WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER EITHER
THE SECURITIES ACT OF 1933 (THE "ACT") OR APPLICABLE STATE
SECURITIES LAWS (THE "STATE ACTS") AND SHALL NOT BE SOLD,
PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE TRANSFERRED
(WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER EXCEPT UPON
THE ISSUANCE TO THE COMPANY OF FAVORABLE OPINION OF COUNSEL
OR SUBMISSION TO THE COMPANY OF SUCH EVIDENCE AS MAY BE
SATISFACTORY TO COUNSEL TO THE COMPANY, IN EACH SUCH CASE,
TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN
VIOLATION OF THE ACT AND THE STATE ACTS.
WARRANT TO PURCHASE 714,300 SHARES OF COMMON STOCK
XXXXXXX-XXXX GOLD COMPANY, INC.
(A Nevada Corporation)
Not Transferable or Exercisable Except
upon Conditions Herein Specified
Void after 5:00 O'Clock P.M.,
Pacific Time, on December 31, 1999
Xxxxxxx-Xxxx Gold Company, Inc., a Nevada corporation (the "Company")
hereby certifies that the Xxxxx Xxxxxxx Xxxx Trust or registered successors and
permitted assigns thereof, registered on the books of the Company maintained for
such purposes as the registered holder hereof (the "Holder"), for value
received, is entitled to purchase from the Company the number of fully paid and
non-assessable shares of Common Stock of the Company, of the par value of $.001
per share (the "Shares"), stated above at the purchase price per Share set forth
below (the "Exercise Price") (the number of Shares and Exercise Price being
subject to adjustment as hereinafter provided) upon the terms and conditions
herein provided. Through December 31, 1999, the Exercise Price is $.14 per
share.
1. Exercise of Warrant.
(a) Subject to subsection (b) of this Section 1, upon presentation and
surrender of this Warrant, with the attached Purchase Form duly executed, at the
principal office of the Company at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 Xxxxx
x'Xxxxx, Xxxxx 00000, or at such other place as the Company may designate by
notice to the Holder hereof, together with a certified or bank cashier's check
payable to the order of the Company in the amount of the Exercise Price times
the number of Shares being purchased, the Company shall deliver to the Holder
hereof, as promptly as practicable, certificates representing the Shares being
purchased. This Warrant may be exercised in whole or in part; and, in case of
exercise hereof in part only, the Company, upon surrender hereof, will deliver
to the Holder a new Warrant or Warrants of like tenor entitling the Holder to
purchase the number of Shares as to which this Warrant has not been exercised.
(b) This Warrant may be exercised in whole or in part at any time
prior to 5:00 o'clock P.M. Pacific Time, on December 31, 1999.
2. Exchange and Transfer of Warrant. This Warrant at any time prior to the
exercise hereof, upon presentation and surrender to the Company, may be
exchanged, alone or with other Warrants of like tenor registered in the name of
the Holder, for another Warrant or other Warrants of like tenor in the name of
such Holder exercisable for the same aggregate number of Shares as the Warrant
or Warrants surrendered.
3. Rights and Obligations of Warrant Holder.
(a) The Holder of this Warrant shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or in
equity; provided, however, in the event that any certificate representing the
Shares is issued to the Holder hereof upon exercise of this Warrant, such Holder
shall, for all purposes, be deemed to have become the holder of record of such
Shares on the date on which this Warrant, together with a duly executed Purchase
Form, was surrendered and payment of the Exercise Price was made, irrespective
of the date of delivery of such Share certificate. The rights of the Holder of
this Warrant are limited to those expressed herein and the Holder of this
Warrant, by its acceptance hereof, consents to and agrees to be bound by and to
comply with all the provisions of this Warrant, including, without limitation,
all the obligations imposed upon the Holder hereof by Section 5 hereof. In
addition, the Holder of this Warrant Certificate, by accepting the same, agrees
that the Company may deem and treat the person in whose name this Warrant is
registered on the books of the Company maintained for such purpose as the
absolute, true and lawful owner for all purposes whatsoever, notwithstanding any
notation of ownership or other writing thereon, and the Company shall not be
affected by any notice to the contrary.
(b) No Holder of this Warrant, as such, shall be entitled to vote or
receive dividends or to be deemed the holder of Shares for any purpose, nor
shall anything contained in this Warrant be construed to confer upon any Holder
of this Warrant, as such, any of the rights of a stockholder of the Company or
any right to vote, give or withhold consent to any action by the Company,
whether upon any recapitalization, issue of stock, reclassification of stock,
consolidation, merger, conveyance or otherwise, receive notice of meetings or
other action affecting stockholders (except for notices provided for herein),
receive dividends, subscription rights, or otherwise, until this Warrant shall
have been exercised and the Shares purchasable upon the exercise thereof shall
have become deliverable as provided herein; provided, however, that any such
exercise on any date when the stock transfer books of the Company shall be
closed shall constitute the person or persons in whose name or names the
certificate or certificates for those Shares are to be issued as the record
holder or holders thereof for all purposes at the opening of business on the
next succeeding day on which such stock transfer books are open, and the Warrant
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surrendered shall not be deemed to have been exercised, in whole or in part as
the case may be, until the next succeeding day on which stock transfer books are
open for the purpose of determining entitlement to dividends on the Company's
common stock.
4. Shares Underlying Warrant. The Company covenants and agrees that all
Shares delivered upon exercise of this Warrant shall, upon delivery and payment
therefor, be duly and validly authorized and issued, fully paid and
non-assessable, and free from all stamp-taxes, liens, and charges with respect
to the purchase thereof. In addition, the Company agrees at all time to reserve
and keep available an authorized number of Shares sufficient to permit the
exercise in full of this Warrant.
5. Disposition of Warrant or Shares.
(a) The holder of this Warrant and any transferee hereof or of the
Shares issuable upon the exercise of this Warrant, by their acceptance hereof,
hereby understand and agree that the Warrant, and the Shares issuable upon the
exercise hereof, have not been registered under either the Securities Act of
1933 (the "Act") or applicable state securities laws (the "State Acts") and
shall not be sold, pledged, hypothecated, donated, or otherwise transferred
(whether or not for consideration) except upon the issuance to the Company of a
favorable opinion of counsel or submission to the Company of such evidence as
may be satisfactory to counsel to the Company, in each such case, to the effect
that any such transfer shall not be in violation of the Act and the State Acts.
It shall be a condition to the transfer of this Warrant that any transferee
hereof deliver to the Company its written agreement to accept and be bound by
all of the terms and conditions of this Warrant.
(b) The stock certificates of the Company that will evidence the
shares of Common Stock with respect to which this Warrant may be exercisable
will be imprinted with a conspicuous legend in substantially the following form:
The shares represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act") or
applicable state securities laws (the "State Acts") and shall not
be sold, pledged, hypothecated, donated or otherwise transferred
(whether or not for consideration) by the holder except upon the
issuance to the Company of a favorable opinion of its counsel or
submission to the Company of such other evidence as may be
satisfactory to counsel to the Company, in each such case, to the
effect that any such transfer shall not be in violation of the
Act and the State Acts.
The Company has not agreed to register any of the holder's Shares for
distribution in accordance with the provisions of the Act or the State Acts and,
the Company has not agreed to comply with any exemption from registration under
the Act or the State Acts for the resale of the holder's Shares. Hence, it is
the understanding of the holders of this Warrant that by virtue of the
provisions of certain rules respecting "restricted securities" promulgated by
the SEC, the shares of Common Stock of the Company with respect to which this
Warrant may be exercisable may be required to be held indefinitely, unless and
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until registered under the Act and the State Acts, unless an exemption from such
registration is available, in which case the holder may still be limited as to
the number of shares of Common Stock of the Company with respect to which this
Warrant may be exercised that may be sold.
6. Adjustments. The number of Shares purchasable upon the exercise of this
Warrant is subject to adjustment from time to time upon the occurrence of any of
the events enumerated below.
(a) In case the Company shall: (i) pay a dividend in Shares, (ii)
subdivide its outstanding Shares into a greater number of Shares, (iii) combine
its outstanding Shares into a smaller number of Shares, or (iv) issue, by
reclassification of its Shares, any shares of its capital stock, the amount of
Shares purchasable upon the exercise of this Warrant immediately prior thereto
shall be adjusted so that the Holder shall be entitled to receive upon exercise
of this Warrant that number of Shares which such Holder would have owned or
would have been entitled to receive after the happening of such event had such
Holder exercised this Warrant immediately prior to the record date, in the case
of such dividend, or the effective date, in the case of any such subdivision,
combination or reclassification. An adjustment made pursuant to this subsection
(a) shall be made whenever any of such events shall occur, but shall become
effective retroactively after such record date or such effective date, as the
case may be, as to any exercise between such record date or effective date and
the date of happening of any such event.
(b) Notice to Warrant Holders of Adjustment. Whenever the number of
Shares purchasable hereunder is adjusted as herein provided, the Company shall
cause to be mailed to the Holder in accordance with the provisions of this
Section 6 a notice (i) stating that the number of Shares purchasable upon
exercise of this Warrant have been adjusted, (ii) setting forth the adjusted
number of Shares purchasable upon the exercise of this Warrant, and (iii)
showing in reasonable detail the computations and the facts, including the
amount of consideration received or deemed to have been received by the Company,
upon which such adjustments are based.
7. Fractional Shares. The Company shall not be required to issue any
fraction of a Share upon the exercise of this Warrant. If more than one Warrant
shall be surrendered for exercise at one time by the same Holder, the number of
full Shares which shall be issuable upon exercise thereof shall be computed on
the basis of the aggregate number of Shares with respect to which this Warrant
is exercised. If any fractional interest in a Share shall be deliverable upon
the exercise of this Warrant, the Company shall make an adjustment therefor in
cash equal to such fraction multiplied by the Exercise Price.
8. Loss or Destruction. Upon receipt of evidence 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, upon delivery of an indemnity
agreement or bond satisfactory in form, substance and amount to the Company or,
in the case of any such mutilation, upon surrender and cancellation of this
Warrant, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
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9. Survival. The various rights and obligations of the Holder hereof as set
forth herein shall survive the exercise of the Warrant represented hereby and
the surrender of this Warrant.
10. Notices. Whenever any notice, payment of any purchase price, or other
communication is required to be given or delivered under the terms of this
Warrant, it shall be in writing and delivered by hand delivery or United States
registered or certified mail, return receipt requested, postage prepaid, and
will be deemed to have been given or delivered on the date such notice, purchase
price or other communication is so delivered or posted, as the case may be; and,
if to the Company, it will be addressed to the address specified in Section 1
hereof, and if to the Holder, it will be addressed to the registered Holder at
its, his or her address as it appears on the books of the Company.
XXXXXXX-XXXX GOLD COMPANY, INC.
By
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Xxxxxx Xxxxxxx, Chief Executive Officer
Date
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PURCHASE FORM
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TO: XXXXXXX-XXXX GOLD COMPANY, INC
The undersigned hereby irrevocably elects to exercise the attached
Warrant to the extent of __________ shares of the Common Stock, par value $.001
per share, of Xxxxxxx-Xxxx Gold Company, Inc. and hereby makes payment of $_____
in accordance with the provisions of Section 1 of the Warrant in payment of the
purchase price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
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(Please typewrite or print in block letters)
Address:
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By
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ASSIGNMENT FORM
For value received, the undersigned hereby sells, assigns, and transfers to
Name
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Address
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this Warrant and irrevocably appoints _____________________________ attorney
(with full power of substitution) to transfer this Warrant on the books of the
Company.
Date:
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(Please sign exactly as name
appears on Warrant)
Taxpayer ID No.
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