XXXXXX-XXXXX INCORPORATED
(a Nevada corporation)
Warrant for the Purchase of
_______ Shares of Common Stock, Par Value $0.001
THIS WARRANT WILL BE VOID
AFTER 11:59 P.M. MOUNTAIN TIME ON AUGUST 31, 1997
This Warrant has not been registered under the Securities Act of
1933, as amended (the "Securities Act"), and is a "restricted
security" within the meaning of Rule 144 promulgated under the
Securities Act. This Warrant has been acquired for investment
and may not be sold or transferred without complying with Rule 144
in the absence of an effective registration or other compliance
under the Securities Act.
This certifies that, for value received, __________ (the "Holder"),
is entitled to subscribe for, purchase, and receive _______ fully
paid and nonassessable shares of common stock, par value $0.001
(the "Warrant Shares"), of Xxxxxx-Xxxxx Incorporated, a Nevada
corporation (the "Company"), at the price of $4.50 per Warrant
Share (the "Exercise Price"), at any time or from time to time on
or before 11:59 p.m. mountain time on August 31, 1997 (the
"Exercise Period"), on presentation and surrender of this
Warrant with the purchase form attached hereto, duly executed,
at the principal office of the Company at 0000 Xxxx 000 Xxxxx,
Xxxxx, Xxxx 00000, and by paying in full and in lawful money of
the United States of America by cash or cashier's check, the
Exercise Price for the Warrant Shares as to which this Warrant is
exercised, on all the terms and conditions hereinafter set forth.
The number of Warrant Shares to be received on exercise of this
Warrant and the Exercise Price may be adjusted on the occurrence
of such events as described herein. If the subscription rights
represented hereby are not exercised by 11:59 p.m. mountain time
on August 31, 1997, this Warrant shall automatically become void
and of no further force or effect, and all rights represented
hereby shall cease and expire.
Subject to the terms set forth herein, this Warrant may be
exercised by the Holder in whole or in part by execution of the
form of exercise attached hereto and payment of the Exercise Price
in the manner described above.
1. Exercise of Warrants. On the exercise of all or any portion
of this Warrant in the manner provided above, the Holder
exercising the same shall be deemed to have become a holder of
record of the Warrant Shares for all purposes, and certificates
for the securities so purchased shall be delivered to the Holder
within a reasonable time, but in no event longer than ten days
after this Warrant shall have been exercised as set forth above.
If this Warrant shall be exercised in respect to only a part of
the Warrant Shares covered hereby, the Holder shall be entitled
to receive a similar Warrant of like tenor and date covering the
number of Warrant Shares with respect to which this Warrant shall
not have been exercised. On the exercise of all or any portion
of this Warrant, at the instruction of the Holder, the Company
shall offset any amounts due by it to Holder against payment of
the exercise price for the Warrants.
2. Limitation on Transfer. Subject to the restrictions set forth
in paragraph 7 hereof, this Warrant is transferable at the offices
of the Company. In the event this Warrant is assigned in the
manner provided herein, the Company, upon request and upon
surrender of this Warrant by the Holder at the principal office
of the Company accompanied by payment of all transfer taxes, if
any, payable in connection therewith, shall transfer this Warrant
on the books of the Company. If the assignment is in whole, the
Company shall execute and deliver a new Warrant or Warrants of
like tenor to this Warrant to the appropriate assignee expressly
evidencing the right to purchase the aggregate number of shares
of common stock purchasable hereunder; and if the assignment is
in part, the Company shall execute and deliver to the appropriate
assignee a new Warrant or Warrants of like tenor expressly
evidencing the right to purchase the portion of the aggregate
number of Warrant Shares as shall be contemplated by any such
transfer, and shall concurrently execute and deliver to the
Holder a new Warrant of like tenor to this Warrant evidencing
the right to purchase the remaining portion of the Warrant Shares
purchasable hereunder which have not been transferred to the
assignee.
3. Exchange of Warrants. This Warrant is exchangeable, on the
presentation and surrender hereof by the Holder at the office of
the Company, for a new Warrant or Warrants of like tenor
representing in the aggregate the right to subscribe for and
purchase the number of Warrant Shares which may be subscribed
for and purchased hereunder.
4. Fully Paid Shares. The Company covenants and agrees that
the Warrant Shares which may be issued on the exercise of the
rights represented by this Warrant will be, when issued, fully
paid and nonassessable and free from all taxes, liens, and
charges with respect to the issue thereof. The Company further
covenants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company
will have authorized and reserved a sufficient number of shares
of common stock to provide for the exercise of the rights
represented by this Warrant.
5. Antidilution Provisions. The Warrant Price and number of
Warrant Shares purchasable pursuant to this Warrant may be subject
to adjustment from time to time as follows:
(a) If the Company shall take a record of the holders of its
common stock for the purpose of entitling them to receive a
dividend in shares, the Warrant Price in effect immediately prior
to such record date shall be proportionately decreased, such
adjustment to become effective immediately after the opening of
business on the day following such record date.
(b) If the Company shall subdivide the outstanding shares of
common stock into a greater number of shares, combine the
outstanding shares of common stock into a smaller number of shares,
or issue by reclassification any of its shares, the Warrant Price
in effect immediately prior thereto shall be adjusted so that the
Holder of this Warrant thereafter surrendered for exercise shall
be entitled to receive, after the occurrence of any of the events
described, the number of Warrant Shares to which the Holder would
have been entitled had such Warrant been exercised immediately
prior to the occurrence of such event. Such adjustment shall
become effective immediately after the opening of business on
the day following the date on which such subdivision, combination,
or reclassification, as the case may be, becomes effective.
(c) If any capital reorganization or reclassification of the
Company's common stock, or consolidation or merger of the Company
with another corporation or the sale of all or substantially all
of its assets to another corporation shall be effected in such a
way that holders of common stock shall be entitled to receive
stock, securities, or assets with respect to or in exchange for
common stock, then, as a condition of such reorganization,
reclassification, consolidation, merger, or sale, lawful
adequate provisions shall be made whereby the Holder of this
Warrant shall thereafter have the right to acquire and receive on
exercise hereof such shares of stock, securities, or assets as
would have been issuable or payable (as part of the
reorganization, reclassification, consolidation, merger, or
sale) with respect to or in exchange for such number of
outstanding common shares of the Company as would have been
received on exercise of this Warrant immediately before such
reorganization, reclassification, consolidation, merger, or sale.
In any such case, appropriate provision shall be made with respect
to the rights and interests of the Holder of this Warrant to the
end that the provisions hereof shall thereafter be applicable in
relation to any shares of stock, securities, or assets thereafter
deliverable on the exercise of this Warrant. In the event of a
merger or consolidation of the Company with or into another
corporation or the sale of all or substantially all of its assets
which results in the issuance of a number of shares of common
stock of the surviving or purchasing corporation greater or less
than the number of shares of common stock of the Company
outstanding immediately prior to such merger, consolidation, or
purchase are issuable to holders of common stock of the Company,
then the Warrant Price in effect immediately prior to such merger,
consolidation, or purchase shall be adjusted in the same manner
as though there was a subdivision or combination of the
outstanding shares of common stock of the Company. The Company
will not effect any such consolidation, merger, or sale unless
prior to the consummation thereof the successor corporation
resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument mailed
or delivered to the Holder hereof at its last address appearing
on the books of the Company, the obligation to deliver to such
Holder such shares of stock, securities, or assets as, in
accordance with the foregoing provisions, such Holder may be
entitled to acquire on exercise of this Warrant.
(d) If: (i) the Company shall take a record of the holders of
its shares of common stock for the purpose of entitling them to
receive a dividend payable otherwise than in cash, or any other
distribution in respect of the shares of common stock (including
cash), pursuant to, without limitation, any spin-off, split-off,
or distribution of the Company's assets; or (ii) the Company
shall take a record of the holders of its shares of common stock
for the purpose of entitling them to subscribe for or purchase
any shares of any class or to receive any other rights; or (iii)
in the event of any classification, reclassification, or other
reorganization of the shares which the Company is authorized to
issue, consolidation or merger of the Company with or into
another corporation, or conveyance of all or substantially all
of the assets of the Company; or (iv) in the event of the
voluntary or involuntary dissolution, liquidation, or winding up
of the Company; then, and in any such case, the Company shall
mail to the Holder of this Warrant, at least 30 days prior
thereto, a notice stating the date or expected date on which a
record is to be taken for the purpose of such dividend,
distribution or rights, or the date on which such classification,
reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation, or winding up, as the
case may be. Such notice shall also specify the date or expected
date, if any is to be fixed, as of which holders of shares of
common stock of record shall be entitled to participate in such
dividend, distribution, or rights, or shall be entitled to
exchange their shares of common stock for securities or other
property deliverable upon such classification, reclassification,
reorganization, consolidation, merger, conveyance, dissolution,
liquidation, or winding up, as the case may be.
(e) If the Company, at any time while this Warrant shall remain
unexpired and unexercised, sells shares of common stock to an
affiliate of the Company, excluding shares issued on the exercise
of options issued and outstanding as of the date hereof and
shares issued to officers and directors under stock option plans
of the Company existing as of the date hereof, at a price lower
than the Exercise Price provided herein, as the same may from
time to time be adjusted pursuant to this section 5, then the
Exercise Price of these Warrants shall be reduced automatically
to such lower price at which the Company has sold common stock.
(f) No fraction of a share shall be issued on exercise, but, in
lieu thereof, the Company, notwithstanding any other provision
hereof, may pay therefor in cash at the fair value of any such
fractional share at the time of exercise.
6. Disposition of Warrants or Warrant Shares. The registered
owner of this Warrant, by acceptance hereof, agrees for himself
and any subsequent owner(s) that, before any disposition is made
of any Warrant Shares, the owner(s) shall give written notice to
the Company describing briefly the manner of any such proposed
disposition. No such disposition shall be made unless and until:
(a) the Company has received an opinion from counsel for the
owner(s) of the Warrant Shares stating that no registration under
the Securities Act is required with respect to such disposition; or
(b) a registration statement or post-effective amendment to a
registration statement under the Securities Act has been filed
by the Company and made effective by the Commission covering such
proposed disposition.
7. Registration of Warrant Shares. The Company shall use its best
efforts to file a registration statement under the Securities Act
as soon as practicable after August 31, 1995, to register the
Warrant Shares issuable on the exercise of this Warrant, shall
utilize its best efforts to cause such registration statement to
become effective as soon as is practicably possible, and shall
maintain the effectiveness of such registration statement for a
period of two years, unless the Company's legal counsel is of the
reasonable opinion that registration is not required in order to
dispose of the Warrant Shares. The Holder(s) shall cooperate with
the Company and shall furnish such information as the Company may
request in connection with any such registration statement
hereunder, on which the Company shall be entitled to rely.
8. Governing Law. This agreement shall be construed under and
be governed by the laws of the state of Nevada.
9. Notices. All notices, demands, requests, or other
communications required or authorized hereunder shall be deemed
given sufficiently if in writing and if personally delivered; if
sent by facsimile transmission, confirmed with a written copy
thereof sent by second day express delivery or registered mail,
return receipt requested and postage prepaid; if sent by
registered mail or certified mail, return receipt requested and
postage prepaid; or if sent by second day express delivery:
If to the Company, to: Xxxxxx-Xxxxx Incorporated
Attn: Xxxxx X. Xxxxxx, President
0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
Facsimile Transmission: (000) 000-0000
Confirmation: (000) 000-0000
If to the Holder:
Facsimile Transmission: (___) _________
Confirmation: (___) _________
or other such addresses and facsimile numbers as shall be furnished
by any party in the manner for giving notices hereunder, and any
such notice, demand, request, or other communication shall be
deemed to have been given as of the date so delivered or sent by
facsimile transmission, three days after the date so mailed, or
two days after the date so sent by second day delivery.
10. Loss, Theft, Destruction, or Mutilation. Upon receipt by the
Company of reasonable evidence of the ownership of and the loss,
theft, destruction, or mutilation of this Warrant, the Company
will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
11. Taxes. The Company will pay all taxes in respect of the issue
of this Warrant or the Warrant Shares issuable upon exercise
thereof.
DATED this ______ day of August, 1995.
XXXXXX XXXXX INCORPORATED
By /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, President
Form of Assignment
(to be signed only upon assignment of Warrant)
TO: Xxxxxx-Xxxxx Incorporated
Attn: President
0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
FOR VALUE RECEIVED, _________________ does hereby sell, assign,
and transfer unto ____________________ the right to purchase
___________ shares of common stock of XXXXXX-XXXXX INCORPORATED
(the "Company"), evidenced by the attached Warrant, and does
hereby irrevocably constitute and appoint _________________
attorney to transfer such right on the books of the Company
with full power of substitution in the premises.
DATED this _____ day of __________, 19___.
Signature:
Signature Guaranteed:
NOTICE: The signature to the form of assignment must correspond
with the name as written upon the face of the within Warrant in
every particular without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank, other than a
savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
Form Of Purchase
(to be signed only upon exercise of Warrant)
TO: Xxxxxx-Xxxxx Incorporated
Attn: President
0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
The undersigned, the owner of the attached Warrant, hereby
irrevocably elects to exercise the purchase rights represented
by the Warrant for, and to purchase thereunder, ___________
shares of the common stock of XXXXXX-XXXXX INCORPORATED and
herewith makes payment of $___________ therefor (at the rate
of $4.50 per share of common stock). Please issue the shares
of common stock as to which this Warrant is exercised in
accordance with the enclosed instructions and, if the Warrant
is being exercised with respect to less than all of the shares
to which it pertains, prepare and deliver a new Warrant of like
tenor for the balance of the shares of common stock purchasable
under the attached Warrant.
DATED this _____ day of __________, 19___.
Signature:
Signature Guaranteed:
