EXHIBIT 99.4
THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER THE SECURITIES
ACT OF ANY STATE. THIS SECURITY MAY NOT BE SOLD OR TRANSFERRED EXCEPT WITH THE
CONSENT OF THE COMPANY AND IN TRANSACTIONS (A) REGISTERED UNDER THE 1993 ACT OR
EXEMPT FROM REGISTRATION THEREUNDER, AND (B) REGISTERED UNDER THE APPROPRIATE
STATE SECURITIES ACT OR EXEMPT FROM REGISTRATION THEREUNDER, OR OTHERWISE IN
COMPLIANCE WITH SUCH STATE SECURITIES ACT(S).
WARRANT
For the Purchase of
Common Stock, Par Value $0.00167 Per Share
of
ARMITEC, INC.
Incorporated Under the Laws of the
State of Delaware
Void After 5 P. M. Eastern time
on October 26, 2004
No._______________ Warrant to Purchase 2,000,000
Shares of Common Stock
THIS WARRANT AGREEMENT OF ARMITEC, INC. (the "Warrant") CERTIFIES THAT,
for good and valuable consideration received, Xxxxx Xxxxxx or his successor or
assign (the "Holder") is entitled to subscribe for and purchase during the
period specified in Section 2 hereof up to 2,000,000 fully paid and
non-assessable shares of common stock of ARMITEC, INC., a Delaware corporation
(the "Corporation"), at a per share price equal to Fifteen Cents ($0.15) per
share (the "Warrant Price"), subject to adjustment as provided herein and to the
restrictions set forth herein.
1. Accrual of Right. During and throughout the term of that
certain Consulting Agreement between the Company and the Holder of even date
herewith (the "Consulting Agreement"), Holder's rights to exercise this Warrant
to purchase up to 2,000,000 shares of Common Stock will accrue pro rata in
proportion to the percentage of the Anticipated Consulting Period (as defined in
the Consulting Agreement) which has elapsed. If, prior to the expiration of the
Anticipated Consulting Period, the Consulting Agreement is terminated either (i)
by the Company, without Cause (as defined in the Consulting Agreement), or (ii)
by Holder, with Cause, then Holder's rights hereunder will be deemed fully
accrued as of the effective date of the termination. If, prior to the expiration
of the Anticipated Consulting Period, the Consulting Agreement is terminated
either (i) by Holder, without Cause, or (ii) by the Company, with Cause, then
Holder's rights hereunder will be deemed to accrue through, and only through,
the effective date of the termination. Holder may, at any time, exercise any and
all accrued but unexercised rights to acquire shares of Common Stock pursuant to
the terms of this Warrant.
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2. Duration. The right to subscribe for and purchase shares of
Common Stock represented hereby shall commence on the date hereof, and shall
expire at 5:00 p.m., Eastern Time, on the October 26, 2004 (the "Expiration
Date"). From and after the Expiration Date this Warrant shall be null, void and
of no further force or effect.
3. Method of Exercise; Payment; Issuance of New Warrant; Cashless
Exercise.
(a) Subject to the remainder hereof, the Holder hereof
may exercise this Warrant, in whole or in part, at the times and
subject to the conditions set forth in Sections 1 and 2 hereof by the
surrender of this Warrant (with the subscription form attached hereto
duly executed) at the principal office of the Corporation, along with
payment in good funds in the aggregate amount equal to the Warrant
Price multiplied by the number of shares of Common Stock being
purchased. In the event of any exercise of the rights represented by
this Warrant, (i) stock certificates for the shares of Common Stock so
purchased shall be delivered to the holder hereof, and, in the event
the Warrant has not been exercised in full, a new Warrant representing
the number of shares with respect to which this Warrant shall not then
have been exercised shall also be delivered to the holder hereof, and
(ii) stock certificates for the shares of Common Stock so purchased
shall be dated the date of exercise of this Warrant, and the holder
exercising this Warrant shall be deemed for all purposes to be the
holder of the shares of Common Stock so purchased as of the date of
such exercise. Such stock certificates (and new Warrant, if applicable)
shall be delivered to the Holder hereof within a reasonable time, not
exceeding ten (10) business days, after the rights represented by this
Warrant shall have been so exercised. Each stock certificate so
delivered shall be in such denominations as may be requested by the
Holder hereof and shall be registered in the name of said Holder or
such other name (upon compliance with the transfer requirements
hereinafter set forth) as shall be designated by the Holder. The
Corporation shall pay all taxes and other expenses and charges payable
in connection with the preparation, execution and delivery of stock
certificates (and new Warrants, if applicable) pursuant to this
paragraph except that, in case such stock certificates shall be
registered in a name or names other than the holder of this Warrant or
its nominee, funds sufficient to pay all stock transfer taxes which
shall be payable in connection with the execution and delivery of such
stock certificates shall be paid by the Holder hereof to the
Corporation at the time of the delivery of such stock certificates by
the Corporation as mentioned above.
(b) Notwithstanding any other provision of this Warrant
which might otherwise be construed to the contrary, upon any exercise
of this Warrant, Holder may, in lieu of payment of the current Warrant
Price in cash, surrender this Warrant (or any successor hereto or
fraction hereof) (valued for such purpose at the current market price
of the underlying Common Stock for which such Warrant is exercisable on
the date of such exercise less the current Warrant Price then in
effect) and apply all or a portion of the amount so determined to the
payment of the current Warrant Price for the number of shares of Common
Stock being purchased.
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4. Adjustment of Warrant Price and Number of Shares.
(a) The Warrant Price and the number of shares of Common
Stock purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the happening of certain events
occurring after the original issuance date, as follows:
(i) Reclassification, Consolidation or Merger.
In case of any reclassification or change of outstanding
Common Stock issuable upon exercise of this Warrant (other
than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a
subdivision or combination), or in case of any consolidation
or merger of the Corporation with or into another corporation
(other than a merger with another corporation in which the
Corporation is the surviving corporation and which does not
result in any reclassification or change other than a change
in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or
combination of outstanding Common Stock issuable upon such
conversion) the rights of the Holder of this Warrant shall be
adjusted in the manner described below:
(A) In the event that the Corporation
is the surviving corporation, the Warrant shall,
without payment of additional consideration therefor,
be deemed modified so as to provide that upon
exercise thereof the Holder of this Warrant shall
procure, in lieu of each share of Common Stock
theretofore issuable upon such exercise, the kind and
amount of shares of stock, other securities, money
and property receivable upon such reclassification,
change, consolidation or merger by the Holder of each
share of Common Stock issuable upon such exercise had
exercise occurred immediately prior to such
reclassification, change, consolidation or merger.
This Warrant (as adjusted) shall be deemed to provide
for further adjustments which shall be as nearly
equivalent as may be practicable to the adjustments
provided for in this Section 4. The provisions of
this clause (1) shall similarly apply to successive
reclassifications, changes, consolidations and
mergers.
(B) In the event that the Corporation
is not the surviving corporation, the surviving
corporation shall, without payment of any additional
consideration therefor, issue new Warrants, providing
that upon exercise thereof the Holder thereof shall
procure in lieu of each share of Common Stock
theretofore issuable upon exercise of this Warrant
the kind and amount of shares of stock, other
securities, money and property receivable upon such
reclassification, change, consolidation or merger by
the Holder of each share of Common Stock issuable
upon exercise of this Warrant had such exercise
occurred immediately prior to such reclassification,
change, consolidation or merger. Such new Warrants
shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the
adjustments provided for in this Section 4. The
provisions of this Section 2(a)(i)(B) shall similarly
apply to successive reclassifications, changes,
consolidations and mergers.
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(ii) Subdivision or Combination of Shares. If the
Corporation, at any time while any of this Warrant is
outstanding, shall subdivide or combine its Common Stock, the
Warrant Price shall be proportionately reduced, in case of
subdivision of shares, as of the effective date of such
subdivision, or if the Corporation shall take a record of
holders of its Common Stock for the purpose of a subdividing,
as of such record date, whichever is earlier, or shall be
proportionately increased, in the case of combination of
shares, as of the effective date of such combination or, if
the Corporation shall take a record of holders of its Common
Stock for the purpose of so combining, as of such record date,
whichever is earlier.
(iii) Certain Dividends and Distributions. If the
Corporation, at any time while any of this Warrant is
outstanding, shall:
(A) Stock Dividends. Pay a dividend
payable in, or make any other distribution of Common
Stock, the Warrant Price shall be adjusted, as of the
date the Corporation shall take a record of the
holders of its Common Stock for the purpose of
receiving such dividend or other distribution (or if
no such record is taken, as of the date of such
payment or other distribution), to that price
determined by multiplying the Warrant Price by a
fraction (1) the numerator of which shall be the
total number of shares of Common Stock outstanding
immediately prior to such dividend or distribution
and (2) the denominator of which shall be the total
number of shares of Common Stock outstanding
immediately after such dividend or distribution (plus
in the event that the Corporation paid cash for
fractional shares, the number of additional shares
which would have been outstanding had the Corporation
issued fractional shares in connection with said
dividend or distribution); or
(B) Liquidating Dividends, etc. Make a
distribution of its property to the holders of its
Common Stock as a dividend in liquidation or partial
liquidation or by way of return of capital or other
than as a dividend payable out of funds legally
available for dividends under the laws of the State
of Delaware, the Holder of this Warrant shall, upon
exercise hereof, be entitled to receive, in addition
to the number of shares of Common Stock receivable
hereupon, and without payment of any consideration
therefor, a sum equal to the amount of such property
as would have been payable to them as owners of that
number of shares of Common Stock of the Corporation
receivable upon such exercise, had they been the
holders of record of such Common Stock on the record
date for such distribution; and an appropriate
provision therefor shall be made a part of any such
distribution.
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(iv) Adjustment of Number of Shares. Upon each
adjustment in the Warrant Price pursuant to any provision of
this Section 4, the number of shares of Common Stock issuable
upon exercise hereof shall be adjusted, to the nearest one
hundredth of a whole share, to the product obtained by
multiplying the number of shares issuable upon exercise hereof
immediately prior to such adjustment in the Warrant Price by a
fraction, the numerator of which shall be the Warrant Price
immediately prior to such adjustment and the denominator of
which shall be the Warrant Price immediately thereafter.
(b) Notice of Adjustments. Whenever any Warrant Price
shall be adjusted pursuant to Section 4 hereof, the Corporation shall
make a certificate signed by its President or a Vice President and by
its Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such
adjustment was calculated (including a description of the basis on
which the Board of Directors of the Corporation made any determination
hereunder), and the Warrant Price after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant at its
address shown on the books of the Corporation. The Corporation shall
make such certificate and mail it to the Holder promptly after each
adjustment.
5. Payment of Current Warrant Price with Warrants. Upon any
exercise of this Warrant as provided in Section 1, the Holder may, in lieu of
the payment of the Warrant Price in cash, surrender this Warrant (or any
successor hereto or fraction hereof) valued for such purpose at the Current
Market Price (as defined below) less the Warrant Price and apply all or a
portion of the amount so determined to the payment of the Warrant Price for the
number of shares of Common Stock being purchased. For purposes of this Warrant,
the "Current Market Price" shall mean the average closing price of the
Corporation's Common Stock as quoted on the OTC Bulletin Board for the previous
ten (10) day period.
6. Shares to be Fully Paid; Reservation of Shares. The
Corporation covenants and agrees that all Common Stock issued upon exercise of
this Warrant will, upon issuance, be fully paid and non-assessable and free from
preemptive rights and all taxes, liens and charges with respect to the issuance
thereof. The Corporation further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Corporation will at all times have authorized, and reserved for the purpose of
issue upon exercise of the subscription rights evidenced by this Warrant, a
sufficient number of shares of Common Stock to provide for the exercise in full
of the rights represented by this Warrant (including any and all shares as to
which the right to acquire such shares has not been forfeited pursuant to
Section 1 hereof). The Corporation warrants and represents that this Warrant
shall be binding upon any corporation or other entity succeeding to the
Corporation by merger, consolidation or acquisitions of all or substantially all
of the Corporation's assets. Furthermore, and without limiting the generality of
the foregoing, the Corporation covenants and agrees that it will from time to
time take all such action as may be required to assure that the par value per
share of Common Stock is at all times equal to or less than the effective
Warrant Price.
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7. Transfer and Exchange.
(a) The transfer of this Warrant and all rights
hereunder, in whole or in part, is registerable at the office or agency
of the Corporation referred to below by the Holder hereof in person or
by his/her duly authorized attorney, upon surrender of this Warrant
properly endorsed. Each taker and holder of this Warrant, by taking or
holding the same, consents and agrees that this Warrant, when endorsed
in blank, shall be deemed negotiable, and that the Holder hereof, when
this Warrant shall have been so endorsed, may be treated by the
Corporation and all other persons dealing with this Warrant as the
absolute owner and Holder hereof for any purpose and as the person
entitled to exercise the rights represented by this Warrant, or to the
registration of transfer hereof on the books of the Corporation; and
until due presentment for registration of transfer on such books the
Corporation may treat the registered Holder hereof as the owner and
holder for all purposes, and the Corporation shall not be affected by
notice to the contrary.
(b) The Holder of this Warrant, by acceptance hereof,
understands that the Warrant and Common Stock issuable upon exercise
hereof (collectively, "Warrant Securities") are characterized as
"restricted securities" under the federal securities laws inasmuch as
they are being or will be acquired from the Corporation in a
transaction not involving a public offering and that under such laws
and applicable regulations neither this Warrant nor the shares of
Common Stock issuable upon its exercise may be resold without
registration under the Securities Act or under certain other limited
circumstances. The Holder further agrees, by acceptance hereof that it
will not offer or sell this Warrant or any shares of Common Stock
issued upon exercise hereof in the absence of an effective registration
statement for the Warrant or such Common Stock, as applicable, under
the 1933 Act and such state or other laws as may be applicable, or
receipt by the Corporation of a written opinion of counsel (provided
that such counsel, and the form and substance of such opinion are
reasonably satisfactory to the Corporation) that such registration is
not required. Furthermore, it is agreed that each Warrant and any
shares of Common Stock will include the appropriate variant of the
following legend:
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR UNDER THE SECURITIES ACT OF ANY STATE.
THIS WARRANT MAY NOT BE OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND SUCH STATE OR OTHER
LAWS AS MAY BE APPLICABLE, OR RECEIPT BY THE CORPORATION OF AN
OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
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The Holder of this Warrant and/or any Common Stock issued upon
exercise hereof shall be entitled to receive, without expense to such Holder, a
new certificate or Warrant, as the case may be, not bearing the above
restrictive legend if (1) such securities shall have been effectively registered
under the 1933 Act and sold by the Holder thereof in accordance with such
registration, (2) receipt by the Corporation of a written opinion to the effect
that such restrictions are no longer required or necessary under any federal or
state securities law or regulation have been received from counsel for the
Holder thereof (provided that such counsel, and the form and substance of such
opinion are reasonably satisfactory to the Corporation), (3) such security shall
have been sold without registration under the 1933 Act in compliance with Rule
144 or Rule 144A, (4) the Corporation is reasonably satisfied that the Holder of
such security shall, in accordance with the terms of Rule 144(k), be entitled to
sell such security pursuant thereto, or (5) a letter or order shall have been
issued to the Holder thereof by the Securities and Exchange Commission or its
staff stating that no enforcement shall be recommended if such security is
transferred without registration under the 1933 Act in accordance with the
conditions set forth in such letter or order, which specifies that no subsequent
restrictions on transfer are required.
8. Warrants Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder hereof at the
office for new Warrants of like tenor representing in the aggregate the right to
subscribe for and purchase the number of shares which may be subscribed for and
purchased hereunder (and without changing, in the aggregate, the number of
shares constituting any tranche), each of such new Warrants to represent the
right to subscribe for and purchase such number of shares as shall be designated
by said holder hereof at the time of such surrender.
9. Cancellation; Payment of Expenses. Upon the surrender of this
Warrant in connection with any exchange, transfer or replacement, this Warrant
shall be promptly cancelled by the Corporation. The Corporation shall pay all
taxes (other than securities transfer taxes) and all other expenses and charges
payable in connection with the preparation, execution and delivery of Warrants.
10. Public Information. The Corporation covenants and agrees that
if and so long as the Common Stock shall be registered under Section 12 of the
Securities and Exchange Act of 1934, at any time when any the Holder desires to
make sales of any Warrant Securities in reliance on Rule 144 or Rule 144A under
the Securities Act either: (i) there will be available adequate current public
information with respect to the Corporation as required by Rule 144 or Rule
144A; or (ii) if such information is not available the Corporation will use its
best efforts to make such information available without delay.
11. Notices. All notices, requests and other communications
required or permitted to be given or delivered to the Corporation or the Holder
shall be in writing, and shall be deemed properly given if hand delivered or
sent by overnight courier with adequate evidence of delivery or sent by
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registered or certified mail, return receipt requested and, if to the Holder, at
the Holder's address as shown on the books of the Corporation or its transfer
agent, and if to the Corporation at:
Armitec, Inc.
0000 X-0 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
If to the Holder at:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
or such other addresses or persons as the recipient shall have designated to the
sender by written notice given in accordance with this Section. Any notice,
request or other communication hereunder shall be deemed given when delivered in
person, on the next business day after being sent by overnight courier, or on
the second business day after being sent by registered or certified mail.
12. Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware without regard to the
principles of conflicts of laws.
13. Remedies. The Corporation stipulates that the remedies at law
of the Holder in the event of any default or threatened default by the
Corporation in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Miscellaneous.
(a) Amendments. The Warrant and any provision hereof may
be amended or waived only by an instrument in writing signed by the
Holder, and, if it is to be bound thereby, by the Corporation.
(b) Descriptive Headings. The descriptive headings of the
several paragraphs of this Warrant are inserted for purposes of
reference only, and shall not affect the meaning or construction of any
of the provisions hereof.
(c) Loss, Destruction of Warrants. Upon the receipt of
evidence satisfactory to the Corporation of the loss, theft, mutilation
or destruction of any Warrant, and in the case of any such loss, theft
or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the Corporation, or in
the event of such mutilation upon surrender and cancellation of the
Warrant, the Corporation will make and deliver a new Warrant, of like
tenor, in lieu of such lost, stolen, destroyed or mutilated Warrant.
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Any Warrant issued under the provisions of this Section 12 in lieu of
any Warrant alleged to be lost, destroyed or stolen, or in lieu of any
mutilated Warrant, shall constitute an original contractual obligation
on the part of the Corporation.
Dated: ______________, 2001 ARMITEC, INC.
By:___________________________
Name:_________________________
Title:________________________
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EXHIBIT A
ARMITEC, INC.
Subscription Form
(To be executed by the registered holder to exercise the right to purchase
Common Stock)
Armitec, Inc.
0000 X-0 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
The undersigned hereby irrevocably subscribes for the purchase of
_________ shares of your Common Stock pursuant to and in accordance with the
terms and conditions of this Warrant, and herewith makes payment, covering the
purchase of such Common Stock. Certificates for the shares of Common Stock
should be delivered to the undersigned at the address stated below. If such
number of shares of Common Stock shall not be all of the shares of Common Stock
purchasable hereunder, please deliver a new Warrant of like tenor for the
balance of the remaining shares of Common Stock purchasable hereunder to the
undersigned at the address stated below.
The undersigned agrees that: (1) the undersigned will not offer, sell,
transfer or otherwise dispose of any such shares of Common Stock being purchased
hereunder unless either (a) a registration statement covering the sale of such
shares of Common Stock has been filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"), and
such sale, transfer or other disposition is accompanied by a prospectus meeting
the requirements of Section 10 of the Act forming a part of such registration
statement, or post-effective amendment thereto, which is in effect under the Act
covering the sale of the shares of Common Stock to be sold, transferred or
otherwise disposed of, or (b) counsel acceptable to Armitec, Inc. and
satisfactory to the undersigned has rendered an opinion acceptable to the
Corporation in writing and addressed to the Corporation that such proposed
offer, sale, transfer or other disposition of the shares of Common Stock is
exempt from the provisions of Section 5 of the Act in view of the circumstances
of such proposed offer, sale, transfer or other disposition; and (2) the
Corporation may affix the legend set forth in Section 7 of this Warrant to the
certificates for shares of Common Stock hereby subscribed for and purchasable
upon exercise of the Warrants, if such legend is applicable.
Dated:________________________ Signed:__________________________________
Signature guaranteed: Address__________________________________
__________________________________
