EXHIBIT 4.4
STOCK PURCHASE WARRANT
WARRANT TO PURCHASE _____ SHARES
of
FLOATING RESET CONVERTIBLE PREFERRED STOCK
No. PW-1 EXPIRES AT 5:00 P.M., PACIFIC TIME, ON APRIL 14, 2002
CASMYN CORP.
This certified that ______________________________, the registered
holder hereof or assigns (the "Warrantholder") is entitled to purchase from
Casmyn Corp., a Colorado corporation (the "Company"), at any time before the
expiration time and date shown above (the "Expiration Time") at the purchase
price per share of $25 (the "Warrant Price"), the number of shares shown above
of the Floating Reset Convertible Preferred Stock ("First Preferred Stock") of
the Company. The number and class of shares purchasable upon exercise of this
Warrant and the Warrant Price per share shall be subject to adjustment from time
to time as set forth below.
SECTION 1. TRANSFERABILITY AND FORM OF WARRANT.
1.1 REGISTRATION. This warrant shall be numbered and shall be
------------
registered on the books of the Company.
1.2 TRANSFER. This Warrant shall be transferable on the books of the
--------
Company only upon delivery thereof duly endorsed by the Warrantholder or duly
authorized attorney or representative, 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 to the person
entitled thereto. This Warrant may be divided or combined, upon request to the
Company by the Warrantholder, into a certificate or certificates representing
the right to purchase the same aggregate number of shares. Unless the context
indicates otherwise, the term "Warrantholder" shall include any transferee or
transferees of a Warrant and the term "Warrant" shall include any and all
warrants issued upon division, exchange, substitution or transfer of this
Warrant.
1.3 FORM OF WARRANT. The Warrant shall be executed on behalf of the
---------------
Company by its President, Vice President or other authorized officer, and shall
be dated as of the date of signature thereof by the Company either upon initial
issuance or upon division, exchange, substitution or transfer. A Warrant bearing
the signature of an individual who was at any time the proper officer of the
Company shall bind the Company, notwithstanding that such individual shall have
ceased to hold such office
prior to the delivery of such Warrant. The form of election to exercise this
Warrant and the form of assignment of this Warrant shall be substantially as
attached hereto.
SECTION 2. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of shares to the Warrantholder; provided, however, that
-------- -------
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any secondary transfer of the Warrant or the shares.
SECTION 3. MUTILATED OR MISSING WARRANTS.
In case 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 Warrant, or
in lieu of and in substitution for the lost, stolen or destroyed Warrant, a new
Warrant of like tenor, but only upon receipt of evidence satisfactory to the
Company of such loss, theft or destruction of such Warrant. The applicant shall
also comply with such reasonable regulations and pay such other reasonable
administrative charges as the Company may prescribe.
SECTION 4. RESERVATION OF SHARES.
There has been reserved, and the Company shall at all times keep
reserved so long as this Warrant remains outstanding, out of its authorized
shares of capital stock, such number and class of shares as shall be subject to
purchase under this Warrant. Such reserved shares shall be used solely for
issuances upon exercise of this Warrant. Shares of any class issued upon
exercise of this Warrant shall have all the rights and privileges of other
shares of the same class, whenever issued, subject to the adjustment provisions
set forth below.
SECTION 5. EXERCISE OF WARRANT.
5.1 EXERCISE BY CASH PAYMENT. The Holder of this Warrant shall have
------------------------
the right at any time and from time to time to exercise this Warrant in full or
in part by surrender of this Warrant to the Company accompanied by payment to
the Company in cash or by certified or cashier's check or by wire transfer of
funds of the aggregate Warrant Price for the number of shares in respect of
which this Warrant is then exercised.
5.2 CASHLESS EXERCISE. This Warrant may be exercised in full or in
-----------------
part by surrender of this Warrant to the Company accompanied by written notice
substantially in the form attached hereto of the holder's election to effect
cashless
2
exercise ("Cashless Exercise"). Upon Cashless Exercise, the holder shall be
entitled to receive, in respect of each share for which this Warrant is then
exercised, that number of shares of First Preferred Stock (or such other class
of shares as may then be issuable upon exercise hereof) which, valued at Current
Value, have a value equal to the Current Value of each share as to which this
Warrant is then being exercised less the Warrant Price payable for such share.
Current Value of a share as to which this Warrant is being exercised shall be
the total Current Market Value of the number of shares of Common Stock of the
Company issuable upon conversion of such share at the Conversion Price in effect
on the date of such Cashless Exercise. Current Market Value of the Common Stock
shall be as defined in Section 7.
5.3 DELIVERY OF CERTIFICATES. Upon exercise of this Warrant the
------------------------
Company shall issue and cause to be delivered with all reasonable dispatch to or
upon the written order of the Warrantholder and in such name or names as the
Warrantholder may designate, a certificate or certificates for the number of
full shares issuable upon such exercise together with cash, as provided in
Section 7 hereof, in respect of any fractional shares. The Company shall effect
such issuance immediately and shall transmit the certificates by messenger or
overnight delivery service to reach the address designated by the Warrantholder
within two business days after receipt of the Warrant Price or, in the case of
the cashless exercise, after receipt of the Warrant. 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 record of such
shares as of the date of surrender of the Warrant and payment of the Warrant
Price, as aforesaid, notwithstanding that the certificates representing such
shares shall not actually have been delivered or that the stock transfer books
of the Company shall then be closed. In the event of partial exercise a new
Warrant evidencing the remaining portion of this Warrant will be issued by the
Company.
5.4 SIMULTANEOUS CONVERSION. The Warrantholder may elect to convert
-----------------------
the convertible securities issuable upon exercise of this Warrant simultaneously
with the exercise of this Warrant and may give written notice of such election
substantially in the form attached hereto. Upon such election the Company need
not issue certificates representing the convertible securities issuable upon
exercise of this Warrant, but shall issue and deliver as provided in the
foregoing Section certificates representing the securities to which the holder
is entitled upon such conversion.
SECTION 6. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
6.1 ADJUSTMENTS. The number and kind of securities purchasable upon
-----------
the exercise of the Warrants and the Warrant Price shall be subject to
adjustment from time to time upon the happening of certain events, as follows:
3
(a) If the shares purchasable upon exercise of the Warrants are
subdivided, combined or reclassified, or if other shares of the kind so
purchasable are issued in respect thereof as a dividend thereon (excluding
dividends required by the charter provisions government such shares), the
number and class of shares purchasable upon exercise of the Warrants
immediately prior thereto shall be adjusted so that the Warrantholder shall
be entitled to receive the kind and number of shares or other securities of
the Company which it would have owned or would have been entitled to
receive after the happening of any of the events described above, had the
Warrants been exercised immediately prior to the happening of such event or
any record date with respect thereto. Any adjustment made pursuant to this
paragraph (a) shall become effective immediately after the effective date
of such event retroactive to the record date, if any, for such event.
(b) If the shares purchasable upon exercise of the Warrants
becomes entitled to receive a distribution of evidences of indebtedness or
assets (excluding dividends required by the charter provisions governing
such shares) or rights, options, warrants or convertible securities
containing the right to subscribe for or purchase securities or assets of
the Company, then, in each case, the number of shares thereafter
purchasable upon the exercise of the Warrants shall be determined by
multiplying the number of shares theretofore purchasable upon exercise of
the Warrants by a fraction, of which the numerator shall be the then
Current Value on the date of such distribution, and of which the
denominator shall be such Current Value on such date minus the then fair
value of the portion of the assets or evidence of indebtedness so
distributed or of such subscription rights, options or warrants applicable
to one share. Such adjustment shall be made whenever any such distribution
is made and shall become effective on the date of distribution retroactive
to the record date for the determination of shareholders entitled to
receive such distribution. Current Value shall have the meaning set forth
in Section 5.2.
(c) No adjustment in the number of shares purchasable hereunder
shall be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of shares then
purchasable upon the exercise of a Warrant; provided, however, that any
-------- -------
adjustments which by reason of this paragraph (c) are not required to be
made immediately shall be carried forward and taken into account in any
subsequent adjustment.
(d) Whenever the Warrant Price or the number or class of shares
purchasable upon the exercise of a Warrant is adjusted as herein provided,
a corresponding adjustment in the number of shares so purchasable or the
Warrant Price, as the case may be, shall be made so that the aggregate
Warrant Price payable upon full exercise of this Warrant shall remain the
same.
4
If such adjustment results in more than one class of security being
purchasable upon exercise of this Warrant, the adjusted Warrant Price shall
be allocated to such securities on the basis of their respective fair
market values.
(e) Whenever the number or class of shares purchasable upon the
exercise of a Warrant or the Warrant Price is adjusted as herein provided,
the Company shall cause to be promptly mailed to the Warrantholder by first
class mail, postage prepaid, notice of such adjustment or adjustments and a
certificate of a firm of independent public accountants selected by the
Board of Directors of the Company (who may be the regular accountants
employed by the Company) setting forth the number and class of shares
purchasable upon the exercise of a Warrant and the Warrant Price after such
adjustment, together with a brief statement of the facts requiring such
adjustment and the computation by which such adjustment was made.
(f) The term "Common Stock" shall mean (i) the class of stock
designated as the Common Stock of the Company at the issue date of this
Warrant or (ii) any other class of stock resulting from successive changes
or reclassifications of such Common Stock, and the term "First Preferred
Stock" shall mean (x) the class or series of stock which is initially
purchasable upon exercise hereof, or (y) any other class or series of stock
resulting from successive reclassifications or changes of such First
Preferred Stock. In the event that at any time, as a result of an
adjustment made pursuant to this Section, the Warrantholder shall become
entitled to purchase any securities of the Company other than shares of
First Preferred Stock, thereafter the number of such other securities so
purchasable upon exercise of the Warrant and the Warrant Price of such
securities shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect
to the shares contained in this Section.
6.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Subsection
---------------------------
6.1, no adjustment in respect of any dividends shall be made during the term of
the Warrant or upon the exercise of the Warrant.
6.3 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
------------------------------------------------------
CONSOLIDATION, ETC. In case of any reclassification of the securities of the
------------------
Company or any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale or conveyance to another corporation
of the property, assets or business of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall provide by agreement that the
Warrantholder shall have the right thereafter upon payment of the Warrant Price
in effect immediately prior to such action to purchase upon exercise of the
Warrant the kind and amount of shares and other securities and
5
property which he would have owned or have been entitled to receive after the
happening of such reclassification, consolidation, merger, sale or conveyance
had the Warrant been exercised immediately prior to such action. Such agreement
shall provided for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The provisions of
this subsection shall similarly apply to successive reclassifications,
consolidations, mergers, sales or conveyances.
6.4 STATEMENT ON WARRANT CERTIFICATES. Irrespective of any
---------------------------------
adjustments in the Warrant Price of the number of securities purchasable upon
the exercise of the Warrant, the Warrant certificate or certificates theretofore
or thereafter issued may continue to express the same price and number of
securities as are stated in the similar Warrant certificates initially issued.
SECTION 7. FRACTIONAL INTERESTS; CURRENT MARKET PRICE; CLOSING BED
PRICE.
The Company shall not be required to issue fractional shares on the
exercise of the Warrant. If any fraction of a share would, except for the
provisions of this Section, be issuable on the exercise of the Warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to the
then Current Value (as defined in Section 5.2) multiplied by such fraction. The
term "Current Market Price" of the Common Stock shall mean (i) if the Common
Stock is traded in the over-the-counter market or on the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ"), the average per
share closing bid prices of the Common Stock on the 20 consecutive trading days
immediately preceding the date in question, as reported by NASDAQ or an
equivalent generally accepted reported service, or (ii) if the Common Stock is
traded on a national securities exchange, the average for the 20 consecutive
trading days immediately preceding the date in question of the daily per share
closing bid prices of the Common stock on the principal stock exchange on which
it is listed, or (iii) if the Common Stock is not so listed or traded, the fair
market value of the Common Stock as determined in good faith by the board of
directors of the Company. The term "closing bid price" shall mean the last bid
price on the day in question as reported by NASDAQ or an equivalent generally
accepted reporting service or (as the case may be) as reported by the principal
stock exchange on which the Common Stock is listed, or if not so reported, as
reasonably determined in good faith by the Board of Directors of the Company.
SECTION 8. NO RIGHTS AS SHAREHOLDER; NOTICES TO WARRANTHOLDER.
Nothing contained herein shall be construed as conferring upon the
Warrantholder any rights whatsoever as a shareholder of the Company, including
the right to vote, to receive dividends, to consent or to receive notices as a
shareholder in
6
respect of any meeting of shareholders for the election of directors of the
Company or any other matter. If, however, at any time prior to the expiration
of the Warrant and prior to its exercise, any of the following events shall
occur:
(a) any action which would require an adjustment pursuant to Section
6.1 or 6.3; or
(b) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger or sale of its property,
assets and business, as an entirety) shall be proposed;
then in any one or more of said events, the Company shall give notice in writing
of such event to the Warrantholder at least 20 days prior to the date fixed as a
record date or the date of closing the transfer books or other applicable date
with respect thereto. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be.
Any notice to the Warrantholder shall be given at the address of the
Warrantholder appearing on the books of the Company, and if the Warrantholder
has specified a telecopier address, by facsimile transmission to such address.
SECTION 9. REGISTRATION AND INDEMNIFICATION.
The holder of this Warrant and the holder of shares of First Preferred
Stock issued upon exercise of this Warrant shall have the same rights and
obligations with respect to registration under the Securities Act of 1933, and
with respect to indemnification in connection with any such registration, as if
such holder were one of the Investors under the Preferred Stock Investment
Agreements entered into between the Company and the original purchasers of the
First Preferred Stock of the Company, excluding, however, the provisions of the
first sentence of Section 1.4(b)(iv) of said Agreements. Such rights and
obligations shall continue until one year after the expiration or earlier
exercise of this Warrant.
SECTION 10. EXPIRATION OF WARRANT.
10.1 If not theretofore exercised, this Warrant shall terminate at
5:00 p.m. Pacific time on the date shown in the caption hereof.
SECTION 11. SUCCESSORS.
All the covenants, and provisions of this Agreement by or for the
benefit of the Company or the Warrantholder shall bind and inure to the benefit
of their respective successors and assigns hereunder.
7
SECTION 12. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of this property to another
corporation, unless the provisions of Section 6.3 are complied with.
SECTION 13. APPLICABLE LAW.
This Agreement shall be deemed to be a contract made under the laws of
the State of Colorado and for all purposes shall be construed with the laws of
said State.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by a duly authorized officer of the Company.
Casmyn Corp.
By:____________________________
8
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant in respect of ________________ of the
shares provided for therein, and requests that certificates be issued in the
name of:
--------------------------------------------------------------------------------
(Please Print Name, Address and Taxpayer Identification Number)
________________________________________________________________________________
and, if said number of shares shall not be all the shares purchasable hereunder,
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 below indicated and delivered to the address stated below.
The undersigned:
[_] elections to pay the full Warrant Price in cash or by certified or
cashier's check or wire funds transfer
[_] elects "cashless exercise" pursuant to Section 5.2 of the Warrant
[_] "Current Value" for purposes of Cashless Exercise is: $_________
Number of shares issuable on Cashless Exercise is: __________ shares
[_] elects simultaneous conversion pursuant to Section 5.4 of the Warrant
Dated: __________________ ___________________________________
Signature of Warrantholder
The above signature must correspond with the name appearing upon the face of
this Warrant in every particular, without alteration or enlargement or any
change whatever.
Name of Assignee, if any: ____________________________________
(Please Print)
_________________________________________________
(Please print Name, Address and Taxpayer
Identification Number)
_________________________________________________
9
Signature Guaranteed: Signature guarantee is required if certificates are to be
registered in the name of any person other than the name
written upon the face of the Warrant. Signature must be
guaranteed by a commercial bank or trust company or a
member firm of the New York Stock Exchange.
10
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto___________________________________________________________________________
(Name and Address of Assignee Must Be Printed or Typewritten)
_______________________________________________________________________________
_______________________________________________________________________________
(Taxpayer Identification Number of Assignee)
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: The above signature must correspond with the name
appearing upon the face of this Warrant in every
particular, without alteration or enlargement or any
change whatever, and must be guaranteed by a commercial
bank or trust company or a member firm of the New York
Stock Exchange.
11
