EXHIBIT 3.6
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE
DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE SECURITIES ACT
OR AN OPINION OF COUNSEL IS OBTAINED STATING THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
NOVEMBER __, 2003
UTIX GROUP, INC.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. W-________
For value received, this Warrant is hereby issued by Utix Group, Inc.
(fka Chantal Skin Care Corporation), a Delaware corporation (the "Company"), to
________________ (the "Holder"). Subject to the provisions of this Warrant, the
Company hereby grants to Holder the right to purchase from the Company ________
fully paid and non-assessable shares of Common Stock, at a price of $[$0.207](1)
[$0.517](2) per share (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $0.001 per
share, of the Company as constituted on November __, 2003 (the "Base Date"). The
number of shares of Common Stock to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth. The shares
of Common Stock deliverable upon such exercise, and as adjusted from time to
time, are hereinafter referred to as "Warrant Stock."
The Holder agrees with the Company that this Warrant is issued, and all
the rights hereunder shall be held, subject to all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF WARRANT. Subject to the terms and conditions set forth
herein, this Warrant may be exercised in whole or in part, pursuant to the
procedures provided below, at any time on or before the earlier of (i) 5:00
p.m., Eastern time, on November __, 2008 (the "Expiration Date") or, if such day
is a day on which banking institutions in New York are authorized by law to
close, then on the next succeeding day that shall not be such a day. To exercise
this Warrant the Holder shall present and surrender this Warrant to the Company
at its principal office, with the Warrant Exercise Form attached hereto duly
executed by the Holder and accompanied by payment in cash, wire transfer or by
check, payable to the order of the Company, of the aggregate Exercise Price for
the total aggregate number of shares for which this Warrant is exercised. Upon
receipt by the Company of this Warrant, together with the executed Warrant
Exercise Form and payment of the Exercise Price for the shares to be acquired,
in proper form for exercise, and subject to the Holder's compliance with all
requirements of this Warrant for the exercise hereof, the Holder shall be deemed
to be the holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Common Stock
shall not then be actually delivered to the Holder; PROVIDED, HOWEVER, that no
exercise of this Warrant shall be effective, and the Company shall have no
obligation to
--------
(1) Applicable to the "A" Warrants and "B" Warrants
(2) Applicable to the "C" Warrants
issue any Common Stock to the Holder upon any attempted exercise of this
Warrant, unless the Holder shall have first delivered to the Company, in form
and substance reasonably satisfactory to the Company, appropriate
representations so as to provide the Company reasonable assurances that the
securities issuable upon exercise may be issued without violation of the
registration requirements of the Securities Act and applicable state securities
laws, including without limitation representations that the Holder is familiar
with the Company and its business and financial condition and has had an
opportunity to ask questions and receive documents relating thereto to his
reasonable satisfaction.
2. NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of Common Stock is greater than
the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the Holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise and notice of such
election in which event the Company shall issue to the Holder a number of shares
of Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock purchasable under
the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
A = the fair market value of one share of the Company's
Common Stock (at the date of such calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
3. RESERVATION OF SHARES. The Company will at all times reserve for
issuance and delivery upon exercise of this Warrant all shares of Common Stock
from time to time receivable upon exercise of this Warrant. All such shares
shall be duly authorized and, when issued upon such exercise, shall be validly
issued, fully paid and non-assessable and free of all preemptive rights.
4. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant, but the
Company shall pay the Holder an amount equal to the Fair Market Value (as
defined below) of such fractional share of Common Stock in lieu of each fraction
of a share otherwise called for upon any exercise of this Warrant.
5. FAIR MARKET VALUE. For purposes of this Warrant, the Fair Market
Value of a share of Common Stock shall be determined as of any date (the "Value
Date") by the Company's Board of Directors in good faith; provided, however,
that where there exists a public market for the Company's Common Stock on the
Value Date, the fair market value per share shall be either:
(a) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange or
listed for trading on the NASDAQ system, the Fair Market Value shall be
the last reported sale price of the security on such exchange or system
on the last business day prior to the Value Date or if no such sale is
made on such day, the average of the closing bid and asked prices for
such day on such exchange or system; or
(b) If the Common Stock is not so listed or so admitted to
unlisted trading privileges, the Fair Market Value shall be the mean of
the last reported bid and asked prices reported by the National
Quotation Bureau, Inc. on the last business day prior to the Value
Date.
6. ASSIGNMENT OR LOSS OF WARRANT. Subject to the transfer restrictions
herein (including Section 9), upon surrender of this Warrant to the Company or
at the office of its stock transfer agent, if any, with the Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, the
Company shall, without charge, execute and deliver a new Warrant in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
-2-
Warrant, and of reasonably satisfactory indemnification by the Holder, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a replacement Warrant of like tenor and date.
7. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
8. ADJUSTMENTS.
8.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company shall
at any time after the Base Date subdivide its outstanding shares of Common Stock
by recapitalization, reclassification or split-up thereof, the number of shares
of Common Stock subject to this Warrant immediately prior to such subdivision
shall be proportionately increased, and if the Company shall at any time after
the Base Date combine the outstanding shares of Common Stock by
recapitalization, reclassification or combination thereof, the number of shares
of Common Stock subject to this Warrant immediately prior to such combination
shall be proportionately decreased. Any such adjustment and adjustment to the
Exercise Price pursuant to this Section 8.1 shall be effective at the close of
business on the effective date of such subdivision or combination.
Whenever the number of shares of Common Stock purchasable upon the
exercise of this Warrant is adjusted, as provided in this Section 8.1, the
Exercise Price shall be adjusted to the nearest cent by multiplying such
Exercise Price immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise immediately prior to such adjustment, and (y) the denominator
of which shall be the number of shares of Common Stock so purchasable
immediately thereafter.
8.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER,
ETC. In case of any reorganization of the Company after the Base Date or in case
after such date the Company shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant upon the
exercise thereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the securities and property receivable upon the exercise of
this Warrant prior to such consummation, the securities or property to which
such Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto; in each such case, the terms
of this Warrant shall be applicable to the securities or property receivable
upon the exercise of this Warrant after such consummation.
8.3 CERTIFICATE AS TO ADJUSTMENTS. The adjustments provided
in this Section 8 shall be interpreted and applied by the Company in such a
fashion so as to reasonably preserve the applicability and benefits of this
Warrant (but not to increase or diminish the benefits hereunder). In each case
of an adjustment in the number of shares of Common Stock receivable on the
exercise of the Warrant, the Company at its expense will promptly compute such
adjustment in accordance with the terms of the Warrant [and prepare a
certificate executed by two executive officers of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company will forthwith mail a copy of each such certificate to each Holder].
8.4 NOTICES OF RECORD DATE, ETC. In the event that:
(a) the Company authorizes the granting to Common Stock
holders of any right to subscribe for, purchase or otherwise acquire any shares
of stock of any class or any other securities; or
(b) the Company authorizes 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, or any
conveyance of all or substantially all of the assets of the Company to another
corporation or entity; or
-3-
(c) the Company authorizes any voluntary or involuntary
dissolution, liquidation or winding up of the Company,
then, and in each such case, the Company shall mail or cause to be mailed to the
holder of this Warrant at the time outstanding a notice specifying, as the case
may be, (i) the date on which a record is to be taken for the purpose of such
right, and stating the amount and character of such right, or (ii) the date on
which such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up is to take place, and the time, if any is
to be fixed, as to which the holders of record of Common Stock shall be entitled
to exchange their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding up. Such notice shall be mailed
at least twenty (20) days prior to the date therein specified.
8.5 NO IMPAIRMENT. The Company will not, by any 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 Section 8
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Warrant against impairment.
9. TRANSFER TO COMPLY WITH THE SECURITIES ACT. This Warrant and any
Warrant Stock may not be sold, transferred, pledged, hypothecated or otherwise
disposed of except as follows: (a) to a person who, in the opinion of counsel to
the Company, is a person to whom this Warrant or the Warrant Stock may legally
be transferred without registration and without the delivery of a current
prospectus under the Securities Act with respect thereto and then only against
receipt of an agreement of such person to comply with the provisions of this
Section 9 with respect to any resale or other disposition of such securities; or
(b) to any person upon delivery of a prospectus then meeting the requirements of
the Securities Act relating to such securities and the offering thereof for such
sale or disposition, and thereafter to all successive assignees.
10. LEGEND. Unless the shares of Warrant Stock have been registered
under the Securities Act, upon exercise of any of the Warrants and the issuance
of any of the shares of Warrant Stock, all certificates representing shares
shall bear on the face thereof substantially the following legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be sold, offered for sale, assigned, transferred or otherwise
disposed of, unless registered pursuant to the provisions of that
Act or unless an opinion of counsel to the Corporation is obtained
stating that such disposition is in compliance with an available
exemption from such registration.
11. NOTICES. All notices required hereunder shall be in writing and
shall be deemed given when telegraphed, delivered personally or within two days
after mailing when mailed by certified or registered mail, return receipt
requested, to the Company or the Holder, as the case may be, for whom such
notice is intended, if to the Holder, at the address of such party shown on the
books of the Company, or if to the Company, at the address set forth on the
signature page hereof, Attn: President, or at such other address of which the
Company or the Holder has been advised by notice hereunder.
12. APPLICABLE LAW. The Warrant is issued under and shall for all
purposes be governed by and construed in accordance with the laws of the State
of Delaware, without regard to the conflict of laws provisions of such State.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on
its behalf, in its corporate name, by its duly authorized officer, all as of the
day and year first above written.
-4-
UTIX GROUP, INC. (fka Chantal Skin Care
Corporation)
By:
-----------------------------
Name:
Title:
-5-
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to (i) exercise the within
Warrant to purchase __________ shares of the Common Stock of Utix Group, Inc.
(fka Chantal Skin Care Corporation), a Delaware corporation, pursuant to the
provisions of Section 1 of the attached Warrant, and hereby makes payment of
$__________ in payment therefor, or (ii) exercise this Warrant for the purchase
of _______ shares of Common Stock, pursuant to the provisions of Section 2 of
the attached Warrant. The undersigned's execution of this form constitutes the
undersigned's agreement to all the terms of the Warrant and to comply therewith.
------------------------------
Signature
Print Name:
------------------------------
Signature, if jointly held
Print Name:
------------------------------
Date
-6-
ASSIGNMENT FORM
FOR VALUE RECEIVED_____________________________ ("Assignor") hereby sells,
assigns and transfers unto _______________________________ ("Assignee") all of
Assignor's right, title and interest in, to and under Warrant No. W-____ issued
by Utix Group Inc. (fka Chantal Skin Care Corporation), dated ______________.
DATED:
------------------------
ASSIGNOR:
------------------------------
Signature
Print Name:
------------------------------
Signature,
if jointly held
Print Name:
The undersigned agrees to all of the terms of the Warrant and to comply
therewith.
------------------------------
Signature
Print Name:
------------------------------
Signature,
if jointly held
Print Name:
-7-
