THIS WARRANT AND THE COMMON STOCK FOR WHICH IT MAY BE EXERCISED HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN OBTAINED FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTIONS THEREOF, AND
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES OR THE COMPANY
RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
XXXXXX RESOURCES, INC.
CLASS "D" COMMON STOCK PURCHASE WARRANT
In consideration of good and valuable consideration, the receipt of which
is hereby acknowledged by Xxxxxx Resources, Inc., (the "Company"),
____________________ (the "Holder") is hereby granted the right to purchase at
any time from the date hereof until 5:00 P.M., New York City time, on December
31, 2000 (the "Expiration Date"), ______________ , fully paid and nonassessable
shares of the Company's Common Stock, par value $.001 per share (the "Common
Stock").
This Warrant is exercisable at the Exercise Price (as hereinafter defined)
per share of Common Stock issuable hereunder, payable in cash or by certified or
official bank check. Upon surrender of this Warrant with the annexed
Subscription Form duly executed, together with payment of the Exercise Price for
the shares of Common Stock purchased, at the Company's principal executive
offices presently located at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, the Holder of this Warrant shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased.
1. Exercise of Warrant.
The purchase rights represented by this Warrant are exercisable at the
option of the Holder hereof, in whole or in part (but not as to fractional
shares of Common Stock), during the period in which this Warrant may be
exercised as set forth above. In the case of the purchase of less than all the
shares of Common Stock purchasable under this Warrant, the Company shall cancel
this Warrant upon the surrender hereof and shall execute and deliver a new
Warrant of like tenor for the balance of the shares of Common Stock purchasable
hereunder.
2. Issuance of Stock Certificate.
The issuance of certificates for shares of Common Stock upon the exercise
of this Warrant shall be made without charge to the Holder hereof including,
without limitation, any tax that may be payable in respect thereof, and such
certificates shall (subject to the provisions of Section 3 hereof) be issued in
the name of, or in such names as may be directed by, the Holder hereof;
provided, however, that the Company shall not be required to pay any income tax
to which the Holder hereof may be subject in connection with the issuance of
this Warrant or of shares of Common Stock upon the exercise of this Warrant; and
provided further, 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 delivery of
any such certificate in a name other than that of the Holder and the Company
shall not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance 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.
3. Restrictions on Transfer.
3.1 Restrictions on Transfer. The Holder of this Warrant, by acceptance
hereof, agrees that, absent an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), covering the disposition of the
Warrant or Common Stock issued or issuable upon exercise hereof (the "Warrant
Shares"), such Holder will not sell or transfer any or all of such Warrant or
Warrant Shares, as the case may be, without first providing the Company with an
opinion of counsel (which may be counsel for the Company) to the effect that
such sale or transfer will be exempt from the registration and prospectus
delivery requirements of the Act. Such Holder consents to the Company making a
notation on its records giving instructions to any transfer agent of the Warrant
or Warrant Shares in order to implement such restrictions on transferability.
3.2 Transfer Restrictions Legend. Each certificate representing Warrant
Shares, unless at the time of exercise such Warrant Shares are registered under
the Act, shall bear a legend in substantially the following form on the face
thereof:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE TRANSFERRED OR RESOLD WITHOUT REGISTRATION UNDER THE ACT, UNLESS
IN THE OPINION OF COUNSEL TO THE ISSUER AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a distribution under a registration statement covering the securities
represented thereby) shall also bear such legend unless, in the opinion of
counsel to the Company, the securities represented thereby may be transferred as
contemplated by such Holder without violation of the registration requirements
of the Act.
4. Exercise Price and Redemption.
4.1 Initial and Adjusted Exercise Prices. The initial exercise price shall
be $10.00 per share of Common Stock from the date hereof through June 30, l998,
$15.00 per share from July 1, l998 to September 30, 2000 and $20.00 per share
from October 1, 2000 to December 31, 2000. The adjusted exercise price shall be
the price that shall result from time to time from any and all adjustments of
the initial exercise price in accordance with the provisions of Section 6
hereof.
4.2 Exercise Price. The term "Exercise Price" herein shall mean the initial
exercise price or the adjusted exercise price depending upon the context.
4.3 Redemption. The Warrants shall be redeemable in whole or in part at the
option of the Company at a price of $0.25 per Warrant until the Expiration Date
upon notice to the Warrant Holder at any time on or after January 1, 1996 upon
satisfaction of the following conditions:
(a) The Company's Common Stock shall be listed on the NASDAQ system or a
national or regional securities exchange, and shall have an average daily
trading volume for the ninety (90) trading days prior to the Notice of
Redemption of at least one thousand (1,000) shares;
(b) The average bid price for the Company's Common Stock for the ninety
(90) trading days prior to the Notice of Redemption (calculated by summing the
daily average bid prices and dividing by ninety (90) shall have been at least
133% of the Exercise Price at the date of the Notice of Redemption;
(c) The average bid price for the Company's Common Stock for the five (5)
trading days prior to the Notice of Redemption (calculated by summing the five
(5) daily average bid prices and dividing by five (5)) shall have been at least
125% of the Exercise Price at the date of the Notice of Redemption; and
(d) The Company shall provide the Warrant Holders with an Officer's
Certificate certifying that all of the foregoing conditions have been satisfied.
Partial redemption shall be made pro rata to all of the Warrants then
outstanding, in proportion to the amount of Warrants held by each such Holder.
Upon any redemption, the Holder shall deliver his Warrant to the Company for
notation of partial redemption or cancellation if Redemption is made in full;
such delivery shall be made no later than the date fixed for Redemption in the
Company's notice thereof. Upon the close of business on such Redemption Date,
the conversion privilege of the Warrant shall terminate to the extent of the
redemption. If the Holder shall fail to deliver his Warrant to the Company upon
Redemption, the Company may escrow sufficient funds to make the Redemption,
whereupon all rights of the Holder with respect to the portion of this Warrant
so redeemed, other than the right to receive the Redemption Price, shall
terminate.
Notice of Redemption shall be given by registered first-class mail, postage
prepaid, mailed at least sixty (60) days before the Redemption Date to the
Holder of this Warrant at his address appearing on the records of the Company.
The Notice of Redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become due and
payable,
(4) the Exercise Price, the date on which the right to Exercise the Warrant
will terminate and the place where the Warrant may be surrendered for Exercise,
and
(5) the place where the Warrant is to be surrendered for payment of the
Redemption Price.
ii
From and after any Redemption Date, this Warrant shall expire and the only
right of the Holder of this Warrant called for Redemption shall be payment of
the Redemption Price in full.
5. Registration Rights.
5.1 Warrant and Warrants Shares. The term "Warrants", as used herein, shall
mean this Warrant taken together (if the original Warrant of this issue has been
subdivided, exercised in part or transferred) with all other purchase warrants
of like tenor hereto (differing, however, as to date, identity of holders and
number of shares purchasable thereunder, and as to matters resulting from events
subsequent to the date of issue hereof) outstanding at any time from the date
hereof to the Expiration Date.
5.2 Incidental Registration. If at any time the Company proposes to
register any of its securities under the Act on a registration form usable for
resales generally (other than a registration statement on Form S-8 or other form
similar thereto relating to employee benefit plans hereinafter adopted by the
Securities and Exchange Commission), it will give written notice, at least
thirty (30) days prior to the filing of any such registration statement, to the
Holder of this Warrant and to all other holders of Warrants and/or Warrant
Shares of its intention to do so. If 51% of the outstanding holders of Warrant
and/or Warrant Shares notify the Company within twenty (20) days after receipt
of any such notice of their desire to include their Warrant Shares, in whole or
in part, in such proposed registration statement, the Company shall use its best
efforts to afford such holders the opportunity to have their Warrant Shares
registered under such registration statement. Notwithstanding the foregoing, the
Company shall not be required to include any Warrants and/or Warrant Shares in
any registration statement relating to an underwritten public offering.
Notwithstanding the provisions of this Section 5.2, the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 5.2 (irrespective of whether a written request for inclusion of Warrant
Shares shall have been made) to elect not to file any such proposed registration
statement, or to withdraw the same after the filing thereof. In addition, if
such registration statement relates to an underwritten public offering and the
number of shares to be offered is reduced by the underwriter(s) subsequent to
the initial filing thereof with the Securities and Exchange Commission, the
number of Warrant Shares to be registered under such registration statement will
be reduced Pro rata.
5.3 Covenants of the Company with Respect to Registration. In connection
with any registration under Section 5.2 hereof, the Company covenants and agrees
as follows:
(a) The Company shall use its best efforts within 24 months of the date of
issuance of this Warrant to have a registration statement declared effective at
the earliest possible time, and shall furnish such number of prospectuses to the
holders as shall reasonably be requested.
(b) The Company shall pay all costs, fees and expenses in connection with
all registration statements under Sections 5.2 hereof including, without
limitation, the Company's legal and accounting fees, printing expenses and blue
sky fees and expenses, except that the Company shall not pay for (i)
underwriting discounts and commissions, (ii) state transfer taxes, (iii)
brokerage commissions and (iv) fees and expenses of counsel and accountants for
the holders of the Warrants and/or Warrant Shares.
(c) The Company will take all necessary action that may be required in
seeking to register or qualify the Warrant Shares included in a registration
statement for offering and sale under the securities or blue sky laws of such
states as are reasonably requested by the holders of the Warrant Shares,
provided that the Company shall not be obligated to execute or file any general
consent to service of process or to qualify as a foreign corporation to do
business under the laws of any such jurisdiction.
(d) The Company shall indemnify the holders of Warrant Shares included in
any registration statement and each person, if any, who controls any such Holder
within the meaning of Section 15 of the Act or Section 20(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim,
damage, expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Act, the Exchange Act or otherwise, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact in such registration statement or any related prospectus, offering
circular, notification or other document furnished or authorized by the Company,
or any omission or alleged omission of any material fact required to be stated
therein or necessary to make the statements therein not misleading, unless such
actual or alleged statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Holder specifically for use in connection with the preparation of such
registration statement, prospectus, offering circular, notification or other
document.
(e) Each Holder of the Warrants and/or Warrant Shares for whose benefit
shares are included in any registration statement shall indemnify such other
holders, the Company, its officers and directors and each person, if any, who
controls any such other Holder or the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage, expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
iii
they may become subject under the Act, the Exchange Act or otherwise, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact in such registration statement or any related prospectus, offering
circular, notification or other document furnished or authorized by the Company,
or any omission or alleged omission of any material fact required to be stated
therein or necessary to make the statements therein not misleading, but only if
such actual or alleged statement or omission was made in reliance upon and in
conformity with information furnished by or on behalf of such Holder for
specific inclusion in such registration statement, prospectus, offering
circular, notification or other document.
6. Adjustments of Exercise Price and Number of Shares.
6.1 Computation of Adjusted Exercise Price. Except as hereinafter provided,
in case the Company shall at any time after the date hereof issue or sell any
shares of Common Stock (other than the issuances or sales referred to in Section
6.6 hereof or the issuance or sale of any shares of Common Stock resulting from
the exercise or conversion of any of the Company's securities outstanding as of
November 30, l995), including shares held in the Company's treasury, for a
consideration per share less than the Company's book value per share determined
as of the Company's most recent audited Balance Sheet or without consideration,
then forthwith upon such issuance or sale the Exercise Price shall (until
another such issuance or sale) be reduced to a price (calculated to the nearest
full cent) determined by dividing (A) an amount equal to the sum of (X) the
total number of shares of Common Stock outstanding (including shares deemed to
be outstanding pursuant to subparagraph (e) below) immediately prior to such
issuance or sale, multiplied by the Exercise Price in effect immediately prior
to such issuance or sale, plus (Y) the aggregate of the amount of all
consideration, if any, received by the Company upon such issuance or sale, by
(B) the total number of shares of Common Stock outstanding (including shares
deemed to be outstanding pursuant to subparagraph (e) below) immediately after
such issuance or sale; provided, however, that in no event shall the Exercise
Price be adjusted pursuant to this computation to an amount in excess of the
Exercise Price in effect immediately prior to such computation, except in the
case of a combination of outstanding shares of Common Stock provided for in
Section 6.3 hereof.
For the purposes of any adjustment to be made in accordance with this
Section 6.1, the following provisions shall be applicable:
(a) In case of the issuance or sale of shares of Common Stock (or of other
securities deemed hereunder to involve the issuance or sale of shares of Common
Stock) for a consideration part or all of which shall be cash, the amount of the
cash portion of the consideration therefor deemed to have been received by the
Company shall be (i) the subscription price, if shares of Common Stock are
offered by the Company for subscription, or (ii) the public offering price
(after deducting therefrom any compensation paid or discount allowed in the
sale, underwriting or purchase thereof by underwriters or dealers or others
performing similar services, but before deducting any other expenses incurred in
connection therewith), if such securities are sold to underwriters or dealers
for public offering without a subscription offering, or (iii) the net amount of
cash actually received by the Company for such securities, in any other case.
(b) In case of the issuance or sale (otherwise than as a dividend or other
distribution on any stock of the Company, and otherwise than on the exercise of
options, rights or warrants or the conversion or exchange of convertible or
exchangeable securities) of shares of Common Stock (or of other securities
deemed hereunder to involve the issuance or sale of shares of Common Stock) for
a consideration part or all of which shall be other than cash, the amount of the
consideration therefor other than cash deemed to have been received by the
Company shall be the value of such consideration as determined in good faith by
the Board of Directors of the Company on the basis of a record of values of
similar property or services.
(c) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of stockholders entitled to receive such dividend or other
distribution.
(d) The reclassification of securities of the Company other than shares of
Common Stock into securities including shares of Common Stock shall be deemed to
involve the issuance of such shares of Common Stock for a consideration other
than cash immediately prior to the close of business on the date fixed for the
determination of security holders entitled to receive such shares, and the value
of the consideration allocable to such shares of Common Stock shall be
determined as provided in subsection (b) of this Section 6.1.
(e) The number of shares of Common Stock at any one time outstanding shall
be deemed to include the aggregate maximum number of shares issuable (subject to
readjustment upon the actual issuance thereof) upon the exercise of options,
rights or warrants and upon the conversion or exchange of convertible or
exchangeable securities.
6.2 Options, Rights, Warrants and Convertible and Exchangeable Securities.
In case the Company shall at any time after the date hereof issue options,
rights or warrants to subscribe for shares of Common Stock, or issue any
securities convertible into or exchangeable for shares of Common Stock, for a
consideration per share (determined as provided in Section 6.1 and as provided
below) less than the Company's book value per share determined as of the
iv
Company's most recent audited Balance Sheet or without consideration (including
the issuance of any such securities by way of dividend or other distribution),
the Exercise Price in effect immediately prior to the issuance of such options,
rights or warrants, or such convertible or exchangeable securities, as the case
may be, shall be reduced to a price determined by making the computation in
accordance with the provisions of Section 6.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock, as the case may
be, issuable or that may become issuable under such options, rights or warrants
(assuming exercise in full even if not then currently exercisable or currently
exercisable in full) shall be deemed to be issued and outstanding at the time
such options, rights or warrants were issued, for a consideration equal to the
minimum purchase price per share provided for in such options, rights or
warrants at the time of issuance, plus the consideration, if any, received by
the Company for such options, rights or warrants; provided, however, that upon
the expiration or other termination of such options, rights or warrants, if any
thereof shall not have been exercised, the number of shares of Common Stock
deemed to be issued and outstanding pursuant to this subsection (a) (and for the
purposes of subsection (e) of Section 6.1 hereof) shall be reduced by the number
of shares as to which options, warrants and/or rights shall have expired, and
such number of shares shall no longer be deemed to be issued and outstanding,
and the Exercise Price then in effect shall forthwith be readjusted and
thereafter be the price that it would have been had adjustment been made on the
basis of the issuance only of the shares actually issued plus the shares
remaining issuable upon the exercise of those options, rights or warrants as to
which the exercise rights shall not have expired or terminated unexercised.
(b) The aggregate maximum number of shares of Common Stock issuable or that
may become issuable upon conversion or exchange of any convertible or
exchangeable securities (assuming conversion or exchange in full even if not
then currently convertible or exchangeable in full) shall be deemed to be issued
and outstanding at the time of issuance of such securities, for a consideration
equal to the consideration received by the Company for such securities, plus the
minimum consideration, if any, receivable by the Company upon the conversion or
exchange thereof; provided, however, that upon the termination of the right to
convert or exchange such convertible or exchangeable securities (whether by
reason of redemption or otherwise), the number of shares of Common Stock deemed
to be issued and outstanding pursuant to this subsection (b) (and for the
purposes of subsection (e) of Section 6.1 hereof) shall be reduced by the number
of shares as to which the conversion or exchange rights shall have expired or
terminated unexercised, and such number of shares shall no longer be deemed to
be issued and outstanding, and the Exercise Price then in effect shall forthwith
be readjusted and thereafter be the price that it would have been had adjustment
been made on the basis of the issuance only of the shares actually issued plus
the shares remaining issuable upon conversion or exchange of those convertible
or exchangeable securities as to which the conversion or exchange rights shall
not have expired or terminated unexercised.
(c) If any change shall occur in the price per share provided for in any of
the options, rights or warrants referred to in subsection (a) of this Section
6.2, or in the price per share or ratio at which the securities referred to in
subsection (b) of this Section 6.2 are convertible or exchangeable, such
options, rights or warrants or conversion or exchange rights, as the case may
be, to the extent not theretofore exercised, shall be deemed to have expired or
terminated on the date when such price change became effective in respect of
shares not theretofore issued pursuant to the exercise or conversion or exchange
thereof, and the Company shall be deemed to have issued upon such date new
options, rights or warrants or convertible or exchangeable securities.
6.3 Subdivision and Combination of Common Stock. In case the Company shall
at any time subdivide (by any stock split, stock dividend or otherwise) or
combine (by any reverse stock split or otherwise) the outstanding shares of
Common Stock, the Exercise Price shall forthwith be proportionately decreased in
the case of subdivision or increased in the case of combination.
6.4 Adjustment in Number of Shares. Upon each adjustment of the Exercise
Price pursuant to the provisions of this Section 6, the aggregate number of
shares of Common Stock issuable upon the exercise of this Warrant (and of all
the Warrants) shall be obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
issuable upon exercise of this Warrant (and of all the Warrants) immediately
prior to such adjustment and dividing the product so obtained by the adjusted
Exercise Price.
6.5 Reclassification, Consolidation, Merger, etc. In case of any
consolidation or merger of the Company with or into another entity, or the sale
of all or substantially all of its assets to another entity shall be effected,
or in case of any capital reorganization or reclassification of the Common Stock
of the Company, then, as a condition of such consolidation, merger or sale,
reorganization or reclassification of the Common Stock of the Company, lawful
and adequate provision shall be made whereby the Warrant Holder shall thereafter
have the right to receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock of the Company
immediately theretofore receivable upon the exercise of the Warrants, such
shares of stock, or of securities, interests or assets (other than cash) as may
be issued or payable with respect to or in exchange for a number of outstanding
shares of Common Stock equal to the number of shares of Common Stock immediately
theretofore so receivable by the Warrant Holder had such consolidation, merger,
sale, reorganization or reclassification not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
the Warrant Holder to the end that the provisions hereof (including without
limitation provisions for adjustment of the Exercise Price) shall thereafter be
applicable, as nearly as may be in relation to any shares of stock, securities,
interests or assets thereafter deliverable upon the exercise of such Exercise
rights.
v
6.6 No Adjustment of Exercise Price in Certain Cases. No adjustment of the
Exercise Price shall be made:
(a) Upon the issuance or sale of this Warrant or, of any Warrant Shares;
(b) Upon the issuance or sale of shares of Common Stock upon the exercise
of options, rights or warrants, or upon the conversion or exchange of
convertible or exchangeable securities, in any case (i) where the purchase price
was adjusted at the time of issuance of such options, rights or warrants, or
convertible or exchangeable securities, as contemplated by Section 6.2 hereof or
(ii) where such options, rights, warrants or convertible or exchangeable
securities were outstanding prior to the date hereof;
(c) Upon the issuance or sale of shares of Common Stock resulting from the
exercise or conversion of any of the Company's securities outstanding as of
November 30, l995; or
(d) If the amount of said adjustment shall be less than one cent ($.01) per
share, provided, however, that in such case any adjustment that would otherwise
be required then to be made shall be carried forward and shall be made at the
time of and together with the next subsequent adjustment that, together with any
adjustment so carried forward, shall amount to at least one cent ($.01) per
share.
7. Exchange and Replacement of Warrant.
This Warrant is exchangeable without expense, upon the surrender hereof by
the registered Holder at the principal executive office of the Company, for a
new Warrant or Warrants of like tenor and date representing in the aggregate the
right to purchase the same number of shares as are purchasable hereunder in such
denominations as shall be designated by the registered Holder hereof at the time
of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, upon receipt of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of this Warrant, if
mutilated, the Company will make and deliver a new Warrant of like tenor, in
lieu of this Warrant.
8. Elimination of Fractional Interests.
The Company shall not be required upon the exercise of this Warrant to
issue stock certificates representing fractions of shares of Common Stock, but
shall instead pay in cash, in lieu of any fractional share of Common Stock to
which such Holder would be entitled if such fractional share were issuable, in
an amount equal to the fair market value of a share of Common Stock as of the
date of such exercise.
9. Reservation of Shares.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of this Warrant, such number of shares of Common Stock as shall be
issuable upon the exercise hereof. The Company covenants and agrees that, upon
exercise of this Warrant and payment of the Exercise Price therefor, all shares
of Common Stock issuable upon such exercise shall be duly and validly issued,
fully paid and nonassessable.
10. Notices to Holders.
Nothing contained in this warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors or any other matter/ or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the expiration of
this Warrant and prior to its exercise, any of the following events shall occur:
(a) The Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or distribution in
cash or otherwise;
(b) The Company shall offer to the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any right to
subscribe for or purchase the same;
(c) A dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business as an entirety shall be proposed to be
voted upon by the stockholders of the Company; or
vi
(d) A merger or consolidation of the Company with or into any other company
shall be proposed to be voted upon by the stockholders of the Company;
then, in any one or more of said events, the Company shall give written notice
of such event to the Holder of this warrant at least fifteen (15) days prior to
the date fixed as a record date or the date of closing the transfer books for
the determination of the stockholders entitled to such dividend, distribution,
additional shares, convertible or exchangeable securities or subscription or
purchase rights, or entitled to vote on such proposed dissolution, liquidation,
winding up, sale, merger or consolidation. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. Failure to
give such notice or any defect therein shall not affect the validity of any
action taken in connection with the declaration or payment of any such dividend
or distribution, or the issuance of any shares of capital stock or convertible
or exchangeable securities or subscription or purchase rights, or any proposed
dissolution, liquidation, winding up, sale, merger or consolidation.
11. Notices.
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made when delivered, or mailed
by registered or certified mail, return receipt requested:
(a) If to the registered Holder of this Warrant, to the address of such
Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the first page of this
Warrant;
or at such other address as the registered Holder or the Company may hereafter
have advised the other.
12. Successors.
All the covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
13. Headings.
The Section headings in this Warrant have been inserted for purposes of
convenience only and shall have no substantive effect.
14. Law Governing.
This Warrant is delivered in the State of New York and shall be construed
and enforced in accordance with, and governed by, the laws of the State of New
York regardless of the jurisdiction of creation or domicile of the Company or
its successors or of the Holder at any time hereof.
WITNESS the signature of the duly authorized officer of the Company.
XXXXXX RESOURCES, INC.
By: By:
--------------------------------- --------------------------------
Title: ----------------------------- Title: ----------------------------
vii
SUBSCRIPTION FORM
(To Be Executed By The Registered Holder
In Order To Exercise The Warrant)
The undersigned hereby irrevocably elects to exercise the right to purchase
____________ shares of Common Stock of Xxxxxx Resources, Inc., Inc. covered by
this Warrant according to the conditions hereof and herewith makes payment of
the Exercise Price of such shares in full.
------------------------------------
Signature
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Print Name
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Address
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City, State, Zip
Dated:
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