EXHIBIT 7.3
Holder: ______________________
Number of Warrants: ___________
Date: _________________________
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THEIR EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE APPLICABLE LAWS OF ANY STATE, AND MAY NOT BE SOLD OR TRANSFERRED
UNLESS (I) SUCH SALE OR TRANSFER IS COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND AN EFFECTIVE QUALIFICATION UNDER APPLICABLE STATE
SECURITIES LAWS, (II) SUCH SALE OR TRANSFER IS MADE IN ACCORDANCE WITH RULE 144
UNDER THE ACT, OR (III) THE ISSUER RECEIVES AN OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER TO THE EFFECT THAT SUCH SALE OR TRANSFER IS EXEMPT FROM SUCH
REGISTRATION AND QUALIFICATION.
XXXXXX BEAUMONT, INC.
COMMON STOCK PURCHASE WARRANT
1. ISSUANCE; CERTAIN DEFINITIONS.
In consideration of good and valuable consideration,
the receipt of which is hereby acknowledged by XXXXXX XXXXXXXX, INC., a Nevada
corporation (the "Company"), the holder named above or its assigns (the
"Holder") is hereby granted the right to purchase the number listed above of
fully paid and nonassessable shares of the Company's Common Stock, par value
$0.001 per share (the "Common Stock"), at an initial exercise price per share
(the "Exercise Price") of sixty cents ($0.60), subject to further adjustment as
set forth herein. This Warrant is being issued pursuant to the terms of that
certain Securities Purchase Agreement, dated as of June __, 2005 (the "Purchase
Agreement"), to which the Company and Holder (or Holder's predecessor in
interest) are parties. Unless otherwise cancelled or redeemed pursuant o Section
3 below, this Warrant shall remain valid and exercisable in whole or in part
until July 1, 2007 (the "Expiration Date").
2. EXERCISE OF WARRANTS.
2.1 GENERAL. This Warrant is exercisable in whole or
in part at any time and from time to time until the Expiration Date or until
cancelled or redeemed pursuant to Section 3 below, at the Exercise Price per
share of Common Stock payable hereunder, by means of tendering this Warrant
Certificate and the Exercise Price multiplied by the number of shares being
purchased, to the Company to Common Stock. Upon surrender of this Warrant
Certificate with the annexed Notice of Exercise Form duly executed (which Notice
of Exercise Form may be submitted either by delivery to the Company or by
facsimile transmission as provided in Section 8 hereof), together with the cash
payment of the Exercise Price as provided herein for the shares of Common Stock
purchased, the Holder shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased.
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2.2 METHOD OF PAYMENT UPON WARRANT EXERCISE. The
Exercise Price shall be payable in cash.
2.3 LIMITATION ON EXERCISE. The Holder, by its
acceptance of this Warrant, further agrees that if the Holder transfers or
assigns any of the Warrant to a party who or which would not be considered such
an affiliate, such assignment shall be made subject to the transferee's or
assignee's specific agreement to be bound by the provisions of this Section 2.2
as if such transferee or assignee were the original Holder hereof.
3. REDEMPTION OF WARRANT BY THE COMPANY. Beginning thirty (30)
days after the shares underlying this Warrant have been registered with the SEC,
the Company may redeem or cancel this Warrant in its entirety, if this Warrant
has not been exercised in full by the tenth (10) business day which the
Company's shares are traded for in excess of $1.20 per share.
4. RESERVATION OF SHARES. The Company hereby agrees that at
all times during the term of this Warrant, there shall be reserved for issuance
upon exercise of this Warrant such number of shares of its Common Stock as shall
be required for issuance upon exercise of this Warrant (the "Warrant Shares").
5. MUTILATION OR LOSS OF WARRANT. Upon receipt by the Company
of evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
6. RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
7. PROTECTION AGAINST DILUTION.
7.1 ADJUSTMENT MECHANISM. If an adjustment of the
Exercise Price is required pursuant to this Section 7, the Holder shall be
entitled to purchase such number of additional shares of Common Stock as will
cause (i) the total number of shares of Common Stock Holder is entitled to
purchase pursuant to this Warrant, multiplied by (ii) the adjusted Exercise
Price per share, to equal (iii) the dollar amount of the total number of shares
of Common Stock Holder is entitled to purchase before adjustment multiplied by
the total Exercise Price before adjustment.
7.2 CAPITAL ADJUSTMENTS. In case of any stock split
or reverse stock split, stock dividend, reclassification of the Common Stock,
recapitalization, merger or consolidation, or like capital adjustment affecting
the Common Stock of the Company, the provisions of this Section 6 shall be
applied as if such capital adjustment event had occurred immediately prior to
the date of this Warrant and the original Exercise Price had been fairly
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allocated to the stock applied resulting from such capital adjustment; and in
other respects the provisions of this Section shall be in a fair, equitable and
reasonable manner so as to give effect, as nearly as may be, to the purposes
hereof. A rights offering to stockholders shall be deemed a stock dividend to
the extent of the bargain purchase element of the exercised rights.
8. TRANSFER TO COMPLY WITH THE SECURITIES ACT; REGISTRATION
RIGHTS.
8.1 TRANSFER. This Warrant has not been registered
under the Securities Act of 1933, as amended, (the "Act"), or qualified under
applicable state securities laws and has been issued to the Holder for
investment and not with a view to the distribution of either the Warrant or the
Warrant Shares. Neither this Warrant nor any of the Warrant Shares or any other
security issued or issuable upon exercise of this Warrant may be sold,
transferred, pledged or hypothecated in the absence of an effective registration
statement under the Act and qualification under applicable state securities laws
relating to such security or an opinion of counsel satisfactory to the Company
that registration is not required under the Act and qualification is not
required under applicable state securities laws. Each certificate for the
Warrant, the Warrant Shares and any other security issued or issuable upon
exercise of this Warrant shall contain a legend on the face thereof, in form and
substance satisfactory to counsel for the Company, setting forth the
restrictions on transfer contained in this Section.
8.2 REGISTRATION RIGHTS. Reference is made to the
Registration Rights Agreement (as that term is defined in the Purchase
Agreement). The Company's obligations under the Registration Rights Agreement
and the other terms and conditions thereof with respect to the Warrant Shares,
including, but not necessarily limited to, the Company's commitment to file a
registration statement including the Warrant Shares, to have the registration of
the Warrant Shares completed and effective, and to maintain such registration,
are incorporated herein by reference.
9. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage pre-paid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission, or, if mailed, two days after the date of deposit in the United
States mails, as follows:
(i) If to the Company, to:
Xxxxxx Beaumont, Inc.
0000 00xx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, CEO & Treasurer.
Telephone: (000) 000-0000
with a copy to:
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Xxxx & Xxxxx, LLP
00000 XxxXxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
(ii) If to the Holder, to the address set forth
under Holders signature block.
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
10. SUPPLEMENTS AND AMENDMENTS; WHOLE AGREEMENT. This Warrant
may be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant contains the full understanding of the parties
hereto with respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
11. GOVERNING LAW. This Warrant shall be deemed to be a
contract made under the laws of the State of Florida and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State.
Each of the parties consents to the jurisdiction of the federal courts whose
districts encompass any part of the City of Bradenton or the state courts of the
State of Florida sitting in the City of Bradenton in connection with any dispute
arising under this Warrant and hereby waives, to the maximum extent permitted by
law, any objection, including any objection based on FORUM NON CONVENIENS, to
the bringing of any such proceeding in such jurisdictions.
12. COUNTERPARTS. This Warrant may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
13. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Warrant are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
14. NO FRACTIONAL SHARES. No fractional shares of Common Stock
shall be issued upon exercise of this Warrant. In lieu of any fractional shares
to which the Holder would otherwise be entitled, the Company shall pay cash
equal to the product of such fraction multiplied by the per share Market Value
of one share of Common Stock on the date of exercise.
15. WAIVERS STRICTLY CONSTRUED. With regard to any power,
remedy or right provided herein or otherwise available to any party hereunder
(i) no waiver or extension of time shall be effective unless expressly contained
in a writing signed by the waiving party; and (ii) no alteration, modification
or impairment shall be implied by reason of any previous waiver, extension of
time, delay or omission in exercise, or other indulgence.
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16. SEVERABILITY. The validity, legality or enforceability of
the remainder of this Warrant shall not be affected even if one or more of its
provisions shall be held to be invalid, illegal or unenforceable in any respect.
17. ATTORNEYS' FEES. Should any litigation or arbitration be
commenced (including any proceedings in a bankruptcy court) between Holder and
Company or their representatives concerning any provision of this Warrant or the
rights and duties of any person or entity hereunder, the party prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the reasonable attorneys' fees and court costs incurred by reason of
such litigation.
IN WITNESS WHEREOF, the parties hereto have executed this
Warrant as of the date first written above.
XXXXXX BEAUMONT, INC.
By: ________________________________
Xxxxx Xxxxxx, CEO & Treasurer
HOLDER
Signature: _________________________
Name: ______________________________
Address: ___________________________
Telephone: _________________________
Fax: _______________________________
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NOTICE OF EXERCISE
(To be signed only upon exercise of Warrant)
Number of Shares: _____________________
Purchase Price: ________________________
To Xxxxxx Beaumont, Inc.:
The undersigned, the holder of the Warrant, hereby irrevocably elects
to exercise the purchase right represented by the Warrant Certificate dated as
of____________, ___ 2005, and to purchase thereunder, the number listed above of
shares of Common Stock of Xxxxxx Beaumont, Inc., a Nevada corporation (the
"Company") and hereby makes payment of the purchase price described above,
therefor in cash
The undersigned represents that it is acquiring such Common Stock for
its own account for investment and not with a view to or for sale in connection
with any distribution thereof (subject, however, to any requirement of law that
the disposition thereof shall at all times be within its control.)1
The undersigned agrees that it will not make any disposition of all or
any portion of the Common Stock unless and until there is then in effect a
Registration Statement under the Act covering such proposed disposition and such
disposition is made in accordance with said Registration Statement; or the
undersigned shall have notified the Company of the proposed disposition and
shall have furnished the Company with (i) a detailed statement of the
circumstances surrounding the proposed disposition, and (ii) an opinion of the
undersigned's own counsel to the effect that such disposition will not require
registration of such shares under the Act, which opinion shall have been
concurred in by counsel for the Company.
DATED: _______________________
By: ___________________________
Please issue the stock certificate to: ______________________________________
Please deliver the stock certificate to:
Address: ___________________________
___________________________
___________________________
___________________________
(1) This representation is applicable only if, on the date this subscription is
effected, the Common Stock/Preferred Stock shall not be registered under the
Securities Act of 1933, as amended.
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