Exhibit 10.23
THIS WARRANT (THIS "WARRANT") HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, MORTGAGED,
PLEDGED, HYPOTHECATED, ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
WITH THE ACT AND APPLICABLE STATE SECURITIES LAWS.
UNIVERSE2U, Inc.
WARRANT
Warrant No. ___ Original Issue Date: _______, 2001
This Warrant is issued in connection with and pursuant to that certain
Common Stock Purchase Agreement (the "Purchase Agreement") dated as of
___________, 2001, by and between UNIVERSE2U, INC., a Nevada corporation (the
"Company") and FUSION CAPITAL FUND II, LLC (the "Buyer").
FOR VALUE RECEIVED, the Buyer, the registered holder hereof, or its
permitted assigns (the "Holder"), is entitled to purchase from the Company,
during the period specified in this Warrant, 375,000 fully paid and
non-assessable shares (subject to adjustment as hereinafter provided) of Common
Stock (the "Warrant Shares"), of the Company at the purchase price per share
provided in Section 1.2 of this Warrant (the "Warrant Exercise Price"), all
subject to the terms and conditions set forth in this Warrant. All terms not
otherwise defined herein shall have the meaning ascribed to them in the Purchase
Agreement.
Section 1. Period for Exercise and Exercise Price.
1.1 Period for Exercise. The right to purchase shares of Warrant
Shares represented by this Warrant shall be immediately exercisable, and shall
expire at 5:00 p.m., Chicago local time, _______, 2006 (the "Expiration Date").
From and after the Expiration Date this Warrant shall be null and void and of no
further force or effect whatsoever.
1.2 Warrant Exercise Price. The Warrant Exercise Price per share of
Warrant Shares shall be $4.00 per share (subject to adjustment as hereinafter
provided).
Section 2. Exercise of Warrant.
2.1 Manner of Exercise. The Holder may exercise this Warrant, in whole
or in part, immediately, but not after the Expiration Date, during normal
business hours on any business day by surrendering this Warrant to the Company
at the principal office of the Company, accompanied by a Warrant Exercise Form
in substantially the form annexed hereto duly executed by the Buyer and by
payment of the Warrant Exercise Price for the number of shares of Warrant Shares
for which this Warrant is then exercisable, either (i) in immediately available
funds, (ii) by delivery of an instrument evidencing indebtedness owing by the
Company to the Holder in the appropriate amount, (iii) by authorizing the
Company to retain shares of Common Stock which would otherwise be issuable upon
exercise of this Warrant having a fair market value (defined as the last
reported Closing Sale Price of the Common Stock on the date immediately
preceding the date of the Warrant Exercise notice) on the date of delivery equal
to the aggregate Warrant Exercise Price, or (iv) in a combination of (i), (ii)
or (iii) above, provided, however, that in no event shall the Holder be entitled
to exercise this Warrant for a number of Warrant Shares in excess of that number
of Warrant Shares which, upon giving effect to such exercise, would cause the
aggregate number of shares of Common Stock beneficially owned by the Holder and
its affiliates to exceed 9.9% of the outstanding shares of the Common Stock
following such exercise. For purposes of the foregoing proviso, the aggregate
number of shares of Common Stock beneficially owned by the Holder and its
affiliates shall include the number of shares of Common Stock issuable upon
exercise of this Warrant with respect to which determination of such proviso is
being made, but shall exclude the shares of Common Stock which would be issuable
upon (i) exercise of the remaining, unexercised Warrants beneficially owned by
the Holder and its affiliates and (ii) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Company beneficially owned
by the Holder and its affiliates subject to a limitation on conversion or
exercise analogous to the limitation contained herein. Except as set forth in
the preceding sentence, for purposes of this paragraph, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended. The Holder may waive the foregoing limitation by
written notice to the Company upon not less than 61 days prior written notice
(with such waiver taking effect only upon the expiration of such 61 day notice
period).
2.2 When Exercise Effective. Each exercise of this Warrant shall be
deemed to have been effected on the day on which all requirements of Section 2.1
shall have been met with respect to such exercise. At such time the person in
whose name any certificate for shares of Warrant Shares shall be issuable upon
such exercise shall be deemed for all corporate purposes to have become the
Holder of record of such shares, regardless of the actual delivery of
certificates evidencing such shares.
2.3 Delivery of Stock Certificates. As soon as practicable after each
exercise of this Warrant, and in any event no later than 3 days after such
exercise, the Company at its expense will issue Warrant Shares via credit to the
Buyer's account with DTC for the number of Warrant Shares to which such Buyer is
entitled upon such Buyer's submission of the applicable Warrant Exercise Form
or, if the Transfer
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Agent is not participating in The DTC Fast Automated Securities Transfer Program
and DWAC system, issue and surrender to the address as specified in the Warrant
Exercise Form,, a certificate, registered in the name of the Buyer or its
designee, for the number of shares of Common Stock to which the Buyer shall be
entitled to upon such exercise.
Section 3. Adjustment of Purchase Price and Number of Shares. The Warrant
Exercise Price and the kind of securities issuable upon exercise of the Warrant
shall be adjusted from time to time as follows:
3.1 Subdivision or Combination of Shares (Stock Splits). If the
Company at any time effects a subdivision or combination of the outstanding
Common Stock (through a stock split or otherwise), the number of shares of
Warrant Shares shall be increased, in the case of a subdivision, or the number
of shares of Warrant Shares shall be decreased, in the case of a combination, in
the same proportions as the Common Stock is subdivided or combined, in each case
effective automatically upon, and simultaneously with, the effectiveness of the
subdivision or combination which gives rise to the adjustment.
3.2 Stock Dividends. If the Company at any time pays a dividend, or
makes any other distribution, to holders of Common Stock payable in shares of
Common Stock, or fixes a record date for the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in shares of
Common Stock, then the number of shares of Warrant Shares in effect immediately
prior to such action shall be proportionately increased so that the Holder
hereof may receive upon exercise of the Warrant the aggregate number of shares
of Common Stock which he or it would have owned immediately following such
action if the Warrant had been exercised immediately prior to such action. The
adjustment shall become effective immediately as of the date the Company shall
take a record of the holders of its Common Stock for the purpose of receiving
such dividend or distribution (or if no such record is taken, as of the
effectiveness of such dividend or distribution).
3.3 Reclassification, Consolidation or Merger. If at any time, as a
result of:
(a) a capital reorganization or reclassification (other than a
subdivision, combination or dividend provided for elsewhere in this
Section 3), or
(b) a merger or consolidation of the Company with another corporation
(whether or not the Company is the surviving corporation),
the Common Stock issuable upon exercise of the Warrants shall be changed into or
exchanged for the same or a different number of shares of any class or classes
of stock of the Company or any other corporation, or other securities
convertible into such shares, then, as a part of such reorganization,
reclassification, merger or consolidation, appropriate adjustments shall be made
in the terms of the Warrants (or of any securities into which the Warrants are
exercised or for which the Warrants are exchanged), so that:
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(y) the Holders of Warrants or of such substitute securities shall
thereafter be entitled to receive, upon exercise of the Warrants or of such
substitute securities, the kind and amount of shares of stock, other securities,
money and property which such Holders would have received at the time of such
capital reorganization, reclassification, merger, or consolidation, if such
Holders had exercised their Warrants immediately prior to such capital
reorganization, reclassification, merger, or consolidation, and
(z) the Warrants or such substitute securities shall thereafter be
adjusted on terms as nearly equivalent as may be practicable to the adjustments
theretofore provided in this Section 3.3.
No consolidation or merger in which the Company is not the surviving corporation
shall be consummated unless the surviving corporation shall agree, in writing,
to the provisions of this Section 3.3. The provisions of this Section 3.3 shall
similarly apply to successive capital reorganizations, reclassifications,
mergers and consolidations.
3.4 Other Action Affecting Common Stock. If at any time the Company
takes any action affecting its Common Stock, other than an action described in
any of Sections 3.1 - 3.3 which, in the opinion of the Board of Directors of the
Company (the "Board"), would have an adverse effect upon the exercise rights of
the Warrants, the Warrant Exercise Price or the kind of securities issuable upon
exercise of the Warrants, or both, shall be adjusted in such manner and at such
time as the Board may in good faith determine to be equitable in the
circumstances; provided, however, that the purpose of this Section is to prevent
the Company from taking any action which has the effect of diluting the number
of shares of Warrant Shares issuable upon exercise of this Warrant.
3.5 Notice of Adjustment Events. Whenever the Company contemplates the
occurrence of an event which would give rise to adjustments under this Section
3, the Company shall mail to each Warrant Holder, at least 20 days prior to the
record date with respect to such event or, if no record date shall be
established, at least 20 days prior to such event, a notice specifying (i) the
nature of the contemplated event, and (ii) the date on which any such record is
to be taken for the purpose of such event, and (iii) the date on which such
event is expected to become effective, and (iv) the time, if any is to be fixed,
when the holders of record of Common Stock (or other securities) shall be
entitled to exchange their shares of Common Stock (or other securities) for
securities or other property deliverable in connection with such event.
3.6 Notice of Adjustments. Whenever the kind or number of securities
issuable upon exercise of the Warrants, or both, shall be adjusted pursuant to
Section 3, the Company shall deliver a certificate signed by its Chief Executive
Officer and by its Chief Financial Officer, setting forth, in reasonable detail,
the event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated (including a description of the basis on
which the Board made any determination hereunder), and the Warrant Exercise
Price and the kind of securities issuable upon exercise of the Warrants after
giving effect to such adjustment, and shall cause copies
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of such certificate to be mailed (by first class mail postage prepaid) to each
Warrant Holder promptly after each adjustment.
Section 4. Reservation of Stock, etc. The Company covenants and agrees
that it will at all times have authorized, reserve and keep available, solely
for issuance and delivery upon the exercise of this Warrant, the number of
shares of Warrant Shares from time to time issuable upon the exercise of this
Warrant. The Company further covenants and agrees that this Warrant is, and any
Warrants issued in substitution for or replacement of this Warrant and all
Warrant Shares, will upon issuance be duly authorized and validly issued and, in
the case of Warrant Shares, upon issuance will be fully paid and non-assessable
and free from all preemptive rights of any stockholder, and from all taxes,
liens and charges with respect to the issue thereof (other than transfer taxes)
and, if the Common Stock of the Company is then listed on any national
securities exchanges (as defined in the Exchange Act of 1934, as amended (the
"Exchange Act")) or quoted on NASDAQ, shall be, subject to the restrictions set
forth in Section 5, duly listed or quoted thereon, as the case may be. In the
event that the number of authorized but unissued shares of such Common Stock
shall not be sufficient to effect the exercise of this entire Warrant into
Warrant Shares, then in addition to such other remedies as shall be available to
the Holder of this Warrant, the Company shall promptly take such corporate
action as may be necessary to increase its authorized but unissued shares of
such Common Stock to such number of shares as shall be sufficient for such
purpose.
Section 5. Ownership, Transfer and Substitution of Warrants.
5.1 Ownership of Warrants. The Company may treat the person in whose
name any Warrant is registered on the register kept at the principal office of
the Company as the owner and Holder thereof for all purposes, notwithstanding
any notice to the contrary, but in all events recognizing any transfers made in
accordance with the terms of this Warrant.
5.2 Transfer and Exchange of Warrants. Upon the surrender of any
Warrant, properly endorsed, for registration of transfer or for exchange at the
principal office of the Company, the Company at its expense will execute and
deliver to the Holder thereof, upon the order of such Holder, a new Warrant or
Warrants of like tenor, in the name of such Holder or as such Holder may direct,
for such number of shares with respect to each such Warrant, the aggregate
number of shares in any event not to exceed the number of shares for which the
Warrant so surrendered had not been exercised.
5.3 Registration Rights. The holder of this Warrant is entitled to
certain registration rights with respect to the Warrant Shares issuable upon
exercise thereof. Said registration rights are set forth in a Registration
Rights Agreement dated as of __________, 2001, by and between the Buyer and the
Company.
5.4 Exemption from Registration. If an opinion of counsel provides
that registration is not required for the proposed exercise or transfer of this
Warrant or the proposed transfer of the Warrant Shares
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and that the proposed exercise or transfer in the absence of registration would
require the Company to take any action including executing and filing forms or
other documents with the Securities and Exchange Commission (the "SEC") or any
state securities agency, or delivering to the Holder any form or document in
order to establish the right of the Holder to effectuate the proposed exercise
or transfer, the Company agrees promptly, at its expense, to take any such
action; and provided, further, that the Company will reimburse the Holder in
full for any expenses (including but not limited to the fees and disbursements
of such counsel, but excluding brokers' commissions) incurred by the Holder or
owner of Warrant Shares on his, her or its behalf in connection with such
exercise or transfer of the Warrant or transfer of Warrant Shares.
Section 6. No Rights or Liabilities as Shareholder. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof any rights as a
shareholder of the Company or as imposing any liabilities on such holder to
purchase any securities or as a shareholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company.
Section 7. Rule 144 Sales. At the request of any Holder who proposes to sell
securities in compliance with Rule 144 of the SEC, the Company will (i)
forthwith furnish to such Holder a written statement of compliance with the
filing requirements of the SEC as set forth in Rule 144, as such rules may be
amended from time to time and (ii) make available to the public and such Holder
such information as will enable the Holder to make sales pursuant to Rule 144.
Section 8. Miscellaneous.
8.1 Amendment and Waiver. This Warrant may be amended with, and only
with, the written consent of the Company and the Holder. Any waiver of any term,
covenant, agreement or condition contained in this Warrant shall not be deemed a
waiver of any other term, covenant, agreement or condition, and any waiver of
any default in any such term, covenant, agreement or condition shall not be
deemed a waiver of any later default thereof or of any default of any other
term, covenant, agreement or condition.
8.2 Representations and Warranties to Survive Closing. All
representations, warranties and covenants contained herein shall survive the
execution and delivery of this Warrant and the issuance of any Warrant Shares
upon the exercise hereof.
8.3 Severability. In the event that any court or any governmental
authority or agency declares all or any part of any Section of this Warrant to
be unlawful or invalid, such unlawfulness or invalidity shall not serve to
invalidate any other Section of this Warrant, and in the event that only a
portion of any Section is so declared to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate the balance of such
Section.
8.4 Binding Effect; No Third Party Beneficiaries. All provisions of
this Warrant shall be binding upon and inure to the benefit of the parties and
their respective heirs, legatees, executors,
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administrators, legal representatives, successors, and permitted transferees and
assigns. No person other than the holder of this Warrant and the Company shall
have any legal or equitable right, remedy or claim under or in respect of, this
Warrant.
8.5 Notices. 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: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Trading Day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
Universe2U, Inc.
00 X. Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxx Xxxxx
With a copy to:
Wuersch & Xxxxxx, LLP
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to the Buyer:
Fusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
If to the Transfer Agent:
American Stock Transfer & Trust
0000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) Trading Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, and recipient facsimile number or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of personal service,
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receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
8.6 Taxes, Costs and Expenses. The Company covenants and agrees that
it will pay when due and payable any and all federal, state and local taxes
(other than income taxes) and any other costs and expenses which may be payable
in respect of the preparation, issuance, delivery, exercise, surrender or
transfer of this Warrant pursuant to the terms of this Warrant or the issuance
of any shares of Warrant Shares as a result thereof. If any suit or action is
instituted or attorneys employed to enforce this Warrant or any part thereof,
the Company promises and agrees to pay all costs and expenses associated
therewith, including reasonable attorneys' fees and court costs.
8.7 Governing Law; Jurisdiction; Jury Trial. The corporate laws of the
State of Nevada shall govern all issues concerning the relative rights of the
Company and its shareholders. All other questions concerning the construction,
validity, enforcement and interpretation of this Warrant shall be governed by
the internal laws of the State of Illinois, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Illinois or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Illinois. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of Chicago, for the adjudication of any dispute hereunder or under the
other Transaction Documents or in connection herewith or therewith, or with any
transaction contemplated hereby or discussed herein, 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 brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. 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 to such
party at the address for such notices to it under this Agreement 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. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
8.8 Loss of Warrant. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of indemnification
in form and substance acceptable to the Company in its reasonable discretion,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver a new Warrant of like tenor and date.
8.9 Entire Agreement. This Warrant, the Purchase Agreement and the
Registration Rights Agreement of even date herewith represent the entire
agreement and understanding between the parties concerning the
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subject matter hereof and supercede all prior and contemporaneous agreements,
understandings, representations and warranties with respect thereto.
8.10 Headings. The headings used herein are used for convenience only
and are not to be considered in construing or interpreting this Warrant.
UNIVERSE2U, INC.
By:______________________
Name: ___________________
Title: _____________________
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WARRANT EXERCISE FORM
---------------------
Date:_____________
______________________
______________________
______________________
Attention: ________________
Ladies and Gentlemen: The undersigned, being the registered holder of your
Warrant number ______ accompanying this letter, hereby irrevocably exercises
such Warrant for _____ shares of Warrant Shares (as defined in said Warrant),
and herewith makes payment therefor in the amount of ($___________ )(via
"cash-less exercise" in accordance with the Warrant), and requests that such
shares of Warrant Shares be issued in the name of, and delivered to Fusion
Capital Fund II, LLC, at the address shown below the signature line hereof.
If said number of shares shall not be all the shares issuable upon exercise of
the attached Warrant, a new Warrant is to be issued in the name of the
undersigned for the balance remaining of such shares less any fraction of a
share paid in cash. Sincerely,
FUSION CAPITAL FUND II, LLC
-------------------------
Signature of Registered Warrant HolderFusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx, XX 00000
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FORM OF COMPANY CONFIRMATION OF WARRANT EXERCISE
Reference is made to the Common Stock Purchase Agreement (the "Common
Stock Purchase Agreement") between UNIVERSE2U, INC. (the "Company") and FUSION
CAPITAL FUND II, LLC dated _________, 2001. In accordance with and pursuant to
the Common Stock Purchase Agreement, the Company has issued to FUSION CAPITAL
FUND II, LLC a Warrant to Purchase 375,000 shares of common stock, par value
$.00001 per share (the "Common Stock") of the Company. The undersigned hereby
confirms that FUSION CAPITAL FUND II, LLC has exercised the Warrant to purchase
_____ shares of Common stock and authorizes the issuance of ______ shares of
common stock, par value $.00001 per share (the "Common Stock") of the Company,
in connection with the Warrant Exercise Notice Specifically, the Company hereby
confirms the following information:
Number of shares of Common
Stock to be issued: ____________________________________
Remaining Number of shares
Subject to Exercise: ____________________________________
Exercise Price: 4.00/share of Common Stock (Subject
to Adjustment pursuant to the Warrant)
The shares of Common Stock shall be issued in the name and to the address as set
forth in the applicable Warrant Exercise Notice.
Authorized Signature
Name:_______________________________
Title:______________________________
Phone #:____________________________
Fax #: _____________________________
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