CORPDAL:57865.1 29976-00001
THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"),
OR APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE SOLD,
PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR
CONSIDERATION) BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF
COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT
THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND THE STATE
ACTS. IN ADDITION, THE WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT
MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES (AS DEFINED IN REGULATION S
UNDER THE 1933 ACT) OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS (AS
DEFINED IN REGULATION S) EXCEPT PURSUANT TO REGULATION S AND PURSUANT TO
REGISTRATION UNDER THE 1933 ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT.
THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT ARE BEING OFFERED
PURSUANT TO THE EXEMPTION FROM REGISTRATION WITH THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION (THE "COMMISSION") CONTAINED IN REGULATION S FOR OFFERS
AND SALES OF SECURITIES THAT OCCUR OUTSIDE THE UNITED STATES TO NON-U.S. PERSONS
(WITHIN THE MEANING OF REGULATION S). NO REGISTRATION STATEMENT OR APPLICATION
TO REGISTER THESE SECURITIES HAS BEEN OR WILL BE FILED WITH THE COMMISSION OR
UNDER THE SECURITIES LAWS OF ANY COUNTRY OR JURISDICTION. THIS WARRANT AND THE
SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE COMMISSION.
___________ Shares of Common Stock Warrant No. _________
WARRANT
To Purchase the Common Stock of
Toucan Gold Corporation
CORPDAL:57865.1 29976-00001
1. GRANT OF WARRANT. THIS IS TO CERTIFY THAT The ___________________, or
its permitted registered assigns ("Holder"), is entitled to exercise this
Warrant to purchase from Toucan Gold Corporation, a Delaware corporation
("Company"), ______________ (_________) shares of common stock, par value $.01
per share, of the Company (the "Common Stock"), all on the terms and conditions
and pursuant to the provisions hereinafter set forth.
2. EXERCISE PRICE. The exercise price per share of Common Stock shall be
$3.50 per share (the "Exercise Price"). Such Exercise Price and the number of
shares of Common Stock into which this Warrant is exercisable are subject to
adjustment from time to time as provided herein.
3. EXERCISE PERIOD. This Warrant is exercisable at any time or from time to
time on or before October 31, 1997 (the "Expiration Date").
4. EXERCISE PROCEDURE.
i. In order to exercise this Warrant, in whole or in part, Holder shall
deliver to the Company at its principal office at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, or at such other office as shall be designated by the
Company:
(i) written notice of Xxxxxx's election to exercise this Warrant, which
notice shall specify the number of shares of Common Stock to be
purchased pursuant to such exercise;
(ii) certified check or bank draft payable to the order of the Company in
the amount of the Exercise Price multiplied by the number of shares of
Common Stock to be purchased pursuant to such exercise; and
(iii) this Warrant, properly indorsed.
ii. Upon receipt thereof, the Company shall, as promptly as practicable,
execute and deliver or cause to be executed and delivered to such Holder a
certificate or certificates representing the aggregate number of full shares of
Common Stock issuable upon such exercise. The stock certificate or certificates
so delivered shall be registered in the name of such Holder, or such other name
as shall be designated in said notice.
iii. This Warrant shall be deemed to have been exercised and such certificate
or certificates shall be deemed to have been issued, and such Holder or any
other person so designated to be named therein shall be deemed to have become a
Holder of record of such shares for all purposes, as of the date that said
notice, together with said payment and this Warrant, is received by the Company
as aforesaid. The Holder of this Warrant shall not, by virtue of its ownership
of this Warrant, be entitled to any rights of a shareholder in the Company,
either at law or in equity; provided, however, such Holder shall, for all
purposes, be deemed to have become the Holder of record of such shares on the
date on which this Warrant is surrendered to the Company as contemplated in the
immediately preceding sentence. If the exercise is for less than all of the
shares of Common Stock issuable, as provided in this Warrant, the Company will
issue a new Warrant of like tenor and date for the balance of such shares
issuable hereunder to Holder, with a record of any such exercises to be
maintained by the Company for the purpose of determining the number of
outstanding shares of Common Stock subject to this Warrant and the applicable
Exercise Price pursuant to SECTION 2, such record to be determinative of the
number of outstanding shares of Common stock subject to this Warrant and the
Exercise Price absent manifest error. The Holder of this Warrant, by its
acceptance hereof, consents to and agrees to be bound by and to comply with all
of the provisions of this Warrant.
5. TAXES. The issuance of any capital stock or other certificate upon the
exercise of this Warrant shall be made without charge to the registered Holder
hereof, or for any tax in respect of the issuance of such certificate; provided,
however, that the Company shall not be required to pay any tax which results
from the issuance and delivery of any capital stock or other certificate upon
the exercise of this Warrant in a name other than the Holder of this Warrant.
6. TRANSFER.
(i). Except as otherwise required by law, this Warrant and all options and
rights hereunder are transferable, as to all or any part of the number of shares
of Common Stock purchasable upon its exercise, by Holder hereof in person or by
duly authorized attorney on the books of the Company upon surrender of this
Warrant at the principal offices of the Company, together with the form of
transfer authorization attached hereto duly executed. The Company shall deem and
treat the registered Holder of this Warrant at any time as the absolute owner
hereof for all purposes and shall not be affected by any notice to the contrary.
If this Warrant is transferred in part, the Company shall at the time of
surrender of this Warrant, issue to the transferee a Warrant covering the number
of shares of Common Stock transferred and to the transferor a Warrant covering
the number of shares of Common Stock not transferred. A record of such transfers
shall be maintained by the Company for the purpose of determining the applicable
Holder hereof, such record to be determinative absent manifest error.
(ii). Anything in this Warrant to the contrary notwithstanding, if, at the
time of the surrender of this Warrant in connection with any exercise, transfer,
or exchange of this Warrant, this Warrant shall not be registered under the
Securities Act of 1933, as amended, and under applicable state securities or
blue sky laws, the Company may require, as a condition of allowing such
exercise, transfer, or exchange, that (i) the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion of
counsel, which opinion of counsel is reasonably acceptable to the Company, to
the effect that such exercise, transfer, or exchange may be made without
registration under said Act and under applicable state securities or blue sky
laws and (ii) the Holder or transferee execute and deliver to the Company an
investment letter in form and substance reasonably acceptable to the Company.
The Holder of this Warrant, by taking and holding the same, represents to the
Company that such Holder is acquiring this Warrant for investment and not with a
view to the distribution thereof.
7. CASH IN LIEU OF FRACTIONAL SHARES. The Company shall not be required to
issue fractional shares upon the exercise of this Warrant. If Holder of this
Warrant would be entitled on the exercise of any rights evidenced hereby, to
receive a fractional interest in a share, the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the current market value of a share
of Common Stock, which current market value shall be the last reported sale
price on the trading day immediately preceding the date of the exercise.
8. ADJUSTMENTS. If any of the following events shall occur at any time or
from time to time prior to the Expiration Date, the following adjustments shall
be made in the Exercise Price and/or the number of shares then purchasable upon
the exercise of this Warrant, as appropriate:
(i). In case the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision shall be proportionately reduced and the
number of shares purchasable under this Warrant shall be proportionately
increased; and conversely, in case the Common Stock of the Company shall be
combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased and the
number of shares purchasable hereunder shall be proportionately reduced.
(ii). If the Company shall declare a dividend on its Common Stock payable in
capital stock or other securities of the Company or of any other corporation, or
in cash or other property, to holders of record of Common Stock as of a date
prior to the date of exercise of this Warrant, Holder shall, without additional
cost, be entitled to receive upon the exercise of this Warrant, in addition to
the Common Stock to which Holder is otherwise entitled upon such exercise, the
number of shares of Common Stock or other securities, cash or property that
Holder would have been entitled to receive if Xxxxxx had been a holder of the
number of shares of Common Stock that Holder actually receives upon exercise of
this Warrant on such record date.
(iii). In case the Company completes a merger with a Canadian company as is
currently contemplated or in case of any capital reorganization or
reclassification of the Common Stock, or the consolidation or merger of the
Company with or into another corporation, or any sale of all or substantially
all of the Company's property or assets, or any liquidation of the Company,
Holder, upon the exercise of this Warrant on or before the record date for
determination of shareholders entitled thereto, shall receive, in lieu of any
shares of Common Stock, the proportionate share of all stock, securities or
other property issued, paid or delivered for or on all of the Common Stock as is
allocable to the shares of Common Stock then exercisable under this Warrant.
9. NOTICES OF CERTAIN EVENTS.
(i). In the event of (i) any setting by the Company of a record date with
respect to the holders of any class of securities of the Company for the purpose
of determining which of such holders are entitled to dividends or other
distributions, or any right to subscribe for, purchase or otherwise acquire any
shares, options, interests, participation or other equivalents (howsoever
designated) of or in the Company, whether voting or nonvoting, including without
limitation, common stock, warrants, preferred stock, convertible debentures and
all agreements, instruments and documents convertible, in whole or in part, into
any one or more or all of the foregoing ("Stock") or any other securities or
property, or to receive any other right, or (ii) any capital reorganization of
the Company, or reclassification or recapitalization of the Stock of the Company
or any transfer of all or substantially all of the assets of the Company to, or
consolidation or merger of the Company with or into, any other entity or person,
or (iii) any voluntary dissolution or winding up of the Company, then and in
each such event the Company will mail or cause to be mailed to the Holder of
this Warrant at the time outstanding a notice specifying, as the case may be,
(A) the date on which any such record is to be set for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution, or right; (B) the date as of which the holders of record
shall be entitled to vote on any reorganization, reclassification,
recapitalization, transfer, consolidation, merger, conveyance, dissolution,
liquidation, or winding-up; or (C) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger, conveyance,
dissolution, liquidation, or winding-up is to take place and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or such other
Stock or securities receivable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other Stock or
securities) for securities or other property deliverable upon such event. Any
such notice shall be given at least ten (10) days prior to the date therein
specified.
(ii). If there shall be any adjustment as provided in SECTION 8, or if
securities or property other than shares of Common Stock of the Company shall
become purchasable in lieu of shares of such Common Stock upon exercise of this
Warrant, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Holder a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Company
shall, upon the written request at any time of Holder, furnish or cause to be
furnished to Holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Exercise Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the exercise of this Warrant. At the request
of Xxxxxx and upon surrender of this Warrant, the Company shall reissue this
Warrant in a form conforming to such adjustments.
10. LOST, STOLEN, MUTILATED, OR DESTROYED WARRANT. If this Warrant shall
become mutilated or destroyed, the Company shall, on such reasonable terms as to
indemnity, including, without limitation, the delivery by the Holder to the
Company (at the Holder's expense) of an affidavit of lost instrument and an
indemnity agreement, issue a new Warrant of like denomination, tenor, and date
as the Warrant so lost, stolen, mutilated or destroyed. The Holder agrees to pay
the reasonable expenses incurred by the Company in connection with such
reissuance.
11. APPLICABLE LAW. THIS WARRANT SHALL BE INTERPRETED AND THE RIGHTS OF THE
PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES APPLICABLE
THERETO AND THE INTERNAL LAWS OF THE STATE OF DELAWARE.
12. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and assigns of
the Holder hereof and, shall be enforceable by any such Holder.
13. HEADINGS. Headings of the paragraphs in this Warrant are for
convenience and reference only and shall not, for any purpose, be deemed a part
of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and issued.
DATED as of __________ ___, 199_.
TOUCAN GOLD CORPORATION
By:
--------------------------------
X. Xxxxx Xxxxxx, Vice President
CORPDAL:57865.1 29976-00001
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
No. of Shares
Name & Address of Assignee Common Stock
and does hereby irrevocably constitute and appoint as Attorney
_________________________ to register such transfer on the books of
___________________________ maintained for the purpose, with full power of
substitution in the premises.
DATED: ____________________, 19___.
By:
Title:
NOTICE: The Signature to this assignment must correspond with
the name as written upon the face of the within
Warrant in every particular, without alteration or
enlargement or any change whatever.
ACKNOWLEDGMENT BY ASSIGNEE
The undersigned Assignee hereby acknowledges receipt of the Warrant
Purchase Agreement, and agrees to be bound by its terms.
By:
Title:
