Original Issue Date: ____________, 200__ WARRANT No. ____
WARRANT FOR PURCHASE OF COMMON STOCK
THIS WARRANT AND THE COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE OR
OTHER JURISDICTIONS SECURITIES LAW. NEITHER THIS WARRANT NOR THE COMMON
STOCK PURCHASABLE HEREUNDER MAY BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO SUCH SECURITIES UNDER SUCH ACT AND ANY APPLICABLE STATE OR
OTHER JURISDICTION SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
xxxxxxxx.xxx, inc.
Purchase Warrant for _________ shares of
Common Stock
THIS INSTRUMENT certifies that, FOR VALUE RECEIVED,
__________________________________, a _______________________, with a business
address of ___________________________ Florida (the "Holder"), or its registered
assigns, is entitled, subject to the terms and conditions set forth in this
Warrant for Purchase of Common Stock (this "Warrant"), to purchase from
xxxxxxxx.xxx, Inc., a Delaware corporation (the "Company" or the "Corporation"),
_________________________________________________ (____________) shares of
Common Stock, $.001 par value, of the Company (the "Shares"), commencing
immediately, and ending at 5:00 p.m., New York time, on [the fifth anniversary
of the original issuance date hereof (March __, 20__)], for a purchase price of
twenty seven cents ($.27) per Share (the "Exercise Price"), such number of
Shares and Exercise Price being subject to adjustment from time to time as set
forth in Sections 3 and 4 below.
This Warrant is subject to the following provisions, terms and conditions:
SECTION 1. Warrant Exercise. This Warrant may be exercised by the holder hereof,
in whole or in part, by the presentation and surrender of this Warrant with the
form of the Exercise Form attached hereto as SCHEDULE A duly executed, at the
principal office of the Company, and by tender to the Company of the purchase
price set forth above as the Exercise Price, either (a) in cash or by certified
check or bank cashier's check, payable to the order of the Company, or (b) by
surrendering such number of shares of Common Stock received upon exercise of
this Warrant with a "fair market value" (as hereinafter defined) equal to the
Exercise Price (a "Cashless Exercise"). Upon receipt of the foregoing, the
Company will promptly deliver to the Holder, as promptly as possible, a
certificate or certificates representing the shares of Common Stock so
purchased, registered in the name of the Holder. With respect to any exercise of
this Warrant, the Holder will for all purposes be deemed to have become the
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holder of record of the number of shares of Common Stock purchased hereunder on
the date this Warrant, a properly Executed Exercise and payment of the Exercise
Price is received by the Company (the "Exercise Date"), irrespective of the date
of delivery of the certificate evidencing such shares, except that, if the date
of such receipt is a date on which the stock transfer books of the Company are
closed, such person will be deemed to have become the holder of such shares at
the close of business on the next succeeding date on which the stock transfer
books are open. Fractional shares of Common Stock will not be issued upon the
exercise of this Warrant. In lieu of any fractional shares that would have been
issued but for the immediately preceding sentence, the Holder will be entitled
to receive cash equal to the fair market value of such fraction of a share of
Common Stock on the trading day immediately preceding the Exercise Date. In the
event this Warrant is exercised in part, the Company shall issue a new Warrant
Certificate to the Holder covering the aggregate number of shares of Common
Stock as to which this Warrant remains exercisable.
If the Holder elects to conduct a Cashless Exercise, the Company shall
cause to be delivered to the Holder a certificate or certificates representing
the number of shares of Common Stock computed using the following formula:
X = Y(A-B)
A
Where:
X = The number of shares of Common Stock to be issued to
Holder;
Y = The number of shares of Common Stock for which Holder
has exercised this Warrant;
A = The fair market value of one share of the Company's
Common Stock (on the Exercise Date); and
B = Exercise Price (as adjusted to the date of such
calculation)
For purposes of this Section, the "fair market value" of the Company's Common
Stock on the Exercise Date shall mean: (i) if the principal trading market for
such securities is a national or regional securities exchange, the average
closing price on such exchange for the twenty (20) trading days immediately
prior to the Exercise Date; or (ii) if sales prices for shares of Common Stock
are reported by the NASDAQ National Market System (or a similar system then in
use), the average last reported sales price so reported for the twenty (20)
trading days immediately prior to the Exercise Date; or (iii) if neither (i) nor
(ii) above are applicable, and if bid and ask prices for shares of Common Stock
are reported in the OTC Bulletin Board by NASDAQ (or, if not so reported, by the
National Quotation Bureau or any successor service), the average of the high bid
and low ask prices so reported for the twenty (20) trading days immediately
prior to the Exercise Date. Notwithstanding the foregoing, if there is no
reported closing price, last reported sales price, or bid and ask prices, as the
case may be, for the period in question, then the current market price shall be
determined in good faith by, and reflected in a formal resolution of, the Board
of Directors of the Company.
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SECTION 2. Reservation of Shares. The Company covenants and agrees:
(i) That all Shares which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issue thereof;
and
(ii) That during the period within which the rights represented by this Warrant
may be exercised, the Company will at all times have authorized, and reserved
for the purpose of issue and delivery upon exercise of the rights evidenced by
this Warrant, a sufficient number of shares of Common Stock to provide for the
exercise of the rights represented by this Warrant.
SECTION 3. Adjustment of the Warrant Exercise Price.
a. Adjustments for Subdivision, Dividends, Combinations or
Consolidations of Common Stock.
(i) If the Corporation shall at any time or from time to time after
the date that this Warrant is issued (the "Original Issue Date") effect a
combination or consolidation of the outstanding Common Stock, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Exercise Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately increased.
(ii) In the event the Corporation shall declare or pay any dividend
on the Common Stock payable in Common Stock or in the event the outstanding
shares of Common Stock shall be subdivided, by reclassification or otherwise
than by payment of a dividend in Common Stock, into a greater number of shares
of Common Stock, the Exercise Price in effect immediately prior to such dividend
or subdivision shall be proportionately decreased.
a. in the case of any such dividend, immediately after the
close of business on the record date for the determination of holders of any
class of securities entitled to receive such dividend, or
b. in the case of any such subdivision, at the close of
business on the date immediately prior to the date upon which such corporate
action becomes effective.
If such record date shall have been fixed and such dividend shall
not have been fully paid on the date fixed therefor, the adjustment previously
made in the applicable Exercise Price that became effective on such record date
shall be canceled as of the close of business on such record date, and
thereafter the applicable Exercise Price shall be adjusted as of the time of
actual payment of such dividend.
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b. Adjustment for Other Dividends and Distributions. If the
Corporation at any time or from time to time after the Original Issue Date
makes, or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in securities of
the Corporation other than shares of Common Stock, in each such event provision
shall be made so that the holder of the Warrant shall receive upon Exercise
thereof, in addition to the number of shares of Common Stock receivable
thereupon, the amount of other securities of the Corporation that it would have
received had its Warrant been exercised for Common Stock on the date of such
event and had it thereafter, during the period from the date of such event to
and including the exercise date, retained such securities receivable by them as
aforesaid during such period, subject to all other adjustments called for during
such period under this Section 3 with respect to the rights of the holder of the
Warrant or with respect to such other securities by their terms.
c. Adjustment for Reclassification, Exchange and Substitution. If at
any time or from time to time after the Original Issue Date, the Common Stock
issuable upon the exercise of the Warrant is changed into the same or a
different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than a subdivision or
combination of shares or stock dividend or a reorganization, merger,
consolidation or sale of assets provided for elsewhere in this Section 3), in
any such event the holder of this Warrant shall have the right thereafter to
exercise this Warrant for the kind and amount of stock and other securities and
property receivable upon such recapitalization, reclassification or other change
by holders of the maximum number of shares of Common Stock into which this
Warrant could have been exercised immediately prior to such recapitalization,
reclassification or change, all subject to further adjustment as provided herein
or with respect to such other securities or property by the terms thereof.
d. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Exercise Prices pursuant to this Section 3,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of a
Warrant, a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of any holder of a
Warrant, furnish or cause to be furnished to such holder a like certificate
setting forth (i) such adjustments and readjustments, (ii) the Exercise Prices
at the time in effect, and (iii) the number of shares of Common Stock and the
amount, if any, of other property which at the time would be received upon the
exercise of the Warrant.
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SECTION 4. Adjustments of Number of Shares Issuable Upon Exercise. Upon each
adjustment of the Exercise Price pursuant to Section 3 hereof, the holder of
this Warrant shall thereafter (until another such adjustment) be entitled to
purchase, at the adjusted Exercise Price in effect on the date purchase rights
under this Warrant are exercised, the number of Shares of Common Stock,
calculated to the nearest number of shares, determined by (a) multiplying the
number of Shares of Common Stock purchasable hereunder immediately prior to the
adjustment of the Exercise Price by the Exercise Price in effect immediately
prior to such adjustment, and (b) dividing the product so obtained by the
adjusted Exercise Price in effect on the date of such exercise.
SECTION 5. Fractional Interests. If any fraction of a Share is issuable on the
exercise of this Warrant, the Company shall be required to and shall issue such
fractional Share on the exercise of this Warrant.
SECTION 6. No Rights as Shareholder. Nothing contained in this Warrant shall be
construed as conferring upon the Holder or his transferees any rights as a
shareholder of the Company.
SECTION 7. Successors. All the covenants and provisions of this Warrant by or
for the benefit of the Company or the Holder shall bind and inure to the benefit
of their respective successors and assigns hereunder.
SECTION 8. Applicable Law. This Warrant shall be deemed to be a contract made
under and construed in accordance with the laws of the State of Delaware.
SECTION 9. Benefits. This Warrant shall not be construed to give to any person
or corporation other than the Company and the Holder any legal or equitable
right, remedy or claim under this Warrant, and this Warrant shall be for the
sole and exclusive benefit of the Company and the Holder.
SECTION 10. Transferability. No transfer of this Warrant shall be effective
unless and until registered on the books of the Company maintained for such
purpose, and the Company may treat the registered holder as the absolute owner
of this Warrant for all purposes and the person entitled to exercise the rights
represented hereby. No such transfer of this Warrant shall be effective unless
prior to any transfer or attempted transfer of Warrant, or any interest herein,
the Holder shall give the Company written notice of his or its intention to make
such transfer, describing the manner of the intended transfer and the proposed
transferee. Promptly after receiving such written notice, the Company shall
present copies thereof to counsel for the Company and to any special counsel
designated by the Holder. If in the opinion of each of such counsel the proposed
transfer may be effected without registration of either the Warrant or the
Common Stock purchasable hereunder under applicable federal or state securities
laws (or other applicable jurisdiction's law), the Company, as promptly as
practicable, shall notify the Holder of such opinions, whereupon this Warrant
(or the interests therein) proposed to be transferred shall be transferred in
accordance with the terms of said notice. The Company shall not be required to
effect any such transfer prior to the receipt of such favorable opinion(s);
provided, however, the Company may waive the requirement that Xxxxxx obtain an
opinion of counsel, in its sole and absolute discretion. As a condition to such
favorable opinion, counsel for the Company may require an investment letter to
be executed by the proposed transferee. Any transferee of this Warrant, by
acceptance hereof, agrees to be bound by all of the terms and conditions of this
Warrant.
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SECTION 11. Investment Representation and Legend. Each Holder by acceptance of
this Warrant represents and warrants to the Company that the Holder is acquiring
this Warrant, and unless at the time of exercise a registration statement under
the Securities Act of 1933, as amended, is effective with respect to the Shares,
that upon the exercise hereof the Holder will acquire the Shares issuable upon
such exercise, for investment purposes only and not with a view towards the
resale or other distribution thereof.
The Holder by acceptance of this Warrant agrees that the Company may affix,
unless the Shares issuable upon exercise of this Warrant are registered at the
time of exercise, the following legend to certificates for Shares upon the
exercise of this Warrant:
The securities represented by this certificate have not been registered under
the Securities Act of 1933 (the "Securities Act"), and have not been registered
under any state or other jurisdiction's securities law, and may not be offered,
sold, transferred, encumbered or otherwise disposed of unless there is an
effective registration statement under the Securities Act and any applicable
state securities laws, or other jurisdiction, relating thereto or unless, in the
opinion of counsel acceptable to the Company, such registration is not required.
IN WITNESS WHEREOF, the Company has duly authorized the issuance of this
Warrant as of _____________, 200__.
xxxxxxxx.xxx, Inc.
By:
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Name:
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Title:
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SCHEDULE A
xxxxxxxx.xxx, Inc.
PURCHASE FORM
xxxxxxxx.xxx, Inc.
000 Xxxx Xxxxxxx Xxxx.
Suite 1400
Ft. Lauderdale, FL 33301
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the attached Warrant for, and to purchase thereunder, ____ of the
Shares provided for therein (originally, _____ of the ___________ Shares, and as
presently adjusted pursuant to Section 3 thereof, ______ of the _____Shares).
The undersigned ____ is _______ is not [initial which choice applies] electing
to make payment for the Shares using the Cashless Exercise procedure set forth
in Section 1 of the Warrant. If the undersigned is making payment using such
Cashless Exercise procedure, the undersigned acknowledges that the Company will
retain as payment (and reduce the number of Shares otherwise issuable to the
undersigned) that number of the Shares as is sufficient to constitute payment
for the Shares. The undersigned requests that certificates for the applicable
number of Shares (after giving affect to any Cashless Exercise by the
undersigned) be issued in the name of the undersigned and addressed as follows:
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(Please Print Name, Address, and
Social Security or Tax Identification Number)
Dated: ______________________, 200__.
Name of Warrantholder:
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(Must be the same as that on the books and records
of the Company)
Signature:
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