EXHIBIT 4.8 - FORM OF
PLACEMENT AGENT'S WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF 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 EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STTEMENT UNDER SAID ACT OR AN EXEMPTION
FROM REGISTRATION AND THE HOLDER HAS FURNISHED TO THE COMPANY AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT AN
EXEMPTION UNDER SAID ACT IS AVAILABLE.
NAVIDEC, INC.
(Incorporated under the laws of the State of Colorado)
Void after 5:00 p.m. on the date set forth in this Warrant
Warrant to Purchase on ___________ ________,
______ 1996
50,000 Shares of
Common Stock
Warrant for the Purchase of Shares of Common Stock
FOR VALUE RECEIVED, NAVIDEC, INC., a Colorado corporation (the
"Company"), hereby certifies that XXXXXX XXXXXXX & ASSOCIATES, INC.
(the "Holder"), with an address at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, is entitled, subject to the provisions of
this warrant (the "Warrant"), to purchase, from the Company, from
the earlier of the date which is (i) six months after the
consummation of the contemplated Public Offering referred to in the
Company's Confidential Private Placement Memorandum dated July ,
1996 (the "Memorandum"), and (ii) one year after the date of the
initial closing of the Bridge Financing described in the Memorandum
in connection with which this Warrant is being issued (the
"Effective Date"), until expiration at 5:00 p.m. Denver local time
on the date which is five years after the Effective Date (the
"Expiration Date"), 50,000 fully paid and nonassessable shares of
Common Stock, no par value (the "Common Stock"), of the Company at
a price of per share (such exercise price per share, as so
adjusted by the terms hereof, being hereinafter referred to as the
"Exercise Price").
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
sometimes referred to as "Warrant Stock."
Upon receipt by the Company of evidence reasonably
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, and upon surrender and
cancellation of this Warrant, if mutilated, the Company shall
execute and deliver 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.
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. This Warrant may be exercised in
whole or in part at any time, or from time to time, during the
period commencing on the Effective Date and expiring 5:00 p.m.
Denver local time on the Expiration Date, or, if such day is a day
on which banking institutions in Denver are authorized by law to
close, then on the next succeeding day that shall not be such a
day, by presentation and surrender hereof to the Company at its
principal office, or at the office of its stock transfer agent, if
any, with the Warrant Exercise Form attached hereto duly executed
and accompanied by payment (either in cash or by certified or
official bank check, payable to the order of the Company) of the
Exercise Price for the number of shares specified in such Form and
instruments of transfer, if appropriate, duly executed by the
Holder or his duly authorized attorney. If this Warrant should be
exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder to purchase the balance of the
shares purchasable hereunder. Upon receipt by the Company of this
Warrant, together with the Exercise Price, at its office, or by the
stock transfer agent of the Company at its office, in proper form
for exercise, 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.
The Company shall pay any and all documentary stamp or similar
issue taxes payable in respect of the issue or delivery of shares
of Common Stock on exercise of this Warrant.
2. Reservation of Shares. The Company will at all times
reserve for issuance and delivery upon exercise of this Warrant
all shares of Common Stock or other shares of capital stock of
the Company (and other securities and property) from time to time
receivable upon exercise of this Warrant. All such shares (and
other securities and property) shall be duly authorized and, when
issued upon such exercise, shall be validly issued, fully paid
and nonassessable and free of all preemptive rights.
3. Absence of Registration under Securities Act of 1933.
3.1 The shares of Common Stock issuable upon exercise of
this Warrant are not presently registered under the Securities
Act of 1933, as amended (the "Securities Act"). This Warrant is
not and will not be registered under the Securities Act.
3.2 The Warrant Stock and the Warrant may be sold or
otherwise disposed of only in accordance with the provisions of
this Section 3.
3.3 The Holder agrees, prior to the transfer of this
Warrant or any Warrant Stock, to give written notice to the
Company of his intention to effect such transfer and to comply in
all other respects with the provisions of this Section 3. Each
such notice shall describe the manner and circumstances of the
proposed transfer and shall be accompanied by the written
opinion, addressed to the Company, of counsel for the Holder, as
to whether in the opinion of such counsel (which counsel and
opinion shall be satisfactory to counsel for the Company) such
proposed transfer may be effected without registration under the
Securities Act; provided, however, that no such opinion shall be
required in connection with a transaction complying with the
requirements of Rule 144 (as amended from time to time)
promulgated under the Securities Act (or successor Rule thereto).
If, in the opinion of such counsel (if such opinion is required
hereunder) and counsel for the Company, the proposed transfer of
this Warrant or any Warrant Stock may be effected without
registration under the Securities Act, the Holder shall thereupon
be entitled to transfer this Warrant or such Warrant Stock in
accordance with the terms of the notice delivered by him to the
Company. Each certificate or other instrument evidencing the
securities issued upon the transfer of this Warrant or any
Warrant Stock (and each certificate or other instrument
evidencing any untransferred balance of such securities) shall
bear the legend described in Section 12 hereafter unless in the
opinion of such counsel and counsel for the Company registration
of future transfer is not required by the applicable provisions
of the Securities Act; provided, however, that such legend shall
not be required on any certificate or other instrument evidencing
the securities issued upon such transfer in the event such
transfer shall be made in compliance with the requirements of
Rule 144 (as amended from time to time) promulgated under the
Securities Act (or successor Rule thereto). The Holder shall not
transfer this Warrant or any Warrant Stock until such opinion of
counsel has been given to the Company (unless waived by the
Company or unless such opinion is not required in accordance with
the provisions of this Section 3) or until any registration of
the Warrant Stock involved in the above-mentioned request has
become effective under the Securities Act.
4. Registration Rights. The Warrant Stock is subject to
certain registration rights as more fully described in the
Placement Agent's Warrant Registration Rights Agreement which is
an Exhibit thereto.
5. Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise
of this Warrant, but the Company shall issue one additional share
of its Common Stock in lieu of each fraction of a share otherwise
called for upon any exercise of this Warrant.
6. Exchange, Transfers, Assignment of Warrant. This
Warrant is not registered under the Securities Act nor under any
applicable state securities law or regulation. This Warrant
cannot be exchanged, transferred or assigned without the prior
written consent of the Company, and then in accordance with the
provisions of Section 3 hereof. Upon such event and upon
surrender of this Warrant to the Company or at the office of its
stock transfer agent, if any, with a duly executed assignment 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.
7. Redemption. At any time commencing six months after
the consummation of the contemplated Public Offering, if such
Public Offering is consummated, this Warrant is redeemable by the
Company, in whole, but not in part, at a price of $.05 for each
share of Common Stock exercisable hereunder, upon at least 30
days' prior written notice, provided that the closing bid price
for the shares of Common Stock as reported by NASDAQ during a
period of 20 consecutive trading days within the 30-day period
prior to the date notice of redemption is given is at least 150%
above the Public Offering price of the shares of Common Stock,
and provided further that at such time there is a current
prospectus relating to the Warrant Stock then in effect, and such
Warrant Stock is qualified for sale or exempt from qualification
under applicable state securities laws of the state in which the
Holder resides.
8. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder of the
Company, either at law or in equity, and the rights of the Holder
are limited to those expressed in this Warrant.
9. Reports. For so long as the Holder is the registered
owner of the Warrant, the Company shall furnish to the Holder one
copy of (i) such financial statements and other periodic reports
as it may from time to time distribute generally to the holders
of any class of its capital stock; and (ii) each annual or other
report it is required to file with the Securities and Exchange
Commission.
10. Standard Antidilution Provisions.
This Warrant shall be subject to adjustment as follows:
10.1 In case the Company shall at any time after the
Effective Date (i) pay a dividend in shares of its capital stock,
(ii) subdivide its outstanding shares of Common Stock, or (iii)
combine its outstanding shares of Common Stock:
(a) the Exercise Price in effect immediately prior to
such date shall be multiplied by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding
on such date before giving effect to such stock dividend,
subdivision, or combination and the denominator of which shall be
the number of shares of Common Stock outstanding after giving
effect thereto; and
(b) the number of shares of Common Stock issuable upon
the exercise of this Warrant immediately prior to the date of the
occurrence of an event specified in (i), (ii) or (iii) above
shall be multiplied by a fraction, the denominator of which shall
be the number of shares of Common Stock outstanding on such date
before giving effect to such stock dividend, subdivision, or
combination and the numerator of which shall be the number of
shares of Common Stock outstanding after giving effect thereto.
10.2 If the Common Stock issuable upon the exercise of this
Warrant shall be changed into the same or a different number of
shares of any class or classes of stock, whether by capital
reorganization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend provided
for in Section 10.1 above, or a reorganization, merger,
consolidation or sale of assets provided for in Section 10.3
below), then, and after such event, the Holder of this Warrant
shall upon the exercise of this Warrant receive the kind and
amount, as reasonably determined by the Company's Board of
Directors, of shares of Common Stock and other securities and
property receivable upon such reorganization, merger,
consolidation, asset sale, reclassification, or other change in
exchange for shares that would have been issued if this Warrant
had been exercised, immediately prior to such reorganization,
reclassification, merger, consolidation, asset sale, or change,
all subject to further adjustment as provided herein.
10.3 If at any time or from time to time there shall be a
reorganization of the Common Stock (other than a subdivision or
combination provided for in Sections 10.1 or 10.2 above) or a
merger or consolidation or the Company with or into another
corporation or other entity, 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 as reasonably determined by the
Company's Board of Directors so that the Holder of the Warrant
shall thereafter be entitled to receive upon exercise of such
Warrant, the number of shares of stock or other securities or
property of the Company or the successor entity resulting from
such merger or consolidation or sale to whom a holder of Common
Stock delivered upon exercise of the Warrant immediately prior to
such reorganization, merger, consolidation or sale, would have
been entitled to receive on such reorganization, merger,
consolidation or sale.
10.4 The adjustments provided for in this Section 10 are
cumulative and shall apply to successive divisions, subdivisions,
combinations, reorganizations, mergers or other events
contemplated herein resulting in any adjustment under the
provisions of this Section, provided that, notwithstanding any
other provision of this Section 10.4, no adjustment of the
Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Exercise
Price then in effect.
10.5 Upon each adjustment of the Exercise Price, the
Company shall give prompt written notice thereof addressed to the
registered Holder at the address of such Holder as shown on the
records of the Company, which notice shall state the Exercise
Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares issuable upon the
exercise of such Holder's Warrant, setting forth in reasonable
detail the method of calculation and the facts upon which such
calculation is based.
10.6 In the event of any question arising with respect to
the adjustments provided for in this Section 10, such question
shall be conclusively determined by an opinion of independent
certified public accountants appointed by the Company (who may be
auditors of the Company) and reasonably acceptable to the Holder
of this Warrant. Such accountants shall have access to all
necessary records of the Company, and such determination shall be
binding upon the Company and the Holder.
10.7 Notwithstanding anything to the contrary contained
herein, the provisions of this Section 10 shall not apply to the
reverse split of the Company's shares of Common Stock
outstanding, as described in the Memorandum.
11. Special Antidilution Provisions. If after the date of
this Warrant, the Company issues or grants any Common Stock or
other securities or options convertible into Common Stock or
other rights to purchase any Common Stock (hereafter such Common
Stock, convertible stock or other securities, and the Common
Stock subject to the purchase right described in this sentence is
referred to as the "Additional Stock" and the date of the
issuance of grant shall be referred to as the "Grant Date"), and
if the consideration received or receivable by the Company upon
the issuance of the Additional Stock or the conversion price used
to determine the number of shares of Common Stock issuable upon
conversion of the convertible security (hereafter such
consideration is referred to as the "Additional Issue Price") is,
prior to the contemplated Public Offering, if such Public
Offering is consummated, less than the exercise price of the
Warrant Stock hereunder, or after the consummation of such Public
Offering, less than the fair market value of the Common Stock at
the Grant Date, then there shall be issued to the Holder that
number of additional shares of Common Stock sufficient so that
the product of (X) the number of shares of Warrant Stock
exercisable hereunder multiplied by (Y) the fair market value of
the Common Stock at the Grant Date is equal to the product of (A)
the Additional Issue Price and (B) the sum of (i) the number of
shares of Warrant Stock exercisable hereunder and (ii) the
additional shares of Common Stock issuable under this Section
11.1. In no event shall the term "Adjustment Stock" refer to, or
will the provisions of this Section 11.1 be applicable to Common
Stock or other securities or options convertible into Common
Stock or other rights to purchase any Common Stock granted or
issued to bona-fide employees and independent consultants to the
Company and any of its subsidiaries.
For purposes of this Section 11, fair market value
shall be determined by the Company's Board of Directors and, if
the Common Stock is listed on a national securities exchange or
traded on the Over-the-Counter market, the fair market value
shall be the closing price of the Common Stock on such exchange,
or on the Over-the-Counter market as reported by the National
Quotation Bureau, Incorporated, as the case may be, on the day on
which the Additional Stock is granted, or, if there is no trading
or closing price on that day, the closing price on the most
recent day preceding the day for which such prices are available.
12. Legend. Upon exercise of this Warrant and the issuance
of any of the Warrant Stock thereunder, all certificates
representing shares shall bear on the face thereof substantially
the following legends:
The shares of common stock 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 an opinion of counsel
to the Corporation is obtained stating that such disposition is
in compliance with an available exemption from such registration.
13. 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 Colorado.
14. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
duly given when delivered by hand, by Federal Express or other
national overnight courier service, or mailed by registered or
certified mail, postage prepaid, return receipt requested, and,
if mailed, shall be deemed to have been received on the third day
after a notice has been sent as follows:
If to the Holder, to the address provided by such
Holder.
If to the Company, at 00 Xxxxxxxxx Xxxxx, Xxxxxxxx X,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000.
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.
NAVIDEC, INC.
By:
------------------------------
Xxxxx Xxxxxx, President
WARRANT EXERCISE FORM
(To be executed by the Registe red Holder
in order to Exercise the Warra nt)
The undersigned hereby irrevocably elects to exercise the
right to purchase shares covered by this Warrant
according to the conditions hereof and herewith makes payment of
the Exercise Price of such shares in full.
Signature
Address
Dated: , 199__
