Exhibit 10.2
WARRANT AGREEMENT
THE SECURITIES DESCRIBED IN THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (II) TO THE EXTENT APPLICABLE, RULE
144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION
OF SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
WARRANT AGREEMENT
MILLENIUM HOLDING GROUP, INC.,
A NEVADA CORPORATION (THE "COMPANY")
THIS IS TO CERTIFY that, for value received, Xxxx X. Xxxxx, (the "Holder")
is entitled, subject to the terms and conditions set forth herein, to purchase,
75,500 shares of common stock of the Company (the "Warrant Shares") upon
exercise at a purchase price of twenty-five cents ($0.25) per share (the
"Warrant Price").
1. TERM. Subject to the terms of this Agreement, the Holder shall have the
right, at any time during the period commencing at 9:00 a.m., Pacific Time, on
September 28, 2006 and ending at 5:00 p.m., Pacific Time, on September 27, 2008
(the "Termination Date") upon payment to the Company of the Warrant Price.
Notwithstanding anything to the contrary contained in this Warrant or
otherwise, the Holder shall not be required, although it shall have the right,
to exercise this Warrant.
2. MANNER OF EXERCISE. Payment of the aggregate Warrant Price shall be made
cash, bank or cashiers check or wire transfer. Upon the payment of all or a
portion of the Warrant Price and delivery of the Election to Purchase, a form of
which is attached hereto, the Company shall issue and cause to be delivered with
all reasonable dispatch to or upon the written order of the Holder, and in such
name or names as the Holder may designate, a certificate or certificates for the
number of full Warrant Shares so purchased upon each exercise of the Warrant.
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become a holder
of record of such securities as of the date of surrender of the Warrant (or if
less than the entire Warrant is exercised, upon the delivery of the new Warrant
described below) and payment of the Warrant Price, as aforesaid, notwithstanding
that the certificate or certificates representing such securities shall not
actually have been delivered or that the stock transfer books of the Company
shall then be closed. The Warrant shall be exercisable, at the election of each
Holder, either in full or from time to time in part and, in the event that a
1
certificate evidencing the Warrant is exercised in respect of less than all of
the Warrant Shares specified therein at any time prior to the Termination Date,
a new certificate evidencing the remaining portion of the Warrant shall be
issued by the Company to such Holder.
3. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this
Warrant shall not entitle the Holder hereof to any voting rights or other rights
as a stockholder of the Company, or to any other rights whatsoever except the
rights herein expressed, and, no dividends shall be payable or accrue in respect
of this Warrant.
4. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the
Holder to the Company for new warrants of like tenor representing in the
aggregate the right to purchase the number of securities purchasable hereunder,
each of such new warrants to represent the right to purchase such number of
securities as shall be designated by the Holder 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, of indemnity or security reasonably satisfactory to
it and reimbursement to the company of all reasonable expenses incidental
thereto, and upon surrender and cancellation hereof, if mutilated, the Company
will make and deliver a new warrant of like tenor and amount, in lieu hereof.
5. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required
to issue certificates representing fractions of securities upon the exercise of
this Warrant, nor shall it be required to issue scrip or pay cash in lieu of
fractional interests. All fractional interests shall be eliminated by rounding
any fraction up to the nearest whole number of securities, properties or rights
receivable upon exercise of this Warrant.
6. RESERVATION AND LISTING OF SECURITIES. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock or other
securities, solely for the purpose of issuance upon the exercise of this
Warrant, such number of shares of Common Stock or other securities, properties
or rights 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, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any stockholder.
7. NOTICES. Notices to be given hereunder shall be in writing and shall be
deemed to have been sufficiently given if delivered personally or sent by
overnight courier or messenger or sent by registered or certified mail (air mail
if overseas), return receipt requested, or by facsimile transmission. Notice
shall be deemed to have been received on the date of personal delivery or
facsimile transmission, or if sent by overnight courier or messenger, shall be
deemed to have been received on the next delivery day after deposit with the
courier or messenger, or if sent by certified or registered mail, return receipt
requested, shall be deemed to have been received on the third business day after
the date of mailing. The address of the Company is set forth in the Subscription
Agreement and the Company shall give written notice of any change of address to
2
the Warrantholder. The address of the Warrantholder is as set forth below and
the Warrantholder shall give written notice of any change of address to the
Company.
8. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. The Company consents to
the jurisdiction of the Xxxxx County Superior Court or the United States
District Court in Las Vegas Nevada.
9. GOVERNING LAW. This Warrant shall be governed by and construed and
interpreted in accordance with the laws of the state of Nevada applicable to
contracts made and to be performed entirely therein, without giving effect to
the rules and conflicts of law.
10. CONFORMITY WITH LAW. It is the intention of the Company and of the
Warrantholder to conform strictly to applicable usury and similar laws.
Accordingly, notwithstanding anything to the contrary in this Warrant, it is
agreed that the aggregate of all charges which constitute interest under
applicable usury and similar laws that are contract for, chargeable or
receivable under or in respect of this Warrant, shall under no circumstances
exceed the maximum amount of interest permitted by such laws, and any excess,
whether occasioned by acceleration or maturity of this Warrant or otherwise,
shall be canceled automatically, and if theretofore paid, shall be either
refunded to the Company or credited on the principal amount of this Warrant.
11. NOTICE OF RIGHT TO COUNSEL. Each of the parties has had the opportunity
to, and has had, this Agreement reviewed by their respective attorney. Each of
the parties affirms to the other that they have apprized themselves of all
relevant information giving rise to this Agreement and has consulted and
discussed with their independent advisors the provisions of this Agreement and
fully understands the legal consequences of each provision. Each party further
affirms to the other that they have not, and do not, rely upon any
representation of advice from the other or from the other parties' counsel.
12. SUCCESSORS. All the covenants and provisions of this Warrant shall be
binding upon and inure to the benefit of the Company, the Holder and their
respective legal representatives, successors and assigns. Holder may assign the
Warrant at its discretion.
13. PIGGYBACK REGISTRATION RIGHTS. If the Company at any time proposes to
register any of its securities under the Act, including under an SB-2
Registration Statement or otherwise, the Company will use its best efforts to
cause all of the shares of common stock underlying the Warrants owned by Holder
to be registered under the Act (with the securities which the Company at the
time propose to register), all to the extent requisite to permit the sale or
other disposition by the Holder; provided, however, that the Company may, as a
condition precedent to its effecting such registration, require the Holder to
agree with the Company and the managing underwriter or underwriters of the
offering to be made by the Company in connection with such registration that the
Holder will not sell any securities of the same class or convertible into the
same class as those registered by the Company (including any class into which
3
the securities registered by the Company are convertible) for such reasonable
period after such registration becomes effective as shall then be specified in
writing by such underwriter or underwriters if in the opinion of such
underwriter or underwriters the Company's offering would be materially adversely
affected in the absence of such an agreement. All expenses incurred by the
Company in complying with this Section, including without limitation all
registration and filing fees, listing fees, printing expenses, fees and
disbursements of all independent accounts, or counsel for the Company and or
counsel for the Holder and the expense of any special audits incident to or
required by any such registration and the expenses of complying with the
securities or blue sky laws of any jurisdiction shall be paid by the Company.
Notwithstanding the foregoing, Holder shall pay all underwriting discounts or
commissions with respect to any securities sold by the Holder.
(a) Indemnification.
(i) In the event of any registration of any of its securities under
the Act pursuant to this Section, the Company hereby indemnifies and holds
harmless the Holder (which phrase shall include any underwriters of such
securities), their respective directors and officers, and each other person
who participates, in the offering of such securities and each other person,
if any, who controls the Holder, or such participating persons within the
meaning of the Act, against any losses, claims, damages or liabilities,
joint or several, to which each the Holder or any such director or officer
or participating person or controlling person may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained, on
the effective date thereof, in any registration statement under which such
securities were registered under the Act, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto,
or arise out of or are based upon any omission or alleged omission to state
therein an material fact required to be stated therein or necessary to make
the statements therein not misleading; and will reimburse each the Holder
and each director, officer or participating or controlling person for any
legal or any other expenses reasonably incurred by the Holder or such
director, officer or participating or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement,
preliminary prospectus or prospectus or amendment or supplement in reliance
upon and in conformity with written information furnished to the Company
through an instrument duly executed by the Holder specifically stating that
it is for use therein. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holder or such
directors, officer or participating or controlling person, and shall
survive the transfer of such securities by the Holder.
4
(ii) The Holder shall by acceptance thereof, indemnify and hold
harmless the Company and its directors and officers, and each person, if
any who controls the Company, against any losses, claims, damages or
liabilities, joint or several, to which the Company or any director or
officer or any such person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained, on the effective
date thereof, in any registration statement under which securities were
registered under the Act at the request of such holder, any preliminary
prospectus or final prospectus contained therein, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary prospectus, prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on
behalf of such holder specifically stating that it is for use therein; and
will reimburse the Company or such director, officer or person for any
legal or any other expense reasonably incurred in connection with
investigation or defending any such loss, claim, damage, liability or
action.
(b) Rule 144. If the Company shall be subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), the Company
will use its best efforts timely to file all reports required to be filed from
time to time with the SEC (including but not limited to the reports under
Section 13 and 15(d) of the 1934 Act referred to in subparagraph (c)(1) of Rule
144 adopted by the SEC under the Act). If there is a public market for any
securities of the Company at any time that the Company is not subject to the
reporting requirements of either of said Section 13 or 15(d), the Company will,
upon the request of Holder, use its best efforts to make publicly available the
information concerning the Company referred to in subparagraph (c)(2) of said
Rule 144. The Company will furnish to Holder, promptly upon request, (i) a
written statement of the Company's compliance with the requirements of
subparagraphs (c)(1) or (c)(2), as the case may be, of said Rule 144, and (ii)
written information concerning the Company sufficient to enable Holder to
complete any Form 144 required to be filed with the SEC pursuant to said Rule
144.
[SIGNATURE PAGE FOLLOWS]
5
IN WITNESS WHEREOF, the Company has signed and sealed this Warrant as of
September 28, 2006
COMPANY:
Millenium Holding Group, Inc.
a Nevada corporation
BY: Xxxxxxx Xxx
ITS: President and CEO
WARRANTHOLDER:
Xxxx X. Xxxxx
BY: Xxxx X. Xxxxx
6
FORM OF ELECTION TO PURCHASE
The undersigned, a Holder of the attached Warrant, hereby irrevocably
elects to exercise the purchase right represented by the attached Warrant
Agreement for, and to purchase shares of Common Stock of Millenium Holding
Group, Inc., a Nevada corporation and herewith makes payment of $________
therefor, and requests that the certificates for such securities be issued in
the name of, and delivered to ___________________________, whose address is
____________________________________________________________.
Dated:__________________________ Signature
_________________________________________
(Signature must conform in all respects
to name of Holder of such partial
interest as specified on the face of the
Warrant Certificate)
_________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
7
