Exhibit 4.5
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED AS PROVIDED IN SECTION 2
No. B - _ _________, 2005
CREATIVE ENTERPRISES INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
For good and valuable consideration, the receipt of which is hereby
acknowledged by CREATIVE ENTERPRISES INTERNATIONAL, INC., a Nevada corporation
(the "Company"), _____________________ (the "Holder"), is hereby granted the
right to purchase, at any time from the date that this Warrant is issued under
the Subscription Agreement (as such terms are defined below) until 5:00 P.M.,
New York City time, on ________, 2010 (the "Warrant Exercise Term"), up to
______________ (____________) fully-paid and non-assessable shares of the
Company's Common Stock, $.001 par value per share ("Common Stock").
This Warrant is one of a duly authorized issue of Warrants, issued in
connection with a certain Subscription Agreement between the Company and the
Holder (the "Subscription Agreement"), the terms of which are incorporated
herein by reference. The Warrants are similar in terms except for dates, amounts
and named holders. By its acceptance of this Warrant, each Holder agrees to be
bound by the terms of the Subscription Agreement. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Subscription Agreement.
l. Exercise of Warrant
1.1 This Warrant is exercisable at a per share price of $0.75 (the
"Exercise Price"), subject to adjustment as provided in Section l hereof,
payable in cash or by certified or official bank check in New York Clearing
House funds. Upon surrender of this warrant certificate with the annexed
Subscription Form duly executed, together with payment of the Exercise Price for
the shares of Common Stock purchased at the Company's principal executive
offices (presently located at 000 Xxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx 19010)
the registered Holder of the Warrant shall be entitled to receive a certificate
or certificates for the shares of Common Stock so purchased (the "Warrant
Shares"). The purchase rights represented by this Warrant are exercisable at the
option of the Holder hereof, in whole or in part (but not as to fractional
shares of the Common Stock) during any period in which this Warrant may be
exercised as set forth above. In the case of the purchase of less than all the
shares of Common Stock purchasable under this Warrant, the Company shall cancel
this Warrant upon the surrender thereof and, upon the written request of the
Holder, the Company shall execute and deliver a new Warrant of like tenor for
the balance of the shares of Common Stock purchasable hereunder.
1.2 The issuance of certificates for shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the Holder hereof
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates
shall be issued in the name of, or in such names as may be directed by, the
Holder hereof; provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
and delivery of such certificate in a name other than that of the Holder and the
Company shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
1.3 Stock Dividends, Subdivisions, Reclassifications or Combinations.
If the Corporation shall (A) declare a dividend or make a distribution on its
Common Stock in shares of its Common Stock, (B) subdivide or reclassify the
outstanding shares of Common Stock into a greater number of shares, or (C)
combine or reclassify the outstanding Common Stock into a smaller number of
shares, the Exercise Price in effect at the time of the record date for such
dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be proportionately adjusted so that the Holder after
such date shall be entitled to receive the number of shares of Common Stock
which he would have owned or been entitled to receive had this Warrant been
exercised immediately prior to such date. Successive adjustments in the Exercise
Price shall be made whenever any event specified above shall occur.
1.4 Consolidation, Merger, Sale or Conveyance. In case of any
consolidation or merger of the Company with any other corporation (other than a
wholly owned subsidiary), or in case of sale or transfer of all or substantially
all of the assets of the Company, or in the case of any share exchange whereby
the Common Stock is converted into other securities or property, the Company
will be required to make appropriate provision so that the Holder will have the
right thereafter to exercise this Warrant into the kind and amount of shares of
stock and other securities and property receivable upon such consolidation,
merger, sale, transfer or share exchange by a holder of the number of shares of
Common Stock for which this Warrant was exercisable immediately prior to such
consolidation, merger, sale, transfer or share exchange.
1.5 The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issuance
upon exercise of this Warrant as herein provided, such number of shares of
Common Stock as shall then be issuable upon the exercise of this Warrant. The
Company covenants that all shares of Common Stock which shall be so issuable
shall be duly and validly issued and fully-paid and non-assessable.
2. Restrictions on Transfer
The Holder acknowledges that he has been advised by the Company that
this Warrant and the shares of Common Stock (the "Warrant Shares") issuable upon
exercise thereof (collectively the "Securities") have not been registered under
the Securities Act of l933, as amended (the "Securities Act"), that the Warrant
is being issued, and the shares issuable upon exercise of the Warrant will be
issued, on the basis of the statutory exemption provided by section 4(2) of the
Securities Act relating to transactions by an issuer not involving any public
offering, and that the Company's reliance upon this statutory exemption is based
in part upon the representations made by the Holder contained herein. The Holder
acknowledges that he has been informed by the Company of, or is otherwise
familiar with, the nature of the limitations imposed by the Securities Act and
the rules and regulations thereunder on the transfer of securities. In
particular, the Holder agrees that no sale, assignment or transfer of the
Securities shall be valid or effective, and the Company shall not be required to
give any effect to any such sale, assignment or transfer, unless (i) the sale,
assignment or transfer of the Securities is registered under the
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Securities Act, and the Company has no obligations or intention to so register
the Securities except as may otherwise be provided herein, or (ii) the
Securities are sold, assigned or transferred in accordance with all the
requirements and limitations of Rule 144 under the Securities Act or such sale,
assignment, or transfer is otherwise exempt from registration under the
Securities Act. The Holder represents and warrants that he has acquired this
Warrant and will acquire the Securities for his own account for investment and
not with a view to the sale or distribution thereof or the granting of any
participation therein, and that he has no present intention of distributing or
selling to others any of such interest or granting any participation therein.
The Holder acknowledges that the securities shall bear the following legend:
"These securities have not been registered under the Securities Act of
l933. Such securities may not be sold or offered for sale, transferred,
hypothecated or otherwise assigned in the absence of an effective
registration statement with respect thereto under such Act or an
opinion of counsel to the Company that an exemption from registration
for such sale, offer, transfer, hypothecation or other assignment is
available under such Act."
3. Registration Rights. The Holder shall be entitled to all of the
rights and subject to all of the obligations regarding registration of the
Warrant Shares, as described in Section 8 of the Subscription Agreement between
the Company and the original holder hereof.
4. Redemption.
4.1 The Company may, subject to the conditions set forth herein, redeem
some or all of the Warrants then outstanding upon not less than thirty (30) days
nor more than sixty (60) days prior written notice to the Warrant Holders at any
time, provided: (i) this Warrant has been issued by the Company; (ii) the
closing bid price of the Company's Common Stock for each of the twenty (20)
consecutive trading days prior to the date of the notice of redemption is at
least $1.50, as proportionately adjusted to reflect any stock splits, stock
dividends, combination of shares or like events and (iii) all of the Warrant
Shares have been registered for resale and continue to be covered by an
effective and current registration statement with the Securities and Exchange
Commission. Notice will be effective upon mailing and the time of mailing is the
"Effective Date of the Notice". The Notice will state a redemption date not less
than thirty (30) days nor more than sixty (60) days from the Effective Date of
the Notice (the "Redemption Date"). No Notice shall be mailed unless all funds
necessary to pay for redemption of the Warrants to be redeemed shall have first
been set aside by the Company for the benefit of the Warrant Holders so as to be
and continue to be available therefor. The redemption price to be paid to the
Warrant Holders will be $.10 for each share of Common Stock of the Company to
which the Warrant Holder would then be entitled upon exercise of the Warrant
being redeemed, as adjusted from time to time as provided herein (the
"Redemption Price"). The Warrant Holders may exercise their Warrants between the
Effective Date of the Notice and 5:00 p.m. Eastern Time on the business day
immediately prior to the Redemption Date, such exercise being effective if done
in accordance with Section 1 hereof, and if the Warrant Certificate, with form
of election to purchase duly executed and the Warrant Price, as applicable for
such Warrant subject to redemption for each share of Common Stock to be
purchased is actually received by the Company at its principal offices prior to
5:00 p.m. Eastern Time on the business day immediately prior to the Redemption
Date.
4.2 If any Warrant Holder does not wish to exercise any Warrant being
redeemed, he should mail such Warrant to the Company at its principal offices
after receiving the Notice of Redemption required by this Section 4. If such
Notice of Redemption shall have been so mailed,
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and if on or before the Effective Date of the Notice all funds necessary to pay
for redemption of the Warrants subject to redemption shall have been set aside
by the Company for the benefit of such Warrant Holders, then, on and after said
Redemption Date, notwithstanding that any Warrant subject to redemption shall
not have been surrendered for redemption, the obligation evidenced by all
Warrants not surrendered for redemption or effectively exercised shall be deemed
no longer outstanding, and all rights with respect thereto shall forthwith cease
and terminate, except only the right of the holder of each Warrant subject to
redemption to receive the Redemption Price for each share of Common Stock to
which he would be entitled if he exercised the Warrant upon receiving notice of
redemption of the Warrant subject to redemption held by him.
5. Exchange and Replacement of Warrant Certificates.
This Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Warrant Shares in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant of like tenor, in
lieu thereof and any such lost, stolen, destroyed or mutilated warrant shall
thereupon become void.
6. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of the shares of Common Stock and shall not be required to issue scrip
or pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up or
down to the nearest whole number of shares of Common Stock.
7. Rights of Warrant Holders.
Nothing contained in this Agreement shall be construed as conferring
upon the Holder any rights whatsoever as a stockholder of the Company, either at
law or in equity, including without limitation, or Holders the right to vote or
to consent or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors the right to receive dividends or any
other matter.
8. Miscellaneous
8.l All the covenants and agreements made by the Company in this
Warrant shall bind its successors and assigns.
8.2 No recourse shall be had for any claim based hereon or otherwise in
any manner in respect hereof, against any incorporator, stockholder, officer or
director, past, present or future, of the Company or of any predecessor
corporation, whether by virtue of any constitutional provision or statute or
rule of law, or by the enforcement of any assessment or
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penalty or in any other manner, all such liability being expressly waived and
released by the acceptance hereof and as part of the consideration for the issue
hereof.
8.3 No course of dealing between the Company and the Holder hereof
shall operate as a waiver of any right of any Holder hereof, and no delay on the
part of the Holder in exercising any right hereunder shall so operate.
8.4 This Warrant may be amended only by a written instrument executed
by the Company and the Holder hereof. Any amendment shall be endorsed upon this
Warrant, and all future Holders shall be bound thereby.
8.5 All communications provided for herein shall be sent, except as may
be otherwise specifically provided, by registered or certified mail: if to the
Holder of this Warrant, to the address shown on the books of the Company; and if
to the Company, to 000 Xxxxxxxxx Xxxx, Xxxx Xxxx, XX 00000, attention: Office of
the President, or to such other address as the Company may advise the Holder of
this Warrant in writing. Notices shall be deemed given when mailed.
8.6 The provisions of this Warrant shall in all respects be constructed
according to, and the rights and liabilities of the parties hereto shall in all
respects be governed by, the laws of the State of New York. This Warrant shall
be deemed a contract made under the laws of the State of New York and the
validity of this Warrant and all rights and liabilities hereunder shall be
determined under the laws of said State.
8.7 The headings of the Sections of this Warrant are inserted for
convenience only and shall not be deemed to constitute a part of this Warrant.
IN WITNESS WHEREOF, CREATIVE ENTERPRISES INTERNATIONAL, INC. has caused
this Warrant to be executed in its corporate name by its officer, and its seal
to be affixed hereto.
Dated: ______________ __, 0000
Xxxxxxxxx, Xxxxxxxxxxxx
CREATIVE ENTERPRISES
INTERNATIONAL, INC.
By:
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Xxxxxxx Xxxxxxx,
Chief Executive Officer
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SUBSCRIPTION FORM
TO: Creative Enterprises International, Inc.
000 Xxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
The undersigned Holder hereby irrevocably elects to exercise the right to
purchase shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes full payment of the Exercise Price of such
shares.
Kindly deliver to the undersigned a certificate representing the Shares.
INSTRUCTIONS FOR DELIVERY
Name:
------------------------------------------------------------------
(please typewrite or print in block letters)
Address:
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Tax I.D. No. or Social Security No.:
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Dated:
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Signature
--------------------------------
STATE OF ___________)
COUNTY OF _________) ss:
On this __ day of ___________, before me personally came ________, to
me known, who being by me duly sworn, did depose and say that he resides at
__________________, that he is the holder of the foregoing instrument and that
he executed such instrument and duly acknowledged to me that he executed the
same.
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Notary Public
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[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ________________________________ hereby sells, assigns
and transfers unto _____________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________________,
Attorney, to transfer the within Warrant Certificate on the books of CREATIVE
ENTERPRISES INTERNATIONAL, INC., with full power of substitution.
Dated: Signature:
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(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate)
--------------------------------
--------------------------------
(Insert Social Security or Other
Identifying Number of Assignee)
STATE OF ___________)
COUNTY OF _________) ss:
On this __ day of ___________, before me personally came ________, to me
known, who being by me duly sworn, did depose and say that he resides at
__________________, that he is the holder of the foregoing instrument and that
he executed such instrument and duly acknowledged to me that he executed the
same.
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Notary Public
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