VOID AFTER 5:00 P.M. MOUNTAIN STANDARD TIME, ON February 1, 2006
This warrant supercedes and replaces that certain stock option agreement for
485,000 shares at $0.15 per share dated February 1, 2001 between the parties
noted below.
Neither this warrant nor the warrant stock has been registered under the
securities act of 1933 or any state securities laws. The Company will not
transfer the warrant stock unless (i) there is an effective registration
covering such warrant or such warrant stock as the case may be, under the
securities act of 1933 and applicable states securities laws, (ii) it first
receives a letter from an attorney, acceptable to the board of directors or its
agents, stating that in the opinion of the attorney the proposed transfer is
exempt from registration under the securities act of 1933 and under all
applicable state securities laws, or (iii) the transfer is made pursuant to rule
144 under the securities act of 1933.
FUTUREONE, INC.
(a Nevada corporation)
Warrant for the Purchase of 291,000 Shares
of Common Stock, $0.001 par value
FOR VALUE RECEIVED, FutureOne, Inc., a Nevada corporation (the
"Company"), hereby certifies that
Xxxxxx X. XxXxxx
0000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
is the holder (the "Holder"), subject to the provisions of this Warrant, to
purchase from the Company at any time, or from time to time during the period
commencing on the date hereof and expiring at 5:00 p.m. Mountain Standard Time,
on February 1, 2006 (the "Expiration Date"), up to 291,000 fully paid and
non-assessable shares of Common Stock at a price of $0.15 per share (the
"Exercise Price").
As used herein, the term "Common Stock" shall mean the Company's
presently authorized common stock, $.001 par value, and any stock into or for
which such Common Stock may hereafter be converted or exchanged. The number of
shares of Common Stock to be received upon the exercise of this Warrant may be
adjusted from time to time as hereinafter set forth. The shares of Common Stock
deliverable or delivered upon such exercise, as adjusted from time to time, are
hereinafter referred to as "Warrant Stock."
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant certificate, and
(in the case of loss, theft or destruction) of satisfactory indemnification, and
upon surrender and cancellation of this Warrant certificate, if mutilated, the
Company shall execute and deliver a new Warrant certificate of like tenor and
date.
Section 1. Exercise of Warrant. This Warrant may be exercised, subject
to the requirements set forth herein, in whole, or in part, at any time during
the period commencing on the date hereof, and expiring at 5:00 p.m. Mountain
Standard Time on the Expiration Date set forth above, or, if such day is a day
on which banking institutions in Denver, Colorado are authorized by law to
close, then on the next succeeding day that shall not be such a day. Exercise
shall be performed by delivery and surrender to the Company at its principal
office, or at the office of its stock transfer agent, if any, of: (i) this
Warrant certificate, (ii) a duly executed Warrant Exercise Form which is
attached hereto as Exhibit A and (iii) payment of the aggregate Exercise Price
for the number of shares specified in the Warrant Exercise Form. The Exercise
Price shall be paid by certified or cashier's check (i.e., official bank check)
made payable to the order of the Company. Upon receipt by the Company or stock
transfer agent of the Warrant certificate, the properly completed and executed
Warrant Exercise Form, and the Exercise Price, the Company shall deliver
certificate(s) evidencing the shares of Common Stock so purchased within a
reasonable time. If this Warrant should be exercised in part only, the Company
shall also deliver to the Holder a new Warrant certificate evidencing the rights
of the Holder to purchase the balance of the shares purchasable hereunder. If a
person or persons other than the original Holder of this Warrant exercise all or
part of this Warrant, such persons or persons shall also submit proof,
satisfactory to counsel for the Company, of the right of such person or persons
to exercise this Warrant. The person exercising this Warrant shall pay any and
all documentary stamp or similar issue or transfer taxes payable in respect of
the issue or delivery of shares of Common Stock on exercise of this Warrant.
Holder shall also make any appropriate arrangements acceptable to the Company to
provide for the amount of withholding required by applicable federal, state or
foreign tax laws.
Section 2. Reservation of Shares. The Company shall at all times
reserve for issuance and delivery upon exercise of this Warrant all shares of
Common Stock or other shares of capital stock of the Company (and other
securities) from time to time receivable upon exercise of this Warrant. All such
shares (and other securities) shall be duly authorized and, when issued upon
exercise, shall be validly issued, fully paid and non-assessable.
Section 3. No Fractional Shares. No fractional shares or script
representing fractional shares shall be issued upon the exercise of this
Warrant. Any fractional share shall be rounded up to a whole share.
Section 4. Transfer.
4.1 Securities Laws. Neither this Warrant nor the Warrant Stock have
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state. This warrant shall be subject to the
requirement that, if at any time counsel to the Company shall determine that the
listing, registration or qualification of the Warrant Stock upon any securities
exchange or under any state, federal or foreign law, or the consent or approval
of any governmental or regulatory body, is necessary as a condition of, or in
connection with, the issuance or purchase of Warrant Stock thereunder, this
warrant may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Board of Directors. Nothing herein
shall be deemed to require the Company to apply for or to obtain such listing,
registration or qualification.
4.2 Personal Exercise by Holder. This Warrant shall, during the
lifetime of the Holder, be exercisable only by him, or in the event of
disability or incapacity, by the guardian or legal representative of the Holder.
Furthermore, this Warrant shall not be transferable by the Holder, in whole or
in part, other than by will or by the laws of descent and distribution. This
Warrant shall not, voluntarily or involuntarily, be subjected to any lien,
directly or indirectly, by operation of law, or otherwise, including execution,
levy, garnishment, attachment, pledge or bankruptcy.
4.3 Indemnity. The Holder acknowledges and understands the meaning and
legal consequences of this Section, and the Holder hereby agrees to indemnify
and hold harmless the Company, its representatives and each officer and director
thereof from and against any and all loss, damage or liability (including all
attorneys' fees and costs incurred in enforcing this indemnity provision) due to
or arising out of (a) the inaccuracy of any representation or the breach of any
warranty of the Holder contained in, or any other breach of this Warrant, (b)
any transfer of any of this Warrant or the Warrant Stock in violation of the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the rules and regulations promulgated under the Securities Act or
Exchange Act or any state securities laws, (c) any transfer of this Warrant or
any of the Warrant Stock not in accordance with this Warrant or (d) any untrue
statement or omission to state any material fact in connection with the
investment representations or with respect to the facts and representations
supplied by the Holder to counsel to the Company upon which its opinion as to a
proposed transfer shall have been based.
Section 5. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or in equity, and the rights of the Holder are limited to those expressed in
this Warrant.
Section 6. Anti-Dilution Provisions.
6.1 Stock Splits, Dividends, Etc.
6.1.1 If the Company shall at any time subdivide its outstanding
shares of Common Stock (or other securities at the time receivable upon the
exercise of the Warrant) by recapitalization, reclassification or split-up
thereof, or if the Company shall declare a stock dividend or distribute shares
of Common Stock to its stockholders, the number of shares of Common Stock
subject to this Warrant immediately prior to such subdivision shall be
proportionately increased, and if the Company shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of shares of Common Stock subject to this
Warrant immediately prior to such combination shall be proportionately
decreased. Any such adjustment and adjustment to the Exercise Price pursuant to
this Section shall be effective at the close of business on the effective date
of such subdivision or combination or if any adjustment is the result of a stock
dividend or distribution then the effective date for such adjustment based
thereon shall be the record date therefor.
6.1.2 Whenever the number of shares of Common Stock purchasable upon
the exercise of this Warrant is adjusted, as provided in this Section, the
Exercise Price shall be adjusted to the nearest cent by multiplying such
Exercise Price immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise immediately prior to such adjustment, and (y) the denominator
of which shall be the number of shares of Common Stock so purchasable
immediately thereafter.
6.2 Adjustment for Reorganization, Consolidation, Merger, Etc. In case
of any reorganization of the Company (or any other corporation, the securities
of which are at the time receivable on the exercise of this Warrant) shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Holder of this Warrant upon the exercise as provided in Section 1 at
any time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the securities and property
receivable upon the exercise of this Warrant prior to such consummation, the
securities or property to which such Holder would have been entitled upon such
consummation if such Holder had exercised this Warrant immediately prior
thereto; in each such case, the terms of this Warrant shall be applicable to the
securities or property received upon the exercise of this Warrant after such
consummation.
6.3 Certificate as to Adjustments. In each case of an adjustment in the
number of shares of Common Stock receivable on the exercise of this Warrant, the
Company at its expense shall promptly compute such adjustment in accordance with
the terms of the Warrant and prepare a certificate executed by an officer of the
Company setting forth such adjustment and showing the facts upon which such
adjustment is based. The Company shall forthwith mail a copy of each such
certificate to each Holder.
Section 7. Legend and Stop Transfer Orders. Unless the shares of
Warrant Stock have been registered under the Securities Act, upon exercise of
any of this Warrant and the issuance of any of the shares of Warrant Stock, the
Company shall instruct its transfer agent, if any, to enter stop transfer orders
with respect to such shares, and all certificates representing shares of Warrant
Stock shall bear on the face thereof substantially the following legend, insofar
as is consistent with applicable law:
This certificate has not been registered under the Securities Act of
1933 or any state securities laws. The Company will not transfer this
certificate unless (i) there is an effective registration covering the
shares represented by this certificate under the Securities Act of 1933
and all applicable state securities laws, (ii) it first receives a
letter from an attorney, acceptable to the board of directors or its
agents, stating that in the opinion of the attorney the proposed
transfer is exempt from registration under the Securities Act of 1933
and under all applicable state securities laws or (iii) the transfer is
made pursuant to Rule 144 under the Securities Act of 1933.
8. Investment Purpose Representations and Risks.
(a)As a condition to the issuance by the Company of this Warrant and
Warrant Stock exercisable pursuant to this Warrant, the Holder (i) represents
that the shares of Warrant Stock are being acquired for investment and not with
a present intention of selling or otherwise distributing and Holder agrees to
make such other representations as may be necessary in order to comply with
federal and applicable state securities laws or appropriate to qualify the
issuance of the Warrant Stock as exempt from the Securities Act of 1933 and any
other applicable securities laws, and (ii) represent that Holder shall not
dispose of the shares of Warrant Stock in violation of the Securities Act of
1933 or any other applicable securities laws. As noted in Section 7, The Company
reserves the right to place a legend on any stock certificate issued pursuant to
the exercise of this warrant to assure compliance with the foregoing.
(b) Holder acknowledges that (i) an investment in the Warrant Stock
involve significant risks and may represent an illiquid investment, (ii) the
Holder is able to bear the economic risks of an investment in the Warrant Stock
and is able to maintain his investment in the Warrant Stock for an indefinite
period of time, and (iii) Holder could bear a total loss of the investment.
(c) Holder has such knowledge and experience in financial and business
matters to enable Holder to evaluate the merits and risks of an investment in
the Warrant Stock. Holders without such knowledge and experience are strongly
encouraged to consult with a financial, tax or legal advisor before investing in
the Warrant Stock.
(d) Holder acknowledges that at the time this Warrant was issued, the
Company was a reporting company under the Securities Exchange Act of 1934 and
that it files annual, quarterly and other reports with the Securities and
Exchange Commission. Holder is strongly encouraged to review such filings prior
to exercising this Warrant, and acknowledges that such reports may be reviewed
on the SEC's web site at xxx.xxx.xxx, or copies may be obtained by contacting
the Company. Holder is aware that he is afforded an opportunity to discuss
matters pertinent to an investment is the Warrant Stock with the Company upon
exercise.
Section 9. Notice. Any notice or other communication required
or permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt, if to
the Holder, at his/her address as shown on the books of the Company, and if to
the Company, at its principal office, 0000 Xxxxxx Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000. Any notice or other communication given
by certified mail shall be deemed given at the time of certification thereof,
except for a notice changing, a party's address which shall be deemed given at
the time of receipt thereof.
Section 10. Binding Effect. The provisions of this Warrant shall be
binding upon and inure to the benefit of (1) the parties hereto, (2) the
successors and assigns of the Company, and (3) if the Holder is a corporation,
partnership, or other business entity, the successors of the Holder.
Section 11. Pronouns. Any masculine personal pronoun shall be
considered to mean the corresponding feminine or neuter personal pronoun, as the
context requires.
Section 12. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Colorado.
Dated this ____ day of ________, 2001
FutureOne, Inc.,
a Nevada corporation
By: ________________________________
Name: Xxxxx X. Xxxxx
Title: CFO
EXHIBIT A
NOTICE OF EXERCISE
TO: FUTUREONE, INC.
1. The undersigned hereby elects to purchase ____________ shares of
Common Stock of FutureOne, Inc. 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
of Common Stock in the name of the undersigned or in such other name as is
specified below:
--------------------
(Name)
--------------------
--------------------
(Address)
3.The undersigned represents that the aforesaid shares of Common Stock
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 will not offer, sell or otherwise dispose of any such
shares except under circumstances that will not result in a violation of the
Securities Act of 1933, as amended, or any state securities law.
_______________________________
Signature
