EXHIBIT B
Exhibit 4.4
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD,
ASSIGNED OR TRANSFERRED, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT OR AN OPINION OF THE COMPANY'S COUNSEL THAT REGISTRATION UNDER
SAID ACT IS NOT REQUIRED.
Warrant No. B-2: _____
SERIES B-2 COMMON STOCK PURCHASE WARRANT
To Purchase Up To _________________ Shares of the Common Stock of
ARCADIA RESOURCES, INC.
THIS IS TO CERTIFY THAT _________________, or registered assigns (the
"Holder"), is entitled, during the Exercise Period (as hereinafter defined), to
purchase from Arcadia Resources, Inc., a Nevada corporation (the "Company"), the
Warrant Stock (as hereinafter defined), in whole or in part, at a purchase price
of $2.25 per share, all on and subject to the terms and conditions hereinafter
set forth.
1. Definitions. As used in this Warrant, the following terms have the
respective meanings set forth below:
"Affiliate" means any person or entity that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a person or entity, as such terms are used in and construed
under Rule 144 under the Securities Act. With respect to a Holder of Warrants,
any investment fund or managed account that is managed on a discretionary basis
by the same investment manager as such Holder will be deemed to be an Affiliate
of such Holder.
"Appraised Value" means, in respect of any share of Common Stock on any
date herein specified, the fair saleable value of such share of Common Stock
(determined with giving effect to the discount for (i) a minority interest or
(ii) any lack of liquidity of the Common Stock or to the fact that the Company
may have no class of equity registered under the Exchange Act) as of the last
day of the most recent fiscal month ending prior to such date specified, based
on the value of the Company on a fully-diluted basis, as determined by a
nationally recognized investment banking firm selected by the Company's Board of
Directors and having no prior relationship with the Company.
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EXHIBIT B
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the State of
Michigan generally are authorized or required by law or other government actions
to close.
"Change of Control" means the (i) acquisition by an individual or legal
entity or group (as set forth in Section 13(d) of the Exchange Act) of more than
one-half of the voting rights or equity interests in the Company; or (ii) sale,
conveyance, or other disposition of all or substantially all of the assets,
property or business of the Company or the merger into or consolidation with any
other corporation (other than a wholly owned subsidiary corporation) or
effectuation of any transaction or series of related transactions where holders
of the Company's voting securities prior to such transaction or series of
transactions fail to continue to hold at least 50% of the voting power of the
Company (or, if other than the Company, the successor or acquiring entity)
immediately following such transaction.
"Closing Date" means September ___, 2005.
"Commission" means the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" means (except where the context otherwise indicates) the
Common Stock, $0.001 par value per share, of the Company as constituted on the
Closing Date, and any capital stock into which such Common Stock may thereafter
be changed or converted, and shall also include (i) capital stock of the Company
of any other class (regardless of how denominated) issued to the holders of
shares of Common Stock upon any reclassification thereof which is also not
preferred as to dividends or assets on liquidation over any other class of stock
of the Company and which is not subject to redemption and (ii) shares of common
stock of any successor or acquiring corporation received by or distributed to
the holders of Common Stock of the Company in the circumstances contemplated by
Section 4.
"Current Market Price" means, in respect of any share of Common Stock on
any date herein specified,
(1) if there shall not then be a public market for the Common Stock, the
higher of
(a) the book value per share of Common Stock at such date, and
(b) the Appraised Value per share of Common Stock at such date,
or
(2) if there shall then be a public market for the Common Stock, the
average of the daily market prices for the five (5) consecutive trading days
immediately before such date. The daily market price for each such trading day
shall be (i) the closing bid price on such day on the OTC Bulletin Board or
principal stock exchange (including Nasdaq) on which such Common Stock is then
listed or admitted to trading, or quoted, as applicable, (ii) if no sale takes
place on
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EXHIBIT B
such day on the OTC Bulletin Board or any such exchange, the last reported
closing bid price on such day as officially quoted on the OTC Bulletin Board or
any such exchange (including Nasdaq), (iii) if the Common Stock is not then
listed or admitted to trading on the OTC Bulletin Board or any stock exchange,
the last reported closing bid price on such day in the over-the-counter market,
as furnished by the National Association of Securities Dealers Automatic
Quotation System or the National Quotation Bureau, Inc., (iv) if neither such
corporation at the time is engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business, or (v) if there is
no such firm, as furnished by any member of the NASD selected mutually by the
holder of this Warrant and the Company or, if they cannot agree upon such
selection, as selected by two such members of the NASD, one of which shall be
selected by holder of this Warrant and one of which shall be selected by the
Company.
"Current Warrant Price" means, in respect of a share of Common Stock at
any date herein specified, the price at which a share of Common Stock may be
purchased pursuant to this Warrant on such date. Unless and until the Current
Warrant Price is adjusted pursuant to the terms herein, the initial Current
Warrant Price shall be $2.25 per share of Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Exercise Period" means the period during which this Warrant is
exercisable pursuant to Section 2.1.
"Expiration Date" means September _____, 2009, subject to modification as
provided herein.
"NASD" means the National Association of Securities Dealers, Inc., or any
successor corporation thereto.
"Other Property" has the meaning set forth in Section 4.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, incorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof).
"Purchase Agreement" means that certain Warrant Purchase and Registration
Rights Agreement dated as of the Closing Date among the Company and the other
parties named therein, pursuant to which this Warrant was originally issued.
"Restricted Common Stock" means shares of Common Stock which are, or which
upon their issuance upon the exercise of any Warrant would be required to be,
evidenced by a certificate bearing the restrictive legend set forth in Section
3.2.
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EXHIBIT B
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Trading Day" means any day on which the primary market on which shares of
Common Stock are listed is open for trading.
"Transfer" means any disposition of any Warrant or Warrant Stock or of any
interest in either thereof, which would constitute a sale thereof within the
meaning of the Securities Act.
"Warrants" means this Warrant and all warrants issued upon transfer,
division or combination of, or in substitution for, any thereof. All Warrants
shall at all times be identical as to terms and conditions and date, except as
to the number of shares of Common Stock for which they may be exercised.
"Warrant Price" means an amount equal to (i) the number of shares of
Common Stock being purchased upon exercise of this Warrant pursuant to Section
2.1, multiplied by (ii) the Current Warrant Price.
"Warrant Stock" means up to _____________ shares of Common Stock to be
purchased upon the exercise hereof, subject to adjustment as provided herein.
2. Exercise of Warrant.
2.1 Manner of Exercise. From and after the Closing Date, and until
5:00 P.M., New York time, on the Expiration Date (the "Exercise Period"),
the Holder may exercise this Warrant, on any Business Day, for all or any
part of the number of shares of Warrant Stock purchasable hereunder,
subject to the terms and conditions of this Warrant.
In order to exercise this Warrant, in whole or in part, the Holder
shall deliver to the Company at its principal office or at the office or
agency designated by the Company as provided herein, (i) a written notice
of Holder's election to exercise this Warrant, which notice shall specify
the number of shares of Warrant Stock to be purchased, (ii) payment of the
Warrant Price as provided herein, and (iii) this Warrant. Such notice
shall be irrevocable and substantially in the form of the subscription
form appearing at the end of this Warrant as Exhibit A, duly executed by
the Holder or its agent or attorney. Upon receipt thereof, the Company
shall, as promptly as reasonably practicable, execute or cause to be
executed and deliver or cause to be delivered to the Holder a certificate
or certificates representing the aggregate number of full shares of
Warrant Stock issuable upon such exercise, together with cash in lieu of
any fraction of a share, as hereinafter provided. The stock certificate or
certificates so delivered shall be, to the extent possible, in such
denomination or denominations as the Holder shall reasonably request in
the notice and shall be registered in the name of the Holder or if
permitted pursuant to the terms of this Warrant such other name as shall
be designated in the notice. This Warrant
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EXHIBIT B
shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and the Holder or any
other Person so designated to be named therein shall be deemed to have
become a Holder of record of such shares for all purposes, as of the date
when the notice, together with the payment of the Warrant Price and this
Warrant, is received by the Company as described above. If this Warrant
shall have been exercised in part, the Company shall, at the time of
delivery of the certificate or certificates representing Warrant Stock,
deliver to the Holder a new Warrant evidencing the rights of the Holder to
purchase the unpurchased shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with
this Warrant, or at the request of the Holder, appropriate notation may be
made on this Warrant and the same returned to the Holder.
Payment of the Warrant Price may be made at the option of the Holder
by: (i) certified or official bank check payable to the order of the
Company, (ii) wire transfer of immediately available funds to the account
of the Company or (iii) beginning one year after the Closing Date, the
surrender and cancellation of a portion of shares of Common Stock then
held by the Holder or issuable upon such exercise of this Warrant, which
shall be valued and credited toward the total Warrant Price due the
Company for the exercise of the Warrant based upon the Current Market
Price of the Common Stock. All shares of Common Stock issuable upon the
exercise of this Warrant pursuant to the terms hereof shall be validly
issued and, upon payment of the Warrant Price, shall be fully paid and
nonassessable and not subject to any preemptive rights.
2.2 Fractional Shares. The Company shall not be required to issue a
fractional share of Common Stock upon exercise of any Warrant. As to any
fraction of a share which the Holder of one or more Warrants, the rights
under which are exercised in the same transaction, would otherwise be
entitled to purchase upon such exercise, the Company shall pay an amount
in cash equal to the Current Market Price per share of Common Stock on the
date of exercise multiplied by such fraction.
2.3 Restrictions on Exercise Amount. Unless a Holder delivers to the
Company irrevocable written notice prior to the date of issuance hereof or
sixty-one days prior to the effective date of such notice that this
Section shall not apply to such Holder, the Holder may not acquire a
number of shares of Warrant Stock to the extent that, upon such exercise,
the number of shares of Common Stock then beneficially owned by such
holder and its Affiliates and any other persons or entities whose
beneficial ownership of Common Stock would be aggregated with the Holder's
for purposes of Section 13(d) of the Exchange Act (including shares held
by any "group" of which the holder is a member, but excluding shares
beneficially owned by virtue of the ownership of securities or rights to
acquire securities that have limitations on the right to convert, exercise
or purchase similar to the limitation set forth herein) exceeds 4.9% of
the total number of shares of Common Stock of the Company then issued and
outstanding. For purposes hereof, "group" has the meaning set forth in
Section 13(d) of the Exchange Act and applicable regulations of the
Commission, and the percentage held by the holder shall be determined in a
manner consistent with the provisions of Section 13(d) of the Exchange
Act. Each delivery of a notice of exercise by a Holder will constitute a
representation by such
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EXHIBIT B
Holder that it has evaluated the limitation set forth in this paragraph
and determined, based on the most recent public filings by the Company
with the Commission, that the issuance of the full number of shares of
Warrant Stock requested in such notice of exercise is permitted under this
paragraph.
In the event that the provisions of this Section 2.3 shall apply as
of September ______, 2009, the Expiration Date shall be extended for an
additional 18 months or until the date that the provisions of this Section
2.3 shall not apply, whichever occurs first.
3. Transfer, Division and Combination.
3.1 Transfer. The Warrants and the Warrant Stock shall be freely
transferable, subject to compliance with this Section 3.1 and all
applicable laws, including, but not limited to the Securities Act. If, at
the time of the surrender of this Warrant in connection with any transfer
of this Warrant or the resale of the Warrant Stock, this Warrant or the
Warrant Stock, as applicable, shall not be registered for resale under the
Securities Act, the Company may require, as a condition of allowing such
transfer (i) that the Holder or transferee of this Warrant or the Warrant
Stock as the case may be, at the cost of Holder or transferee, furnish to
the Company a written opinion of counsel that is reasonably acceptable to
the Company to the effect that such transfer may be made without
registration under the Securities Act and any applicable state law, (ii)
that the Holder or transferee execute and deliver to the Company an
investment representation letter in form and substance acceptable to the
Company and substantially in the form attached as Exhibit C hereto and
(iii) that the transferee be an "accredited investor" as defined in Rule
501 (a) promulgated under the Securities Act. Transfer of this Warrant and
all rights hereunder, in whole or in part, in accordance with the
foregoing provisions, shall be registered on the books of the Company to
be maintained for such purpose, upon surrender of this Warrant at the
principal office of the Company referred to in Section 2.1 or the office
or agency designated by the Company as provided herein, together with a
written assignment of this Warrant substantially in the form of Exhibit B
hereto duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company
shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. Following a transfer that complies with the
requirements of this Section 3.1, the Warrant may be exercised by a new
Holder for the purchase of shares of Common Stock regardless of whether
the Company issued or registered a new Warrant on the books of the
Company. In connection with any transfer of this Warrant or the resale of
the Warrant Stock pursuant to Rule 144 or other than pursuant to an
effective registration statement, the Holder or transferee shall
compensate the Company for its reasonable expenses incurred in connection
with effectuating such transfer or resale.
3.2 Restrictive Legends. Each certificate for Warrant Stock
initially issued upon the exercise of this Warrant, and each certificate
for Warrant Stock issued to any
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EXHIBIT B
subsequent transferee of any such certificate, unless, in each case, such
Warrant Stock is eligible for resale without registration pursuant to Rule
144(k) or an effective registration statement under the Securities Act,
shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN
OPINION OF THE COMPANY'S COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED."
In addition, each certificate for Warrant Stock initially issued upon the
exercise of this Warrant, and each certificate for Warrant Stock issued to
any subsequent transferee of any such certificate, shall bear any legends
which the Company reasonably believes is required or permitted to affix
per the terms of applicable voting or other contractual agreements.
The Company shall facilitate the timely preparation and delivery of
certificates representing the Warrant Stock to be sold pursuant to an
effective Registration Statement, which certificates shall be free, to the
extent permitted by applicable law and this Warrant, of all restrictive
legends, and to enable such Warrant Stock to be in such denominations and
registered in such names as the Holder may request at least five (5)
business days prior to any sale of the Warrant Stock. In connection
therewith, the Company shall promptly after the effectiveness of the
Registration Statement cause an opinion of counsel to be delivered to and
maintained with its transfer agent, together with any other
authorizations, certificates and directions required by the transfer
agent, which authorize and direct the transfer agent to issue such Warrant
Stock without legend upon sale by the holder of such Warrant Stock under
the Registration Statement, for such time as the Registration Statement is
effective.
3.3 Division and Combination; Expenses; Books. This Warrant may be
divided or combined with other Warrants upon presentation hereof at the
aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be
issued, signed by the Holder or its agent or attorney. Subject to
compliance with Section 3.1 as to any transfer which may be involved in
such division or combination, the Company shall execute and deliver a new
Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. The Company shall prepare,
issue and deliver at Holder's expense the new Warrant or Warrants under
this Section 3. The Company agrees to maintain, at its aforesaid office or
agency, books for the registration and the registration of transfer of the
Warrants.
4. Adjustments. The number of shares of Common Stock for which this
Warrant is exercisable, and the price at which such shares may be purchased upon
exercise of this Warrant, shall be subject to adjustment from time to time as
set forth in this Section 4.
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EXHIBIT B
4.1 Stock Dividends, Subdivisions and Combinations. If at any time
while this Warrant is outstanding the Company shall:
(i) declare a dividend or make a distribution on its
outstanding shares of Common Stock in shares of Common Stock;
(ii) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock; or
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, then:
(1) the number of shares of Common Stock acquirable upon exercise of this
Warrant immediately after the occurrence of any such event shall be adjusted to
equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock that would have been acquirable under this
Warrant immediately prior to the record date for such dividend or distribution
or the effective date of such subdivision or combination would own or be
entitled to receive after such record date or the effective date of such
subdivision or combination, as applicable, and
(2) the Current Warrant Price shall be adjusted to equal:
(A) the Current Warrant Price in effect at the time of the record
date for such dividend or distribution or of the effective date of such
subdivision or combination, multiplied by the number of shares of Common
Stock into which this Warrant is exercisable immediately prior to the
adjustment, divided by
(B) the number of shares of Common Stock into which this Warrant is
exercisable immediately after such adjustment.
Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any
adjustment pursuant to clauses (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination.
4.2 Certain Other Distributions. If at any time while this Warrant
is outstanding the Company shall cause all of the holders of its Common
Stock to be entitled to receive any dividend or other distribution of:
(i) cash,
(ii) any evidences of its indebtedness, any shares of stock of
any class or any other securities or property or assets of any
nature whatsoever (other than cash or additional shares of Common
Stock as provided in Section 4.1 hereof), or
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EXHIBIT B
(iii) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of
any class or any other securities or property or assets of any
nature whatsoever (in each case set forth in subparagraphs 4.2(i),
4.2(ii) and 4.2(iii) hereof, the "Distributed Property"),
then upon any exercise of this Warrant that occurs after the record date for
such dividend or other distribution, the holder of this Warrant shall be
entitled to receive, in addition to the shares of Warrant Stock, the Distributed
Property that such holder would have been entitled to receive in respect of such
number of Warrant Shares had the holder been the record holder of such Warrant
Shares as of such record date. Such distribution shall be made whenever any such
exercise is made. A reclassification of the Common Stock (other than a change in
par value, or from par value to no par value or from no par value to par value)
into shares of Common Stock and shares of any other class of stock shall be
deemed a distribution by the Corporation to the holders of its Common Stock of
such shares of such other class of stock within the meaning of this Section 4.2
and, if the outstanding shares of Common Stock shall be changed into a larger or
smaller number of shares of Common Stock as a part of such reclassification,
such change shall be deemed a subdivision or combination, as the case may be, of
the outstanding shares of Common Stock within the meaning of Section 4.1.
4.3 Other Provisions Applicable to Adjustments. The following
provisions shall be applicable to the making of adjustments of the
number of shares of Common Stock into which this Warrant is
exercisable and the Current Warrant Price provided for in Section 4:
(a) When Adjustments to Be Made. The adjustments
required by Section 4 shall be made whenever and as often as
any specified event requiring an adjustment shall occur,
except that any that would otherwise be required may be
postponed (except in the case of a subdivision or combination
of shares of the Common Stock, as provided for in Section 4.1)
up to, but not beyond the date of exercise if such adjustment
either by itself or with other adjustments not previously made
adds or subtracts less than 1% of the shares of Common Stock
into which this Warrant is exercisable immediately prior to
the making of such adjustment. Any adjustment representing a
change of less than such minimum amount (except as aforesaid)
which is postponed shall be carried forward and made as soon
as such adjustment, together with other adjustments required
by this Section 4 and not previously made, would result in a
minimum adjustment or on the date of exercise. For the purpose
of any adjustment, any specified event shall be deemed to have
occurred at the close of business on the date of its
occurrence.
(b) Fractional Interests. In computing adjustments under
this Section 4, fractional interests in Common Stock shall be
taken into account to the nearest 1/100th of a share.
(c) When Adjustment Not Required. If the Company
undertakes a transaction contemplated under this Section 4 and
as a result takes a record of the holders of its Common Stock
for the purpose of entitling them to receive a
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EXHIBIT B
dividend or distribution or subscription or purchase rights or
other benefits contemplated under this Section 4 and shall,
thereafter and before the distribution to stockholders
thereof, legally abandon its plan to pay or deliver such
dividend, distribution, subscription or purchase rights or
other benefits contemplated under this Section 4, then
thereafter no adjustment shall be required by reason of the
taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
(d) Escrow of Stock. If after any property becomes
distributable pursuant to Section 4 by reason of the taking of
any record of the holders of Common Stock, but prior to the
occurrence of the event for which such record is taken, a
holder of this Warrant exercises the Warrant during such time,
then such holder shall continue to be entitled to receive any
shares of Common Stock issuable upon exercise hereunder by
reason of such adjustment and such shares or other property
shall be held in escrow for the holder of this Warrant by the
Company to be issued to holder of this Warrant upon and to the
extent that the event actually takes place. Notwithstanding
any other provision to the contrary herein, if the event for
which such record was taken fails to occur or is rescinded,
then such escrowed shares shall be canceled by the Company and
escrowed property returned to the Company.
4.4 Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets.
(a) If there shall occur a Change of Control and,
pursuant to the terms of such Change of Control, shares of
common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any
nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation ("Other Property"), are
to be received by or distributed to the holders of Common
Stock of the Company, then the Holder of this Warrant shall
have the right thereafter for the Balance of the Exercise
Period to receive, upon the exercise of the Warrant, the
number of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving
corporation, and the Other Property receivable upon or as a
result of such Change of Control by a holder of the number of
shares of Common Stock into which this Warrant is exercisable
immediately prior to such event.
(b) In case of any such Change of Control described
above, the resulting, successor or acquiring entity (if not
the Company) and, if an entity different from the successor or
acquiring entity, the entity whose capital stock or assets the
holders of the Common Stock are entitled to receive as a
result of such Change of Control, shall assume by written
instrument all of the obligations of this Warrant and the
Transaction Documents (as defined in the Purchase Agreement),
subject to such modifications as may be deemed appropriate (as
determined by resolution of the Board of Directors of the
Company) in order to
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EXHIBIT B
provide for adjustments of shares of the Common Stock into
which this Warrant is exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in
Section 4. For purposes of Section 4, common stock of the
successor or acquiring corporation shall include stock of such
corporation of any class which is not preferred as to
dividends or assets on liquidation over any other class of
stock of such corporation and which is not subject to
redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the
happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 4 shall similarly apply
to successive Change of Control transactions.
4.5 Stock Transfer Taxes. The issue of stock certificates upon
exercise of this Warrant shall be made without charge to the holder
for any tax in respect of such issue. The Company shall not,
however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of shares in any
name other than that of the holder of this Warrant, and the Company
shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issue 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.
5. No Rights as Stockholder. This Warrant does not entitle the Holder to
any voting or other rights as a stockholder of the Company prior to exercise and
payment for the Warrant Price in accordance with the terms hereof.
6. Reservation and Authorization of Common Stock. From and after the
Closing Date, the Company shall at all times reserve and keep available for
issue upon the exercise of Warrants such number of its authorized but unissued
shares of Common Stock as will be sufficient to permit the exercise in full of
all outstanding Warrants
7. Taking of Record; Stock and Warrant Transfer Books. In the case of all
dividends or other distributions by the Company to the holders of its Common
Stock with respect to which any provision of Section 4 refers to the taking of a
record of such holders, the Company will in each such case take such a record
and will take such record as of the close of business on a Business Day. The
Company will not at any time, except upon dissolution, liquidation or winding up
of the Company, close its stock transfer books or Warrant transfer books so as
to result in preventing or delaying the exercise or transfer of any Warrant.
8. Registration Rights. The resale of the Warrant Stock shall be
registered in accordance with and subject to the terms and conditions contained
in the Purchase Agreement. The Holder acknowledges that pursuant to the Purchase
Agreement, the Company has the right to request that the Holder furnish
information regarding such Holder and the distribution of the Warrant Stock as
is required by law or the Commission to be disclosed in the Registration
Statement (as such term is defined in the Purchase Agreement), and the Company
may exclude from such registration the shares of Warrant Stock acquirable
hereunder if Holder fails to furnish
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EXHIBIT B
such information within a reasonable time prior to the filing of each
Registration Statement, supplemented prospectus included therein and/or amended
Registration Statement.
9. Loss or Mutilation. Upon receipt by the Company from the Holder of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity or security reasonably
satisfactory to it and reimbursement to the Company of all reasonable expenses
incidental thereto and in case of mutilation upon surrender and cancellation
hereof, the Company, at Holder's cost, will execute and deliver in lieu hereof a
new Warrant of like tenor to the Holder; provided, however, that in the case of
mutilation, no indemnity shall be required if this Warrant in identifiable form
is surrendered to the Company for cancellation.
10. Office of the Company. As long as any of the Warrants remain
outstanding, the Company shall maintain an office or agency (which may be the
principal executive offices of the Company) where the Warrants may be presented
for exercise, registration of transfer, division or combination as provided in
this Warrant.
11. Acceleration of Expiration Date at Company's Election. The Company
may, at the option of the Board of Directors of the Company, accelerate the
Expiration Date of this Warrant in connection with the consummation of a Change
of Control transaction by giving the Holder or transferee at least 21 days
written notice prior to the anticipated date of consummation of the applicable
Change of Control transaction (the "Accelerated Expiration Date"). As of the
Accelerated Expiration Date, all rights and obligations of the Company under
this Warrant shall become null and void to the extent that the Holder or
transferee shall not have exercised this Warrant as of or prior to the
Accelerated Expiration Date.
12. Miscellaneous.
12.1 Nonwaiver. No course of dealing or any delay or failure to
exercise any right or obligation hereunder on the part of the Holder or
the Company shall operate as a waiver of such right or obligation, unless
the same shall be in writing signed by the Holder or the Company.
12.2 Notice Generally. All notices, requests, demands or other
communications provided for herein shall be in writing and shall be given
in the manner and to the addresses set forth in the Purchase Agreement.
12.3 Successors and Assigns. Subject to compliance with the
provisions of Section 3.1, this Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors of the
Company and the successors and assigns of the Holder. The provisions of
this Warrant are intended to be for the benefit of all Holders from time
to time of this Warrant, and shall be enforceable by any such Holder.
12.4 Amendment. This Warrant may be modified or amended or the
provisions of this Warrant waived with the written consent of both the
Company and the Holder.
Page 12 of 17
EXHIBIT B
12.5 Severability. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited
by or invalid under applicable law, such provision shall be modified to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Warrant.
12.6 Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
12.7 Governing Law. This Warrant and the transactions contemplated
hereby shall be deemed to be consummated in the State of Delaware and
shall be governed by and interpreted in accordance with the local laws of
the State of Delaware without regard to the provisions thereof relating to
conflicts of laws. Any dispute, controversy or claim arising out of or
relating to this Agreement, whether arising in contract, tort or otherwise
shall be resolved in accordance with the rules of the American Arbitration
Association, except for any equitable or injunctive relief sought under
this Agreement. The arbitration shall be held at a location within Oakland
County, Michigan. The Parties agree that any arbitration award rendered on
any claim submitted to arbitration shall be final and binding upon the
Parties and not subject to appeal and that judgment may be entered upon
any arbitration award by any circuit court located in Michigan.
12.8 Entire Agreement. This Warrant, together with the Purchase
Agreement which this Warrant is subject to and pursuant to which it is
given,, constitute the entire agreement between the Company and Holder
with respect to the subject matter hereof and supersedes any and all other
prior or contemporaneous agreements, either oral or written, between the
Company and Holder with respect to the subject matter hereof. Headings
herein are for convenience only and shall not be deemed to limit or affect
any of the provisions hereof.
IN WITNESS WHEREOF, Arcadia Resources, Inc. has caused this Warrant to be
executed by its duly authorized officer and attested by its Secretary or other
designated officer.
Dated: September _____, 2005
ARCADIA RESOURCES, INC.
By: ___________________
Name:
Title:
Attest:
By: _________________________
Name:
Title:
Page 13 of 17
EXHIBIT B
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
1. The undersigned hereby elects to purchase __________shares of the
Common Stock of Arcadia Resources, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. The undersigned hereby elects to convert the attached Warrant into
Common Stock of Arcadia Resources, Inc. through "cashless exercise" in the
manner specified in the Warrant. This conversion is exercised with respect to
_________________ of the Shares covered by the Warrant.
3. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
____________________________________
(Name)
____________________________________
____________________________________
____________________________________
(Address)
[and, if such shares of Common Stock shall not include all of the shares
of Common Stock issuable as provided in this Warrant, that a new Warrant of like
tenor and date for the balance of the shares of Common Stock issuable hereunder
be delivered to the undersigned.]
____________________________________
(Name of Registered Owner)
____________________________________
(Signature of Registered Owner)
____________________________________
(Xxxxxx Xxxxxxx)
____________________________________
(State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.
Page 14 of 17
EXHIBIT B
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant for the
purchase of shares of common stock of Arcadia Resources, Inc. hereby sells,
assigns and transfers unto the Assignee named below all of the rights of the
undersigned under this Warrant, with respect to the number of shares of common
stock set forth below:
____________________________________
____________________________________
____________________________________
(Name and Address of Assignee)
____________________________________
(Number of Shares of Common Stock)
and does hereby irrevocably constitute and appoint _____________________
attorney-in-fact to register such transfer on the books of the Company,
maintained for the purpose, with full power of substitution in the premises.
Dated: ____________________________________
____________________________________
(Print Name and Title)
____________________________________
(Signature)
____________________________________
(Witness)
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.
Page 15 of 17
EXHIBIT B
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
In connection with the acquisition of [warrants (the "Warrants") to purchase
_________ shares of common stock of Arcadia Resources, Inc. (the "Company"), par
value $0.001 per share (the "Common Stock")] [ ___________ shares of common
stock of Arcadia Resources, Inc. (the "Company"), par value $0.001 per share
(the "Common Stock") upon the exercise of warrants by_____________],
by__________(the "Holder") from__________________, the Holder hereby represents
and warrants to the Company as follows:
The Holder (i) is an "Accredited Investor" as that term is defined in Rule 501
of Regulation D promulgated under the Securities Act of 1933, as amended (the
"Act"); and (ii) has the ability to bear the economic risks of such Holder's
prospective investment, including a complete loss of Holder's investment in the
Warrants and the shares of Common Stock issuable upon the exercise thereof
(collectively, the "Securities").
The Holder, by acceptance of the Warrants, represents and warrants to the
Company that the Warrants and all securities acquired upon any and all exercises
of the Warrants are purchased for the Holder's own account, and not with view to
distribution of either the Warrants or any securities purchasable upon exercise
thereof in violation of applicable securities laws.
[The Holder acknowledges that (i) the Securities have not been registered under
the Act, (ii) the Securities are "restricted securities" and the certificate(s)
representing the Securities shall bear the following legend, or a similar legend
to the same effect, until (i) in the case of the shares of Common Stock
underlying the Warrants, such shares shall have been registered for resale by
the Holder under the Act and effectively been disposed of in accordance with a
registration statement that has been declared effective; or (ii) in the opinion
of counsel for the Company such Securities may be sold without registration
under the Act:
"[NEITHER] THE SECURITIES REPRESENTED BY THIS CERTIFICATE [NOR THE SECURITIES
INTO WHICH THEY ARE EXERCISABLE] HAVE [NOT] BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND ALL SUCH SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. [NEITHER] THE
SECURITIES REPRESENTED HEREBY [NOR THE SECURITIES INTO WHICH THEY ARE
EXERCISABLE] MAY [NOT] BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OF THE
COMPANY'S COUNSEL TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER, OR DISPOSITION
MAY BE EFFECTUATED WITHOUT REGISTRATION UNDER THE ACT."](1)
----------------
(1) Bracketed language to be inserted if applicable.
Page 16 of 17
EXHIBIT B
IN WITNESS WHEREOF, the Holder has caused this Investment Representation Letter
to be executed this ___ day of _______________, 200__.
[Name]
By: _______________________________
Name:
Title:
Page 17 of 17
