Contract
Exhibit
10.10
THIS
WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON THE EXERCISE
OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION
OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER,
PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. UPON
THE
FULFILLMENT OF CERTAIN OF SUCH CONDITIONS EXOBOX TECHNOLOGIES CORP. HAS AGREED
TO DELIVER TO THE HOLDER HEREOF A NEW WARRANT OR TO THE HOLDER THEREOF A
NEW
CERTIFICATE FOR THE SHARES ISSUABLE HEREUNDER, AS APPLICABLE, IN EACH CASE
NOT
BEARING THIS LEGEND, FOR THE WARRANT OR SUCH SHARES, AS THE CASE MAY BE,
REGISTERED IN THE NAME OF THE HOLDER HEREOF OR THEREOF. A COPY OF THE AGREEMENT
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
OF
THIS WARRANT OR OF THE SHARES ISSUABLE HEREUNDER TO THE SECRETARY OF EXOBOX
TECHNOLOGIES CORP.
COMMON
STOCK PURCHASE WARRANT
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No.
1
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Void
after October 31, 2010
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THIS
CERTIFIES THAT, for value received, ____________________________ (the "Holder")
is entitled at any time during the 48 month period commencing on October
31,
2006 (“Initial Warrant Exercise Date”) to subscribe for and purchase Ninety
Thousand (90,000) shares of the fully paid and nonassessable Common Stock,
$.001
par value (the "Shares"), of EXOBOX TECHNOLOGIES CORP., a Nevada corporation
(the "Company"), at the per share exercise price of $0.20 (the "Exercise
Price"), subject to the provisions and upon the terms and conditions hereinafter
set forth.
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1.
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Method
of Exercise; Payment.
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a.
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Cash
Exercise. The purchase rights represented by this Warrant
may
be exercised by the Holder, 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, by certified, cashier's or other check acceptable
to the
Company or by wire transfer to an account designated by the Company,
of an
amount equal to the aggregate Exercise Price of the Shares being
purchased.
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b.
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Stock
Certificates. In the event of any exercise of the rights
represented by this Warrant, certificates for the Shares so purchased
shall be delivered to the Holder within a reasonable time and,
unless this
Warrant has been fully exercised or has expired, a new Warrant
representing the shares with respect to which this Warrant shall
not have
been exercised shall also be issued to the Holder within such
time.
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2.
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Stock
Fully Paid; Reservation of Shares. All of the Shares issuable
upon the exercise of the rights represented by this Warrant will,
upon
issuance and receipt of the Exercise Price therefor, be fully paid
and
nonassessable, and free from all taxes, liens and charges with
respect to
the issue thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company shall at all times
have
authorized and reserved for issuance sufficient shares of its Common
Stock
to provide for the exercise of the rights represented by this
Warrant.
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3.
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Adjustments.
Subject to the provisions of Section 11 hereof, the number and
kind of
securities purchasable upon the exercise of this Warrant and the
Exercise
Price therefor shall be subject to adjustment from time to time
upon the
occurrence of certain events, as
follows:
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Page
1 of
7
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a.
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Reclassification.
In the case of any reclassification or change of securities of
the class
issuable upon exercise of this Warrant (other than a change in
par value,
or from par value to no par value, or from no par value to par
value, or
as a result of a subdivision or combination), or in case of any
merger of
the Company with or into another corporation (other than a merger
with
another corporation in which the Company is the acquiring and the
surviving corporation and which does not result in any reclassification
or
change of outstanding securities issuable upon exercise of this
Warrant),
or in case of any sale of all or substantially all of the assets
of the
Company, the Company, or such successor or purchasing corporation,
as the
case may be, shall duly execute and deliver to the holder of this
Warrant
a new Warrant (in form and substance reasonably satisfactory to
the holder
of this Warrant), or the Company shall make appropriate provision
without
the issuance of a new Warrant, so that the holder of this Warrant
shall
have the right to receive, at a total purchase price not to exceed
that
payable upon the exercise of the unexercised portion of this Warrant,
and
in lieu of the shares of Common Stock theretofore issuable upon
exercise
of this Warrant, (i) the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification,
change, merger or sale by a holder of the number of shares of Common
Stock
then purchasable under this Warrant, or (ii) in the case of such
a merger
or sale in which the consideration paid consists all or in part
of assets
other than securities of the successor or purchasing corporation,
at the
option of the Holder of this Warrant, the securities of the successor
or
purchasing corporation having a value at the time of the transaction
equivalent to the fair market value of the Common Stock at the
time of the
transaction. The provisions of this subparagraph (a) shall similarly
apply
to successive reclassifications, changes, mergers and
transfers.
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b.
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Stock
Splits, Dividends and Combinations. In the event that the
Company shall at any time subdivide the outstanding shares of Common
Stock
or shall issue a stock dividend on its outstanding shares of Common
Stock
the number of Shares issuable upon exercise of this Warrant immediately
prior to such subdivision or to the issuance of such stock dividend
shall
be proportionately increased, and the Exercise Price shall be
proportionately decreased, and in the event that the Company shall
at any
time combine the outstanding shares of Common Stock the number
of Shares
issuable upon exercise of this Warrant immediately prior to such
combination shall be proportionately decreased, and the Exercise
Price
shall be proportionately increased, effective at the close of business
on
the date of such subdivision, stock dividend or combination, as
the case
may be.
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4.
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Notice
of Adjustments. Whenever the number of Shares purchasable
hereunder or the Exercise Price thereof shall be adjusted pursuant
to
Section 3 hereof, the Company shall provide notice to the Holder
setting
forth, in reasonable detail, the event requiring the adjustment,
the
amount of the adjustment, the method by which such adjustment was
calculated, and the number and class of shares which may be purchased
thereafter and the Exercise Price therefor after giving effect
to such
adjustment.
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5.
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Fractional
Shares. Whether or not the number of shares purchasable upon
the exercise of a Warrant is adjusted pursuant to Section 3 of
this
Agreement, this Warrant may not be exercised for fractional shares
and the
Company shall not be required to issue fractions of Shares upon
exercise
of the Warrants or to distribute Shares certificates that evidence
fractional Shares. In lieu of fractional Shares, there shall be
returned to exercising Registered Holders of the Warrants upon
such
exercise an amount in cash, in United States dollars, equal to
the amount
in excess of that required to purchase the largest number of full
Shares.
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6.
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Representations
of the Company. The Company represents that all corporate
actions on the part of the Company, its officers, directors and
shareholders necessary for the sale and issuance of the Shares
pursuant
hereto and the performance of the Company's obligations hereunder
were
taken prior to and are effective as of the effective date of this
Warrant.
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Page
2 of
7
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7.
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Representations
and Warranties by the Holder. The Holder represents and
warrants to the Company as follows:
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a.
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This
Warrant and the Shares issuable upon exercise thereof are being
acquired
for its own account, for investment and not with a view to, or
for resale
in connection with, any distribution or public offering thereof
within the
meaning of the Securities Act of 1933, as amended (the "Act").
Upon
exercise of this Warrant, the Holder shall, if so requested by
the
Company, confirm in writing, in a form satisfactory to the Company,
that
the securities issuable upon exercise of this Warrant are being
acquired
for investment and not with a view toward distribution or
resale.
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b.
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The
Holder understands that the Warrant and the Shares have not been
registered under the Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements
of the
Act pursuant to Section 4(2) thereof, and that they must be held
by the
Holder indefinitely, and that the Holder must therefore bear the
economic
risk of such investment indefinitely, unless a subsequent disposition
thereof is registered under the Act or is exempted from such
registration.
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c.
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The
Holder has such knowledge and experience in financial and business
matters
that it is capable of evaluating the merits and risks of the purchase
of
this Warrant and the Shares purchasable pursuant to the terms of
this
Warrant and of protecting its interests in connection
therewith.
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d.
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The
Holder is able to bear the economic risk of the purchase of the
Shares
pursuant to the terms of this
Warrant.
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8.
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Restrictive
Legend. The Shares (unless registered under the Act) shall
be
stamped or imprinted with a legend in substantially the following
form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED
IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN
OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER
IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF THE
ACT. UPON THE FULFILLMENT OF CERTAIN OF SUCH CONDITIONS EXOBOX
TECHNOLOGIES CORP. HAS AGREED TO DELIVER TO THE HOLDER HEREOF A
NEW
CERTIFICATE NOT BEARING THIS LEGEND FOR THE SECURITIES REPRESENTED
HEREBY
REGISTERED IN THE NAME OF THE HOLDER HEREOF. A COPY OF THE AGREEMENT
MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF EXOBOX TECHNOLOGIES
CORP.
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9.
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Restrictions
Upon Transfer and Removal of
Legend.
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a.
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The
Company need not register a transfer of this Warrant or Shares
bearing the
restrictive legend set forth in Section 8 hereof, unless the conditions
specified in such legend are satisfied. The Company may also instruct
its
transfer agent not to register the transfer of the Shares, unless
one of
the conditions specified in the legend referred to in Section 8
hereof is
satisfied.
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b.
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Notwithstanding
the provisions of paragraph (a) above, no opinion of counsel shall
be
necessary for a transfer without consideration by any holder (i)
if such
holder is a partnership, to a partner or retired partner of such
partnership who retires after the date hereof or to the estate
of any such
partner or retired partner, or (ii) if such holder is a corporation,
to a
shareholder of such corporation, or to any other corporation under
common
control, direct or indirect, with such
holder.
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Page
3 of
7
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10.
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Rights
of Shareholders. No holder of this Warrant shall be entitled,
as a Warrant holder, to vote or receive dividends or be deemed
the holder
of any Shares or any other securities of the Company which may
at any time
be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this
Warrant,
as such, any of the rights of a stockholder of the Company or any
right to
vote for the election of directors or upon any matter submitted
to
shareholders at any meeting thereof, or to give or withhold consent
to any
corporate action (whether upon any recapitalization, issuance of
stock,
reclassification of stock, change of par value, consolidation,
merger,
conveyance, or otherwise) or to receive notice of meetings, or
to receive
dividends or subscription rights or otherwise until the Warrant
shall have
been exercised and the Shares purchasable upon the exercise hereof
shall
have become deliverable, as provided
herein.
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11.
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Redemption
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a.
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Price At
any time on or after the Initial Warrant Exercise Date the Company
may
redeem the Warrants, at its option, upon thirty days’ notice at a price of
$.001 per Warrant provided that the average closing bid price on
the
over-the-counter market for the Shares for 10 consecutive trading
days
immediately prior to the date of notice of redemption shall have
been
$2.50 or higher.
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b.
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Notice
of Redemption If the Company exercises its
right to redeem the Warrants, it shall mail a notice of redemption
to
Registered Holders of the Warrants proposed for redemption, first
class,
postage prepaid, not later than thirty days before the date fixed
for
redemption, at the Registered Holders’ last addresses as shall appear on
the records of the Warrant Agent. Any notice mailed in the
manner provided herein shall be conclusively presumed to have been
duly
given whether or not the Registered Holder receives such
notice.
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c.
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Contents
of Notice The notice of redemption shall specify
the redemption price, date fixed for redemption, the place where
the
Warrant shall be delivered and the redemption price shall be paid,
and
that the right to exercise the Warrant shall terminate at 5:00
p.m.
(Nevada time) on the business day immediately preceding the date
fixed for
redemption. The date fixed for the redemption of the Warrants
shall be the Redemption Date.
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d.
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Early
Redemption The Warrants may be called
for redemption prior to the redemption date with respect to an
entire
class or classes, or in the alternative, with respect to any portion
of a
class or classes (and if called with respect to a portion of a
class, such
call shall be on a pro rata basis as to the holdings of each Registered
Holder within such class).
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e.
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Effect
of Redemption Any right to exercise a Warrant
shall terminate at 5:00 p.m. (Nevada time) on the business day
immediately
preceding the Redemption Date. On and after the Redemption
Date, Holders of the Warrants shall have no further rights except
to
receive, upon surrender of the Warrant, the redemption price of
$.001,
without interest, per Warrant.
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12.
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Notices.
All notices and other communications required or permitted hereunder
shall
be in writing, shall be effective when given, and shall in any
event be
deemed to be given upon receipt or, if earlier, (a) five (5) days
after
deposit with the U.S. Postal Service or other applicable postal
service,
if delivered by first class mail, postage prepaid, (b) upon delivery,
if
delivered by hand, (c) one business day after the business day
of deposit
with Federal Express or similar overnight courier, freight prepaid
or (d)
one business day after the business day of facsimile transmission,
if
delivered by facsimile transmission with copy by first class mail,
postage
prepaid, and shall be addressed (i) if to the Holder, at the Holder's
address as set forth on the books of the Company, and (ii) if to
the
Company, at the address of its principal corporate offices (attention:
President) or at such other address as a party may designate by
ten days
advance written notice to the other party pursuant to the provisions
above.
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13.
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Registration
Rights Agreement. The registration rights of the Holder
(including Holders' successors) with respect to the stock underlying
this
warrant will be the same as granted to the holders of the Company's
Common
Stock.
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Page
4 of
7
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14.
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15.
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Entire
Agreement; Modification; Waivers This Agreement
contains the entire agreement of the parties, and supersedes any
prior
agreements with respect to its subject matter. Except for the provisions
of subsection 4.2, the Warrant Agent and the Company, by supplemental
agreement, may make any changes in this Agreement (i) that they
shall deem
appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or manifest mistake or error herein contained;
or
(ii) that they may deem necessary or desirable and that shall not
adversely affect the interests of the Registered Holders of Warrant
Certificates (this provision, for instance, shall permit the Exercise
Price to be decreased at the Company’s
option).
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16.
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Jurisdiction
and Venue The courts of the State of Nevada,
sitting in the City of Las Vegas, (the “Nevada Courts”) shall have
exclusive jurisdiction to hear, adjudicate, decide, determine and
enter
final judgment in any action, suit, proceeding, case, controversy
or
dispute, whether at law or in equity or both, and whether in contract
or
tort or both, arising out of or related to this Agreement, or the
construction or enforcement hereof or thereof (any such action,
suit,
proceeding, case, controversy or dispute, a “Related
Action”). The Company and the Registered Holder hereby
irrevocably consent and submit to the exclusive personal jurisdiction
of
the Nevada Courts to hear, adjudicate, decide, determine and enter
final
judgment in any Related Action. The Company and the Registered
Holder hereby irrevocably waive and agree not to assert any right
or claim
that it is not personally subject to the jurisdiction of the Nevada
Courts
in any Related Action, including any claim of forum non conveniens
or that the Nevada Courts are not the proper venue or form
to
adjudicate any Related Action. If any Related Action is brought
or maintained in any court other than the Nevada Courts, then that
court
shall, at the request of the Company or the Registered Holder,
dismiss
that action.
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17.
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Specific
Performance The Company hereby acknowledges and
agrees that it is difficult, if not impossible to measure in money
the
damages that will accrue to the Registered Holder by reason of
a failure
to issue the Shares under this Agreement, and that the Registered
Holder
may seek to specifically enforce the Company’s obligation to issue the
Shares. Therefore, if the Registered Holder shall institute any
action or proceeding to enforce the provisions hereof, the Company
hereby
waives all claims or defenses therein that the Registered Holder
has an
adequate remedy at law, and hereby agrees not to assert or otherwise
raise
any such claim or defense.
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18.
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Waiver
of Jury Trial The Company and the Registered
Holder hereby waive trial by jury in any Related
Action.
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19.
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Attorney’s
Fees The prevailing party in any Related Action
shall be entitled to recover that party’s costs of suit, including
reasonable attorney’s fees.
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20.
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Binding
Effect This Agreement shall be binding on, and
shall inure to the benefit of the parties and their respective
successors
in interest.
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21.
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Construction,
Counterparts This Agreement shall be construed as
a whole and in favor of the validity and enforceability of each
of its
provisions, so as to carry out the intent of the parties as expressed
herein. Heading are for the convenience of reference, and the meaning
and
interpretation of the text of any provision shall take precedence
over its
heading. This Agreement may be signed in one or more counterparts,
each of
which shall constitute an original, but all of which, taken together
shall
constitute one agreement. A faxed copy or photocopy of a party’s signature
shall be deemed an original for all
purposes.
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Page
5 of
7
Issued
this ___ day of October, 2005.
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By:
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Name:
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Title:
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Page
6 of
7
EXHIBIT
A
NOTICE
OF
EXERCISE
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
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1.
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The
undersigned hereby elects to purchase __________ Shares of EXOBOX
TECHNOLOGIES CORP. pursuant to the terms of the attached
Warrant.
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2.
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Method
of Exercise (Please initial the applicable
blank):
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The
undersigned elects to exercise the attached Warrant by means of
a cash
payment, and tenders herewith or by concurrent wire transfer payment
in
full for the purchase price of the shares being purchased, together
with
all applicable transfer taxes, if
any.
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3.
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Please
issue a certificate or certificates representing said Shares in
the name
of the undersigned or in such other name as is specified
below:
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_________________________________
(Name)
_________________________________
_________________________________
(Address)
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4.
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The
undersigned hereby represents and warrants that the aforesaid Shares
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 has no present intention of distributing
or reselling such shares and all representations and warranties
of the
undersigned set forth in Section 7 of the attached Warrant are
true and
correct as of the date hereof.
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(Signature)
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Title:
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(Date)
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Page 7
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