EXHIBIT 4.2
WARRANT No. 1
NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE SHARES
PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED. TRANSFER OF THIS
WARRANT IS ALSO RESTRICTED BY AN AGREEMENT DATED February 24, 2000. A COPY
OF WHICH IS AVAILABLE FROM THE ISSUER.
WARRANT CERTIFICATE
WARRANT TO PURCHASE COMMON STOCK IN
Xcel Management, Inc.
Exercisable Commencing
August 1, 2000
Void After
February 25, 2003
THIS CERTIFIES that, for value received, Consulting & Strategy
International, LLC, or registered assigns, is entitled, subject to the terms and
conditions set forth in this Warrant, to purchase from Xcel Management, Inc., a
Utah corporation (the "Company"), up to Two Hundred Fifty Thousand (250,000),
fully paid and nonassessable shares of common stock of the Company (the "Common
Stock"), at any time commencing August 1, 2000, at Two Dollars & Fifty Cents
($2.50) per share, subject to adjustment as provided in Section 5 below. This
Warrant is issued pursuant to a Warrant Purchase Agreement between Consulting &
Strategy International, LLC and the Company, dated February 24, 2000 and is
subject to all the terms thereof, including the limitations on transferability
set forth in Sections 4 and 5 thereof.
1. This Warrant may be exercised by the holder hereof, in whole or in
part (but not as to a fractional share), by the presentation and surrender of
this Warrant with the form of Election to Purchase duly executed, at the
principal office of the Company (or at such other address as the Company may
designate by notice in writing to the holder hereof at the address of such
holder appearing on the books of the Company), together with payment of the
exercise price by any of the following means, or a combination thereof, at the
election of the holder:
1
(i) cash, certified check or cashier's check or wire transfer; or
(ii) surrender of the Warrant at the principal office of the Company
together with xxxxxx's notice of election, in which event the Company shall
immediately issue the holder 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 the holder
(not to exceed the number of shares set forth on the cover page of
this Warrant Agreement, as adjusted pursuant to the provisions of
Section 5 of this Warrant Agreement).
Y = the number of shares of Common Stock for which the Warrant is
being exercised.
A = the "Market Price" of one share of Common Stock (for purposes of
this Section), shall be defined as the closing price of the Common
Stock on the business day immediately prior to the date of exercise
of this Warrant (the "Closing Bid Price"), as reported by the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"), or if the Common Stock is not traded on NASDAQ, the
Closing Bid Price in the over-the-counter market; provided, however,
that if the Common Stock is listed on a stock exchange, the Market
Price shall be the Closing Bid Price on such exchange; and, provided
further, that if the Common Stock is not quoted or listed by any
organization, the fair value of the Common Stock, as reasonably
determined by the Board of Directors of the Company, whose
determination shall be conclusive, shall be used)
B = the Exercise Price of $________/share.
The shares of Common Stock so purchased shall be deemed to be issued to the
holder hereof as the record owner of such shares of Common Stock as of the
earliest date allowed by applicable U.S. Federal securities law(s). The Company
shall deliver to the holder, as promptly as practicable, certificates
representing the shares being purchased; and, in case of exercise hereof in part
only, the Company upon surrender hereof, will deliver to the holder a new
Warrant Certificate or Warrant Certificates of like tenor entitling the holder
to purchase the number of shares as to which this Warrant has not been
exercised.
2
2. Nothing contained herein shall be construed to confer upon the holder
of this Warrant, as such, any of the rights of a shareholder of the Company.
3. The Company shall not issue certificates representing fractions of
shares of Common Stock upon the exercise of this Warrant, but shall make a cash
payment for any fractional share based on the market price of the Common Stock
on the date of exercise, which shall be the closing sale price on the principal
exchange on which the Common Stock is traded; or if not traded on any exchange,
then the representative closing bid price in the over-the-counter market. All
calculations under this Section 3 and under Section 5 shall be made to the
nearest cent or shares, as the case may be.
4. Subject to the limitations on transfer set forth in Sections 4 and 5
of the Warrant Purchase Agreement, this Warrant is exchangeable, upon its
surrender by the holder at the office of the Company referred to in Section 1
above, for new warrants (containing the same terms as this Warrant) each
representing the right to purchase such number of shares of Common Stock as
shall be designated by such holder at the time of such surrender (but not
exceeding in the aggregate the remaining number of shares of Common Stock which
may be purchased hereunder). Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and upon
delivery of a bond of indemnity (which bond may be waived by Company)
satisfactory to the Company (or, in the case of mutilation, upon surrender of
this Warrant), the Company will issue to the holder a replacement warrant
(containing the same terms as this Warrant). As used herein, "Warrant" shall
include all new warrants issued in exchange for or replacement of this Warrant.
5. If the Company shall pay a dividend in shares of its Common Shares,
subdivide (split) its outstanding shares of Common Stock, combine (reverse
split) its outstanding shares of Common Stock, issue by reclassification of its
shares of Common Stock any shares or other securities of the Company, or
distribute to holders of its Common Stock any securities of the Company or of
another entity, the number of shares of Common Stock or other securities the
holder hereof is entitled to purchase pursuant to this Warrant immediately prior
thereto shall be adjusted so that the holder shall be entitled to receive upon
exercise the number of shares of Common Stock or other securities which he or
she would have owned or would have been entitled to receive after the happening
of any of the events described above had this Warrant been exercised immediately
prior to the happening of such event, and the exercise price per share shall be
correspondingly adjusted; provided, however, that no adjustment in the number of
shares and/or the exercise price shall be required unless such adjustment, or
cumulative adjustments, would require an increase
3
or decrease of at least one percent (1%) in such number and/or price; and
provided further, however, that any adjustments which by reason of this Section
5 are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. An adjustment made pursuant to this Section 5 shall
become effective immediately after the record date in the case of the stock
dividend or other distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
The holder of this Warrant shall be entitled to participate in any subscription
or other rights offering made to holders of the Company's Common Stock to the
extent he or she would have been entitled had this Warrant been exercised in the
full number of shares as to which this Warrant remains unexercised immediately
prior to the record date for such rights offering. If the Company is
consolidated or merged with or into another corporation or if all or
substantially all of its assets are conveyed to another corporation this Warrant
shall thereafter be exercisable for the purchase of the kind and number of
shares of stock or other securities or property, if any, receivable upon such
consolidation, merger or conveyance by a holder of the number of shares of
Common Stock of the Company which could have been purchased on the exercise of
this Warrant immediately prior to such consolidation, merger or conveyance; and,
in any such case, appropriate adjustment (as reasonably determined by the Board
of Directors) shall be made in the application of the provisions herein set
forth with respect to the rights and interests thereafter of the holder of this
Warrant to the end that the provisions set forth herein (including provisions
with respect to changes in and other adjustments of the number of shares of
Common Stock the holder of this Warrant is entitled to purchase) shall
thereafter by applicable, as nearly as possible, in relation to any shares of
Common Stock or other securities or other property thereafter deliverable upon
the exercise of this Warrant. Upon any adjustment of the number of shares of
Common Stock or other securities the holder of this Warrant is entitled to
purchase, and of any change in exercise price per share, then in each such case
the Company shall give written notice thereof to the then registered holder of
this Warrant at the address of such holder as shown on the books of the Company,
which notice shall state such change and set forth in reasonable detail the
method of calculation and the facts upon which such calculation is based. Each
such notice shall be accompanied by a specific, written statement of the firm of
independent certified public accountants retained to audit the financial
statements of the Company to the effect that such firm fully concurs in the
Company's calculation of the change.
4
6. If at any time:
(a) The Company shall declare a dividend or other distribution on its
Common Stock payable otherwise than in cash at the same rate as the immediately
preceding regular dividend or in Common Stock;
(b) The Company shall authorize the granting to the holders of its Common
Stock of rights to subscribe for or purchase any shares of capital stock of any
class or of any other rights in Company or any other entity;
(c) There shall be any plan or agreement of reorganization, or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another corporation; or
(d) There shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall give to the registered holder of this Warrant at the
address of such holder as shown on the books of the Company, at least ten (10)
days prior to the applicable record date or dates, a specific, written notice
summarizing such action or event and stating the record date or dates for any
such dividend or rights (or if a record is not to be taken, the date or dates as
of which the holders of Common Stock of record to be entitled to such dividend
or rights are to be determined), the date on which any such reorganization,
reclassification, consolidation, merger, sale of assets, dissolution,
liquidation or winding up is expected to become effective, and the date or dates
as of which it is expected the holders of Common Stock of record shall be
entitled to effect any exchange of their shares of Common Stock for securities
of other property deliverable upon any such reorganization, reclassification,
consolidation, merger, sale of assets, dissolution, liquidation or winding up.
7. Notwithstanding anything to the contrary stated herein, at any time
after the date of this Agreement the bid price of the Company's Common Stock is
Five dollars ($5.00) or higher for thirty (30) consecutive trading days, the
holder shall be required to exercise this Warrant (or any unexercised portion
thereof) within one (1) calendar year thereafter. In the event holder fails to
exercise this Warrant, or any unexercised portion thereof, within the allotted
time, upon expiration of said period, this Warrant, or any unexercised portion
thereof, shall immediately become null and void and of no further force and
effect. Company shall give holder confirmed delivery, written notice that this
Warrant will expire no less than forty-five (45) days nor more than ninety (90)
days before the Warrant actually expires.
5
In Witness Whereof, the Company has caused this Warrant to be signed by
its duly authorized officers on the 24/th/ day of February __, 2000.
Xcel Management, Inc
By: /s/ X. Xxxxxxx Xxxxxx
--------------------------------
X. XXXXXXX XXXXXX, Treasurer
Attest:
X. Xxxxxxx Xxxxxx
-----------------------------
X. XXXXXXX XXXXXX, Secretary
6
ELECTION TO PURCHASE
To: _______________________
The undersigned hereby irrevocably elects to exercise the attached Warrant
Certificate to the extent of ______ shares of the Common Stock of
____________________________ . The undersigned elects to make payment as
provided for in [_] Section 1. (i) and/or Section 1. (ii) [mark out as
appropriate], and requests that the certificate or certificates for such shares
be issued in the name of and delivered as follows:
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: ________________________________________________________________________
Address: _____________________________________________________________________
______________________________________________________________________________
7
AMENDMENT NO. 4 TO
WARRANT PURCHASE AGREEMENT
THIS AMENDMENT NO. 4 TO WARRANT PURCHASE AGREEMENT (this "Amendment")
is effective as of October 1, 2000 by and between Insynq, Inc., a Delaware
corporation (the "Company"), and Consulting and Strategy International, LLC
("Holder").
W I T N E S S E T H
WHEREAS, the parties have executed that certain Warrant Purchase
Agreement as of February 24, 2000; and
WHEREAS, the parties have executed that certain Amendment No. 1 to
Warrant Purchase Agreement as of June 9, 2000;
WHEREAS, the parties have executed that certain Amendment No. 2 to
Warrant Purchase Agreement as of July 31, 2000;
WHEREAS, the parties have executed that certain Amendment No. 3 to
Warrant Purchase Agreement as of August 31, 2000; and
WHEREAS, the parties have deemed it to be in their mutual best
interests to further amend the Warrant Purchase Agreement and the underlying
four warrant certificates covering five hundred thousand (500,000) warrants each
(the "Warrant Certificates") to reflect a new exercise date to purchase common
stock, $0.001 par value per share (the "Common Stock"), of the Company
thereunder.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Each Warrant Certificate, and the applicable provisions of the Warrant
Purchase Agreement, are hereby amended to reflect a new exercise date of
December 28, 2000, pursuant to which Holder shall be entitled to exercise the
warrants reflected by the Warrant Certificates to purchase Common Stock.
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the date set forth above.
CONSULTING & STRATEGY INTERNATIONAL, LLC
By: /s/ [ILLEGIBLE]
-----------------------------------
Name:__________________________________
Title: CEO
--------------------------------
INSYNQ, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
AMENDMENT NO. 3 TO
WARRANT PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO WARRANT PURCHASE AGREEMENT (this "Amendment") is
effective as of August 31, 2000 by and between Insynq, Inc., a Delaware
corporation (the "Company"), and Consulting and Strategy International, LLC
("Holder").
W I T N E S S E T H
WHEREAS, the parties have executed that certain Warrant Purchase Agreement
as of February 24, 2000; and
WHEREAS, the parties have executed that certain Amendment No. 1 to Warrant
Purchase Agreement as of June 9, 2000;
WHEREAS, the parties have executed that certain Amendment No. 2 to Warrant
Purchase Agreement as of July 31, 2000; and
WHEREAS, the parties have deemed it to be in their mutual best interests to
further amend the Warrant Purchase Agreement and the underlying four warrant
certificates covering five hundred thousand (500,000) warrants each (the
"Warrant Certificates") to reflect a new exercise date to purchase common stock,
$0.001 par value per share (the "Common Stock"), of the Company thereunder.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Each Warrant Certificate, and the applicable provisions of the Warrant
Purchase Agreement, are hereby amended to reflect a new exercise date of
December 1, 2000, pursuant to which Holder shall be entitled to exercise the
warrants reflected by the Warrant Certificates to purchase Common Stock.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date set forth above.
CONSULTING & STRATEGY INTERNATIONAL, LLC
By:
----------------------------------
Name:
---------------------------------
Title:
---------------------------------
INSYNQ, INC.
By:
----------------------------------
Name:
---------------------------------
Title:
---------------------------------
AMENDMENT NO. 2 TO
WARRANT PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO WARRANT PURCHASE AGREEMENT (this "Amendment") is
effective as of July 31, 2000 by and between Xcel Management, Inc., a Utah
corporation (the "Company"), and Consulting and Strategy International, LLC
("Holder").
W I T N E S S E T H
WHEREAS, the parties have executed that certain Warrant Purchase Agreement
as of February 24, 2000; and
WHEREAS, the parties have executed that certain Amendment No. 1 to Warrant
Purchase Agreement as of June 9, 2000; and
WHEREAS, the parties have deemed it to be in their mutual best interests to
further amend the Warrant Purchase Agreement and the underlying warrant
certificates (the "Warrant Certificates") to reflect a new exercise date to
purchase common stock, $0.001 par value per share (the "Common Stock"), of the
Company thereunder.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Each Warrant Certificate, and the applicable provisions of the Warrant
Purchase Agreement, are hereby amended to reflect a new exercise date of
November 1, 2000, pursuant to which Holder shall be entitled to exercise the
warrants reflected by the Warrant Certificates to purchase Common Stock.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date set forth above.
CONSULTING & STRATEGY INTERNATIONAL, LLC
By: _____________________________________
Name: ___________________________________
Title: ___________________________________
XCEL MANAGEMENT, INC.
By: _____________________________________
Name: ___________________________________
Title: ___________________________________
AMENDMENT NO. 1 TO
WARRANT PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO WARRANT PURCHASE AGREEMENT (this "Amendment") is
effective as of June 9, 2000 by and between Xcel Management, Inc., a Utah
corporation (the "Company"), and Consulting and Strategy International, LLC
("Holder").
W I T N E S S E T H
WHEREAS, the parties have executed that certain Warrant Purchase Agreement
as of February 24, 2000; and
WHEREAS, the parties have deemed it to be in their mutual best interests to
amend the Warrant Purchase Agreement and the underlying warrant certificates
(the "Warrant Certificates") to reflect a new exercise date to purchase common
stock, $0.001 par value per share (the "Common Stock"), of the Company
thereunder.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Each Warrant Certificate, and the applicable provisions of the Warrant
Purchase Agreement, are hereby amended to reflect a new exercise date of October
1, 2000, pursuant to which Holder shall be entitled to exercise the warrants
reflected by the Warrant Certificates to purchase Common Stock.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date set forth above.
CONSULTING & STRATEGY INTERNATIONAL, LLC
By: _____________________________________
Name: ___________________________________
Title: __________________________________
XCEL MANAGEMENT, INC.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
