EXHIBIT 4.18
NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE SECURITIES LAWS BY REASON OF
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
LAWS, AND SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT
OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
STOCK PURCHASE WARRANT
Date of Issuance:
Certificate No
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For value received, The AppleTree Companies, Inc., a Delaware corporation (the
"Company"), hereby grants to Company or its registered assigns (the
"Registered Holder") the right to purchase from the Company shares
of the Company's Common Stock, par value $ per share (the Common Stock"),
at a price per share of $.0125 (as adjusted and in effect from time-to-time
pursuant to Section 2 below, the "Exercise Price"). Certain capitalized terms
used herein are defined in Section 5 hereof. The amount and kind of
securities purchasable pursuant to the rights granted hereunder and the
purchase price for such securities are subject to adjustment pursuant to the
provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1.
Exercise of Warrant.
1A.
Exercise Period. The Registered Holder may exercise, in whole or in part (but
not as to a fractional share of Common Stock), the purchase rights represented
by this Warrant at any time and from time-to-time after the Date of Issuance
to and including September 25, 2001 (the "Exercise Period").
1B.
Exercise Procedure.
(i)
This Warrant shall be deemed to have been exercised when the Company has
received all of the following items (the "Exercise Time"):
(a)
a completed Exercise Agreement, as described in
paragraph 1C below, executed by the Registered Holder;
(b)
this Warrant;
(c)
either (x) a check payable to the Company in an
amount equal to the product of the Exercise Price multiplied by the number of
shares of Common Stock being purchased upon such exercise (the "Aggregate
Exercise Price") or
(y) the surrender to the Company of securities of the Company having a
Market Price equal to the Aggregate Exercise Price of the Common Stock being
purchased upon such exercise.
(ii)
Certificates for shares of Common Stock purchased upon exercise of this
Warrant shall be delivered by the Company to the Registered Holder within
fifteen business days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which
have not expired or been exercised and shall, within such fifteen-day period,
deliver such new Warrant to the Registered Holder.
(iii)
The Common Stock issuable upon the exercise of this Warrant shall be deemed to
have been issued to the Registered Holder at the Exercise Time, and the
Registered Holder shall be deemed for all purposes to have become the record
holder of such Common Stock at the Exercise Time.
(iv)
The issuance of certificates for shares of Common Stock upon the exercise of
this Warrant shall be made without charge to the Registered Holder for any
issuance tax in respect thereof or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Common
Stock. Each share of Common Stock issuable upon exercise of this Warrant
shall, upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all liens and charges with respect to the issuance
thereof.
(v)
The Company shall not close its books against the transfer of this Warrant or
of any share of Common Stock issued or issuable upon the exercise of this
Warrant in any manner which interferes with the timely exercise of this
Warrant. The Company shall from time-to-time take all such action as may be
necessary to assure that the par value per share of the unissued Common Stock
acquirable upon exercise of this Warrant is at all times equal to or less than
the Exercise Price then in effect.
(vi)
The Company shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock solely for the purpose of
issuance upon the exercise of this Warrant, such number of shares of Common
Stock issuable upon the exercise of this Warrant. The Company shall take all
such actions as may be necessary to assure that all such shares of Common
Stock may be so issued without violation of any applicable law or governmental
regulation or any requirements of any domestic securities exchange upon which
shares of Common Stock may be listed (except for official notice of issuance
which shall be promptly delivered by the Company upon each such issuance).
1C.
Exercise Agreement.
Upon any exercise of this Warrant, the Exercise Agreement shall be
substantially in the form set forth in Exhibit I attached hereto. Such
Exercise Agreement shall be dated the actual date of execution thereof.
1D.
Fractional Shares.
If a fractional share of Common Stock would, but for the provisions of
paragraph 1A, be issuable upon exercise of the rights represented by this
Warrant, the Company shall, within five business days after the date of the
Exercise Time, deliver to the Registered Holder a check payable to the
Registered Holder in lieu of such fractional share in an amount equal to the
difference between the Market Price of such fractional share as of the date of
the Exercise Time and the Exercise Price of such fractional share.
Section 2.
Adjustment to Number of Shares.
The number of shares of Common Stock purchasable upon exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
2A.
In case the Company shall (I) pay a dividend in shares of Common Stock or make
a distribution in shares of Common Stock; (ii) subdivide its outstanding
shares of Common Stock; (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock; or (iv) issue by
reclassification of its shares of stock other securities of the Company, the
number of shares of Common Stock purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the holder of this Warrant
shall be entitled to receive the kind and number of shares of Common Stock or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described above,
had this Warrant been converted immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made pursuant to
this paragraph 2A shall become effective immediately after the effective date
of such event retroactive to the record date, if any, for such event.
2B.
In case the Company shall issue rights, options or warrants to all holders of
its outstanding shares of Common Stock, without any charge to such holders,
entitling them (for a period expiring within forty five (45) days after the
record date mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share which is lower at the record date mentioned below
than the then current Market Price per share of Common Stock, the number of
shares of Common Stock thereafter purchasable upon the exercise of this
Warrant shall be determined by multiplying the number of shares of Common
Stock theretofore purchasable upon exercise of this Warrant by a fraction, of
which the numerator shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, options or warrants plus the number of
additional shares of Common Stock offered for subscription or purchase, and of
which the denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or warrants plus
the number of shares of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so offered would purchase at the then
current Market Price per share of Common Stock. Such adjustments shall be
made whenever such rights, options or warrants are issued, and shall become
effective retroactively immediately after the record date for the
determination of shareholders entitled to receive such rights, options or
warrants.
2C.
In case the Company shall distribute to all holders of its shares of Common
Stock evidence of its indebtedness or assets (excluding cash dividends or
distributions out of earnings and dividends or distributions referred to in
paragraph 2A above) or rights, options or warrants or convertible securities
containing the right to subscribe for or purchase shares of Common Stock
(excluding those referred to in paragraph 2B above), then in each case the
number of shares of Common Stock thereafter purchasable upon the exercise of
this Warrant shall be determined by multiplying the number of shares of Common
Stock theretofore purchasable upon the exercise of this Warrant by a fraction,
of which the numerator shall be the then current Market Price per share of
Common Stock on the date of such distribution, and of which the denominator
shall be the then current Market Price per share of Common Stock, less the
then fair value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the evidence of
indebtedness or assets so distributed or of such subscription rights, options
or warrants or of such convertible securities applicable to one share of
Common Stock. Such adjustment shall be made whenever any such distribution
is made, and shall become effective on the date of distribution retroactive to
the record date for the determination of shareholders entitled to receive such
distribution.
2D.
Upon each such adjustment of the number of shares of Common Stock issuable
upon exercise hereof, the Exercise Price of this Warrant shall be adjusted to
the Exercise Price determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
acquirable upon exercise of this Warrant immediately prior to such adjustment
and dividing the product thereof by the number of shares of Common Stock
acquirable upon exercise of this Warrant immediately after such adjustment.
Section 3.
Company Consolidation, Merger, Etc.
In case of any consolidation of the company with or merger of the Company into
another corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as
an entirety, the Company or such successor or purchasing corporation, as the
case may be, shall execute an agreement that any holder of this Warrant shall
have the right thereafter upon payment of the Exercise Price in effect
immediately prior to such action to purchase upon exercise of this Warrant the
kind and amount of shares and other securities and property which he would
have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had this Warrant been exercised
immediately prior to such action. The Company shall mail by first class mail,
postage prepaid, to each holder of this Warrant, notice of the execution of
any such agreement. Such agreement shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for
herein. The provisions of this paragraph shall similarly apply to successive
consolidations, mergers, sales or conveyances.
Section 4.
Certificate Evidencing Adjustments.
Whenever the Exercise Price shall be adjusted as required by the provisions
hereof, the Company shall forthwith file in the custody of its Secretary or an
Assistant Secretary at its principal office an officer's certificate showing
the adjusted Exercise Price determined as herein provided and setting forth in
reasonable detail the facts requiring such adjustment. Each such officer's
certificate shall be made available at all reasonable times for inspection by
the holder of this Warrant and the Company shall forthwith, after each such
adjustment, deliver a copy of such certificate to each holder of this Warrant.
Such certificates shall be conclusive as to the correctness of such
adjustments.
Section 5.
Definitions.
The following terms have meanings set forth below:
"Common Stock" means the Company's Common Stock, par value $.001 per share.
"Market Price" means, with respect to the shares of Common Stock, the mean
between the closing bid and asked prices as reported in the regular way for
such day on the principal national securities exchange in the United States on
which the shares are listed or admitted to trading, or, if they are not listed
or admitted to trading on any national securities exchange in the United
States, the mean between the closing bid and asked prices of the Common Stock
on NASDAQ or any comparable system, or, if the Common Stock is not listed on
NASDAQ or any comparable system, then the mean between the closing bid and
asked prices as furnished by two members of the National Association of
Securities Dealers, Inc. selected from time-to-time by the Company for that
purpose.
"Person" means an individual, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any department or
agency thereof.
Section 6.
No Voting Rights; Limitations of Liability.
This Warrant shall not entitle the holder hereof to any voting rights or
other rights as a stockholder of the Company. No provision hereof, in the
absence of affirmative action by the Registered Holder to purchase Common
Stock, and no enumeration herein of the rights or privileges of the Registered
Holder shall give rise to any liability of such holder for the Exercise Price
of Common Stock acquirable by exercise hereof or as a stockholder of the
Company.
Section 7.
Warrant Transferable.
This Warrant and all rights hereunder are non-transferable, in whole or in
part, without the prior written consent of the Company, which consent may be
withheld in the Company's sole discretion.
Section 8.
Replacement.
Upon receipt of evidence reasonably satisfactory to the Company (an affidavit
of the Registered Holder shall be satisfactory) of the ownership and the loss,
theft, destruction or mutilation of any certificate evidencing this Warrant,
and in the case of any such loss, theft or destruction, upon receipt of
indemnity reasonably satisfactory to the Company (provided that if the holder
is a financial institution or other institutional investor its own agreement
shall be satisfactory), or, in the case of any such mutilation upon surrender
of such certificate, the Company shall (at its expense) execute and deliver in
lieu of such certificate a new certificate of like kind representing the same
rights represented by such lost, stolen, destroyed or mutilated certificate
and dated the date of such lost, stolen, destroyed or mutilated certificate.
Section 9.
Notices.
Except as otherwise expressly provided herein, all notices referred to in this
Warrant shall be in writing and shall be delivered personally, sent by
reputable express courier service (charges prepaid) or sent by registered or
certified mail, return receipt
requested, postage prepaid and shall be deemed to have been given when so
delivered, sent or deposited in the U.S. Mail (I) to the Company, at its
principal executive offices and (ii) to the
Registered Holder of this Warrant, at such holder's address as it appears in
the records of the Company (unless otherwise indicated by any such holder).
Section 10.
Amendment and Waiver.
Except as otherwise provided herein, the provisions of this Warrant may be
amended and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company has
obtained the written consent of the Registered Holder of this Warrant.
Section 11.
Descriptive Headings; Governing Law.
The descriptive headings of the several Sections and paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this
Warrant. The construction, validity and interpretation of this Warrant shall
be governed by the internal law, and not the conflicts law, of Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
THE APPLETREE COMPANIES, INC.
By:
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Its:
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[Corporate Seal]
Attest:
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Secretary
EXHIBIT I
EXERCISE AGREEMENT
To:
Dated:
The undersigned, pursuant to the provisions set forth in the attached Warrant
(Certificate No. W- ), hereby agrees to subscribe for the purchase of
shares of the Common Stock covered by such Warrant and makes payment herewith
in full therefor at the price per share provided by such Warrant.
Signature
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Address
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