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Exhibit 4.5.2
THIS WARRANT HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES ACT OF ANY STATE (COLLECTIVELY, THE "ACTS").
NEITHER THIS WARRANT NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE PROPOSED TRANSACTION DOES NOT
REQUIRE REGISTRATION OR QUALIFICATION UNDER ALL OF THE APPLICABLE ACTS, OR AN
OPINION OF COUNSEL SATISFACTORY TO NIPF HOLDING COMPANY TO THE EFFECT THAT SUCH
REGISTRATIONS ARE NOT REQUIRED OR THE PROPOSED TRANSACTION IS REGISTERED OR
QUALIFIED AS REQUIRED BY ANY APPLICABLE ACTS. THIS WARRANT IS SUBJECT TO OTHER
LIMITATIONS ON TRANSFER.
WARRANT
TO PURCHASE COMMON STOCK OF
FREMONT GOLD CORPORATION
EXPIRING ON APRIL 1, 1999
Fremont Gold Corporation ("Company"), a Delaware corporation, hereby
certifies that, for value received, INTERNATIONAL FREEDOM, a TURKS & CAICOS
corporation ("Holder"), whose address is X.X. XXX 000, XXXXXX XXXXX, XXXXX 000,
XXXXXXXXXXXXX, XXXXX & CAICOS ISLAND, B.W.I., is entitled, subject to the terms
set forth below at any time or from time to time after the date hereof and
before the Expiration Date (as defined below), to purchase from the Company
650,000 shares ("Shares") of Common Stock ("Common Stock"), par value $.001 per
share, at a purchase price per Share of US$1.50 (the purchase price per Share,
as adjusted from time to time pursuant to the provisions herein set forth, is
referred to in this Warrant as the "Purchase Price").
This Warrant is being issued to the Holder pursuant to the terms of that
certain Promissory Note in the original principal amount of US$650,000.00, dated
APRIL 1, 1997, issued by the Company in favor of Holder.
1. TERM OF THE WARRANT.
1.1 Time of Exercise. Subject to the provisions of Sections 1.5, "Transfer
and Assignment," this Warrant may be exercised at any time and from time to time
after its issuance but no later than 5:00 p.m., M.S.T., APRIL 1, 1999
("Expiration Date"), at which point it shall become void and all rights under
this Warrant shall cease.
1.2 Manner of Exercise.
1.2.1 The holder of this Warrant ("Holder") may exercise this
Warrant, in whole or in part, upon surrender of this Warrant with the form of
subscription attached hereto duly
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executed, to the Company at its corporate office at 000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X00 0X0, together with the full
Purchase Price for each Share to be purchased in lawful money of the United
States, or by certified check, bank draft or postal or express money order
payable in United States dollars to the order of the Company, and upon
compliance with and subject to the conditions set forth in this Warrant.
1.2.2 Upon receipt of this Warrant with the form of subscription duly
executed and accompanied by payment of the aggregate Purchase Price for the
Shares for which this Warrant is then being exercised, the Company shall cause
to be issued certificates or other evidence of ownership, for the total number
of whole Shares for which this Warrant is being exercised in such denominations
as are required for delivery to the Holder, and the Company shall thereupon
deliver such documents to the Holder or its nominee.
1.2.3 If the Holder exercises this Warrant with respect to fewer than
all of the Shares that may be purchased under this Warrant, the Company shall
execute a new Warrant for the balance of the Shares that may be purchased upon
exercise of this Warrant and deliver such new Warrant to the Holder.
1.2.4 The Company covenants and agrees that it will pay when due and
payable any and all taxes which may be payable in respect of the issue of this
Warrant, or the issue of any Shares upon the exercise of this Warrant. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issuance or delivery of this Warrant or
of the Shares in a name other than that of the Holder at the time of surrender,
and until the payment of such tax, the Company shall not be required to issue
such Shares.
1.2.5 Holder understands and agrees that the Shares issued upon
exercise hereof will be "restricted securities," as that term is defined in the
Securities and Exchange Commission's Rule 144 promulgated under the Securities
Act of 1933, as amended (the "Securities Act), and as such will be subject to
the restrictions on transfer and sale.
1.3 Exchange of Warrant. This Warrant may be split-up, combined or
exchanged for another Warrant or Warrants of like tenor to purchase a like
aggregate number of Shares. If the Holder desires to split-up, combine or
exchange this Warrant, he shall make such request in writing delivered to the
Company at its corporate office and shall surrender this Warrant and any other
Warrants to be so split-up, combined or exchanged, the Company shall execute and
deliver to the person entitled thereto a Warrant or Warrants, as the case may
be, as so requested. The Company shall not be required to effect any split-up,
combination or exchange which will result in the issuance of a Warrant entitling
the Holder to purchase upon exercise a fraction of a Share. The Company may
require the Holder to pay a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any split-up, combination or
exchange of Warrants. The term "Warrant" as used herein includes any Warrants
issued in substitution for or replacement of this Warrant, or into which this
Warrant may be divided or exchanged. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in the case of loss, theft or destruction of reasonably
satisfactory indemnification, including a surety bond if required
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by the Company, and upon surrender and cancellation of this Warrant, if
mutilated, the Company will cause to be executed and delivered a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
1.4 Holder as Owner. Subject to the limitations on transfer pursuant to
Section 1.5 hereof, prior to due presentment for registration of transfer of
this Warrant, the Company may deem and treat the Holder as the absolute owner of
this Warrant (notwithstanding any notation of ownership or other writing hereon)
for the purpose of any exercise hereof and for all other purposes, and the
Company shall not be affected by any notice to the contrary. Irrespective of the
date of issue and delivery of certificates for any Common Stock issuable upon
the exercise of the Warrant, each person in whose name any such certificate is
issued shall be deemed to have become the holder of record of the Shares
represented thereby on the date on which all or a portion of the Warrant
surrendered in connection with the subscription therefor was surrendered and
payment of the purchase price was tendered. No surrender of all or a portion of
the Warrant on any date when the stock transfer books of the Company are closed,
however, shall be effective to constitute the person or persons entitled to
receive Shares upon such surrender as the record holder of such Shares on such
date, but such person or persons shall be constituted the record holder or
holders of such Shares at the close of business on the next succeeding date on
which the stock transfer books are opened. Each person holding any Shares
received upon exercise of Warrant shall be entitled to receive only dividends or
distributions payable to holders of record on or after the date on which such
person shall be deemed to have become the holder of record of such Shares.
1.5 Transfer and Assignment. This Warrant may not be sold, hypothecated,
assigned or transferred in any other manner except with the prior written
consent of the Company. All requests for the Company's written consent to the
sale, hypothecation, assignment or transfer, in any manner (each a "Transfer")
of this Warrant shall be made in a writing delivered to the Company at its
corporate office located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx X0X 0X0. The Company shall be entitled, for any reason or no reason, to
refuse to grant consent to the Transfer of this Warrant and nothing contained
herein shall be deemed to obligate the Company, in any manner, to grant its
consent to any Transfer of this Warrant. Prior to any Transfer of this Warrant,
the registered holder of this Warrant agrees to deliver to the Company an
opinion of counsel, concurred in by the reasonable opinion of Counsel to the
Company, that the proposed transfer may be effected without registration or
qualification under the Securities Act and any other applicable securities laws.
1.6 Method for Assignment. Any Transfer permitted under this Warrant shall
be made by surrender of this Warrant to the Company at its corporate office with
the form of assignment attached hereto duly executed and funds sufficient to pay
any transfer tax. In such event, the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee designated in such instrument
of assignment and this Warrant shall promptly be canceled. This Warrant may be
divided or combined with other Warrants which carry the same rights upon
presentation thereof at the corporate office of the Company together with a
written notice signed by the Holder, specifying the names and denominations in
which such new Warrants are to be issued.
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1.7 Rights of Holder. Nothing contained in this Warrant shall be construed
as conferring upon the Holder the right to vote or consent or 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 shall occur:
1.7.1 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 payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings; as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
1.7.2 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 option, right
or warrant to subscribe therefor; or
1.7.3 There shall be proposed any capital reorganization or
reclassification of the Common Stock, or a sale of all or substantially all of
the assets of the Company, or a consolidation or merger of the Company with
another entity; or
1.7.4 There shall be proposed a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall cause to be mailed to
the Holder, at the earliest practicable time (and, in any event, not less than
thirty (30) days before any record date or other date set for definitive
action), written notice of the date on which the books of the Company shall
close or a record shall be taken to determine the stockholders entitled to such
dividend, distribution, convertible or exchangeable securities or subscription
rights, or entitled to vote on such reorganization, reclassification, sale,
consolidation, merger, dissolution, liquidation or winding up, as the case may
be. Such notice shall also set forth such facts as shall indicate the effect of
such action (to the extent such effect may be known at the date of such notice)
on the Purchase Price and the kind and amount of the Common Stock and other
securities and property deliverable upon exercise of this Warrant. Such notice
shall also specify the date as of which the holders of the Common Stock of
record shall participate in said distribution or subscription rights or shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, sale, consolidation,
merger, dissolution, liquidation or winding up, as the case may be (on which
date, in the event of voluntary or involuntary dissolution, liquidation or
winding up of the Company, the right to exercise this Warrant shall terminate).
Without limiting the obligation of the Company to provide notice to the Holder
of actions hereunder, it is agreed that failure of the Company to give notice
shall not invalidate such action of the Company.
1.8 Lost Warrant Certificate(s). If this Warrant is lost, stolen,
mutilated or destroyed, the Company shall, on such reasonable terms as to
indemnity or otherwise as it may impose, which shall, in the case of a mutilated
Warrant, include the surrender thereof, issue a new Warrant of like
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denomination and tenor as, and in substitution for, this Warrant, which shall
thereupon become void. Any such new Warrant shall constitute an additional
contractual obligation of the Company, whether or not the Warrant so lost,
stolen, destroyed or mutilated shall be at any time enforceable by anyone.
2. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES PURCHASABLE UPON
EXERCISE.
2.1 Recapitalization. If the Company shall, while this Warrant remains
unexercised, in whole or in part, and in force effect a recapitalization of such
character that the Shares purchasable hereunder shall be changed into or become
exchangeable for a larger or smaller number of Shares, then, after the date of
record for effecting such recapitalization, the number of Shares which the
Holder hereof shall be entitled to purchase hereunder shall be increased or
decreased, as the case may be, in direct proportion to the increase or decrease
in the number of shares of Common Stock by reason such recapitalization, and of
the Purchase Price, whether or not in effect immediately prior to the time of
such recapitalization, of such recapitalized Common Stock shall in the case of
an increase in the number of such Shares be proportionately reduced, and in the
case of a decrease in the number of such Shares shall be proportionately
increased. For the purposes of this Section 2.1, a stock dividend, stock
split-up or reverse split shall be considered as a recapitalization and as an
exchange for a larger or smaller number of shares, as the case may be.
2.2 Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company into, any other corporation, or in 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 shall be made whereby the Holder shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of Shares immediately theretofore
purchasable and receivable upon the exercise of the rights represented by this
Warrant, such shares of stock or securities as may be issued in connection with
such consolidation, merger, or sale or conveyance with respect to or in exchange
for the number of outstanding shares of Common Stock equal to the number of
Shares immediately theretofore purchasable and receivable upon the exercise of
the rights represented by this Warrant had such consolidation, merger, sale or
conveyance not taken place, and in any such case appropriate provision shall be
made with respect to the rights and interests of the Holder of this Warrant to
the end that the provisions of this Warrant shall be applicable as nearly as may
be in relation to any Shares thereafter deliverable upon the exercise hereof.
2.3 Notice of Dissolution or Liquidation. Except as otherwise provided in
Section 2.2, "Merger or Consolidation," in the case of any sale or conveyance of
all or substantially all of the assets of the Company in connection with a plan
of complete liquidation of the Company, or in the case of the dissolution,
liquidation or winding-up of the Company, all rights under this Warrant shall
terminate on a date fixed by the Company, such date so fixed to be not earlier
than the date of the commencement of the proceedings for such dissolution,
liquidation or winding-up and not later than thirty (30) days after such
commencement date. Notice of such termination of purchase rights shall be given
to the Holder at least thirty (30) days prior to such termination date.
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2.4 Statement of Adjustment. Any adjustment pursuant to the provisions of
this Section 2 shall be made on the basis of the number of Shares which the
Holder would have been entitled to acquire by exercise of this Warrant
immediately prior to the event giving rise to such adjustment and, as to the
Purchase Price in effect immediately prior to the rise to such adjustment.
Whenever any such adjustment is required to be made, the Company shall forthwith
determine the new number of Shares which the Holder hereof shall be entitled to
purchase hereunder and/or such new Purchase Price and shall prepare, retain on
file and transmit to the Holder within ten (10) days after such preparation a
statement describing in reasonable detail the method used in calculating such
adjustment.
2.5 No Fractional Shares. The Company shall not issue any fraction of a
Share in connection with the exercise of this Warrant, and in any case where the
Holder would, except for the provisions of this Section 2.5, be entitled under
the terms of this Warrant to receive a fraction of a Share upon such exercise,
the Company shall upon the exercise and receipt of the Purchase Price, issue the
largest number of whole Shares purchasable upon exercise of this Warrant. The
Company shall not be required to make any cash or other adjustment in respect of
such fraction of a Share to which the Holder would otherwise be entitled. The
Holder, by the acceptance of this Warrant, expressly waives his right to receive
a certificate for any fraction of a Share upon exercise hereof.
2.6 No Change in Form Required. The form of Warrant need not be changed
because of any change pursuant to this Section 2 in the Purchase Price or in the
number of Shares purchasable upon the exercise of a Warrant, may state the same
Purchase Price and the same number of shares of Common Stock as are stated in
the Warrants initially issued pursuant to the Agreement.
3. RESERVATION OF SHARES. The Company shall at all times reserve, for the
purpose of issuance on exercise of this Warrant such number of shares of Common
Stock or such class or classes of capital stock or other securities as shall
from time to time be sufficient to comply with this Warrant and the Company
shall take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized and unissued shares of Common Stock or such
other class or classes of capital stock or other securities to such number as
shall be sufficient for that purpose. All Shares issued upon exercise of this
Warrant shall be duly authorized, validly issued and outstanding, fully paid and
non-assessable.
4. SURVIVAL. All agreements, covenants, representations and warranties herein
shall survive the execution and delivery of this Warrant and any investigation
at any time made by or on behalf of any parties hereto and the exercise, sale
and purchase of this Warrant (and any other securities or property) issuable on
exercise hereof.
5. REMEDIES. The Company agrees that the remedies at law of the Holder, in
the event of any default or threatened default by the Company in the performance
or compliance with any of the terms of this Warrant, may not be adequate and
such terms may, in addition to and not in lieu of any other remedy, be
specifically enforced by a decree of specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
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6. OTHER MATTERS.
6.1 Binding Effect. All the covenants and provisions of this Warrant by or
for the benefit of the Company shall bind and inure to the benefit of its
successors and assigns hereunder.
6.2 Notices. Notices or demands pursuant to this Warrant to be given or
made by the Holder to or on the Company shall be sufficiently given or made if
sent by certified or registered mail, return receipt requested, postage prepaid,
and addressed, until another address is designated in writing by the Company, as
follows:
Fremont Gold Corporation
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attn: Chief Financial Officer
Notices to the Holder provided for in this Warrant shall be deemed given or made
by the Company if sent by certified or registered mail, return receipt
requested, postage prepaid, and addressed to the Holder at the Holder's last
known address as it shall appear on the books of the Company.
6.3 Governing Law. The validity, interpretation and performance of this
Warrant shall be governed by the laws of the State of Delaware.
6.4 Parties Bound and Benefitted. Nothing in this Warrant expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the Company and the Holder any right, remedy or claim under promise or
agreement hereof, and all covenants, conditions, stipulations, promises and
agreements contained in this Warrant shall be for the sole and exclusive benefit
of the Company and its successors and of the Holder, its successors and, if
permitted, its assignees.
6.5 Headings. The Article headings herein are for convenience only and are
not part of this Warrant and shall not affect the interpretation thereof.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
under its corporate seal as of the _____ day of ______________, 1997.
FREMONT GOLD CORPORATION
By:_________________________________________
Xxxxxx X. Xxxxxx, Chief Financial Officer
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FREMONT GOLD CORPORATION
ASSIGNMENT
FOR VALUE RECEIVED, and with the prior written consent of Fremont Gold
Corporation, hereby sells, assigns and transfers unto __________________________
the right to purchase _____ shares subject to ____________________ the within
Warrant and the rights represented thereby, and does hereby irrevocably
constitute and appoint ________________________ Attorney, to transfer said
Warrant, or portion thereof, on the books of the Company, with full power of
substitution.
Dated:______________ Signed:_____________________________________
Print Name:_________________________________
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SUBSCRIPTION FORM
FREMONT GOLD CORPORATION
000 XXXXXX XXXXXX
XXXXX 0000
XXXXXXXXX, XXXXXXX XXXXXXXX, XXXXXX X00 0X0
The undersigned hereby irrevocably subscribes for the purchase of _____
shares of Common Stock ("Shares"), pursuant to and in accordance with the terms
and conditions of this Warrant, and herewith makes payment, covering the
purchase of the Shares, which should be delivered to the undersigned at the
address stated below, and, if such number of Shares shall not be all of the
Shares purchasable hereunder, then a new Warrant of like tenor for the balance
of the remaining Shares purchasable under this Warrant be delivered to the
undersigned at the address stated below.
Dated:________________________ Signed:_____________________________________
Address:____________________________________
____________________________________________
