Exhibit 4.2
WARRANT NO. WIP -2
To Purchase 366,667 Shares of Common Stock
of
EL CAPITAN PRECIOUS METALS, INC.
(a Nevada corporation)
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This Warrant and the Securities issuable upon exercise of this Warrant
have not been registered under the Securities Act of 1933 (the "1933 Act") or
under any state securities or "Blue Sky" laws ("Blue Sky Laws"). No transfer,
sale, assignment, pledge, hypothecation or other disposition of this Warrant or
the Securities issuable upon exercise of this Warrant or any interest therein
may be made except (a) pursuant to an effective registration statement under the
1933 Act and any applicable Blue Sky Laws or (b) if the Corporation has been
furnished with an opinion of counsel for the holder, which opinion and counsel
shall be reasonably satisfactory to the Corporation, to the effect that no
registration is required because of the availability of an exemption from
registration under the 1933 Act and applicable Blue Sky laws.
THIS CERTIFIES THAT, for good and valuable consideration Whitebox
Intermarket Partners, L.P., a British Virgin Islands limited partnership (the
"Holder"), or the Holder's registered assigns, is entitled to subscribe for and
purchase from El Capitan Precious Metals, Inc., a Nevada corporation (the
"Corporation"), at any time on or after January 20, 2006, to and including
January 20, 2011 (subject to the limitations provided in Section 10 below),
366,667 fully paid and nonassessable shares of Common Stock of the Corporation
at the price of $0.60 per share (the "Warrant Exercise Price"), subject to the
anti-dilution and price protection provisions of this Warrant.
The shares which may be acquired upon exercise of this Warrant are
referred to herein as the "Warrant Shares." As used herein, the term "Holder"
means the Holder, any party who acquires all or a part of this Warrant as a
registered transferee of the Holder, or any record holder or holders of the
Warrant Shares issued upon exercise, whether in whole or in part, of the
Warrant. The term "Common Stock" means the common stock, $0.001 par value per
share, of the Corporation. Capitalized terms used herein, which are not
otherwise defined herein, shall have the meanings as set forth in the Purchase
Agreement dated October 28, 2005 between the Corporation and the Holder.
This Warrant is subject to the following provisions, terms and conditions:
1. Exercise; Transferability.
(a) The rights represented by this Warrant may be exercised by the Holder
hereof, in whole or in part (but not as to a fractional share of Common Stock),
by written notice of exercise (in the form attached hereto) delivered to the
Corporation at the principal office of the Corporation prior to the expiration
of this Warrant and accompanied or preceded by the surrender of this Warrant
along with a check in payment of the Warrant Exercise Price for such Warrant
Shares.
(b) Except as provided in Section 7 hereof, this Warrant may not be sold,
transferred, assigned, hypothecated or divided into two or more Warrants of
smaller denominations, nor may any Warrant Shares issued pursuant to exercise of
this Warrant be transferred. In no event may this Warrant be transferred and
divided (without any exercise hereof) into any denomination(s) of less than 100
Warrant Shares.
2. Exchange and Replacement. Subject to Sections 1 and 7 hereof, this Warrant is
exchangeable upon the surrender hereof by the Holder to the Corporation at its
office for new Warrants of like tenor and date representing in the aggregate the
right to purchase the number of Warrant Shares purchasable hereunder, each of
such new Warrants to represent the right to purchase such number of Warrant
Shares (not to exceed the aggregate total number purchasable hereunder) as shall
be designated by the Holder at the time of such surrender. Upon receipt by the
Corporation of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
surrender and cancellation of this Warrant, if mutilated, the Corporation will
make and deliver a new Warrant of like tenor, in lieu of this Warrant. This
Warrant shall be promptly canceled by the Corporation upon the surrender hereof
in connection with any exchange or replacement. The Corporation shall pay all
expenses, taxes (other than stock transfer taxes), and other charges payable in
connection with the preparation, execution, and delivery of Warrants pursuant to
this Section 2.
3. Issuance of the Warrant Shares.
(a) The Corporation agrees that the Warrant Shares shall be and are deemed
to be issued to the Holder as of the close of business on the date on which this
Warrant shall have been surrendered and the payment made for such Warrant Shares
as aforesaid. Subject to the provisions of paragraph (b) of this Section 3,
certificates for the Warrant Shares so purchased shall be delivered to the
Holder within a reasonable time after the rights represented by this Warrant
shall have been so exercised, and, unless this Warrant has expired, a new
Warrant representing the right to purchase the number of Warrant Shares, if any,
with respect to which this Warrant shall not then have been exercised shall also
be delivered to the Holder.
(b) Notwithstanding the foregoing, however, the Corporation shall not be
required to deliver any certificate for Warrant Shares upon exercise of this
Warrant except in accordance with exemptions from the applicable securities
registration requirements or registrations under applicable securities laws.
Except as described in Section 9, nothing herein shall obligate the Corporation
to effect registrations under federal or state securities laws. If registrations
are not in effect and if exemptions are not available when the Holder seeks to
exercise the Warrant, the Warrant exercise period will be extended, if need be,
to prevent the Warrant from expiring, until such time as either registrations
become effective or exemptions are available, and the Warrant shall then remain
exercisable for a period of at least 30 calendar days from the date the
Corporation delivers to the Holder written notice of the availability of such
registrations or exemptions. The Holder agrees to execute such documents and
make such representations, warranties and agreements as may be required solely
to comply with the exemptions relied upon by the Corporation, or the
registrations made, for the issuance of the Warrant Shares.
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4. Covenants of the Corporation. The Corporation covenants and agrees that all
Warrant Shares will, upon issuance pursuant to the terms hereof, be duly
authorized and issued, fully paid, non-assessable and free from all taxes, liens
and charges with respect to the issue thereof. The Corporation further covenants
and agrees that during the period within which the rights represented by this
Warrant may be exercised, the Corporation will at all times have authorized and
reserved for the purpose of issue or transfer upon exercise of the subscription
rights evidenced by this Warrant a sufficient number of shares of Common Stock
to provide for the exercise of the rights represented by this Warrant.
5. Anti-dilution Adjustments. The provisions of this Warrant are subject to
adjustment as provided in this Section 5.
(a) Stock Splits, Dividends and Combinations. The Warrant Exercise Price
shall be adjusted from time to time such that in case the Corporation shall
hereafter:
(i) pay any dividends on any class of stock of the Corporation
payable in Common Stock or securities convertible into Common Stock;
(ii) subdivide its then outstanding shares of Common Stock into a
greater number of shares; or
(iii) combine outstanding shares of Common Stock, by
reclassification or otherwise;
then, in any such event, the Warrant Exercise Price in effect immediately prior
to such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full cent)
determined by dividing (A) the number of shares of Common Stock outstanding
immediately prior to such event, multiplied by the then existing Warrant
Exercise Price, by (B) the total number of shares of Common Stock outstanding
immediately after such event (including in each case the maximum number of
shares of Common Stock issuable in respect of any securities convertible into
Common Stock), and the resulting quotient shall be the adjusted Warrant Exercise
Price per share. An adjustment made pursuant to this Subsection shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If, as a result of
an adjustment made pursuant to this Subsection, the Holder of any Warrant
thereafter surrendered for exercise shall become entitled to receive shares of
two or more classes of capital stock or shares of Common Stock and other capital
stock of the Corporation, the Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted Warrant Exercise
Price between or among shares of such classes of capital stock or shares of
Common Stock and other capital stock. All calculations under this Subsection
shall be made to the nearest cent or to the nearest 1/100 of a share, as the
case may be. In the event that at any time as a result of an adjustment made
pursuant to this Subsection, the holder of any Warrant thereafter surrendered
for exercise shall become entitled to receive any shares of the Corporation
other than shares of Common Stock, thereafter the Warrant Exercise Price of such
other shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in this
Section.
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(b) Mechanics of Adjustment for Stock Splits, Dividends and Combinations.
Upon each adjustment of the Warrant Exercise Price pursuant to Section 5(a)
above, the Holder of each Warrant shall thereafter (until another such
adjustment) be entitled to purchase at the adjusted Warrant Exercise Price the
number of shares, calculated to the nearest full share, obtained by multiplying
the number of shares specified in such Warrant (as adjusted as a result of all
adjustments in the Warrant Exercise Price in effect prior to such adjustment) by
the Warrant Exercise Price in effect prior to such adjustment and dividing the
product so obtained by the adjusted Warrant Exercise Price.
(c) Consolidations, Mergers and Reorganization Events. In case of any
consolidation or merger to which the Corporation is a party other than a merger
or consolidation in which the Corporation is the continuing corporation, or in
case of any sale, transfer or other disposition to another corporation of all or
substantially all of the assets of the Corporation, or in the case of any
statutory exchange of securities with another corporation (including any
exchange effected in connection with a merger of a third corporation into the
Corporation), there shall be no adjustment under Subsection (a) of this Section
5; but the Holder of each Warrant then outstanding shall have the right
thereafter to convert such Warrant into the kind and amount of shares of stock
and other securities and property which the Holder would have owned or have been
entitled to receive immediately after such consolidation, merger, statutory
exchange, sale or transfer had such Warrant been converted immediately prior to
the effective date of such consolidation, merger, statutory exchange, sale or
transfer and, in any such case, if necessary, appropriate adjustment shall be
made in the application of the provisions set forth in this Section with respect
to the rights and interests thereafter of any Holders of the Warrant, to the end
that the provisions set forth in this Section shall thereafter correspondingly
be made applicable, as nearly as may reasonably be, in relation to any shares of
stock and other securities and property thereafter deliverable on the exercise
of the Warrant. The provisions of this Subsection shall similarly apply to
successive consolidations, mergers, statutory exchanges, sales or transfers.
(d) Adjustments for Diluting Issues. In addition to the adjustments of the
Warrant Exercise Price provided above, the Warrant Exercise Price shall be
subjected to further adjustment from time to time as follows (the main operative
provision hereof is in Section 5(d)(iii) below):
(i) Special Definitions:
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(A) "Options" shall mean rights, options or warrants (other
than as excluded by Section 5(d)(i)(D) below) to subscribe for, purchase or
otherwise acquire either Common Stock or Convertible Securities (as defined
herein).
(B) "Original Issue Date" shall mean the date hereof.
(C) "Convertible Securities" shall mean securities (other than
as excluded by Section 5(d)(i)(D) below) convertible, either directly or
indirectly, into or exchangeable for Common Stock.
(D) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued (or, deemed to be issued) by the Corporation after the
Original Issue Date other than shares of Common Stock issued (or deemed to be
issued):
1. to employees, consultants or directors pursuant to
stock option, stock grant, stock purchase or similar plans or arrangements
approved by the Corporation's Board of Directors;
2. as a dividend or other distribution in connection
with which an adjustment to the Warrant Exercise Price is made;
3. in a merger, consolidation, acquisition or similar
business combination that is approved by the Corporation's Board of Directors;
4. pursuant to credit, lease or other commercial
financing arrangements with parties not affiliated with the Corporation that are
approved by the Corporation's Board of Directors;
5. in exchange for technology or other non-cash assets
as approved by the Corporation's Board of Directors;
6. pursuant to any rights or agreements outstanding on
the Original Issue Date; or
7. if the Holder agrees in writing that such shares
shall not constitute Additional Shares of Common Stock.
(ii) Deemed Issue of Additional Shares of Common Stock. Except as
otherwise provided in Section 5(d), in the event the Corporation at any time or
from time to time after the Original Issue Date shall issue any Options or
Convertible Securities or shall fix a record date for the determination of any
holders of any class of securities entitled to receive any such Options or
Convertible Securities, then the maximum number of shares (as set forth in the
instrument relating thereto without regard to any provisions contained therein
for a subsequent adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible Securities, shall be
deemed to be Additional Shares of Common Stock issued as of the time of such
issue or, in case such record date shall have been fixed, as of the close of
business on such record date, provided that in any such case in which Additional
Shares of Common Stock are deemed to be issued:
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(A) no further adjustment in the Warrant Exercise Price shall
be made upon the subsequent issue of such Convertible Securities or shares of
Common Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(B) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or decrease in
the consideration payable to the Company, or increase or decrease in the number
of shares of Common Stock issuable upon the exercise, conversion or exchange
thereof, the Warrant Exercise Price computed upon the original issue thereof or
upon the occurrence of a record date with respect thereto, and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease;
(C) upon the expiration of any such Option or any rights of
conversion or exchange under such Convertible Securities which shall not have
been exercised, the Warrant Exercise Price computed upon the original issue
thereof or upon occurrence of a record date with respect thereto, and any
subsequent adjustments based thereon, shall, upon such expiration:
1. in the case of Convertible Securities or Options for
Common Stock, be recomputed as though the only Additional Shares of Common Stock
issued were shares of Common Stock, if any, actually issued upon the exercise of
such Options or the conversion or exchange of such Convertible Securities, and
the consideration received therefor was the consideration actually received by
the Company for the issue of all such Options, whether or not exercised, plus
the consideration actually received by the Company upon such exercise, or for
the issue of all such Convertible Securities, whether or not converted or
exchanged, plus the additional consideration, if any, actually received by the
Company upon such conversion or exchange; and
2. in the case of Options for Convertible Securities, be
recomputed as though only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such Options and
the consideration received by the Company for the Additional Shares of Common
Stock deemed to have been then issued was the consideration actually received by
the Company for the issue of all such Options, whether or not exercised, plus
the consideration deemed to have been received by the Company upon the issue of
the Convertible Securities with respect to which such Options were actually
exercised.
(D) no readjustment pursuant to Section 5(d) shall have the
effect of increasing the Warrant Exercise Price to an amount which exceeds the
Warrant Exercise Price existing immediately prior to the original adjustment
with respect to the issuance of such Options or Convertible Securities, as
adjusted for any Additional Shares of Common Stock issued (or deemed to be
issued) between such original adjustment date and such readjustment date; and
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(E) in the case of any Option or Convertible Security with
respect to which the maximum number of shares of Common Stock issuable upon
exercise or conversion or exchange thereof is not determinable, no adjustment to
the Warrant Exercise Price shall be made until such number becomes determinable.
(iii) Adjustments for Issuance of Additional Shares of Common Stock.
If the Company, at any time after the issuance of this Warrant, shall issue any
Additional Shares of Common Stock (otherwise than as provided in the Sections
5(a) and 5(c) above) at a price per share less than the applicable Warrant
Exercise Price then in effect or without consideration, then the applicable
Warrant Exercise Price upon each such issuance shall be adjusted to that price
(rounded to the nearest cent) determined by multiplying the applicable Warrant
Exercise Price then in effect by a fraction, (i) the numerator of which shall be
equal to the sum of (A) the number of shares of Common Stock outstanding
immediately prior to the issuance of such Additional Shares of Common Stock plus
(B) the number of shares of Common Stock (rounded to the nearest whole share)
which the aggregate consideration for the total number of such Additional Shares
of Common Stock so issued would purchase at a price per share equal to the
applicable Warrant Exercise Price then in effect, and (ii) the denominator of
which shall be equal to the number of shares of Common Stock outstanding
immediately after the issuance of such Additional Shares of Common Stock.
The provisions of this Section 5(d)(iii) shall not apply under any
of the circumstances for which an adjustment is provided in Sections 5(a), 5(b)
or 5(c) above. No adjustment of the applicable Warrant Exercise Price shall be
made under this Section 5(d) upon the issuance of any Additional Shares of
Common Stock which are issued pursuant to any Options or Convertible Securities
if upon the issuance of such Options or Convertible Securities (x) any
adjustment shall have been made pursuant to Section 5(d)(ii) above or (y) no
adjustment was required pursuant to this Section 5(d)(iii). No adjustment of the
applicable Warrant Exercise Price shall be made under this Section 5(d)(iii) in
an amount less than $.01 per share, but any such lesser adjustment shall be
carried forward and shall be made at the time and together with the next
subsequent adjustment, if any, which together with any adjustments so carried
forward shall amount to $.01 per share or more; provided, however, that upon any
adjustment of the applicable Warrant Exercise Price as a result of any dividend
or distribution payable in Common Stock or Convertible Securities or the
reclassification, subdivision or combination of Common Stock into a greater or
smaller number of shares, the foregoing figure of $.01 per share (or such figure
as last adjusted) shall be adjusted (to the nearest one-half cent) in proportion
to the adjustment in the applicable Warrant Exercise Price.
(iv) Determination of Consideration. For purposes of this Section
5(d), the consideration received by the Corporation for any Additional Shares of
Common Stock issued (or deemed to be issued) shall be computed as follows:
(A) Cash and Property. Such consideration shall:
(1) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Company;
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(2) insofar as it consists of securities and the value
of such securities is not determinable by reference to a separate agreement, (A)
if the securities are then traded on a national securities exchange or the
Nasdaq Stock Market (or a similar national quotation system), then the value
shall be computed based on the average of the closing prices of the securities
on such exchange or system over the thirty (30)-day period ending on the date of
receipt by the Corporation, (B) if the securities are actively traded
over-the-counter, then the value shall be computed based on the average of the
closing bid prices over the thirty (30) day ending on the date of receipt by the
Corporation, and (C) if there is no active public market, then the value shall
be computed based on the fair market value thereof on the date of receipt by the
Corporation, as determined in good faith by the Board of Directors;
(3) insofar as it consists of property other than cash
and securities, be computed at the fair market value thereof at the time of such
issuance, as determined in good faith by the Board of Directors; and
(4) if Additional Shares of Common Stock are issued (or
deemed to be issued) together with other shares or securities or other assets of
the Corporation for consideration which cover both, by the proportion of such
consideration so received, computed as provided in the immediately preceding
Sections 5(d)(iv)(A)(1), 5(d)(iv)(A)(2) and 5(d)(iv)(A)(3), as determined in
good faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration
received by the Corporation for Additional Shares of Common Stock deemed to have
been issued pursuant to Section 5(d) relating to Option and Convertible
Securities, shall be the sum of (x) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of such Options or
Convertible Securities, plus (y) the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities.
(e) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Warrant Exercise Price or the number of Warrants covered
hereby pursuant to this Section 5, the Corporation, 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 Corporation shall, upon the written request at any
time of the Holder, furnish or cause to be furnished to the Holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Warrant 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.
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6. No Voting Rights. This Warrant shall not entitle the Holder to any voting
rights or other rights as a stockholder of the Corporation.
7. Notice of Transfer of Warrant or Resale of the Warrant Shares.
(a) Subject to the sale, assignment, hypothecation or other transfer
restrictions set forth in Section 3 hereof, the Holder, by acceptance hereof,
agrees to give written notice to the Corporation before transferring this
Warrant or transferring any Warrant Shares of such Xxxxxx's intention to do so,
describing briefly the manner of any proposed transfer. Promptly upon receiving
such written notice, the Corporation shall present copies thereof to the
Corporation's counsel. If in the opinion of such counsel the proposed transfer
may be effected without registration or qualification (under any federal or
state securities laws), the Corporation, as promptly as practicable, shall
notify the Holder of such opinion, whereupon the Holder shall be entitled to
transfer this Warrant or to dispose of Warrant Shares received upon the previous
exercise of this Warrant, all in accordance with the terms of the notice
delivered by the Holder to the Corporation; provided that an appropriate legend
may be endorsed on this Warrant or the certificates for such Warrant Shares
respecting restrictions upon transfer thereof necessary or advisable in the
opinion of counsel and satisfactory to the Corporation to prevent further
transfers which would be in violation of Section 5 of the 1933 Act and
applicable state securities laws; and provided further that the prospective
transferee or purchaser shall execute such documents and make such
representations, warranties and agreements as may be required solely to comply
with the exemptions relied upon by the Corporation for the transfer or
disposition of the Warrant or Warrant Shares.
(b) If, in the opinion of the Corporation's counsel, the proposed transfer
or disposition of this Warrant or such Warrant Shares described in the written
notice given pursuant to this Section 7 may not be effected without registration
or qualification of this Warrant or such Warrant Shares, the Corporation shall
promptly give written notice thereof to the Holder, and the Holder will limit
its activities in respect to such transfer or disposition as, in the opinion of
such counsel, are permitted by law.
8. Fractional Shares. Fractional shares shall not be issued upon the exercise of
this Warrant, but in any case where the holder would, except for the provisions
of this Section, be entitled under the terms hereof to receive a fractional
share, the Corporation shall, upon the exercise of this Warrant for the largest
number of whole shares then called for, pay a sum in cash equal to the sum of
(a) the excess, if any, of the Market Price of such fractional share over the
proportional part of the Warrant Exercise Price represented by such fractional
share, plus (b) the proportional part of the Warrant Exercise Price represented
by such fractional share. For purposes of this Section, the term "Market Price"
with respect to shares of Common Stock of any class or series means the last
reported sale price or, if none, the average of the last reported closing bid
and asked prices on any national or regional securities exchange or quoted in
the National Association of Securities Dealers, Inc.'s Automated Quotations
System ("Nasdaq"), or if not listed on a national or regional securities
exchange or quoted in Nasdaq, the average of the last reported closing bid and
asked prices as reported by xxxxxxxxx.xxx (or if this service is discontinued,
such other reporting service acceptable to the Holder), or if no quotations in
such Common Stock are available, the fair market value of the shares as
determined in good faith by the Board of Directors of the Corporation.
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9. Registration Rights. Holder shall have registration rights for the Warrant
Shares as described in the Registration Rights Agreement dated October 28, 2005.
10. Limitation of Exercise of this Warrant. Despite anything to the contrary in
this Warrant, the Holder may not exercise this Warrant during the time period
and to the extent that the shares of Common Stock that the Holder could acquire
upon the exercise hereof would cause Holder's Beneficial Ownership (as defined
below) of the Corporation's Common Stock to exceed 4.99%. These limitations on
the right to exercise this Warrant, the Warrant issued to Holder on the First
Closing Date (and any similar limitations set forth in other warrants issued to
the Holder) shall first reduce, in the priority determined by Holder in its sole
discretion, the Holder's Beneficial Ownership of the Corporation's Common Stock
before limitation of the Holder's conversion rights, or the Corporation's right
to make payments in Common Stock, under the Note dated of even date herewith and
the Secured Convertible Promissory Note dated October 28, 2005. The parties
shall compute the Holder's "Beneficial Ownership" of Common Stock in accordance
with U.S. Securities and Exchange Commission Rule 13d-3. The Holder will, at the
request of the Corporation, from time to time, notify the Corporation of the
Holder's computation of Xxxxxx's Beneficial Ownership. By written notice to the
Corporation, the Holder may waive the provisions of this Section 10, but any
such waiver will not be effective until the 61st day after delivery thereof.
11. No Waiver by Xxxxxx. Neither the consummation of the Second Closing nor any
representation, warranty or covenant contained in this Warrant or any
certificate, document or other writing delivered in connection with the Second
Closing shall be construed as a waiver by Holder of any of its rights under the
Transaction Documents or a consent by Holder of an extension of Corporation's
registration obligations under the Registration Rights Agreement.
IN WITNESS WHEREOF, El Capitan Precious Metals, Inc. has caused this
Warrant to be signed by its duly authorized officer and this Warrant to be dated
January 20, 2006.
EL CAPITAN PRECIOUS METALS, INC.
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President and
Chief Financial Officer
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EXERCISE FORM
(To Be Executed by the Registered Holder in Order to Exercise the Warrant)
To: El Capitan Precious Metals, Inc.
The undersigned hereby irrevocably elects to exercise the attached Warrant to
purchase for cash, ________________ of the shares issuable upon the exercise of
such Warrant, and requests that certificates for such shares (together with a
new Warrant to purchase the number of shares, if any, with respect to which this
Warrant is not exercised) shall be issued in the name of:
NAME:
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SOC. SEC. or
TAX I.D. NO.
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ADDRESS:
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Date: _________, 20__. ---------------------------------------------
Signature *
* The signature on the Notice of Exercise of Warrant must correspond to
the name as written upon the face of the Warrant in every particular
without alteration or enlargement or any change whatsoever. When
signing on behalf of a corporation, partnership, trust or other entity,
please indicate your position(s) and title(s) with such entity.
ASSIGNMENT FORM
(To be Executed by the Registered Holder in Order to Transfer the Warrant)
To: El Capitan Precious Metals, Inc.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
unto ______________________________ the right to purchase the securities of El
Capitan Precious Metals, Inc. to which the within Warrant relates and appoints
_______________________, attorney, to transfer said right on the books of El
Capitan Precious Metals, Inc. with full power of substitution in the premises.
Date: _________, 20__. ---------------------------------------------
