EXHIBIT 10.34
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED. THIS WARRANT IS FURTHER SUBJECT TO THE RESTRICTIONS ON
TRANSFERABILITY SET FORTH IN SECTION 7(c) HEREOF.
Xxxxx 00, 0000
XXXXXXX TO PURCHASE COMMON STOCK
of
MIGRATEC, INC.
Void after December 31, 2003, subject to Section 1 hereof
This certifies that, for _______________ ($_______) received by
MigraTEC, Inc., a Delaware corporation (the "Company"), __________________or
registered assigns ("Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, a total of _______________ (_______) fully
paid and nonassessable shares of Common Stock, par value $.001 per share, of the
Company ("Common Shares"), as constituted on the date hereof (the "Warrant Issue
Date"), upon surrender hereof, at the principal office of the Company referred
to below, with the subscription form attached hereto duly executed, and
simultaneous payment therefore in lawful money of the United States or otherwise
as hereinafter provided, at the Exercise Price as set forth in Section 2 hereof.
The number, character and Exercise Price of such Common Shares are subject to
adjustment as provided below. The term "Warrant" as used herein shall include
this Warrant and any warrants delivered in substitution or exchange therefore as
provided herein.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable during the term commencing on March
18, 2003 and ending at 5:00 p.m., Central Standard Time, on December 31, 2003;
provided, however, that the Holder may extend the term of this Warrant to 5:00
p.m. CST on December 31, 2004 by the payment to the Company of _______________
($_______) at any time on or before December 31, 2003.
2. Exercise Price. The exercise price (the "Exercise Price") at which
this Warrant may be exercised shall be $0.35 per Common Share, as adjusted from
time to time pursuant to Section 8 hereof.
3. Exercise of Warrant.
(a) This Warrant shall be exercisable by the Holder, in whole
or in part, at any time until this Warrant expires as described in
Section 1 hereof, by the surrender of this Warrant and the Notice of
Exercise annexed hereto duly completed and executed on behalf of the
Holder, at the office of the Company (or such other office or agency of
the Company as it may designate by notice in writing to the Holder at
the address of the Holder appearing on the books of the Company), upon
payment (i) in cash or by check acceptable to the Company, (ii) by
cancellation by the Holder of indebtedness of the Company to the
Holder,
WARRANT TO PURCHASE COMMON STOCK - PAGE 1
or (iii) by a combination of (i) and (ii), of the purchase price of the
Common Shares to be purchased.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender
for exercise as provided in Section 3(a) hereof, and the person
entitled to receive the Common Shares issuable upon such exercise shall
be treated for all purposes as the holder of record of such shares as
of the close of business on such date. As promptly as practicable on or
after such date and in any event within ten (10) days thereafter, the
Company at its expense shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise.
(c) If the Warrant has been exercised in part, the Company
will, at the time of delivery of such certificate or certificates,
deliver to the Holder a new Warrant evidencing the rights of the Holder
to purchase a number of Common Shares with respect to which the Warrant
has not been exercised, which new Warrant will, in all other respects,
be identical with this Warrant, or, at the request of the Holder,
appropriate notation may be made on this Warrant and this Warrant
returned to the Holder.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. Rights of Shareholders. Subject to Sections 8 and 10 hereof, the
Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Shares or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a member of the Company or any right to vote upon any matter submitted
to members at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock
reclassification of stock, change of par value, or change of stock to no par
value, consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised as provided herein.
7. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any
WARRANT TO PURCHASE COMMON STOCK - PAGE 2
portion thereof may change his address as shown on the Warrant Register by
written notice to the Company requesting such change. Any notice or written
communication required or permitted to be given to the Holder may be delivered
or given by mail to such Holder as shown on the Warrant Register and at the
address shown on the Warrant Register. Until this Warrant is transferred on the
Warrant Register of the Company, the Company may treat the Holder as shown on
the Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) hereof, issuing the Common Shares or other securities then
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such registration,
issuance, exchange, or replacement, as the case may be, shall be made at the
office of such agent.
(c) Transferability of Warrant and Shares Issued on Exercise. This
Warrant may not be transferred or assigned by the Holder at any time. The Common
Shares or any other securities of the Company that may at any time be issued on
the exercise of this Warrant may not be transferred or assigned without
compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company). Subject to the provisions of this Warrant with respect to compliance
with the Securities Act of 1933, as amended (the "Act"), and applicable state
securities laws, the Common Shares or any other securities of the Company that
may at any time be issued on the exercise of this Warrant may be transferred.
(d) Exchange of Warrant Upon a Transfer. On surrender of this Warrant
for exchange, properly endorsed and subject to the provisions of this Warrant
with respect to compliance with the Act and with the limitations on assignments
and transfers and contained in this Section 7, the Company at its expense shall
issue to, or on the order of, the Holder a new warrant or warrants of like
tenor, in the name of the Holder, or as the Holder (on payment by the Holder of
any applicable transfer taxes) may direct, for the number of shares issuable
upon exercise hereof.
(e) Compliance with Securities Laws and Legends.
(i) The Holder of this Warrant, by execution and acceptance
hereof, acknowledges that this Warrant and the Common Shares or any
other securities of the Company that may at any time be issued upon
exercise hereof are being acquired solely for the Holder's own account
and not as a nominee for any other party, and for investment, and that
the Holder will not offer, sell or otherwise dispose of this Warrant or
any Common Shares or any other securities of the Company that may at
any time be issued upon exercise hereof except under circumstances that
will not result in a violation of the Act or any state securities laws.
Upon exercise of this Warrant, the Holder shall, if requested by the
Company, confirm in writing, in a form satisfactory to the Company,
that the Common Shares or other securities so purchased are being
acquired solely for the Holder's own account and not as a nominee for
any other party, for investment, and not with a view toward
distribution or resale. Holder agrees that by virtue of the Holder's
business or financial experience, the Holder has the capacity to
evaluate the merits and risks of the purchase of this Warrant and
WARRANT TO PURCHASE COMMON STOCK - PAGE 3
the Common Shares and to protect the Holder's own interests in
connection with the purchase of this Warrant and the Common Shares
hereunder and has the ability to bear the economic risk (including the
risk of total loss) of Holder's investment. The Holder represents that
he is an "accredited investor" as such term is defined in Rule 501
under the Securities Act of 1933.
(ii) All Common Shares or any other securities of the Company
that may at any time be issued upon exercise hereof or conversion
thereof shall be stamped or imprinted with a legend in substantially
the following form (in addition to any legend required by state
securities laws):
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS AND UNTIL
SUCH SECURITIES ARE REGISTERED UNDER SUCH ACT, OR SUCH STATE
LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS
OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.
8. Adjustments. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as follows
8.1. Merger, Sale of Assets, etc. If at any time while this
Warrant is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which
the Company is not the surviving entity, or a reverse triangular merger
in which the Company is the surviving entity but the shares of the
Company's capital stock outstanding immediately prior to the merger are
converted by virtue of the merger into other property, whether in the
form of securities, cash, or otherwise, or (iii) a sale or transfer of
the Company's properties and assets as, or substantially as, an entity
to any other person, then, prior to such reorganization, merger,
consolidation, sale or transfer, the holder of this Warrant may
exercise this Warrant, during the period specified herein and upon
payment of the Exercise Price then in effect, and in the event that any
of the purchase rights represented by this Warrant have not yet vested
in accordance with Section 3(a) hereof prior to such reorganization,
merger, consolidation, sale or transfer, at the option of the new
entity created by such reorganization, merger or consolidation or the
purchaser or transferee in such sale or transfer, (A) the purchase
rights
WARRANT TO PURCHASE COMMON STOCK - PAGE 4
represented by this Warrant shall vest effective immediately prior to
the effective date of such reorganization, merger, consolidation, sale
or transfer or (B) such new entity, purchaser or transferee shall issue
a new warrant to purchase shares of such entity on similar terms as
contained in this Warrant effective as of the closing of such
reorganization, merger, consolidation, sale or transfer.
8.2. Reclassification. If the Company, at any time while this
Warrant remains outstanding and unexpired, by reclassification of
securities or otherwise, shall change any of the securities as to which
purchase rights under this Warrant exist into the same or different
number of securities of any class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change
with respect to the securities that were subject to the purchase rights
under this Warrant immediately prior to such reclassification or other
change and the Exercise Price therefore shall be appropriately
adjusted, all subject to further adjustment as provided in this Section
8.
8.3. Split, Subdivision or Combination of Shares. If the
Company at any time while this Warrant remains outstanding and
unexpired shall split, subdivide or combine the securities as to which
purchase rights under this Warrant exist, into a different number of
securities of the same class, the number of Common Shares issuable upon
exercise of this Warrant shall be proportionately increased in the case
of a split or subdivision or proportionately decreased in the case of a
combination and the Exercise Price for such securities shall be
proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination.
8.4. Adjustments for Dividends in Other Securities or
Property. If while this Warrant remains outstanding and unexpired the
holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the
record date fixed for the determination of eligible members, shall have
been entitled to receive, without payment therefore, other or
additional securities or property (other than cash) of the Company by
way of dividend, then and in each case, this Warrant shall represent
the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant, and without payment
of any additional consideration therefore, the amount of such other or
additional consideration therefore, the amount of such other or
additional securities or property (other than cash) of the Company that
such holder would hold on the date of such exercise had it been the
holder of record of the security receivable upon exercise of this
Warrant on the date hereof and had thereafter, during the period from
the date hereof to and including the date of such exercise, retained
such shares and/or all other securities available by it as aforesaid
during such period, giving effect to all adjustments called for during
such period by the provisions of this Section 8.
8.5. Certificate as to Adjustments. Upon the occurrence of
each adjustment or readjustment pursuant to this Section 8, the Company
at its expense shall promptly compute such adjustment or readjustment
in accordance with the terms hereof and furnish to each Holder of this
Warrant a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment
is based. The Company shall,
WARRANT TO PURCHASE COMMON STOCK - PAGE 5
upon the written request, at any time, of any such Holder, furnish or
cause to be furnished to such Holder a like certificate setting forth:
(i) such adjustments and readjustments; (ii) the Exercise Price at the
time in effect; and (iii) the number of Common Shares and the amount,
if any, of other property that at the time would be received upon the
exercise of the Warrant.
8.6. No Impairment. The Company will not, by any voluntary
action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but
will at all times in good faith assist in the carrying out of all the
provisions of this Section 8 and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the
Holders of this Warrant against impairment.
9. Reservation of Stock. The Company covenants that during the term
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Shares a sufficient number of shares to provide for the issuance
of Common Shares upon the exercise of this Warrant. The Company further
covenants that all shares that may be issued upon the exercise of rights
represented by this Warrant, upon exercise of the rights represented by this
Warrant and payment of the Exercise Price, all as set forth herein, will be free
from all taxes, liens and charges in respect of the issue thereof (other than
taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing certificates representing Common Shares to execute and issue the
necessary certificates for Common Shares upon the exercise of this Warrant.
10. Notices.
(a) Whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section 8 hereof,
the Company shall issue a certificate signed by its President and Chief
Financial Officer or any manager setting forth, in reasonable detail,
the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Exercise Price
and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by
certified or registered mail, return receipt requested) to the Holder
of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of
its Common Shares (or other stock or securities at the time
receivable upon the exercise of this Warrant) for the purpose
of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to
receive any other right; or
(ii) of any capital reorganization of the Company,
any reclassification of the securities of the Company, any
public offering of Common Shares, any consolidation or merger
of the Company with or into another corporation, or any
WARRANT TO PURCHASE COMMON STOCK - PAGE 6
conveyance of all or substantially all of the assets of the
Company to another corporation; or
(iii) of any voluntary dissolution, liquidation or
winding-up of the Company;
then, and in each such case, the Company will mail or cause to be
mailed, registered or certified mail, return receipt requested, to the
Holder or Holders a notice specifying, as the case may be, (A) the date
on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such
dividend, distribution or right, or (B) the date on which such
reorganization, reclassification, public offering, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take
place, and the time, if any is to be fixed, as of which the holders of
record of Common Shares (or such securities at the time receivable upon
the exercise of this Warrant) shall be entitled to exchange their
Common Shares (or such other securities) for securities or other
property deliverable prior to or upon such reorganization,
reclassification, offering, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at
least 45 days prior to the date therein specified. The Holder of this
Warrant shall notify the Company of its election to exercise this
Warrant within 20 days after the date of the Company's notice.
(c) All such notices, advice and communications shall be
deemed to have been received on the date of receipt by the person to
whom it is addressed.
11. Indemnification. The Holder agrees to indemnify, to the extent
permitted by law, the Company and its officers and directors against all losses,
claims, damages, liabilities, expenses and obligations which arise out of or are
based on an assertion that the Company must provide compensation to any entity
affiliated with Holder or which is party to a contract with Holder (other than
the Company) as a result of the Company's issuance of this Warrant to Holder;
provided that, the Holder's duty to indemnify shall be limited to and shall not
exceed the Holder assigning the Holder's right in and to this Warrant and to any
Common Shares purchased upon the exercise of all or part of this Warrant to the
Company or such other indemnitees.
12. Registration Rights. The Company agrees to include the Common
Shares issued upon exercise of this Warrant in the first registration statement
filed by the Company with the Securities and Exchange Commission (the "SEC")
after April 15, 2004 if this Warrant is exercised in full on or before December
31, 2003 or in the first registration statement filed by the Company with the
SEC after April 15, 2005 if the term of this Warrant is extended pursuant to
Section 1 hereof and is thereafter exercised in full on or before December 31,
2004.
13. Amendments.
(a) Any term of this Warrant may be amended with the written
consent of the Company and the holders of the Warrants representing not
less than a majority of the Common Shares issuable upon exercise of any
and all outstanding Warrants. Any amendment effected in accordance with
this Section 13 shall be binding upon each holder of any of the
WARRANT TO PURCHASE COMMON STOCK - PAGE 7
Warrants, each future Holder of all such Warrants, and the Company;
provided, however, that no special consideration or inducement may be
given to any such Holder in connection with such consent that is not
given ratably to all such holders, and that such amendment must apply
to all such Holders equally and ratably in accordance with the number
of Common Shares issuable upon exercise of their Warrants. The Company
shall promptly give notice to all Holders of Warrants of any amendment
effected in accordance with this Section 13.
(b) No waivers of, or exceptions to, any term, condition or
provision of this Warrant, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
14. Authority. This Warrant has been duly authorized and executed by
the Company and constitutes the valid and binding obligation of the Company.
15. Miscellaneous.
15.7. Successors and Assigns. All the covenants and agreements
made by the Company in this Warrant shall bind its successors and
assigns.
15.8. No Waiver. No course of dealing between the Company and
the Holder hereof shall operate as a waiver of any right of any holder
hereof, and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
15.9. Communications. All communications provided for herein
shall be sent, except as maybe otherwise specifically provided, by
registered or certified mail, return receipt requested: if to the
Holder of this Warrant, to the address shown on the books of the
Company and if to the Company, to 00000 Xxxx Xxxx, Xxxxx 000, Xxxxxxx
Xxxxxx, Xxxxx 00000, attention of the President, or to such other
address as the Company may advise the Holder of this Warrant in
writing.
15.10. Headings. The headings of the Sections of this Warrant
are inserted for convenience only and shall not be deemed to constitute
a part of this Warrant.
WARRANT TO PURCHASE COMMON STOCK - PAGE 8
IN WITNESS WHEREOF, the parties have caused this Warrant to be executed
as of the date set forth below.
Dated: March 18, 2003.
MIGRATEC, INC.
By:
----------------------------------
Name: X. Xxxxxx Brechbuhl
Title: President and CEO
HOLDER:
------------------------------
By:
----------------------------------
Name:
-------------------------------
3513820
WARRANT TO PURCHASE COMMON STOCK - PAGE 9
NOTICE OF EXERCISE
To: MigraTEC, Inc.
(1) The undersigned hereby elects to purchase ___________ Common Shares
of MigraTEC, Inc., pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the Common Shares to be issued upon exercise thereof are being
acquired solely for the account of the undersigned and not as a nominee for any
other party, and for investment, and that the undersigned will not offer, sell
or otherwise dispose of any such Common Shares except under circumstances that
will not result in a violation of the Securities Act of 1933, as amended, or any
state securities laws.
(3) Please issue a certificate or certificates representing said shares
of Common Shares in the name of the undersigned or in such other name as is
specified below:
Name
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned.
-----------------------------------
Date Signature
------------------------
