THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE XXXXXXXX COACH, INC. THAT SUCH REGISTRATION
IS NOT REQUIRED.
Right to Purchase 375,000 shares of Common
Stock of The Xxxxxxxx Coach, Inc. (subject to
adjustment as provided herein)
COMMON STOCK PURCHASE WARRANT
No. 2005-001 Issue Date: January 21, 2005
THE XXXXXXXX COACH, INC., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby certifies that, for value
received, LONGVIEW INTERNATIONAL EQUITY FUND, LP, 000 Xxxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Fax: (000) 000-0000, or its assigns
(the "Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company at any time after the Issue Date until 5:00 p.m.,
E.S.T on the fifth anniversary of the effective date of the registration
statement covering the underlying shares (the "Expiration Date"), up to
375,000 fully paid and nonassessable shares of the common stock of the
Company (the "Common Stock"), $.00001 par value per share at a per share
purchase price of $0.15. The aforedescribed purchase price per share, as
adjusted from time to time as herein provided, is referred to herein as the
"Purchase Price." The number and character of such shares of Common Stock
and the Purchase Price are subject to adjustment as provided herein. The
Company may reduce the Purchase Price without the consent of the Holder.
Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in that certain Subscription Agreement (the "Subscription
Agreement"), dated January 21, 2005, entered into by the Company and the
Holder.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" shall include The Xxxxxxxx Coach, Inc. and
any corporation which shall succeed or assume the obligations of The
Xxxxxxxx Coach, Inc. hereunder.
(b) The term "Common Stock" includes (a) the Company's Common Stock,
$.00001 par value per share, as authorized on the date of the Subscription
Agreement, and (b) any other securities into which or for which any of the
securities described in (a) may be converted or exchanged pursuant to a plan
of recapitalization, reorganization, merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than
Common Stock) and other securities of the Company or any other person
(corporate or otherwise) which the holder of the Warrant at any time shall
be entitled to receive, or shall have received, on the exercise of the
Warrant, in lieu of or in addition to Common Stock, or which at any time
shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to Section 4 or
otherwise.
THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE XXXXXXXX COACH, INC. THAT SUCH REGISTRATION
IS NOT REQUIRED.
Right to Purchase 1,125,000 shares of Common
Stock of The Xxxxxxxx Coach, Inc. (subject to
adjustment as provided herein)
COMMON STOCK PURCHASE WARRANT
No. 2005-002 Issue Date: January 21, 2005
THE XXXXXXXX COACH, INC., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby certifies that, for value
received, LONGVIEW EQUITY FUND, LP, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx, XX 00000, Fax: (000) 000-0000, or its assigns (the "Holder"), is
entitled, subject to the terms set forth below, to purchase from the Company
at any time after the Issue Date until 5:00 p.m., E.S.T on the fifth
anniversary of the effective date of the registration statement covering the
underlying shares (the "Expiration Date"), up to 1,125,000 fully paid and
nonassessable shares of the common stock of the Company (the "Common
Stock"), $.00001 par value per share at a per share purchase price of $0.15.
The aforedescribed purchase price per share, as adjusted from time to time
as herein provided, is referred to herein as the "Purchase Price." The
number and character of such shares of Common Stock and the Purchase Price
are subject to adjustment as provided herein. The Company may reduce the
Purchase Price without the consent of the Holder. Capitalized terms used
and not otherwise defined herein shall have the meanings set forth in that
certain Subscription Agreement (the "Subscription Agreement"), dated January
21, 2005, entered into by the Company and the Holder.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" shall include The Xxxxxxxx Coach, Inc. and
any corporation which shall succeed or assume the obligations of The
Xxxxxxxx Coach, Inc. hereunder.
(b) The term "Common Stock" includes (a) the Company's Common Stock,
$.00001 par value per share, as authorized on the date of the Subscription
Agreement, and (b) any other securities into which or for which any of the
securities described in (a) may be converted or exchanged pursuant to a plan
of recapitalization, reorganization, merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than
Common Stock) and other securities of the Company or any other person
(corporate or otherwise) which the holder of the Warrant at any time shall
be entitled to receive, or shall have received, on the exercise of the
Warrant, in lieu of or in addition to Common Stock, or which at any time
shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to Section 4 or
otherwise.
1. Exercise of Warrant.
1.1. Number of Shares Issuable upon Exercise. From and after
the Issue Date through and including the Expiration Date, the Holder hereof
shall be entitled to receive, upon exercise of this Warrant in whole in
accordance with the terms of subsection 1.2 or upon exercise of this Warrant
in part in accordance with subsection 1.3, shares of Common Stock of the
Company, subject to adjustment pursuant to Section 4.
1.2. Full Exercise. This Warrant may be exercised in full by
the Holder hereof by delivery of an original or facsimile copy of the form
of subscription attached as Exhibit A hereto (the "Subscription Form") duly
executed by such Holder and surrender of the original Warrant within five
(5) days of exercise, to the Company at its principal office or at the
office of its Warrant Agent (as provided hereinafter), accompanied by
payment, in cash, wire transfer or by certified or official bank check
payable to the order of the Company, in the amount obtained by multiplying
the number of shares of Common Stock for which this Warrant is then
exercisable by the Purchase Price then in effect or otherwise subject to
Section 2.
1.3. Partial Exercise. This Warrant may be exercised in part
(but not for a fractional share) by surrender of this Warrant in the manner
and at the place provided in subsection 1.2 except that the amount payable
by the Holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of whole shares of Common Stock designated by the
Holder in the Subscription Form by (b) the Purchase Price then in effect or
otherwise subject to Section 2. On any such partial exercise, the Company,
at its expense, will forthwith issue and deliver to or upon the order of the
Holder hereof a new Warrant of like tenor, in the name of the Holder hereof
or as such Holder (upon payment by such Holder of any applicable transfer
taxes) may request, the whole number of shares of Common Stock for which
such Warrant may still be exercised.
1.4. Fair Market Value. Fair Market Value of a share of Common
Stock as of a particular date (the "Determination Date") shall mean:
(a) If the Company's Common Stock is traded on an
exchange or is quoted on the National Association of Securities Dealers,
Inc. Automated Quotation ("NASDAQ"), National Market System, the NASDAQ
SmallCap Market or the American Stock Exchange, LLC, then the closing or
last sale price, respectively, reported for the last business day
immediately preceding the Determination Date;
(b) If the Company's Common Stock is not traded on an
exchange or on the NASDAQ National Market System, the NASDAQ SmallCap Market
or the American Stock Exchange, Inc., but is traded in the over-the-counter
market, then the average of the closing bid and ask prices reported for the
last business day immediately preceding the Determination Date;
(c) Except as provided in clause (d) below, if the
Company's Common Stock is not publicly traded, then as the Holder and the
Company agree, or in the absence of such an agreement, by arbitration in
accordance with the rules then standing of the American Arbitration
Association, before a single arbitrator to be chosen from a panel of persons
qualified by education and training to pass on the matter to be decided; or
(d) If the Determination Date is the date of a
liquidation, dissolution or winding up, or any event deemed to be a
liquidation, dissolution or winding up pursuant to the Company's charter,
then all amounts to be payable per share to holders of the Common Stock
pursuant to the charter in the event of such liquidation, dissolution or
winding up, plus all other amounts to be payable per share in respect of the
Common Stock in liquidation under the charter, assuming for the purposes of
this clause (d) that all of the shares of Common Stock then issuable upon
exercise of all of the Warrants are outstanding at the Determination Date.
1.5. Company Acknowledgment. The Company will, at the time of
the exercise of the Warrant, upon the request of the Holder hereof
acknowledge in writing its continuing obligation to afford to such Holder
any rights to which such Holder shall continue to be entitled after such
exercise in accordance with the provisions of this Warrant. If the Holder
shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such Holder any such
rights.
1.6. Trustee for Warrant Holders. In the event that a bank or
trust company shall have been appointed as trustee for the Holder of the
Warrants pursuant to Subsection 3.2, such bank or trust company shall have
all the powers and duties of a warrant agent (as hereinafter described) and
shall accept, in its own name for the account of the Company or such
successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 1.
1.7 Delivery of Stock Certificates, etc. on Exercise. The
Company agrees that the shares of Common Stock purchased upon exercise of
this Warrant shall be deemed to be issued to the Holder hereof as the record
owner of such shares as of the close of business on the date on which this
Warrant shall have been surrendered and payment made for such shares as
aforesaid. As soon as practicable after the exercise of this Warrant in full
or in part, and in any event within five (5) days thereafter, the Company at
its expense (including the payment by it of any applicable issue taxes) will
cause to be issued in the name of and delivered to the Holder hereof, or as
such Holder (upon payment by such Holder of any applicable transfer taxes)
may direct in compliance with applicable securities laws, a certificate or
certificates for the number of duly and validly issued, fully paid and
nonassessable shares of Common Stock (or Other Securities) to which such
Holder shall be entitled on such exercise, plus, in lieu of any fractional
share to which such Holder would otherwise be entitled, cash equal to such
fraction multiplied by the then Fair Market Value of one full share of
Common Stock, together with any other stock or other securities and property
(including cash, where applicable) to which such Holder is entitled upon
such exercise pursuant to Section 1 or otherwise.
2. Cashless Exercise.
(a) If a Registration Statement (as defined in the
Subscription Agreement) ("Registration Statement") is effective and the
Holder may sell its shares of Common Stock upon exercise hereof pursuant to
the Registration Statement, this Warrant may be exercisable in whole or in
part for cash only as set forth in Section 1 above. If no such Registration
Statement is available, then payment upon exercise may be made at the option
of the Holder either in (i) cash, wire transfer or by certified or official
bank check payable to the order of the Company equal to the applicable
aggregate Purchase Price, (ii) by delivery of Common Stock issuable upon
exercise of the Warrants in accordance with Section (b) below or (iii) by a
combination of any of the foregoing methods, for the number of Common Stock
specified in such form (as such exercise number shall be adjusted to reflect
any adjustment in the total number of shares of Common Stock issuable to the
holder per the terms of this Warrant) and the holder shall thereupon be
entitled to receive the number of duly authorized, validly issued, fully-
paid and non-assessable shares of Common Stock (or Other Securities)
determined as provided herein.
(b) Subject to the provisions herein to the contrary, if the
Fair Market Value of one share of Common Stock is greater than the Purchase
Price (at the date of calculation as set forth below), in lieu of exercising
this Warrant for cash, the holder may elect to receive shares equal to the
value (as determined below) of this Warrant (or the portion thereof being
cancelled) by surrender of this Warrant at the principal office of the
Company together with the properly endorsed Subscription Form 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 purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being exercised (at the date of such
calculation)
A= the Fair Market Value of one share of the Company's
Common Stock (at the date of such calculation)
B= Purchase Price (as adjusted to the date of such
calculation)
(c) The Holder may employ the cashless exercise feature
described in Section (b) above only during the pendency of a Non-
Registration Event as described in Section 11 of the Subscription Agreement.
For purposes of Rule 144 promulgated under the 1933 Act, it is
intended, understood and acknowledged that the Warrant Shares issued in a
cashless exercise transaction shall be deemed to have been acquired by the
Holder, and the holding period for the Warrant Shares shall be deemed to
have commenced, on the date this Warrant was originally issued pursuant to
the Subscription Agreement.
3. Adjustment for Reorganization, Consolidation, Merger, etc.
3.1. Reorganization, Consolidation, Merger, etc. In case at
any time or from time to time, the Company shall (a) effect a
reorganization, (b) consolidate with or merge into any other person or
(c) transfer all or substantially all of its properties or assets to any
other person under any plan or arrangement contemplating the dissolution of
the Company, then, in each such case, as a condition to the consummation of
such a transaction, proper and adequate provision shall be made by the
Company whereby the Holder of this Warrant, on the exercise hereof as
provided in Section 1, at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Common Stock
(or Other Securities) issuable on such exercise prior to such consummation
or such effective date, the stock and other securities and property
(including cash) to which such Holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if
such Holder had so exercised this Warrant, immediately prior thereto, all
subject to further adjustment thereafter as provided in Section 4.
3.2. Dissolution. In the event of any dissolution of the
Company following the transfer of all or substantially all of its properties
or assets, the Company, prior to such dissolution, shall at its expense
deliver or cause to be delivered the stock and other securities and property
(including cash, where applicable) receivable by the Holder of the Warrants
after the effective date of such dissolution pursuant to this Section 3 to a
bank or trust company (a "Trustee") having its principal office in New York,
NY, as trustee for the Holder of the Warrants.
3.3. Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any
transfer) referred to in this Section 3, this Warrant shall continue in full
force and effect and the terms hereof shall be applicable to the Other
Securities and property receivable on the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case may
be, and shall be binding upon the issuer of any Other Securities, including,
in the case of any such transfer, the person acquiring all or substantially
all of the properties or assets of the Company, whether or not such person
shall have expressly assumed the terms of this Warrant as provided in
Section 4. In the event this Warrant does not continue in full force and
effect after the consummation of the transaction described in this
Section 3, then only in such event will the Company's securities and
property (including cash, where applicable) receivable by the Holder of the
Warrants be delivered to the Trustee as contemplated by Section 3.2.
3.4 Share Issuance. Until the Expiration Date, if the Company
shall issue any Common Stock except for the Excepted Issuances (as defined
in the Subscription Agreement), prior to the complete exercise of this
Warrant for a consideration less than the Purchase Price that would be in
effect at the time of such issue, then, and thereafter successively upon
each such issue, the Purchase Price shall be reduced to such other lower
issue price. For purposes of this adjustment, the issuance of any security
or debt instrument of the Company carrying the right to convert such
security or debt instrument into Common Stock or of any warrant, right or
option to purchase Common Stock shall result in an adjustment to the
Purchase Price upon the issuance of the above-described security, debt
instrument, warrant, right, or option and again at any time upon any
subsequent issuances of shares of Common Stock upon exercise of such
conversion or purchase rights if such issuance is at a price lower than the
Purchase Price in effect upon such issuance. The reduction of the Purchase
Price described in this Section 3.4 is in addition to the other rights of
the Holder described in the Subscription Agreement.
4. Extraordinary Events Regarding Common Stock. In the event that
the Company shall (a) issue additional shares of the Common Stock as a
dividend or other distribution on outstanding Common Stock, (b) subdivide
its outstanding shares of Common Stock, or (c) combine its outstanding
shares of the Common Stock into a smaller number of shares of the Common
Stock, then, in each such event, the Purchase Price shall, simultaneously
with the happening of such event, be adjusted by multiplying the then
Purchase Price by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event, and the product so obtained shall
thereafter be the Purchase Price then in effect. The Purchase Price, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described herein in this Section 4. The number of
shares of Common Stock that the Holder of this Warrant shall thereafter, on
the exercise hereof as provided in Section 1, be entitled to receive shall
be adjusted to a number determined by multiplying the number of shares of
Common Stock that would otherwise (but for the provisions of this Section 4)
be issuable on such exercise by a fraction of which (a) the numerator is the
Purchase Price that would otherwise (but for the provisions of this
Section 4) be in effect, and (b) the denominator is the Purchase Price in
effect on the date of such exercise.
5. Certificate as to Adjustments. In each case of any adjustment
or readjustment in the shares of Common Stock (or Other Securities) issuable
on the exercise of the Warrants, the Company at its expense will promptly
cause its Chief Financial Officer or other appropriate designee to compute
such adjustment or readjustment in accordance with the terms of the Warrant
and prepare a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is
based, including a statement of (a) the consideration received or receivable
by the Company for any additional shares of Common Stock (or Other
Securities) issued or sold or deemed to have been issued or sold, (b) the
number of shares of Common Stock (or Other Securities) outstanding or deemed
to be outstanding, and (c) the Purchase Price and the number of shares of
Common Stock to be received upon exercise of this Warrant, in effect
immediately prior to such adjustment or readjustment and as adjusted or
readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to the Holder of the Warrant and any Warrant
Agent of the Company (appointed pursuant to Section 11 hereof).
6. Reservation of Stock, etc. Issuable on Exercise of Warrant;
Financial Statements. The Company will at all times reserve and keep
available, solely for issuance and delivery on the exercise of the Warrants,
all shares of Common Stock (or Other Securities) from time to time issuable
on the exercise of the Warrant. This Warrant entitles the Holder hereof to
receive copies of all financial and other information distributed or
required to be distributed to the holders of the Company's Common Stock.
7. Assignment; Exchange of Warrant. Subject to compliance with
applicable securities laws, this Warrant, and the rights evidenced hereby,
may be transferred by any registered holder hereof (a "Transferor"). On the
surrender for exchange of this Warrant, with the Transferor's endorsement in
the form of Exhibit B attached hereto (the "Transferor Endorsement Form")
and together with an opinion of counsel reasonably satisfactory to the
Company that the transfer of this Warrant will be in compliance with
applicable securities laws, the Company will issue and deliver to or on the
order of the Transferor thereof a new Warrant or Warrants of like tenor, in
the name of the Transferor and/or the transferee(s) specified in such
Transferor Endorsement Form (each a "Transferee"), calling in the aggregate
on the face or faces thereof for the number of shares of Common Stock called
for on the face or faces of the Warrant so surrendered by the Transferor.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of this Warrant, the Company at
its expense, twice only, will execute and deliver, in lieu thereof, a new
Warrant of like tenor.
9. Registration Rights. The Holder of this Warrant has been
granted certain registration rights by the Company. These registration
rights are set forth in the Subscription Agreement. The terms of the
Subscription Agreement are incorporated herein by this reference. Upon the
occurrence of a Non-Registration Event, or in the event the Company is
unable to issue Common Stock upon exercise of this Warrant that has been
registered in a Registration Statement described in Section 11 of the
Subscription Agreement, within the time periods described in the
Subscription Agreement, which Registration Statement must be effective for
the periods set forth in the Subscription Agreement, then upon written
demand made by the Holder, the Company will pay to the Holder of this
Warrant, in lieu of delivering Common Stock, a sum equal to the closing
price of the Company's Common Stock on the Principal Market on the trading
date immediately preceding the date notice is given by the Holder, less the
Purchase Price, for each share of Common Stock designated in such notice
from the Holder.
10. Maximum Exercise. The Holder shall not be entitled to exercise
this Warrant on an exercise date, in connection with that number of shares
of Common Stock which would be in excess of the sum of (i) the number of
shares of Common Stock beneficially owned by the Holder and its affiliates
on an exercise date, and (ii) the number of shares of Common Stock issuable
upon the exercise of this Warrant with respect to which the determination of
this limitation is being made on an exercise date, which would result in
beneficial ownership by the Holder and its affiliates of more than 9.99% of
the outstanding shares of Common Stock on such date. For the purposes of
the immediately preceding sentence, beneficial ownership shall be determined
in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13d-3 thereunder. Subject to the foregoing, the
Holder shall not be limited to aggregate exercises which would result in the
issuance of more than 9.99%. The Holder shall have the authority and
obligation to determine whether the restriction contained in this Section 10
will limit any exercise hereunder and to the extent that the Holder
determines that the limitation contained in this Section applies, the
determination of which portion of the Warrants are exercisable shall be the
responsibility and obligation of the Holder. The restriction described in
this paragraph may be revoked upon sixty-one (61) days prior notice from the
Holder to the Company. The Holder may allocate which of the equity of the
Company deemed beneficially owned by the Subscriber shall be included in the
9.99% amount described above and which shall be allocated to the excess
above 9.99%.
11. Warrant Agent. The Company may, by written notice to the Holder
of the Warrant, appoint an agent (a "Warrant Agent") for the purpose of
issuing Common Stock (or Other Securities) on the exercise of this Warrant
pursuant to Section 1, exchanging this Warrant pursuant to Section 7, and
replacing this Warrant pursuant to Section 8, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall be made at such office by such Warrant Agent.
12. Transfer on the Company's Books. Until this Warrant is
transferred on the books of the Company, the Company may treat the
registered holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
13. Notices. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally served, (ii)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with
charges prepaid, or (iv) transmitted by hand delivery, telegram, or
facsimile, addressed as set forth below or to such other address as such
party shall have specified most recently by written notice. Any notice or
other communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile machine, at
the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be: if to the Company, to: The Xxxxxxxx
Coach, Inc., 00000 0xx Xxxxxx X., Xxxxxxxxx, XX 00000, Attn: Xxxxx Xxxxxxxxx,
CEO, telecopier: (000) 000-0000, with a copy by telecopier only to: Xxxxxx
Xxxxxx, Esq., 000 0xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, telecopier: 718-965-
4042, and (ii) if to the Holder, to the address and telecopier number listed
on the first paragraph of this Warrant, with a copy by telecopier only to:
Grushko & Xxxxxxx, P.C., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, telecopier number: (000) 000-0000.
14. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by
the party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of New York. Any dispute relating
to this Warrant shall be adjudicated in New York County in the State of New
York. The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof. The invalidity
or unenforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the
date first written above.
THE XXXXXXXX COACH, INC.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx, CEO
Exhibit A
FORM OF SUBSCRIPTION
(to be signed only on exercise of Warrant)
TO: THE XXXXXXXX COACH, INC.
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No.____), hereby irrevocably elects to purchase (check applicable
box):
___ ________ shares of the Common Stock covered by such Warrant; or
___ the maximum number of shares of Common Stock covered by such Warrant
pursuant to the cashless exercise procedure set forth in Section 2.
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Warrant, which is
$___________. Such payment takes the form of (check applicable box or
boxes):
___ $__________ in lawful money of the United States; and/or
___ the cancellation of such portion of the attached Warrant as is
exercisable for a total of _______ shares of Common Stock (using a Fair
Market Value of $_______ per share for purposes of this calculation); and/or
___ the cancellation of such number of shares of Common Stock as is
necessary, in accordance with the formula set forth in Section 2, to
exercise this Warrant with respect to the maximum number of shares of Common
Stock purchasable pursuant to the cashless exercise procedure set forth in
Section 2.
The undersigned requests that the certificates for such shares be issued in
the name of, and delivered to
_____________________________________________________ whose address is
_________________________________________________
______________________________________
.
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable upon exercise of the within Warrant
shall be made pursuant to registration of the Common Stock under the
Securities Act of 1933, as amended (the "Securities Act"), or pursuant to an
exemption from registration under the Securities Act.
Dated:___________________
(Signature must conform to name of
holder as specified on the face of the
Warrant)
(Address)
Exhibit B
FORM OF TRANSFEROR ENDORSEMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto the person(s) named below under the heading "Transferees" the
right represented by the within Warrant to purchase the percentage and number
of shares of Common Stock of THE XXXXXXXX COACH, INC. to which the within
Warrant relates specified under the headings "Percentage Transferred" and
"Number Transferred," respectively, opposite the name(s) of such person(s) and
appoints each such person Attorney to transfer its respective right on the
books of THE XXXXXXXX COACH, INC. with full power of substitution in the
premises.
Transferees
Percentage Transferred
Number Transferred
Dated: ______________,
___________
Signed in the presence of:
(Name)
ACCEPTED AND AGREED:
[TRANSFEREE]
(Name)
(Signature must conform to name of holder
as specified on the face of the warrant)
(address)
(address)
(Warrant)
1649403.1 [Lined]
06/18/2001 4:44 PM
