SEMPER FLOWERS, INC. WARRANT Original Issue Date: October 10, 2007
EXHIBIT 4.1
WARRANT
Original
Issue Date: October 10, 2007
THIS
CERTIFIES THAT, FOR VALUE RECEIVED, SICHENZIA XXXX XXXXXXXX XXXXXXX LLP or its registered
assigns (“Holder”) is
entitled to purchase, on the terms and conditions hereinafter set forth, at any
time or from time to time from the date hereof until 5:00 p.m., Eastern Time, on
the 20th
anniversary of the Original Issue Date set forth above, or if such date is not a
day on which the Company (as hereinafter defined) is open for business, then the
next succeeding day on which the Company is open for business (such date is the
“Expiration Date”), but
not thereafter, to purchase an amount of shares of the Common Stock, par value
$0.0001 (the “Common
Stock”), of Semper Flowers, Inc., a Nevada corporation (the “Company”), equal to 15% of the
fully diluted outstanding shares of Common Stock of the Company at the time (and
after giving effect to) the exercise of the Warrant for an aggregate price of
$1.00 in total (the “Exercise
Price”) for all of the Warrant Shares as defined below. Each
share of Common Stock as to which this Warrant is exercisable is a “Warrant Share” and all such
shares are collectively referred to as the “Warrant Shares.” This
Warrant may only be exercised 61 days after the Company undergoes a Change in
Control (as defined below) or implements a Stock Split (as defined
below). In the event that the Company does undergo a Change in
Control, then this Warrant may be exercised at the sole discretion of the Holder
at any time prior to the Expiration Date.
Section
1. Exercise
of Warrant; Conversion of Warrant.
(a) This
Warrant may, at the option of Holder, be exercised in whole or in part from time
to time by delivery to the Company at its principal office, Attention:
President, on or before 5:00 p.m., Eastern Time, on the Expiration Date,
(i) a written notice of such Holder's election to exercise this Warrant
(the “Exercise Notice”),
which notice may be in the form of the Notice of Exercise attached hereto,
properly executed and completed by Holder or an authorized officer thereof,
(ii) a wire transfer or check payable to the order of the Company, in an
amount equal to the Exercise Price or $1.00, and
(iii) this Warrant (the items specified in (i), (ii), and (iii) are
collectively the “Exercise
Materials”).
(b) As
promptly as practicable, and in any event within two (2) business days after its
receipt of the Exercise Materials, Company shall execute or cause to be executed
and delivered to Holder a certificate or certificates representing the number of
Warrant Shares specified in the Exercise Notice and if this Warrant is partially
exercised, a new warrant on the same terms for the unexercised balance of the
Warrant Shares. The stock certificate or certificates shall be
registered in the name of Holder or such other name or names as shall be
designated in the Exercise Notice. The date on which the Warrant
shall be deemed to have been exercised (the “Effective Date”), and the date
the person in whose name any certificate evidencing the Common Stock issued upon
the exercise hereof is issued shall be deemed to have become the holder of
record of such shares, shall be the date the Company receives the Exercise
Materials, irrespective of the date of delivery of a certificate or certificates
evidencing the Common Stock issued upon the exercise or conversion hereof, provided, however, that if the
Exercise Materials are received by the Company on a date on which the stock
transfer books of the Company are closed, the Effective Date shall be the next
succeeding date on which the stock transfer books are open. All shares of
Common Stock issued upon the exercise or conversion of this Warrant will, upon
issuance, be fully paid and nonassessable and free from all taxes, liens, and
charges with respect thereto.
Section
2. No
Stockholder Rights or Liabilities.
This
Warrant shall not entitle Holder hereof to any voting rights or other rights or
liabilities as a stockholder of the Company.
Section
3. Transfer
of Securities.
(a) This
Warrant and the Warrant Shares and any shares of capital stock received in
respect thereof, whether by reason of a stock split or share reclassification
thereof, a stock dividend thereon, or otherwise, shall not be transferable
except upon compliance with the provisions of the Securities Act of 1933, as
amended (the “Securities
Act”) and applicable state securities laws with respect to the transfer
of such securities. The Holder, by acceptance of this Warrant, agrees to
be bound by the provisions of Section 4 hereof and to indemnify and hold
harmless the Company against any loss or liability arising from the disposition
of this Warrant or the Warrant Shares issuable upon exercise hereof or any
interest in either thereof in violation of the provisions of this
Warrant.
(b) Each
certificate for the Warrant Shares and any shares of capital stock received in
respect thereof, whether by reason of a stock split or share reclassification
thereof, a stock dividend thereon or otherwise, and each certificate for any
such securities issued to subsequent transferees of any such certificate shall
(unless otherwise permitted by the provisions hereof) be stamped or otherwise
imprinted with a legend in substantially the following form:
“NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED UNTIL
(I) A REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR
(II) THE COMPANY SHALL HAVE RECEIVED A WRITTEN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES
ACT AND SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.”
Section
4. Miscellaneous.
(a) The
terms of this Warrant shall be binding upon and shall inure to the benefit of
any successors or permitted assigns of the Company and Holder.
(b) Except
as otherwise provided herein, this Warrant and all rights hereunder are
transferable by the registered holder hereof in person or by duly authorized
attorney on the books of the Company upon surrender of this Warrant, properly
endorsed, to the Company. The Company may deem and treat the registered
holder of this Warrant at any time as the absolute owner hereof for all purposes
and shall not be affected by any notice to the contrary.
(c) Notwithstanding
any provision herein to the contrary, Holder may not exercise, sell, transfer,
or otherwise assign this Warrant unless the Company is provided with an opinion
of counsel satisfactory in form and substance to the Company, to the effect that
such exercise, sale, transfer, or assignment would not violate the Securities
Act or applicable state securities laws.
(d) This
Warrant may be divided into separate warrants covering one share of Common Stock
or any whole multiple thereof, for the total number of shares of Common Stock
then subject to this Warrant at any time, or from time to time, upon the request
of the registered holder of this Warrant and the surrender of the same to the
Company for such purpose. Such subdivided Warrants shall be issued
promptly by the Company following any such request and shall be of the same form
and tenor as this Warrant, except for any requested change in the name of the
registered holder stated herein.
(e) Any
notices, consents, waivers, or other communications required or permitted to be
given under the terms of this Warrant must be in writing and will be deemed to
have been delivered (a) upon receipt, when delivered personally, (b) upon
receipt, when sent by facsimile, provided a
copy is mailed by U.S. certified mail, return receipt requested, (c) three (3)
days after being sent by U.S. certified mail, return receipt requested, or (d)
one (1) day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the
same.
If to Holder, to the registered address
of Holder appearing on the books of the Company, or, in the case of the Company,
at the principal offices of the Company. Each party shall provide
five (5) days prior written notice to the other party of any change in address,
which change shall not be effective until actual receipt thereof
(f) All
questions concerning the construction, validity, enforcement and interpretation
of the this Warrant shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the validity, interpretations and enforcement
of this Warrant (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New
York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
borough of Manhattan for the adjudication of any dispute hereunder (including
with respect to the enforcement of this Warrant), and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is improper or inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect pursuant to paragraph (e) above and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. The
parties hereby waive all rights to a trial by jury. If either party
shall commence an action or proceeding to enforce any provisions of this
Warrant, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
(g) Stock
Split is defined as a stock split or subdivision of the outstanding shares of
Common Stock or the determination of holders of Common Stock entitled to receive
a dividend or other distribution payable in additional shares of Common Stock,
or securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as “Common Stock
Equivalents”) without payment of any consideration by such holder for the
additional shares of Common Stock or the Common Stock Equivalents
(h) Change
in Control is defined as the issuance of shares of Common Stock or Common Stock
Equivalents representing 25% of the outstanding shares of Common Stock of the
Company. Such issuance may be one specific issuance or on several
issuance commencing on the Original Issue Date through the Expiration
Date.
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SIGNATURE
PAGE
TO
COMPANY
WARRANT
IN
WITNESS WHEREOF, the Company, has caused this Warrant to be executed in its name
by its duly authorized officers under seal, and to be dated as of the date first
above written.
| SEMPER FLOWERS, INC. | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
|
Name: Xxxxxx
Xxxxxxx
|
|||
| Title: CEO | |||
ASSIGNMENT
(To be
Executed by the Registered Holder to effect a Transfer of the foregoing
Warrant)
FOR VALUE
RECEIVED, the undersigned hereby sells, and assigns and transfers unto
___________________________________________________________________________ the
foregoing Warrant and the rights represented thereto to purchase shares of
Common Stock of _____________________________ in accordance with terms and
conditions thereof, and does hereby irrevocably constitute and appoint
________________ Attorney to transfer the said Warrant on the books of the
Company, with full power of substitution.
Holder:
Address
Dated:
__________________, 20__
EXERCISE
OR CONVERSION NOTICE
[To be
signed only upon exercise of Warrant]
To: _________________________
The
undersigned Holder of the attached Warrant hereby irrevocably elects to exercise
the Warrant for, and to purchase thereunder, _____ shares of Common Stock of
__________________________ issuable upon exercise of said Warrant and hereby
surrenders said Warrant.
The
undersigned herewith requests that the certificates for such shares be issued in
the name of, and delivered to the undersigned, whose address is
________________________________.
If
electronic book entry transfer, complete the following:
Account
Number:
Transaction
Code
Number:
Dated:
___________________
| Holder: | |||
| By: | |||
| Name: | |||
| Title: |
NOTICE
The
signature above must correspond to the name as written upon the face of the
within Warrant in every particular, without alteration or enlargement or any
change whatsoever.
