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EXHIBIT 2.4
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE
COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY
(A) TO THE COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT, OR (C) IF REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. IN ADDITION, A SECURITIES PURCHASE AGREEMENT
("PURCHASE AGREEMENT"), DATED DECEMBER 7, 1998, A COPY OF WHICH MAY BE OBTAINED
FROM THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL
AGREEMENTS AMONG THE PARTIES, INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH
LIMIT THE EXERCISE RIGHTS OF THE HOLDER AND SPECIFY MANDATORY REDEMPTION
OBLIGATIONS OF THE COMPANY. THE PURCHASE AGREEMENT APPLIES TO THIS WARRANT ONLY
TO THE EXTENT EXPRESSLY REFERENCED IN THIS TEXT OF THIS WARRANT.
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COMMON STOCK PURCHASE WARRANT
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No. 4
Number of shares: 15,000 Holder: LKB Financial LLC
Strike Price: $ 2.16 000 Xxxxxx Xxxx Xxxxx
Expiration Date: January 19, 0000 Xxxxx 000
Xxxxxxx, XX 00000
For identification only. The governing terms of this Warrant are set forth below.
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Lahaina Acquisitions, Inc., a Colorado corporation (the "Company"), hereby
certifies that, for value received, LKB Financial LLC or assigns, is entitled,
subject to the terms set forth below, to purchase from the Company at any time
or from time to time after the date hereof and prior to the fifth anniversary
hereof (the "Exercise Period"), at the Purchase Price hereinafter set forth,
Fifteen Thousand (15,000) shares of fully paid and nonassessable shares of
Common Stock of the Company. The number and character of such shares of Common
Stock and the Purchase Price are subject to adjustment as provided herein.
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The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall be Two Dollars and Sixteen Cents
($2.16); provided, however, that the Purchase Price shall be adjusted from time
to time as provided herein.
Capitalized terms used herein not otherwise defined shall have the
meanings ascribed thereto in the Purchase Agreement. As used herein the
following terms, unless the context otherwise requires, have the following
respective meanings:
(a) The term "Company" shall include Lahaina Acquisitions, Inc., and
any corporation that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" includes (a) the Company's common stock,
no par value per share, (b) any other capital stock of any class or classes
(however designated) of the Company, authorized on or after such date, the
Holders of which shall have the right, without limitation as to amount, either
to all or to a share of the balance of current dividends and liquidating
dividends after the payment of dividends and distributions on any shares
entitled to preference, and the Holders of which shall ordinarily, in the
absence of contingencies, be entitled to vote for the election of a majority of
directors of the Company (even though the right so to vote has been suspended
by the happening of such a contingency) and (c) any other securities into which
or for which any of the securities described in (a) or (b) 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) that the Holder of this warrant at any time shall be
entitled to receive, or shall have received, on the exercise of this Warrant,
in lieu of or in addition to Common Stock, or that 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 4 or otherwise.
1. Exercise of Warrant
1.1 Method of Exercise.
(a) This warrant may be exercised in whole or in part (but not as to
a fractional share of Common Stock), at any time and from time to time during
the Exercise Period by the Holder hereof by delivery of a notice of exercise (a
"Notice of Exercise") substantially in the form attached hereto as Exhibit A
via facsimile to the Company. Promptly thereafter the Holder shall surrender
this Warrant to the Company at its principal office, accompanied by payment of
the Purchase Price multiplied by the number of shares of Common Stock for
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which this Warranty is being exercised (the "Exercise Price"). Payment of the
Exercise Price shall be made, at the option of the Holder, (i) by check or bank
draft payable to the order of the Company, (ii) by wire transfer to the account
of the Company, (iii) in shares of Common Stock having a Market Value on the
Exercise Date (as hereinafter defined) equal to the aggregate Exercise Price or
(iv) by presentation and surrender of this Warrant to be Company for cashless
exercise (a "Cashless Exercise"), which such surrender being deemed a waiver of
the Holder's obligations to pay all or any portion of the Exercise Price. In
the event the Holder elects a Cashless Exercise (which such election shall be
irrevocable) the Holder shall exchange this Warrant for that number of shares
of Common Stock determined by multiplying the number of shares of Common Stock
being exercised by a fraction, the numerator of which shall be the difference
between the then current Market Value of the Common Stock and the Purchase
Price, and the denominator of which shall be the then current Market Value of
the Common Stock. If the amount of the payment received by the Company is less
than the Exercise Price, the Holder will be notified of the deficiency and
shall make payment in that amount within five (5) business days. In the event
the payment exceeds the Exercise Price, the Company will promptly refund the
excess to the Holder. Upon exercise, the Holder shall be entitled to receive,
promptly after payment in full, one or more certificates, issued in the
Holder's name or in such name or names as the Holder may direct, subject to the
limitations on transfer contained herein, for the number of shares of Common
Stock so purchased. The shares of Common Stock so purchased shall be deemed to
be issued as of the close of business on the date on which the Company shall
have received from the Holder payment in full of the Exercise Price (the
"Exercise Date").
(b) Notwithstanding anything to the contrary set forth herein, upon
exercise of all or a portion of this Warrant in accordance with the terms
hereof, the Holder shall not be required to physically surrender this Warrant
to the Company. Rather, records showing the amount so exercised and the date of
exercise shall be maintained on a ledger substantially in the form of Annex B
attached hereto (a copy of which shall be delivered to the Company or transfer
agent with each Notice of Exercise). It is specifically contemplated that the
Holder hereof shall act as the calculation agent for all exercises of this
Warrant. In the event of any dispute or discrepancies, such records maintained
by the Holders shall be controlling and determinative in the absence of
manifest error. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph,
following an exercise of a portion of this Warrant, the number of shares of
Common Stock represented by this Warranty will be the amount indicated on Annex
B attached hereto (which may be less than the amount stated on the fact
hereof).
1.2 Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment
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purposes and not with a view to or for resale of such securities unless such
resale has been registered with the Commission or an applicable exemption is
available therefor. At the time this Warrant is exercised, the Company may
require the Holder to state in the Notice of Exercise such representations
concerning the Holder as are necessary or appropriate to assure compliance by
the Holder with the Securities Act.
1.3 Limitation on Exercise. Notwithstanding the rights of the Holder
to exercise all or a portion of this Warrant as described herein, such exercise
rights shall be limited, solely to the extent set forth in the Purchase
Agreement as if such provisions were specifically set forth herein. In
addition, the number of shares of Common Stock issuable upon exercise of this
Warrant is subject to reduction as specified in Section 10.3 of the Purchase
Agreement.
2. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Warrant, and in any event within five
(5) business days thereafter, the Company at its expense (including the payment
by it of any applicable issue, stamp or transfer taxes) will cause to be issued
in the name of and delivered to the Holder thereof, or, to the extent
permissible hereunder, to such other person as such Holder may direct, a
certificate or certificates for the number of 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 applicable Purchase Price, 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.
3. Adjustment for Extraordinary Events. The Purchase Price to be paid by
the Holder upon exercise of this Warrant, and the consideration to be received
upon exercise of this Warrant, shall be adjusted in case at any time or from
time to time pursuant to Article XI of the Purchase Agreement as if such
provisions were specifically set forth herein.
4. No Impairment. The Company will not, by amendment of its Certificate
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder of this
Warrant against impairment. Without limiting the generality of the foregoing,
the Company (a) will not increase the par value of any shares of stock
receivable on the exercise of this Warrant above the amount payable therefor on
such exercise, (b) will take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid
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and unassessable shares of stock on the exercise of this Warrant, and (c) will
not transfer all or substantially all of its properties and assets to any other
person (corporate or otherwise), or consolidate with or merge into any other
person or permit any such person to consolidate with or merge into the Company
(if the Company is not the surviving person), unless such other person shall
expressly assume in writing and will be bound by all the terms of this Warrant.
5. Accountant's Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock (or Other Securities)
issuable on the exercise of this Warrant, the Company at its expense will
promptly cause independent certified public accountants of national standing
selected by the Company to compute such adjustment or readjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon
which such adjustment and readjustment is based, including a statement of (a)
the consideration received or receivable by the Company for any additional
shares of Common Stock (or Other Securities) issued or sold or deemed to have
been issued or sold, (b) the number of shares of Common Stock (or Other
Securities) outstanding or deemed to be outstanding, and (c) the Purchase Price
and the number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such issue or sale and as adjusted and
readjusted as provided in this Warrant. The Company will forthwith mail a copy
of each such certificate to the Holder of this Warrant, and will, on the
written request at any time of the Holder of this Warrant, furnish to such
Holder a like certificate setting forth the Purchase Price at the time in
effect and showing how it was calculated.
6. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the Holders of any
class or securities for the purpose of determining the Holders thereof who are
entitled to receive any dividends or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class
or any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of all
or substantially all the assets of the Company to or consolidation or merger of
the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or winding
up of the Company,
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then and in each such event the Company will mail or cause to be mailed to the
Holder of this Warrant a notice specifying (i) the date on which any such
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,
and (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any, as of which the Holders of
record of Common Stock (or Other Securities) shall be entitled to exchange
their shares of Common Stock (or Other Securities) for then and in each such
event the Company will mail or cause to be mailed to the Holder of this Warrant
a notice specifying (i) the date on which any such record is to be taken for
the purpose of such dividend, distribution or right, and stating the amount of
character of such dividend, distribution or right, and (ii) the date on which
any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any, as of which the Holders of record of Common Stock (or
Other Securities) shall be entitled to exchange their shares of Common Stock
(or Other Securities) for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up. Such notice shall be mailed at
least 20 days prior to the date specified in such notice on which any action is
to be taken.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Exchange of Warrant.
(a) On surrender for exchange of this Warrant, properly endorsed and
in compliance with the restrictions on transfer set forth in the legend on the
face of this Warrant, to the Company, the Company at its expense will issue and
deliver to or on the order of the Holder thereof a new Warrant of like tenor,
in the name of such Holder or as such Holder (on payment by such Holder of any
applicable transfer taxes) may direct, calling in the aggregate on the face or
faces thereof for the number of shares of Common Stock called for on the face
of the Warrant so surrendered.
(b) Upon written notice from the Purchasers that the Purchasers have
elected to transfer amongst each other a portion of this Warrant, and issue and
deliver to or on the order of the Holder thereof a new Warrant of like tenor,
in the name of such Holder as the Purchasers (on payment by such Holder of any
applicable transfer taxes) may direct, calling in the aggregate on the face or
faces thereof for the number of shares of Common Stock as set forth in such
notice reflecting such transfer.
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9. 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 its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Remedies. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default or threatened default by the
Company 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.
11. Negotiability, etc. This Warrant is issued upon the following terms,
to all of which each Holder or owner hereof by the taking hereof consents and
agrees.
(a) title to this Warrant may be transferred by endorsement and
delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery.
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a bona
fide purchaser hereof for value; each prior taker or owner waives and renounces
all of his equities or rights in this Warrant in favor of such bona fide
purchaser, and each such bona fide purchaser shall acquire absolute title
hereto and to all rights represented hereby;
(c) until this Warrant is transferred on the books of the Company,
the Company may treat the registered Holder as the absolute owner hereof for
all purposes, notwithstanding any notice to the contrary; and
(d) notwithstanding the foregoing, this Warrant may be sold,
transferred or assigned except pursuant to an effective registration statement
under the Securities Act or pursuant to an applicable exemption therefrom.
12. Notices, etc. All notices and other communications from the Company to
the Holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such Holder or, until
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any such Holder furnishes to the Company any address, then to, and at the
address of, the last Holder of this Warrant who has so furnished an address to
the Company.
13. 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 internal laws of the State of Georgia. The
headings in this Warrant are for the 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.
[SIGNATURE PAGE FOLLOWS]
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DATED as of March __, 1999.
Lahaina Acquisitions, Inc.
By:
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Xxxxxxx X. Xxxxx
Chairman
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EXHIBIT A
FORM OF NOTICE EXERCISE - WARRANT
(To be executed only upon exercise
of the Warrant in whole or in part)
To: Lahaina Acquisitions, Inc.
The undersigned registered Holder of the accompanying Warranty, hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
_______________1/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor in the amount and manner set forth below, as of
the date written below. The undersigned requests that the certificates for such
shares of Common Stock be issued in the name of, and delivered to,
___________________________ whose address is
______________________________________________________________________________.
The Exercise Price is paid as follows:
[ ] Bank draft payable to the Company in the amount of $__________.
[ ] Wire transfer to the account of the Company in the amount of
$________.
[ ] Delivery of ______________ previously held shares of Common
Stock having an aggregate Market Price of $___________.
[ ] Cashless exercise. Surrender of _________ shares purchasable
under this Warrant for such shares of Common Stock issuable in
exchange therefor pursuant to the Cashless Exercise provisions
of the Warrant, as provided in Section 1.1(iv) thereto.
Upon exercise pursuant to this Notice of Exercise, the Holder will be
in compliance with the Limitation on Exercise (as defined in the Securities
Purchase Agreement pursuant to which this Warrant was issued).
Date:
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(Name must conform to name of
Holder as specified on the face of
the Warrant)
By:
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Name:
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Title:
----------------------
Address of Holder:
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Date of exercise:
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1/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the Holder surrendering the same.
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ANNEX B
WARRANT EXERCISE LEDGER
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ORIGINAL NUMBER OF WARRANTS EXERCISE PRICE PAID NEW BALANCE OF ISSUER INITIALS HOLDER INITIALS
DATE WARRANTS EXERCISED WARRANTS
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