EXHIBIT 3(i)
THE SECURITIES REPRESENTED BY THIS WARRANT AND ANY SHARES ACQUIRED UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION FROM REGISTRATION UNDER
THE ACT. THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE ACT AND THIS WARRANT CANNOT BE EXERCISED UNLESS REGISTERED OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
HYDROGIENE CORPORATION
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COMMON STOCK PURCHASE WARRANT
Warrant No. 003 Warrant to Purchase 25,000
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Shares of Common Stock
Issue Date: 22 APRIL 1999 Expires: 22 APRIL 2002
Not Transferable or Exercisable
Except Upon Conditions Herein Specified
THIS CERTIFIES that for value received SEASCAPE MANAGEMENT CO. LLC hereafter
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referred to as (the "Holder"), is entitled to subscribe for and purchase from
The Hydrogiene Corporation, a Florida Corporation, hereinafter referred to as
(the "Corporation/M/), 25,000 shares of Common Stock, (the "Common Stock"), of
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the Corporation (such shares to be subject to adjustment in accordance with
Section 3 hereof hereinafter sometimes called (the "Warrant Shares") at an
exercise price of 80 cents per share)) (the "Exercise Price") at any time or
from time to time during the Exercise Period (as defined in Section 1 hereof).
Section 1. Exercise of Warrant.
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(a) The rights represented by this Warrant may be exercised by the Holder
hereof, in whole at any time or in part from time to time during the Exercise
Period, but not as to fractional share of Common Stock, by the surrender of this
Warrant (properly endorsed) at the office of the Corporation, 00000 Xxxxxxxx
Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 (or at such other agency or
office of the Corporation in the United States of America as it may designate by
notice in writing to the holder hereof at the address of such holder appearing
on the books of the Corporation), and by payment to the Corporation of the
Exercise Price in cash or by certified or official bank check in United States
Dollars for each share being purchased.
(b) In the event of any exercise of the rights represented by this
Warrant, (i) a certificate or certificates for the shares of Common Stock so
purchased, registered in the name of the person entitled to receive the same,
shall be mailed to the holder hereof within a reasonable time, not exceeding
fifteen (15) days, after the rights represented by this Warrant shall have been
so exercised; provided, however, that the Corporation shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any such certificate in a name other than that of the
registered holder thereof, and the Corporation shall not be required
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to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Corporation the amount of
such tax or shall have established to the satisfaction of the Corporation that
such tax has been paid; (ii) unless this Warrant has expired, a new Warrant
representing the number of shares (except a remaining fractional share), if any,
with respect to which this Warrant shall not then have been exercised shall also
be issued to the holder hereof within such time. The person in whose name any
certificate for shares of Common Stock is issued upon exercise of this Warrant
shall for all purposes be deemed to have become the holder of record of such
shares on the date on which this Warrant was surrendered and payment of the
Exercise Price was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Corporation are closed, such person shall
be deemed to have become the holder of record of such shares at the close of
business on the next succeeding date on which the stock transfer books are open.
The issuance of any shares of Common Stock pursuant to the terms of this Warrant
shall at all times be subject to the requirements of the Act, as amended, and to
the applicable foreign and state securities and blue sky laws then in effect.
(c) As used herein, the following terms shall have the following meanings:
(i) "Closing Price" on any Trading Day shall mean the reported last sales
price of a share of Common Stock, on such Trading Day, or in case no sale takes
place on such Trading Day, the average of the last reported closing bid and
asked prices, in each case on the principal national securities exchange on
which the Common Stock is then listed or admitted to trading or, if the Common
Stock is not then listed or admitted to trading on any national securities
exchange, the highest closing sales price or, if no sale takes place on such
Trading Day, the average of the closing bid and asked prices of a share of
Common Stock in the over-the-counter market as shown on NASDAQ or, if the Common
Stock is not then quoted in such system, as reported on the OTC Bulletin Board
or as published by the National Quotation Bureau, Incorporated or any similar
successor organization, and in either case as reported by any member firm of the
New York Stock Exchange selected by the Corporation.
(ii) "Exercise Period" shall mean the period beginning on the date hereof
and ending on the close of business on ((DATE)), subject to earlier termination
in accordance with the following provisions.
(iii) "Trading Day" shall mean any day on which the principal national
securities exchange or over-the-counter market in which the Common Stock is
traded is open for business and in which there is no restriction on trading
in the Common Stock.
Section 2. Covenants as to Common Stock. The Corporation covenants and agrees
that all shares of Common Stock which may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued, fully
paid and non-assessable, and free from all taxes, liens and charges with respect
to the issue thereof without limiting the generality of the foregoing, the
Corporation covenants that it will from time to time take all actions as may be
requisite to assure that the stated or par value, if any, of the Common Stock is
at all times equal to or less than the then exercise price per share of Common
Stock issuable upon exercise of this Warrant.
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The Corporation further covenants and agrees that the Corporation will at all
times have authorized and reserved, free from preemptive rights, a sufficient
number of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. The Corporation further covenants and agrees that
if any shares of Common Stock to be reserved for the purpose of the issuance of
shares upon the exercise of this Warrant require registration with or approval
of any governmental authority under any Federal or State law before such shares
may be validly issued or delivered upon exercise, then, the Corporation will in
good faith and as expeditiously as possible endeavor to secure such registration
or approval, as the case may be. If and so long as the Common Stock issuable
upon the exercise of this Warrant is listed on any national securities exchange,
the Corporation will, if permitted by the rules of such exchange, list and keep
listed on such exchange, upon official notice of issuance, all shares of such
Common Stock issuable upon exercise of this Warrant.
Section 3. Adjustment of Warrant Shares.
(a) If at any time the Corporation shall (i) take a record of the
holders of Common Stock for the purpose of entitling them to receive a dividend
payable in, or other distribution of, additional shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock into a larger number of shares
of Common Stock, or (iii) combine the outstanding shares of Common Stock into a
smaller number of shares of Common Stock, then the Exercise Price shall be
adjusted to equal the product of the Exercise Price in effect immediately prior
to the event giving rise to the adjustment multiplied by a fraction the
numerator of which is equal to the number of shares of Common Stock outstanding
immediately prior to the event giving rise to the adjustment and the denominator
of which is equal to the number of shares of Common Stock outstanding
immediately after such event Upon any such adjustment of the Exercise Price, the
holder hereof shall thereafter be entitled to purchase upon the exercise of this
Warrant, at the Exercise Price resulting from such adjustment, the number of
shares of Common Stock (calculated to the nearest 1/100th of a share) obtained
by multiplying the Exercise Price in effect immediately prior to such adjustment
by the number of shares of Common Stock issuable on the exercise hereof
immediately prior to such adjustment and dividing the product thereof by the
Exercise Price resulting from such adjustment. No adjustment in the Exercise
Price shall be required to be made unless such adjustment would require an
increase or decrease of at least $0.10 (cents), provided, however, that any
adjustments which by reason of this section are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(b) Anything contained herein to the contrary notwithstanding, in
case, at any time after the date hereof, of any capital reorganization or any
reclassification of the stock of the Corporation (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 stock dividend or subdivision, split-up or combination of shares),
or the consolidation or merger of the Corporation with or into another
corporation (other than a consolidation or merger in which the Corporation is
the continuing corporation and which does not result in any change in the Common
Stock), or any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Corporation), or the sale or disposition of all or
substantially all of the properties and assets of the Corporation
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to another corporation, in which holders of Common Stock shall be entitled to
receive cash, stock, securities or other property with respect to or exchange
for Common Stock, then, as a condition of such reorganization, reclassification,
consolidation, merger, exchange, sale or other disposition, the Corporation or
the successor or purchaser, as the case may be, shall make lawful and adequate
provision so that this Warrant shall thereafter be exercisable for, and upon
securities or other property which the holder of the number of shares of Common
Stock deliverable (immediately prior to the time of such reorganization,
reclassification, consolidation, merger, in exchange, sale or other disposition)
upon exercise of this Warrant would have been entitled to receive upon or as a
result of such reorganization, reclassification, consolidation, merger, sale or
other disposition. The provisions of this Section 3(b) shall similarly apply to
successive reorganizations, reclassification, consolidations, mergers,
exchanges, sales or other dispositions.
(c) Whenever the number of Warrant Shares shall be adjusted as provided in
Section 3(a) above, the Corporation shall forthwith file, at the office of the
transfer agent for the Common Stock or at such other place as may be designated
by the Corporation, a statement, signed by its chief financial officer, showing
in reasonable detail the facts requiring such adjustment and the number of
Warrant Shares that shall be in effect after such adjustment. Upon request by
the holder of this Warrant, the Corporation shall also cause a copy of such
statement to be sent by first-class, certified mail, return receipt requested,
postage prepaid, to the holder of this Warrant at such holder's address
appearing on the Corporation's records, and, if not so previously mailed, shall
provide a copy of such statement to the holder hereof at the time of exercise.
Section 4. No Stockholder Rights. This Warrant shall not entitle the holder
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hereof to any voting or other rights as a stockholder of the Corporation.
Section 5. Transfer Restriction Legend. Each certificate representing shares
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initially issued upon exercise of this Warrant (and subsequently issued if
appropriate), unless at the time of exercise such shares are registered under
the Securities Act, shall bear the following legend (and any additional legend
required by applicable securities laws or any securities exchange or NASDAQ at
the time of such exercise) on the face thereof:
"The securities represented by this certificate have not been registered under
the Securities Act of 1933, as amended, or the securities laws of any state and
may not be sold, transferred, hypothecated or otherwise assigned except pursuant
to a registration statement with respect to such securities which is effective
under such act and under any applicable state securities laws unless, in the
opinion of counsel reasonably satisfactory to the Company, an exemption from the
registration requirements of such act and state securities laws is available.
Any certificate issued at any time upon transfer of, or in exchange for or
replacement of, any certificate bearing such legend (except a new certificate
issued upon completion of a public distribution of the securities represented
thereby pursuant to a registration under the Securities Act) shall also bear
such legend unless, in the opinion of counsel for the registered holder thereof
reasonably acceptable to the Company, the shares represented thereby need no
longer be subject to the restrictions in this Section. The provisions of this
Section 5. shall be binding upon all subsequent holders of certificates bearing
the above legend, and shall also be applicable to all subsequent holders of this
Warrant.
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The Corporation will be able to issue the shares of Common Stock upon
exercise of the Warrant underlying the Warrants Shares only if there is a then
current Private Placement Memorandum or registration statement available for
and distributed to the warrant holders relating to such Common Stock, and only
if such Warrant and Common Stock is qualified for sale or exempt from
registration and qualification under applicable federal securities laws and
state securities laws of the jurisdiction in which various holders of the
Warrants reside. The Corporation reserves the right in its sole discretion to
determine not to apply for exemptions or to register such Common Stock in any
jurisdiction where the time and expense do not justify such exemption filing or
registration. The Warrants may be deprived of any value in the event the
Corporation does not satisfy or the Corporation chooses not to satisfy any such
requirements. Although it is the present intention of the Corporation to satisfy
such requirements, there can be no assurance that the Corporation will be able
to do so, provided, however, that the Corporation will not be permitted to
accelerate the termination of the Exercise Period of these Warrants unless such
acceleration is accomplished in full compliance with hereof Section 1(c) (ii).
The holder of the Warrant agrees and acknowledges that the Warrant is being
purchased for his own account, for investment purposes only, and not for the
account of any other person, and not with a view to distribution, assignment or
resale to others or to fractionalization in whole or in part, and the holder
further represents, warrants and agrees as follows: no other person has or will
have a direct or indirect beneficial interest in this Warrant and the holder
will not sell, hypothecate or otherwise transfer his Warrant except in
accordance with the Act, as amended and applicable state securities laws or
unless, in the opinion of counsel for the holder acceptable to the Corporation,
an exemption from the registration under the Act and such laws is available.
Section 6. Transfer of Warrant. Subject to Section 5 hereof, this
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Warrant and all rights hereunder are transferable in whole (or in part), at the
office or agency of the Corporation referred to in Section 1 hereof by the
holder hereof in person or by duly authorized attorney, upon surrender of this
Warrant properly endorsed. Each taker and holder of this Warrant, by taking or
holding the same, consents and agrees that this Warrant, when endorsed, in
blank, shall be deemed negotiable, and, when so endorsed the holder hereof may
be treated by the Corporation and all other persons dealing with this Warrant as
the absolute owner hereof for all purposes and as the person entitled to
exercise the rights represented by this Warrant, or to the transfer hereof on
the books of the Corporation, any notice to the contrary notwithstanding; but
until each transfer on such books, the Corporation may treat the registered
holder hereof as the owner hereof for all purposes.
Section 7. Elimination of Fractional Interests. The Corporation shall not
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be required to issue stock certificates representing fractions of shares of
Common Stock, nor shall it be required to pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated.
Section 8. Exchange of Warrant. This Warrant is exchangeable, upon the
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surrender hereof by the holder hereof at the office or agency of the Corporation
designated in Section I hereof, for a new Warrant of like tenor representing the
right to subscribe for and purchase the number of Warrant Shares which may be
subscribed for and purchased hereunder.
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Section 9. Notices to Warrant Holders. Nothing contained in this Warrant
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shall be construed as conferring upon the holder hereof the right to vote or to
consent to or 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 Corporation. If, however, at any time
prior to the expiration of the Warrant and prior to its exercise, any of the
following events shall occur:
(a) The Corporation shall offer to all of the holders of its Common Stock
any additional shares of stock of the Corporation or securities convertible
into or exchangeable for shares of stock of the Corporation, or any option,
right or warrant to subscribe therefor, or
(b) A dissolution, liquidation or winding up of the Corporation (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
(whether by merger, consolidation or sale of assets) shall be proposed;
Then, in any one or more of the above said events, the Corporation shall give
written notice of such events at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the shareholders entitled to such convertible or exchangeable securities or
subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the issuance of any convertible or exchangeable securities,
or subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
Section 10. Lost, Stolen, Mutilated, Destroyed Warrant. Upon surrender by the
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holder of this Warrant to the Corporation, the Corporation at its expense will
issue in exchange therefor, and deliver to such holder, a new Warrant. Upon
receipt of evidence satisfactory to the Corporation of the loss, theft,
destruction or mutilation of this Warrant, and in the case of any such loss,
theft, or destruction, upon delivery by such holder of an indemnity agreement
or security satisfactory to the Corporation, and in case of any such mutilation,
upon surrender and cancellation of this Warrant, the Corporation, upon
reimbursement of all reasonable expenses incident thereto, will issue and
deliver to such holder a new Warrant of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant delivered to such holder in
accordance with this Section 10 shall bear the same securities legends as the
Warrant which it replaced.
Section 11. Governing Law. This Warrant shall be governed by, and construed in
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accordance with, the laws of the State of Florida applicable to contracts made
therein.
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Section 12. Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or sent by registered or certified mail, return receipt requested:
(a) If to the registered holder of this Warrant, to the address
of such holder as shown on the books of the Corporation; or
(b) To the Corporation, at 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000.
Section 13. Successors. All the covenants, agreements, representations and
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warranties contained in this Warrant shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
Section 14. Headings. The Article and Section headings in this Warrant are
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inserted for purposes of convenience only and shall have no substantive effect.
IN WITNESS THEREOF, the Corporation has caused this Warrant to be executed
by its duly authorized officers as of the date first above written.
The Hydrogiene Corporation
A Florida Corporation
By: Xxxxxxx X. Xxxxxxxx Its: President
/s/ Xxxxxxx Xxxxxxxx
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FORM OF ASSIGNMENT
[To be signed only upon transfer of a Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________ all of the rights represented by the within Warrant to purchase
________________ shares of the Common Stock of The Hydrogiene Corporation to
which the within Warrant relates, and appoints Attorney to transfer such rights
on the books of The Hydrogiene Corporation with full power of substitution in
the premises.
Dated: /s/ [ILLEGIBLE]
(Signature)
(Address)
Signed in the presence of.
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