EXHIBIT 10.4
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, A AMENDED, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER (THE 1933 ACT), AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES (AS DEFINED IN REGULATIONS OF THE 1933
ACT) EXCEPT PURSUANT TO REGISTRATION UNDER OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT. THIS LEGEND SHALL BE ENDORSED UPON ANY WARRANT
ISSUED IN EXCHANGE FOR THIS WARRANT.
Warrant No: 99-6-2 Right to Purchase 500,000
Shares of Common Stock of
June 16, 1999 Saratoga International Holdings Corp.
VOID UNLESS EXERCISED BEFORE 5:00 P.M. PACIFIC STANDARD TIME ON JUNE 15, 2004.
SARATOGA INTERNATIONAL HOLDINGS CORP.
Common Stock Purchase Warrant
Saratoga International Holdings Corp, a Nevada corporation (the "Company"),
hereby certifies that, for value received, Xxx Xxxxxx, or assigns, is entitled,
subject to the terms set forth below, to purchase from the Company, commencing
June 16, 1999, at any time or from time to time before 5:00 p.m., Pacific
Standard Time, on or before June 15, 2004 fully paid and nonassessable shares of
Common Stock $.001 par value, of the Company, at an exercise price per share
equal to $.10. Such exercise price per share as adjusted from time to time as
herein provided is referred to herein as the Exercise Price. The number and
character of such shares of Common Stock and the Exercise Price are subject to
adjustment as provided herein.
1. Exercise Warrant.
1.1 Full Exercise. This Warrant may be exercised in full by the holders by
surrender of this Warrant with the Election to Purchase form at the
end hereof duly executed by such holder, to the Company at its
principal office, accompanied by payment, in cash or by certified or
official bank check payable to the order of the Company, in the amount
obtained by multiplying the number of shares of Common Stock for which
this Warrant is then exercisable by the Exercise Price as set forth
herein.
1.2 Partial Exercise. This Warrant may be exercised in part by surrender
of this Warrant in the manner and at the place provided in Section 1.1
except that the amount payable to the holder on such partial exercise
shall be the amount obtained by multiplying (a) the number of shares
of Common Stock designated by the holder in the Election to Purchase
form at the end hereof by (b) the Exercise Price as set forth herein.
Any exercise of this Warrant must be for a minimum of 100,000 shares
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of Common stock of the Company or the number of shares indicated
herein, whichever is less. This Warrant is for full shares and no
fractional shares will be issued. On any such partial exercise, the
Company will forthwith issue and deliver to or upon the order of the
holder a new Warrant of like tenor, in the name of the holder or as
such holder (upon payment by such holder of any applicable transfer
taxes) may request, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock for which such
Warrant may still be exercised.
2. Delivery of Stock Certificates of Exercise. As soon as practicable after
the exercise of the Warrant in full or in part, and in any event within
sixty (60) days thereafter, the Company will cause to be issued in the name
of and delivered to the holder, or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of
Common Stock to which such holder shall be entitled on such exercise,
pursuant to Section 1 or otherwise.
3. Adjustment for Reorganization Consolidation or Merger.
3.1. Reorganization, Consolidation or Merger. In case at any time or from
time to time, the Company shall (a) effect a reorganization, (b)
consolidate with or merge into any other person or entity, or (c)
transfer all or substantially all of its properties or assets to any
other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of the
Warrant, on the exercise hereof as provided in Section 1 at any time
after the consummation of such reorganization, consolidation or merger
or the effective date of such dissolution, as the case may be, shall
receive, in lieu of the Common Stock issuable as such exercise prior
to such consummation or such effective date, the stock and other
securities and property (including cash) to which such holder would
have been entitled upon such consummation or in connection with such
dissolution, as the case may be, if such holder had so exercised the
Warrant, immediately prior thereto, all subject to further adjustment
thereafter as provided in Sections 4 and 5.
3.2. Continuation of Terms. Upon any reorganization, consolidation, merger
or transfer (and any dissolution following any transfer) referred to
in this Section 3, the Warrant shall continue in full force and effect
and the terms hereof shall be applicable to the shares of stock and
Other Securities and property receivable on the exercise of the
Warrant after the consummation of such reorganization, consolidation
or merger or the effective date of dissolution following any such
transfer, as the case may be, and shall be binding upon the issuer of
any such stock or other securities, including, in the case of any such
transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall
have expressly assumed the terms of the Warrant.
4. Adjustments for Stock Dividends and Stock Splits. In the event that the
Company shall (i) issue additional shares of Common Stock as a dividend or
other distribution on outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock or (iii) combine its outstanding shares
of the Common Stock into a smaller number of shares of the Common Stock,
then, in each such event, the Exercise Price shall, simultaneously with the
happening of such event, be adjusted by multiplying the then prevailing
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Exercise Price by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such event
(calculated assuming the conversion or exchange of all outstanding shares
of convertible or exchangeable securities of the Company which are
convertible or exchangeable into, or exercisable for, shares of Common
Stock) and the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such event (calculated assuming the
conversion or exchange of all outstanding shares of convertible or
exchangeable securities of the Company which are convertible or
exchangeable into, or exercisable for, shares of Common Stock), and the
product so obtained shall thereafter be the Exercise Price then in effect.
The Exercise Price, as so adjusted, shall be readjusted in the same manner
upon the happening of any successive event or events described herein in
this Section 4. The holder of the Warrant shall thereafter, on the exercise
thereof as provided in Section 1, be entitled to receive that number of
shares of Common Stock determined by multiplying the number of shares of
Common Stock which would otherwise (but for the provisions of this Section
4) be issuable on such exercise, by a fraction of which (i) the numerator
is the Exercise Price which would otherwise (but for the provisions of this
Section 4) be in effect, and (ii) the denominator is the Exercise Price in
effect on the date of such exercise.
5. Adjustment for Dividends in Other Stock, Property and Reclassifications. In
case at any time or from time to time, the holders of Common Stock (or
Other Securities) shall have received, or (on or after the record date
fixed for the determination of stockholders eligible to receive) shall have
become entitled to receive without payment therefor,
a. other or additional stock or other securities or property (other than
cash) by way of dividend, or
b. other or additional stock or other securities or property (including
cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement, other than additional shares of Common Stock (or Other
Securities) issued as a stock dividend or in a stock-split
(adjustments in respect of which, in the case of Common Stock, are
provided for in Section 4), then and in each such case the holder of
the Warrant, on the exercise thereof as provided in Section 1, shall
be entitled to receive the amount of other or additional stock and
other securities and property (including cash in the cases referred to
in subdivision (b) of this Section 5) which such holder would hold on
the date of such exercise if on the date of distribution of such other
or additional stock or other securities and property, or on the record
date fixed for determining the shareholders entitled to receive such
other or additional stock or other securities and property, such
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holder had been the holder of record of the number of shares of Common
Stock called for on the face of the Warrant and had thereafter, during
the period from the date thereof to and including the date of such
exercise, retained such shares and all such other or additional stock
and other securities and property (including cash in the cases
referred to in subdivision (b) of this Section 5) receivable by such
holder as aforesaid during such period, giving effect to all
adjustments called for during such period by Sections 3 and 4.
6. Notices of Record Date. In the event of
a. any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution or any right to
subscribe for purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other
right, or
b. any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer
of all or substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other person,
or
c. any voluntary or involuntary dissolution, liquidation or winding-up of
the Company, then and in each such event the Company will mail or
cause to be mailed to the holder of this Warrant a notice specifying
(i) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right, and stating the amount and
character of such dividend, distribution or right, and (ii) the date
on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as
of which the holders of record of Common Stock (or Other Securities)
shall be entitled to exchange their shares of Common Stock (or Other
Securities) for securities or other property deliverable on such
reorganization, reclassification, recapitalizaiton, transfer,
consolidation, merger, dissolution, liquidation or winding-up.
Such notice shall be mailed at least twenty (20) days prior to the
date specified in such notice and which any such action is to be
taken.
7. Reservation of Stock Issuable on Exercise of Warrants. The Company will at
all times reserve and keep available, solely for issuance and delivery on
the exercise of the Warrants, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of the Warrant; the
shares of Common Stock which the holder of this Warrant shall receive upon
exercise of the Warrant will be duly authorized, validly issued, fully paid
and non-assessable.
8. Exchange of Warrants. On surrender for exchange of the Warrant, properly
endorsed, to the Company, the Company will issue and deliver to or on the
order of the holder thereof a new Warrant or Warrants of like tenor, in the
name of such holder or as such holder (on payment by such holder of any
applicable transfer taxes) may direct, calling in the aggregate on the face
or faces thereof for the number of shares of Common Stock called for in the
Warrant so surrendered.
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9. Replacement of Warrants. On receipt of evidence reasonable satisfactory to
the Company of the loss, theft, destruction or mutilation of a Warrant and,
in the case of any such loss, theft or destruction of a Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Warrantholder Not Deemed Stockholder; Restrictions on Transfer. The Warrant
is issued upon the following terms, to all of which the holder or owner
thereof by the taking consents and agrees:
a. No holder of the Warrant shall, as such, be deemed the holder of
Common Stock that may at any time be issuable upon exercise of the
Warrant for any purpose whatsoever, nor shall anything contained
herein be construed to confer upon such holder, as such, any of the
rights of a stockholder of the Company until such holder shall have
exercised the Warrant and been issued shares of Common Stock in
accordance with the provisions hereof.
b. Neither the Warrant nor any shares of Common Stock purchased pursuant
to the Warrant shall be registered under the Securities Act of 1933
(the "Securities Act") and applicable state securities laws. The
certificates evidencing the shares of Common Stock issued on the
exercise of the Warrant shall bear a legend to the effect that the
shares evidenced by such certificates have not been registered under
the Securities Act and applicable state securities laws.
11. Notices. All notices and other communications from the Company to the
holder of the Warrants shall be mailed by (i) first class mail, postage
prepaid, (ii) electronic facsimile transmission, or (iii) express overnight
courier service, at such address as may have been furnished to the Company
in writing by such holder or, until any such holder furnishes to the
Company an address, then to, and at the address of, the last holder of the
Warrant who has so furnished an address to the Company.
12. Warrant Callable. The Warrant may be called by the Company upon the
expiration of thirty (30) days written notice at the price of $.05 per
share of Common Stock represented by this Warrant.
13. Miscellaneous. The Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. The Warrant and the shares of Common Stock
underlying the Warrant shall be construed and enforced in accordance with
and governed by the laws of the State of Nevada. The invalidity or
unenforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision.
14. Applicable Law. The validity, interpretation and performance of this
Agreement and of Warrants shall be governed by the laws of the State of
Washington.
Saratoga International Holdings Corp.
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
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