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Exhibit 4.4
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NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED AS PROVIDED IN SECTION 2
No. ____ _________, 200__
CREATIVE ENTERPRISES INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
For good and valuable consideration, the receipt of which is hereby
acknowledged by CREATIVE ENTERPRISES INTERNATIONAL, INC., a Nevada corporation
(the "Company"), _____________________ (the "Holder"), is hereby granted the
right to purchase, at any time from the date that this Warrant is issued upon
conversion of Debentures issued under the Subscription Agreement (as such terms
are defined below) until 5:00 P.M., New York City time, on ________, 200__
(three years from the Warrant issue date) (the "Warrant Exercise Term"), up to
______________ (____________) fully-paid and non-assessable shares of the
Company's Common Stock, $.001 par value per share ("Common Stock").
This Warrant is one of a duly authorized issue of Warrants, issuable by
the Company upon conversion of certain debentures (the "Debentures") issued in
connection with a certain Subscription Agreement between the Company and the
Holder (the "Subscription Agreement"), the terms of which are incorporated
herein by reference. The Warrants issuable upon conversion of the Debentures are
similar in terms except for dates, amounts and named holders. By its acceptance
of this Warrant, each Holder agrees to be bound by the terms of the Subscription
Agreement. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Subscription Agreement.
l. Exercise of Warrant
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1.1 This Warrant is exercisable at a per share price of $0.75
(the "Exercise Price"), subject to adjustment as provided in Section l hereof,
payable in cash or by certified or official bank check in New York Clearing
House funds. Upon surrender of this warrant certificate with the annexed
Subscription Form duly executed, together with payment of the Exercise Price for
the shares of Common Stock purchased at the Company's principal executive
offices (presently located at 000 Xxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx 19010)
the registered Holder of the Warrant shall be entitled to receive a certificate
or certificates for the shares of Common Stock so purchased (the "Warrant
Shares"). The purchase rights represented by this Warrant are exercisable at the
option of the Holder hereof, in whole or in part (but not as to fractional
shares of the Common Stock) during any period in which this Warrant may be
exercised as set forth above. In the case of the purchase of less than all the
shares of Common Stock purchasable under this Warrant, the Company shall cancel
this Warrant upon the surrender thereof and, upon the written request of the
Holder, the Company shall execute and deliver a new Warrant of like tenor for
the balance of the shares of Common Stock purchasable hereunder.
1.2 The issuance of certificates for shares of Common Stock
upon the
exercise of this Warrant shall be made without charge to the Holder hereof
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall be issued in the name of, or in
such names as may be directed by, the Holder hereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of such certificate in a name
other than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
1.3 Stock Dividends, Subdivisions, Reclassifications or
Combinations. If the Corporation shall (A) declare a dividend or make a
distribution on its Common Stock in shares of its Common Stock, (B) subdivide or
reclassify the outstanding shares of Common Stock into a greater number of
shares, or (C) combine or reclassify the outstanding Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
Holder after such date shall be entitled to receive the number of shares of
Common Stock which he would have owned or been entitled to receive had this
Warrant been exercised immediately prior to such date. Successive adjustments in
the Exercise Price shall be made whenever any event specified above shall occur.
1.4 Consolidation, Merger, Sale or Conveyance. In case of any
consolidation or merger of the Company with any other corporation (other than a
wholly owned subsidiary), or in case of sale or transfer of all or substantially
all of the assets of the Company, or in the case of any share exchange whereby
the Common Stock is converted into other securities or property, the Company
will be required to make appropriate provision so that the Holder will have the
right thereafter to exercise this Warrant into the kind and amount of shares of
stock and other securities and property receivable upon such consolidation,
merger, sale, transfer or share exchange by a holder of the number of shares of
Common Stock for which this Warrant was exercisable immediately prior to such
consolidation, merger, sale, transfer or share exchange.
1.5 The Company covenants that it will at all times reserve
and keep available out of its authorized Common Stock, solely for the purpose of
issuance upon exercise of this Warrant as herein provided, such number of shares
of Common Stock as shall then be issuable upon the exercise of this Warrant. The
Company covenants that all shares of Common Stock which shall be so issuable
shall be duly and validly issued and fully-paid and non-assessable.
1.6 Cashless Exercise. In the event that the Company does not
have a registration statement declared effective by the Securities and Exchange
Commission registering the resale of the shares of Common Stock issuable upon
the exercise of this Warrant, as contemplated by the Subscription Agreement,
within one year from the final closing of the Offering (as described in the
Subscription Agreement), then at any time subsequent to such anniversary date
and during the Warrant Exercise Term, the Holder may, at its option, exchange
the Warrants represented by it's Warrant Certificate, in whole or in part (a
"Warrant Exchange"), into the number of fully paid and non-assessable Warrant
Shares determined in accordance with this Section 1.6, by surrendering such
Warrant Certificate at the principal office of the Company or at the office of
its transfer agent, accompanied by a notice stating such Holder's intent to
effect such exchange, the number of Warrants (the "Total Share Number") to be
exchanged and the date on which the Holder requests that such Warrant Exchange
occur (the "Notice of Exchange"). The Warrant Exchange shall take place on the
date specified in the Notice of Exchange, or, if later, the
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date the Notice of Exchange is received by the Company (the "Exchange Date").
Certificates for the Warrant Shares issuable upon such Warrant Exchange and, if
applicable, a new Warrant Certificate of like tenor evidencing the balance of
the Warrant Shares remaining subject to the Holder's Warrant certificate, shall
be issued as of the Exchange Date and delivered to the Holder within three
business days following the Exchange Date. In connection with any Warrant
Exchange, the Holder's Warrant certificate shall represent the right to
subscribe for and acquire the number of Warrant Shares (rounded to the next
highest integer) equal to (A) the Total Share Number less (B) the number of
Warrant Shares equal to the quotient obtained by dividing (i) the product of the
Total Share Number and the then current Exercise Price per Warrant Share by (ii)
the current Market Price (as hereafter defined) of a share of Common Stock.
As used herein, the phrase "Market Price" at any date shall be
deemed to be the last reported sale price, or, in case no such reported sale
takes place on such day, the average of the last reported sale prices for the
preceding three trading days, in either case as officially reported by the
principal securities exchange on which the Common Stock is listed or admitted to
trading or as reported in the Nasdaq National Market System, or, if the Common
Stock is not listed or admitted to trading on any national securities exchange
or quoted on the Nasdaq National Market System, the last reported sale price as
furnished by the National Association of Securities Dealers, Inc. through Nasdaq
or similar organization if Nasdaq is no longer reporting such information, or if
the Common Stock is not quoted on Nasdaq, as determined in good faith by
resolution of the Board of Directors of the Company, based on the best
information available to it for the two days immediately preceding the Exchange
Date.
2. Restrictions on Transfer
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The Holder acknowledges that he has been advised by the
Company that this Warrant and the shares of Common Stock (the "Warrant Shares")
issuable upon exercise thereof (collectively the "Securities") have not been
registered under the Securities Act of l933, as amended (the "Securities Act"),
that the Warrant is being issued, and the shares issuable upon exercise of the
Warrant will be issued, on the basis of the statutory exemption provided by
section 4(2) of the Securities Act relating to transactions by an issuer not
involving any public offering, and that the Company's reliance upon this
statutory exemption is based in part upon the representations made by the Holder
contained herein. The Holder acknowledges that he has been informed by the
Company of, or is otherwise familiar with, the nature of the limitations imposed
by the Securities Act and the rules and regulations thereunder on the transfer
of securities. In particular, the Holder agrees that no sale, assignment or
transfer of the Securities shall be valid or effective, and the Company shall
not be required to give any effect to any such sale, assignment or transfer,
unless (i) the sale, assignment or transfer of the Securities is registered
under the Securities Act, and the Company has no obligations or intention to so
register the Securities except as may otherwise be provided herein, or (ii) the
Securities are sold, assigned or transferred in accordance with all the
requirements and limitations of Rule 144 under the Securities Act or such sale,
assignment, or transfer is otherwise exempt from registration under the
Securities Act. The Holder represents and warrants that he has acquired this
Warrant and will acquire the Securities for his own account for investment and
not with a view to the sale or distribution thereof or the granting of any
participation therein, and that he has no present intention of distributing or
selling to others any of such interest or granting any participation therein.
The Holder acknowledges that the securities shall bear the following legend:
"These securities have not been registered under the Securities Act of
l933. Such securities may not be sold or offered for sale, transferred,
hypothecated or otherwise assigned in the absence of an effective
registration statement with
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respect thereto under such Act or an opinion of counsel to the Company
that an exemption from registration for such sale, offer, transfer,
hypothecation or other assignment is available under such Act."
3. Registration Rights. The Holder shall be entitled to all of
the rights and subject to all of the obligations regarding registration of the
Warrant Shares, as described in Section 7 of the Subscription Agreement between
the Company and the original holder hereof.
4. Redemption.
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4.1 The Company may, subject to the conditions set forth herein,
redeem some or all of the Warrants then outstanding upon not less than thirty
(30) days nor more than sixty (60) days prior written notice to the Warrant
Holders at any time, provided: (i) this Warrant has been issued by the Company;
(ii) the closing bid price of the Company's Common Stock for each of the twenty
(20) consecutive trading days prior to the date of the notice of redemption is
at least $1.50, as proportionately adjusted to reflect any stock splits, stock
dividends, combination of shares or like events and (iii) all of the Warrant
Shares have been registered for resale and continue to be covered by an
effective and current registration statement with the Securities and Exchange
Commission. Notice will be effective upon mailing and the time of mailing is the
"Effective Date of the Notice". The Notice will state a redemption date not less
than thirty (30) days nor more than sixty (60) days from the Effective Date of
the Notice (the "Redemption Date"). No Notice shall be mailed unless all funds
necessary to pay for redemption of the Warrants to be redeemed shall have first
been set aside by the Company for the benefit of the Warrant Holders so as to be
and continue to be available therefor. The redemption price to be paid to the
Warrant Holders will be $.10 for each share of Common Stock of the Company to
which the Warrant Holder would then be entitled upon exercise of the Warrant
being redeemed, as adjusted from time to time as provided herein (the
"Redemption Price"). The Warrant Holders may exercise their Warrants between the
Effective Date of the Notice and 5:00 p.m. Eastern Time on the business day
immediately prior to the Redemption Date, such exercise being effective if done
in accordance with Section 1 hereof, and if the Warrant Certificate, with form
of election to purchase duly executed and the Warrant Price, as applicable for
such Warrant subject to redemption for each share of Common Stock to be
purchased is actually received by the Company at its principal offices prior to
5:00 p.m. Eastern Time on the business day immediately prior to the Redemption
Date.
4.2 If any Warrant Holder does not wish to exercise any Warrant
being redeemed, he should mail such Warrant to the Company at its principal
offices after receiving the Notice of Redemption required by this Section 4. If
such Notice of Redemption shall have been so mailed, and if on or before the
Effective Date of the Notice all funds necessary to pay for redemption of the
Warrants subject to redemption shall have been set aside by the Company for the
benefit of such Warrant Holders, then, on and after said Redemption Date,
notwithstanding that any Warrant subject to redemption shall not have been
surrendered for redemption, the obligation evidenced by all Warrants not
surrendered for redemption or effectively exercised shall be deemed no longer
outstanding, and all rights with respect thereto shall forthwith cease and
terminate, except only the right of the holder of each Warrant subject to
redemption to receive the Redemption Price for each share of Common Stock to
which he would be entitled if he exercised the Warrant upon receiving notice of
redemption of the Warrant subject to redemption held by him.
5. Exchange and Replacement of Warrant Certificates.
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This Warrant Certificate is exchangeable without expense, upon
the surrender hereof by the registered Holder at the principal executive office
of the Company, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of Warrant
Shares in such denominations as shall be designated by the Holder thereof at the
time of such surrender.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Warrants, if mutilated, the Company will make and deliver a new Warrant of
like tenor, in lieu thereof and any such lost, stolen, destroyed or mutilated
warrant shall thereupon become void.
6. Elimination of Fractional Interests.
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The Company shall not be required to issue certificates
representing fractions of the shares of Common Stock and shall not be required
to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by rounding any
fraction up or down to the nearest whole number of shares of Common Stock.
7. Rights of Warrant Holders.
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Nothing contained in this Agreement shall be construed as
conferring upon the Holder any rights whatsoever as a stockholder of the
Company, either at law or in equity, including without limitation, or Holders
the right to vote or to consent or to receive notice as a stockholder in respect
of any meetings of stockholders for the election of directors the right to
receive dividends or any other matter.
8. Miscellaneous
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8.l All the covenants and agreements made by the Company in
this Warrant shall bind its successors and assigns.
8.2 No recourse shall be had for any claim based hereon or
otherwise in any manner in respect hereof, against any incorporator,
stockholder, officer or director, past, present or future, of the Company or of
any predecessor corporation, whether by virtue of any constitutional provision
or statute or rule of law, or by the enforcement of any assessment or penalty or
in any other manner, all such liability being expressly waived and released by
the acceptance hereof and as part of the consideration for the issue hereof.
8.3 No course of dealing between the Company and the Holder
hereof shall operate as a waiver of any right of any Holder hereof, and no delay
on the part of the Holder in exercising any right hereunder shall so operate.
8.4 This Warrant may be amended only by a written instrument
executed by the Company and the Holder hereof. Any amendment shall be endorsed
upon this Warrant, and all future Holders shall be bound thereby.
8.5 All communications provided for herein shall be sent,
except as may be otherwise specifically provided, by registered or certified
mail: if to the Holder of this Warrant,
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to the address shown on the books of the Company; and if to the Company, to 000
Xxxxxxxxx Xxxx, Xxxx Xxxx, XX 00000, attention: Office of the President, or to
such other address as the Company may advise the Holder of this Warrant in
writing. Notices shall be deemed given when mailed.
8.6 The provisions of this Warrant shall in all respects be
constructed according to, and the rights and liabilities of the parties hereto
shall in all respects be governed by, the laws of the State of New York. This
Warrant shall be deemed a contract made under the laws of the State of New York
and the validity of this Warrant and all rights and liabilities hereunder shall
be determined under the laws of said State.
8.7 The headings of the Sections of this Warrant are
inserted for convenience only and shall not be deemed to constitute a part of
this Warrant.
IN WITNESS WHEREOF, CREATIVE ENTERPRISES INTERNATIONAL, INC. has caused
this Warrant to be executed in its corporate name by its officer, and its seal
to be affixed hereto.
Dated: ____________ __, 200_
Lafayette, Pennsylvania
CREATIVE ENTERPRISES
INTERNATIONAL, INC.
By:_____________________________
Xxxxxxx Xxxxxxx,
Chief Executive Officer
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SUBSCRIPTION FORM
TO: Creative Enterprises International, Inc.
000 Xxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
The undersigned Holder hereby irrevocably elects to exercise the right
to purchase shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes full payment of the Exercise Price of such
shares.
Kindly deliver to the undersigned a certificate representing the
Shares.
INSTRUCTIONS FOR DELIVERY
Name: _______________________________________________________________________
(please typewrite or print in block letters)
Address: ____________________________________________________________________
Tax I.D. No. or Social Security No.: ________________________________________
Dated: _________________________
Signature ________________________________
STATE OF ___________)
COUNTY OF __________) ss:
On this __ day of ___________, before me personally came ________, to
me known, who being by me duly sworn, did depose and say that he resides at
__________________, that he is the holder of the foregoing instrument and that
he executed such instrument and duly acknowledged to me that he executed the
same.
____________________________
Notary Public
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[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ____________________________ hereby sells,
assigns and transfers unto_____________________________________________________
_______________________________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint_________________________,
Attorney, to transfer the within Warrant Certificate on the books of CREATIVE
ENTERPRISES INTERNATIONAL, INC., with full power of substitution.
Dated: ________________________ Signature:
___________________________
________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
__________________________________
__________________________________
(Insert Social Security or Other
Identifying Number of Assignee)
STATE OF ___________)
COUNTY OF __________) ss:
On this __ day of ___________, before me personally came ________, to
me known, who being by me duly sworn, did depose and say that he resides at
__________________, that he is the holder of the foregoing instrument and that
he executed such instrument and duly acknowledged to me that he executed the
same.
___________________________________
Notary Public
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