EXHIBIT 3(ii)
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF
HAVE BEEN ISSUED AND SOLD WITHOUT REGISTRATION IN RELIANCE UPON EXEMPTIONS FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"). SUCH SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD, OR TRANSFERRED OTHER THAN (i) PURSUANT TO AN
EFFECTIVE REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE 1933 ACT AND THE
APPLICABLE SECURITIES LAW OF THE STATE OF NEVADA AND (ii) UPON RECEIPT BY THE
ISSUER OF EVIDENCE SATISFACTORY TO IT OF COMPLIANCE WITH THE 1933 ACT, THE
APPLICABLE SECURITIES LAWS OF THE STATE OF NEVADA, OR THE APPLICABLE SECURITIES
LAWS OF ANY OTHER JURISDICTION. THE ISSUER SHALL BE ENTITLED TO REQUIRE AN
OPINION OF COUNSEL SATISFACTORY TO IT WITH RESPECT TO COMPLIANCE WITH THE ABOVE
LAWS.
WARRANT TO PURCHASE 100,000 SHARES OF
COMMON STOCK
OF
HYDROGIENE CORPORATION
(a Nevada Corporation)
Not Transferable or Exercisable Except
upon Conditions Herein Specified
Void after 5:00 O'Clock p.m.,
Las Vegas, Nevada Time, on December 31, 2001
HYDROGIENE CORPORATION, a Nevada corporation (the "Company"), hereby
certifies that EVERGREEN FINANCIAL SERVICES, INC., a corporation organized under
the laws of the State of Georgia, its registered successors and permitted
assigns registered on the books of the Company maintained for such purposes as
the registered holder hereof (the "Holder"), for value received, is entitled to
purchase from the Company the number of fully paid and nonassessable shares of
common stock of the Company (the "Common Stock"), stated above (the "Shares") at
the purchase price of $.25 per Share (the "Exercise Price") (the number of
Shares and Exercise Price being subject to adjustment as hereinafter provided)
upon the terms and conditions herein provided.
1. Exercise of Warrant.
(a) Subject to subsection (b) of this Section 1, upon presentation
and surrender of this Warrant Certificate, with the attached Purchase Form duly
executed, at the principal office of the Company at 16955 Xxx Xxx Xxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxxxxxx or at such other place as the Company may designate
by notice to the Holder hereof, together with a certified or bank cashier's
check payable to the order of the Company in the amount of the Exercise Price
times the number of Shares being purchased, the Company shall deliver to the
Holder hereof, as promptly as practicable, certificates representing the Shares
being purchased.
This Warrant may be exercised in whole or in part; and, in case of exercise
hereof in part only, the Company, upon surrender hereof, will deliver to the
Holder a new Warrant Certificate or Warrant Certificates of like tenor entitling
the Holder to purchase the number of Shares as to which this Warrant has not
been exercised.
(b) This Warrant may be exercised in whole or in part at any time
prior to 5:00 o'clock p.m., Las Vegas, Nevada time, on December 31, 2001.
2. Exchange and Transfer of Warrant. This Warrant Certificate (a) at any
time prior to the exercise hereof, upon presentation and surrender to the
Company, may be exchanged, alone or with other Warrant Certificates of like
tenor registered in the name of the Holder, for another Warrant Certificate or
Warrant Certificates of like tenor in the name of such Holder exercisable for
the same aggregate number of Shares as the Warrant Certificate or Warrant
Certificates surrendered, (b) may not be sold, transferred, hypothecated or
assigned, in whole or in part, before June 1, 1998, and (c) may not be sold,
transferred, hypothecated or assigned, in whole or in part, after June 1, 1998
without the prior written consent of the Company, which consent shall not be
unreasonably withheld.
3. Rights and Obligations of Warrant Holder.
(a) The Holder of this Warrant Certificate shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at law
or in equity; provided, however, in the event that any certificate representing
the Shares is issued to the Holder hereof upon exercise of this Warrant, such
Holder shall, for all purposes, be deemed to have become the holder of record of
such Shares on the date on which this Warrant Certificate, together with a duly
executed Purchase Form, was surrendered and payment of the Exercise Price was
made, irrespective of the date of delivery of such Share certificate. The rights
of the Holder of this Warrant are limited to those expressed herein and the
Holder of this Warrant, by its acceptance hereof, consents to and agrees to be
bound by and to comply with all the provisions of this Warrant Certificate,
including, without limitation, all the obligations imposed upon the Holder
hereof by Sections 2 and 5 hereof. In addition, the Holder of this Warrant
Certificate, by accepting the same, agrees that the Company may deem and treat
the person in whose name this Warrant Certificate is registered on the books of
the Company maintained for such purpose as the absolute, true and lawful owner
for all purposes whatsoever, notwithstanding any notation of ownership or other
writing hereon, and the Company shall not be affected by any notice to the
contrary.
(b) The Holder of this Warrant Certificate, as such, shall not be
entitled to vote or receive dividends or to be deemed the holder of Shares for
any purpose, nor shall anything contained in this Warrant Certificate be
construed to confer upon the Holder of this Warrant Certificate, as such, any of
the rights of a shareholder of the Company including but not limited to any
right to vote, give or withhold consent to any action by the Company, whether
upon any recapitalization, issue of stock, reclassification of stock,
consolidation, merger, share exchange, conveyance or otherwise, receive notice
of meetings or other action affecting shareholders (except for the notices
provided for herein), receive dividends, receive subscription rights, or any
other right, until this Warrant shall have been exercised and the Shares
purchasable upon the exercise hereof shall have become deliverable as provided
herein; provided, however, that any such exercise on any date when the stock
transfer books of the Company shall be closed shall constitute the person or
persons in whose name or names the certificate or certificates for those Shares
are to be issued as the record holder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such stock transfer
books are open, and the warrant surrendered shall not be deemed to have been
exercised, in whole or in part as the case may be, until the next succeeding day
on which stock transfer books are open for the purpose of determining
entitlement to dividends on the Company's common stock.
4. Shares Underlying Warrant. The Company covenants and agrees that all
Shares delivered upon exercise of this Warrant shall, upon delivery and payment
therefor, be duly and validly authorized and issued, fully paid and
nonassessable, and free from all liens and charges with respect to the purchase
thereof.
5. Disposition of Warrants of Shares
(a) The Holder of this Warrant Certificate and any transferee hereof
or of the Shares issuable upon the exercise of this Warrant, by their acceptance
hereof or thereof, hereby understand and agree that this Warrant, and the Shares
issuable upon the exercise hereof, have not been registered under either the
Securities Act of 1933 (the "1933 Act") or applicable state securities laws (the
"State Acts") and shall not be sold, pledged, hypothecated, donated or otherwise
transferred (whether or not for consideration) except upon the issuance to the
Company of a favorable opinion of counsel or submission to the Company of such
evidence as may be satisfactory to counsel to the Company, in each such case, to
the effect that any such transfer shall not be in violation of the Act and the
State Acts. It shall be a condition to the transfer of this Warrant that any
transferee hereof deliver to the Company its written agreement to accept and be
bound by all of the terms and conditions of this Warrant Certificate.
(b) The stock certificates of the Company that will evidence the
Shares issuable upon the exercise hereof may be imprinted with a conspicuous
legend in substantially the following form:
The securities represented by this certificate have not been
registered under either the Securities Act of 1933 (the "Act") or
applicable state securities laws (the "State Acts") and shall not be sold,
pledged, hypothecated, donated or otherwise transferred (whether or not for
consideration) by the holder except upon the issuance to the Company of a
favorable opinion of its counsel or submission to the Company of such other
evidence as may be satisfactory to counsel to the Company, in each such
case, to the effect that any such transfer shall not be in violation of the
Act and the State Acts.
The Company does not file, and does not in the foreseeable future contemplate
filing, periodic reports with the Securities and Exchange Commission ("SEC")
pursuant to the provisions of the Securities Exchange Act of 1934, as amended.
Except as provided in Section 8 of this Warrant, the Company has not agreed to
register any of the Shares issuable upon the exercise hereof for distribution in
accordance with the provisions of the Act or the State Acts, and the Company has
not agreed to comply with any exemption from registration under the Act or the
State Acts for the resale of such Shares. Hence, it is the understanding of the
Holder of this Warrant that by virtue of the provisions of certain rules
respecting "restricted securities" promulgated by the SEC, the Shares issuable
upon the exercise hereof may be required to be held indefinitely, unless and
until registered under the Act and the State Acts, unless an exemption from such
registration is available, in which case the Holder may still be limited as to
the number of such Shares that may be sold.
6. Adjustments. The number of Shares purchasable upon the exercise of this
Warrant is subject to adjustment from time to time upon the occurrence of any of
the events enumerated below.
(a) In case the Company shall: (i) pay a dividend in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, or (iv) issue, by
reclassification of its shares of Common Stock, any shares of its capital stock,
the amount of Shares purchasable upon the exercise of this Warrant immediately
prior thereto shall be adjusted so that the Holder shall be entitled to receive
upon exercise of this Warrant that number of Shares which such Holder would have
owned or
would have been entitled to receive after the happening of such event had such
Holder exercised this Warrant immediately prior to the record date, in the case
of any such dividend, or the effective date, in the case of any such
subdivision, combination or reclassification. An adjustment made pursuant to
this subsection (a) shall be made whenever any of such events shall occur, but
shall become effective retroactively after such record date or such effective
date, as the case may be, as to any portion of this Warrant exercised between
such record date or effective date and the date of happening of any such event.
(b) In case the Company shall issue rights or warrants to all holders
of its shares of Common Stock entitling them to subscribe for or to purchase
shares of Common Stock at a price per share which, when added to the amount of
consideration received or receivable by the Company for such rights or warrants,
is less than the Current Market Price (as hereinafter defined) per share at the
record date, the number of Shares purchasable upon the exercise of this Warrant
shall be adjusted so that thereafter, until further adjusted, this Warrant shall
entitle the Holder to purchase that number of Shares determined by multiplying
the number of Shares purchasable hereunder by a fraction, the numerator of which
shall be the number of additional shares of Common Stock issuable upon the
exercise of such rights or warrants, and the denominator of which shall be the
number of Shares which an amount equal to the sum of (i) the aggregate exercise
price of the total number of shares of Common Stock issuable upon the exercise
of such rights or warrants, and (ii) the aggregate amount of consideration, if
any, received, or receivable by the Company for such rights or warrants, would
purchase at such Current Market Price. Such adjustment shall be made whenever
such rights or warrants are issued, but shall also be effective retroactively as
to Warrants exercised between the record date for the determination of
shareholders entitled to receive such rights or warrants and the date such
rights or warrants are issued.
(c) For the purpose of any computation under subsection (b) above,
the Current Market Price per share of Common Stock at any date shall be (i) if
the shares of Common Stock are listed on any national securities exchange, the
average of the daily closing prices for the 15 consecutive business days
commencing 20 business days before the date of determination (the "Trading
Period"); (ii) if the shares of Common Stock are not listed on any national
securities exchange but are quoted or reported on the National Association of
Securities Dealers, Inc., Automated Quotation System ("NASDAQ"), the last quoted
price or, if not quoted, the average of the high bid and low asked price as
reported by NASDAQ for the Trading Period, or the daily closing prices for the
Trading Period as reported by NASDAQ, as the case may be; and (iii) if the
shares of Common Stock are neither listed on any national securities
exchange nor quoted or reported on NASDAQ, the higher of (x) the Exercise Price
then in effect, or (y) the tangible book value per share of Common Stock as of
the end of the Company's immediately preceding fiscal year.
(d) No adjustment shall be required unless such adjustment would
require an increase or decrease of at least 1 percent in the number of Shares
purchasable hereunder; provided, however, that any adjustments which by reason
of this subsection (d) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 6 shall be made to the nearest one-hundredth of a Share.
(e) No adjustment shall be made in any of the following cases:
(i) Upon the grant or exercise of stock options now or
hereunder granted, or the issuance of shares of Common Stock, under any employee
stock option or stock purchase plan now or hereafter authorized, to the extent
that the aggregate number of shares of Common Stock which may be purchased
pursuant to such options and issued under such employee stock purchase plan is
less than or equal to 10 percent of the number of shares of Common Stock
outstanding on January 1 of the year of the grant or exercise;
(ii) Issuance of shares of Common Stock upon the conversion
of any of the Company's convertible or exchangeable securities;
(iii) Issuance of shares of Common Stock in connection with
the acquisition by the Company or by any subsidiary of the Company of 80 percent
or more of the assets of another corporation or entity, issuance of shares of
Common Stock in connection with the acquisition by the Company or by any
subsidiary of the Company of 80 percent or more of the voting shares of another
corporation (including shares of Common Stock issued in connection with such
acquisition of voting shares of such other corporation subsequent to the
acquisition of an aggregate of 80 percent of such voting shares), issuance of
shares of Common Stock in a merger of or share exchange by the Company or a
subsidiary of the Company with another corporation in which the Company or the
Company's subsidiary is the surviving or acquiring corporation, and issuance of
shares of Common Stock upon the conversion of other securities issued in
connection with any such acquisition or in any such merger or share exchange;
and
(iv) Issuance of shares of Common Stock issued pursuant to
this Warrant and pursuant to all stock options and warrants outstanding on the
date hereof.
(f) Whenever the number of Shares purchasable hereunder is adjusted as
herein provided, the Company shall cause to be mailed to the Holder in
accordance with the provisions of this Section 6 a notice (i) stating that the
number of Shares purchasable upon exercise of this Warrant have been adjusted,
(ii) setting forth the adjusted number of Shares purchasable upon the exercise
of this Warrant, and (iii) showing in reasonable detail the computations and
the facts, including the amount of consideration received or deemed to have been
received by the Company, upon which such adjustments are based.
7. Fractional Shares. The Company shall not be required to issue any
fraction of a Share upon the exercise of this Warrant or any portion hereof. if
more than one Warrant Certificate (each such Warrant Certificate representing a
portion of this Warrant) shall be surrendered for exercise at one time by the
same Holder, the number of full Shares which shall be issuable upon exercise
thereof shall be computed on the basis of the aggregate number of Shares
represented by the Warrant certificates surrendered. If any fractional interest
in a Share shall be deliverable upon the exercise of this Warrant, the Company
shall make an adjustment therefor in cash equal to such fraction multiplied by
the Current Market Price of the Shares on the business day next preceding the
day of exercise.
8. Registration Rights.
(a) (i) If the Company at any time elects or proposes to register
any of its shares of Common Stock (the "Registration Shares") under the 1933 Act
on Forms X-0, X-0, X-0, or any other Form for the registration of securities to
be sold for cash in effect at such time (a "Registration Statement") with the
Securities and Exchange Commission (the "SEC") pursuant to which shares of
Common Stock owned by any shareholder of the Company may be registered, the
Company shall give prompt written notice (the "Registration Notice") to the
Holder of its intention to register the Registration Shares.
(ii) Within 15 days after the Registration Notice shall have
been given to the Holder, the Holder may give written notice to the Company (the
"Holder Notice"), accompanied by this Warrant Certificate together with a duly
executed Purchase Form and payment of the Exercise Price for the Shares in
accordance with Section I hereof, stating the number of Shares to be registered
and any states in which the Holder wishes to register the Shares.
(iii) The Company shall use reasonable efforts to register the
Shares under the 1933 Act and the State Acts designated by the Holder in the
Holder Notice. The Company shall
have the right to withdraw and discontinue registration of the Shares at any
time prior to the effective date of such Registration Statement if the
registration of the Registration Shares is withdrawn or discontinued.
(iv) The Company shall not be required to include any of the
Shares in any Registration Statement unless the Holder agrees, if so requested
by the Company, to: (A) offer and sell the Holder Shares to or through an
underwriter selected by the Company and, to the extent possible, on
substantially the same terms and conditions under which the Registration Shares
are to be offered and sold; (B) comply with any arrangements, terms and
conditions with respect to the offer and sale of the Shares to which the Company
may be required to agree; and (C) enter into any underwriting agreement
containing customary terms and conditions, including provisions for the
indemnification of the underwriters.
(b) If the offering of the Registration Shares by the Company is, in
whole or in part, an underwritten public offering, and if the managing
underwriter determines and advises the Company in writing that the inclusion in
such Registration Statement of all of the Shares, together with the shares of
other persons who have exercised their right to include their shares in the
Registration Statement (collectively referred to as the "Aggregate Shares"),
would adversely affect the marketability of the offering of the Registration
Shares, then the Holder and such other holders shall be entitled to register the
portion of such number of Aggregate Shares as the managing underwriter
determines may be included without such adverse effects (collectively,
"Aggregate Underwriter Shares"), subject to the terms, exceptions and conditions
of this Section 8. The number of Aggregate Underwriter Shares which the Holder
shall be entitled to register shall be equal to the number of Aggregate
Underwriter Shares multiplied by a fraction, the numerator of which is the
number of Shares and the denominator of which is the number of Aggregate Shares.
(c) The Company shall bear all costs and expenses of registration of
the Registration Shares; provided, however, that the Holder shall bear all costs
and expenses directly related to registration of the Shares.
(d) It shall be a condition precedent to the Company's obligation to
register any Shares pursuant to this Section 8 that the Holder shall provide the
Company with all information and documents, and shall execute, acknowledge, seal
and deliver all documents reasonably necessary, to enable the Company to comply
with the 1933 Act, the State Acts, and all applicable laws, rules and
regulations of the SEC or of any state securities law authorities.
(e) The Holder shall indemnity and hold harmless the Company, each of
its directors and officers who have signed the Registration Statement, each
person, if any, who is a controlling person of the Company and any underwriter
and its controlling persons, if any, from and against any and all losses,
claims, damages, expenses or liabilities (including amounts paid in settlement
and reasonable attorneys' fees) (the "Liabilities"), joint or several, to which
they or any of them may become subject under the 1933 Act, under any State Act
or at common law or otherwise insofar as the Liabilities arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or prospectus (as from time to time
amended or supplemented) or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, which
statement or omission was made in reliance upon and in conformity with
information furnished to the Company by the Holder in connection therewith.
9. Loss and Destruction. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant
Certificate and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement or bond satisfactory in form, substance and
amount to the Company or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant Certificate, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant Certificate of like tenor.
10. Survival. The various rights and obligations of the Holder hereof as
set forth herein shall survive the exercise of this Warrant at any time or from
time to time and the surrender of this Warrant Certificate.
11. Notices. Whenever any notice, payment of any purchase price or other
communication is required to be given or delivered under the terms of this
Warrant, it shall be in writing and delivered by hand delivery or registered or
certified United States mail, postage prepaid, and will be deemed to have been
given or delivered on the date such notice, purchase price or other
communication is so delivered or posted, as the case may be, and, if to the
Company, it will be addressed to the address specified in Section 1 hereof, and
if to the Holder, it will be addressed to the registered Holder at his address
as it appears on the books of the Company.
HYDROGIENE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Title: President & CEO
-------------------------
Date: 25 August 1998
--------------------------
[CORPORATE SEAL]
ATTEST:
By: /s/ Xxxxxxx Xxxxxx,
--------------------------------
Xxxxxxx Xxxxxx, Secretary
