EXHIBIT 99.1
ENVISION SOLAR INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE "SEC") OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AND, UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT, AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR AND
REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE FORM AND SUBSTANCE OF
WHICH SHALL BE REASONABLY SATISFACTORY TO THE COMPANY. THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER BONA FIDE LOAN WITH A FINANCIAL INSTITUTION THAT IS AN
"ACCREDITED INVESTOR"AS DEFINED IN RULE 501(A) UNDER THE SECURITIES ACT.
ENVISION SOLAR INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
Warrant Number: 1100 Issuance Date: December 14, 2011
---- -----------------
THIS COMMON STOCK PURCHASE WARRANT (the "WARRANT") certifies that, for
value received, XXXXXX XXXXX (the "HOLDER") is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth,
at any time on or after DECEMBER 14, 2011 (the "ISSUANCE DATE") and on or prior
to the close of business on the five (5) year anniversary of the Issuance Date
but not thereafter (the "TERMINATION DATE"), to subscribe for and purchase from
Envision Solar International, Inc., a Nevada corporation (the "COMPANY"), up to
ONE MILLION, ONE HUNDRED THIRTY EIGHT THOUSAND, ONE HUNDED TWENTY (1,138,120)
shares of the Company's common stock ("Common Stock"), subject to adjustment
hereunder (the "WARRANT SHARES"). The purchase price ("Exercise Price") of one
share of Common Stock under this Warrant shall be equal to $0.24.
SECTION 1. EXERCISE OF WARRANT.
-------- --------------------
(a) EXERCISE OF WARRANT. Exercise of the purchase rights represented by
this Warrant may be made, in whole or in part, at any time or times on or after
the Issuance Date and on or before the Termination Date by delivery to the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the registered Holder at the address of the Holder
appearing on the books of the Company) of a duly executed facsimile copy of the
Notice of Exercise Form annexed hereto; and, within three (3) Trading Days of
the date said Notice of Exercise is delivered to the Company, the Company shall
have received payment of the aggregate Exercise Price of the shares thereby
purchased by wire transfer or, if available, pursuant to the cashless exercise
procedure specified in Section 1(b) below. Notwithstanding anything herein to
the contrary, the Holder shall not be required to physically surrender this
Warrant to the Company until the Holder has purchased all of the Warrant Shares
available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation within
three (3) Trading Days (i.e. "Trading Day" refers to a day on which the trading
of securities occurs in the United States on public securities trading markets
and exchanges) of the date the final Notice of Exercise is delivered to the
Company. Partial exercises of this Warrant resulting in purchases of a portion
of the total number of Warrant Shares available hereunder shall have the effect
of lowering the outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares purchased. The Holder
-1-
may not exercise this Warrant more than ten times. The Holder and the Company
shall maintain records showing the number of Warrant Shares purchased and the
date of such purchases. The Company shall deliver any objection to any Notice of
Exercise Form within one (1) Trading Day of receipt of such notice. In the event
of any dispute or discrepancy, the records of the Holder 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 THE PURCHASE OF A PORTION OF THE WARRANT
SHARES HEREUNDER, THE NUMBER OF WARRANT SHARES AVAILABLE FOR PURCHASE HEREUNDER
AT ANY GIVEN TIME MAY BE LESS THAN THE AMOUNT STATED ON THE FACE HEREOF.
(b) CASHLESS EXERCISE. Notwithstanding any provisions herein to the
contrary, if the Fair Market Value (as defined below) of one share of Common
Stock is greater than the Exercise Price (at the date of calculation as set
forth below), to the extent the Holder does not elect to pay cash upon the
deemed exercise of this Warrant, the Holder shall be deemed to have elected to
receive shares equal to the value (as determined below) of this Warrant (or the
portion thereof being cancelled) in which event the Company shall issue to the
holder a number of shares of Common Stock computed using the following formula:
X=Y (A-B)
A
Where X= the number of shares of Common Stock to be
issued to the holder
Y= the number of shares of Common Stock deemed
purchased under the Warrant for which the
Holder is not paying cash
A= the Fair Market Value of one share of the
Company's Common Stock (at the date of such
calculation)
B= Purchase Price (as adjusted to the date of
such calculation)
For purposes of Rule 144 promulgated under the Securities Act, it is
intended, subject to applicable interpretations of the Securities and Exchange
Commission, that the Warrant Shares issued in a cashless exercise transaction
shall be deemed to have been acquired by the Holder, and the holding period for
the Warrant Shares shall be deemed to have commenced, on the date this Warrant
was originally issued.
Fair Market Value of a share of Common Stock as of a particular date
(the "Determination Date") shall mean:
(i) If the Company's Common Stock is traded on registered
national securities exchange such as NASDAQ, AMEX or NYSE, then the
closing or last sale price, respectively, reported for the last
business day immediately preceding the Determination Date;
(ii) If the Company's Common Stock is not traded on a
registered national securities exchange, 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;
(iii) Except as provided in clause (iv) 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
-2-
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
(iv) 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 articles of
incorporation, then all amounts to be payable per share to holders of
the Common Stock pursuant to the articles of incorporation 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 articles of incorporation, assuming for the purposes of this
clause (iv) that all of the shares of Common Stock then issuable upon
exercise of all of the Warrants are outstanding at the Determination
Date.
(c) MECHANICS OF EXERCISE.
---------------------
(i) DELIVERY OF CERTIFICATES UPON EXERCISE. Certificates for
shares purchased hereunder shall be transmitted by the Company's
transfer agent to the Holder by crediting the account of the Holder's
prime broker with the Depository Trust Company through its Deposit
Withdrawal Agent Commission ("DWAC") system if the Company is then a
participant in such system and either (A) there is an effective
Registration Statement permitting the resale of the Warrant Shares by
the Holder or (B) the shares are eligible for resale by the Holder
without volume or manner-of-sale limitations pursuant to Rule 144, and
otherwise by physical delivery to the address specified by the Holder
in the Notice of Exercise by the date that is five (5) Trading Days
after the latest of (A) the delivery to the Company of the Notice of
Exercise Form, (B) surrender of this Warrant (if required), and (C)
payment of the aggregate Exercise Price as set forth above (including
by cashless exercise, if permitted) (such date, the "WARRANT SHARE
DELIVERY DATE"). This Warrant shall be deemed to have been exercised on
the first date on which all of the foregoing have been delivered to the
Company. The Warrant Shares shall be deemed to have been issued, and
Holder or any other person so designated to be named therein shall be
deemed to have become a holder of record of such shares for all
purposes, as of the date the Warrant has been exercised, with payment
to the Company of the Exercise Price (or by cashless exercise, if
permitted) and all taxes required to be paid by the Holder, if any,
having been paid.
(ii) DELIVERY OF NEW WARRANTS UPON EXERCISE. If this Warrant
shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of
delivery of the certificate or certificates representing Warrant
Shares, deliver to Holder a new Warrant evidencing the rights of Holder
to purchase the unpurchased Warrant Shares called for by this Warrant,
which new Warrant shall in all other respects be identical with this
Warrant.
(iii) NO FRACTIONAL SHARES OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would
otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such
final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
(iv) CHARGES, TAXES AND EXPENSES. Issuance of certificates for
Warrant Shares shall be made without charge to the Holder for any issue
or transfer tax or other incidental expense in respect of the issuance
of such certificate, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the
Holder or in such name or names as may be directed by the Holder;
provided, however, that in the event certificates for Warrant Shares
are to be issued in a name other than the name of the Holder, this
-3-
Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder and the
Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
SECTION 2. CERTAIN ADJUSTMENTS.
------------------------------
(a) STOCK DIVIDENDS AND SPLITS. If the Company, at any time while this
Warrant is outstanding: (i) pays a stock dividend or otherwise makes a
distribution or distributions on shares of its Common Stock or any other equity
or equity equivalent securities payable in shares of Common Stock (which, for
avoidance of doubt, shall not include any shares of Common Stock issued by the
Company upon exercise of this Warrant), (ii) subdivides outstanding shares of
Common Stock into a larger number of shares, (iii) combines (including by way of
reverse stock split) outstanding shares of Common Stock into a smaller number of
shares or (iv) issues by reclassification of shares of the Common Stock any
shares of capital stock of the Company, then in each case the Exercise Price
shall be multiplied by a fraction of which the numerator shall be the number of
shares of Common Stock (excluding treasury shares, if any) outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event, and the
number of shares issuable upon exercise of this Warrant shall be proportionately
adjusted such that the aggregate Exercise Price of this Warrant shall remain
unchanged. Any adjustment made pursuant to this Section 2(a) shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
(b) PRO RATA DISTRIBUTIONS. If the Company, at any time while this
Warrant is outstanding, shall distribute to all holders of Common Stock (and not
to the Holders) evidences of its indebtedness or assets (including cash and cash
dividends) or rights or warrants to subscribe for or purchase any security other
than the Common Stock (which shall be subject to Section 2(b)), then in each
such case the Exercise Price shall be adjusted by multiplying the Exercise Price
in effect immediately prior to the record date fixed for determination of
stockholders entitled to receive such distribution by a fraction of which the
denominator shall be the VWAP determined as of the record date mentioned above,
and of which the numerator shall be such VWAP on such record date less the then
per share fair market value at such record date of the portion of such assets or
evidence of indebtedness or rights or warrants so distributed applicable to one
outstanding share of the Common Stock as determined by the Board of Directors in
good faith. Additionally, the number of Warrant Shares issuable hereunder shall
be increased such that the aggregate Exercise Price payable hereunder, after
taking into account the decrease in the Exercise Price, shall be equal to the
aggregate Exercise Price prior to such adjustment. In either case the
adjustments shall be described in a statement provided to the Holder of the
portion of assets or evidences of indebtedness so distributed or such
subscription rights applicable to one share of Common Stock. Such adjustment
shall be made whenever any such distribution is made and shall become effective
immediately after the record date mentioned above.
"VWAP" means, for any date, (i) if the Common Stock is listed or quoted
on the OTC Bulletin Board or a registered national securities exchange, the
daily volume weighted average price of the Common Stock for such date on the OTC
Bulletin Board or a registered national securities exchange, as reported by
Bloomberg Financial L.P. (based on a Trading Day from 9:30 a.m. Eastern Time to
4:02 p.m. Eastern Time); (ii) if the Common Stock is not then listed or quoted
on the OTC Bulletin Board or national securities exchange and if prices for the
Common Stock are then reported in the "Pink Sheets" published by the Pink
Sheets, LLC (or a similar organization or agency succeeding to its functions of
reporting prices), the most recent bid price per share of the Common Stock so
reported; or (iii) in all other cases, the fair market value of a share of
Common Stock as determined by the Board of Directors in good faith.
-4-
(c) CALCULATIONS. All calculations under this Section 2 shall be made
to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 2, the number of shares of Common Stock deemed to be
issued and outstanding as of a given date shall be the sum of the number of
shares of Common Stock (excluding treasury shares, if any) issued and
outstanding.
(d) NOTICE TO HOLDER. Whenever the Exercise Price is adjusted pursuant
to any provision of this Section 2, the Company shall promptly mail to the
Holder a notice setting forth the Exercise Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment.
SECTION 3. TRANSFER OF WARRANT.
------------------------------
(a) TRANSFERABILITY. Subject to compliance with any applicable
securities laws and the conditions set forth in Section 3(d) hereof, this
Warrant and all rights hereunder (including, without limitation, any
registration rights) are transferable, in whole or in part, upon five (5) days
written notice to the Company and the surrender of this Warrant at the principal
office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees, as applicable, and
in the denomination or denominations specified in such instrument of assignment,
and shall issue to the assignor a new Warrant evidencing the portion of this
Warrant not so assigned, and this Warrant shall promptly be cancelled. The
Warrant, if properly assigned in accordance herewith, may be exercised by a new
holder for the purchase of Warrant Shares without having a new Warrant issued.
(b) NEW WARRANTS. This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by the Holder or its agent or attorney.
Subject to compliance with Section 3(a), as to any transfer which may be
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or
exchanges shall be dated the Issuance Date and shall be identical with this
Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c) WARRANT REGISTER. The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose, in the name of the
record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose
of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
(d) COMPLIANCE WITH SECURITIES LAWS.
-------------------------------
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the Warrant Shares to 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 Warrant Shares to be issued upon exercise hereof except pursuant to
an effective registration statement, or an exemption from registration,
under the Securities Act and any applicable state securities laws.
(ii) Except as provided in paragraph (iii) below, this Warrant
and all certificates representing Warrant Shares issued upon exercise
hereof shall be stamped or imprinted with a legend in substantially the
following form:
-5-
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR ENVISION SOLAR
INTERNATIONAL, INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL
THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT
AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED.
(iii) The restrictions imposed by this subsection (d) upon the
transfer of this Warrant or the shares of Warrant Stock to be purchased
upon exercise hereof shall terminate (A) when such securities shall
have been resold pursuant to an effective registration statement under
the Securities Act, (B) upon the Company's receipt of an opinion of
counsel, in form and substance reasonably satisfactory to the Company,
addressed to the Company to the effect that such restrictions are no
longer required to ensure compliance with the Securities Act and state
securities laws or (C) upon the Company's receipt of other evidence
reasonably satisfactory to the Company that such registration and
qualification under the Securities Act and state securities laws are
not required. Whenever such restrictions shall cease and terminate as
to any such securities, the Holder thereof shall be entitled to receive
from the Company (or its transfer agent and registrar), without expense
(other than applicable transfer taxes, if any), new Warrants (or, in
the case of shares of Warrant Stock, new stock certificates) of like
tenor not bearing the applicable legend required by paragraph (ii)
above relating to the Securities Act and state securities laws.
(e) REPRESENTATION BY THE HOLDER. The Holder, by the acceptance hereof,
represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant Shares issuable upon such exercise, for its own
account and not with a view to or for distributing or reselling such Warrant or
Warrant Shares; provided that this representation shall not be breached by any
act of the Holder that complies with the Securities Act and any applicable state
securities law.
SECTION 4. REGISTRATION RIGHTS.
------------------------------
If at any time during the term of this Warrant, the Company shall
decide to prepare and file with the SEC a registration statement relating to an
offering for its own account or the account of others under the Securities Act
of any of its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of any
entity or business or equity securities issuable in connection with the equity
incentive or other employee benefit plans, then the Company shall send to the
Holder a written notice of such determination and, if within fifteen days after
the date of such notice, the Holder shall so request in writing, the Company
shall include in such registration statement, all or any part of the and the
Common Stock underlying the Warrants that the Holder request to be registered;
provided, however, that, the Company shall not be required to register any
shares of Common Stock that are eligible for resale pursuant to Rule 144
promulgated under the Securities Act or that are the subject of a then effective
registration statement; provided, further, however, if the registration so
proposed by the Company involves an underwritten offering of the securities so
being registered for the account of the Company, to be distributed by or through
-6-
one or more underwriters of recognized standing, and the managing underwriter of
such underwritten offering shall advise the Company in writing that, in its
opinion, the distribution of all or a specified portion of the shares of Common
Stock which the Holder has requested the Company to register and otherwise
concurrently with the securities being distributed by such underwriters will
materially and adversely affect the distribution of such securities by such
underwriters (such opinion to state the reasons therefor), then the Company will
promptly furnish the Holder of shares of Common Stock hereto with a copy of such
opinion, and by providing such written notice to the Holder, such Holder may be
denied the registration of all or a specified portion of such shares of Common
Stock (in case of such a denial as to a portion of such shares of Common Stock);
provided, however, shares to be registered by the Company for issuance by the
Company shall have first priority, the Holder hereunder shall have second
priority, and any other shares being registered on account of other third
parties shall have third priority.
SECTION 5. MISCELLANEOUS.
------------------------
(a) NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. This Warrant does not
entitle the Holder to any voting rights, dividends or other rights as a
stockholder of the Company prior to the exercise hereof as set forth in Section
1(c)(i).
(b) LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it (which, in
the case of the Warrant, shall not include the posting of any bond), and upon
surrender and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate of like
tenor and dated as of such cancellation, in lieu of such Warrant or stock
certificate.
(c) SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then, such action may be taken or such right
may be exercised on the next succeeding Business Day.
(d) AUTHORIZED SHARES. The Company covenants that, during the period
the Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the
Warrant Shares upon the exercise of any purchase rights under this Warrant. The
Company further covenants that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the trading market upon
which the Common Stock may be listed. The Company covenants that all Warrant
Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this
Warrant, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges created by the Company in respect of the
issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
(e) GOVERNING LAW; CONSENT TO JURISDICTION. This Warrant shall be
governed by, and construed in accordance with, the internal laws of the STATE OF
NEVADA, without reference to the choice of law provisions thereof. The Company
and, by accepting this Warrant, the Holder, each irrevocably submits to the
exclusive jurisdiction of the courts of the STATE OF NEVADA located in NEVADA
and the United States District Court situated therein for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this Warrant
and the transactions contemplated hereby. Service of process in connection with
any such suit, action or proceeding may be served on each party hereto anywhere
-7-
in the world by the same methods as are specified for the giving of notices
under this Warrant. The Company and, by accepting this Warrant, the Holder, each
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. The Company and,
by accepting this Warrant, the Holder, each irrevocably waives any objection to
the laying of venue of any such suit, action or proceeding brought in such
courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum..
(f) RESTRICTIONS. The Holder acknowledges that the Warrant Shares
acquired upon the exercise of this Warrant, if not registered, will have
restrictions upon resale imposed by state and federal securities laws.
(g) NONWAIVER AND EXPENSES. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Xxxxxx's rights, powers or remedies,
notwithstanding the fact that all rights hereunder terminate on the Termination
Date. If the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the
Company shall pay to Holder such amounts as shall be sufficient to cover any
costs and expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in collecting any
amounts due pursuant hereto or in otherwise enforcing any of its rights, powers
or remedies hereunder.
(h) NOTICES. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
email or facsimile, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one Business Day after
delivery to such carrier. All notices shall be addressed as follows: if to the
Holder, at its address as set forth in the Company's books and records and, if
to the Company, at such address as the Company may designate by ten days'
advance written notice to the Holder, or in the absence of such written notice,
at the current executive offices of the Company in San Diego, California.
(i) LIMITATION OF LIABILITY. No provision hereof, in the absence of any
affirmative action by Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of Holder, shall
give rise to any liability of Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
(j) REMEDIES. The Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to
waive and not to assert the defense in any action for specific performance that
a remedy at law would be adequate.
(k) SUCCESSORS AND ASSIGNS. Subject to applicable securities laws, this
Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
Company and the successors and permitted assigns of Holder. The provisions of
this Warrant are intended to be for the benefit of any Holder from time to time
of this Warrant and shall be enforceable by the Holder or holder of Warrant
Shares.
-8-
(l) AMENDMENT. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and the Holder.
(m) SEVERABILITY. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
(n) HEADINGS. The headings used in this Warrant are for the convenience
of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
********************
(SIGNATURE PAGES FOLLOW)
-9-
SIGNATURE PAGE
TO
ENVISION SOLAR INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
IN WITNESS WHEREOF, the Company has caused this Warrant Number:1100 to
be executed in its name by its duly authorized officer, and to be dated as of
the date first above written.
ENVISION SOLAR INTERNATIONAL, INC.
By:_________________________________________
Xxxxxxx Xxxxxxxx, Chief Executive Officer
NOTICE OF EXERCISE
ENVISION SOLAR INTERNATIONAL, INC.
WARRANT NUMBER: ______
(1) The undersigned hereby elects to purchase ________ Warrant Shares
of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together
with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
/_/ in lawful money of the United States; or
/_/ the cancellation of such number of Warrant Shares as
is necessary, in accordance with the formula set forth in Section 1(b), to
exercise this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth in Section
1(b).
(3) Please issue a certificate or certificates representing said
Warrant Shares in the name of the undersigned or in such other name as is
specified below:
-------------------------------
The Warrant Shares shall be delivered to the following DWAC Account
Number, issued as DRS shares by the transfer agent directly to Holder, or by
physical delivery of a certificate to:
-------------------------------
-------------------------------
(4) ACCREDITED INVESTOR. Unless the undersigned exercises this Warrant
by cashless exercise pursuant to Section 1(b) of the Warrant, the undersigned
hereby represents and warrants that it is an "accredited investor" as defined in
Regulation D promulgated under the Securities Act of 1933, as amended, and
satisfies the criteria set forth in Rule 501(a) therein.
(5) LEGEND. Unless otherwise permitted under applicable law and the
terms of this Warrant, the certificates representing these securities will bear
a legend restricting transfer under the Securities Act and applicable state
securities laws. In the case of a cashless exercise 12 months after the Issuance
Date, the Company shall contemporaneously deliver the appropriate Rule 144
opinion letter to its transfer agent with instructions to issue the Warrant
Shares without a restrictive legend, unless applicable law, order or regulations
prohibit such issuance.
[SIGNATURE OF HOLDER]
Dated: Signed:
--------------------------------- -------------------------------
Signature guaranteed: Address:
------------------ -------------------------------
ASSIGNMENT FORM
ENVISION SOLAR INTERNATIONAL, INC.
WARRANT NUMBER: ______
(To assign the foregoing warrant, execute this form and supply required
information. Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, [_] all of or [__________] shares of the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
________________________________________________whose address is
_______________________________________________________________
_______________________________________________________________.
Dated: ______________, _______
Holder's Signature:
___________________________________________
Holder's Address:
___________________________________________
___________________________________________
Authorized Signature:
_______________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
