COMMON STOCK PURCHASE WARRANT To Purchase _______ Shares of Common Stock of UNITED BENEFITS & PENSION SERVICES, INC.
Exhibit
4.6
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY
AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
COMMON
STOCK PURCHASE WARRANT
To
Purchase _______
Shares
of
Common Stock of
UNITED
BENEFITS & PENSION SERVICES, INC.
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, ___________
(the
“Holder”),
is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the date hereof (the
“Initial
Exercise Date”)
and on
or prior to the close of business on November 30, 2012, the five year
anniversary of the Initial Exercise Date (the “Termination
Date”)
but
not thereafter, to subscribe for and purchase from United Benefits & Pension
Services, Inc., a Delaware corporation (the “Company”),
_______
shares
(the “Warrant
Shares”)
of
Common Stock, par value $.00001, of the Company (the “Common
Stock”).
The
purchase price of one share of Common Stock under this Warrant shall be equal
to
the Exercise Price, as defined in Section 2(b).
Section
1.
Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in that certain Amended and Securities Purchase Agreement (the
“Purchase
Agreement”),
dated
November 30, 2007, between the Company, Associated Third Party Administrators,
a
California corporation (“ATPA”) and the purchasers signatory
thereto.
Section
2.
Exercise.
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a)
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Exercise
of Warrant.
Exercise of the purchase rights represented by this Warrant may be
made at
any time or times on or after the Initial Exercise Date and on or
before
the Termination Date by delivery to the Company of a duly executed
facsimile copy of the Notice of Exercise Form annexed hereto (or
such
other office or agency of the Company as it may designate by notice
in
writing to the registered Holder at the address of such Holder appearing
on the books of the Company); provided,
however,
within 5 Business Days of the date said Notice of Exercise is delivered
to
the Company, the Holder shall have surrendered this Warrant to the
Company
and the Company shall have received payment of the aggregate Exercise
Price of the shares thereby purchased by wire transfer or cashier’s check
drawn on a United States bank.
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b)
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Exercise
Price.
The exercise price of the Common Stock under this Warrant shall be
$.00001, subject to adjustment hereunder (the “Exercise
Price”).
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c)
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Cashless
Exercise.
This Warrant may also be exercised by means of a “cashless exercise” in
which the Holder shall be entitled to receive a certificate for the
number
of Warrant Shares equal to the quotient obtained by dividing [(A-B)
(X)]
by (A), where:
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(A)
= the
VWAP on the Trading Day immediately preceding the date of such
election;
(B)
= the
Exercise Price of this Warrant, as adjusted; and
(X)
= the
number of Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.
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d)
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Exercise
Limitations;
Xxxxxx’s
Restrictions.
The Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2(c) or otherwise, to the extent that
after
giving effect to such issuance after exercise, the Holder (together
with
the Holder’s affiliates), as set forth on the applicable Notice of
Exercise, would beneficially own in excess of 9.99% of the number
of
shares of the Common Stock outstanding immediately after giving effect
to
such issuance. For purposes of the foregoing sentence, the 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 the determination of such sentence
is being made, but shall exclude the number of shares of Common Stock
which would be issuable upon (A) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of
its
affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including,
without limitation, any other Notes or Warrants) subject to a limitation
on conversion or exercise analogous to the limitation contained herein
beneficially owned by the Holder or any of its affiliates. Except as
set forth in the preceding sentence, for purposes of this Section
2(d),
beneficial ownership shall be calculated in accordance with Section
13(d)
of the Exchange Act, it being acknowledged by Holder that the Company
is
not representing to Holder that such calculation is in compliance
with
Section 13(d) of the Exchange Act and Holder is solely responsible
for any
schedules or forms required to be filed in accordance therewith or
in
accordance with Section 16 of the Exchange Act. To the extent that
the
limitation contained in this Section 2(d) applies,the determination
of
whether this Warrant is exercisable (in relation to other securities
owned
by the Holder) and of which a portion of this Warrant is exercisable
shall
be in the sole discretion of such Xxxxxx, and the submission of a
Notice
of Exercise shall be deemed to be such Holder’s determination of whether
this Warrant is exercisable (in relation to other securities owned
by such
Holder) and of which portion of this Warrant is exercisable, in each
case
subject to such aggregate percentage limitation, and the Company
shall
have no obligation to verify or confirm the accuracy of such
determination. For purposes of this Section 2(d), in determining
the
number of outstanding shares of Common Stock, the Holder may rely
on the
number of outstanding shares of Common Stock as reflected in (x)
the
Company’s most recent Form 10-QSB or Form 10-KSB, as the case may be, (y)
a more recent public announcement by the Company or (z) any other
notice
by the Company or the Company’s Transfer Agent setting forth the number of
shares of Common Stock outstanding. Upon the written or oral request
of the Holder, the Company shall within two Business Days confirm
orally
and in writing to the Holder the number of shares of Common Stock
then
outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or
exercise of securities of the Company, including this Warrant, by
the
Holder or its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The provisions of
this
Section 2(d) may be waived by the Holder upon, at the election of
the
Holder, not less than 61 days’ prior notice to the Company, and the
provisions of this Section 2(d) shall continue to apply until such
61st
day (or such later date, as determined by the Holder, as may be specified
in such notice of waiver).
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e)
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Mechanics
of Exercise.
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i)
Authorization
of Warrant Shares.
The
Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of the
purchase rights represented by this Warrant, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue). The Company covenants that during
the period the Warrant is outstanding, it will reserve from its authorized
and
unissued Common Stock a sufficient number of shares to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates
for
the Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation
of
any applicable law or regulation, or of any requirements of the Trading Market
upon which the Common Stock may be listed.
ii) Delivery
of Certificates Upon Exercise.
Certificates for shares purchased hereunder shall be transmitted by the transfer
agent of the Company to the Holder by crediting the account of the Holder’s
prime broker with the Depository Trust Company through its Deposit Withdrawal
Agent Commission (“DWAC”)
system
if the Company is a participant in such system, and otherwise by physical
delivery to the address specified by the Holder in the Notice of Exercise within
3 Trading Days from the delivery to the Company of the Notice of Exercise Form,
surrender of this Warrant and payment of the aggregate Exercise Price as set
forth above (“Warrant
Share Delivery Date”).
This
Warrant shall be deemed to have been exercised on the date the Exercise Price
is
received by the Company. The Warrant Shares shall be deemed to have been issued,
and Holder or any other person so designated to be named therein shall be deemed
to have become a holder of record of such shares for all purposes, as of the
date the Warrant has been exercised by payment to the Company of the Exercise
Price and all taxes required to be paid by the Holder, if any, pursuant to
Section 2(e)(vii) prior to the issuance of such shares, have been
paid.
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iii) Delivery
of New Warrants Upon Exercise.
If this
Warrant shall have been exercised in part, the Company shall, at the time of
delivery of the certificate or certificates representing Warrant Shares, deliver
to Holder a new Warrant evidencing the rights of Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
iv) Rescission
Rights.
If the
Company fails to transfer or cause its transfer agent to transmit to the Holder
a certificate or certificates representing the Warrant Shares pursuant to this
Section 2(e)(iv) by the Warrant Share Delivery Date, then the Holder will have
the right to rescind such exercise.
v) Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon
Exercise.
In
addition to any other rights available to the Holder, if the Company fails to
transfer or cause its transfer agent to transmit to the Holder a certificate
or
certificates representing the Warrant Shares pursuant to an exercise on or
before the Warrant Share Delivery Date, and if after such date the Holder is
required by its broker to purchase (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder of
the
Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”),
then
the Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Warrant Shares that the Company was required
to
deliver to the Holder in connection with the exercise at issue times (B) the
price at which the sell order giving rise to such purchase obligation was
executed, and (2) at the option of the Holder, either reinstate the portion
of
the Warrant and equivalent number of Warrant Shares for which such exercise
was
not honored or deliver to the Holder the number of shares of Common Stock that
would have been issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect
to
an attempted exercise of shares of Common Stock with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (1) of the
immediately preceding sentence the Company shall be required to pay the Holder
$1,000. The Holder shall provide the Company written notice indicating the
amounts payable to the Holder in respect of the Buy-In, together with applicable
confirmations and other evidence reasonably requested by the Company. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing shares of Common Stock
upon
exercise of the Warrant as required pursuant to the terms
hereof.
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vi) No
Fractional Shares or Scrip.
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share which Holder would
otherwise be entitled to purchase upon such exercise, the Company shall pay
a
cash adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price.
vii) Charges,
Taxes and Expenses.
Issuance of certificates for Warrant Shares shall be made without charge to
the
Holder for any issue or transfer tax or other incidental expense in respect
of
the issuance of such certificate, all of which taxes and expenses shall be
paid
by the Company, and such certificates shall be issued in the name of the Holder
or in such name or names as may be directed by the Holder; provided,
however,
that in
the event certificates for Warrant Shares are to be issued in a name other
than
the name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder;
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
viii) Closing
of Books.
The
Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms
hereof.
Section
3.
Certain Adjustments.
a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding: (A) pays a stock
dividend or otherwise make a distribution or distributions on shares of its
Common Stock or any other equity or equity equivalent securities payable in
shares of Common Stock (which, for avoidance of doubt, shall not include any
shares of Common Stock issued by the Company pursuant to this Warrant), (B)
subdivides outstanding shares of Common Stock into a larger number of shares,
(C) combines (including by way of reverse stock split) outstanding shares of
Common Stock into a smaller number of shares, or (D) issues by reclassification
of shares of the Common Stock any shares of capital stock of the Company, then
in each case the Exercise Price shall be multiplied by a fraction of which
the
numerator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding before such event and of which the denominator
shall
be the number of shares of Common Stock outstanding after such event and the
number of shares issuable upon exercise of this Warrant shall be proportionately
adjusted. Any adjustment made pursuant to this Section 3(a) shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
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b)
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Subsequent
Equity Sales.
If the Company or any Subsidiary thereof, as applicable, at any time
while
this Warrant is outstanding, shall offer, sell, grant any option
to
purchase or offer, sell or grant any right to reprice its securities,
or
otherwise dispose of or issue (or announce any offer, sale, grant
or any
option to purchase or other disposition) any Common Stock or Common
Stock
Equivalents entitling any Person to acquire shares of Common Stock,
at an
effective price per share less than the then Exercise Price (such
lower
price, the “Base
Share Price”
and such issuances collectively, a “Dilutive
Issuance”),
as adjusted hereunder (if the holder of the Common Stock or Common
Stock
Equivalents so issued shall at any time, whether by operation of
purchase
price adjustments, reset provisions, floating conversion, exercise
or
exchange prices or otherwise, or due to warrants, options or rights
per
share which is issued in connection with such issuance, be entitled
to
receive shares of Common Stock at an effective price per share which
is
less than the Exercise Price, such issuance shall be deemed to have
occurred for less than the Exercise Price), then, the Exercise Price
shall
be reduced to equal the Base Share Price and the number of Warrant
Shares
issuable hereunder shall be increased such that the aggregate Exercise
Price payable hereunder, after taking into account the decrease in
the
Exercise Price, shall be equal to the aggregate Exercise Price prior
to
such adjustment. Such adjustment shall be made whenever such Common
Stock
or Common Stock Equivalents are issued. Such adjustment shall be
made
whenever such Common Stock or Common Stock Equivalents are issued.
The
Company shall notify the Holder in writing, no later than the Trading
Day
following the issuance of any Common Stock or Common Stock Equivalents
subject to this section, indicating therein the applicable issuance
price,
or of applicable reset price, exchange price, conversion price and
other
pricing terms (such notice the “Dilutive
Issuance Notice”).
For purposes of clarification, whether or not the Company provides
a
Dilutive Issuance Notice pursuant to this Section 3(b), upon the
occurrence of any Dilutive Issuance, after the date of such Dilutive
Issuance the Holder is entitled to receive a number of Warrant Shares
based upon the Base Share Price regardless of whether the Holder
accurately refers to the Base Share Price in the Notice of Exercise.
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c)
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Pro
Rata Distributions.
If the Company, at any time prior to the Termination Date, shall
distribute to all holders of Common Stock (and not to Holders of
the
Warrants) evidences of its indebtedness or assets or rights or warrants
to
subscribe for or purchase any security other than the Common Stock
(which
shall be subject to Section 3(b)), then in each such case the Exercise
Price shall be adjusted by multiplying the Exercise Price in effect
immediately prior to the record date fixed for determination of
stockholders entitled to receive such distribution by a fraction
of which
the denominator shall be the VWAP determined as of the record date
mentioned above, and of which the numerator shall be such VWAP on
such
record date less the then per share fair market value at such record
date
of the portion of such assets or evidence of indebtedness so distributed
applicable to one outstanding share of the Common Stock as determined
by
the Board of Directors in good faith. In either case the adjustments
shall
be described in a statement provided to the Holders of the portion
of
assets or evidences of indebtedness so distributed or such subscription
rights applicable to one share of Common Stock. Such adjustment shall
be
made whenever any such distribution is made and shall become effective
immediately after the record date mentioned
above.
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d)
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Calculations.
All calculations under this Section 3 shall be made to the nearest
cent or
the nearest 1/100th of a share, as the case may be. The number of
shares
of Common Stock outstanding at any given time shall not includes
shares of
Common Stock owned or held by or for the account of the Company,
and the
description of any such shares of Common Stock shall be considered
on
issue or sale of Common Stock. For purposes of this Section 3, the
number
of shares of Common Stock deemed to be issued and outstanding as
of a
given date shall be the sum of the number of shares of Common Stock
(excluding treasury shares, if any) issued and
outstanding.
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e) Notice
to Holders.
i. Adjustment
to Exercise Price.
Whenever the Exercise Price is adjusted pursuant to this Section 3, the Company
shall promptly mail to each Holder a notice setting forth the Exercise Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment. If the Company issues a variable rate security, despite the
prohibition thereon in the Purchase Agreement, the Company shall be deemed
to
have issued Common Stock or Common Stock Equivalents at the lowest possible
conversion or exercise price at which such securities may be converted or
exercised in the case of a Variable Rate Transaction (as defined in the Purchase
Agreement), or the lowest possible adjustment price in the case of an MFN
Transaction (as defined in the Purchase Agreement).
ii. Notice
to Allow Exercise by Xxxxxx.
If (A)
the Company shall declare a dividend (or any other distribution) on the Common
Stock; (B) the Company shall declare a special nonrecurring cash dividend on
or
a redemption of the Common Stock; (C) the Company shall authorize the granting
to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights; (D) the
approval of any stockholders of the Company shall be required in connection
with
any reclassification of the Common Stock, any consolidation or merger to which
the Company is a party, any sale or transfer of all or substantially all of
the
assets of the Company, of any compulsory share exchange whereby the Common
Stock
is converted into other securities, cash or property; (E) the Company shall
authorize the voluntary or involuntary dissolution, liquidation or winding
up of
the affairs of the Company; then, in each case, the Company shall cause to
be
mailed to the Holder at its last addresses as it shall appear upon the Warrant
Register of the Company, at least 20 calendar days prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date
on
which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date
as
of which the holders of the Common Stock of record to be entitled to such
dividend, distributions, redemption, rights or warrants are to be determined
or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of record
shall
be entitled to exchange their shares of the Common Stock for securities, cash
or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer or share exchange; provided,
that
the failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice. The Holder is entitled to exercise this Warrant during the
20-day period commencing the date of such notice to the effective date of the
event triggering such notice.
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f)
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Fundamental
Transaction.
If, at any time while this Warrant is outstanding, (A) the Company
effects
any merger or consolidation of the Company with or into another Person,
(B) the Company effects any sale of all or substantially all of its
assets
in one or a series of related transactions, (C) any tender offer
or
exchange offer (whether by the Company or another Person) is completed
pursuant to which holders of Common Stock are permitted to tender
or
exchange their shares for other securities, cash or property, or
(D) the
Company effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively
converted
into or exchanged for other securities, cash or property (in any
such
case, a “Fundamental
Transaction”),
then, upon any subsequent conversion of this Warrant, the Holder
shall
have the right to receive, for each Warrant Share that would have
been
issuable upon such exercise absent such Fundamental Transaction,
at the
option of the Holder, (a) upon exercise of this Warrant, the number
of
shares of Common Stock of the successor or acquiring corporation
or of the
Company, if it is the surviving corporation, and Alternate Consideration
receivable upon or as a result of such reorganization, reclassification,
merger, consolidation or disposition of assets by a Holder of the
number
of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event or (b) cash equal to the value of
this
Warrant as determined in accordance with the Black-Scholes option
pricing
formula (the “Alternate
Consideration”).
For purposes of any such exercise, the determination of the Exercise
Price
shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect
of one
share of Common Stock in such Fundamental Transaction, and the Company
shall apportion the Exercise Price among the Alternate Consideration
in a
reasonable manner reflecting the relative value of any different
components of the Alternate Consideration. If holders of Common Stock
are
given any choice as to the securities, cash or property to be received
in
a Fundamental Transaction, then the Holder shall be given the same
choice
as to the Alternate Consideration it receives upon any exercise of
this
Warrant following such Fundamental Transaction. To the extent necessary
to
effectuate the foregoing provisions, any successor to the Company
or
surviving entity in such Fundamental Transaction shall issue to the
Holder
a new warrant consistent with the foregoing provisions and evidencing
the
Holder’s right to exercise such warrant into Alternate Consideration. The
terms of any agreement pursuant to which a Fundamental Transaction
is
effected shall include terms requiring any such successor or surviving
entity to comply with the provisions of this paragraph (f) and insuring
that this Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
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g)
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Exempt
Issuance.
Notwithstanding the foregoing, no adjustments, Alternate Consideration
nor
notices shall be made, paid or issued under this Section 3 in respect
of
an Exempt Issuance as defined in the Security Purchase
Agreement.
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h)
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Voluntary
Adjustment By Company.
The Company may at any time during the term of this Warrant reduce
the
then current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the
Company.
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Section
4.
Transfer
of Warrant.
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a)
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Transferability.
Subject to compliance with any applicable securities laws and the
conditions set forth in Sections 5(a) and 4(d) hereof and to the
provisions of Section 4.1 of the Purchase Agreement, this Warrant
and all
rights hereunder are transferable, in whole or in part, upon surrender
of
this Warrant at the principal office of the Company, together with
a
written assignment of this Warrant substantially in the form attached
hereto duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the
Company
shall execute and deliver a new Warrant or Warrants in the name of
the
assignee or assignees and in the denomination or denominations specified
in such instrument of assignment, and shall issue to the assignor
a new
Warrant evidencing the portion of this Warrant not so assigned, and
this
Warrant shall promptly be cancelled. A Warrant, if properly assigned,
may
be exercised by a new holder for the purchase of Warrant Shares without
having a new Warrant issued.
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b)
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New
Warrants.
This Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office of the Company, together
with
a written notice specifying the names and denominations in which
new
Warrants are to be issued, signed by the Holder or its agent or attorney.
Subject to compliance with Section 4(a), as to any transfer which
may be
involved in such division or combination, the Company shall execute
and
deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants
to be divided or combined in accordance with such
notice.
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c)
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Warrant
Register.
The Company shall register this Warrant, upon records to be maintained
by
the Company for that purpose (the “Warrant
Register”),
in the name of the record Holder hereof from time to time. The Company
may
deem and treat the registered Holder of this Warrant as the absolute
owner
hereof for the purpose of any exercise hereof or any distribution
to the
Holder, and for all other purposes, absent actual notice to the
contrary.
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d)
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Transfer
Restrictions.
If,
at the time
of the surrender of this Warrant in connection with any transfer
of this
Warrant, the transfer of this Warrant shall not be registered pursuant
to
an effective registration
statement under the Securities Act
and under
applicable state securities or blue sky laws, the Company may require,
as
a condition of allowing such transfer (i) that the Holder or transferee
of
this Warrant, as the case may be, furnish to the Company a written
opinion
of counsel (which opinion shall be in form, substance and scope customary
for opinions of counsel in comparable transactions) to the effect
that
such transfer may be made without
registration under
the
Securities Act and under applicable state securities or blue sky
laws,
(ii) that the holder or transferee execute and deliver to the Company
an
investment letter in form and substance acceptable to the Company
and
(iii) that the transferee be an “accredited
investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8)
promulgated under the Securities Act or a qualified institutional
buyer as
defined in Rule 144A(a) under the Securities
Act.
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Section
5.
Miscellaneous.
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a)
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Title
to Warrant.
Prior to the Termination Date and subject to compliance with applicable
laws and Section 4 of this Warrant, this Warrant and all rights hereunder
are transferable, in whole or in part, at the office or agency of
the
Company by the Holder in person or by duly authorized attorney, upon
surrender of this Warrant together with the Assignment Form annexed
hereto
properly endorsed. The transferee shall sign an investment letter
in form
and substance reasonably satisfactory to the
Company.
|
|
b)
|
No
Rights as Shareholder Until Exercise.
This Warrant does not entitle the Holder to any voting rights or
other
rights as a shareholder of the Company prior to the exercise hereof.
Upon
the surrender of this Warrant and the payment of the aggregate Exercise
Price (or by means of a cashless exercise), the Warrant Shares so
purchased shall be and be deemed to be issued to such Holder as the
record
owner of such shares as of the close of business on the later of
the date
of such surrender or payment.
|
|
c)
|
Loss,
Theft, Destruction or Mutilation of Warrant.
The Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant or any stock certificate relating to the
Warrant Shares, and in case of loss, theft or destruction, of indemnity
or
security reasonably satisfactory to it (which, in the case of the
Warrant,
shall not include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated,
the
Company will make and deliver a new Warrant or stock certificate
of like
tenor and dated as of such cancellation, in lieu of such Warrant
or stock
certificate.
|
|
d)
|
Saturdays,
Sundays, Holidays, etc.
If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall be a Saturday,
Sunday or a legal holiday, then such action may be taken or such
right may
be exercised on the next succeeding day not a Saturday, Sunday or
legal
holiday.
|
|
e)
|
Authorized
Shares.
The Company covenants that during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of the Warrant Shares
upon
the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute
full
authority to its officers who are charged with the duty of executing
stock
certificates to execute and issue the necessary certificates for
the
Warrant Shares upon the exercise of the purchase rights under this
Warrant. The Company will take all such reasonable action as may
be
necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or
of any
requirements of the Trading Market upon which the Common Stock may
be
listed.
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10
of
15
Except
and to the extent as waived or consented to by the Holder, the Company shall
not
by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this
Warrant, but will at all times in good faith assist in the carrying out of
all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the Company will
(a) not increase the par value of any Warrant Shares above the amount payable
therefor upon such exercise immediately prior to such increase in par value,
(b)
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant, and (c) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
|
f)
|
Jurisdiction.
All questions concerning the construction, validity, enforcement
and
interpretation of this Warrant shall be determined in accordance
with the
provisions of the Purchase
Agreement.
|
|
g)
|
Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the
exercise
of this Warrant, if not registered, will have restrictions upon resale
imposed by state and federal securities
laws.
|
|
h)
|
Nonwaiver
and Expenses.
No course of dealing or any delay or failure to exercise any right
hereunder on the part of Holder shall operate as a waiver of such
right or
otherwise prejudice Holder’s rights, powers or remedies, notwithstanding
the fact that all rights hereunder terminate on the Termination Date.
If
the Company willfully and knowingly fails to comply with any provision
of
this Warrant, which results in any material damages to the Holder,
the
Company shall pay to Holder such amounts as shall be sufficient to
cover
any costs and expenses including, but not limited to, reasonable
attorneys’ fees, including those of appellate proceedings, incurred by
Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies
hereunder.
|
|
i)
|
Notices.
Any notice, request or other document required or permitted to be
given or
delivered to the Holder by the Company shall be delivered in accordance
with the notice provisions of the Purchase
Agreement.
|
|
j)
|
Limitation
of Liability.
No provision hereof, in the absence of any affirmative action by
Holder to
exercise this Warrant or purchase Warrant Shares, and no enumeration
herein of the rights or privileges of Holder, shall give rise to
any
liability of Holder for the purchase price of any Common Stock or
as a
stockholder of the Company, whether such liability is asserted by
the
Company or by creditors of the
Company.
|
11
of
15
|
k)
|
Remedies.
Holder, in addition to being entitled to exercise all rights granted
by
law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees
that
monetary damages would not be adequate compensation for any loss
incurred
by reason of a breach by it of the provisions of this Warrant and
hereby
agrees to waive the defense in any action for specific performance
that a
remedy at law would be adequate.
|
|
l)
|
Successors
and Assigns.
Subject to applicable securities laws, this Warrant and the rights
and
obligations evidenced hereby shall inure to the benefit of and be
binding
upon the successors of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to
be for
the benefit of all Holders from time to time of this Warrant and
shall be
enforceable by any such Holder or holder of Warrant
Shares.
|
|
m)
|
Amendment.
This Warrant may be modified or amended or the provisions hereof
waived
with the written consent of the Company and the
Holder.
|
|
n)
|
Severability.
Wherever possible, each provision of this Warrant shall be interpreted
in
such manner as to be effective and valid under applicable law, but
if any
provision of this Warrant shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent
of such
prohibition or invalidity, without invalidating the remainder of
such
provisions or the remaining provisions of this
Warrant.
|
|
o)
|
Headings.
The headings used in this Warrant are for the convenience of reference
only and shall not, for any purpose, be deemed a part of this
Warrant.
|
********************
12
of
15
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
|
UNITED
BENEFITS & PENSION SERVICES, INC.
|
||
|
Name:
|
||
|
Title:
|
||
13
of
15
NOTICE
OF EXERCISE
TO:
COMPANY
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full),
and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
o in
lawful money of
the United States; or
o the
cancellation of such number of
Warrant Shares as is necessary, in accordance with the formula set forth in
subsection 2(c), to exercise this Warrant with respect to the maximum number
of
Warrant Shares purchasable pursuant to the cashless exercise procedure set
forth
in subsection 2(c).
(3) Please
issue a certificate or certificates representing said Warrant Shares in the
name
of the undersigned or in such other name as is specified below:
|
_______________________________
|
|
|
Tax
ID Number
|
_______________________________
|
The
Warrant Shares shall be delivered to the following:
|
_______________________________
|
|
|
_______________________________
|
|
|
_______________________________
|
(4)
Accredited
Investor.
The
undersigned is an “accredited investor” as defined in Regulation D promulgated
under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name
of
Investing Entity:
_______________________________________________________________________
Signature
of Authorized Signatory of Investing Entity:
_________________________________________________
Name
of
Authorized Signatory:
___________________________________________________________________
Title
of
Authorized Signatory:
____________________________________________________________________
Date:
_______________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this
form
and supply required information.
Do
not
use this form to exercise the warrant.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
|
Dated:
______________, _______
|
|
Holder’s
Signature:
|
_____________________________
|
|
|
Holder’s
Address:
|
_____________________________
|
|
|
_____________________________
|
Signature
Guaranteed: ___________________________________________
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
