WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
XXXXX-XXXXX.XXX, INC.
Exercisable Commencing March 16, 1999;
Void after March 15, 2004
THIS CERTIFIES that, for value received,
____________________________________ or his/her/its registered
assigns ("Warrantholder"), is entitled, subject to the terms and
conditions set forth in this Warrant, to purchase from Cycle-
Xxxxx.xxx, Inc., a Florida corporation ("Company"),
_____________________________(_____________) fully paid, duly
authorized and nonassessable shares of common stock ("Shares"),
$0.01 par value per share, of the Company ("Common Stock"), at
any time commencing March 16, 1999 and continuing up to 5:00 p.m.
Pacific Daylight Time on March 15, 2004 (the "Exercise Period")
at an exercise price of ten cents ($0.10) per share, subject to
adjustment pursuant to Section 8 hereof.
This Warrant is subject to the following provisions, terms
and conditions:
1. Transferability.
1.1 Registration. The Warrants shall be issued only in
registered form.
1.2 Transfer. This Warrant shall be transferable only on
the books of the Company maintained at its principal executive
offices upon surrender thereof for registration of transfer duly
endorsed by the Warrantholder or by its duly authorized attorney
or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. Upon any
registration of transfer, the Company shall execute and deliver a
new Warrant or Warrants in appropriate denominations to the
person or persons entitled thereto.
1.3 Common Stock to be Issued. Upon the exercise of any
Warrants and upon receipt by the Company of a facsimile or
original of Warrantholder's signed Election to Exercise Warrant
(See Exhibit A), Company shall instruct its transfer agent to
issue stock certificates, subject to the restrictive legend set
forth below, in the name of Warrantholder (or its nominee) and in
such denominations to be specified by Warrantholder representing
the number of shares of Common Stock issuable upon such exercise,
as applicable. Company warrants that no instructions, other than
these instructions, have been given or will be given to the
transfer agent and that the Common Stock shall otherwise be freely
transferable on the books and records of the Company. It shall
be the Company's responsibility to take all necessary actions and
to bear all such costs to issue the certificate of Common Stock
as provided herein, including the responsibility and cost for
delivery of an opinion letter to the transfer agent, if so
required. The person in whose name the certificate of Common
Stock is to be registered shall be treated as a shareholder of
record on and after the exercise date. Upon surrender of any
Warrant that is to be converted in part, the Company shall issue
to the Warrantholder a new Warrant equal to the unconverted
amount, if so requested by Purchaser:
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SUCH LAWS. THE SECURITIES ARE
SUBJECT TO RESTRICTIONS OF TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SUCH LAWS
PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. THE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER REGULATORY
AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON
OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR
ADEQUACY OF THE OFFERING MATERIALS. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
2. Exchange of Warrant Certificate.
Any Warrant certificate may be exchanged for another certificate
or certificates of like tenor entitling the Warrantholder to
purchase a like aggregate number of Shares as the certificate or
certificates surrendered then entitle such Warrantholder to
purchase. Any Warrantholder desiring to exchange a warrant
certificate shall make such request in writing delivered to the
Company, and shall surrender, properly endorsed, the certificate
evidencing the Warrant to be so exchanged. Thereupon, the
Company shall execute and deliver to the person entitled thereto
a new Warrant certificate as so requested.
3. Terms of Warrants: Exercise of Warrants.
3.1. Warrant Exercise. Subject to the terms of this
Warrant, the Warrantholder shall have the right, at any time
after March 16, 1999, but before 5:00 p.m. Pacific Daylight Time
on March 15, 2004, ("Expiration Time"), to purchase from the
Company up to the number of Shares which the Warrantholder may at
the time be entitled to purchase pursuant to the terms of this
Warrant, upon surrender to the Company at its principal executive
office, of the certificate evidencing this Warrant to be
exercised, together with the attached Election to Exercise
Warrant form duly filled in and signed, and upon payment to the
Company of the Warrant Price (as defined in and determined in
accordance with the provisions of Section 7 and 8 hereof) or as
provided in Section 3 hereof, for the number of Shares with
respect to which such Warrant is then exercised. Payment of the
aggregate Warrant Price shall be made in cash, wire transfer or
by cashier's check or any combination thereof.
3.2. Common Stock Certificates. Subject to the terms of
this Warrant, upon such surrender of this Warrant and payment of
such Warrant Price as aforesaid, the Company shall promptly issue
and cause to be delivered to the Warrantholder or to such person
or persons as the Warrantholder may designate in writing, a
certificate or certificates (in such name or names as the
Warrantholder may designate in writing) for the number of duly
authorized, fully paid and non-assessable whole Shares to be
purchased upon the exercise of this Warrant, and shall deliver to
the Warrantholder Common Stock or cash, to the extent provided in
Section 9 hereof, with respect to any fractional Shares otherwise
issuable upon such surrender. Such certificate or certificates
shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of
such Shares as of the close of business on the date of the
surrender of this Warrant and payment of the Warrant Price,
notwithstanding that the certificates representing such Shares
shall not actually have been delivered or that the Share and
Warrant transfer books of the Company shall then be closed. This
Warrant shall be exercisable, at the sole election of the
Warrantholder, either in full or from time to time in part and,
in the event that any certificate evidencing this Warrant (or any
portion thereof) is exercised prior to the Termination Date with
respect to less than all of the Shares specified therein at any
time prior to the Termination Date, a new certificate of like
tenor evidencing the remaining portion of this Warrant shall be
issued by the Company, if so requested by the Warrantholder.
3.3. Transfer Agent. Upon the Company's receipt of a
facsimile or original of Warrantholder's signed Election to
Exercise Warrant, the Company shall instruct its transfer agent to
issue one or more stock Certificates representing that number of
shares of Common Stock which the Warrantholder is entitled to
purchase in accordance with the terms and conditions of this
Warrant and the Election to Exercise Warrant attached hereto. The
transfer agent for the Company shall act as registrar and shall
maintain an appropriate ledger containing the necessary
information with respect to each Warrant.
3.4. Election to Exercise. Such exercise shall be effectuated by
surrendering to the Company, or its attorney, the Warrants to be
converted together with a facsimile or original of the signed
Election to Exercise Warrant which evidences Warrantholder's intention
to exercise those Warrants indicated. The date on which the
Election to Exercise Warrant is effective ("Exercise Date") shall
be deemed to be the date on which the Warrantholder has delivered to
the Company a facsimile or original of the signed Election to
Exercise Warrant, as long as the original Warrants to be exercised
are received by the Company or its designated attorney within five (5) business
days thereafter. As long as the Warrants to be exercised are received
by the Company within five (5) business days after it receives a
facsimile or original of the signed Election to Exercise Warrant,
the Company shall deliver to the Warrantholder, or per the
Warrantholder's instructions, the shares of Common Stock within
three (3) business days of receipt of the Warrants to be
converted.
3.5. Payment of Interest. Nothing contained in this
Warrant shall be deemed to establish or require the payment of
interest to the Warrantholder at a rate in excess of the maximum
rate permitted by governing law. In the event that the rate of
interest required to be paid exceeds the maximum rate permitted by
governing law, the rate of interest required to be paid thereunder
shall be automatically reduced to the maximum rate permitted under
the governing law and such excess shall be returned with
reasonable promptness by the Warrantholder to the Company.
3.6. Issuance of Common Stock. It shall be the Company's
responsibility to take all necessary actions and to bear all such
costs to issue the Certificate of Common Stock as provided
herein, including the responsibility and cost for delivery of an
opinion letter to the transfer agent, if so required. The person
in whose name the certificate of Common Stock is to be registered
shall be treated as a shareholder of record on and after the
exercise date. Upon surrender of any Warrants that are to be
converted in part, the Company shall issue to the Warrantholder
new Warrants equal to the unconverted amount, if so requested by
Warrantholder.
3.7. Exercise Default. The Company shall at all times
reserve and have available all Common Stock necessary to meet
exercise of the Warrants by all Warrantholders of the entire
amount of Warrants then outstanding. If, at any time
Warrantholder submits an Election to Exercise Warrant and the
Company does not have sufficient authorized but unissued shares
of Common Stock available to effect, in full, a exercise of the
Warrants (a "Exercise Default", the date of such default being
referred to herein as the "Exercise Default Date"), the Company
shall issue to the Warrantholder all of the shares of Common
Stock which are available, and the Election to Exercise Warrant
as to any Warrants requested to be converted but not converted
(the "Unconverted Warrants"), upon Warrantholder's sole option,
may be deemed null and void. The Company shall provide notice of
such Exercise Default ("Notice of Exercise Default") to all
existing Warrantholders of outstanding Warrants, by facsimile,
within one (1) business day of such default (with the original
delivered by overnight or two day courier), and the Warrantholder
shall give notice to the Company by facsimile within five (5)
business days of receipt of the original Notice of Exercise
Default (with the original delivered by overnight or two day
courier) of its election to either nullify or confirm the
Election to Exercise Warrant.
3.8. Furnishing of Prospectus. The Company shall furnish to
Warrantholder such number of prospectuses and other documents
incidental to the registration of the shares of Common Stock
underlying the Warrants, including any amendment of or
supplements thereto. Warrantholder shall acknowledge in writing
the receipt, the careful reading, and the understanding thereof,
prior to any exercise under this Section 3.
3.9. Shareholder of Record. Each person in whose name any
certificate for shares of Common Stock shall be issued shall for
all purposes be deemed to have become the holder of record of the
Common Stock represented thereby on the date on which the Warrant
was surrendered and payment of the purchase price and any
applicable taxes was made, irrespective of date of issue or
delivery of such certificate, except that if the date of such
surrender and payment is a date when the Shares transfer books of
the Company are closed, such person shall be deemed to have
become the holder of such Shares on the next succeeding date on
which such Share transfer books are open. The Company shall not
close such Share transfer books at any one time for a period
longer than seven (7) days.
3.10. Cashless Exercise. This Warrant is exercisable in
whole or in part at the Exercise Price per share of Common Stock
(as defined hereafter) payable hereunder, payable in cash or by
certified or official bank check, or by "cashless exercise", by
means of tendering this Warrant Certificate to the Company. Upon
surrender of this Warrant Certificate with the annexed Notice of
Exercise duly executed, together with payment of the Exercise
Price for the shares of Common Stock purchased, the Holder shall
be entitled to receive a certificate or certificates for the
shares of Common Stock so purchased.
4. Payment of Taxes.
The Company shall pay all documentary stamp taxes, if any,
attributable to the initial issuance of the Shares; provided,
however, that the Company shall not be required to pay any tax or
taxes which may be payable, (a) with respect to any secondary
transfer of this Warrant or the Shares or (b) as a result of the
issuance of the Shares to any person other than the
Warrantholder, and the Company shall not be required to issue or
deliver any certificate for any Shares unless and until the
person requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have produced evidence
that such tax has been paid to the appropriate taxing authority.
5. Mutilated or Missing Warrant.
In case the certificate or certificates evidencing this Warrant
shall be mutilated, lost, stolen or destroyed, the Company shall,
at the request of the Warrantholder, issue and deliver in
exchange and substitution for and upon cancellation of the
mutilated certificate or certificates, or in lieu of and
substitution for the certificate or certificates lost, stolen or
destroyed, a new Warrant certificate or certificates of like
tenor and representing an equivalent right or interest, but only
upon receipt of evidence satisfactory to the Company of such
loss, theft or destruction of such Warrant and of a bond of
indemnity, if requested, also satisfactory to the Company in form
and amount, and issued at the applicant's cost. Applicants for
such substitute Warrant certificate shall also comply with such
other reasonable regulations and pay such other reasonable
charges as the Company may prescribe.
6. Reservation of Shares.
The issuance, sale and delivery of the Warrants have been duly
authorized by all required corporate action on the part of the
Company and when issued, sold and delivered in accordance with
the terms hereof and thereof for the consideration expressed
herein and therein, will be duly and validly issued, fully paid,
and non-assessable and enforceable in accordance with their
terms, subject to the laws of bankruptcy and creditors' rights
generally. The Company shall pay all taxes in respect of the
issue thereof. As a condition precedent to the taking of any
action that would result in the effective purchase price per
share of Common Stock upon the exercise of this Warrant being
less than the par value per share (if such shares of Common Stock
then have a par value), the Company will take such corporate
action as may, in the opinion of its counsel, be necessary in
order that the Company may comply with all its obligations under
this Agreement with regard to the exercise of this Warrant.
7. Warrant Price.
During the Exercise Period, the price per Share ("Warrant price")
at which Shares shall be purchasable upon the exercise of this
Warrant shall be ") at an exercise price of ten cents ($0.10) per
share, subject to adjustment pursuant to Section 8 hereof
("Exercise Price").
8. Adjustment of Warrant Price and Number of Shares.
The number and kind of securities purchasable upon the exercise
of this Warrant and the Warrant Price shall be subject to
adjustment from time to time after the date hereof upon the
happening of certain events, as follows:
8.1 Adjustments. The number of Shares purchasable upon the
exercise of this Warrant shall be subject to adjustments as
follows:
(a) In case the Company shall (i) pay a dividend on Common
Stock in Common Stock or securities convertible into,
exchangeable for or otherwise entitling a holder thereof to
receive Common Stock, (ii) declare a dividend payable in cash on
its Common Stock and at substantially the same time offer its
shareholders a right to purchase new Common Stock (or securities
convertible into, exchangeable for or other entitling a holder
thereof to receive Common Stock) from the proceeds of such
dividend (all Common Stock so issued shall be deemed to have been
issued as a stock dividend), (iii) subdivide its outstanding
shares of Common Stock into a greater number of shares of Common
Stock, (iv) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or (v) issue by
reclassification of its Common Stock any shares of Common Stock
of the Company, the number of shares of Common Stock issuable
upon exercise of the Warrants immediately prior thereto shall be
adjusted so that the holders of the Warrants shall be entitled to
receive after the happening of any of the events described above
that number and kind of shares as the holders would have received
had such Warrants been converted immediately prior to the
happening of such event or any record date with respect thereto.
Any adjustment made pursuant to this subdivision shall become
effective immediately after the close of business on the record
date in the case of a stock dividend and shall become effective
immediately after the close of business on the effective date in
the case of a stock split, subdivision, combination or
reclassification.
(b) In case the Company shall distribute, without receiving
consideration therefor, to all holders of its Common Stock
evidences of its indebtedness or assets (excluding cash dividends
other than as described in Section (8)(a)(ii)), then in such
case, the number of shares of Common Stock thereafter issuable
upon exercise of the Warrants shall be determined by multiplying
the number of shares of Common Stock theretofore issuable upon
exercise of the Warrants, by a fraction, of which the numerator
shall be the closing bid price per share of Common Stock on the
record date for such distribution, and of which the denominator
shall be the closing bid price of the Common Stock less the then
fair value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion
of the assets or evidences of indebtedness so distributed per
share of Common Stock. Such adjustment shall be made whenever
any such distribution is made and shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(c) Any adjustment in the number of shares of Common Stock
issuable hereunder otherwise required to be made by this Section
8 will not have to be adjusted if such adjustment would not
require an increase or decrease in one percent (1%) or more in
the number of shares of Common Stock issuable upon exercise of
the Warrant. No adjustment in the number of Shares purchasable
upon exercise of this Warrant will be made for the issuance of
shares of capital stock to directors, employees or independent
Warrantors pursuant to the Company's or any of its subsidiaries'
stock option, stock ownership or other benefit plans or
arrangements or trusts related thereto or for issuance of any
shares of Common Stock pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of
the Company and the investment of additional optional amounts in
shares of Common Stock under such plan.
(d) Whenever the number of shares of Common Stock issuable
upon the exercise of the Warrants is adjusted, as herein provided
the Warrant Price shall be adjusted (to the nearest cent) by
multiplying such Warrant Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the
number of shares of Common Stock issuable upon the exercise of
each share of the Warrants immediately prior to such adjustment,
and of which the denominator shall be the number of shares of
Common Stock issuable immediately thereafter.
(e) The Company from time to time by action of its Board of
Directors may decrease the Warrant Price by any amount for any
period of time if the period is at least twenty (20) days, the
decrease is irrevocable during the period and the Board of
Directors of the Company in its sole discretion shall have made a
determination that such decrease would be in the best interest of
the Company, which determination shall be conclusive. Whenever
the Warrant Price is decreased pursuant to the preceding
sentence, the Company shall mail to holders of record of the
Warrants a notice of the decrease at least fifteen (15) days
prior to the date the decreased Warrant Price takes effect, and
such notice shall state the decreased Warrant Price and the
period it will be in effect.
8.2 Mergers, Etc. In the case of any (i) consolidation or
merger of the Company into any entity (other than a consolidation
or merger that does not result in any reclassification, exercise,
exchange or cancellation of outstanding shares of Common Stock of
the Company), (ii) sale, transfer, lease or conveyance of all or
substantially all of the assets of the Company as an entirety or
substantially as an entirety, or (iii) reclassification, capital
reorganization or change of the Common Stock (other than solely a
change in par value, or from par value to no par value), in each
case as a result of which shares of Common Stock shall be
converted into the right to receive stock, securities or other
property (including cash or any combination thereof), each holder
of Warrants then outstanding shall have the right thereafter to
exercise such Warrant only into the kind and amount of
securities, cash and other property receivable upon such
consolidation, merger, sale, transfer, capital reorganization or
reclassification by a holder of the number of shares of Common
Stock of the Company into which such Warrants would have been
converted immediately prior to such consolidation, merger, sale,
transfer, capital reorganization or reclassification, assuming
such holder of Common Stock of the Company (A) is not an entity
with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent entity"), or
an affiliate of a constituent entity, and (B) failed to exercise
his or her rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the
kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same
for each share of Common Stock of the Company held immediately
prior to such consolidation, merger, sale or transfer by other
than a constituent entity or an affiliate thereof and in respect
of which such rights or election shall not have been exercised
("non-electing share"), then for the purpose of this Section 8.2
the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by
each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing
shares). If necessary, appropriate adjustment shall be made in
the application of the provision set forth herein with respect to
the rights and interests thereafter of the holder of Warrants, to
the end that the provisions set forth herein shall thereafter
correspondingly be made applicable, as nearly as may reasonably
be, in relation to any shares of stock or other securities or
property thereafter deliverable on the exercise of the Warrants.
The above provisions shall similarly apply to successive
consolidations, mergers, sales, transfers, capital
reorganizations and reclassifications. The Company shall not
effect any such consolidation, merger, sale or transfer unless
prior to or simultaneously with the consummation thereof the
successor company or entity (if other than the Company) resulting
from such consolidation, merger, sale or transfer assumes, by
written instrument, the obligation to deliver to the holder of
Warrants such shares of stock, securities or assets as, in
accordance with the foregoing provision, such holder may be
entitled to receive under this Section 8.2.
8.3 Statement of Warrants. Irrespective of any
adjustments in the Warrant Price of the number or kind of shares
purchasable upon the exercise of this Warrant, this Warrant
certificate or certificates hereafter issued may continue to
express the same price and number and kind of shares as are
stated in this Warrant.
9. Fractional Shares.
Any fractional shares of Common Stock issuable upon exercise of
the Warrants shall be rounded to the nearest whole share or, at
the election of the Company, the Company shall pay the holder
thereof an amount in cash equal to the closing bid price thereof.
Whether or not fractional shares are issuable upon exercise
shall be determined on the basis of the total number of Warrants
the holder is at the time exercising and the number of shares of
Common Stock issuable upon such exercise.
10. No Rights as Stockholders: Notices to Warrantholders.
Nothing contained in this Warrant shall be construed as
conferring upon the Warrantholder or its transferees any rights
as a stockholder of the Company, including the right to vote,
receive dividends, consent or receive notices as a stockholder
with respect to any meeting of stockholders for the election of
directors of the Company or any other matter. If, however, at
any time prior to the Expiration Time and prior to the exercise
of this Warrant, any of the following events shall occur:
(a) any action which would require an adjustment pursuant
to Section 8.1; or
(b) a dissolution, liquidation or winding up of the Company or
any consolidation, merger or sale of its property, assets and
business as an entirety; then in any one or more of said events,
the Company shall give notice in writing of such event to the
Warrantholder at least ten (10) days prior to the date fixed as a
record date or the date of closing the transfer books for the
determination of the shareholders entitled to any relevant
dividend, distribution, subscription rights, or other rights or
for the effective date of any dissolution, liquidation of winding
up or any merger, consolidation, or sale of substantially all
assets, but failure to mail or receive such notice or any defect
therein or in the mailing thereof shall not affect the validity
of any such action taken. Such notice shall specify such record
date or the effective date, as the case may be.
11. Registration Rights.
The Company shall prepare and file with the U.S. Securities
and Exchange Commission ("SEC"), no later than twelve months
after the Effective Date, as defined therein, of an accompanying
Registration Rights Agreement, a Registration Statement on Form
SB-2 ("Registration Statement"), covering a sufficient number of
shares of Common Stock to cover the exercise of this Warrant. If
at any time the number of shares of Common Stock into which this
Warrant shall be exercised converted exceeds the aggregate number
of shares of Common Stock then registered, the Company shall,
within ten (10) business days after receipt of written notice
from the Warrantholder, file with the SEC an additional
Registration Statement on Form SB-2 or any other applicable
registration statement, to register the shares of Common Stock
into which this Warrant may be exercised that exceed the
aggregate number of shares of Common Stock already registered.
12. Miscellaneous.
12.1 Benefits of this Agreement. Nothing in this Warrant shall
be construed to give to any person or corporation other than the
Company and the Warrantholder 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
Warrantholder.
12.2 Rights Cumulative; Waivers. The rights of each of the
parties under this Warrant are cumulative. The rights of each of
the parties hereunder shall not be capable of being waived or
varied other than by an express waiver or variation in writing.
Any failure to exercise or any delay in exercising any of such
rights shall not operate as a waiver or variation of that or any
other such right. However, the holders of a majority in
principal amount of the Warrants may waive a default or rescind
the declaration of an Exercise Default and its consequences
except for a default in the exercise into Common Stock. Any
defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of
any party shall in any way preclude such party from exercising
any such right or constitute a suspension or any variation of any
such right.
12.3 Benefit; Successors Bound. This Warrant and the terms,
covenants, conditions, provisions, obligations, undertakings,
rights, and benefits hereof, shall be binding upon, and shall
inure to the benefit of, the parties hereto and their heirs,
executors, administrators, representatives, successors, and
permitted assigns.
12.4 Entire Agreement. This Warrant contains the entire
agreement between the parties with respect to the subject matter
hereof. There are no promises, agreements, conditions,
undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between
them with respect to this Warrant or the matters described in
this Warrant, except as set forth in this Warrant. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Warrant.
12.5 Assignment. This Warrant may be assigned if the Assignment
of Warrant, attached as Exhibit B to this Warrant, is properly
completed, executed and delivered to the Company.
12.6 Amendment. This Warrant may be amended only by an
instrument in writing executed by the parties hereto.
12.7 Severability. Each part of this Warrant is intended to be
severable. In the event that any provision of this Warrant is
found by any court or other authority of competent jurisdiction
to be illegal or unenforceable, such provision shall be severed
or modified to the extent necessary to render it enforceable and
as so severed or modified, this Warrant shall continue in full
force and effect.
12.8 Notices. Notices required or permitted to be given
hereunder shall be in writing and shall be deemed to be
sufficiently given when personally delivered (by hand, by
courier, by telephone line facsimile transmission, receipt
confirmed, or other means) or sent by certified mail, return
receipt requested, properly addressed and with proper postage
pre-paid (i) if to the Company, at its executive office (ii) if
to the Warrantholder, at the address set forth under its name in
the subscription agreement for this Warrant, with a copy to its
designated attorney and (iii) if to any other Warrantholder, at
such address as such Warrantholder shall have provided in writing
to the Company, or at such other address as each such party
furnishes by notice given in accordance with this section, and
shall be effective, when personally delivered, upon receipt and,
when so sent by certified mail, four (4) business days after
deposit with the United States Postal Service.
12.9 Governing Law. This Agreement shall be governed by the
interpreted in accordance with the laws of the State of Arizona
without reference to its conflicts of laws rules or principles.
12.10 Forum Selection and Consent to Jurisdiction. Any
litigation based thereon, or arising out of, under, or in
connection with, this agreement or any course of conduct, course
of dealing, statements (whether oral or written) or actions of
the Company or Warrantholder shall be brought and maintained
exclusively in the federal courts of the State of Arizona without
reference to its conflicts of laws rules or principles. The
Company hereby expressly and irrevocably submits to jurisdiction
exclusively with the federal Courts of the State of Arizona for
the purpose of any such litigation as set forth above and
irrevocably agrees to be bound by any final judgment rendered
thereby in connection with such litigation. The Company further
irrevocably consents to the service of process by registered
mail, postage prepaid, or by personal service within or without
the State of Arizona. The Company hereby expressly and
irrevocably waives, to the fullest extent permitted by law, any
objection which it may have or hereafter may have to the laying
of venue of any such litigation brought in any such court
referred to above and any claim that any such litigation has been
brought in any inconvenient forum. To the extent that the
Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to
itself or its property. The Company hereby irrevocably waives
such immunity in respect of its obligations under this agreement
and the other loan documents.
12.11 Waiver of Jury Trial. The Warrantholder and the
Company hereby knowingly, voluntarily and intentionally waive any
rights they may have to a trial by jury in respect of any
litigation based hereon, or arising out of, under, or in
connection with, this agreement, or any course of conduct, course
of dealing, statements (whether oral or written) or actions of
the Warrantholder or the Company. The Company acknowledges and
agrees that it has received full and sufficient consideration for
this provision and that this provision is a material inducement
for the Warrantholder entering into this agreement.
12.12 Consents. The person signing this Warrant on
behalf of the Company hereby represents and warrants that he has
the necessary power, consent and authority to execute and deliver
this Warrant on behalf of the Company.
12.13 Further Assurances. In addition to the
instruments and documents to be made, executed and delivered
pursuant to this Warrant, the parties hereto agree to make,
execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such
other actions as the requesting party may reasonably require to
carry out the terms of this Warrant and the transactions
contemplated hereby.
12.14 Section Headings. The Section headings in this
Warrant are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Warrant.
12.15 Construction. Unless the context otherwise requires,
when used herein, the singular shall be deemed to include the
plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to
include the equivalent pronoun of the other or no gender.
IN WITNESS WHEREOF, the parties have caused this Warrant to
be duly executed, all as of the day and year first above written.
COMPANY:
XXXXX-XXXXX.XXX, INC.
By:______________________
Xxx Xxxx, President
EXHIBIT A
ELECTION TO EXERCISE WARRANT
The undersigned hereby irrevocably elects to exercise the right
of purchase represented by the within Warrant for, and to
purchase thereunder, _______shares of Common Stock ("Shares")
provided for therein, and requests that certificates for the
Shares be issued in the name of:*
Name:___________________________________________________________
Address:_________________________________________________________
Social Security No.______________________________________________
or Tax ID Number:_________________________________________________
and, if such number of Shares shall not be all of the Shares
purchasable under the Warrant, that a new Warrant certificate for
the balance of the Shares purchasable under the within Warrant be
registered in the name of the undersigned Warrantholder or his
Assignee* as indicated below and delivered to the address stated
below:
Dated: _________________, _____
Name of Warrantholder of
Assignee (Please
Print)_____________________________________________
Address:_________________________________________________________
Signature:_______________________________________________________
Signature
Guaranteed:______________________________________________
Signature of Guarantor
____________________
* The Warrant contains restrictions on sale, assignment or
transfer.
** Note: The above signature must correspond with the name as
written on the face of this Warrant certificate in every
particular, without alteration or enlargement or any change
whatever, unless this warrant has been assigned.
EXHIBIT B
ASSIGNMENT OF WARRANT
(To be signed only upon assignment of Warrant)*
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________
________________________________________________________________
(Name and Address of Assignee must be Printed or Typewritten)
the within Warrant, hereby irrevocably constituting and
appointing _________Attorney to transfer said Warrant on the
books of the Company, with full power of substitution in the
premises.
Dated: ___________________, 19____
________________________________**
Signature of Registered Holder
Signature Guaranteed: ________________________________
Signature of Guarantor
____________________
* The Warrant contains restrictions on sale, assignment or
transfer.
** Note: The signature of this assignment must correspond with
the name as it appears upon the face of the Warrant certificate
in every particular, without alteration or enlargement or any
change whatever.
