holder is aware of the Company's business affairs and
financial condition, and has acquired information about the Company
sufficient to reach an informed and knowledgeable decision to acquire
this Warrant. The holder is acquiring this Warrant for its own account
for investment purposes only and not with a view to, or for the resale
in connection with, any "distribution" thereof for purposes of the
Securities Act.
(2) The holder understands that this Warrant and the Warrant
Shares have not been registered under the Securities Act in reliance
upon a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of the holder's investment
intent as expressed herein. In this connection, the holder understands
that, in the view of the SEC, the statutory basis for such exemption
may be unavailable if the holder's representation was predicated
solely upon a present intention to hold the Warrant and the Warrant
Shares for the minimum capital gains period specified under applicable
tax laws, for a deferred sale, for or until an increase or decrease in
the market price of the Warrant and the Warrant Shares, or for a
period of one (1) year or any other fixed period in the future.
(3) The holder further understands that this Warrant and the
Warrant Shares must be held indefinitely unless subsequently
registered under the Securities Act and any applicable state
securities laws, or unless exemptions from registration are otherwise
available.
(4) The holder is aware of the provisions of Rule 144 and 144A,
promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof (or from an Affiliate of such
issuer), in a non-public offering subject to the satisfaction of
certain conditions, if applicable, including, among other things: the
availability of certain public information about the Company, the
resale occurring not less than one (1) year after the party has
purchased and paid for the securities to be sold; the sale being made
through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined
under the Securities Exchange Act of 1934, as amended) and the amount
of securities being sold during any three (3) month period not
exceeding the specified limitations stated therein.
(5) The holder further understands that at the time it wishes to
sell this Warrant and the Warrant Shares there may be no public market
upon which to make such a sale, and that, even if such a public market
then exists, the Company may not be satisfying the current public
information requirements of Rule 144 and 144A, and that, in such
event, the holder may be precluded from selling this Warrant and the
Warrant Shares under Rule 144 and 144A even if the one (1)-year
minimum holding period has been satisfied.
(6) The holder further understands that, in the event that all of
the requirements of Rule 144 and 144A are not satisfied, registration
under the Securities Act, compliance with Regulation A, or some other
registration exemption will be required; and that, notwithstanding the
fact that Rule 144 and 144A are not exclusive, the staff of the SEC
has expressed its opinion that persons proposing to sell private
placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 and 144A will have a substantial burden of
proof in establishing that an exemption from registration is available
for such offers or sales, and that such persons and their respective
brokers who participate in such transactions do so at their own risk.
b. Exchange. This Warrant may be exchanged, without payment of any
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service charge, for one (1) or more new Warrants of like tenor exercisable
for the same aggregate number of shares of Common Stock upon surrender to
the Company by the registered holder hereof in person or by legal
representative or by attorney duly authorized in writing and, upon issuance
of the new Warrant or Warrants, the surrendered Warrant shall be cancelled
and disposed of by the Company.
c. Disposition of Warrant or Warrant Shares. With respect to any
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offer, sale or other disposition of this Warrant, or any Warrant Shares
acquired pursuant to the exercise of this Warrant prior to registration of
such Warrant or Warrant Shares, the holder hereof and each subsequent
holder of this Warrant agrees to give written notice to the Company prior
thereto, describing briefly the manner thereof, together with a written
opinion of such holder's counsel, if reasonably requested by the Company,
to the effect that such offer, sale or other disposition may be effected
without registration or qualification (under the Securities Act as then in
effect or any federal or state law then in effect) of this Warrant or such
Warrant Shares and indicating whether or not under the Securities Act
certificates for this Warrant or such Warrant Shares to be sold or
otherwise disposed of require any restrictive legend as to applicable
restrictions on transferability in order to ensure compliance with
applicable laws. Promptly upon receiving such written notice and reasonably
satisfactory opinion, if so requested, the Company, as promptly as
practicable, shall notify such holder that such holder may sell or
otherwise dispose of this Warrant or such Warrant Shares, all in accordance
with the terms of the notice delivered to the Company. If a determination
has been made pursuant to this Section 7(c) that the opinion of counsel for
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the holder is not reasonably satisfactory to the Company, the Company shall
so notify the holder promptly after such determination has been made and
neither this Warrant nor any Warrant Shares shall be sold or otherwise
disposed of until such disagreement has been resolved. The foregoing
notwithstanding, this Warrant or such Warrant Shares may (i) as to such
federal laws, be offered, sold or otherwise disposed of in accordance with
Rule 144 and 144A under the Securities Act, provided that the Company shall
have been furnished with such information as the Company may reasonably
request to provide a reasonable assurance that the provisions of Rule 144
and 144A have been satisfied and (ii) be offered, sold, distributed or
otherwise transferred to Affiliates of the Holder without regard to this
Section 7(c), but only if the Company is in receipt of an opinion of
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counsel as to the permissibility of such transfer under federal and state
securities laws and an investor representation letter from the transferee,
in form and substance reasonably satisfactory to the Company. Each
certificate representing this Warrant or the Warrant Shares thus
transferred (except a transfer pursuant to Rule 144) shall bear a legend as
to the applicable restrictions on transferability in order to ensure
compliance with such laws, unless, in the aforesaid opinion of counsel for
the holder, such legend is not required in order to ensure compliance with
such laws. The Company may issue stop transfer instructions to its transfer
agent or, if acting as its own transfer agent, the Company may stop
transfer on its corporate books, in connection with such restrictions.
8. Rights as Stockholders; Information. No holder of this Warrant, as
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such, shall be entitled to vote or be deemed the holder of Common Stock or any
other securities of the Company which may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of the
directors or upon any matter submitted to stockholders at any meeting thereof,
or to receive notice of meetings, until this Warrant shall have been exercised
and the Warrant Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein. The foregoing notwithstanding, the Company
will transmit to the holder of this Warrant such information, documents and
reports as are generally distributed to the holders of any class or series of
the securities of the Company concurrently with the distribution thereof to the
stockholders.
9. Additional Rights. In the event that the Company undertakes to (i) sell,
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lease, exchange, convey or otherwise dispose of all or substantially all of its
property or business; or (ii) merge into or consolidate with any other
corporation (other than a wholly-owned subsidiary), or effect any transaction
(including a merger or other reorganization) or series of related transactions,
in which more than fifty percent (50%) of the voting power of the Company is
disposed of, the Company will use its best efforts to provide at least thirty
(30) days notice to the holder of the terms and conditions of the proposed
transaction. The Company shall cooperate with the holder in consummating the
sale of this Warrant in connection with any such transaction.
10. Modification and Waiver. This Warrant and any provision hereof may be
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changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. Notices. Unless otherwise specifically provided herein, all
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communications under this Warrant shall be in writing and shall be deemed to
have been duly given (i) on the date of service if served personally on the
party to whom notice is to be given; (ii) on the day of transmission if sent by
facsimile transmission to the number shown on the books of the Company, and
telephonic confirmation of receipt is obtained promptly after completion of
transmission; (iii) on the day after delivery to Federal Express or similar
overnight courier; or (iv) on the fifth day after mailing, if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, return receipt requested, to
each such holder at its address as shown on the books of the Company or to the
Company at the address indicated therefor on the signature page of this Warrant.
Any party hereto may change its address for purposes of this Section 11 by
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giving the other party written notice of the new address in the
manner set forth herein.
12. Binding Effect on Successors. This Warrant shall be binding upon any
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corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets, and all of the obligations of
the Company relating to the Common Stock issuable upon the exercise or
conversion of this Warrant shall survive the exercise, conversion and
termination of this Warrant and all of the covenants and agreements of the
Company shall inure to the benefit of the successors and assigns of the holder
hereof. The Company will, at the time of the exercise or conversion of this
Warrant, in whole or in part, upon request of the holder hereof but at the
Company's expense, acknowledge in writing its continuing obligation to the
holder hereof in respect of any rights to which the holder hereof shall continue
to be entitled after such exercise or conversion in accordance with this
Warrant; provided, however, that the failure of the holder hereof to make any
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such request shall not affect the continuing obligation of the Company to the
holder hereof in respect of such rights.
13. Lost Warrants or Stock Certificates. The Company covenants to the
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holder hereof that, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate and, in the case of any loss, theft or destruction, upon
receipt of an executed lost securities bond or indemnity reasonably satisfactory
to the Company, or in the case of any such mutilation upon surrender and
cancellation of such Warrant or stock certificate, the Company will make and
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
14. Descriptive Headings. The descriptive headings of the several
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paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
15. Governing Law. This Warrant shall be construed and enforced in
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accordance with, and the rights of the parties shall be governed by, the laws of
the State of Florida.
16. Remedies. In case any one (1) or more of the covenants and agreements
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contained in this Warrant shall have been breached, the holders hereof (in the
case of a breach by the Company), or the Company (in the case of a breach by a
holder), may proceed to protect and enforce their or its rights either by suit
in equity and/or by action at law, including, but not limited to, an action for
damages as a result of any such breach and/or an action for specific performance
of any such covenant or agreement contained in this Warrant.
17. Acceptance. Receipt of this Warrant by the holder hereof shall
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constitute acceptance of and agreement to the foregoing terms and conditions.
18. No Impairment of Rights. The Company will not, by amendment of its
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Certificate of Incorporation or through any other means, avoid or seek to avoid
the observance or performance of any of the terms of this 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 action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant against impairment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed on
its behalf by one of its officers thereunto duly authorized.
DEER VALLEY CORPORATION
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Xxxxxxx X. Xxxxxxx, Chief Executive Officer
Dated: November 16, 2006
Address: 0000 Xxxxxxxxxx Xxxx., Xxxxx 000,
Xxxxx, XX 00000
NOTICE TO FLORIDA RESIDENTS:
____________________________________________________________
WHERE SALES ARE MADE TO FIVE OR MORE PERSONS IN FLORIDA (EXCLUDING CERTAIN
INSTITUTIONAL PURCHASERS DESCRIBED IN SECTION 517.061(7) OF THE FLORIDA
SECURITIES AND INVESTOR PROTECTION ACT) (THE "ACT"), ANY SUCH SALE MADE PURSUANT
TO SECTION 517.061(11) OF THE ACT SHALL BE VOIDABLE BY THE PURCHASER EITHER
WITHIN THREE DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH
PURCHASER TO THE ISSUER, OR AN AGENT OF THE ISSUER, OR AN ESCROW AGENT OR WITHIN
THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH
PURCHASER, WHICHEVER OCCURS LATER.
EXHIBIT A
NOTICE OF EXERCISE
To:
1. The undersigned hereby elects to purchase shares of Common Stock of
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Deer Valley Corporation (the "Company") pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name or names as are specified
below:
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(Name)
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(Address)
3. The undersigned represents that the aforesaid shares are being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or reselling such shares. In support
thereof, the undersigned will execute an Investment Representation Statement
upon request of the Company, in form reasonably satisfactory to the Company.
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(Signature)
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(Date)
