EXHIBIT 10.80
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE ACT, OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE ISSUER HEREOF, TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
WARRANT TO PURCHASE
COMMON STOCK OF
XXXXX BROTHERS, INC.
Date of Issuance: _________________ Warrant No. __
This certifies that, for value received, XXXXX BROTHERS, INC., a
Delaware corporation (the "Company"), grants to
_________________________________, or registered assigns (the "Registered
Holder"), the right to subscribe for and purchase from the Company, at the price
of $____ per share, as such price may be adjusted from time to time (the
"Exercise Price"), from and after 9:00 a.m., Phoenix time, on the date of
issuance of this Warrant (the "Exercise Commencement Date") and to and including
5:00 p.m., Phoenix time, on _____________ (the "Expiration Date"),
______________ (______) shares, as such number of shares may be adjusted from
time to time (the "Warrant Shares"), of the Company's common stock, par value
$0.01 per share (the "Common Stock"), subject to the provisions and upon the
terms and conditions herein set forth. The Exercise Price and the number of
Warrant Shares purchasable upon exercise of this Warrant are subject to
adjustment from time to time as provided in Section 7 hereof.
Section 1. Registration. The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the "Warrant
Records"), in the name of the Registered Holder. The Company may deem and treat
the Registered Holder as the absolute owner of this Warrant for the purpose of
any exercise hereof or any distribution to the Registered Holder, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
Section 2. Registration of Transfers and Exchanges.
(a) Subject to Section 10 hereof, the Company shall register the transfer
of this Warrant, in whole or in part, upon records to be maintained by the
Company for that purpose, upon surrender of this Warrant, with the Form of
Assignment attached hereto completed and duly endorsed by the Registered Holder,
to the Company at the office specified in or pursuant to Section 3(b). Upon any
such registration of transfer, a new Warrant, in substantially the form of this
Warrant, evidencing the Common Stock purchase rights so transferred shall be
issued to the transferee and a new Warrant, in similar form, evidencing the
remaining Common Stock purchase rights not so transferred, if any, shall be
issued to the Registered Holder.
(b) This Warrant is exchangeable, upon the surrender hereof by the
Registered Holder at the office of the Company specified in or pursuant to
Section 3(b) hereof, for new Warrants, in substantially the form of this Warrant
evidencing, in the aggregate, the right to purchase the number of Warrant Shares
which may then be purchased hereunder, each of such new Warrants to be dated the
date of such exchange and to represent the right to purchase such number of
Warrant Shares as shall be designated by the Registered Holder at the time of
such surrender.
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Section 3. Duration and Exercise of this Warrant.
(a) This Warrant shall be exercisable by the Registered Holder, in its
entirety (and not in part), on any business day before 5:00 p.m., Phoenix time,
during the period beginning on the Exercise Commencement Date and ending on the
Expiration Date. At 5:00 p.m., Phoenix time, on the Expiration Date, this
Warrant, if not previously exercised, shall become void and of no further force
or effect.
(b) Subject to Sections 4 and 10(a) hereof, upon exercise or surrender
of this Warrant, with the Form of Election to Purchase attached hereto completed
and duly endorsed by the Registered Holder, to the Company at its office at 0000
Xxxxx Xx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer, or at such other address as the Company may specify in writing to the
Registered Holder, and upon payment of the Exercise Price multiplied by the
number of Warrant Shares then issuable upon exercise of this Warrant in lawful
money of the United States of America, all as specified by the Registered Holder
in the Form of Election to Purchase, the Company shall promptly issue and cause
to be delivered to or upon the written order of the Registered Holder, and in
such name or names as the Registered Holder may designate, a certificate for the
Warrant Shares issued upon such exercise. Any person so designated in the Form
of Election to Purchase, duly endorsed by the Registered Holder, as the person
to be named on the certificates for the Warrant Shares, shall be deemed to have
become holder of record of such Warrant Shares, evidenced by such certificates,
as of the Date of Exercise (as hereinafter defined) of such Warrant.
(c) The Registered Holder may pay the applicable Exercise Price
pursuant to Section 3(b), at the option of the Registered Holder, either (i) in
cash or by cashier's or certified bank check payable to the Company in an amount
equal to the product of the Exercise Price multiplied by the number of Warrant
Shares then issuable upon exercise of this Warrant (the "Aggregate Exercise
Price"), or (ii) by wire transfer of immediately available funds to the account
which shall be indicated in writing by the Company to the Registered Holder.
(d) The "Date of Exercise" of any Warrant means the date on which the
Company shall have received (i) this Warrant, with the Form of Election to
Purchase attached hereto appropriately completed and duly endorsed, and (ii)
payment in full of the Aggregate Exercise Price as provided herein.
(e) This Warrant shall be exercisable as an entirety only (i.e., for
all of the Warrant Shares which are then issuable hereunder).
Section 4. Payment of Taxes and Expenses.
(a) The Company will pay all expenses and taxes (other than any federal
or state income tax or similar obligations of the Registered Holder) and other
governmental charges attributable to the preparation, execution, issuance and
delivery of this Warrant, any new Warrant and the Warrant Shares; provided,
however, that the Company shall not be required to pay any tax in respect of the
transfer of this Warrant or the Warrant Shares, or the issuance or delivery of
certificates for Warrant Shares upon the exercise of this Warrant, to a person
or entity other than a Registered Holder or an Affiliate (as hereinafter
defined) of such Registered Holder.
(b) An "Affiliate" of any person or entity means any other person or
entity directly or indirectly controlling, controlled by or under direct or
indirect common control with such person or entity.
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Section 5. Mutilated or Missing Warrant Certificate. If this Warrant
shall be mutilated, lost, stolen or destroyed, upon request by the Registered
Holder, the Company will issue, in exchange for and upon cancellation of the
mutilated Warrant, or in substitution for the lost, stolen or destroyed Warrant,
a new Warrant, in substantially the form of this Warrant, of like tenor, but, in
the case of loss, theft or destruction, only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction of this Warrant
and, if requested by the Company, indemnity also reasonably satisfactory to it.
Section 6. Reservation, Listing and Issuance of Warrant Shares.
(a) The Company will at all times have authorized, and reserve and keep
available, free from preemptive rights, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon the exercise of the rights
represented by this Warrant, the number of Warrant Shares deliverable upon
exercise of this Warrant. The Company will, at its expense, use its best efforts
to cause such shares to be included in or listed on (subject to issuance or
notice of issuance of Warrant Shares) all markets or stock exchanges in or on
which the Common Stock is included or listed not later than the date on which
the Common Stock is first included or listed on any such market or exchange and
will thereafter maintain such inclusion or listing of all shares of Common Stock
from time to time issuable upon exercise of this Warrant.
(b) Before taking any action which could cause an adjustment pursuant to
Section 7 hereof reducing the Exercise Price below the par value of the Warrant
Shares, the Company will take any corporate action which may be necessary in
order that the Company may validly and legally issue at the Exercise Price, as
so adjusted, Warrant Shares that are fully paid and non-assessable.
(c) The Company covenants that all Warrant Shares will, upon issuance
in accordance with the terms of this Warrant, be (i) duly authorized, fully paid
and nonassessable, and (ii) free from all taxes with respect to the issuance
thereof and from all liens, charges and security interests.
Section 7. Adjustments of Exercise Price and Number of Warrant Shares.
(a) The Exercise Price at which Warrant Shares may be purchased
hereunder, and the number of Warrant Shares to be purchased upon exercise
hereof, are subject to change or adjustment from time to time as hereinafter
provided. Upon each resulting adjustment of such Exercise Price, the number of
Warrant Shares issuable upon the exercise of this Warrant shall be adjusted to
the nearest full Warrant Share by multiplying a number equal to the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
(b) Subdivisions or Combinations of Stock. In case the Company shall at
any time subdivide the outstanding shares of Common Stock into a greater number
of shares, the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced; and conversely, in case the outstanding shares
of Common Stock shall be combined into a smaller number of shares, the Exercise
Price in effect immediately prior to such combination shall be proportionately
increased.
(c) Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. In case the Company (i) consolidates with or mergers into
any other corporation and is not the continuing or surviving corporation of such
consolidation of merger, or (ii) permits any other corporation to consolidate
with or
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merge into the Company and the Company is the continuing or surviving
corporation but, in connection with such consolidation or merger, the Common
Stock is changed into or exchanged for stock or other securities of any other
corporation or cash or any other assets, or (iii) transfers all or substantially
all of its properties and assets to any other corporation, or (iv) effects a
capital reorganization or reclassification of the capital stock of the Company
in such a way that holders of Common Stock shall be entitled to receive stock,
securities, cash and/or assets with respect to or in exchange for Common Stock,
then, and in each such case, proper provision shall be made so that the
Registered Holder, upon the exercise of this Warrant at any time after the
consummation of such consolidation, merger, transfer, reorganization or
reclassification, shall be entitled to receive (at the aggregate Exercise Price
in effect for all shares of Common Stock issuable upon such exercise immediately
prior to such consummation as adjusted to the time of such transaction), in lieu
of shares of Common Stock issuable upon such exercise prior to such
consummation, the stock and other securities, cash and/or assets to which such
holder would have been entitled upon such consummation if the Registered Holder
had so exercised this Warrant immediately prior thereto (subject to adjustments
subsequent to such corporate action as nearly equivalent as possible to the
adjustments provided for in this Section 7).
(d) Notice of Adjustment. Upon any adjustment of the Exercise Price,
then and in each case the Company shall promptly deliver to the Registered
Holder a certificate of the chief financial officer of the Company which shall
state the Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares of Common Stock purchasable at such
price upon the exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
(e) Other Notices. In case at any time there shall occur any of the
events described in paragraph (c) of this Section 7, then, in each such case the
Company shall give written notice, addressed to the Registered Holder at the
address of such Registered Holder as shown on the books of the Company, of the
date (or, if not then known, a reasonable approximation thereof by the Company)
on which such event or events shall take place. Such notice shall also specify
(or, if not then known, reasonably approximate) the date, if any, as of which
the holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property deliverable upon the occurrence of such
event. Such written notice shall be given at least thirty (30) days prior to the
action in question and not less than thirty (30) days prior to the record date
or the date on which the Company's transfer books are closed in respect thereto.
Such notice shall also state that the action in question or the record date is
subject to the effectiveness of a registration statement under the Act, or to a
favorable vote of stockholders, if either is required.
Section 8. No Rights or Liabilities as a Stockholder. The Registered
Holder shall not be entitled to vote or be deemed the holder of Common Stock or
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained herein be construed to confer upon
the holder of this Warrant, as such, the rights of a stockholder of the Company
or the right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or give or withhold consent to any
corporate action or to receive notice of meetings or other actions affecting
stockholders (except as provided herein), or to receive dividends or
subscription rights or otherwise, until the Date of Exercise shall have
occurred. No provision of this Warrant, in the absence of affirmative action by
the Registered Holder hereof to purchase shares of Common Stock, and no mere
enumeration herein of the rights and privileges of the Registered Holder, shall
give rise to any liability of such holder for the
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Exercise Price or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
Section 9. Fractional Warrant Shares. The Company shall not be required
to issue fractions of Warrant Shares upon exercise of the Warrant or to
distribute certificates which evidence fractional Warrant Shares. If any
fraction of a Warrant Share would, except for the provisions of this Section 9,
be issuable on the exercise of this Warrant, the Company shall pay to the
Registered Holder an amount in cash equal to the fair market value of a Warrant
Share as of the Date of Exercise, multiplied by such fraction. For purposes of
this Section 9, the fair market value of a Warrant Share shall be determined by
the Company's board of directors, in its sole discretion.
Section 10. Transfer Restrictions; Registration of the Warrant and
Warrant Shares.
(a) Neither the Warrant nor the Warrant Shares have been registered under
the Act. The Registered Holder, by acceptance hereof, represents that it is
acquiring this Warrant to be issued to it for its own account and not with a
view to the distribution thereof, and agrees not to sell, transfer, pledge or
hypothecate this Warrant, any purchase rights evidenced hereby or any Warrant
Shares unless a registration statement is effective for this Warrant or the
Warrant Shares under the Act or in the opinion of such Registered Holder's
counsel reasonably satisfactory to the Company, a copy of which opinion shall be
delivered to the Company, such transaction is exempt from the registration
requirements of the Act.
(b) Subject to the provisions of the following paragraph of this
Section 10, each Certificate for Warrant Shares shall be stamped or otherwise
imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE ACT, OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE ISSUER HEREOF, TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
(c) The restrictions and requirements set forth in the foregoing
paragraph shall apply with respect to Warrant Shares unless and until such
Warrant Shares are sold or otherwise transferred pursuant to an effective
registration statement under the Act or are otherwise no longer subject to the
restrictions of the Act, at which time the Company agrees to promptly cause such
restrictive legends to be removed and stop transfer restrictions applicable to
such Warrant Shares to be rescinded.
(d) The Company will use its best efforts to comply with the reporting
requirements of Section 13 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") (whether or not it shall be required to do so pursuant
to such Sections) and will use its best efforts to comply with all other public
information reporting requirements of the Securities and Exchange Commission
(including, without limitation, Rule 144 promulgated under the Act) from time to
time in effect and relating to the availability of an exemption from the Act for
sale of restricted securities. The Company also will cooperate with the
Registered Holder and with each holder of any Warrant Shares in supplying such
information as may be necessary for any such holders to complete and file any
information reporting forms presently or hereafter required by the Securities
and
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Exchange Commission as a condition to the availability of an exemption from the
Act for the sale of restricted securities.
Section 11. Notices. All notices, requests, demands and other
communications relating to this Warrant shall be in writing and shall be deemed
to have been duly given if delivered personally or sent by United States
certified or registered first-class mail, postage prepaid, return receipt
requested, to the parties hereto at the following addresses or at such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
(a) If to the Registered Holder of this Warrant or the holder of the
Warrant Shares, addressed to the address of such Registered Holder or holder as
set forth on books of the Company or otherwise furnished by the Registered
Holder or holder to the Company.
(b) If to the Company, addressed to Xxxxx Brothers, Inc., 0000 Xxxxx Xx
Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer.
Section 12. Binding Effect. This Warrant shall be binding upon and
inure to the sole and exclusive benefit of the Company, its successors and
assigns, and the holder or holders from time to time of this Warrant and the
Warrant Shares.
Section 13. Survival of Rights and Duties. This Warrant shall terminate
and be of no further force and effect on the earlier of (i) 5:00 p.m., Phoenix
time, on the Expiration Date and (ii) the date on which this Warrant and all
purchase rights evidenced hereby have been exercised, except that the provisions
of Sections 4 and 10 hereof shall continue in full force and effect after such
termination date.
Section 14. Governing Law. This Warrant shall be construed in
accordance with and governed by the laws of the State of Arizona.
Section 15. Section Headings. The Section headings in this Warrant are
for purposes of convenience only and shall not constitute a part hereof.
Section 16. Amendment or Waiver. This Warrant and any term hereof may
be amended, waived, discharged or terminated only by and with the written
consent of the Company and the holder of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
under its corporate seal by its officers thereunto duly authorized as of the
date hereof.
XXXXX BROTHERS, INC. ATTEST:
By: __________________________ By: __________________________
Name: Name:
Title: Title:
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FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED UPON EXERCISE OF THIS WARRANT)
TO XXXXX BROTHERS, INC.:
THE UNDERSIGNED, THE RECORD HOLDER OF THIS WARRANT, HEREBY
IRREVOCABLY ELECTS TO EXERCISE THE RIGHT, REPRESENTED BY THIS WARRANT (WARRANT
NO. ___), TO PURCHASE ___________ OF THE WARRANT SHARES AND HEREWITH TENDERS
PAYMENT FOR SUCH WARRANT SHARES TO THE ORDER OF XXXXX BROTHERS, INC. OF
$_________ REPRESENTING THE FULL PURCHASE PRICE FOR SUCH SHARES AT THE PRICE PER
SHARE PROVIDED FOR IN SUCH WARRANT AND THE DELIVERY OF ANY APPLICABLE TAXES
PAYABLE BY THE UNDERSIGNED PURSUANT TO SUCH WARRANT.
THE UNDERSIGNED REQUESTS THAT CERTIFICATES FOR SUCH SHARES BE
ISSUED IN THE NAME OF:
_______________________________ PLEASE INSERT SOCIAL SECURITY
OR TAX IDENTIFICATION NUMBER
-------------------------------
-------------------------------
-------------------------------
------------------------------- ----------------------------------
(PLEASE PRINT NAME AND ADDRESS)
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, _______________________ HEREBY SELLS,
ASSIGNS AND TRANSFERS TO EACH ASSIGNEE SET FORTH BELOW ALL OF THE RIGHTS OF THE
UNDERSIGNED UNDER THE ATTACHED WARRANT (WARRANT NO. _____) WITH RESPECT TO THE
NUMBER OF SHARES OF COMMON STOCK COVERED THEREBY SET FORTH OPPOSITE THE NAME OF
SUCH ASSIGNEE UNTO:
NAME OF ASSIGNEE ADDRESS NUMBER OF SHARES OF
---------------- -------
COMMON STOCK
------------
IF THE TOTAL OF SAID PURCHASE RIGHTS REPRESENTED BY THE
WARRANT SHALL NOT BE ASSIGNED, THE UNDERSIGNED REQUESTS THAT A NEW WARRANT
CERTIFICATE EVIDENCING THE PURCHASE RIGHTS NOT SO ASSIGNED BE ISSUED IN THE NAME
OF AND DELIVERED TO THE UNDERSIGNED.
DATED: ___________________ NAME OF HOLDER (PRINT):
BY: ________________________________
(NAME): ____________________________
(TITLE): _____________________________
