Exhibit 99.4
VOID AFTER 5:00 P.M., NEW YORK TIME ON _______________, 2009
WARRANT TO PURCHASE _________ SHARES OF COMMON STOCK
_________________________________
WARRANT TO PURCHASE COMMON STOCK
OF
EAUTOCLAIMS, INC.
_________________________________
THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"),
AND ARE BEING OFFERED AND SOLD PURSUANT
TO RULE 506 OF REGULATION D
FOR VALUE RECEIVED, eAutoclaims, Inc., a Nevada corporation (the
"Company"), grants the following rights to _____________________ ("Holder"):
ARTICLE 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings, unless
the context shall otherwise require:
(a) "Common Stock" shall mean the common stock, par
value $0.001 per share, of the Company.
(b) "Corporate Office" shall mean the office of the
Company (or its successor) at which at any particular time its principal
business shall be administered.
(c) "Closing" shall have mean the date the Company
receives funds from the Units as described in the Warrant Exercise Term Sheet
and Subscription Agreement.
(d) "Exercise Date" shall mean any date upon which
the Holder shall give the Company a Notice of Exercise.
(e) "Exercise Price" shall mean the price to be paid
to the Company for each share of Common Stock to be purchased upon exercise of
this Warrant in accordance with the terms hereof. The Exercise Price is $.30 per
Share.
(f) "Expiration Date" shall mean 5:00 p.m. (New York
time) on ______________, 2009.
(g) "SEC" shall mean the United States Securities and
Exchange Commission.
(h) "Underlying Shares" shall mean the shares of the
Common Stock issuable upon exercise of the Warrant.
ARTICLE 2. EXERCISE AND AGREEMENTS.
2.1 Exercise of Warrant. This Warrant shall entitle Holder to
purchase up to ____________________________________________ (______________)
shares of Common Stock (the "Shares") at the Exercise Price. This Warrant shall
be exercisable at any time and from time to time prior to the Expiration Date
(the "Exercise Period"). This Warrant and the right to purchase Shares hereunder
shall expire and become void at the Expiration Date.
2.2 Manner of Exercise.
(a) Holder may exercise this Warrant at any time,
starting at the time of closing and from time to time during the Exercise
Period, in whole or in part (but not in denominations of fewer than 1,000
Shares, except upon an exercise of this Warrant with respect to the remaining
balance of Shares purchasable hereunder at the time of exercise), by delivering
to the Company (i) a duly executed Notice of Exercise in substantially the form
attached as Appendix 1 hereto, and (ii) a wire transfer or check for the
aggregate Exercise Price of the Shares being purchased.
(b) From time to time upon exercise of this Warrant,
in whole or part, in accordance with its terms, the Company will instruct its
transfer agent to deliver stock certificates to the Holder representing the
number of Shares being purchased pursuant to such exercise, subject to
adjustment as described herein.
(c) Promptly following any exercise of this Warrant,
if the Warrant has not been fully exercised and has not expired, the Company
will deliver to the Holder a new Warrant for the balance of the Shares covered
hereby.
2.3 Termination. All rights of the Holder in this Warrant, to
the extent they have not been exercised, shall terminate on the Expiration Date.
2.4 No Rights Prior to Exercise. Prior to its exercise
pursuant to Section 2.2 above, this Warrant shall not entitle the Holder to any
voting or other rights as holder of Shares.
2.5 Adjustments.
(a) Reclassification. In case of any
reclassification, stock split, or reverse stock split, capital reorganization,
stock dividend or other change of outstanding shares of Common Stock, the
Company shall cause effective provision to be made so that the Holder shall have
the right thereafter, by exercising this Warrant, to purchase the kind and
number of shares of stock or other securities or property (including cash)
receivable upon such capital reorganization, stock dividend, stock split, or
reverse stock split, as the Holder would have been entitled to receive had the
Holder exercised this Warrant in full immediately before such reclassification,
capital reorganization, stock dividend, stock split, or reverse stock split, or
conveyance. Any such provision shall include provision for adjustments that
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section 2.5. The foregoing provisions shall similarly apply to
successive reclassifications, capital reorganizations,
2
stock dividends, stock split, or reverse stock split, and other changes of
outstanding shares of Common Stock.
(b) Merger. In the case of any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification, capital reorganization, stock
dividend or other change of outstanding change of outstanding common stock), or
in the case of any sale or conveyance to another corporation of the property of
the corporation as, or substantially as, an entirety (collectively "Sale of the
Business") the Company shall give the warrant holder at least twenty (20)
business days advance notice of the material terms and conditions of the Sale of
Business transaction. The Warrant Holder shall notify the Company within five
(5) business days of the expected closing date of the Sale of Business as
disclosed in the notification by the Company to the Warrant Holder of the
Warrant Holder's intent to exercise this Warrant, which exercise shall include
the notice of exercise and a bank cashier's or certified check for the aggregate
Exercise Price of the underlying Shares being purchased. If the Warrant Holder
does not timely elect to exercise the Warrant in accordance with these
provisions the Warrant shall terminate and be null and void.
2.6 Fractional Shares. No fractional Shares shall be issuable
upon exercise of this Warrant and the number of Shares to be issued shall be
rounded up to the nearest whole Share. If a fractional Share interest arises
upon any exercise of the Warrant, the Company shall eliminate such fractional
Share interest by issuing Holder an additional full Share.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company hereby
represents and warrants to the Holder as follows:
(a) All Shares which may be issued upon the exercise
of the purchase right represented by this Warrant shall, upon issuance, be duly
authorized, validly issued, fully-paid and nonassessable, and free of any liens
and encumbrances except for restrictions on transfer provided for herein or
under applicable federal and state securities laws, and not subject to any
pre-emptive rights.
(b) The Company is a corporation duly organized and
validly existing under the laws of the State of Nevada, and has the full power
and authority to issue this Warrant and to comply with the terms hereof. The
execution, delivery and performance by the Company of its obligations under this
Warrant, including, without limitation, the issuance of the Shares upon any
exercise of the Warrant have been duly authorized by all necessary corporate
action. This Warrant has been duly executed and delivered by the Company and is
a valid and binding obligation of the Company, enforceable in accordance with
its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting enforceability of
creditors' rights generally and except as the availability of the remedy of
specific enforcement, injunctive relief or other equitable relief is subject to
the discretion of the court before which any proceeding therefor may be brought.
(c) The Company is not subject to or bound by any
provision of any certificate or articles of incorporation or by-laws, mortgage,
deed of trust, lease, note, bond, indenture, other instrument or agreement,
license, permit, trust, custodianship, other restriction or any applicable
provision of any law, statute, rule, regulation, judgment, order, writ,
injunction or decree of any court, governmental body, administrative agency or
arbitrator which could prevent or be violated by or under which there would be a
default (or right of termination) as a result of the execution, delivery and
performance by the Company of this Warrant.
3
(d) The Company is subject to the reporting
requirements of Section 13 or Section 15d of the Securities Exchange Act of
1934, as amended. The Company is eligible to issue the Warrants and the
Underlying Shares pursuant to Rule 506 of Regulation D promulgated under the
Securities Act.
ARTICLE 4. REDEMPTION OF WARRANTS
4. Redemption of Warrants. The Company, at its option, may
redeem all or any portion on a pro rata basis, of the outstanding Warrants at a
price of $.01 per Warrant, upon at least 10 days' notice to the registered
Holders of Warrants, provided that the average closing price per share of Common
Stock (determined as hereinafter provided) shall have been $.62 or greater for a
period of 10 consecutive business days ended immediately prior to the date of
such notice. For the purpose of determining whether the Company may redeem the
Warrants pursuant to this Section 4, the closing price per share of Common Stock
for each day shall be the last reported sales price, regular way, or, in case no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices, regular way, in either case, on any exchange (NASDAQ or
OTC:BB) on which the Common Stock is listed or admitted to trading, or, if there
is no such representative closing bid on NASDAQ or XXX.XX on such day, a price
determined in any reasonable manner approved by the Board of Directors of the
Company.
If the Company shall elect to redeem the Warrants pursuant to
this Section 4, notice of redemption shall be given to the Holders of all
outstanding Warrants at least 10 days prior to the date fixed for redemption, to
their last addresses as they shall appear on the warrant register, but failure
to give such notice by mail to the Holder of any Warrant, or any defect therein,
shall not affect the validity of the proceedings for the redemption of any other
Warrants. The notice shall state that the Company is redeeming the Warrant
pursuant to the Section 4 at the redemption price of $.01 per Warrant, and the
date fixed for redemption; shall state that payment of the redemption price of
the Warrants will be made at the corporate offices of the Company upon
presentation and surrender of such Warrants; shall state that the right to
exercise the Warrants will terminate as provided in this Agreement (stating the
date of such termination); and shall state the Exercise Price. The date of
redemption for the Warrants pursuant to this Section 4 shall be any date chosen
by the Company which complies with the notice requirement set forth in this
Section 4. Warrant Holders shall have the right to exercise the Warrants during
this ten (10) day notice period by complying with the manner of exercise
provisions of Section 2.2. If a Warrant Holder does not elect to exercise during
this ten (10) day redemption notice period, the Warrants shall be considered
redeemed and cancelled. If the giving of notice of redemption shall have been
completed as provided above, and if funds sufficient for the redemption of the
Warrants pursuant to this Section 4 shall have been deposited into a separate
bank account for such purpose, the right to exercise the Warrants shall
terminate, provided the Warrant holder does not exercise during the ten (10) day
redemption notice period, at the close of business on the business day preceding
the date fixed for redemption, and the Holder of each Warrant shall thereafter
be entitled upon surrender of his Warrant, only to receive $.01 per Warrant,
without interest.
ARTICLE 5. MISCELLANEOUS.
5.1 Transfer. This Warrant may not be transferred or assigned,
in whole or in part, at any time, except in compliance with applicable federal
and state securities laws by the transferor and the transferee (including,
without limitation, the delivery of an investment representation letter and a
legal opinion reasonably satisfactory to the Company), provided that this
Warrant may not be transferred or assigned such that either the Holder or any
transferee will, following such transfer or assignment, hold a Warrant for the
right to purchase fewer than 1,000 Shares.
4
5.2 Transfer Procedure. Subject to the provisions of Section
5.1, Holder may transfer or assign this Warrant by giving the Company notice
setting forth the name, address and taxpayer identification number of the
transferee or assignee, if applicable (the "Transferee") and surrendering this
Warrant to the Company for reissuance to the Transferee (and the Holder, in the
event of a transfer or assignment of this Warrant in part). (Each of the persons
or entities in whose name any such new Warrant shall be issued are herein
referred to as a Holder").
5.3 Loss, Theft, Destruction or Mutilation. If this Warrant
shall become mutilated or defaced or be destroyed, lost or stolen, the Company
shall execute and deliver a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or, in lieu of and in
substitution for such Warrant so destroyed, lost or stolen, upon the Holder
filing with the Company evidence satisfactory to it that such Warrant has been
so mutilated, defaced, destroyed, lost or stolen. However, the Company shall be
entitled, as a condition to the execution and delivery of such new Warrant, to
demand indemnity satisfactory to it and payment of the expenses and charges
incurred in connection with the delivery of such new Warrant. Any Warrant so
surrendered to the Company shall be canceled.
5.4 Notices. All notices and other communications from the
Company to the Holder or vice versa shall be deemed delivered and effective when
given personally, by facsimile transmission and confirmed in writing or mailed
by first-class registered or certified mail, postage prepaid at such address
and/or facsimile number as may have been furnished to the Company or the Holder,
as the case may be, in writing by the Company or the Holder from time to time.
5.5 Waiver. This Warrant and any term hereof may be changed,
waived, or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
5.6 Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of Florida, without giving
effect to its principles regarding conflicts of law.
Dated: eAUTOCLAIMS, INC.
Attest: ________________________________ By: ________________________________
Name: Xxxx Xxxxxx
Title: President
HOLDER:
(Individual) ____________________________________
Print Name: ________________________
(Entity) By: ________________________________
Print Name: ________________________
Title: _____________________________
3/22/2006 11:13 AM
41287.102070
#368258 v1 - eAUTO Warrants (2/06)
5
APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase __________ shares
of the Common Stock of eAutoclaims, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. Please issue a certificate or certificates representing
said shares in the name of the undersigned or in such other name as is specified
below:
3. The undersigned represents it is acquiring the shares
solely for its own account and not with a view toward the resale or distribution
thereof except in compliance with applicable securities laws.
____________________________________
(Signature)
_____________
(Date)
3/22/2006 11:13 AM
41287.102070
#368258 v1 - eAUTO Warrants (2/06)
