NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND NEITHER THIS WARRANT NOR SUCH SHARES
MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN
EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on ______, ____
WARRANT TO PURCHASE COMMON STOCK
OF
XXXX.XXX, INC.
FOR VALUE RECEIVED, XXXX.XXX, INC. a Florida corporation (the
"Company"), hereby certifies that ______________, or his
permitted assigns, is entitled to purchase from the Company, at
any time or from time to time commencing on _______________ and
prior to 5:00 P.M., Eastern Standard Time, on _______________, a
total of ______________________ fully paid and nonassessable
shares of the Common Stock, par value $.0001 per share, of the
Company for an aggregate purchase price of $_______ per share.
(Hereinafter, (i) said Common Stock together with any other
equity securities which may be issued by the Company with respect
thereto or in substitution therefor, is referred to as the
"Common Stock", (ii) the shares of the Common Stock purchasable
hereunder are referred to as the "Warrant Shares", (iii) the
aggregate purchase price payable hereunder for the Warrant Shares
is referred to as the "Aggregate Warrant Price", (iv) the price
payable hereunder for each of the Warrant Shares is referred to
as the "Exercise Price", (v) this Warrant, and all warrants
hereafter issued in exchange or substitution for this Warrant are
referred to as the "Warrant" and (vi) the holder of this Warrant
is referred to as the "Holder".) The Exercise Price is subject
to adjustment as hereinafter provided.
1. Exercise of Warrant.
(a) Exercise. This Warrant may be exercised, in whole at
any time or in part from time to time, commencing on ___________
and prior to 5:00 P.M., Eastern Standard Time on _______________,
by the Holder of this Warrant by the surrender of this Warrant
(with the subscription form at the end hereof duly executed) at
the address set forth in Subsection 10(a) hereof, together with
proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part.
Payment for Warrant Shares shall be made by certified or official
bank check payable to the order of the Company. If this Warrant
Exhibit 4.2 - Pg. 2
is exercised in part, the Holder is entitled to receive a new
Warrant covering the number of Warrant Shares in respect of which
this Warrant has not been exercised and setting forth the
proportionate part of the Aggregate Warrant Price applicable to
such Warrant Shares. Upon such surrender of this Warrant, the
Company will (a) issue a certificate or certificates in the name
of the Holder for the largest number of whole shares of the
Common Stock to which the Holder shall be entitled if this
Warrant is exercised in whole and (b) deliver the proportionate
part thereof if this Warrant is exercised in part, pursuant to
the provisions of the Warrant. In lieu of any fractional share
of the Common Stock which would otherwise be issuable in respect
to the exercise of the Warrant, the Company at its option (a) may
pay in cash an amount equal to the product of (i) the daily mean
average of the Closing Price of a share of Common Stock on the
ten consecutive trading days before the Conversion Date and (ii)
such fraction of a share or (b) may issue an additional share of
Common Stock.
Upon exercise of the Warrant, the Company shall issue and
deliver to the Holder certificates for the Common Stock issuable
upon such exercise within ten business days after such exercise
and the person exercising shall be deemed to be the holder of
record of the Common Stock issuable upon such exercise.
No warrant granted herein shall be exercisable after 5:00
p.m. Eastern Standard Time on _______ __, ____.
(b) Net Issuance. Notwithstanding anything to the
contrary contained in Subsection 1(a) hereof, in the case of any
exercise on or prior to _______________ the Holder may elect to
exercise this Warrant in whole or in part by receiving shares of
Common Stock equal to the net issuance value (as determined below)
of this Warrant, or any part hereof, upon surrender of this
Warrant at the principal office of the Company together with
notice of such election (with the form at the end hereof duly
executed), in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following
formula:
X = Y (A-B)
------
A
Where: X = the number of shares of Common Stock to be
issued to the Holder
Y = the number of shares of Common Stock as to
which this Warrant is to be exercised
A = the current fair market value of one share
of Common Stock calculated as of the last
trading day immediately preceding the
exercise of this warrant
B = the Exercise Price
Exhibit 4.2 - Pg. 3
(c) Certain Adjustments
The Exercise Price and the number of Warrant Shares shall be
equitable adjusted from time to time to account for stock splits,
stock dividends, combinations, recapitalizations,
reclassifications and similar events.
As used herein, current fair market value of the Common
Stock as of a specified date shall mean with respect to each
share of Common Stock the average of the closing bid prices of
the Common Stock on the principal securities market on which the
Common Stock may at the time be traded over a period of five
business days consisting of the day as of which the current fair
market value of a share of Common Stock is being determined (or
if such day is not a business day, the business day next
preceding such day) and the four consecutive business days prior
to such day. If on the date for which current fair market value
is to be determined the Common Stock is not eligible for trading
on any securities market, the current fair market value of Common
Stock shall be the highest price per share which the Company
could then obtain from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by
the Board of Directors of the Company, which determination shall
be conclusive, unless prior to such date the Company has become
subject to a merger, acquisition or other consolidation pursuant
to which the Company is not the surviving party, in which case
the current fair market value of the Common Stock shall be deemed
to be the value received by the holders of the Company's Common
Stock for each share thereof pursuant to the Company's
acquisition.
2. Redemption. This Warrant may be redeemed at the
option of the Company, at a redemption price of $0.05 per Warrant
Share at any time, upon 30 days prior written notice to the
Holder, if, for a period of ten consecutive trading days, the
average closing bid price of our Common Stock equals or exceeds
$____. On and after the date fixed for redemption, the Holder
shall have no rights with respect to this Warrant except to
receive the $0.05 per Warrant share upon surrender of this
Certificate.
3. Reservation of Warrant Shares. The Company agrees
that, prior to the expiration of this Warrant, the Company will
at all times have authorized and reserved, and will keep
available, solely for issuance or delivery upon the exercise of
this Warrant, the number of shares of the Common Stock as from
time to time shall be receivable upon the exercise of this
Warrant.
4. Fully Paid Stock: Taxes. The Company agrees that the
shares of the Common Stock represented by each and every
certificate for Warrant Shares delivered on the exercise of this
Warrant shall, at the time of such delivery, be validly issued
and outstanding, fully paid and nonassessable, and not subject to
preemptive rights, and the Company will take all such actions as
may be necessary to assure that the par value or stated value, if
any, per share of the Common Stock is at all times equal to or
less than the then Exercise Price. The Company further covenants
and agrees that it will pay, when due and payable, any and all
Federal and state stamp, original issue or similar taxes that may
be payable in respect of the issue of any Warrant Share or
certificate therefor.
Exhibit 4.2 - Pg. 4
5. Transfer.
(a) Securities Laws. Neither this Warrant nor the
Warrant Shares issuable upon the exercise hereof have been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or under any state securities laws and unless
so registered may not be transferred, sold, pledged, hypothecated
or otherwise disposed of unless an exemption from such
registration is available. In the event Holder desires to
transfer this Warrant or any of the Warrant Shares issued, the
Holder must give the Company prior written notice of such
proposed transfer including the name and address of the proposed
transferee. Such transfer may be made only either (i) upon
publication by the Securities and Exchange Commission (the
"Commission") of a ruling, interpretation, opinion or "no action
letter" based upon facts presented to said Commission, or (ii)
upon receipt by the Company of an opinion of counsel to the
Company in either case to the effect that the proposed transfer
will not violate the provisions of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or the rules and regulations promulgated under either such act,
or in the case of clause (ii) above, to the effect that the
Warrant or Warrant Shares to be sold or transferred has been
registered under the Securities Act and that there is in effect a
registration statement in which is included a prospectus meeting
the requirements of Subsection 10 (a) of the Securities Act,
which is being or will be delivered to the purchaser or
transferee at or prior to the time of delivery of the
certificates evidencing the Warrant or Warrant Stock to be sold
or transferred.
(b) Conditions to Transfer. Prior to any such
proposed transfer, and as a condition thereto, if such transfer
is not made pursuant to an effective registration statement under
the Securities Act, the Holder will, if requested by the Company,
deliver to the Company (i) an investment covenant signed by the
proposed transferee, (ii) an agreement by such transferee to the
impression of the restrictive investment legend set forth herein
on the certificate or certificates representing the securities
acquired by such transferee, (iii) an agreement by such
transferee that the Company may place a "stop transfer order"
with its transfer agent or registrar, and (iv) an agreement by
the transferee to indemnify the Company to the same extent as set
forth in the next succeeding paragraph.
(c) Indemnity. The Holder acknowledges that the
Holder understands the meaning and legal consequences of this
Section 5, 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 the Warrant or any of the Warrant
Shares in violation of the Securities Act, the Exchange Act or
the rules and regulations promulgated under either of such acts,
(c) any transfer of the Warrant or any of the Warrant Shares 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.
Exhibit 4.2 - Pg. 5
(d) Transfer. Except as restricted hereby, this
Warrant and the Warrant Shares issued may be transferred by the
Holder in whole or in part at any time or from time to time.
Upon surrender of this Warrant to the Company or at the office of
its stock transfer agent, if any, with assignment documentation
duly executed and funds sufficient to pay any transfer tax, and
upon compliance with the foregoing provisions, the Company shall,
without charge, execute and deliver a new Warrant in the name of
the assignee named in such instrument of assignment, and this
Warrant shall promptly be canceled. Any assignment, transfer,
pledge, hypothecation or other disposition of this Warrant
attempted contrary to the provisions of this Warrant, or any levy
of execution, attachment or other process attempted upon the
Warrant, shall be null and void and without effect.
(e) Legend and Stop Transfer Orders. Unless the
Warrant Shares have been registered under the Securities Act,
upon exercise of any part of the Warrant and the issuance of any
of the Warrant Shares, the Company shall instruct its transfer
agent to enter stop transfer orders with respect to such shares,
and all certificates representing Warrant Shares shall bear on
the face thereof substantially the following legend, insofar as
is consistent with Massachusetts law:
"The shares of common stock represented by this
certificate have not been registered under the
Securities Act of 1933, as amended, and may not be
sold, offered for sale, assigned, transferred or
otherwise disposed of unless registered pursuant to the
provisions of that Act or an opinion of counsel to the
Company is obtained stating that such disposition is in
compliance with an available exemption from such
registration."
6. Loss, etc. of Warrant. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, and of an unsecured indemnity from
the Holder reasonably satisfactory to the Company, if lost,
stolen or destroyed, and upon surrender and cancellation of the
Warrant, if mutilated, the Company shall execute and deliver to
the Holder a new Warrant of like date, tenor and denomination.
7. Warrant Holder Not Shareholder. Except as otherwise
provided herein, this Warrant does not confer upon the Holder any
right to vote or to consent to or receive notice as a shareholder
of the Company, as such, in respect of any matters whatsoever, or
any other rights or liabilities as a shareholder, prior to the
exercise hereof.
8. Communication. No notice or other communication under
this Warrant shall be effective unless the same is in writing and
is mailed by certified mail, return receipt requested, addressed
to:
(a) the Company at 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000 or such other address as the Company
has designated in writing to the Holder, with a copy to Xxxxx X.
Xxxxxxx XX, PA 000 Xxxxx Xxxx, Xxxxx 000 Xxxx Xxxxx, Xxxxxxx
00000 or
Exhibit 4.2 - Pg. 6
(b) the Holder at ____________________________, or
such other address as the Holder has designated in writing to the
Company.
Any notice given hereunder shall be effective upon the
earlier of (i) receipt, or (ii) a date three days from the date
of posting.
9. Headings. The headings of this Warrant have been
inserted as a matter of convenience and shall not affect the
construction hereof
10. Applicable Law. This Warrant shall be governed by and
construed in accordance with the law of the State of Florida
without giving effect to the principles of conflicts of law
thereof.
IN WITNESS WHEREOF, XXXX.XXX, INC. has caused this Warrant
to be signed by its Chief Executive Officer this __ day of
_________, 2000
XXXX.XXX, INC.
By:__________________________
Exhibit 4.2 - Pg. 7
SUBSCRIPTION
The undersigned, _______________________________________,
pursuant to the provisions of the foregoing Warrant, hereby
agrees to subscribe for the purchase of ________ shares of the
[Class A Common Stock] of [COMPANY] 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 [COMPANY]..
Dated:____________________ Signature:________________________
Address:__________________
__________________________
__________________________
Exhibit 4.2 - Pg. 8
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _________________________ hereby sells,
assigns and transfers unto ___________________________ the right
to purchase _________ shares of the Class A Common Stock of
[COMPANY]. 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
[COMPANY].
Dated:____________________ Signature:________________________
Address:__________________
__________________________
__________________________
NET ISSUANCE ELECTION
The undersigned, _______________________________, pursuant
to the provisions of the foregoing Warrant, hereby tenders the
right to purchase _____ shares of the Class A Common Stock of
[COMPANY] and a proportionate part of said Warrant and the rights
evidenced thereby, in exchange for a number of shares of said
Class A Common Stock to be computed in accordance with the
provisions of Section 1 (b) of said Warrant.
Dated:____________________ Signature:________________________
Address:__________________
__________________________
__________________________
