EXHIBIT 10.2
NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE HEREUNDER HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND AS SUCH
MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
EXCEPT PURSUANT TO A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
WARRANT OR SECURITIES, OR UNLESS SOLD IN FULL COMPLIANCE WITH RULE 144
PROMULGATED UNDER THE ACT OR UNLESS THE COMPANY SHALL RECEIVE AN OPINION FROM
COUNSEL TO HOLDER, REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH REGISTRATION IS NOT REQUIRED.
PIVX SOLUTIONS, INC.
COMMON STOCK PURCHASE WARRANT
Issued: ______, 2005
Expiration Date: Five (5) Years from Issue Date
For __________ Shares (Shares) Price per Share: $0.50
THIS CERTIFIES THAT, for value received, ___________ (the "Investor") is
entitled to purchase shares (the "Shares") of Common Stock of PivX Solutions,
Inc. (the "Company"), at the price per share noted above, (such price and such
other price as shall result, from time to time, from adjustments specified below
is referred to herein as the "Warrant Price"), subject to the provisions and
upon the terms and conditions hereinafter set forth. As used herein, the term
"Common Stock" shall mean the Company's duly authorized Common Stock, $0.001 par
value per share, and the term "Grant Date" shall mean the date set forth above.
1. TERM. Subject to the terms hereof, the purchase right represented by
this Warrant is exercisable, in whole or in part, at any time and from time to
time, until the Expiration date noted above, provided that this Warrant will
expire and be of no further force and effect upon the sale of substantially all
the assets of the Company, all of the stock of the Company, or the effective
date of a merger of the Company with another entity in which voting control of
the Company changes hands (any one of which is a "Transaction"), if not
exercised within ten (10) days of the Investor's receiving the Company's written
Notice that a Transaction is pending. Such notice will identify the Transaction
price (if determinable).
2. NUMBER OF SHARES. Subject to the terms and conditions hereinafter set
forth, the Investor is entitled to purchase up to _______ shares of Common Stock
of the Company.
Page 1 -- COMMON STOCK PURCHASE WARRANT
3. CASH EXERCISE. The purchase right represented by this Warrant may be
exercised by the Investor, in whole or in part and at any time or from time to
time during the Term at the election of the Investor, by the surrender of this
Warrant (with the notice of exercise form attached hereto as Exhibit A duly
executed) at the principal office of the Company and by the payment to the
Company, by cash, check or wire transfer, of an amount equal to the then
applicable Warrant Price per share multiplied by the number of Shares then being
purchased.
The person or persons in whose name(s) any certificate(s) representing
Shares shall be issuable upon exercise of this Warrant shall be deemed to have
become the holder(s) of record of, and shall be treated for all purposes as the
record holder(s) of, the Shares represented thereby (and such Shares shall be
deemed to have been issued) immediately prior to the close of business on the
date or dates upon which this Warrant is exercised. In the event of any exercise
of the purchase right represented by this Warrant, certificates for the Shares
so purchased shall be delivered to the Investor as soon as possible and in any
event within fifteen (15) days of receipt of such exercise and, unless this
Warrant has been fully exercised or expired, a new Warrant representing the
portion of the Shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the Investor as soon as possible and
in any event within such fifteen (15)-day period.
4. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Shares that may be
issued upon the exercise of the purchase right represented by this Warrant will,
upon issuance, be fully paid and non-assessable, and free from all taxes, liens
and charges with respect to the issuance thereof. During the period within which
the purchase right represented by this Warrant may be exercised, the Company
will at all times have authorized and reserved for the purpose of issuance upon
exercise of the purchase right evidenced by this Warrant, a sufficient number of
Shares to provide for the exercise of the purchase right represented by this
Warrant.
5. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number and kind of
securities purchasable upon the exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time upon the occurrence of certain
events as follows:
5.1 RECLASSIFICATION OR MERGER. In case of any recapitalization,
reclassification, change or conversion of Common Stock issuable upon exercise of
this Warrant (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination), the Company shall execute a new Warrant (in form and substance
satisfactory to the Investor) providing that the Investor shall have the right
to exercise such new Warrant and upon such exercise to receive, in lieu of each
share of Common Stock theretofore issuable upon exercise of this Warrant, the
kind and amount of shares of stock, other securities, money and property
receivable upon such recapitalization, reclassification or conversion. Such new
Warrant shall provide for adjustments that shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Paragraph 5. The
provisions of this subparagraph 5.1 shall similarly apply to successive
recapitalization, reclassifications and conversions.
5.2 SUBDIVISION OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Common Stock, the Warrant Price and the number of shares of Common Stock
issuable upon exercise hereof shall be proportionately adjusted such that the
aggregate exercise price of this Warrant shall at all times remain the same.
Page 2 -- COMMON STOCK PURCHASE WARRANT
5.3 STOCK DIVIDENDS. If the Company at any time while this Warrant
remains outstanding and unexpired shall pay a dividend payable in shares of
Common Stock (except any distribution specifically provided for in the foregoing
subparagraphs 5.1 and 5.2), then (i) the Warrant Price shall be adjusted, from
and after the date of determination of shareholders entitled to receive such
dividend or distribution, to that price determined by multiplying the Warrant
Price in effect immediately prior to such date of determination by a fraction
(x) the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (y) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution, and (ii) the number
of shares of Common Stock subject to this Warrant shall be proportionately
adjusted.
5.4 NO IMPAIRMENT. The Company will not, by amendment of its Articles
of Incorporation or through any reorganization, recapitalization, transfer of
assets, dissolution, issuance or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all the provisions of this Paragraph 5
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Investor, as the holder of this Warrant, against
impairment.
6. NOTICE OF ADJUSTMENTS. Whenever, while this Warrant remains outstanding
and unexpired, the Warrant Price shall be adjusted pursuant to the provisions
hereof, the Company shall within thirty (30) days of such adjustment deliver a
certificate signed by its chief financial officer to the Investor as the
registered holder hereof setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the Warrant Price after giving effect to such
adjustment.
7. FRACTIONAL SHARES. No fractional shares of Common Stock will be issued
in connection with any exercise hereunder, but in lieu of such fractional
shares, the Company shall make a cash payment therefor upon the basis of the
Warrant Price then in effect.
8. TRANSFERS. This Warrant, and all rights herein, are nontransferable
except with the consent of the Company. The Company grants its consent to a
transfer of this Warrant to the shareholders or limited partners of the Investor
in conjunction with any winding up of the affairs of the Investor.
9. RIGHTS AS SHAREHOLDER. The Investor, as the holder of the Warrant, shall
not be entitled to vote or receive dividends and shall not be deemed the holder
of Common Stock, nor shall anything contained herein be construed to confer upon
the Investor as the holder of this Warrant, any of the rights of a shareholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to a vote of shareholders at any meeting thereof, or to receive
notice of meetings, 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.
Page 3 -- COMMON STOCK PURCHASE WARRANT
10. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only if expressly set forth in an
instrument in writing signed by the Company and the Investor.
11. NOTICES. Unless otherwise provided, any notice required or permitted
herein shall be given in writing and shall be deemed effectively given upon
personal delivery or fax to the party to be notified or three (3) days after
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or such other address as
such party may designate by ten (10) days advance written notice to the other
party.
12. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets, and all of the covenants and
agreements of the Company contained herein shall inure to the benefit of the
successors and assigns of the holder hereof. The Company will, at the time of
the exercise of this Warrant, in whole or in part, upon request of the holder
hereof but at the Company's expense, acknowledge in writing its continuing
obligation to the holder hereof in respect of any rights to which the holder
hereof shall continue to be entitled after such exercise in accordance with this
Warrant; provided, that the failure of the holder hereof to make any such
request shall not affect the continuing obligation of the Company to the holder
hereof in respect of such rights.
13. LOST WARRANTS OR STOCK CERTIFICATES. The Company covenants to the
holder hereof that upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate and in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
14. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
15. GOVERNING LAW. This Warrant shall be governed by, and construed under,
the laws of the State of Nevada.
IN WITNESS WHEREOF, the Company and Investor have caused this Warrant to be
executed effective as of the date first above written.
PivX Solutions, Inc.
By:
-------------------------------------------------
Xxxxx Xxxxxxxx, CEO
By:
-------------------------------------------------
Page 4 -- COMMON STOCK PURCHASE WARRANT
EXHIBIT A
NOTICE OF EXERCISE
To: PivX Solutions, Inc.
Attn: Chief Executive Officer
Re: ATTACHED WARRANT
The undersigned hereby elects to purchase _____________ shares of Common
Stock of ______________________, pursuant to the terms of Section 3.1 of this
Warrant, and tenders herewith the warrant, and payment of the purchase price of
such shares in full.
Name:_______________________________________
Signature:__________________________________
(Print Name:)
Address:____________________________________
____________________________________
Social Security # or Tax ID:________________
Page 5 -- COMMON STOCK PURCHASE WARRANT
