EXHIBIT 10.1
THESE SECURITIES AND THE SECURITIES ISSUABLE UPON THEIR EXERCISE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED UNLESS
COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY SUCH TRANSFER IS
EXEMPT FROM SUCH REGISTRATION.
XXXXXXXXX.XXX, INC.
WARRANT
FOR THE PURCHASE OF COMMON STOCK
1. Issuance. For value received, the receipt of which is hereby
--------
acknowledged by XXXxxxxxx.xxx, Inc., a Nevada corporation (the "Company"),
Meditor Capital Management (Bermuda) Limited, or registered assigns (the
"Holder"), is hereby granted the right to purchase, at any time until January
11, 2004 (the "Expiration Date"), SEVEN HUNDRED THOUSAND (700,000) fully paid
and nonassessable shares of the Company's common stock, par value $.001 (the
"Common Stock"), at the exercise price of $1.00 per share (the "Exercise
Price").
2. Procedure for Exercise. Upon surrender of this Warrant with the
----------------------
annexed Notice of Exercise Form duly executed, together with payment of the
Exercise Price for the shares of Common Stock purchased, the Holder shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased.
3. Reservation of Shares. The Company hereby agrees that at all times
---------------------
during the term of this Warrant there shall be reserved for issuance upon
exercise of this Warrant such number of shares of its Common Stock as shall be
required for issuance upon exercise of this Warrant (the "Warrant Shares").
4. Mutilation or Loss of Warrant. 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) receipt of reasonably
satisfactory indemnification, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new warrant
of like tenor and date and any such lost, stolen, destroyed or mutilated Warrant
shall thereupon become void.
5. No Rights as Shareholder. The Holder shall not, by virtue hereof, be
------------------------
entitled to any rights of a shareholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
6. Effect of Certain Transactions
------------------------------
6.1 Adjustments for Stock Splits, Stock Dividends Etc. If the number
-------------------------------------------------
of outstanding shares of Common Stock of the Company are increased or decreased
by a stock split, reverse stock split, stock dividend, stock combination,
recapitalization or the like, the Exercise Price and the number of shares
purchasable pursuant to this Warrant shall be adjusted proportionately so that
the ratio of (i) the aggregate number of shares purchasable by exercise of this
Warrant to (ii) the total number of shares outstanding immediately following
such stock split, reverse stock split, stock dividend, stock combination,
recapitalization or the like shall remain
unchanged, and the aggregate purchase price of shares issuable pursuant to this
Warrant shall remain unchanged.
6.2 Expiration Upon Certain Transactions. If at any time the Company
------------------------------------
engages in a merger or consolidation of the Company in which the Company will
not survive and in which holders of the Company's Common Stock will receive
consideration at or above the Exercise Price, as adjusted, then this Warrant
will terminate 10 days from the Holder's receipt of written notice ("Notice")
from the Company of the completion of such a transaction. The Notice will
inform the Holder that the Warrant will terminate 10 days from the Holder's
receipt of the Notice. The Holder may exercise this Warrant within the 10-day
period pursuant to Section 2.
6.3 Adjustments for Reorganization, Mergers, Consolidations or Sales
----------------------------------------------------------------
of Assets. If at any time there is a capital reorganization of the Common Stock
---------
(other than a recapitalization, combination, or the like provided for elsewhere
in this Section 6) or merger or consolidation of the Company with another
corporation (other than one covered by Section 6.2), or the sale of all or
substantially all of the Company's properties and assets to any other person,
then, as a part of such reorganization, merger, consolidation or sale, provision
shall be made so that the Holder shall thereafter be entitled to receive upon
exercise of this Warrant (and only to the extent this Warrant is exercised), the
number of shares of stock or other securities or property of the Company, or of
the successor corporation resulting from such merger or consolidation or sale,
to which a holder of Common Stock, or other securities, deliverable upon the
exercise of this Warrant would otherwise have been entitled on such capital
reorganization, merger, consolidation or sale. In any such case, appropriate
adjustments shall be made in the application of the provisions of this Section 6
(including adjustment of the Exercise Price then in effect and number of Warrant
Shares purchasable upon exercise of this Warrant) which shall be applicable
after such events.
7. Transfer to Comply with the Securities Act. This Warrant has not been
------------------------------------------
registered under the Securities Act of 1933, as amended, (the "Securities Act")
and has been issued to the Holder for investment and not with a view to the
distribution of either the Warrant or the Warrant Shares. Neither this Warrant
nor any of the Warrant Shares or any other security issued or upon exercise of
this Warrant may be sold, transferred, pledged or hypothecated in the absence of
an effective registration statement under the Act relating to such security or
an opinion of counsel satisfactory to the Company that registration is not
required under the Act. Each certificate for the Warrant, the Warrant Shares
and any other security issued or issuable upon exercise of this Warrant shall
contain a legend in form and substance satisfactory to counsel for the Company,
setting forth the restrictions on transfer contained in this Section.
8. Registration Rights.
-------------------
8.1 The Company shall use its commercially reasonable best efforts to
effect the registration of the Warrant Shares, at the earlier of the following
events: (i) the registration of the shares of Common Stock to be issued as part
of the "Nasdaq Financing," as defined in the engagement letter dated as of March
21, 2000 by and between the Company and ICE Holdings North America, LLC; or (ii)
the acquisition of all of the Warrant Shares by the Holder. Unless and until
the Nasdaq Financing occurs or the Holder acquires all of the Warrant Shares,
the Company shall have no obligation whatsoever to register the Warrant Shares.
2
8.2 If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its commercially reasonable best efforts to
effect the registration of any Warrant Shares, the Company shall, as
expeditiously as practicable:
(a) use its commercially reasonable best efforts to cause a registration
statement that registers such Warrant Shares to become and remain effective for
a period of two years or until all of such Warrant Shares have been disposed of
(if earlier) (it being understood that the Company may discontinue any
registration);
(b) furnish, at least five business days before filing a registration
statement that registers such Warrant Shares, a prospectus relating thereto or
any amendments or supplements relating to such a registration statement or
prospectus, to one counsel selected by the Holder (the "Holder's Counsel"),
copies of all such documents proposed to be filed (it being understood that such
five business-day period need not apply to successive drafts of the same
document proposed to be filed so long as such successive drafts are supplied to
the Holder's Counsel in advance of the proposed filing by a period of time that
is customary and reasonable under the circumstances);
(c) prepare and file with the Securities and Exchange Commission (the
"Commission") such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for at least a period of two years or until all
of such Warrant Shares have been disposed of (if earlier) and to comply with the
provisions of the Securities Act with respect to the sale or other disposition
of such Warrant Shares (it being understood that the Company may discontinue any
registration);
(d) notify in writing the Holder's Counsel promptly (i) of the receipt by
the Company of any notification with respect to the issuance by the Commission
of any stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (ii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of such Warrant Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes;
(e) use its commercially reasonable best efforts to register or qualify
such Warrant Shares under such other securities or blue sky laws of such
jurisdictions as the Holder reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable the Holder
to consummate the disposition in such jurisdictions of the Warrant Shares owned
by the Holder; provided, however, that the Company will not be required to
-------- -------
qualify generally to do business, subject itself to general taxation or consent
to general service of process in any jurisdiction where it would not otherwise
be required to do so but for this paragraph (e) or to provide any material
undertaking or make any changes in its bylaws or Articles of Incorporation which
the Board of Directors determines to be contrary to the best interests of the
Company;
(f) furnish to the Holder such number of copies of a summary prospectus, if
any, or other prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as the Holder
may reasonably request in order to facilitate the public sale or other
disposition of such Warrant Shares;
(g) use its commercially reasonable best efforts to cause such Warrant
Shares to be registered with or approved by such other governmental agencies or
authorities as may be
3
necessary by virtue of the business and operations of the Company to enable the
Holder holding such Warrant Shares to consummate the disposition of such Warrant
Shares;
(h) notify the Holder on a timely basis at any time when a prospectus
relating to such Warrant Shares is required to be delivered under the Securities
Act within the appropriate period mentioned in subparagraph (a) of this Section
8.2, of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing and, at the request of the Holder, prepare
and furnish to the Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the offerees of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(i) subject to the execution of confidentiality agreements in form and
substance satisfactory to the Company, make available upon reasonable notice and
during normal business hours, for inspection by the Holder, any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by the Holder or underwriter
(collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors and
employees to supply all information (together with the Records, the
"Information") reasonably requested by any such Inspector in connection with
such registration statement. Any of the Information which the Company
determines in good faith to be confidential, and of which determination the
Inspectors are so notified, shall not be disclosed by the Inspectors unless (i)
the disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the registration statement, (ii) the release of such
Information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) such Information has been made generally
available to the public; the Holder agrees that he/she/it will, upon learning
that disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of the
Information deemed confidential;
(j) use its commercially reasonable best efforts to obtain from its
independent certified public accountants "cold comfort" letters in customary
form and at customary times and covering matters of the type customarily covered
by cold comfort letters;
(k) use its commercially reasonable best efforts to obtain from its counsel
an opinion or opinions in customary form;
(l) issue to any underwriter to which the Holder may sell shares in such
offering certificates evidencing such Warrant Shares;
(m) otherwise use its commercially reasonable best efforts to comply with
all applicable rules and regulations of the Commission and make available to the
Holder, as soon as reasonably practicable, earnings statements (which need not
be audited) covering a period of 12 months beginning within three months after
the effective date of the registration statement, which earnings statements
shall satisfy the provisions of Section 11(a) of the Securities Act; and
4
(n) use its commercially reasonable best efforts to take all other steps
necessary to effect the registration of such Warrant Shares contemplated hereby.
Each holder of the Warrant Shares, upon receipt of any notice from the
Company of any event of the kind described in Section 8.2(h) hereof, shall
forthwith discontinue disposition of the Warrant Shares pursuant to the
registration statement covering such Warrant Shares until such holder's receipt
of the copies of the supplemented or amended prospectus contemplated by Section
8.2(h) hereof, and, if so directed by the Company, such holder shall deliver to
the Company all copies, other than permanent file copies then in such holder's
possession, of the prospectus covering such Warrant Shares at the time of
receipt of such notice.
9. Notices. Any notice or other communication required or permitted
-------
hereunder shall be in writing and shall be delivered personally or sent by
certified, registered or express mail, postage pre-paid. Any such notice shall
be deemed given when so delivered personally, or if mailed, two days after the
date of deposit in the United States mails, as follows:
If to the Company, to:
XXXxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxx X. Xxxxx, Vice President and Chief
Financial Officer
With a copy to:
Xxxx & Xxxxx Professional Corporation
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
If to the Holder, to:
Meditor Capital Management (Bermuda) Limited
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
Attention: Xx. X. Xxxxxxxxx
With a copy to:
Meditor Capital Management Limited
00xx Xxxxx, Xxxxx 00
00 Xxx Xxxxx Xxxxxx
Xxxxxx, XX XX0X 0XX
Attention: Xx. X. Xxxxxxxx
Any party may designate another address or person for receipt of notices
hereunder by notice given to the other parties in accordance with this Section.
5
10. Supplements and Amendments; Whole Agreement. This Warrant may be
-------------------------------------------
amended or supplemented only by an instrument in writing signed by the parties
hereto. This Warrant contains the full understanding of the parties hereto with
respect to the subject matter hereof, and there are no representations,
warranties, agreements or understandings other than expressly contained herein.
11. Governing Law. This Warrant shall be deemed to be a contract made
-------------
under the laws of the State of Nevada and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to contracts
to be made and performed entirely within such State.
12. Counterparts. This Warrant may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
13. Descriptive Headings. Descriptive headings of the several Sections
--------------------
of this Warrant are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
14. Assignability. This Warrant or any part thereof may be hereafter
-------------
assigned by the Holder to any accredited investor executing documents reasonably
required by the Company. Any such assignment shall be binding on the Company and
shall inure to the benefit of any such assignee.
[Signature page follows.]
6
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of
January 11, 2001.
XXXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
7
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant dated as of _______________________________ to
purchase _____________ shares of the Common Stock of XXXxxxxxx.xxx, Inc., and
tenders herewith payment in accordance with Section 2 of the Common Stock
Purchase Warrant.
Please deliver the stock certificate to:
_______________________________________________
_______________________________________________
_______________________________________________
Dated:_____________________________
By:________________________________
8
