Exhibit 10.2
NAVIDEC, INC.
CLASS B WARRANT TO PURCHASE COMMON STOCK
Certificate No. BX- Warrants
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_____________________, 2003
Navidec, Inc. ("Company") certifies that, for valuable consideration,
receipt of which is hereby acknowledged, that ___________________ ("Holder") is
entitled to purchase from the Company ___________ shares of the Company's no par
value common stock (the "Shares") at the price of $4.00 per Share ("Purchase
Price").
1. Exercise.
a. Time of Exercise. This Warrant may be exercised in whole or in part
(but not as to fractional shares) at the office of the Company, at any time or
from time to time, provided, however, that this Warrant shall expire and be null
and void if not exercised in the manner herein provided, by 5:00 p.m. EST, on
August 31, 2005, the "Expiration Date."
b. Manner of Exercise. This Warrant is exercisable at the Purchase
Price, payable in cash or by check, payable to the order of the Company, subject
to adjustment as provided in Section 2 hereof. Upon surrender of this Warrant
with the annexed Subscription Form duly executed, together with payment of the
Purchase Price for the Units purchased (and any applicable transfer taxes) at
the offices of the Company, 0000 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000, the Holder shall be entitled to receive a certificate
or certificates for the Shares so purchased.
c. Delivery of Stock Certificates. As soon as practicable, but not
exceeding 10 days, after complete or partial exercise of this Warrant, the
Company, at its expense, shall cause to be issued in the name of the Holder (or
upon payment by the Holder of any applicable transfer taxes, the Holder's
assigns) certificate or certificates for the number of fully paid and
non-assessable Shares to which the Holder shall be entitled upon such exercise,
determined in accordance with Section 2 hereof.
d. Record Date of Issuance of Shares. Irrespective of the date of
issuance and delivery of certificates for any stock or securities issuable upon
the exercise of this Warrant, each person (including a corporation or
partnership) in whose name any such certificate is to be issued shall for all
purposes be deemed to have become the holder of record of the stock or other
securities represented thereby immediately prior to the close of business on the
date on which a duly executed Subscription Form containing notice of exercise of
this Warrant and payment of the Purchase Price is received by the Company.
2. Adjustment of Purchase Price. The Purchase Price shall be subject to
adjustment as follows:
a. In case the Company shall (1) pay a dividend in shares of its capital
stock (other than an issuance of shares of capital stock to holders of Common
Stock who have elected to receive a dividend in shares in lieu of cash), (ii)
subdivide its outstanding shares of Common Stock, (iii) reduce, consolidate or
combine its outstanding shares of Common Stock into a smaller number of shares,
or (iv) Issue by reclassification of its shares of Common Stock any shares of
the Company, the Purchase Price in effect immediately prior thereto shall be
adjusted to that amount determined by multiplying the Purchase Price in effect
immediately prior to such date by a fraction, of which the numerator shall be
the number of shares of Common Stock outstanding on such date before giving
effect to such divisions, subdivision, reduction, combination or consolidation
or stock dividend and of which the denominator shall be the number of shares of
Common Stock after giving affect thereto. The number of shares issuable shall
also be adjusted upward or downward determined by multiplying the number of
warrants owned by the Holder by a fraction of which the denominator shall be the
number of shares of Common Stock outstanding on such date before giving effect
to such divisions, subdivision, reduction, combination or consolidation or stock
dividend and of which the numerator shall be the number of shares of Common
Stock after giving affect thereto. Such adjustment shall be made successively
whenever any such effective date or record date shall occur. An adjustment made
pursuant to this subsection (a) shall become effective retroactively to the
Effective Date immediately after the record date in the case of a dividend and
shall become effective immediately after the effective date In the case of a
subdivision, reduction, consolidation, combination or reclassification.
b. If the Common Stock issuable upon the conversion of the Warrant shall
be changed into the same or a different number of shares of any class or classes
of stock, whether by capital reorganization, reclassification or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for above, or a reorganization, merger, consolidation or sale of assets provided
for in this Section 2), then, and in each such event, the Holder of this Warrant
shall have the right thereafter to convert such Warrant into the kind and amount
of shares of Common Stock and other securities and property receivable upon such
reorganization, reclassification, or other change by the Holders of the number
of shares of Common Stock into which such Warrant might have been converted, as
reasonably determined by the Company's board of directors, immediately prior to
such reorganization, reclassification, or change, all subject to further
adjustment as provided herein.
c. If at any time or from time to time there shall be a capital
reorganization of the Common Stock (other than a subdivision, combination,
reclassification or exchange of shares provided for elsewhere in this Section 2)
or a merger or consolidation of the Company with or into another corporation, or
the sale of all or substantially all of the Company's properties and assets to
any other person, then, as a part of such reorganization, merger, consolidation
or sale, provision shall be made as reasonably determined by the Company's board
of directors so that the Holder of the Warrant shall thereafter be entitled to
receive upon conversion of such Warrant, the number of shares of stock or other
securities or property of the Company or of the successor corporation resulting
from such merger or consolidation or sale, to which a holder of Common Stock
deliverable upon conversion would have been entitled on such capital
reorganization, merger, consolidation or sale.
d. The adjustments provided for in this Section 2 are cumulative and
shall apply to successive divisions, subdivisions, reductions, combinations,
consolidations, issues, distributions or other events contemplated herein
resulting in any adjustment under the provisions or this section, provided that,
notwithstanding any other provision of this section, no adjustment of the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price then In effect;
provided, however, that any adjustment which by reason of this subsection (a)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment.
e. Upon each adjustment of the Purchase Price, the Company shall give
prompt written notice thereof addressed to the Holder at the address of such
Holder as shown on the records of the Company, which notice shall state the
Purchase Price resulting from such adjustment and the increase or decrease, if
any, in the number of shares issuable upon the conversion of the Holder's
warrants, setting forth in reasonable detail the method of calculation and the
facts upon which such calculations is based.
f. In the event of any question arising with respect to the adjustments
provided for In this Section 2, such question shall be conclusively determined
by an opinion of independent certified public accountants appointed by the
Company (who may be the auditors of the Company) and acceptable to the Holder of
this Warrant. Such accountants shall have access to all necessary records of the
Company, and such determination shall be binding upon the Company and the
Holder.
g. The Company may in its sole discretion and without any obligation to
do so reduce the Purchase Price then in effect by giving 15 days' written notice
to the Holders. The Company may limit such reduction as to its temporal duration
or may impose other conditions thereto in its sole discretion.
3. Call Provision. If the closing bid price of the Company's Common Stock
is equal to or above $4.00 per share for 10 consecutive trading days at any time
prior to the Expiration Date and the Shares underlying the Warrants have been
registered pursuant to Registration Rights, the Company may call this Warrant.
Notice of the call will be mailed at least thirty (30) days before the date
fixed by the board of directors of the Company as the date of the call (the
"Call Date"). If the Holder fails to exercise the Warrant prior to the Call
Date, it will expire. For purposes of this Section the closing bid price of the
Common Stock on any particular date means (i) if the Shares are listed on any
national securities exchange or reported in the Nasdaq System, the closing bid
price as reported for transactions on the exchange or Nasdaq for the period in
question, or (ii) if the Common Stock is publicly traded on the OTC bulletin
board ("OTCBB") but not listed on any exchange or reported on Nasdaq, the
average of the means between bona fide bid and asked prices on the dates in
question as quoted by three independent market makers. This right of call shall
not restrict the right of the Holder to Exercise the Warrants prior to the Call
Date.
4. Registration Rights of the Navidec Class B Warrant. The Company agrees
that it will use all reasonable efforts to file a registration statement with
the Securities and Exchange Commission to register the Shares within 90 days of
the completion of its $1.2 million unit offering of common shares and Class A
and Class B Warrants (the "Offering"). Additionally, the Company will consider
and if practical, include in said registration statement, the registration of
the Warrants issued in the Offering with a view toward creating a trading market
for the Warrants. Once filed, the Company will use reasonable commercial efforts
to have said registration statement declared effective not later than 180 days
after the completion of the Offering. Should the registration statement not be
declared effective within said 180 day period, the expiration date of the Class
A and Class B warrants shall be extended one day for each day in excess of 180
days of that said registration statement is not declared effective. Should any
Holder exercise the Warrants prior to the registration statement being
effective, the registration statement shall be amended or if not yet filed,
filed to reflect that the registration is of the resale of the Shares of any
Holder electing to exercise the Warrant prior to the effectiveness of the
registration statement. All of the expenses of the registration shall be borne
by the Company. The Company shall have the right to delete from any resale
registration statement the securities of any Holder or a Holder of Shares who
fails to respond to a request for reasonable information deemed necessary for
inclusion in the registration statement.
5. Restriction on Transfer. The Holder, by its acceptance hereof,
represents, warrants, covenants and agrees that (i) the Holder has knowledge of
the business and affairs of the Company, and (ii) this Warrant and the Shares
issuable upon the exercise of this Warrant are being acquired for investment and
not with a view to the distribution hereof and that absent an effective
registration statement under the Securities Act of 1933 as amended (the "Act")
covering the disposition of this Warrant or the Shares issued or issuable upon
exercise of this Warrant, they will not be sold, transferred, assigned,
hypothecated or otherwise disposed of without first providing the Company with
an opinion of counsel (which may be counsel for the Company) or other evidence,
reasonably acceptable to the Company, to the effect that such sale, transfer,
assignment, hypothecation or other disposal will be exempt from the registration
and prospectus delivery requirements of the Act and the registration or
qualification requirements of any applicable state securities laws. The Holder
consents to the making of a notation in the Company's records or giving to any
transfer agent of the Warrant or the Shares an order to implement such
restriction on transferability.
This Warrant and the Shares shall beer the following legend or a legend
of similar import, provided, however, that such legend shall be removed or not
placed upon the Warrant or the Shares if such legend Is no longer necessary to
assure compliance with the Securities Act of 1933, as amended:
THESE WARRANTS AND THE SHARES ISSUABLE UPON THEIR EXERCISE HAVE NOT BEEN
REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE BECAUSE THEY ARE BELIEVED TO BE EXEMPT FROM
REGISTRATION UNDER REGULATION S PROMULGATED PURSUANT TO THE ACT. THIS WARRANT IS
"RESTRICTED" AND MAY NOT BE RESOLD OR TRANSFERRED NOR MAY THE WARRANT BE
EXERCISED BY OR ON BEHALF OF ANY U. S. PERSON EXCEPT AS PERMITTED UNDER THE ACT
PURSUANT TO THE REGISTRATION OF THE SECURITIES OR EXEMPTION THEREFROM.
6. Payment of Taxes. All Shares issued upon the exercise of this Warrant
shall be validly issued, fully paid and non-assessable and the Company shall pay
all taxes and other governmental charges (other than income tax) that may be
imposed in respect of the issue or delivery thereof. The Company shall not be
required, however, to pay any tax or other charge imposed In connection with any
transfer involved in the issue of any certificate for Shares in any name other
than that of the Holder surrendered in connection with the purchase of such
Shares, and In such case the Company shall not be required to issue or deliver
any stock certificate until such tax or other charge has been paid or it has
been established to the Company's satisfaction that no tax or other charge is
due.
7. Reservation of Common Stock. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of issuance upon the exercise of this Warrant, such number of
shares of Common Stock as shall be issuable upon the exercise hereof. The
Company covenants and agrees that, upon exercise of this Warrant and payment of
the Purchase Price thereof, the Shares issuable upon such exercise shall be duly
and validly issued, fully paid and non-assessable.
8. Notices to Holder. Nothing contained in this Warrant shall be construed
as conferring upon the Holder hereof the right to vote or to consent or to
receive notice as a shareholder in respect of any meetings of shareholders for
the election of directors or any other matter or as having any rights whatsoever
as a shareholder of the Company. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered or mailed by registered or certified mail, postage
prepaid, return receipt requested:
a. If to the Holder, to the address of such Holder as shown on the books
of the Company, or
b. If to the Company, to the address set forth in Section 2(b) hereof or
to any other address notice of which is delivered to the Holder by regular mail.
9. Replacement of Warrant. Upon receipt of evidence reasonably satisfactory
to the Company of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and (in case of loss, theft or destruction) upon
delivery of an indemnity agreement in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of the
mutilated Warrant, the Company will execute and deliver, in lieu thereof, a new
Warrant of like tenor.
10. Successors. All the covenants, agreements, representations and
warranties contained in this Warrant shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
11. Changes or Waiver. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
12. Headings. The section headings in this Warrant are inserted for
purposes of convenience only and shall have no substantive effect.
13. Governing Law. This Warrant shall for all purposes be construed and
enforced in accordance with, and governed by, the internal laws of the United
States and the State of Colorado, without giving effect to principles of
conflict of laws.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer and this Warrant to be dated as of the date first above
written.
NAVIDEC, INC.
By:
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Xxxx X. XxXxxxx, President
Countersigned:
By:
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Secretary
EXHIBIT A
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SUBSCRIPTION FORM
(To be Executed by the Registered Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to purchase
of the Shares covered by this Warrant according to the conditions hereof and
herewith makes payment of the Purchase Price of such Shares in full.
No. of Warrants Exercised _______________________
Amount of exercise price delivered $_____________
Dated _________________, 200__.
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Signature (must be as listed
on Warrant Certificate)
Name Shares to be issued to:
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Address for delivery:
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