EXHIBIT 4.1
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
XSTREAM BEVERAGE NETWORK, INC.
FORM OF
COMMON STOCK PURCHASE WARRANT
WARRANT NO.: ____
____________, 2005
THIS CERTIFICATE certifies that ____________________, having an address
at ______________________________________, or permitted assignees is the
registered holder (the "HOLDER") of this Common Stock Purchase Warrant (the
"WARRANT") to purchase shares of the common stock, $0.001 par value per share
(the "COMMON STOCK"), of XStream Beverage Network, Inc., a corporation duly
organized and validly existing under the laws of the State of Nevada (the
"COMPANY"). This Warrant has been issued to the Holder in connection with the
private placement of securities offered pursuant to offering documents,
including a copy of the Company Form 10-KSB filed with the Securities and
Exchange Commission on April 14, 2005, subscription agreement, confidential
prospective purchaser questionnaire and convertible note (collectively the
"OFFERING DOCUMENTS"), the Company is offering ("PRIVATE OFFERING") a minimum of
30 units and a maximum of 40 units, each unit consisting of: (i) a $100,000 12%
convertible promissory note ("Notes"); (ii) 100,000 Warrants; and (iii) 10,000
shares of the Company's Common Stock.
FOR VALUE RECEIVED, the Company hereby certifies that the Holder is
entitled to purchase from the Company ____________ duly authorized, validly
issued, fully paid and nonassessable shares of Common Stock (the "WARRANT
SHARES") at a purchase price per share equal to $1.50 (the "WARRANT PRICE"), and
subject to the terms, conditions and adjustments set forth below in this Warrant
and in the Offering Documents. The person or entity in whose name this Warrant
is registered on the records of the Company regarding registration and transfers
of this Warrant (the "WARRANT REGISTER") is the owner and holder thereof for all
purposes, except as described in Section 8 hereof.
1. Vesting of Warrant. This Warrant shall vest and become exercisable
immediately on the date hereof.
2. Expiration of Warrant. This Warrant shall expire at 5:00 p.m., New
York local time, on _________, 2010, which is the fifth anniversary date of the
Closing (the "EXPIRATION DATE").
3. Exercise of Warrant. This Warrant shall be exercisable pursuant to
the terms of Section 1 and this Section 3 hereof.
3.1 Manner of Exercise. This Warrant may only be exercised by the
Holder hereof, in accordance with the terms and conditions hereof, in whole or
in part with respect to any portion of this Warrant, into shares of Common
Stock, during normal business hours on any day other than a Saturday or a Sunday
or a day on which commercial banking institutions in New York, New York are
authorized by law to be closed (a "BUSINESS DAY") on or prior to the Expiration
Date with respect to such portion of this Warrant, by surrender of this Warrant
to the Company at its office maintained pursuant to Section 8.2(a) hereof,
accompanied by an exercise notice in substantially the form attached to this
Warrant as Exhibit A duly executed by or on behalf of the Holder together with
(a) or (b) below:
(a) the payment of the Warrant Price in cash; or
(b) (i) In the event that a registration statement covering the
resale of the shares of Common Stock underlying this Warrant has not been
declared effective within one year from the date of this Warrant, the Holder
may, at its option, elect to exercise this Warrant, in whole or in part and at
any time or from time to time, on a cashless basis, by surrendering this
Warrant, with the purchase form attached to this Warrant as Exhibit A duly
executed by or on behalf of the Holder, at the principal office of the Company,
or at such other office or agency as the Company may designate, by canceling a
portion of this Warrant in payment of the Warrant Price payable in respect of
the number of Warrant Shares purchased upon such exercise. In the event of an
exercise pursuant to this subsection 3.1(b), the number of Warrant Shares issued
to the Holder shall be determined according to the following formula:
X = Y(A-B)
A
Where: X = the number of Warrant Shares that shall be issued to
the Holder;
Y = the number of Warrant Shares for which this Warrant
is being exercised (which shall include both the
number of Warrant Shares issued to the Holder and
the number of Warrant Shares subject to the portion
of the Warrant being cancelled in payment of the
Warrant Price);
A = the Fair Market Value (as defined below) of one
share of Common Stock; and
B = the Warrant Price then in effect.
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(ii) The Fair Market Value per share of Common Stock shall be
determined as follows:
(1) If the Common Stock is listed on a national
securities exchange, the Nasdaq National Market, the OTC Bulletin Board or
another nationally recognized trading system as of the Exercise Date, as defined
below, the Fair Market Value per share of Common Stock shall be deemed to be the
average of the high and low reported sale prices per share of Common Stock
thereon on the trading day immediately preceding the Exercise Date, as defined
below, (provided that if the Common Stock is not so listed on such day, the Fair
Market Value per share of Common Stock shall be determined pursuant to clause
(2) below).
(2) If the Common Stock is not listed on a national
securities exchange, the Nasdaq National Market, the OTC Bulletin Board or
another nationally recognized trading system as of the Exercise Date, as defined
below, the Fair Market Value per share of Common Stock shall be deemed to be the
amount most recently determined by the Board of Directors of the Company or an
authorized committee of the Board of Directors of the Company (the "BOARD") to
represent the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement with employees of
the Company); and, upon request of the Holder, the Board (or a representative
thereof) shall, as promptly as reasonably practicable but in any event not later
than 15 days after such request, notify the Holder of the Fair Market Value per
share of Common Stock. Notwithstanding the foregoing, if the Board has not made
such a determination within the three-month period prior to the Exercise Date,
as defined below, then (A) the Board shall make, and shall provide or cause to
be provided to the Holder notice of, a determination of the Fair Market Value
per share of the Common Stock within 15 days of a request by the Holder that it
do so, and (B) the exercise of this Warrant pursuant to this subsection 3.1(b)
shall be delayed until such determination is made and notice thereof is provided
to the Holder.
3.2 When Exercise Effective. Each exercise of this Warrant shall
be deemed to have been effected immediately prior to the close of business on
the Business Day on which this Warrant shall have been surrendered to the
Company as provided in Section 3.1 hereof ("EXERCISE DATE"), and, at such time,
the corporation, association, partnership, organization, business, individual,
government or political subdivision thereof or a governmental agency (a "PERSON"
or the "PERSONS") in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon exercise as provided herein shall
be deemed to have become the holder or holders of record thereof.
3.3 Delivery of Stock Certificates. As soon as practicable after
each exercise of this Warrant, in whole or in part, and in any event within five
(5) Business Days thereafter, the Company at its expense (including the payment
by it of any applicable issue taxes) will cause to be issued in the name of and
delivered to the Holder hereof or, subject to Section 8 hereof, as the Holder
(upon payment by the Holder of any applicable transfer taxes) may direct:
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(a) a certificate or certificates (with appropriate restrictive
legends, as applicable) for the number of duly authorized, validly issued, fully
paid and nonassessable shares of Common Stock to which the Holder shall be
entitled upon exercise plus, in lieu of any fractional share to which the Holder
would otherwise be entitled, all issuances of Common Stock shall be rounded up
to the nearest whole share.
(b) in case exercise is in part only, a new Warrant of like tenor,
dated the date hereof and calling in the aggregate on the face thereof for the
number of shares of Common Stock equal to the number of shares called for on the
face of this Warrant minus the number of shares designated by the Holder upon
exercise as provided in Section 3.1 hereof (without giving effect to any
adjustment thereof).
3.4 Shares to be Fully Paid; Reservation of Shares. The Company
covenants and agrees that all shares of Common Stock which may be issued upon
the exercise of rights presented by this Warrant will, upon issuance by the
Company, be validly issued, fully paid and nonassessable, and free from
preemptive rights and free from all taxes, liens and charges with respect
thereto. The Company further covenants and agrees that, from and after the date
of issuance of the Warrant and during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized, and reserve, free from preemptive rights, out of its authorized but
unissued shares of Common Stock, solely for the purpose of effecting the
exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant.
3.5 Company to Reaffirm Obligations. The Company will, at the time
of each exercise of this Warrant, upon the written request of the Holder hereof,
acknowledge in writing its continuing obligation to afford to the Holder all
rights (including without limitation any rights to registration of the shares of
Common Stock issued upon exercise) to which the Holder shall continue to be
entitled after exercise in accordance with the terms of this Warrant; provided,
however, that if the Holder shall fail to make a request, the failure shall not
affect the continuing obligation of the Company to afford the rights to such
Holder.
4. Anti-dilution Adjustment.
4.1 Stock Dividends, Stock Splits, Etc. If the Company declares or
pays a dividend on its Common Stock payable in Common Stock or other securities,
or subdivides the outstanding Common Stock into a greater amount of Common
Stock, then upon exercise of this Warrant, for each Warrant Share acquired,
Holder shall receive, without cost to Holder, the total number and kind of
securities to which Holder would have been entitled had Holder owned the Warrant
Shares of record as of the date the dividend or subdivision occurred.
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4.2 Reclassifications, Exchange or Substitution. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise of
this Warrant, Holder shall be entitled to receive, upon exercise of this
Warrant, the number and kind of securities and property that Holder would have
received for the Warrant Shares if this Warrant had been exercised immediately
before such reclassification, exchange, substitution, or other event. The
Company or its successor shall promptly issue to Holder a new Warrant for such
new securities or other property. The new Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 4.2, including, without limitation, adjustments to
the Warrant Price and to the number of securities or property issuable upon
exercise of the new Warrant. The provisions of this Section 4.2 shall similarly
apply to successive reclassifications, exchanges, substitutions, or other
events.
4.3 Adjustments for Combinations, Etc. If the outstanding shares
of Common Stock are combined or consolidated, by reclassification or otherwise,
into a lesser number of shares, the Warrant Price shall be proportionately
increased.
4.4 Merger or Consolidation. In case of any consolidation of the
Company with, or merger of the Company into any other corporation, or in the
case of any sale or conveyance of all or substantially all of the assets of the
Company other than in connection with a plan of complete liquidation of the
Company, then as a condition of such consolidation, merger or sale or
conveyance, adequate provision will be made whereby the registered holder of the
Warrant will have the right to acquire and receive upon exercise of this Warrant
in lieu of the shares of Common Stock immediately theretofore subject to
acquisition upon the exercise of this Warrant, such shares of stock, securities
or assets as may be issued or payable with respect to or in exchange for the
number of shares of Common Stock immediately theretofore subject to acquisition
and receivable upon exercise of this Warrant had such consolidation, merger or
sale or conveyance not taken place. In any such case, the Company will make
appropriate provision to insure that the provisions of this Section 4 hereof
will thereafter be applicable as nearly as may be in relation to any shares of
stock or securities thereafter deliverable upon the exercise of this Warrant.
4.5 Adjustment of Warrant Price.
(a) Except as otherwise hereinafter provided in Section 4.6, in
the event that the Company shall, at any time prior to the first anniversary of
the date hereof, sell any shares of Common Stock for a consideration per share
less than the Warrant Price, or issue any options, rights or warrants to
purchase Common Stock or issue any securities convertible into or exchangeable
for Common Stock at an exercise or conversion price below the Warrant Price
(such lower per share Common Stock sale price and/or derivative security
exercise or conversion price below the Warrant Price being referred to as the
"LOWERED WARRANT Price"), then the Warrant Price for the exercise of all Warrant
Shares hereunder shall immediately be changed to the Lowered Warrant Price.
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(b) Except as otherwise hereinafter provided in Section 4.6, in
the event that the Company shall, at anytime after the first anniversary of the
date hereof, issue or sell any shares of Common Stock or issue any options,
rights or warrants to purchase Common Stock or issue any securities convertible
into or exchangeable for Common Stock at the Lowered Warrant Price, then the
Warrant Price shall (until another such issuance or sale) be reduced to the
price (calculated to the nearest full cent) equal to the quotient derived by
dividing (A) an amount equal to the sum of (X) the product of (a) the Warrant
Price in effect immediately prior to such issuance or sale, multiplied by (b)
the total number of shares of Common Stock outstanding immediately prior to such
issuance or sale, plus (Y) the aggregate of the amount of all consideration
received by the Company upon such issuance or sale, by (B) the total number of
shares of Common Stock outstanding immediately after such issuance or sale;
provided, however, that in no event shall the Warrant Price be adjusted pursuant
to this computation to an amount in excess of the Warrant Price in effect
immediately prior to such computation.
4.6 Exceptions. No adjustment to the Warrant Price shall be made
pursuant to Section 4.5 with respect to (i) the issuance or sale of this Warrant
or Warrant Shares, or other Warrants and Warrant Shares issued in connection
herewith, or shares of Common Stock issuable upon exercise of other options,
warrants and convertible securities outstanding as of the date hereof, or (ii)
the issuance or sale of any shares of capital stock, or the grant of options
exercisable therefore, issued or issuable after the date of this Warrant, to
directors, officers, employees, advisers and consultants of the Company or any
subsidiary pursuant to any incentive or non-qualified stock option plan or
agreement, stock purchase plan or agreement, employee stock ownership plan
(ESOP), or such other similar compensatory options, issuances, arrangements or
plans approved by the Company's Board of Directors.
4.7 Notice of Adjustments. Upon any adjustment of the terms of
this Warrant pursuant to this Section 4, then and in each such case the Company
shall promptly deliver a notice to the registered Holder of this Warrant, which
notice shall state the Warrant Price resulting from such adjustment and the
changes, if any, in the number of Warrant Shares or kind of securities or other
property purchasable at such price upon the exercise hereof, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
4.8 Adjustment in Number of Securities. Upon each adjustment of
the Warrant Price pursuant to the provisions of this Section 4, the number of
securities issuable upon the exercise of each Warrant shall be adjusted to the
nearest full amount by multiplying a number equal to the Warrant Price in effect
immediately prior to such adjustment by the number of Warrant Shares issuable
upon exercise of the Warrants immediately prior to such adjustment and dividing
the product so obtained by the adjusted Warrant Price.
4.9 No Fractional Shares. No fractional shares shall be issuable
upon exercise of this Warrant and the number of Warrant Shares to be issued
shall be rounded down to the nearest whole share.
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5. Reservation of Shares. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, free
from all taxes, liens and charges with respect to the issue thereof and not be
subject to preemptive rights or other similar rights of stockholders of the
Company, solely for the purpose of issuing the shares of Common Stock underlying
this Warrant, such number of its shares of Common Stock as shall from time to
time be sufficient to effect the issuance or exercise thereof, and if at any
time the number of authorized but unissued shares of Common Stock shall not be
sufficient to issue the Common Stock and effect the exercise of this Warrant, in
addition to such other remedies as shall be available to Holder, the Company
shall take such corporate action as may, in the opinion of its counsel, be
necessary to increase the number of authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes,
including without limitation, using its best efforts to obtain the requisite
stockholder approval necessary to increase the number of authorized shares of
the Company's Common Stock. All shares of Common Stock issuable upon exercise of
this Warrant shall be duly authorized and, when issued upon exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable and free
from preemptive rights and free from taxes, liens and charges with respect
thereto.
6. No Impairment. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant but will at all times carry out all such
terms and take all such action as may be reasonably necessary or appropriate in
order to protect the rights of the holder of this Warrant against impairment.
7. Restrictions on Transfer.
7.1 Restrictive Legends. This Warrant and each Warrant issued upon
transfer or in substitution for this Warrant pursuant to Section 7, each
certificate for Common Stock issued upon the exercise of any Warrant and each
certificate issued upon the transfer of any such Common Stock shall be
transferable only upon satisfaction of the conditions specified in this Section
7 and Section 8.4. Each of the foregoing securities shall be stamped or
otherwise imprinted with a legend reflecting the restrictions on transfer set
forth in Section 7 and Section 8.4 hereof and any restrictions required under
the Securities Act of 1933, as amended (the "ACT").
7.2 Notice of Proposed Transfer; Opinion of Counsel. Prior to any
transfer of any securities which are not registered under an effective
registration statement under the Act ("RESTRICTED SECURITIES"), the Holder will
give written notice to the Company of the Holder's intention to affect a
transfer and to comply in all other respects with this Section 7.2. Each notice
(i) shall describe the manner and circumstances of the proposed transfer, and
(ii) shall designate counsel for the Holder giving the notice. The Holder giving
notice will submit a copy thereof to the counsel designated in the notice. The
following provisions shall then apply:
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(a) If in the opinion of counsel for the Holder reasonably
satisfactory to the Company the proposed transfer may be effected without
registration of Restricted Securities under the Act (which opinion shall state
the basis of the legal conclusions reached therein), the Holder shall thereupon
be entitled to transfer the Restricted Securities in accordance with the terms
of the notice delivered by the Holder to the Company. Each certificate
representing the Restricted Securities issued upon or in connection with any
transfer shall bear the restrictive legends required by Section 9.1 hereof.
(b) If the opinion called for in (a) above is not delivered, the
Holder shall not be entitled to transfer the Restricted Securities until either
(x) receipt by the Company of a further notice from such Holder pursuant to the
foregoing provisions of this Section 7.2 and fulfillment of the provisions of
clause (a) above, or (y) such Restricted Securities have been effectively
registered under the Act.
7.3 Termination of Restrictions. The restrictions imposed by this
Section 7 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities: (a) which Restricted
Securities shall have been effectively registered under the Act, or (b) when, in
the opinions of both counsel for the Holder thereof and counsel for the Company,
such restrictions are no longer required in order to insure compliance with the
Act or Section 8 hereof. Whenever such restrictions shall cease and terminate as
to any Restricted Securities, the Holder thereof shall be entitled to receive
from the Company, without expense (other than applicable transfer taxes, if
any), new securities of like tenor not bearing the applicable legends required
by Section 7.1 hereof.
8. Ownership, Transfer and Substitution of Warrant.
8.1 Ownership of Warrant. The Company may treat the person in
whose name this Warrant is registered in the Warrant Register maintained
pursuant to Section 8.2(b) hereof as the owner and holder thereof for all
purposes, notwithstanding any notice to the contrary, except that, if and when
any Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer thereof as the owner of such Warrant for all
purposes, notwithstanding any notice to the contrary. Subject to Section 7
hereof, this Warrant, if properly assigned, may be exercised by a new holder
without a new Warrant first having been issued.
8.2 Office; Transfer and Exchange of Warrant.
(a) The Company will maintain as principal offices at 4800 N.W. 15
Avenue, Bay A, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 as the office where notices,
presentations and demands in respect of this Warrant may be made upon it until
the Company notifies the holder of this Warrant of any change of location of the
office.
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(b) The Company shall cause to be kept at its office maintained
pursuant to Section 8.2(a) hereof a Warrant Register for the registration and
transfer of this Warrant. The names and addresses of holders of this Warrant,
the transfers thereof and the names and addresses of transferees of this Warrant
shall be registered in such Warrant Register. The Person in whose name any
Warrant shall be so registered shall be deemed and treated as the owner and
holder thereof for all purposes of this Warrant, and the Company shall not be
affected by any notice or knowledge to the contrary.
(c) Upon the surrender of this Warrant, properly endorsed, for
registration of transfer or for exchange at the office of the Company maintained
pursuant to Section 8.2(a) hereof, the Company at its expense will (subject to
compliance with Section 7 hereof, if applicable) execute and deliver to or upon
the order of the Holder thereof a new Warrant of like tenor, in the name of such
holder or as such holder (upon payment by such holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face thereof for the number
of shares of Common Stock called for on the face of this Warrant so surrendered.
8.3 Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, upon delivery of indemnity reasonably satisfactory to the Company in
form and amount or, in the case of any mutilation, upon surrender of this
Warrant for cancellation at the office of the Company maintained pursuant to
Section 8.2(a) hereof, the Company at its expense will execute and deliver, in
lieu thereof, a new Warrant of like tenor and dated the date hereof.
8.4 Restrictions on Transfer. In addition to the restrictions on
transfer set forth in Section 7 hereof, neither this Warrant nor any portion of
this Warrant may be transferred without the consent of the Company.
9. No Rights or Liabilities as Stockholder. No Holder shall be entitled
to vote or receive dividends or be deemed the holder of any shares of Common
Stock or any other securities of the Company which may at any time be issuable
on the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any recapitalization, issuance of
stock, reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until this Warrant shall have been
exercised and the shares of Common Stock purchasable upon the exercise hereof
shall have become deliverable, as provided herein. The Holder will not be
entitled to share in the assets of the Company in the event of a liquidation,
dissolution or the winding up of the Company.
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10. Notices of Record Date, Etc. In case the Company shall take a
record of the holders of its Common Stock (or other stock or securities at the
time deliverable upon the exercise of this Warrant) for the purpose of entitling
or enabling them to receive any dividend or other distribution, or to receive
any right to subscribe for or purchase any shares of stock of any class or any
other securities, or to receive any other right; or of any capital
reorganization of the Company, any reclassification of the capital stock of the
Company, any consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
surviving entity), or any transfer of all or substantially all of the assets of
the Company; or of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company will mail or
cause to be mailed to the registered holder of this Warrant a notice specifying,
as the case may be: (i) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating the amount and
character of such dividend, distribution or right, or (ii) the effective date on
which such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or such other
stock or securities at the time deliverable upon the exercise of this Warrant)
shall be entitled to exchange their shares of Common Stock (or such other stock
or securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten (10) days
prior to the record date or effective date for the event specified in such
notice unless such prior notice is waived by the registered holder of this
Warrant.
11. Notices. Any notice or other communication in connection with this
Warrant shall be deemed to be given if in writing (or in the form of a
facsimile) addressed as hereinafter provided and actually delivered at said
address: (a) if to any Holder, at the registered address of such holder as set
forth in the Warrant Register kept at the office of the Company maintained
pursuant to Section 8.2(a) hereof, or (b) if to the Company, to the attention of
its Chief Financial Officer at its office maintained pursuant to Section 8.2(a)
hereof; provided, however, that the exercise of any Warrant shall be effective
in the manner provided in Section 3 hereof.
12. Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the issuance of shares of Common Stock underlying this Warrant
upon exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificate for shares of Common Stock underlying
this Warrant in a name other that of the Holder. The Holder is responsible for
all other tax liability that may arise as a result of holding or transferring
this Warrant or receiving shares of Common Stock underlying this Warrant upon
exercise hereof.
13. Warrant Agent. The Company shall serve as warrant agent under this
Warrant. Upon thirty (30) days notice to the Holder, the Company may appoint a
new warrant agent. Any corporation into which the Company or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its
corporate trust or stockholders services business shall be successor warrant
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agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
14. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Florida. The section headings in this
Warrant are for purposes of convenience only and shall not constitute a part
hereof.
IN WITNESS WHEREOF, the Company has caused this Common Stock Purchase
Warrant to be duly executed as of the date first above written.
XSTREAM BEVERAGE NETWORK, INC.
By:
-----------------------------
Name:
Title:
EXHIBIT A
PURCHASE FORM
To: Xstream Beverage Network, Inc. Dated:
------------
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ___), hereby elects to purchase (check applicable box):
_________ shares of the Common Stock of Xstream Beverage Network, Inc. covered
by such Warrant; or
the maximum number of shares of Common Stock covered by such Warrant pursuant to
the cashless exercise procedure set forth in subsection 3.1(b).
The undersigned herewith makes payment of the full Warrant Price for
such shares at the price per share provided for in such Warrant. Such payment
takes the form of (check applicable box or boxes):
$______ in lawful money of the United States; and/or
the cancellation of such portion of the attached Warrant as is exercisable for a
total of _____ Warrant Shares (using a Fair Market Value of $_____ per share for
purposes of this calculation) ; and/or
the cancellation of such number of Warrant Shares as is
necessary, in accordance with the formula set forth in subsection 3.1(b), to
exercise this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth in subsection
3.1(b).
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Print or Type Name
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(Signature must conform in all respects to name
of holder as specified on the face of Warrant)
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(Street Address)
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(City) (State) (Zip Code)
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