EXHIBIT 10.34
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT ("Agreement") is made and entered into
this 30th day of June, 1997 by and between Xxxxx X. XxXxxxxx ("Purchaser") and
LS Capital Corporation, a Delaware corporation (the "Company").
RECITALS:
WHEREAS, the Company desires to sell to Purchaser from time to time, and
Purchaser is willing to purchase from the Company from time to time, warrants
("Warrants") to acquire shares of the Company's common stock, $.01 par value per
share (the "Common Stock"), in each case upon the terms, provisions and
conditions hereof; and
WHEREAS, each of the Company and Purchaser desires to memorialize in
writing the terms, provisions and conditions of the Company's sale and
Purchaser's purchase of the Warrants and certain other matters relating thereto;
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements, representations and warranties set forth hereinafter, $10.00 and
other good and valuable consideration (the receipt, adequacy and sufficiency of
which each of the Company and Purchaser hereby acknowledges) and subject to the
terms, provisions and conditions hereof, each of the Company and Purchaser
hereby agrees as follows:
1. Term. The term of this Agreement (the "Term") shall commence
on the date hereof and shall continue for two years thereafter.
2. General Representations and Warranties.
(a) Purchaser hereby represents and warrants to the Company that
Purchaser has full right, power and authority to execute and deliver this
Agreement and all other agreements, documents and instruments to be executed in
connection herewith and perform Purchaser's obligation hereunder and thereunder;
when this Agreement and all other agreements, documents and instruments to be
executed by Purchaser in connection herewith are executed by Purchaser and
delivered to the Company, this Agreement and such other agreements, documents
and instruments will constitute the valid and binding agreements of Purchaser
enforceable against Purchaser in accordance with their respective terms; neither
the execution and delivery of this Agreement or any other agreements, documents
and instruments to be executed in connection herewith nor the consummation of
the transactions contemplated hereby or thereby will (i) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
Purchaser is a party or by which Purchaser is bound or by which any of the
assets of Purchaser is bound or affected, (ii) violate any judgment against, or
binding upon, Purchaser or the assets of Purchaser, or (iii) result in the
creation of any lien, charge or encumbrance upon any assets of Purchaser
pursuant to the terms of any contract referred to in (i) of this Section 2(a);
there are no actions, suits, claims or legal, administrative or arbitration
proceedings or investigations pending or threatened against, involving or
affecting any of the assets of Purchaser, this
Agreement, or the transactions contemplated hereby, and there are no outstanding
orders, writs, injunctions or decrees of any court, governmental agency or
arbitration tribunal against, involving or affecting any assets of Purchaser,
this Agreement, or the transactions contemplated hereby; no consent or approval
from any person is required in connection with the execution and delivery of
this Agreement or any of the other agreements, documents and instruments to be
executed by Purchaser in connection herewith; and the representations and
warranties made immediately above and elsewhere herein are material to the
Company and are being relied upon by the Company in connection with its decision
to enter into the transactions provided for by this Agreement.
(b) The Company hereby represents and warrants to Purchaser that it has
full right, power and authority to execute and deliver this Agreement and all
other agreements, documents and instruments to be executed by it in connection
herewith and perform its obligation hereunder and thereunder; it has been duly
organized, is validly existing and is in good standing in the jurisdiction in
which it was incorporated; the execution and delivery by it of this Agreement
and all other agreements, documents and instruments to be executed by it in
connection herewith have been authorized by all necessary corporate action; when
this Agreement and all other agreements, documents and instruments to be
executed by it in connection herewith are executed by it and delivered to the
Purchaser, this Agreement and such other agreements, documents and instruments
will constitute the valid and binding agreements of it enforceable against it in
accordance with their respective terms; neither the execution and delivery of
this Agreement or any other agreements, documents and instruments to be executed
in connection herewith nor the consummation of the transactions contemplated
hereby or thereby will (i) violate, conflict with or result in the breach or
termination of, or otherwise give any other contracting party the right to
terminate, or constitute a default (by way of substitution, novation or
otherwise) under the terms of, any contract to which it is a party or by which
it is bound or by which any of the assets of it is bound or affected, (ii)
violate any judgment against, or binding upon, it or upon its assets, (iii)
result in the creation of any lien, charge or encumbrance upon any of its assets
pursuant to the terms of any contract referred to in (i) of this Section 2(b),
or (iv) violate any provision in the charter documents, bylaws or any other
agreement affecting the governance and control of it; there are no actions,
suits, claims or legal, administrative or arbitration proceedings or
investigations pending or threatened against, involving or affecting any of its
assets, this Agreement, or the transactions contemplated hereby (other than as
reflected in the Company's filings with the Securities and Exchange Commission),
and there are no outstanding orders, writs, injunctions or decrees of any court,
governmental agency or arbitration tribunal against, involving or affecting any
of its assets, this Agreement, or the transactions contemplated hereby; no
consent or approval from any person is required in connection with the execution
and delivery of this Agreement or any of the other agreements, documents and
instruments to be executed by it in connection herewith; the shares of Common
Stock to be issued to Purchaser pursuant to the exercise of the Warrants shall
be duly authorized, validly issued, fully paid and non-assessable at the time
that they are issued; and the representations and warranties made immediately
above are material to Purchaser and are being relied upon by Purchaser in
connection with Purchaser's decision to enter into the transactions provided for
by this Agreement.
3. Securities Representations and Warranties.
Purchaser hereby represents and warrants to the Company that Purchaser
is not a "U.S.
Person" as that term in defined in Regulation S under the Act; at the time the
buy order originated for the Warrants and the date of this Agreement, Purchaser
was and will be outside of the United States of America (the "U.S."); Purchaser
is acquiring the Warrants for Purchaser's own account and not on behalf of any
U.S. Person, and a sale has not been prearranged with a U.S. Person or a
purchaser in the U.S.; Purchaser agrees that all offers and sales of the
Warrants prior to the expiration of a period commencing on the date of the
issuance thereof and ending 40 days thereafter shall only be made in compliance
with the safe harbor contained in Regulation S, or pursuant to the registration
thereof or an exemption from registration, and that all offers and sales in the
U.S. after expiration of the 40-day period shall be made only pursuant to the
registration thereof or an exemption from registration; all offering documents
received by Purchaser have included statements, and all certificates that
Purchaser shall receive representing the Warrants shall feature legends to the
effect that the Warrants have not been registered under the Act and may not be
offered or sold in the U.S. or to U.S. Persons prior to the expiration of a
period commencing on the date of the issuance thereof and ending 40 days
thereafter and all offers and sales shall only be made in compliance with the
safe harbor contained in Regulation S, or pursuant to the registration thereof
or an exemption from registration; Purchaser has been furnished with the
Company's most recent Annual Report on Form 10-K and any subsequent Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K; Purchaser is familiar with
the business and financial condition, properties, operations and prospects of
the Company, and has been given full access to all material information
concerning the condition, properties, operations and prospects of the Company;
Purchaser has had an opportunity to ask such questions of, and to receive such
information from, the Company as Purchaser has desired and to obtain any
additional information necessary to verify the accuracy of the information and
data received; and Purchaser is satisfied that there is no material information
concerning the condition, properties, operations and prospects of the Company,
of which Purchaser is unaware.
4. Purchase of Warrants.
(a) At any time and from time to time during the Term and upon notice from
the Company (a "Warrant Purchase Notice"), Purchaser hereby agrees to purchase
Warrants from the Company at Closings (as defined herein) in transactions exempt
from the securities offering registration requirements of federal and state
securities laws, upon the terms, provisions and conditions contained herein and
in accordance with the related Warrant Purchase Notice. Each Warrant Purchase
Notice shall contain the amount of funds (the "Warrant Purchase Price") that the
Company desires Purchaser to expend in connection with the purchase of the
related Warrant; provided, however, that to limit the amount of Purchaser's
investment in the Company and its subsidiaries, Purchaser shall never be
required to have expended a cumulative Warrant Purchase Price pursuant to this
Agreement exceeding the amount of net proceeds that Purchaser has received from
any sales of the 300,000 shares of Common Stock (the "300,000 Shares") that
Purchaser received from the Company in connection with Purchaser's contribution
of mining claims to Desert Minerals, Inc., a Delaware subsidiary corporation of
the Company. In connection with the foregoing limitation on Purchaser's
obligation to purchase Warrants pursuant to this Agreement, Purchaser shall (i)
maintain complete records with respect to the sale of the 300,000 Shares, (ii)
give notice to the Company upon the sale of any of the 300,000 Shares and the
amount of net proceeds received in connection therewith, and (iii) extend to the
Company the right to receive copies of and
examine the records of Purchaser to the extent they pertain to the sale of the
300,000 Shares. With respect to the purchase of any Warrant, the number of
shares that may purchased pursuant to an exercise of the Warrant shall equal the
product obtained by multiplying (i) the quotient obtain by dividing the Warrant
Purchase Price for the Warrant, by the closing sales price of the Common Stock
on the date preceding the date of the Warrant Purchase Notice (or the sales
price of the most recent sale if there is no closing price on such date), by
(ii) 1.33, and then rounding to the closest whole number of shares. Moreover,
with respect to the purchase of any Warrant, the term during which the Warrant
may be exercised shall be two years from the date of issuance, and the per-share
purchase price for shares acquired pursuant to an exercise of the Warrant shall
be $.01. Each Warrant shall be represented by the form of warrant attached
hereto as an exhibit, with the number of shares determined in accordance with
the preceding sentence as well as the dates for the issuance and expiration of
the Warrant being reflected in the form of warrant.
(b) Subject to Section 4(c) below, the closing (the "Closing") of each
sale and purchase of a Warrant pursuant to this Agreement shall occur on such
date as the Company has specified in the related Warrant Purchase Notice, which
date shall be between five and ten days after the giving of such notice. A
Closing need not be one in which the Company and Purchaser are physically
present but may be one in which all documents, instruments and other items
necessary to close the sale and purchase of a Warrant are transmitted between
the parties by means of ordinary or express mails and wire-transfers. At each
Closing, Purchaser shall deliver the Warrant Purchase Price for the related
Warrant in immediately available funds and the certificates required of
Purchaser as provided in Section 4(c) below, and the Company shall deliver the
Warrant in the form of warrant attached hereto as Exhibit A and as otherwise
provided herein and the certificates required of the Company as provided in
Section 4(c) below.
(c) The obligations of Purchaser at a Closing are subject, at
Purchaser's election, to the satisfaction on or prior to Closing of each of the
following conditions: (i) each of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all respects at and as
of the Closing as if each such representation and warranty was made at and as of
the Closing, Seller shall have performed in all respects all agreements and
covenants required by this Agreement to be performed by it prior to or at the
Closing, and at the Closing there shall be delivered to Purchaser customary
bring-down certificates (each dated as of the Closing, signed by Seller) to the
foregoing effects; and (ii) no suit or other proceeding by any third party shall
be pending before any court or governmental agency seeking to restrain, prohibit
or declare illegal, or seeking substantial damages from Purchaser in connection
with, the transactions contemplated by this Agreement. The obligations of Seller
at a Closing are subject, at Seller's election, to the satisfaction on or prior
to Closing of each of the following conditions: (x) each of the representations
and warranties of Purchaser contained in this Agreement shall be true and
correct in all respects at and as of the Closing as if each such representation
and warranty was made at and as of the Closing, Purchaser shall have performed
in all respects all agreements and covenants required by this Agreement to be
performed by it prior to or at the Closing, and at the Closing there shall be
delivered to Seller customary bring-down certificates (each dated as of the
Closing, signed by Purchaser) to the foregoing effect; (y) Purchaser shall have
delivered to Seller a certificate signed by Purchaser containing such other
representations and warranties of Purchaser as the Company shall believe
necessary or advisable to determine that the issuance of the related Warrant is
exempt from federal and state securities offering registration requirements; and
(z) no suit or other proceeding by any third party shall be pending before any
court or governmental agency seeking to restrain, prohibit or declare illegal,
or seeking substantial damages from Seller in connection with, the transactions
contemplated by this Agreement. In addition to the preceding, Purchaser agrees
to furnish to the Company any other information required by the Company in order
for the Company to determine that the issuance of a Warrant will not violate
federal or state securities laws. If the Company believes that the issuance of a
Warrant will violate such laws, then the date of the related Closing shall be
extended until all action believed by the Company to be necessary in order to
avoid violating such laws can be taken.
5. Indemnification.
(a) All representations and warranties made herein by a party hereto
shall survive all transactions provided for or contemplated herein, including,
without limitation, the issuances and sales of the Warrants and the issuances of
shares of Common Stock pursuant to exercises of the Warrants.
(b) Purchaser shall protect, indemnify and hold the Company harmless
from any and all demands, claims, actions, causes of actions, lawsuits,
proceedings, judgments, losses, damages, injuries, liabilities, obligations,
expenses and costs (including costs of litigation and attorneys' fees), arising
from any breach of any agreement, representation or warranty made by Purchaser
in this Agreement.
(c) The Company shall protect, indemnify and hold Purchaser harmless
from any and all demands, claims, actions, causes of actions, lawsuits,
proceedings, judgments, losses, damages, injuries, liabilities, obligations,
expenses and costs (including costs of litigation and attorneys' fees), arising
from any breach of any agreement, representation or warranty made by it in this
Agreement.
6. General.
(a) THIS AGREEMENT AND ALL QUESTIONS RELATING TO ITS
VALIDITY, INTERPRETATION, PERFORMANCE, AND ENFORCEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
(b) Mandatory venue for any controversy arising out of or relating to
this Agreement or any modification or extension thereof, including any claims
for breach, for damages, and/or for recision or reformation, shall be in a court
of competent jurisdiction located in Xxxxxx County, Texas.
(c) This Agreement contains the entire understanding among the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements, or conditions,
express or implied, oral or written, except as herein contained. This Agreement
may not be modified or amended other than by an agreement in writing signed by
all parties affected.
(d) The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
The section headings in this Agreement are for convenience only; they form no
part of this Agreement and shall not affect its interpretation.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and
the same instrument.
(f) The parties hereto hereby agree that time is of the essence for all
purposes of this Agreement.
(g) Any notices to be given hereunder by any party to the other party
may be effected either by personal delivery in writing, or by mail, registered
or certified, postage prepaid with return receipt requested, addressed to the
party to be notified at the address set forth beneath such party's signature
below.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
"COMPANY"
LS CAPITAL CORPORATION
By:_________________________________
Xxxx X. Xxxxxx, President
Address: 00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
"PURCHASER"
------------------------------------
Xxxxx X. XxXxxxxx
Address: 1400 000 Xxxxxxx Xx.
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
XXXXXX X0X 0X0
THIS WARRANT AND THE SHARES OF COMMON STOCK THAT MAY BE PURCHASED ON THE
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS WARRANT IS BEING OFFERED
AND SOLD IN RELIANCE ON THE EXEMPTION FROM REGISTRATION PROVIDED FOR BY
REGULATION S UNDER THE ACT. CONSEQUENTLY, IT MAY NOT BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS (OTHER THAN DISTRIBUTORS) EXCEPT AFTER THE
EXPIRATION OF A 40-DAY PERIOD COMMENCING ON THE ISSUANCE OF THIS WARRANT, UNLESS
THIS WARRANT IS REGISTERED UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
REQUIREMENTS OF THE ACT IS AVAILABLE. FURTHERMORE, THIS WARRANT MAY NOT BE
TRANSFERRED EXCEPT AS PROVIDED IN SECTION 7(b) HEREOF. THE SHARES OF COMMON
STOCK ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT.
LS CAPITAL CORPORATION
WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK OF
LS CAPITAL CORPORATION
(A Delaware Corporation)
_________________ _____, 199___
VOID AFTER 5:00 P.M., CENTRAL STANDARD TIME,
ON _________________ _____, 199___
(being two years after the date hereof)
LS Capital Corporation, a Delaware corporation (the "Company"), hereby
certifies that Xxxxx X. XxXxxxxx (together with his permitted assigns, the
"Registered Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time or from time to time on or after
___________________ _____, 199___ (being the date hereof) and on or before of
___________________ _____, 199___ (being two years after the date hereof) at not
later than 5:00 p.m. (Central Standard Time), _______________ shares of Common
Stock, $.01 par value, of the Company ("Common Stock"), at a per-share purchase
price equal to $.01. The shares purchasable upon exercise of this Warrant, and
the per-share purchase price, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Stock"
and the "Purchase Price", respectively.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in whole or
in part, by surrendering this Warrant, with the Purchase Form appended hereto as
Exhibit A duly executed by such Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, by bank or certified check in lawful money of
the United States, of the Purchase Price payable in respect
of the number of shares of Warrant Stock purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in subsection 1(a) above.
At such time, the person or persons in whose name or names any certificates for
Warrant Stock shall be issuable upon such exercise as provided in subsection
1(c) below shall be deemed to have become the holder or holders of record of the
Warrant Stock represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant in full
or in part, and in any event within ten (10) days thereafter, the Company at its
expense will cause to be issued in the name of, and delivered to, the Registered
Holder, or, subject to the terms and conditions hereof, as the Registered Holder
(upon payment by the Registered Holder of any applicable transfer taxes) may
direct:
(i) a certificate or certificates for the number of full
shares of Warrant Stock to which such Registered Holder shall be entitled upon
such exercise plus, in lieu of any fractional share to which such Registered
Holder would otherwise be entitled, cash in an amount determined pursuant to
Section 3 hereof, and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of shares of Warrant Stock equal (without
giving effect to any adjustment therein) to the number of such shares called for
on the face of this Warrant minus the number of such shares purchased by the
Registered Holder upon such exercise as provided in subsection 1(a) above.
2. Adjustments.
(a) If the outstanding shares of the Company's Common Stock shall be
subdivided into a greater number of shares or a dividend in Common Stock shall
be paid in respect of Common Stock, the Purchase Price in effect immediately
prior to such subdivision or at the record date of such dividend shall
simultaneously with the effectiveness of such subdivision or immediately after
the record date of such dividend be proportionately reduced. If the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Purchase Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Purchase Price, the
number of shares of Warrant Stock purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(b) If there shall occur any capital reorganization or reclassification
of the Company's Common Stock (other than a change in par value or a subdivision
or combination as provided for in subsection 2(a) above), or any consolidation
or merger of the Company with or into another corporation, or a transfer of all
or substantially all of the assets of the
Company, or the payment of a liquidating distribution then, as part of any such
reorganization, reclassification, consolidation, merger, sale or liquidating
distribution, lawful provision shall be made so that the Registered Holder of
this Warrant shall have the right thereafter to receive upon the exercise hereof
(to the extent, if any, still exercisable) the kind and amount of shares of
stock or other securities or property which such Registered Holder would have
been entitled to receive if, immediately prior to any such reorganization,
reclassification, consolidation, merger, sale or liquidating distribution, as
the case may be, such Registered Holder had held the number of shares of Common
Stock which were then purchasable upon the exercise of this Warrant. In any such
case, appropriate adjustment (as reasonably determined by the Board of Directors
of the Company) shall be made in the application of the provisions set forth
herein with respect to the rights and interests thereafter of the Registered
Holder of this Warrant such that the provisions set forth in this Section 2
(including provisions with respect to adjustment of the Purchase Price) shall
thereafter be applicable, as nearly as is reasonably practicable, in relation to
any shares of stock or other securities or property thereafter deliverable upon
the exercise of this Warrant.
(c) In any case in which this Section 2 shall require that any
adjustment in the number of shares of Warrant Stock or other property for which
this Warrant may be exercised be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event issuing to the Registered Holder the amount of Warrant Stock and other
property, if any, issuable upon exercise of this Warrant after such record date
that is over and above the Warrant Stock and other property, if any, issuable
upon exercise of this Warrant as in effect prior to such adjustment; provided
that upon request the Company shall deliver to the Registered Holder a due xxxx
or other appropriate instrument evidencing the Registered Holder's right to
receive such additional shares or property upon the occurrence of the event
requiring such adjustment.
(d) When any adjustment is required to be made in the Purchase Price,
the Company shall promptly mail to the Registered Holder a certificate setting
forth the Purchase Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Such certificate shall also
set forth the kind and amount of stock or other securities or property for which
this Warrant shall be exercisable following the occurrence of any of the events
specified in subsection 2(a) or 2(b) above.
3. Fractional Shares.
The Company shall not be required upon the exercise of this Warrant to
issue any fractional shares, but shall make an adjustment therefor in cash on
the basis of the closing sales price of the Warrant Stock on the date preceding
the date that the related Purchase Form is given by the Registered Holder (or
the sales price of the most recent sale if there is no closing price on such
date)
4. Limitation on Sales.
(a) The Registered Holder, and each subsequent holder of this Warrant,
if any, acknowledges that this Warrant and the Warrant Stock have not been
registered under the Securities Act of 1933, as now in force or hereafter
amended, or any successor legislation (the "Act"), and agrees not to sell,
pledge, distribute, offer for sale, transfer or otherwise dispose of this
Warrant or any Warrant Stock issued upon its exercise in the absence of (i) an
effective
registration statement under the Act as to this Warrant or such Warrant Stock
and registration or qualification of this Warrant or such Warrant Stock under
any applicable blue sky or state securities law then in effect, or (ii) an
opinion of counsel, satisfactory to the Company, that such registration and
qualification are not required. Without limiting the generality of the
foregoing, unless the offering and sale of the Warrant Stock to be issued upon
the particular exercise of this Warrant shall have been effectively registered
under the Act, the Company shall be under no obligation to issue the shares
covered by such exercise unless and until the Registered Holder shall have
executed an investment letter in form and substance satisfactory to the Company,
including a warranty at the time of such exercise that it is acquiring such
shares for its own account, for investment and not with a view to, or for sale
in connection with, the distribution of any such shares, in which event the
Registered Holder shall be bound by the provisions of a legend to such effect on
the certificate(s) representing the Warrant Stock. In addition, without limiting
the generality of the foregoing, the Company may delay issuance of the Warrant
Stock until completion of any action or obtaining of any consent, which the
Company believes necessary or advisable under any applicable law (including
without limitation state securities or "blue sky" laws).
(b) The Registered Holder agrees, and each other holder of Warrant
Stock agrees, if requested by the Company and/or the representative of the
underwriters underwriting an offering of Common Stock (or other securities of
the Company) from time to time, not to sell or otherwise transfer or dispose of
any Warrant Stock then held by the Registered Holder and/or such other holder
during such period of time following the effective date of any registration
statement of the Company filed under the Act for the period of time with respect
to which a majority of the executive officers of the Company agree not to sell
shares of Common Stock (or other securities of the Company). Such agreement
shall be in writing in a form satisfactory to the Company and such
representative. The Company may impose stop-transfer instructions with respect
to the Warrant Stock subject to the foregoing restriction until the end of such
period.
5. Reservation of Stock.
The Company will at all times reserve and keep available, solely for
issuance and delivery upon the exercise of this Warrant, such shares of Warrant
Stock and other stock, securities and property, as from time to time shall be
issuable upon the exercise of this Warrant.
6. Replacement of Warrants.
Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and (in the case of loss,
theft or destruction) upon delivery of an indemnity agreement (with surety if
reasonably required) in an amount reasonably satisfactory to the Company, or (in
the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will issue, in lieu thereof, a new Warrant of like tenor.
7. Transfers. etc.
Subject to Section 4 above:
(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. The Registered Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change.
(b) This Warrant shall not be transferable by the Registered Holder and
shall be exercisable only by the Registered Holder; provided that this Warrant
may be transferred to, and may be exercisable by, any company that directly, or
indirectly through one or more intermediaries, is controlled by, or is under
common control with, the Registered Holder. Subject to the foregoing, this
Warrant shall not be assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to execution, attachment
or similar process without the prior written consent of the Company. Any
attempted transfer, assignment, pledge, hypothecation or other disposition of
this Warrant or of any rights granted hereunder contrary to the provisions of
this Section 7, or the levy of any attachment or similar process upon this
Warrant or such rights, shall be null and void.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when this
Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
8. Mailing of Notices, etc.
All notices and other communications from the Company to the Registered
Holder of this Warrant shall be mailed by first-class certified or registered
mail, postage prepaid, to the address furnished to the Company in writing by the
last Registered Holder of this Warrant who shall have furnished an address to
the Company in writing. All notices and other communications from the Registered
Holder of this Warrant or in connection herewith to the Company shall be mailed
by first-class certified or registered mail, postage prepaid, to the Company at
its offices at 00000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, or such
other address as the Company shall so notify the Registered Holder.
9. No Rights as Stockholder.
Until the exercise of this Warrant, the Registered Holder of this
Warrant shall not have or exercise any rights by virtue hereof as a stockholder
of the Company.
10. Change or Waiver.
Any term of this Warrant may be changed or waived only by an instrument
in writing signed by the party against which enforcement of the change or waiver
is sought.
11. Headings.
The headings in this Warrant are for purposes of reference only and
shall not limit or
otherwise affect the meaning of any provision of this Warrant.
12. Governing Law.
THIS WARRANT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE.
LS CAPITAL CORPORATION
By:______________________________
Xxxx X. Xxxxxx,
President
EXHIBIT A
PURCHASE FORM
To: LS Capital Corporation
00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
The undersigned pursuant to the provisions set forth in the attached
Warrant hereby irrevocably elects to purchase _________ shares of the Common
Stock (the "Common Stock") covered by such Warrant and herewith makes payment of
$_____________, representing the full purchase price for such shares at the
per-share price provided for in such Warrant.
The undersigned understands and acknowledges the terms and restrictions
on the right to transfer or dispose of the Common Stock set forth in Section 4
of the attached Warrant, which the undersigned has carefully reviewed. The
undersigned consents to the placing of a legend on its certificate for the
Common Stock referring to such restrictions and the placing of stop transfer
orders until the Common Stock may be transferred in accordance with the terms of
such restrictions.
By:_________________________________
Name:______________________________
Title:_______________________________
Dated:______________________________
