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Exhibit 6.27
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN
OPINION OF COUNSEL IN A FORM REASONABLY SATISFACTORY TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS
OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
FUTUREONE, INC.
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Hare & Co., as Trustees for
Financial Institutions Retirement Fund (the "Holder"), is entitled to subscribe
for and purchase Sixteen Thousand Six Hundred Sixty-Seven (16,667) shares
(subject to adjustment from time to time pursuant to the provisions of Section 5
hereof) of fully paid and nonassessable Common Stock (as defined below) of
FutureOne, Inc., a Nevada corporation (the "Company"), at the Warrant Price (as
defined in Section 2 hereof), subject to the provisions and upon the terms and
conditions hereinafter set forth.
As used herein, the term "Common Stock" shall mean the Company's
presently authorized common stock, $.001 par value, and any stock into or for
which such Common Stock may hereafter be converted or exchanged.
1. Term of Warrant. The purchase right represented by this Warrant is
exercisable, in whole or in part, at any time during the period beginning on the
date hereof and ending on the fifth (5th) anniversary of the date hereof.
2. Warrant Price. The initial exercise price of this Warrant is $1.00
per share, subject to adjustment from time to time pursuant to the provisions of
Section 5 hereof (the "Warrant Price").
3. Method of Exercise; Payment; Issuance of New Warrant; Exercise.
Subject to Section 1 hereof, the purchase right represented by this Warrant may
be exercised by the Holder hereof, in whole or in part, by the surrender of this
Warrant (with the notice of exercise form attached hereto as Exhibit A duly
executed) at the principal office of the Company and by the payment to the
Company of an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased (the "Aggregate Exercise
Price") either (i) by cash, check or wire transfer, (ii) by Cashless Exercise
(as defined below) or (iii) by cancellation by the Holder of indebtedness of the
Company to the Holder. The holder of this Warrant may, at its election exercised
in its sole discretion, exercise this Warrant in whole or in
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part and, in lieu of making the cash payment or loan forgiveness otherwise
contemplated to be made to the Company upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such exercise the "Net
Number" of shares of Common Stock determined according to the following formula
(a "Cashless Exercise"):
Net Number = (A x B) - (A x C)
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B
For purposes of the foregoing formula:
A = the total number of shares with respect to which
this Warrant is then being exercised.
B = the Market Price as of the date of the Exercise
Notice. "Market Price" means, with respect to any
security for any date of determination that price
which shall be computed as the arithmetic average of
the closing bid prices for such security on each of
the five (5) consecutive trading days immediately
preceding the date of notice requiring such
determination (all such determinations to be
appropriately adjusted for any stock dividend, stock
split or similar transaction during the pricing
period).
C = the Warrant Price then in effect for the
applicable Warrant Shares at the time of such
exercise.
The Company agrees that the shares purchased pursuant to this Section 3 shall be
deemed to be issued to the Holder hereof or the designee of the Holder hereof as
the record owner of such shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for such shares as
aforesaid. In the event of any exercise of this Warrant, certificates for the
shares of stock so purchased shall be delivered to the Holder hereof or the
designee of the Holder hereof within 15-days thereafter and, unless this Warrant
has been fully exercised or expired, a new Warrant representing the portion of
the shares, if any, with respect to which this Warrant shall not then have been
exercised, shall also be issued to the Holder hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares. All Common Stock that may
be issued upon the exercise of this Warrant will, upon issuance, be fully paid
and nonassessable, and free from all taxes, liens and charges with respect to
the issue thereof. The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
the full number of shares of Common Stock or other security then deliverable
upon exercise of this Warrant.
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5. (a) Adjustment for Dividends in Other Stock and Property;
Reclassifications. In case at any time or from time to time the holders of the
Common Stock (or any shares of stock or other securities at the time receivable
upon the exercise of this Warrant) shall have received, or, on or after the
record date fixed for the determination of eligible shareholders, shall have
become entitled to receive, without payment therefor,
(1) other or additional stock or other
securities or property (other than cash) by way of
dividend,
(2) any cash or other property paid or
payable out of any source, or
(3) other or additional stock or other
securities or property (including cash) by way of
stock-split, spin-off, reclassification, combination
of shares or similar corporate rearrangement,
(other than (x) shares of Common Stock or any other stock or securities into
which such Common Stock shall have been exchanged, or (y) any other stock or
securities convertible into or exchangeable for such Common Stock or such other
stock or securities), then and in each such case a holder, upon the exercise
hereof as provided in Section 3, shall be entitled to receive the amount of
stock and other securities and property (including cash in the cases referred to
in clauses (2) and (3) above) which such holder would hold on the date of such
exercise if as of the date hereof (the "Issuance Date") such holder had been the
holder of record of the number of shares of Common Stock called for on the face
of this Warrant, and had thereafter, during the period from the Issuance Date to
and including the date of such exercise, retained such shares and/or all other
or additional stock and other securities and property (including cash in the
cases referred to in clause (2) and (3) above) receivable by it as aforesaid
during such period, giving effect to all adjustments called for during such
period by Sections 5(a) and 5(b).
(b) Adjustment for Reorganization, Consolidation and Merger.
In case of any reorganization of the Company (or any other corporation the stock
or other securities of which are at the time receivable on the exercise of this
Warrant) or reclassification of its securities after the Issuance Date, or the
Company (or any such other corporation) shall consolidate with or merge into
another corporation or entity or convey or exchange all or substantially all its
assets to another corporation or entity, then and in each such case the holder
of this Warrant, upon the exercise hereof as provided in Section 3 at any time
after the consummation of such reorganization, reclassification, consolidation,
merger, conveyance or exchange, shall be entitled to receive, in lieu of the
stock or other securities and property receivable upon the exercise of this
Warrant prior to such consummation, the stock or other securities or property to
which such holder would have been entitled upon such consummation if such holder
had exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in Sections 5(a), (b), (c) and (d); in each such case,
the terms of this Warrant shall be applicable to the shares of stock or other
securities or property receivable upon the exercise of this Warrant after such
consummation.
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(c) Adjustment for Certain Dividends and Distributions. If the
Company at any time or from time to time makes, or fixes a record date for the
determination of holders of Common Stock (or any shares of stock or other
securities at the time receivable upon the exercise of this Warrant) entitled to
receive, a dividend or other distribution payable in additional shares of (x)
Common Stock or any other stock or securities into which such Common Stock shall
have been exchanged, or (y) any other stock or securities convertible into or
exchangeable for such Common Stock or such other stock or securities, then and
in each such event
(1) the Warrant Price then in effect shall be decreased
as of the time of the issuance of such additional shares or, in the event such
record date is fixed, as of the close of business on such record date, by
multiplying the Warrant Price then in effect by a fraction (A) the numerator of
which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date, and (B) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date as the case may be,
plus the number of shares of Common Stock issuable in payment of such dividend
or distribution; provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Warrant Price shall be recomputed accordingly as of the
close of business on such record date, and thereafter the Warrant Exercise Price
shall be adjusted pursuant to this Section 5(c) as of the time of actual payment
of such dividends or distributions; and
(2) the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be increased, as of the time
of such issuance or, in the event such record date is fixed, as of the close of
business on such record date, in inverse proportion to the decrease in the
Warrant Price.
(d) Stock Split and Reverse Stock Split. If the Company at any
time or from time to time effects a stock split or subdivision of the
outstanding Common Stock, the Warrant Price then in effect immediately before
that stock split or subdivision shall be proportionately decreased and the
number of shares of Common Stock theretofore receivable upon the exercise of
this Warrant shall be proportionately increased. If the Company at any time or
from time to time effects a reverse stock split or combines the outstanding
shares of Common Stock into a smaller number of shares, the Warrant Price then
in effect immediately before that reverse stock split or combination shall be
proportionately increased and the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be proportionately decreased.
Each adjustment under this Section 5(d) shall become effective at the close of
business on the date the stock split, subdivision, reverse stock split or
combination becomes effective.
6. Notice of Adjustments. Whenever any adjustment is required to be
made as provided in Section 5, the Company shall promptly notify the Holder,
describing in reasonable detail the adjustment and method of calculation used.
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7. Fractional Shares. In the sole discretion of the Company, instead of
any fraction of a share which would otherwise be issuable upon exercise of the
Warrant, the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the market price per share of Common
Stock (as reasonably determined in good faith by the Board of Directors of the
Company), at the close of business on the date of exercise.
8. Compliance with the Act. The Holder of this Warrant, by acceptance
hereof, agrees that this Warrant and the shares of Common Stock to be issued
upon exercise hereof are being acquired for investment and that it will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof except under circumstances which will not
result in a violation of the Act or any state securities laws.
9. Miscellaneous.
(a) No Rights as Stockholder. Except as otherwise specifically
provided herein, no holder of this Warrant, solely by virtue of such holding,
shall be entitled to vote or receive dividends or be deemed the holder of shares
of the Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote, give or withhold consent to any
corporate action (whether a reorganization, issue of stock, reclassification of
stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings, receive dividends or subscription rights, or otherwise, prior to the
issuance of the shares of Common Stock which the Holder is then entitled to
receive upon the due exercise of this Warrant.
(b) Replacement. On receipt of an executed Lost Warrant
Affidavit in substantially the form annexed hereto as Exhibit B of the loss,
theft, destruction or mutilation of this Warrant and, in the case of loss, theft
or destruction, on delivery of an indemnity agreement, or bond reasonably
satisfactory in form and amount to the Company or, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the Holder's
expense, will execute and deliver, in lieu of this Warrant, a new Warrant of
like tenor.
(c) Notice. Any notice given to either party under this
Warrant shall be in writing, and any notice hereunder shall be deemed to have
been given when delivered or telecopied or, if mailed, when mailed, if sent
registered or certified, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the Company's books and
records or at such other address as the Holder may have provided to the Company
in writing.
(d) Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of Arizona without regard to
conflicts of law principles.
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IN WITNESS WHEREOF, this Warrant is executed as of the 28th day of
December, 1999.
FUTUREONE, INC., a Nevada corporation
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: President
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Date: December 22, 1999
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EXHIBIT A
NOTICE OF EXERCISE
TO: FUTUREONE, INC.
1. The undersigned hereby elects to purchase ____________ shares of
Common Stock of FutureOne, Inc. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full in
accordance with the provisions of the following section of the attached Warrant:
___ Section 3(i)
___ Section 3(ii)
___ Section 3(iii)
2. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
(Name)
(Address)
3. The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned will not offer, sell or otherwise dispose of any such
shares except under circumstances that will not result in a violation of the
Securities Act of 1933, as amended, or any state securities law.
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Signature
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EXHIBIT B
FORM OF AFFIDAVIT OF LOSS
STATE OF )
) ss:
COUNTY OF )
The undersigned (hereinafter "Deponent"), being duly sworn, deposes and
says that:
1. Deponent is an adult whose mailing address is:
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2. Deponent is the recipient of a Warrant (the "Warrant") from
FutureOne, Inc. (the "Company"), dated as of December 28, 1999 for the purchase
of 16,667 shares of Common Stock, par value $.001 per share, of the Company, at
an exercise price of $1.00 per share.
3. The Warrant has been lost, stolen, destroyed or misplaced, under the
following circumstances:
4. The Warrant was not endorsed.
5. Deponent has made a diligent search for the Warrant, and has been
unable to find or recover same, and Deponent was the unconditional owner of the
Warrant at the time of loss, and is entitled to the full and exclusive
possession thereof; that neither the Warrant nor the rights of Deponent therein
have, in whole or in part, been assigned, transferred, hypothecated, pledged or
otherwise disposed of, in any manner whatsoever, and that no person, firm or
corporation other than the Deponent has any right, title, claim, equity or
interest in, to, or respecting the Warrant.
6. Deponent makes this Affidavit for the purpose of requesting and
inducing the Company and its agents to issue a new warrant in substitution for
the Warrant.
7. If the Warrant should ever come into the hands, custody or power of
the Deponent or the Deponent's representatives, agents or assigns, the Deponent
will immediately
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and without consideration surrender the Warrant to the Company, its
representatives, agents or assigns, its transfer agents or subscription agents
for cancellation.
8. The Deponent in its sole discretion shall either (i) indemnify and
hold harmless the Company from any claim or demand for payment or reimbursement
of any party arising in connection with the subject matter of this Affidavit or
(ii) provide the Company with a bond reasonable satisfactory to the Company in
form and amount.
Signed, sealed and dated:
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Deponent
Sworn to and subscribed before me this
day of
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Notary Public
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