EXHIBIT 10.4
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, REGISTRATION UNDER SAID ACT
QUEST MINERALS & MINING CORP.
February 14, 2006 No. of Warrant Rights (5,000,000)
FOR VALUE RECEIVED, Quest Minerals & Mining Corp. ("Company"), hereby
certifies that Professional Traders Fund, LLC ("Buyer"), or a permitted assign
thereof, is entitled to purchase from the Company, at any time or from time to
time, commencing on the date hereof and prior to 5:00 P.M., New York City time,
on February 14, 2009 (the "Expiration Date") FIVE MILLION (5,000,000) fully paid
and nonassessable shares of the Common Stock, par value $0.001, of the Company
for an aggregate purchase price of $500,000 (computed on the basis of
$0.10/share) (the "Exercise Price"), subject to adjustment as set forth herein.
(Hereinafter, (i) said Common Stock, together with any other equity securities
which may be issued by the Company with respect thereto or in substitution
therefor, is referred to as the "Common Stock," (ii) the shares of the Common
Stock purchasable hereunder (as hereinafter defined) are referred to as the
"Warrant Shares," the aggregate purchase price payable hereunder for the Warrant
Shares is referred to as the "Aggregate Warrant Price," (iii) each right under
this Warrant to purchase a share of Common Stock is sometimes referred to herein
as "Warrant Right", (iv) one Warrant Right shall be surrendered for each share
of Common Stock purchased hereunder, (v) the price payable hereunder for each of
the Warrant Shares is referred to as the "Per Share Warrant Price," (vi) this
Warrant, all identical Warrants (if any) issued on the date hereof and all
Warrants hereafter issued in exchange or substitution for this Warrant or such
other warrants are referred to as the "Warrants", (vii) the holder of this
Warrant is referred to as the "Holder" and (viii) this Warrant shall be
exercisable for cash at any time after the date hereof (the "Exercise Date").
The Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant
Price is subject to adjustment as hereinafter provided; in the event of any such
adjustment, the number of Warrant Shares shall be adjusted by dividing the
Aggregate Warrant Price by the Per Share Warrant Price in effect immediately
after such adjustment.
1. Exercise of Warrant.
-------------------
(a) Payment Exercise
Subject to and upon all of the terms and conditions set forth
in this Warrant, the Holder may exercise this Warrant, in whole or in part with
respect to any Warrant Shares, at any time and from time to time during from the
Exercise Date to the Expiration Date, by presentation and surrender of this
Warrant to the Company at its principal office, together with (a) a properly
completed and duly executed notice of exercise using the Form of Payment
Exercise attached hereto, which notice shall specify the number of Warrant
Shares for which this Warrant is then being exercised, and (b) payment of the
aggregate Exercise Price payable hereunder in respect of the number of Warrant
Shares being purchased upon exercise of this Warrant. Payment of such aggregate
Exercise Price shall be made in cash, by money order, certified or bank
cashier's check or wire transfer (in lawful currency of the United States of
America).
(b) Cashless Exercise
If at any time after February 14, 2007, the Warrant Shares
cannot be sold without restriction pursuant to an effective registration
statement under the Securities Act of 1933, as amended with a current prospectus
available, in lieu of exercising this Warrant in the manner set forth in
Subsection l(a) above, then up to 50% of Holder's Warrant Rights under the
Warrant may be exercised by surrender of the Warrant without payment of any
other consideration, commission or remuneration, by execution of the cashless
exercise subscription form at the end hereof, duly executed. The number of
shares of Common Stock to be issued in exchange for the Warrant will be computed
by subtracting the Exercise Price from the closing bid price of the Common Stock
on the date of receipt of the cashless exercise subscription form, multiplying
that amount by the number of shares being exercised pursuant to the Warrant, and
dividing by the closing bid price as of the same date.
(c) Ownership Limitation
Holder shall not effect any exercise of this Warrant and no
holder of this Warrant shall have the right to exercise any portion of this
Warrant pursuant to Section 1 to the extent that after giving effect to such
exercise such Holder (together with such Holder's affiliates) (A) would
beneficially own in excess of 4.99% of the outstanding shares of the Common
Stock following such conversion and (B) would have acquired, through exercise of
this Warrant or otherwise, in excess of 4.99% of the outstanding shares of the
Common Stock following such exercise during the 60-day period ending on and
including such exercise date. For purposes of the foregoing sentence, the number
of shares of Common Stock beneficially owned by a Holder and its affiliates or
acquired by a Holder and its affiliates, as the case may be, shall include the
number of shares of Common Stock issuable upon exercise of this Warrant with
respect to which the determination of such sentence is being made, but shall
exclude the number of shares of Common Stock which would be issuable upon (i)
exercise of the remaining, unexercised Warrant beneficially owned by such holder
and its affiliates and (ii) exercise or conversion of the unexercised or
unconverted portion of any other securities of the Company (including, without
limitation, any convertible notes or warrants) subject to a limitation on
conversion or exercise analogous to the limitation contained herein. Except as
set forth in the preceding sentence, for purposes of this Section 1(c),
beneficial ownership shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended. Notwithstanding anything to the
contrary contained herein, each exercise notice submitted by a holder of this
note (an "Exercise Notice") shall constitute a representation by the Holder
submitting such Exercise Notice that, after giving effect to such Exercise
Notice, (A) the Holder will not beneficially own (as determined in accordance
with this Section 1(c) and (B) during the 60-day period ending on and including
such exercise date, the Holder will not have acquired, through exercise of this
Warrant or otherwise, a number of shares of Common Stock in excess of 4.99% of
the outstanding shares of Common Stock as reflected in the Company's most recent
Form 10-QSB or Form 10-KSB, as the case may be, or more recent public press
release or other public notice by the Company setting forth the number of shares
of Common Stock outstanding, but after giving effect to exercises of this
Warrant by such holder since the date as of which such number of outstanding
shares of Common Stock was reported.
2. Reservation of Warrant Shares.
-----------------------------
The Company agrees that, prior to the Expiration Date, the Company will
at all times have authorized and in reserve, and will keep available, solely for
issuance or delivery upon the exercise of this Warrant, the shares of the Common
Stock and other securities and properties as from time to time shall be
receivable upon the exercise of this Warrant, free and clear of all restrictions
on sale or transfer (except for applicable state or federal securities law
restrictions) and free and clear of all pre-emptive rights.
3. Protection Against Dilution.
---------------------------
(a) If, at any time or from time to time after the date of this
Warrant, the Company shall, for no consideration, issue or distribute to the
holders of shares of Common Stock evidences of its indebtedness, any other
securities of the Company or any cash, property or other assets (excluding a
subdivision, combination or reclassification, or dividend or distribution
payable in shares of Common Stock, referred to in Subsection 3(b), (excluding
cash dividends or cash distributions paid out of net profits legally available
therefore if the full amount thereof, together with the value of other dividends
and distributions made substantially concurrently therewith or pursuant to a
plan which includes payment thereof, is equivalent to not more than 5% of the
Company's net worth) (any such nonexcluded event being herein called a "Special
Dividend", the Per Share Warrant Price shall be adjusted by multiplying the Per
Share Warrant Price then in effect by a fraction, the numerator of which shall
be the then current market price of the Common Stock (defined as the average for
the thirty consecutive business days, immediately prior to the record date for
the applicable Special Dividend of the daily 4:00 PM closing bid price of the
Common Stock as reported by the NASDAQ or OTCBB system) less the fair market
value (as determined by the Company's Board of Directors) of the evidences of
indebtedness, securities or property, or other assets issued or distributed in
such Special Dividend applicable to one share of Common Stock and the
denominator of which shall be such then current market price per share of Common
Stock. An adjustment made pursuant to this Subsection 3(a) shall become
effective immediately after the record date of any such Special Dividend.
(b) In case the Company shall hereafter (i) pay a dividend or make
a distribution on its capital stock in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
or (iv) issue by reclassification, reorganization, recapitalization or similar
transaction of the Company of its Common Stock any shares of capital stock of
the Company, the Per Share Warrant Price shall be adjusted so that the Holder of
any Warrant upon the exercise hereof shall be entitled to receive the number of
shares of Common Stock or other capital stock of the Company which he would have
owned had he exercised the Warrants immediately prior thereto. An adjustment
made pursuant to this Subsection 3(b) shall become effective immediately after
the record date in the case of a dividend or distribution, and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification. If, as a result of an adjustment made pursuant
to this Subsection 3(b), the Holder of any Warrant thereafter surrendered for
exercise shall become entitled to receive shares of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be described in a written notice to the Holder of any
Warrant promptly after such adjustment) shall determine the allocation of the
adjusted Per Share Warrant Price between or among shares of such classes or
capital stock or shares of Common Stock and other capital stock.
(c) In case of any capital reorganization or reclassification, or
any consolidation or merger to which the Company is a party other than a merger
or consolidation in which the Company is the continuing corporation, or in case
of any sale or conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
of this Warrant shall have the right thereafter to receive upon exercise of such
Warrant into the kind and amount of securities, cash or other property which he
would have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance had this Warrant been exercised immediately prior to the
effective date of such reorganization, reclassification, consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if necessary,
appropriate adjustment shall be made in the application of the provisions set
forth in this Section 3 with respect to the rights and interests thereafter of
the Holder of this Warrant to the end that the provisions set forth in this
Section 3 shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or be, in
relation to any shares of stock or other securities or property thereafter
deliverable on the conversion of this Warrant. The above provisions of this
Subsection 3(c) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, statutory exchanges, sales or
conveyances. The issuer of any shares of stock or other securities or property
thereafter deliverable on the conversion of this Warrant shall be responsible
for all of the agreements and obligations of the Company hereunder. Notice of
any such reorganization, reclassification, consolidation, merger, statutory
exchange, sale or conveyance and of said provisions so proposed to be made,
shall be mailed to the Holders of the Warrants not less than 20 days prior to
such event. A sale of all or substantially all of the assets of the Company for
a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
(d) No adjustment in the Per Share Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least $0.01
per share of Common Stock; provided, however, that any adjustments which by
reason of this Subsection 3(d) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided further,
however, that adjustments shall be required and made in accordance with the
provisions of this Section 3 (other than this Subsection 3(d)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or Common Stock issuable upon
exercise hereof. All calculations under this Section 3 shall be made to the
nearest cent. Anything in this Section 3 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Per Share Warrant
Price, in addition to those required by this Section 3, as it in its discretion
shall deem to be advisable in order that any stock dividend, subdivision of
shares or distribution of rights to purchase stock or securities convertible or
exchangeable for stock hereafter made by the Company to its shareholders shall
not be taxable.
(e) Whenever the Per Share Warrant Price is adjusted as provided
in this Section 3 and upon any modification of the rights of a Holder of
Warrants in accordance with this Section 3, the Company shall promptly obtain,
at its expense, a certificate of a firm of independent public accountants of
recognized standing selected by the Board of Directors (who may be the regular
auditors of the Company) setting forth the Per Share Warrant Price and the
number of Warrant Shares after such adjustment or the effect of such
modification, a brief statement of the facts requiring such adjustment or
modification and the manner of computing the same and cause copies of such
certificate to be mailed to the Holders of the Warrants.
(f) If the Board of Directors of the Company shall declare any
dividend or other distribution with respect to the Common Stock, other than a
cash distribution out of earned surplus, the Company shall mail notice thereof
to the Holders of the Warrants not less than 20 days prior to the record date
fixed for determining shareholders entitled to participate in such dividend or
other distribution.
(g) The Board of Directors may, at its discretion from time to
time, reduce the Per Share Warrant Price or extend the outside date prior to
which this Warrant may be exercisable.
4. Redemption.
----------
The Company shall not have the right to redeem the Warrants at any time
5. Fully Paid Stock, Taxes.
-----------------------
The Company agrees that the shares of the Common Stock represented by
each and every certificate for Warrant Shares delivered on the exercise of this
Warrant shall, at the time of such delivery, be validly issued and outstanding,
fully paid and nonassessable, and not subject to pre-emptive rights, and the
Company will take all such actions as may be necessary to assure that the par
value or stated value, if any, per share of the Common Stock is at all times
equal to or less than the then Per Share Warrant Price. The Company further
covenants and agrees that it will pay, when due and payable, any and all Federal
and state stamp, original issue or similar taxes which may be payable in respect
of the issue of any Warrant Share or certificate therefor.
6. Transferability.
---------------
The Company may treat the registered Holder of this Warrant as he or it
appears on the Company's books at any time as the Holder for all purposes. The
Company shall permit any Holder of a Warrant or his duly authorized attorney,
upon written request during ordinary business hours, to inspect and copy or make
extracts from its books showing the registered holders of Warrants. All warrants
issued upon the transfer or assignment of this Warrant will be dated the same
date as this Warrant, and all rights of the Holder thereof shall be identical to
those of the Holder.
7. Loss, etc., of Warrant.
----------------------
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and denomination.
8. Warrant Holder Not Shareholders.
-------------------------------
Except as otherwise provided herein, this Warrant does not confer upon
the Holder any right to vote or to consent to or receive notice as a shareholder
of the Company, as such, in respect of any matters whatsoever, or any other
rights or liabilities as a shareholder, prior to the exercise hereof; provide,
however, Company shall give not less than twenty days written notice to the
Holder of any action which would require adjustment of any terms of the Warrant
in accordance with Section 3 above.
9. Communication.
-------------
Any notice or other communication under this Warrant shall be effective
unless and shall be deemed to have been given if, the same is in writing and is
mailed by first-class mail, postage prepaid, or sent vial facsimile, electronic
transmission, overnight courier or hand delivery addressed to:
If to the Company:
Quest Minerals & Mining Corp.
00X 0xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxxx, Xx.
If to the Holder, at the Holder's address appearing in the books
maintained by the Company.
10. Headings.
--------
The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
11. Applicable Law.
--------------
This Warrant shall be governed by and construed in accordance with the
law of the State of New York without giving effect to the principles of
conflicts of law thereof.
IN WITNESS WHEREOF, Quest Minerals & Mining Corp. has caused this
Warrant to be signed by its President as of the date set forth above.
QUEST MINERALS & MINING CORP.
By: /s/ XXXXXX XXXXXXXXXXX, XX.
-----------------------------------
Xxxxxx Xxxxxxxxxxx, Xx.
Vice President
FORM OF PAYMENT EXERCISE
(To be executed upon cash payment exercise of Warrant)
To: QUEST MINERALS & MINING CORP.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the attached Warrant for, and to exercise thereunder,
_______ shares of Common Stock, $.001 par value per share ("Common Stock"), of
Quest Minerals & Mining Corp., a Utah corporation, and tenders herewith payment
of $__________, representing the aggregate purchase price for such shares based
on the price per share provided for in such Warrant. Such payment is being made
in accordance with Section 1(a) of the attached Warrant.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations and deliver such
certificate or certificates to the person or persons listed below at their
respective addresses set forth below:
Dated: ___________________________ _________________________________________
(Name)
_________________________________________
(Address)
If said number of shares of Common Stock shall not be all the shares of
Common Stock issuable upon exercise of the attached Warrant, a new Warrant is to
be issued in the name of the undersigned for the balance remaining of such
shares of Common Stock less any fraction of a share of Common Stock paid in
cash.
Dated: ___________________________ _________________________________________
(Name)
_________________________________________
NOTE: The above signature should
correspond exactly with the name on the
face of the attached Warrant or with the
name of the assignee appearing in the
assignment form below.
ASSIGNMENT
----------
FOR VALUE RECEIVED___________________ hereby sells, assigns and transfers unto
____________ the foregoing Warrant and all rights evidenced thereby, and does
irrevocably constitute and appoint _______________________, attorney, to
transfer said Warrant on the books of ________________
Dated: Signature: ______________________________
Address:_________________________________
PARTIAL ASSIGNMENT
------------------
FOR VALUE RECEIVED ____________________hereby assigns and transfers unto
____________________ the right to purchase ______________ shares of the Common
Stock of ________________ by the foregoing Warrant, and a proportionate part of
said Warrant and the rights evidenced hereby, and does irrevocably constitute
and appoint ____________________, attorney, to transfer that part of said
Warrant on the books of Quest Minerals & Mining Corp.
Dated: Signature: ______________________________
Address:_________________________________
CASHLESS EXERCISE SUBSCRIPTION
------------------------------
The undersigned _______________________ pursuant to the provisions of the
foregoing Warrant, hereby agrees to subscribe to that number of shares of stock
of Quest Minerals & Mining Corp. as are issuable in accordance with the formula
set forth in Section l(b) of the Warrant, and makes payment therefore in full by
surrender and delivery of this Warrant.
Dated: Signature: ______________________________
Address:_________________________________
