EXHIBIT 4.4
FORM OF COMMON STOCK PURCHASE WARRANT
WARRANT TO PURCHASE COMMON STOCK
Date of Issuance: __________, 2004 Warrant to Purchase An Aggregate
of __________ shares of Common Stock
Price, the appropriate documentation necessary to effectuate the exercise
corporation (the "Company"), promises to issue in the name of, and sell and
deliver to ____________________ (the "Holder") a certificate or certificates for
an aggregate of __________ shares of the Company's common stock, par value $0.10
per share (the "Common Stock"), upon payment by the Holder of $1.25 per share
(the "Exercise Price"), with the Exercise Price being subject to adjustment in
the circumstances set forth below.
1. Exercise of Warrant
(A) Exercise Period. The Holder may exercise this Warrant, in
whole or in part (but not as to fractional shares), at any time and time to time
commencing on the date hereof and ending at 5:00 p.m., Eastern Time, on the
fifth (5th) anniversary of the date hereof (the "Exercise Period").
(B) Exercise Procedure.
(i) This Warrant will be deemed to have been
exercised at such time as the Company has received all of the following items
(the "Exercise Date"):
(a) a completed Exercise Agreement, in the
form attached hereto as Exhibit 1, executed by the Holder (the "Purchaser"); and
(b) a certified check or other immediately
available funds payable to the Company in an amount equal to the sum of the
product of the Exercise Price multiplied by the number of shares of Common Stock
being purchased upon such exercise.
(ii) Certificates for the shares of Common Stock
purchased upon exercise of this Warrant will be delivered by the Company to the
Purchaser within ten (10) business days after the Exercise Date. Unless this
Warrant has expired or all of the purchase rights represented hereby have been
exercised, the Company will prepare a new Warrant representing the rights
formerly represented by this Warrant that have not expired or been exercised.
The Company will, within such ten (10) day period, deliver such new Warrant to
the Holder at the address set forth in this Warrant.
(iii) The shares of Common Stock issuable upon the
exercise of this Warrant will be deemed to have been transferred to the
Purchaser on the Exercise Date, and the Purchaser will be deemed for all
purposes to have become the record holder of such Common Stock on the Exercise
Date.
(iv) The issuance of certificates for shares of
Common Stock upon the exercise of this Warrant will be made without charge to
the Purchaser for any issuance tax in respect thereof or any other cost incurred
by the Company in connection with such exercise and related transfer of the
shares; provided, however, that the Company shall not be required to pay any tax
that may be payable in respect of any transfer involved in the issuance and
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delivery of any certificate or instrument in a name other than that of the
Holder of this Warrant, and that the Company shall not be required to issue or
deliver any such certificate or instrument unless and until the person or
persons requiring 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.
(v) Unless the Company shall have registered the
shares of Common Stock underlying this Warrant, the shares of Common Stock
issuable upon the exercise of this Warrant will be "restricted securities" as
that term is defined in the Securities Act of 1933. The Company may insert the
following or similar legend on the face of the certificates evidencing shares of
Common Stock if required in compliance with state securities laws:
"These securities have not been registered under any state
securities laws and may not be sold or otherwise transferred
or disposed of except pursuant to an effective registration
statement under any applicable state securities laws, or an
opinion of counsel satisfactory to counsel to the Company that
an exemption from registration under any applicable state
securities laws is available."
(C) Fractional Shares. The Company shall not be required to
issue fractions of shares of Common Stock on the exercise of this Warrant. The
Company shall not be obligated to issue any fractional share interests or
fractional warrant interests upon the exercise of this Warrant, nor shall it be
obligated to issue scrip or pay cash in lieu of fractional interests, provided,
however, that if a holder exercises all the Warrants held of record by such
holder, the Company shall at its option (i) eliminate the fractional interests
by rounding any fraction up to the nearest whole number of shares or (ii) within
30 days after the Exercise Date, deliver to the Purchaser a check payable to the
Purchaser, in lieu of such fractional share, in an amount equal to the value of
such fractional share as determined by the closing price of the Company's Common
Stock as reported on the principal exchange on which the Company's Common Stock
is then traded, as of the close of business on the Exercise Date.
2. Effect of Reorganization, Reclassification, Consolidation, Merger or
Sale.
(A) Recapitalization or Reclassification of Common Stock. In
case the Company shall at any time prior to the satisfaction of the note
underlying this Warrant, or the Exercise of this Warrant, or the expiration of
the Exercise Period, whichever first occurs, effect a recapitalization or
reclassification of such character that its Common Stock shall be changed into
or become exchangeable for a larger or smaller number of shares, then, upon the
effective date thereof, the number of shares of Common Stock that the Holder of
this Warrant shall be entitled to purchase upon exercise hereof shall be
increased or decreased, as the case may be, in direct proportion to the increase
or decrease in such number of shares of Common Stock by reason of such
recapitalization or reclassification, and the Exercise Price of such
recapitalized or reclassified Common Stock shall, in the case of an increase in
the number of shares, be proportionately decreased and, in the case of a
decrease in the number of shares, be proportionately increased.
(B) Consolidation, Merger or Sale. In case the Company shall
at any time prior to the satisfaction of the note underlying this Warrant, or
the exercise of this Warrant, or the expiration of the Exercise Period,
whichever first occurs, consolidate or merge with any other corporation (unless
the Company shall be the surviving entity) or transfer all or substantially all
of its assets to any other corporation preparatory to a dissolution, then the
Company shall, as a condition precedent to such transaction, cause effective
provision to be made so that the Holder of this Warrant, upon the exercise
thereof after the effective date of such transaction, shall be entitled to
receive the kind and amount of shares, evidences of indebtedness, and/or other
property receivable on such transaction by a holder of the number of shares of
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Common Stock as to which the Warrant was exercisable immediately prior to such
transaction (without giving effect to any restriction upon such exercise); and,
in any such case, appropriate provision shall be made with respect to the rights
and interests of the Holder hereof to the effect that the provisions of this
Warrant shall thereafter be applicable (as nearly as may be practicable) with
respect to any shares, evidences of indebtedness, or other securities or assets
thereafter deliverable upon exercise of this Warrant.
(C) Notice of Adjustment. Whenever the number of shares of
Common Stock purchasable upon exercise of this Warrant shall be adjusted as
provided herein, the Company shall file with its corporate records a certificate
of its Chief Financial Officer setting forth the computation and the adjusted
number of shares of Common Stock purchasable hereunder resulting from such
adjustments, and a copy of such certificate shall be mailed to the Holder. Any
such certificate or letter shall be conclusive evidence as to the correctness of
the adjustment or adjustments referred to therein and shall be available for
inspection by the holders of the Warrants on any day during normal business
hours.
3. Reservation of Common Stock. The Company will at all time reserve
and keep available such number of shares of Common Stock as will be sufficient
to permit the exercise in full of this Warrant. Upon exercise of this Warrant
pursuant to its terms, the Holder will acquire fully paid and non-assessable
ownership rights of the Common Stock, free and clear of any liens, claims or
encumbrances except as otherwise provided herein.
4. No Shareholder Rights or Obligations. This Warrant will not entitle
the Holder hereof to any voting rights or other rights as a shareholder of the
Company. Until the shares of Common Stock issuable upon the exercise of this
Warrant are recorded as issued on the books and records of the Company's
transfer agent, the Holder shall not be entitled to any voting rights or other
rights as a shareholder; provided, however, the Company uses its best efforts to
ensure that, upon receipt of the Exercise Agreement and payment of the Exercise
Price, the appropriate documentation necessary to effectuate the exercise of the
Warrant and the issuance of the Common Stock is accomplished as expeditiously as
possible. No provision of this Warrant, in the absence of affirmative action by
the Holder to purchase Common Stock, and no enumeration in this Warrant of the
rights or privileges of the Holder, will give rise to any obligation of such
Holder for the Exercise Price or as a stockholder of the Company.
5. Transferability. Subject to the terms hereof, this Warrant and all
rights hereunder are transferable, in whole or in part, upon surrender of this
Warrant with a properly executed Assignment in the form of Exhibit 2 hereto at
the principal offices of the Company. This Warrant and the underlying shares of
Common Stock may not be offered, sold or transferred except in compliance with
the Act, and any applicable state securities laws, and then only against receipt
of an agreement of the person to whom such offer or sale or transfer is made to
comply with the provisions of this Warrant with respect to any resale or other
disposition of such securities; provided that no such agreement shall be
required from any person purchasing this Warrant or the underlying shares of
Common Stock pursuant to a registration statement effective under the Act. The
Holder of this Warrant agrees that, prior to the disposition of any security
purchased on the exercise hereof other than pursuant to a registration statement
then effective under the Act, or any similar statute then in effect, the Holder
shall give written notice to the Company, expressing his intention as to such
disposition. Upon receiving such notice, the Company shall present a copy
thereof to its securities counsel. If, in the sole opinion of such counsel,
which such opinion shall not be unreasonably withheld, the proposed disposition
does not require registration of such security under the Act, or any similar
statute then in effect, the Company shall, as promptly as practicable, notify
the Holder of such opinion, whereupon the Holder shall be entitled to dispose of
such security in accordance with the terms of the notice delivered by the Holder
to the Company.
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6. Miscellaneous
(A) Notices. Any notices, requests or consents hereunder shall
be deemed given, and any instruments delivered, two days after they have been
mailed by first class mail, postage prepaid, or upon receipt if delivered
personally or by facsimile transmission, as follows:
If to the Company: Newport International Group, Inc.
00-000 XxXxxxx Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Cery Perle
If to the Holder: To the address and/or facsimile of
Holder as recorded in the records
of the Company.
except that any of the foregoing may from time to time by written notice to the
other designate another address which shall thereupon become its effective
address for the purposes of this paragraph.
(B) Entire Agreement. This Warrant, including the exhibits and
documents referred to herein which are a part hereof, contain the entire
understanding of the parties hereto with respect to the subject matter and may
be amended only by a written instrument executed by the parties hereto or their
successors or assigns. Any paragraph headings contained in this Warrant are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Warrant.
(C) Governing Law. This Warrant is governed by, interpreted
under and construed in all respects in accordance with the substantive laws of
the State of Delaware, without regard to the conflicts of law provision thereof,
and irrespective of the place of domicile or resident of the party. In the event
of a controversy arising out of the interpretation, construction, performance or
breach of this Warrant, the parties hereby agree and consent to the jurisdiction
and venue of the Courts of the State of Delaware, or the United States District
Court for the District of Delaware; and further agree and consent that personal
service of process in any such action or preceding outside the State of Delaware
shall be tantamount to service in person in Delaware.
IN WITNESS WHEREOF, this Warrant has been duly executed and the
corporate seal affixed hereto, all as of the day and year first above written.
Newport International Group, Inc.
By: ________________________________
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EXHIBIT 1
EXERCISE AGREEMENT
To: _______________________ Dated: _______________________
The undersigned record Holder, pursuant to the provisions set forth in
the within Warrant, hereby subscribed for and purchases __________________shares
of Common Stock covered by such Warrant and hereby makes full cash payment of
$_________________ for such shares at the Exercise Price provided by such
Warrant.
______________________________
(Signature)
______________________________
(Print or type name)
______________________________
(Address)
NOTICE: The signature of this Exercise Agreement must correspond with
the name as written upon the face of the within Warrant, or upon the Assignment
thereof, if applicable, in every particular, without alteration, enlargement or
any change whatsoever.
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EXHIBIT 2
ASSIGNMENT
FOR VALUE RECEIVED,_________________________, the undersigned Holder
hereby sell, assigns, and transfer all of the rights of the undersigned under
the within Warrant with respect to the number of shares of Common Stock issuable
upon the exercise of such Warrant set forth below, unto the Assignee identified
below, and does hereby irrevocable constitute and appoint ____________________to
effect such transfer of rights on the books of the Company, with full power of
substitution:
Number of Shares
Name of Assignee Address of Assignee of Common Stock
---------------- ------------------- ---------------
Dated: ______________________ ______________________________
(Signature of Holder)
______________________________
(Print or type name)
NOTICE: The signature of this Exercise Agreement must correspond with
the name as written upon the face of the within Warrant, or upon the Assignment
thereof, if applicable, in every particular, without alteration, enlargement or
any change whatsoever.
CONSENT OF ASSIGNEE
-------------------
I HEREBY CONSENT to abide by the terms and conditions of the within
Warrant.
Dated: ______________________ ______________________________
(Signature of Assignee)
______________________________
(Print or type name)
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