Exhibit 10.1
THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT
AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT OR ANY APPLICABLE STATE
SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO XXXX XXXXX
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Right to Purchase 350,000 shares of Common Stock of
*Xxxx Xxxxx Corporation/Bootie Beer Corporation
(subject to adjustment as provided herein)
COMMON STOCK PURCHASE WARRANT
Issue Date: October 11, 2005
XXXX XXXXX CORPORATION, a corporation organized under the laws of the State of
Florida (the "Company"), hereby certifies that, for services rendered, Xxxx
Xxxxxxx Media, Inc., (the "Holder"), is granted a Warrant to purchase up to
350,000 fully paid and nonassessable shares of the common stock of the Company
(the "Common Stock"), $0.001 par value per share, at a purchase price equivalent
to $1.50 per share of common stock ("Purchase Price"). This Warrant is
exercisable, subject to the terms set forth below, at any time twelve months
after the SEC declares a registration statement filed by the Company effective
until 5:00 p.m., E.S.T on October 11, 2007 (the "Expiration Date"). The number
and character of such shares of Common Stock and the Purchase Price are subject
to adjustment as provided herein. The Company may reduce the Purchase Price
without the consent of the Holder. The Company may, in its sole discretion,
extend the Expiration Date.
As used herein the following terms, unless the context otherwise requires, have
the following respective meanings:
(a) The term "Company" shall include Xxxx Xxxxx Corporation and any
corporation
which shall succeed or assume the obligations of Xxxx Xxxxx
Corporation
hereunder.
(b) The term "Common Stock" includes (a) the Company's Common Stock,
$0.001 par value per share, and (b) any other securities into which
or for which any of the securities described in (a) may be converted
or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person
(corporate or otherwise) which the holder of the Warrant at any time
shall be entitled to receive, or shall have received, on the
exercise of the Warrant, in lieu of or in addition to Common Stock,
or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities
pursuant to Section 3 or otherwise.
1. Exercise of Warrant.
1.1. Number of Shares Issuable upon Exercise. From and after the Issue Date
through and including the Expiration Date, the Holder hereof shall be
entitled to receive, upon exercise of this Warrant in whole in accordance
with the terms of this Section, subject to adjustment pursuant to
Section 3.
1.2 Limitations on Conversion. This Warrant can not be exercised so that the
Holder will own more than 4.99% of the Company's Common Stock. The
Holder may exercise this Warrant in part in compliance with Section 1.4
below in order to comply with this requirement. Additionally, the Holder
may not purchase more than 9.99% of the Company's stock within a thirty
day period.
*On July 27, 2005, Xxxx Xxxxx Corporation completed a stock exchange transaction
with the privately-held Bootie Beer Company. Under the terms of the agreement,
Xxxx Xxxxx issued common stock to the shareholders of Bootie Beer, in exchange
for all of the outstanding shares of Bootie Beer. As a result of the
transaction, Bootie Beer became a wholly owned subsidiary of Xxxx Xxxxx. Xxxx
Xxxxx has applied for the name change to Bootie Beer Corporation and a new
trading symbol.
1.3. Full Exercise. This Warrant may be exercised in full by the Holder
hereof by delivery of an original or facsimile copy of the Form of
Election to Purchase attached as Exhibit A hereto duly executed by such
Holder and surrender of the original Warrant within seven (7) days of
exercise, to the Company at its principal office or at the office of
its Warrant Agent (as provided hereinafter), accompanied by payment,
in cash, wire transfer or by certified or official bank check payable
to the order of the Company, in the amount obtained by multiplying the
number of shares of Common Stock for which this Warrant is then
exercisable by the Purchase Price.
1.4. Partial Exercise. This Warrant may be exercised in part (but not for
a fractional share) by surrender of this Warrant in the manner and at the
place provided in subsection 1.2 except that the amount payable by the
Holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of whole shares of Common Stock designated
by the Holder in the Subscription Form by (b) the Purchase Price. On
any such partial exercise, the Company, at its expense, will forthwith
issue and deliver to or upon the order of the Holder hereof a new Warrant
of like tenor, in the name of the Holder hereof or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may request,
the whole number of shares of Common Stock for which such Warrant may
still be exercised.
1.5. Fair Market Value. Fair Market Value of a share of Common Stock as of a
particular date (the "Determination Date") shall mean:
(a) If the Company's Common Stock is traded on the New York Stock
Exchange, the American Stock Exchange or any other national exchange
or is quoted on the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ"), National Market System or the NASDAQ
SmallCap Market, then the closing or last sale price, respectively,
reported for the last business day immediately preceding the
Determination Date;
(b) If the Company's Common Stock is not traded on the New York Stock
Exchange, the American Stock Exchange or any other national exchange
and is not quoted on the NASDAQ National Market System or the NASDAQ
SmallCap Market, but is traded in the Over-the-Counter market, then
the average of the closing bid and ask prices reported for the last
business day immediately preceding the Determination Date;
(c) Except as provided in clause (d) below, if the Company's Common
Stock is not publicly traded, then as the Holder and the Company
agree, or in the absence of such an agreement, by arbitration in
accordance with the rules then standing of the American Arbitration
Association, before a single arbitrator to be chosen from a panel of
persons qualified by education and training to pass on the matter to
be decided; or
(d) If the Determination Date is the date of a liquidation, dissolution
or winding up, or any event deemed to be a liquidation, dissolution
or winding up pursuant to the Company's charter, then all amounts to
be payable per share to holders of the Common Stock pursuant to the
charter in the event of such liquidation, dissolution or winding up,
plus all other amounts to be payable per share in respect of the
Common Stock in liquidation under the charter, assuming for the
purposes of this clause (d) that all of the shares of Common Stock
then issuable upon exercise of all of the Warrants are outstanding
at the Determination Date.
1.6. Trustee for Warrant Holders. In the event that a bank or trust company
shall have been appointed as trustee for the Holder of the Warrants
pursuant to Subsection 2.2, such bank or trust company shall have all the
powers and duties of a warrant agent (as hereinafter described) and shall
accept, in its own name for the account of the Company or such successor
person as may be entitled thereto, all amounts otherwise payable to the
Company or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 1.
1.7 Delivery of Stock Certificates, etc. on Exercise. The Company agrees that
the shares of Common Stock purchased upon exercise of this Warrant shall
be deemed to be issued to the Holder hereof as the record owner of such
shares as of the close of business on the date on which this Warrant
shall have been surrendered and payment made for such shares as
aforesaid. As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within seven (7) days thereafter, the
Company will cause to be issued in the name of and delivered to the
Holder hereof, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct in compliance with applicable
securities laws, a certificate or certificates for the number of duly
and validly issued, fully paid and nonassessable shares of Common Stock
(or Other Securities) to which such Holder shall be entitled on such
exercise, plus, in lieu of any fractional share to which such Holder
would otherwise be entitled, cash equal to such fraction multiplied by
the then Fair Market Value of one full share of Common Stock, together
with any other stock or other securities and property (including cash,
where applicable) to which such Holder is entitled upon such exercise
pursuant to Section 1 or otherwise.
2. Adjustment for Reorganization, Consolidation, Merger, etc.
2.1. Reorganization, Consolidation, Merger, etc. In case at any time or
from time to time, the Company shall (a) effect a reorganization,
(b) consolidate with or merge into any other person or (c) transfer
all or substantially all of its properties or assets to any other person
under any plan or arrangement contemplating the dissolution of the
Company, then, in each such case, as a condition to the consummation
of such a transaction, proper and adequate provision shall be made by
the Company whereby the Holder of this Warrant, on the exercise hereof
as provided in Section 1, at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Common
Stock (or Other Securities) issuable on such exercise prior to such
consummation or such effective date, the stock and other securities
and property to which such Holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may
be, if such Holder had so exercised this Warrant, immediately prior
thereto, all subject to further adjustment thereafter as provided in
Section 3.
2.2. Dissolution. In the event of any dissolution of the Company following
the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver
or cause to be delivered the stock and other securities and property
receivable by the Holder of the Warrants after the effective date of
such dissolution pursuant to this Section 2 to a bank or trust company
(a "Trustee"), as trustee for the Holder of the Warrants.
2.3. Continuation of Terms. Upon any reorganization, consolidation, merger
or transfer (and any dissolution following any transfer) referred to
in this Section 2, this Warrant shall continue in full force and effect
and the terms hereof shall be applicable to the Other Securities and
property receivable on the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case
may be, and shall be binding upon the issuer of any Other Securities,
including, in the case of any such transfer, the person acquiring all
or substantially all of the properties or assets of the Company. In
the event this Warrant does not continue in full force and effect
after the consummation of the transaction described in this Section 2,
then only in such event will the Company's securities and property
(including cash, where applicable) receivable by the Holder of the
Warrants be delivered to the Trustee as contemplated by Section 2.2.
3. Extraordinary Events Regarding Common Stock. In the event that the
Company shall (a) issue additional shares of the Common Stock as a
dividend or other distribution on outstanding Common Stock, (b) subdivide
its outstanding shares of Common Stock, or (c) combine its outstanding
shares of the Common Stock into a smaller number of shares of the Common
Stock, then, in each such event, the Purchase Price shall, simultaneously
with the happening of such event, be adjusted by multiplying the then
Purchase Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such event
and the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Purchase Price then in effect. The
Purchase Price, as so adjusted, shall be readjusted in the same manner
upon the happening of any successive event or events described herein
in this Section 3. The number of shares of Common Stock that the Holder
of this Warrant shall thereafter, on the exercise hereof as provided in
Section 1, be entitled to receive shall be adjusted to a number
determined by multiplying the number of shares of Common Stock that
would otherwise (but for the provisions of this Section 3) be issuable
on such exercise by a fraction of which (a) the numerator is the Purchase
Price that would otherwise (but for the provisions of this Section 3) be
in effect, and (b) the denominator is the Purchase Price in effect on the
date of such exercise.
4. Reservation of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements. The Company will at all times reserve and keep available,
solely for issuance and delivery on the exercise of the Warrants, all
shares of Common Stock (or Other Securities) from time to time issuable
on the exercise of the Warrant.
5. Assignment; Exchange of Warrant. Subject to compliance with applicable
securities laws, this Warrant, and the rights evidenced hereby, may be
transferred by any registered holder hereof (a "Transferor"). On the
surrender for exchange of this Warrant, with the Transferor's endorsement
attached hereto (the "Transferor Endorsement Form") and together with an
opinion of counsel reasonably satisfactory to the Company that the
transfer of this Warrant will be in compliance with applicable securities
laws, the Company, twice, only, but with payment by the Transferor of
any applicable transfer taxes, will issue and deliver to or on the order
of the Transferor thereof a new Warrant or Warrants of like tenor, in the
name of the Transferor and/or the transferee(s) specified in such
Transferor Endorsement Form (each a "Transferee"), calling in the
aggregate on the face or faces thereof for the number of shares of
Common Stock called for on the face or faces of the Warrant so
surrendered by the Transferor.
6. 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 any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any
such mutilation, on surrender and cancellation of this Warrant, the
Company at the Holder's expense, twice only, will execute and deliver,
in lieu thereof, a new Warrant of like tenor.
7. Registration Rights. The Company has not granted any registration rights in
connection with this warrant. Upon exercise of the warrant, the Holder will
receive unregistered shares of common stock.
8. Warrant Agent. The Company may, by written notice to the Holder of the
Warrant, appoint an agent (a "Warrant Agent") for the purpose of issuing
Common Stock (or Other Securities) on the exercise of this Warrant
pursuant to Section 1, exchanging this Warrant pursuant to Section 5,
and replacing this Warrant pursuant to Section 6, or any of the
foregoing, and thereafter any such issuance, exchange or replacement,
as the case may be, shall be made at such office by such Warrant Agent.
9. Transfer on the Company's Books. Until this Warrant is transferred on
the books of the Company, the Company may treat the registered holder
hereof as the absolute owner hereof for all purposes, notwithstanding
any notice to the contrary.
10. Notices. All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served,
(ii) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (iii) delivered by reputable air courier
service with charges prepaid, or (iv) transmitted by hand delivery,
telegram, or facsimile, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to
be given hereunder shall be deemed effective (a) upon hand delivery or
delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below
(if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second
business day following the date of mailing by express courier service,
fully prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such
communications shall be:
(i) if to the Company to:
Xxxx Xxxxx Corporation
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxx Xxxxxxx, Esq.
0000 Xxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(ii) if to the Holder, to the address and fax number listed on the
first paragraph of this Warrant.
11. Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of Florida. Any dispute
relating to this Warrant shall be adjudicated in the State of Florida.
The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof. The
invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the
date first written above.
XXXX XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: EVP Corporate Strategy
Witness:
EXHIBIT A
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)
To: Xxxx Xxxxx Corporation:
In accordance with the Warrant enclosed with this Form of Election to Purchase,
the undersigned hereby irrevocably elects to purchase _______ shares of Common
Stock ("Common Stock"), of Xxxx Xxxxx Corporation, and, through electronic funds
transfer, wire ________________ in cash, which sum represents the aggregate
Exercise Price (as defined in the Warrant) for the number of shares of Common
Stock to which this Form of Election to Purchase relates, together with any
applicable taxes payable by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of:
____________________________________________
--------------------------------------------
(please print name and address)
____________________________________________
--------------------------------------------
Social Security or Tax Identification number
If the number of shares of Common Stock issuable upon this exercise shall not be
all of the shares of Common Stock which the undersigned is entitled to purchase
in accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise
evidenced hereby be issued in the name of and delivered to:
_______________________________________________________________________________
(Please print name and address)
Dated: Name of Holder:
(By:)
(Name:)
(Title:)
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant)
