Exhibit 4.11
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO eRESOURCE CAPITAL GROUP, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
COMMON STOCK PURCHASE WARRANT
-----------------------------
TO PURCHASE COMMON STOCK
OF
eRESOURCE CAPITAL GROUP, INC.
----------------------------
This is to certify that Noble International Investments, Inc.
(the "Holder") is entitled, subject to the terms and
conditions hereinafter set forth, to purchase fifty thousand
(50,000) shares (the "Common Shares") of common stock, par
value $.04 per share (the "Common Stock"), of eRESOURCE
CAPITAL GROUP, INC., a Delaware corporation (the "Company"),
from the Company at the price per share and on the terms set
forth herein and to receive a certificate for the Common
Shares so purchased on presentation and surrender to the
Company of this Common Stock Purchase Warrant (this "Warrant")
with the Notice of Exercise substantially in the form
attached, duly executed and accompanied by payment of the
aggregate purchase price of each share purchased either in
cash, by wire transfer, or by certified or bank cashier's
check or other check payable to the order of the Company.
1. Exercise of Warrants. The purchase rights represented by this Warrant are
exercisable at the option of the registered owner hereof in whole or in part,
from time to time, within the period specified below; provided, however, that
such purchase rights shall not be exercisable with respect to a fraction of a
Common Share. In case of the purchase of less than all the Common Shares
purchasable under this Warrant, the Company shall cancel this Warrant on
surrender hereof and shall execute and deliver a new Warrant of like tenor and
date for the balance of the shares purchasable hereunder.
(a) Exercise Price. The exercise price (the "Exercise Price")
shall be One Dollar and Ten Cents ($1.10) per Common Share, subject to
adjustment pursuant to Section 3 below.
(b) Expiration of Warrant Term. The Warrant will expire (i) at midnight
on the date three (3) years from the date hereof, (ii) the expiration of the
seventy-two (72) hour notice period described in Section 2 below or (iii) the
date on which the Warrant has been exercised or cancelled with respect to all
Common Shares.
2. Warrant Call. At any time after the closing bid of the Common Stock exceeds
Four Dollars ($4.00) per share for ten (10) consecutive trading days or more,
the Company may require the Holder to exercise all or any portion of this
Warrant within seventy-two (72) hours of the Company providing written notice to
the Holder of the Company's intention to call the Warrant. In the event this
Warrant has not been exercised by written notice within such seventy-two (72)
hour notice period, this Warrant will terminate as of such date and be cancelled
and may not be exercised thereafter.
3. Anti-Dilution. In the event that the outstanding Common Shares hereafter are
changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation by reason of merger,
consolidation, reorganization, recapitalization, reclassification, combination
of shares, stock split-up or stock dividend (not including shares pursuant to
acquisitions classified as mergers, reorganizations or share exchanges):
(a) The aggregate number, price and kind of Common Shares subject to
this Warrant shall be adjusted appropriately by the Board of Directors of the
Company;
(b) Rights under this Warrant, both as to the number of subject Common
Shares and the Exercise Price, shall be adjusted appropriately by the Board of
Directors of the Company; and
(c) In the event of dissolution or liquidation of the Company or any
merger or combination in which the Company is not a surviving corporation, this
Warrant shall terminate, but the registered owner of this Warrant shall have the
right, immediately prior to such dissolution, liquidation, merger or
combination, to exercise this Warrant in whole or in part to the extent that it
shall not have been exercised.
1
The foregoing adjustments and the manner of application of the
foregoing provisions may provide for the elimination of fractional share
interests.
4. Covenants of the Company. The Company agrees at all times to reserve or hold
available a sufficient number of shares of Common Stock to provide for the
issuance of the Common Shares upon exercise of this Warrant.
5. Covenants of the Holder. The Holder acknowledges, recognizes and agrees that
(i) unless a Registration Statement is effective and current with respect to the
underlying Common Shares, sales may only be made pursuant to Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act") and (ii) the Company
is not required to satisfy the conditions of Rule 144 or any other rule or
provision with respect to the sale of the Common Shares.
6.Conditions to Exercise of Warrant. The Holder shall have the right to
exercise all or a portion of this Warrant upon the satisfaction of the following
conditions:
(a) The completion of any required registration or other
qualification of the Common Shares under any federal or state
law or under the rulings or regulations of the Securities and
Exchange Commission or any other government regulatory body
which is necessary;
(b) The obtaining of any approval or other clearance from
any federal or state government agency which is necessary;
(c) The obtaining from the registered owner of the Warrant, as required
in the sole judgment of the Company, of such representations and warranties as
the Company may determine to comply with applicable laws and regulations,
including a representation in writing that the owner is acquiring such Common
Shares for the owner's own account for investment and not with a view to, or for
sale in connection with, the distribution of any part thereof, if the Warrants
and the related shares have not been registered under the Act; and
(d) The placing on the certificate (and any exchanged or substitute
certificates), as required in the sole judgment of the Company, of an
appropriate legend and the issuance of stop transfer instructions in connection
with this Warrant and the underlying Common Shares to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE LAWS OF ANY STATE
AND HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION
PERTAINING TO SUCH SECURITIES AND PURSUANT TO A REPRESENTATION BY THE
SECURITY HOLDER NAMED HEREON THAT SAID SECURITIES HAVE BEEN ACQUIRED
FOR PURPOSES OF INVESTMENT AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION. FURTHERMORE, NO
OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS TO TAKE PLACE WITHOUT
THE PRIOR WRITTEN APPROVAL OF COUNSEL OR THE ISSUER BEING AFFIXED TO
THIS CERTIFICATE. THE TRANSFER AGENT HAS BEEN ORDERED TO EXECUTE
TRANSFERS OF THIS CERTIFICATE ONLY IN ACCORDANCE WITH THE ABOVE
INSTRUCTIONS."
7. Rights of Holder Before Exercise. This Warrant shall not entitle the Holder
to any voting rights or other rights as a shareholder of the Company, or to any
other rights whatsoever except the rights herein expressed and set forth, and no
dividends shall be payable or accrue in respect of this Warrant or the interest
represented hereby or the Common Shares purchasable hereunder until or unless,
and except to the extent that, this Warrant shall be exercised.
8. Non-Transferability of Warrant.....This Warrant and all rights hereunder are
neither assignable nor transferable by the Holder, except to Xxxx X. Xxxxx
and/or Xxxxx X. Xxxxx, without the Company's prior written consent and, if so
requested by the Company, the delivery by the Holder to the Company of an
opinion of counsel in form and substance satisfactory to the Company stating
that such transfer or assignment is in compliance with the Securities Act and
any applicable state securities laws. More particularly, without limiting the
generality of the foregoing, this Warrant may not be assigned, transferred
(except as provided above), pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to execution, attachment
or similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of this Warrant contrary to the provisions hereof shall be
without legal effect.
2
9. Amendment. Neither this Warrant nor the rights granted hereunder may be
amended, changed or waived except in writing signed by each party hereto.
10. Notice. The address of record for Holder maintained by the Company for all
purposes of this Warrant shall be that address set forth beneath Holder's
signature below. Any notice to be delivered to the Company shall be sent to:
0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000, Attention: Chief Executive
Officer. Holder may change its address of record only by notifying the Company
in the manner prescribed herein. All notices, requests, and other communications
required or permitted to be given or delivered hereunder to either party must be
in writing, and shall be personally delivered, sent by certified or registered
mail, postage prepaid or by overnight courier (such as Federal Express) to such
party at the address of record. Any notice under this Warrant shall be deemed to
have been sufficiently given or served and effective for all purposes when
deposited with the United States Postal Service or overnight courier.
11. Registration Rights.
(a) If the Company proposes to register any equity security (as
defined in Section 3(a)(11) of the Securities Exchange Act of 1934, as
amended) under the Securities Act on any registration form prescribed
by the Securities and Exchange Commission (the "Commission")
permitting a secondary offering or distribution other than Form S-8
(and other than a registration filed in connection with an exchange
offering or an offering of securities solely to existing holders of
the Company's securities), not less than 30 days prior to each such
registration, the Company shall give to the Holder written notice of
such proposal which shall describe in detail the proposed registration
and distribution (including those jurisdictions where registration or
qualification under the securities or blue sky laws is intended) and,
upon the written request of the Holder given within 15 days after the
date of any such notice, proceed to include in such registration such
shares issued or issuable upon the exercise of this Warrant as have
been requested by the Holder to be included in such registration. The
Company will in each instance use its commercially reasonable efforts
to cause any shares issued or issuable hereunder to be registered
under the Securities Act and qualified under the securities or blue
sky laws of any jurisdiction requested by a prospective seller;
provided, that in the event such registration is an underwritten
primary offering on behalf of the Company and the managing
underwriters advise the Company in writing that, in their opinion, the
number of securities requested to be included in such registration
exceeds the number which can be sold in such offering, the Company
will include in such registration (i) first, the aggregate number of
securities to be issued by the Company, (ii) second, the shares issued
or issuable hereunder requested to be included in such registration
and (iii) third, other securities requested to be included in such
registration; and provided, further, that to the extent such priority
violates any agreement of the Company outstanding prior to the date
hereof with respect to registration of its equity securities, the
shares covered in any such agreement shall be treated on a pro rata
basis with the shares issued or issuable hereunder requested to be
included in such registration. The Company shall select the managing
underwriters for any offering made pursuant to this Section 11.
(b) The registration rights contained in this Section 11 shall
terminate at such time as all of the Warrant shares are sold pursuant
to an effective registration statement under the Securities Act.
(c) If the Company is required by the provisions of this Section 11 to
use its commercially reasonable efforts to effect the registration or
qualification under the Securities Act or any state securities or blue
sky laws of any Common Stock issued or issuable upon the exercise of
this Warrant, the Company will pay all expenses (other than
underwriters' discounts and commissions with respect to such shares
and legal fees and expenses of the Holder) in connection therewith,
including, without limitation, (a) registration fees, (b) printing
expenses, (c) accounting and legal fees and expenses, (d) expenses of
any special audits incident to or required by any such registration or
qualification of the Company, (e) expenses of complying with the
securities or blue sky laws of any jurisdictions in connection with
such registration or qualification and (f) all listing and other stock
exchange fees.
(d) In connection with any registration or qualification of securities
under this Section 11, the Company hereby agrees to indemnify the
Holder, including each person, if any, who controls the Holder or such
stockholder within the meaning of the Securities Act, against all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) caused by any (i) breach of any
representation, warranty or covenant of the Company contained in any
underwriting agreement relating to such offering and (ii) untrue , or
alleged untrue, statement of a material fact contained in any
registration statement, prospectus or notification or offering
circular (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or caused by any
omission, or alleged omission, to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by any untrue statement or
alleged untrue statement or omission or alleged omission based upon
information furnished in writing to the Company by the Holder. The
3
Holder hereby agrees to indemnify the Company and each officer,
director and controlling person of the Company within the meaning of
the Securities Act against all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) caused by
any (i) breach of any representation, warranty, covenant or agreement
of Holder contained in any underwriting agreement relating to such
offering and (ii) untrue, or alleged untrue, statement of a material
fact contained in any registration statement, prospectus or
notification or offering circular (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto)
and caused by any omission, or alleged omission, to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was based upon information furnished in writing to the
Company by Holder and contemplated for use therein.
Any person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that failure to give or delay giving such notice
shall not relieve the indemnifying party of any indemnification obligation
hereunder or otherwise except to the extent that the indemnifying party is
prejudiced by such failure or delay), and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
reasonably withheld).
The indemnification provided for herein will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling person or such indemnified party
and will survive the transfer of the Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, each of the Company and Holder has caused this
Common Stock Purchase Warrant to be executed by the signature of its duly
authorized officer as of this 16th day of March, 2001.
COMPANY:
eRESOURCE CAPITAL GROUP, INC.
By:--------------------------
Xxxxxxx X. Xxxxxx
Its: Chief Executive Officer
HOLDER:
NOBLE INTERNATIONAL INVESTMENTS, INC.
By:------------------------------
Print Name:----------------------
Its:-----------------------------
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
5
NOTICE OF EXERCISE
(To be executed by the Holder to exercise the rights to
purchase Common Shares evidenced by the within Common Stock
Purchase Warrant.)
eRESOURCE CAPITAL GROUP, INC.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
The undersigned hereby irrevocably elects to exercise its
right to purchase ---------- Common Shares pursuant to and in
accordance with the terms and conditions of this Common Stock
Purchase Warrant, and herewith makes payment of
$---------------- therefor, and requests that a certificatefor
such Common Shares be issued in the name of the undersigned
and be delivered to the undersigned at the address stated
below, and if such number of shares shall not be all of the
shares purchasable hereunder, that a new Common Stock Purchase
Warrant of like tenor for the balance of the remaining Common
Shares purchasable hereunder shall be delivered to the
undersigned at the address stated below.
Dated:-------------
NOBLE INTERNATIONAL INVESTMENTS, INC.
By:--------------------------------
Print Name:------------------------
Its:-------------------------------
Address: 0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
