Exhibit 10.22
Xxxxxx Xxxxx XXX
WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "ACT) OR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT
THERETO UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR UNTIL THE
COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
GoHealth.MD, Inc., a Nevada corporation, (the "Company") hereby grants to
Xxxxxx Xxxxx XXX. (the "Holder") the right, privilege and option to purchase
100,000 shares of its common stock, $0.01 par value, ("Common Stock") at the
purchase price of $1.00 per share of Common Stock (referred to as the "Exercise
Price"), in the manner and subject to the conditions hereinafter provided (the
"Warrant").
1. Time of Exercise of Warrant. This Warrant may be exercised during
the period commencing on the date this Warrant is issued and ending on
December 31, 2001.
2. Method of Exercise. The Warrant shall be exercised in whole at any
time or in part from time to time, by delivery of the Subscription Form
attached hereto duly executed along with this Warrant directed to the Company
at its principal place of business accompanied by a check payable to the
Company in payment of the Exercise Price rounded to the nearest $.01, for the
number of whole shares specified, together with appropriate endorsements or
transfer documents and a check for payment of any transfer or similar tax, if
required. Upon clearance of the checks, the Company shall make prompt
delivery of a certificate evidencing the number of whole shares to which the
Holder may be entitled, and pay to the Holder cash in an amount equal to the
fair value (determined in such reasonable manner as the Board of Directors of
the Company shall determine) of any fractional share; provided that if any law
or regulation requires the Company to take any action with respect to the
shares specified in such notice before the issuance thereof, then the date of
delivery of such shares shall be extended for the period necessary to take
such action. In case of the purchase of less than all the shares purchasable
under this Warrant, the Company shall cancel this Warrant upon surrender
hereof and shall execute and deliver a new Warrant of like tenor and date for
the balance of the shares purchasable hereunder. The Company agrees at all
times to reserve or hold available a sufficient number of shares of Common
Stock to cover the number of shares issuable upon the exercise of this and all
other Warrants of like tenor then outstanding.
3. Rights as Stockholder. The Holder shall have no rights as a
stockholder of the Company with respect to any shares of Common Stock subject
to this Warrant prior to his exercise of the Warrant.
4. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of this Warrant and the
exercise price shall be subject to adjustment from time to time, as provided
in Schedule A attached hereto.
5. Investment Representation.
(a) Holder represents and warrants to the Company that Holder is
acquiring this Warrant and the shares issuable upon exercise of the Warrant
("Warrant Shares") for Holder's own account for the purpose of investment and
not with a view toward resale or other distribution thereof in violation of
the Securities Act of 1933. Holder acknowledges that the effect of the
representations and warranties is that the economic risk of the investment in
the Warrant and Warrant Shares must be borne by the Holder for an indefinite
period of time. This representation and warranty shall be deemed to be a
continuing representation and warranty and shall be in full force and effect
upon such exercise of the Warrant granted hereby.
(b) In order to enable the Company to comply with the Securities Act
of 1933 (the "Securities Act") and relevant state law, the Company may require
the Holder as a condition of the exercising of the Warrant granted hereunder,
to give written assurance satisfactory to the Company that the shares subject
to the Warrant are being acquired for its own account, for investment only,
with no view to the distribution of same, and that any subsequent resale of
any such shares either shall be made pursuant to a registration statement
under the Securities Act which shall become effective and be current with
regard to the shares being sold, or shall be pursuant to an exemption from
registration under the Securities Act. If the shares of Common Stock
purchased pursuant to the exercise of this Warrant are not subject to an
effective registration statement under the Securities Act, the certificate(s)
evidencing shares of Common stock purchased upon exercise of this Warrant
shall bear the following restrictive legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE SECURITIES LAW AND
MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT THERETO UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAW, OR UNTIL THE COMPANY RECEIVES AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
6. Exercisability. The Warrant shall be exercisable only by Xxxxxx
during his lifetime or by his assigns, heirs, executors or administrators, as
the case may be. Any assignment hereof shall be in compliance with applicable
securities laws.
7. Registration Rights.
The Company agrees to file a registration statement for the Registrable
Securities. The Company shall bear the Registration Expenses.
8. Registration Procedures.
With regard to the registration statement, the Company will, as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable
Securities and use its best reasonable efforts to cause such registration
statement to become effective as promptly as practical;
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 90 days;
(c) furnish to each Holder such reasonable number of copies of such
registration statement, each amendment and supplement thereto and the
prospectus included in such registration statement (including each preliminary
prospectus and any term sheet associated therewith), and such other documents
as such Holder may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by each Holder;
(d) use its best reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
states as the managing underwriter(s) may reasonably request, or if the
offering is not underwritten in New York and New Jersey.
(e) notify each Selling Holder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act within
the period that the Company is required to keep the registration statement
effective of the happening of any event as a result of which the prospectus
included in such registration statement, together with any associated term
sheet, contains an untrue statement of a material fact or omits and fact
necessary to make the statement therein not misleading, and, at the request of
any such seller, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any fact necessary to make the statement
therein not misleading;
(f) cause all such Registrable Securities to be listed or included
on each national securities exchange, if any, or on the Stock Market, on which
the other outstanding shares of Common Stock of the Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other customary actions as may be
reasonably necessary to expedite or facilitate the disposition of such
Registrable Securities;
9. Indemnification.
(a) The Company hereby indemnifies, to the extent permitted by law,
each Holder and their respective officers, directors, employees and agents, if
any, and each person who controls any of them within the meaning of the
Securities Act (each, an "Indemnified Party") against all losses, claims,
damages, liabilities and expenses arising out of or resulting from any untrue
or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or associated term sheet or
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which made except insofar as the same are
caused by or contained in any information furnished in writing to the Company
by such Indemnified Party expressly for use therein or by any Indemnified
Party's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
Indemnified Party with a sufficient number of copies of the same.
(b) In connection with any registration statement in which a
Selling Holder is participating, each such Holder will furnish to the Company
in a timely manner in writing such information as is reasonably requested by
the Company for use in any such registration statement or prospectus and will
indemnify, to the extent permitted by law, the Company, its directors and
officers and each person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact or any
omission or alleged omission of a material fact required to be stated in the
registration statement or prospectus or any amendment thereof or supplement
thereto or necessary to make the statements therein not misleading, but only
to the extent that such untrue statement or omission is contained in
information so furnished in writing by such Holder specifically for use in
preparing the registration statement.
(c) Any person entitled to indemnification hereunder will (i) give
prompt notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnifying party's counsel
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. Any failure to give prompt notice
shall deprive a party of its right to indemnification hereunder only to the
extent that such failure shall have adversely affected the indemnifying
party. If the defense of any claim is assumed, the indemnifying party will
not be subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). An indemnifying party
who is not entitled, or elects not, to assume the defense of a claim will not
be obligated to pay the fees and expenses or more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgement of any indemnified party's counsel a
conflict of interest exists between such indemnified party and any other of
such indemnifying parties with respect to such claim.
10. Participation in Underwritten Registrations.
The Holder may not participate in any registration hereunder unless he
(i) agrees to sell his securities on the basis provided in any underwriting
arrangements approved by the Company, and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements or
as the Company may reasonably require.
11. Definitions.
(a) The term "Registrable Securities" means (i) the Common Stock
issuable upon the exercise of the Warrant and (ii) any securities issued or to
be issued with respect to the securities referred to above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be
Registrable Securities when they have been effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them.
(b) The term "Registration Expenses" means all expenses incident to
the Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (in such states reasonably
determined by the Company), printing expenses, messenger and delivery
expenses, expenses and fees for listing the securities to be registered on
exchanges or electronic quotation systems on which similar securities issued
by the Company are then listed, and fees and disbursements of counsel for the
Company (but not Holder's counsel) and of all independent certified public
accountants, underwriters (other than Underwriting Commissions) and other
persons retained by the Company.
(c) The term "Underwriting Commissions" means all underwriting
discounts or commissions relating to the sale of securities of the Company.
12. Loss, Destruction, etc. of Warrant. Upon receipt of evidence
satisfactory to the Company, of the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to the Company, if
lost, stolen, or destroyed, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
this Warrant, if mutilated, the Company shall execute, and deliver to the
Holder a new Warrant of like date, tenor and denomination.
13. Governing Law. This Warrant and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided herein or performance shall
be governed or interpreted according to the laws of the State of Delaware.
14. Issuance of Shares. The Company covenants and agrees that all
shares of Common Stock which may be delivered upon the exercise of this
Warrant will, upon delivery, be duly paid and non-assessable and shall be free
from all taxes, liens and charges with respect to the purchase thereof
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
executed on the 4th day of February, 2000.
GoHealth.MD, Inc.
/s/ Xxxxxxx X. Xxxxxx _
Xxxxxxx X. Xxxxxx, President
(Seal)
ATTEST
/s/ Xxxxxxx Xxxxx
Secretary or Assistant Secretary
SCHEDULE A
Adjustment of Purchase Price and Number of Shares
1. Adjustment. The number and kind of securities purchasable upon the
exercise of this Warrant and the exercise price shall be subject to adjustment
from time to time upon the happening of certain events as follows:
(a) Reclassification, Consolidation or Merger. At any time while
this Warrant remains outstanding and unexpired, in case of (i) any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant (other than a change in par value, or from par value to no par
value per share, or from no par value per share to par value or as a result of
a subdivision or combination of outstanding securities issuable upon the
exercise of this Warrant), (ii) any consolidation or merger of the Company
with or into another corporation (other than a merger with another corporation
in which the Company is a continuing corporation and which does not result in
any reclassification or change, other than a change in par value, or from par
value to no par value per share, or from no par value per share to par value,
or as a result of a subdivision or combination of outstanding securities
issuable upon the exercise of this Warrant), or (iii) any sale or transfer to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company, or such successor or purchasing
corporation, as the case may be, shall without payment of any additional
consideration therefor, execute a new Warrant providing that the holder of
this Warrant shall have the right to exercise such new Warrant (upon terms not
less favorable to the holder than those then applicable to this Warrant) and
to receive upon such exercise, in lieu of each share of Common Stock
theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money or property receivable upon such
reclassification, change, consolidation, merger, sale or transfer. Such new
Warrant shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 1 of
Schedule A. The provisions of this subsection 1(a) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
transfers.
(b) Subdivision or Combination of Shares. If the Company at any
time while this Warrant remains outstanding and unexpired, shall subdivide or
combine its Common Stock, the Exercise Price shall be proportionately reduced,
in case of subdivision of such shares, as of the effective date of such
subdivision, or, if the Company shall take a record of holders of its Common
Stock for the purpose of so subdividing, as of such record date, whichever is
earlier, or shall be proportionately increased, in the case of combination of
such shares, as of the effective date of such combination, or, if the Company
shall take a record of holders of its Common Stock for the purpose of so
combining, as of such record date, whichever is earlier.
(c) Stock Dividends. If the Company at any time while this Option
is outstanding and unexpired shall pay a dividend in shares of, or make other
distribution of shares of, its Common Stock, then the Exercise Price shall be
adjusted, as of the date the Company shall take a record of the holders of its
Capital Stock for the purpose of receiving such dividend or other distribution
(or if no such record is taken, as at the date of such payment or other
distribution), to that price determined by multiplying the exercise price in
effect immediately prior to such payment or other distribution by a fraction
(a) the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution. The provisions
of this subsection 1(c) shall not apply under any of the circumstances for
which an adjustment is provided in subsection 1(a) or 1(b).
(d) Liquidating Dividends, Etc. If the Company at any time while
this Warrant is outstanding and unexpired makes a distribution of its assets
to the holders of its Common Stock as a dividend in liquidation or by way of
return of capital or other than as a dividend payable out of earnings or
surplus legally available for dividends under applicable law or any
distribution to such holders made in respect of the sale of all or
substantially all of the Company's assets (other than under the circumstances
provided for in the foregoing subsections (a) through (c)), the holder of this
Option shall be entitled to receive upon the exercise hereof, in addition to
the shares of Common Stock receivable upon such exercise, and without payment
of any consideration other than the exercise price, an amount in cash equal to
the value of such distribution per share of Common Stock multiplied by the
number of shares of Common Stock which, on the record date for such
distribution, are issuable upon exercise of this Warrant (with no further
adjustment being made following any event which causes a subsequent adjustment
in the number of shares of Common Stock issuable upon the exercise hereof),
and an appropriate provision therefor should be made a part of any such
distribution. The value of a distribution which is paid in other than cash
shall be determined in good faith by the Board of Directors.
2. Notice of Adjustments. Whenever any of the exercise price or the
number of shares of Common Stock purchasable under the terms of this Warrant
at that exercise price shall be adjusted pursuant to Section 1 hereof, the
Company shall promptly make a certificate signed by its President or a Vice
President and by its Treasurer or Assistant Treasurer or its Secretary or
Assistant Secretary, setting forth in reasonable detail the event requiring
the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated (including a description of the basis on which the
Company's Board of Directors made any determination hereunder), and the
exercise price and number of shares of Common Stock purchasable at that
exercise price after giving effect to such adjustment, and shall promptly
cause copies of such certificate to be mailed (by first class and postage
prepaid ) to the registered holder of this Warrant.
SUBSCRIPTION
The undersigned, ______________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe for the purchase of
______________ shares of Common Stock of GoHealth.MD, Inc. covered by said
Warrant, and makes payment therefor in full at the price per share provided by
said Warrant.
Dated:_____________Signature:_________________________
Address:__________________________
___________________________
ASSIGNMENT
FOR VALUE RECEIVED ______________ hereby sells, assigns and transfers unto
____
____________ the foregoing Warrant and all rights evidenced thereby, and does
irrevocably constitute and appoint __________________________, attorney, to
transfer said Warrant on the books of GoHealth.MD, Inc.
Dated:______________Signature:________________________
Address:_________________________
__________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _____________________ hereby assigns and transfers
unto
_________________ the right to purchase _________shares of Common Stock of
Nugget Exploration, Inc. by the foregoing Warrant, and a proportionate Part of
said Warrant and the rights evidenced hereby, and does irrevocably constitute
and appoint __________________, attorney, to transfer that part of said
Warrant on the books of GoHealth.MD, Inc.
Dated:______________Signature:________________________
Address:_________________________
__________________________
