Warrant
EXHIBIT
4.1
Warrant
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933 (THE "ACT") OR
APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS") AND SHALL NOT BE SOLD,
PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR
CONSIDERATION) BY THE HOLDER EXCEPT UPON THE ISSUANCE TO THE COMPANY OF A
FAVORABLE OPINION OF COUNSEL OR SUBMISSION TO THE COMPANY OF SUCH EVIDENCE
AS
MAY BE SATISFACTORY TO COUNSEL TO THE COMPANY, IN EACH SUCH CASE, TO THE EFFECT
THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT AND THE STATE
ACTS.
WARRANT
TO PURCHASE 200,000 SHARES OF COMMON STOCK
(a
Colorado Corporation)
Not
Transferable or Exercisable Except
Upon
Conditions Herein Specified
Void
after 5:00 O'Clock p.m.,
Mountain
Standard Time, on January 12, 0000
XXXXXX
XXXXXXX REAL FINANCIAL SERVICES, INC, a Colorado corporation (the "Company")
hereby certifies that SAFE HARBOR BUSINESS DEVELOPMENT COMPANY, a corporation
organized under the laws of the State of Colorado, its registered successors
and
permitted assigns registered on the books of the Company maintained for such
purposes as the registered holder hereof (the "Holder"), for value received,
is
entitled to purchase from the Company the number of fully paid and
non-assessable shares of Common Stock of the Company (the "Shares"), stated
above at the purchase price of $.01 per Share (the "Exercise Price") (the number
of Shares and Exercise Price being subject to adjustment as hereinafter
provided) upon the terms and conditions herein provided.
1.
Exercise
of Warrants.
(a)
Subject to subsection (b) of this Section 1, upon presentation and surrender
of
this Warrant Certificate, with the attached Purchase Form duly executed, at
the
principal office of the Company at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, XX
00000, or at such other place as the Company may designate by notice to the
Holder hereof, together with a certified or bank cashier's check payable to
the
order of the Company in the amount of the Exercise Price times the number of
Shares being purchased, the Company shall deliver to the Holder hereof, as
promptly as practicable, certificates representing the Shares being purchased.
This Warrant may be exercised in whole or in part; and, in case of exercise
hereof in part only, the Company, upon surrender hereof, will deliver to the
Holder a new Warrant Certificate or Warrant Certificates of like tenor entitling
the Holder to purchase the number of Shares as to which this Warrant has not
been exercised.
(b)
This
Warrant may be exercised in whole or in part at any time prior to 5:00 o'clock
P.M., Mountain Standard Time, on January 12, 2012.
2.
Exchange
and Transfer of Warrant.
This
Warrant (a) at any time prior to the exercise hereof, upon presentation and
surrender to the Company, may be exchanged, alone or with other Warrants of
like
tenor registered in the name of the Holder, for another Warrant or other
Warrants of like tenor in the name of such Holder exercisable for the same
aggregate number of Shares as the Warrant or Warrants surrendered, and (b)
may
be sold, transferred, hypothecated or assigned, in whole or in
part.
3.
Rights
and Obligations of Warrant Holder.
(a)
The
Holder of this Warrant Certificate shall not, by virtue hereof, be entitled
to
any rights of a stockholder in the Company, either at law or in equity;
provided, however, in the event that any certificate representing the Shares
is
issued to the Holder hereof upon exercise of this Warrant, such Holder shall,
for all purposes, be deemed to have become the holder of record of such Shares
on the date on which this Warrant Certificate, together with a duly executed
Purchase Form, was surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such Share certificate. The rights
of
the Holder of this Warrant are limited to those expressed herein and the Holder
of this Warrant, by its acceptance hereof, consents to and agrees to be bound
by
and to comply with all the provisions of this Warrant Certificate, including,
without limitation, all the obligations imposed upon the Holder hereof by
Sections 2 and 5 hereof. In addition, the Holder of this Warrant Certificate,
by
accepting the same, agrees that the Company may deem and treat the person in
whose name this Warrant Certificate is registered on the books of the Company
maintained for such purpose as the absolute, true and lawful owner for all
purposes whatsoever, notwithstanding any notation of ownership or other writing
thereon, and the Company shall not be affected by any notice to the
contrary.
(b)
No
Holder of this Warrant Certificate, as such, shall be entitled to vote or
receive distributions or to be deemed the holder of Shares for any purpose,
nor
shall anything contained in this Warrant Certificate be construed to confer
upon
any Holder of this Warrant Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote, give or withhold consent to
any
action by the Company, whether upon any recapitalization, issue of stock,
reclassification of stock, merger, conveyance or otherwise, receive notice
of
meetings or other action affecting stockholders (except for notices provided
for
herein), receive distributions, subscription rights, or otherwise, until this
Warrant shall have been exercised and the Shares purchasable upon the exercise
thereof shall have become deliverable as provided herein; provided, however,
that any such exercise on any date when the stock transfer books of the Company
shall be closed shall constitute the person or persons in whose name or names
the certificate or certificates for those Shares are to be issued as the record
holder or holders thereof for all purposes at the opening of business on the
next succeeding day on which such stock transfer books are open, and the Warrant
surrendered shall not be deemed to have been exercised, in whole or in part
as
the case may be, until the next succeeding day on which stock transfer books
are
open for the purpose of determining entitlement to distributions on the
Company's common stock.
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4.
Shares
Underlying Warrants.
The
Company covenants and agrees that all Shares delivered upon exercise of this
Warrant shall, upon delivery and payment therefore, be duly and validly
authorized and issued, fully-paid and non-assessable, and free from all stamp
taxes, liens, and charges with respect to the purchase thereof. In addition,
the
Company agrees at all times to reserve and keep available an authorized number
of Shares sufficient to permit the exercise in full of this
Warrant.
5.
Disposition
of Warrants or Shares.
(a)
The
holder of this Warrant Certificate and any transferee hereof or of the Shares
issuable upon the exercise of the Warrant Certificate, by their acceptance
hereof, hereby understand and agree that the Warrant, and the Shares issuable
upon the exercise hereof, have not been registered under either the Securities
Act of 1933 (the "Act") or applicable state securities laws (the "State Acts")
and shall not be sold, pledged, hypothecated, donated, or otherwise transferred
(whether or not for consideration) except upon the issuance to the Company
of a
favorable opinion of counsel or submission to the Company of such evidence
as
may be satisfactory to counsel to the Company, in each such case, to the effect
that any such transfer shall not be in violation of the Act and the State Acts.
It shall be a condition to the transfer of this Warrant that any transferee
thereof deliver to the Company its written agreement to accept and be bound
by
all of the terms and conditions of this Warrant Certificate.
(b)
The
stock certificates of the Company that will evidence the shares of Common Stock
with respect to which this Warrant may be exercisable will be imprinted with
conspicuous legend in substantially the following form:
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"The
securities represented by this certificate have not been registered
under
either the Securities Act of 1933 (the "Act") or applicable state
securities laws (the "State Acts") and shall not be sold, pledged,
hypothecated, donated or otherwise transferred (whether or not for
consideration) by the holder except upon the issuance to the Company
of a
favorable opinion of its counsel or submission to the company of
such
other evidence as may be satisfactory to counsel of the Company,
in each
such case, to the effect that any such transfer shall not be in violation
of the Act and the State Acts."
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The
Company does not file, and does not in the foreseeable future contemplate
filing, periodic reports with the Securities and Exchange Commission ("SEC")
pursuant to the provisions of the Securities Exchange Act of 1934, as amended.
Except as provided in Section 8 of this Warrant, the Company has not agreed
to
register any of the holder's shares of Common Stock of the Company with respect
to which this Warrant may be exercisable for distribution in accordance with
the
provisions of the Act or the State Acts and, the Company has not agreed to
comply with any exemption from registration under the Act or the State Acts
for
the resale of the holder's shares of Common Stock of the Company with respect
to
which this Warrant may be exercised. Hence, it is the understanding of the
holders of this Warrant that by virtue of the provisions of certain rules
respecting "restricted securities" promulgated by the SEC, the shares of Common
Stock of the Company with respect to which this Warrant may be exercisable
may
be required to be held indefinitely, unless and until registered under the
Act
and the State Acts, unless an exemption from such registration is available,
in
which case the holder may still be limited as to the number of shares of Common
Stock of the Company with respect to which this Warrant may be exercised that
may be sold.
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6.
Adjustments.
The
number of Shares purchasable upon the exercise of each Warrant is subject to
adjustment from time to time upon the occurrence of any of the events enumerated
below.
(a)
In
case the Company shall: (i) pay a dividend in Shares, (ii) subdivide its
outstanding Shares into a greater number of Shares, (iii) combine its
outstanding Shares into a smaller number of Shares, or (iv) issue, by
reclassification of its Shares, any shares of its capital stock, the amount
of
Shares purchasable upon the exercise of each Warrant immediately prior thereto
shall be adjusted so that the Holder shall be entitled to receive upon exercise
of the Warrant that number of Shares which such Holder would have owned or
would
have been entitled to receive after the happening of such event had such Holder
exercised the Warrant immediately prior to the record date, in the case of
such
dividend, or the effective date, in the case of any such subdivision,
combination or reclassification. An adjustment made pursuant to this subsection
(a) shall be made whenever any of such events shall occur, but shall become
effective retroactively after such record date or such effective date, as the
case may be, as to Warrants exercised between such record date or effective
date
and the date of happening of any such event.
(b)
In
case the Company shall issue rights or warrants to all holders of its Shares
entitling them to subscribe for or to purchase Shares at a price per Share
which, when added to the amount of consideration received or receivable by
the
Company for such rights or warrants, is less than the Current Market Price
(as
hereinafter defined) per Share at the record date, the number of Shares
purchasable upon the exercise of this Warrant shall be adjusted so that
thereafter, until further adjusted, each Warrant shall entitle the Holder to
purchase that number of Shares determined by multiplying the number of Shares
purchasable hereunder by a fraction, the numerator of which shall be the number
of additional Shares issuable upon the exercise of such rights or warrants,
and
the denominator of which shall be the number of Shares which an amount equal
to
the sum of (i) the aggregate exercise price of the total number of Shares
issuable upon the exercise of such rights or warrants, and (ii) the aggregate
amount of consideration, if any, received, or receivable by the Company for
such
rights or warrants, would purchase at such Current Market Price. Such adjustment
shall be made whenever such rights or warrants are issued, but shall also be
effective retroactively as to Warrants exercised between the record date for
the
determination of stockholders entitled to receive such rights or warrants and
the date such rights or warrants are issued.
(c)
For
the purpose of any computation under subsection (b) above, the Current Market
Price per Share at any date shall be: (i) if the Shares are listed on any
national securities exchange, the average of the daily closing prices for the
15
consecutive business days commencing 20 business days before the day in question
(the "Trading Period"); (ii) if the Shares are not listed on any national
securities exchange but are quoted on the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"), the average of the high
and
low bids as reported by NASDAQ for the Trading Period; and (iii) if the Shares
are neither listed on any national securities exchange nor quoted on NASDAQ,
the
higher of (x) the exercise price then in effect, or (y) the tangible book value
per Share as of the end of the Company's immediately preceding fiscal
year.
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(d)
No
adjustment shall be required unless such adjustment would require an increase
or
decrease of at least 1% in the number of Shares purchasable hereunder; provided,
however, that any adjustments which by reason of this subsection (d) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 6 shall be made
to
the nearest one-hundredth of a Share.
(e)
No
adjustment shall be made in any of the following cases:
(i)
Upon
the grant or exercise of stock options now or hereafter granted, or under any
employee stock option or stock purchase plan now or hereafter authorized, to
the
extent that the aggregate of the number of Shares which may be purchased under
such options and the number of Shares issued under such employee stock purchase
plan is less than or equal to 10% of the number of Shares outstanding on January
1 of the year of the grant or exercise;
(ii)
Shares issued upon the conversion of any of the Company's convertible or
exchangeable securities;
(iii)
Shares issued in connection with the acquisition by the Company or by any
subsidiary of the Company of 80% or more of the assets of another corporation
or
entity, and Shares issued in connection with the acquisition by the Company
or
by any subsidiary of the Company of 80% or more of the voting shares of another
corporation (including Shares issued in connection with such acquisition of
voting shares of such other corporation subsequent to the acquisition of an
aggregate of 80% of such voting shares), Shares issued in a merger of the
Company or a subsidiary of the Company with another corporation in which the
Company or the Company's subsidiary is the surviving corporation, and Shares
issued upon the conversion of other securities issued in connection with any
such acquisition or in any such merger; and
(iv)
Shares issued pursuant to this Warrant and pursuant to all stock options and
warrants outstanding on the date hereof.
(f)
Notice
to Warrant Holders of Adjustment.
Whenever
the number of Shares purchasable hereunder is adjusted as herein provided,
the
Company shall cause to be mailed to the Holder in accordance with the provisions
of this Section 6 a notice (i) stating that the number of Shares purchasable
upon exercise of this Warrant have been adjusted, (ii) setting forth the
adjusted number of Shares purchasable upon the exercise of a Warrant, and (iii)
showing in reasonable detail the computations and the facts, including the
amount of consideration received or deemed to have been received by the Company,
upon which such adjustments are based.
7.
Fractional
Shares.
The
Company shall not be required to issue any fraction of a Share upon the exercise
of Warrants. If more than one Warrant shall be surrendered for exercise at
one
time by the same Holder, the number of full Shares which shall be issuable
upon
exercise thereof shall be computed on the basis of the aggregate number of
Shares with respect to which this Warrant is exercised. If any fractional
interest in a Share shall be deliverable upon the exercise of this Warrant,
the
Company shall make an adjustment therefor in cash equal to such fraction
multiplied by the Current Market Price of the Shares on the business day next
preceding the day of exercise.
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8.
Registration
Rights.
(a)
(i) If the Company at any time elects or proposes to register any of its Shares
(the "Registration Shares") under the Securities Act of 1933 (the "Act") on
Forms X-0, X-0, X-0 or S-18, or any successor registration statement forms
in
effect at such time (a "Registration Statement") with the Securities and
Exchange Commission (the "SEC") pursuant to which Shares owned by any
shareholder of the Company may be registered, the Company shall give prompt
written notice (the "Registration Notice") to the Holder of its intention to
register the Registration Shares.
(ii)
Within 15 days after the Registration Notice shall have been given to the
Holder, the Holder shall give written notice to the Company (the "Holder
Notice"), stating the number of Shares to be registered (the "Holder Shares")
and the states in which the Holder wishes to register the Shares. In the event
the Registration Notice is given by the Company prior to the time that this
Warrant is otherwise exercisable pursuant to Section l(b) hereof, the Holder
Notice shall be accompanied by this Warrant Certificate together with a duly
executed Purchase Form and payment of the Exercise Price for the Holder Shares
in accordance with Section 1 hereof.
(iii)
The
Company shall use reasonable efforts to register the Holder Shares under the
Act
and the applicable state securities laws (the "State Acts") designated by the
Holder in the Holder Notice. Anything contained herein to the contrary
notwithstanding, the Company shall have the right to withdraw and discontinue
registration of the Holder Shares at any time prior to the effective date of
such Registration Statement if the registration of the Registration Shares
is
withdrawn or discontinued.
(iv)
The
Company shall not be required to include any of the Holder Shares in any
Registration Statement unless the Holder agrees, if so requested by the Company,
to: (A) offer and sell the Holder Shares to or through an underwriter selected
by the Company and, to the extent possible, on substantially the same terms
and
conditions under which the Registration Shares are to be offered and sold;
(B)
comply with any arrangements, terms and conditions with respect to the offer
and
sale of the Shares to which the Company may be required to agree; and (C) enter
into any underwriting agreement containing customary terms and conditions,
including provisions for the indemnification of the underwriters.
(b)
If
the offering of the Registration Shares by the Company is, in whole or in part,
an underwritten public offering, and if the managing underwriter determines
and
advises the Company in writing that the inclusion in such Registration Statement
of all of the Holder Shares, together with the Shares of other persons who
have
exercised their right to include their Shares in the Registration Statement
(collectively referred to as the "Aggregate Shares") would adversely affect
the
marketability of the offering of the Registration Shares, then the Holder shall
be entitled to register a proportion, as determined in Subsection (b)(i) below,
of such number of Aggregate Shares as the managing underwriter determines may
be
included without such adverse effects ("Aggregate Underwriter Shares"), subject
to the terms, exceptions and conditions of this Section 8.
(i)
The
proportion of the Aggregate Underwriter Shares which the Holder shall be
entitled to register shall be equal to the ratio which the Holder Shares bears
to the Aggregate Shares.
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(c)
The
Company shall bear all costs and expenses of registration of the Registration
Shares; provided, however, that the Holder shall bear all costs and expenses
directly related to registration of the Holder Shares.
(d)
It
shall be a condition precedent to the Company's obligation to register any
Holder Shares pursuant to this Section 9 that the Holder provide the Company
with all information and documents, and shall execute, acknowledge, seal and
deliver all documents reasonably necessary, to enable the Company to comply
with
the Act, the State Acts, and all applicable laws, rules and regulations of
the
SEC or of any State Securities Commission.
9.
Loss
or Destruction.
Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction,
or mutilation of this Warrant Certificate and, in the case of any such loss,
theft or destruction, upon delivery of an indemnity agreement or bond
satisfactory in form, substance and amount to the Company or, in the case of
any
such mutilation, upon surrender and cancellation of this Warrant Certificate,
the Company at its expense will execute and deliver, in lieu thereof, a new
Warrant Certificate of like tenor.
10.
Survival.
The
various rights and obligations of the Holder hereof as set forth herein shall
survive the exercise of the Warrants represented hereby and the surrender of
this Warrant Certificate.
11.
Notices.
Whenever
any notice, payment of any purchase price, or other communication is required
to
be given or delivered under the terms of this Warrant, it shall be in writing
and delivered by hand delivery or United States registered or certified mail,
return receipt requested, postage prepaid, and will be deemed to have been
given
or delivered on the date such notice, purchase price or other communication
is
so delivered or posted, as the case may be; and, if to the Company, it will
be
addressed to the address specified in Section 1 hereof, and if to the Holder,
it
will be addressed to the registered Holder at its, his or her address as it
appears on the books of the Company.
| ACROSS AMERICA FINANCIAL SERVICES. Inc. | ||
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| By: /s/ Xxxxx X. Xxxxxx | ||
|
Title: President
Date: January
12, 0000
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-0-
XXXXXXXX
FORM
______________,
20__
TO:
ACROSS AMERICA FINANCIAL SERVICES. Inc.
The
undersigned hereby irrevocably elects to exercise the attached Warrant
Certificate to the extent of __________ shares of the Common Stock, of ACROSS
AMERICA FINANCIAL SERVICES. Inc. and hereby makes payment of $__________ in
accordance with the provisions of Section 1 of the Warrant Certificate in
payment of the purchase price thereof.
INSTRUCTIONS
FOR REGISTRATION OF STOCK
Name:_______________________________________________
(Please
typewrite or print in block letters)
Address:_____________________________________________
SAFE
HARBOR BUSINESS
DEVELOPMENT
COMPANY
By:____________________________
Its:____________________________
Date:__________________________
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