Contract
EXHIBIT
10.1
THIS
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT
TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION
AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT
TO PURCHASE STOCK
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Corporation:
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Anasazi
Capital Corp., a Florida
corporation
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Number
of Shares:
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262,800
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Class
of Stock:
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Common
Stock, no par value
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Exercise
Price:
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$0.01
per share
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Issue
Date:
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August
14, 2007
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Expiration
Date:
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August
13, 2012
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THIS
WARRANT CERTIFIES THAT, for good and valuable consideration, the receipt of
which is hereby acknowledged, Law Offices of Xxxxxxx X. Xxxxxxx, P.A., or its
permitted assignee (“Holder”), is entitled to purchase the number of fully paid
and nonassessable shares of the class of securities (the “Shares”) of the
corporation (the “Company”) at the exercise price (the “Warrant Price”) all as
set forth above and as adjusted pursuant to Article 2 of this warrant, subject
to the provisions and upon the terms and conditions set forth in this
warrant.
ARTICLE
1.EXERCISE.
1.1 Method
of Exercise. Upon the quotation of the Company’s shares of common
stock on a Public Market (as defined in Section 1.5), Holder may exercise
this warrant, in whole or in part, by delivering this warrant and a duly
executed Notice of Exercise in substantially the form attached as Appendix
1 to the principal office of the Company. Unless Holder is
exercising the conversion right set forth in Section 1.2, Holder shall
also deliver to the Company a check for the Warrant Price for the Shares being
purchased.
1.2 Conversion
Right. Upon the quotation of the Company’s shares of common stock
on a Public Market (as defined in Section 1.5), in lieu of exercising
this warrant as specified in Section 1.1, Holder may from time to time
convert this warrant, in whole or in part, into a number of Shares determined
by
multiplying the number of shares issuable upon exercise of this warrant by
a
fraction, (a) the numerator of which is the fair market value of one Share
minus
the Warrant Price of one Share, by (b) the fair market value of one
Share. The fair market value of the Shares shall be the closing price
of the Shares (or the closing price of the Company’s stock into which the Shares
are convertible) reported for the business day immediately before Holder
delivers its Notice of Exercise to the Company.
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1.3 Delivery
of Certificate and New Warrant. Promptly after Holder exercises
or converts this warrant, the Company shall deliver to Holder certificates
for
the Shares acquired and, if this warrant has not been fully exercised or
converted and has not expired, a new warrant representing the Shares not so
acquired.
1.4 Replacement
of Warrants. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this warrant and,
in the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company or, in the case of
mutilation, on surrender and cancellation of this warrant, the Company at its
expense shall execute and deliver, in lieu of this warrant, a new warrant of
like tenor.
1.5 Put
Right. In the event that the Company’s shares of common stock are
not listed for quotation on a recognized national securities exchange, the
Nasdaq National Market (or a similar national quotation system), the
over-the-counter electronic bulletin board or the Pink Sheets (each, a “Public
Market”), at Holder’s option, in lieu of exercising its rights as set forth in
Section 1.1 or Section 1.2, Holder shall have the right to require
the Company to purchase this warrant, or the Shares issuable upon the exercise
of this warrant (the “Put Right”), for an aggregate purchase price equal
to the number of Shares issued and issuable upon exercise of this warrant
multiplied by Equity Value (the “Put Price”). The Company
shall pay the purchase price to the Holder within seven (7) days after receipt
of Holder’s written notice of Holder’s decision to exercise the Put Right;
provided, that in the event that Holder’s notice is provided less than
seven (7) days prior to the closing of an Acquisition, the Company shall make
the payment of the Put Price to the Holder on the day before the date of the
closing of the Acquisition. “Equity Value” per Share
shall be determined by dividing (a) the excess of the Enterprise Value over
Funded Debt, by (b) the aggregate number of issued and outstanding shares of
Common Stock of the Company on a fully-diluted basis. For purposes of
this Section 1.3, the following terms shall have the following
meanings:
1.5.1 “Adjusted
Net Income” shall mean net income of the Company for any period, excluding any
non-recurring or extraordinary gains and losses occurring in such period, but
normalized for historical uncollectible debt expenses.
1.5.2 “EBITDA”
shall mean Adjusted Net Income of the Company plus interest, tax, depreciation
and amortization expenses for a twelve (12) month trailing period.
1.5.3 “Enterprise
Value” shall mean the Company’s EBITDA multiplied times seven (7).
1.5.4 “Funded
Debt” shall mean all indebtedness obligations of the Company except trade
payables incurred by the Company in the ordinary course of
business.
1.6 Effect
of Sale, Merger, or Consolidation of the Company.
1.6.1 “Acquisition.” For
the purpose of this warrant, “Acquisition” means any sale, license, or other
disposition of all or substantially all of the assets (including intellectual
property) of the Company, or any reorganization, consolidation, or merger of
the
Company where the holders of the Company’s securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.
1.6.2 Assumption
of Warrant. If upon the closing of any Acquisition the successor
entity assumes the obligations of this warrant, then this warrant shall be
exercisable for the same securities, cash, and property as would be payable
for
the Shares issuable upon exercise of the unexercised portion of this warrant
as
if such Shares were outstanding on the record date for the Acquisition and
subsequent closing. The Warrant Price shall be adjusted
accordingly. The Company shall use reasonable efforts to cause the
surviving corporation to assume the obligations of this warrant.
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1.6.3 Nonassumption. If
upon the closing of any Acquisition the successor entity does not assume the
obligations of this warrant, and Holder has not otherwise exercised this warrant
in full, then Holder shall have the right to deem this warrant to have been
automatically converted pursuant to Section 1.2 and thereafter Holder
shall participate in the Acquisition on the same terms as other holders of
the
same class of securities of the Company.
ARTICLE
2.ADJUSTMENTS TO THE
SHARES.
2.1 Reclassification,
Exchange or Substitution. Upon any reclassification, exchange,
substitution, or other event that results in a change of the number and/or
class
of the securities issuable upon exercise or conversion of this warrant, Holder
shall be entitled to receive, upon exercise or conversion of this warrant,
the
number and kind of securities and property that Holder would have received
for
the Shares if this warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. The Company
or its successor shall promptly issue to Holder a new warrant for such new
securities or other property. The new warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2 including, without limitation,
adjustments to the Warrant Price and to the number of securities or property
issuable upon exercise of the new warrant. The provisions of this
Section 2.1 shall similarly apply to successive reclassifications,
exchanges, substitutions, or other events.
2.2 Adjustments
for Combinations, Etc. If the outstanding Shares are combined or
consolidated, by reclassification or otherwise, into a lesser number of shares,
the Warrant Price shall be proportionately increased. If the outstanding Shares
are combined or consolidated, by reclassification or otherwise, into a greater
number of shares, the Warrant Price shall be proportionately
decreased.
2.3 Adjustments
for Diluting Issuances. The Warrant Price and the number of
Shares issuable upon exercise of this warrant shall be subject to adjustment,
from time to time, in the manner set forth on Exhibit A in the event of
Diluting Issuances (as defined on Exhibit A).
2.4 No
Impairment. The Company shall not, by amendment of its Articles
of Incorporation or through a 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 to
be
observed or performed under this warrant by the Company, but shall at all times
in good faith assist in carrying out all the provisions of this Article 2 and
in
taking all such action as may be necessary or appropriate to protect Holder’s
rights under this Article against impairment.
2.5 Certificate
as to Adjustments. Upon each adjustment of the Warrant Price, the
Company at its expense shall promptly compute such adjustment, and furnish
Holder with a certificate of its Chief Financial Officer setting forth such
adjustment and the facts upon which such adjustment is based. The
Company shall, upon written request, furnish Holder a certificate setting forth
the Warrant Price in effect upon the date thereof and the series of adjustments
leading to such Warrant Price.
ARTICLE
3.REPRESENTATIONS AND
COVENANTS OF THE COMPANY.
3.1 Representations
and Warranties. The Company hereby represents and warrants to the
Holder as follows:
(a) All
Shares which may be issued upon the exercise of the purchase right represented
by this warrant, and all securities, if any, issuable upon conversion of the
Shares, shall, upon issuance, be duly authorized, validly issued, fully paid
and
nonassessable, and free of any liens and encumbrances except for restrictions
on
transfer provided for herein or under applicable federal and state securities
laws.
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3.2 Notice
of Certain Events. If the Company proposes at any time (a) to
declare any dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro rata to the holders of any class or series
of
its stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of common stock; or
(d)
to merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up, then, in connection with each such event, the Company
shall
give Holder (1) at least 25 days prior written notice of the date on which
a
record will be taken for such dividend, distribution, or subscription rights
(and specifying the date on which the holders of common stock will be entitled
thereto) or for determining rights to vote, if any, in respect of the matters
referred to in (a) and (b) above; and (2) in the case of the matters referred
to
in (c) and (d) above at least 25 days prior written notice of the date when
the
same will take place (and specifying the date on which the holders of common
stock will be entitled to exchange their common stock for securities or other
property deliverable upon the occurrence of such event).
3.3 Information
Rights. So long as the Holder holds this warrant and/or any of
the Shares, the Company shall deliver to the Holder (a) promptly after mailing,
copies of all communiques to the shareholders of the Company, (b) within one
hundred and five (105) days after the end of each fiscal year of the Company,
the annual audited financial statements of the Company certified by
independent public accountants of recognized standing, (c) within fifty
(50) days after the end of each of the first three quarters of each fiscal
year,
the Company’s quarterly, unaudited financial statements, and (d) within thirty
(30) days after the end of each quarter of each fiscal year, a capitalization
table showing all issued and outstanding (i) capital stock of the Company,
organized by class and series, and (b) all options, warrants and other purchase
or acquisition rights with respect to any class or series of capital stock
of
the Company held by any person.
3.4 Registration.
(a) Definitions.
For
purposes of this
Section 3.4 the following terms have the following
definitions:
“Registrable
Stock” means (i) all Shares which are issuable pursuant to this
warrant, whether or not the warrant has in fact been exercised and whether
or
not such Shares have in fact been issued, (ii) all Shares acquired by
Holder pursuant to this warrant, and (iii) any shares of Common Stock,
whether or not such shares of Common Stock have in fact been issued, and stock
or other securities of the Company issued in a stock split or reclassifications
of, or a stock dividend or other distribution on, or in substitution or exchange
for, or otherwise in connection with, such Shares.
“Commission”
means the U.S. Securities and Exchange Commission.
“participating
holders” means holders of Registrable Stock included in a registration
statement filed with the Commission pursuant to this Section
3.4.
“Securities
Act” means the Securities Act of 1933, as amended.
(b) Incidental
Registration. Each time the Company shall determine to file a
registration statement under the Securities Act (other than on Form S-8) in
connection with the proposed offer and sale for money of any of its securities
by it or by any of its security holders, the Company will give written notice
of
its determination to all holders of Registrable Stock at least ten (10) days
prior to the filing of such registration statement. Upon the written
request of a holder of any Registrable Stock, within ten (10) days after receipt
of the above-described notice from the Company, the Company will cause all
such
Registrable Stock, the holders of which have so requested registration thereof,
to be included in such registration statement, all to the extent requisite
to
permit the sale or other disposition by the prospective seller or sellers of
the
Registrable Stock to be so registered in accordance with the terms of the
proposed offering. If the registration statement is to cover an
underwritten distribution, the Company shall use its best efforts to cause
the
Registrable Stock requested for inclusion pursuant to this Section 3.4(b)
to be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. In the
event of a firm commitment underwriting, if the managing underwriter of such
offering shall advise holders in writing that, in its good faith opinion,
distribution of a specified portion of the securities requested to be included
in the registration statement would materially adversely affect the distribution
of such securities by increasing the aggregate amount of the offering in excess
of the maximum amount of securities which such managing underwriter believes
can
reasonably be sold in the contemplated distribution, then the securities to
be
included in the registration shall be included in the following
order: (1) first, the securities the Company proposes to include
in the underwritten offering, (2) second, Registrable Stock requested to be
included in such registration by holders of Registrable Stock, on a pro rata
basis, and (3) third, all other shares of securities requested to be
included by any other security holder of the Company. The Company
shall maintain the effectiveness of any such registration statement until the
date which is the later to occur of (i) the expiration of any such public
offering, and (ii) twelve (12) months from the date that any such registration
statement is declared effective by the Commission.
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(c) Expenses
of Registration. All expenses incident to the Company’s
performance of or compliance with this warrant, including, without limitation,
the following shall be borne by the Company, regardless of whether the
registration statement becomes effective:
(i) All
registration and filing fees (including those with respect to filings required
to be made with the National Association of Securities Dealers,
Inc.);
(ii) Fees
and expenses of compliance with all securities or blue sky laws (including
fees
and disbursements of counsel for the underwriters or participating holders
in
connection with blue sky qualifications of the Registrable Stock and in
determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or participating holders of a
majority of the Registrable Stock being sold may designate);
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(iii)
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Printing,
messenger, telephone, facsimile and delivery
expenses;
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(iv) Fees
and disbursements of counsel for the Company, and the underwriters;
(v) Fees
and disbursements of all independent certified public accountants of the Company
(including the expenses of any special audit and “comfort” letters required by
or incident to such performance);
(vi) Fees
and disbursements of underwriters (excluding discounts, commissions or fees
of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of the Registrable Stock or legal
expenses of any person other than the Company and the selling holders);
and
(vii) Fees
and expenses of other persons retained by the Company.
The
Company will, in any event, pay
its internal expenses (including without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit, the fees and expenses incurred in connection with
the listing of the securities to be registered on each securities exchange
on
which similar securities issued by the Company are then listed, rating agency
fees and the fees and expenses of any person, including special experts,
retained by the Company.
(d) Indemnification.
(i) The
Company hereby agrees to indemnify each of the participating holders of
Registrable Stock included on any registration statement and their officers
and
directors and each person, if any, who controls any thereof within the meaning
of Section 15 of the Securities Act and their respective successors
against all claims, losses, damages and liabilities (or actions in respect
thereof), joint or several, arising out of or based on any untrue statement
(or
alleged untrue statement) of a material fact contained in any registration
statement, preliminary or final prospectus, or other document incident to any
such registration, qualification or compliance (or in any related registration
statement, notification or the like) or 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, or any violation by the Company of any
rule or regulation promulgated under the Securities Act applicable to the
Company and relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and to reimburse the
holders of Registrable Stock (including officers and directors of the same
and
controlling persons) for any legal and any other expenses reasonably incurred
in
connection with investigating or defending any such claim, loss, damage,
liability or action, provided, however, that the Company will not be liable
in
any such case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by holders of Registrable Stock in an
instrument duly executed by them and stated to be specifically for use
therein.
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(ii) Participating
holders of Registrable Stock whose shares are included in a registration
statement, severally and not jointly, agree to indemnify the Company and its
officers and directors and each person, if any, who controls any thereof within
the meaning of Section 15 of the Securities Act and their respective
successors against all claims, losses, damages and liabilities (or actions
in
respect thereof), joint or several, arising out of or based on any untrue
statement of a material fact contained in any registration statement,
preliminary or final prospectus or other document incident to any such
registration, qualification or compliance relating to the Warrants or the
securities purchased pursuant to the Warrants (or in any related registration
statement, notification or the like) or 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, and to reimburse the Company and each
other person indemnified pursuant to this Section 3.4(d) for any legal
and any other expenses reasonably incurred in connection with investigating
or
defending any such claim, loss, damage, liability or action; provided,
however, that this Section 3.4(d) shall apply only if (and only to the
extent that) such statement or omission was made in reliance upon information
(including, without limitation, written negative responses to inquiries)
furnished to the Company in writing in an instrument duly executed by
participating holders of Registrable Stock and stated to be specifically for
use
in such prospectus, or other document (or related registration statement,
notification or the like) or any amendment or supplement thereto;
provided further, that in no case shall any participating holder of
Registrable Stock be responsible for any amount in excess of the amount of
net
proceeds received by such participating holders from the offering of the
securities.
(iii) Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in this
Section 3.4(d), such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the
latter of the commencement of such action; provided, however, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 3.4(d), except to the extent that the
indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified
party, unless in such indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, the indemnifying party shall be entitled to participate in and
to
assume the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that the indemnifying party may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. If, in the indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist
in respect of such claim, the indemnified party may assume the defense of such
claim, jointly with any other indemnified party that reasonably determines
such
conflict of interest to exist, and the indemnifying party shall be liable to
such indemnified parties for the reasonable legal fees and expenses of one
counsel for all such indemnified parties and for other expenses reasonably
incurred in connection with the defense thereof incurred by the indemnified
party. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof
the
giving by the claimant or plaintiff to such indemnified party of a release
from
all liability, or a covenant not to xxx, in respect of such claim or
litigation. No indemnified party shall consent to entry of any
judgment or enter into any settlement of any such action the defense of which
has been assumed by an indemnifying party without the consent of such
indemnifying party.
(iv) Indemnification
and contribution similar to that specified in this Section 3.4(d)
(with appropriate modifications) shall be given by the Company and each
participating holder of Registrable Stock included in a registration statement
with respect to any required registration or other qualification of Registrable
Stock under any Federal or state law or regulation of any governmental
authority, other than the Securities Act.
(v) The
indemnification required by this Section 3.4(d) shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred.
(vi) If
the indemnification provided for in this Section 3.4(e) from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities, or expenses referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as
a
result of losses, claims, damages, liabilities, or expenses in such proportion
as is appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions which resulted in such losses,
claims, damages, liabilities, or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified party, and the parties’ relative intent, knowledge, access
to information, and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities, and expenses referred to above shall
be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding. In no
event shall the liability of any person or entity hereunder be greater in amount
than the dollar amount of the proceeds received by such person or entity upon
the sale of the Registrable Stock giving rise to such contribution
obligation. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 3.4(d)(vi) were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in this
Section 3.4(d)(vi). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person or entity
who
was not guilty of such fraudulent misrepresentation.
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(e) Assignment
of Rights; Termination. The rights granted under this
Section 3.4 may be assigned to the transferee of any of the Warrant
or Registrable Stock.
ARTICLE
4.MISCELLANEOUS.
4.1 Term. Upon
the quotation of the Company’s shares of common stock on a Public Market, this
warrant is exercisable in whole or in part, at any time and from time to time
on
or after the Issue Date and on or before the Expiration Date set forth
above. If this warrant has not been exercised prior to the Expiration
Date, this warrant shall be deemed to have been automatically exercised on
the
Expiration Date by “cashless” conversion pursuant to Section
1.2.
4.2 Legends. This
warrant and the Shares (and the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) shall be imprinted with a legend in
substantially the following form:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
4.3 Compliance
with Securities Laws on Transfer. This warrant and the Shares
issuable upon exercise of this warrant (and the securities issuable, directly
or
indirectly, upon conversion of the Shares, if any) may not be transferred or
assigned in whole or in part without compliance with applicable federal and
state securities laws by the transferor and the transferee (including, without
limitation, the delivery of investment representation letters and legal opinions
reasonably satisfactory to the Company). The Company shall not
require Holder to provide an opinion of counsel if the transfer is to an
affiliate of Holder that is an “accredited investor” within the meaning of Rule
501 of the Securities Act, or if there is no material question as to the
availability of current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in reasonable detail,
the selling broker represents that it has complied with Rule 144(f), and the
Company is provided with a copy of Holder’s notice of proposed
sale. With respect to any transfer by any Holder pursuant to Rule
144, to the extent that a legal opinion is required to effect such transfer
by
Holder, the Company shall deliver an opinion of its counsel (at the Company’s
expense), as required, to any broker or transfer agent to the effect that the
proposed transfer by the Holder may be effected pursuant to Rule
144.
4.4 Transfer
Procedure. Subject to the provisions of Section 4.3,
Holder may transfer all or part of this warrant or the Shares issuable upon
exercise of this warrant (or the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) by giving the Company notice of the
portion of the warrant being transferred setting forth the name, address and
taxpayer identification number of the transferee and surrendering this warrant
to the Company for reissuance to the transferee(s) (and Holder, if applicable);
provided, however, that Holder may transfer all or part of this warrant
to its affiliates at any time without notice to the Company, and such affiliate
shall then be entitled to all the rights of Holder under this warrant and any
related agreements, and the Company shall cooperate fully in ensuring that
any
stock issued upon exercise of this warrant is issued in the name of the
affiliate that exercises this warrant. The term “affiliate” as used
herein shall mean, with respect to Holder, any person or entity which directly
or indirectly controls, is controlled by, or is under common control with,
Holder. The term “control” as used herein, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a person or entity, whether through ownership of
voting securities, by contract, acting as an officer, director or manager or
otherwise. The terms and conditions of this warrant shall inure to
the benefit of, and be binding upon, the Company and the holders hereof and
their respective permitted successors and assigns. Unless the Company is filing
financial information with the SEC pursuant to the Securities Exchange Act
of
1934, the Company shall have the right to refuse to transfer any portion of
this
warrant to any person who directly competes with the Company.
4.5 Notices. All
notices and other communications to a party hereto shall be in
writing. All such notices and communications shall be deemed to have
been duly given, when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial overnight courier service; if mailed,
five (5) business days after being deposited in the mail, postage prepaid;
and,
if faxed, when transmission is confirmed. All notices shall be
addressed as follows:
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To
Holder: Law
Offices of Xxxxxxx X. Xxxxxxx, P.A.
000
Xxxxxxxx Xxxxxx, Xxxx
0
Xxxxx
Xxxxx, Xxxxxxx 00000
Attn.: Xxxxxxx
X. Xxxxxxx
Fax: (000)
000-0000
To
Company: Anasazi
Capital Corp.
000
Xxxxx Xxxxxx
Xxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attn.: Xxxxxx
Xxxx
Fax: (000)
000-0000
4.6 Amendments. 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.
4.7 Attorneys’
Fees. In the event of any dispute between the parties concerning
the terms and provisions of this warrant, the party prevailing in such dispute
shall be entitled to collect from the other party all costs incurred in such
dispute, including reasonable attorneys’ fees.
4.8 Governing
Law. This warrant shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to
its
principles regarding conflicts of law.
By: /s/
Xxxxxx
Xxxx
Xxxxxx
Xxxx, President
ACCEPTED
AND AGREED TO BY:
LAW
OFFICES OF XXXXXXX X. XXXXXXX, P.A.
By: /s/
Xxxxxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxxx, President
-8-
APPENDIX
1
NOTICE
OF EXERCISE
1. The
undersigned hereby elects to purchase ______________ shares of the common stock,
no par value, of Anasazi Capital Corp., a Florida corporation, pursuant to
the
terms of the attached warrant, and tenders herewith payment of the purchase
price of such shares in full.
1. The
undersigned hereby elects to convert the attached warrant into shares of common
stock, no par value, of Anasazi Capital Corp., in the manner specified in the
warrant. This conversion is exercised with respect to ______________
of the shares covered by the warrant.
[Strike
paragraph that does not apply.]
2. Please
issue a certificate or certificates representing said shares in the name of
the
undersigned or in such other name as is specified below:
Law
Offices of Xxxxxxx X. Xxxxxxx, P.A.
3. The
undersigned represents it is acquiring the shares solely for its own account
and
not as a nominee for any other party and not with a view toward the resale
or
distribution thereof except in compliance with applicable securities
laws.
LAW
OFFICES OF XXXXXXX X. XXXXXXX, P.A.
(Signature)
(Date)
-9-
EXHIBIT
A
This
Anti-Dilution Agreement is entered
into as of the 14th day of
August,
2007, by and between Law Offices of Xxxxxxx X. Xxxxxxx, P.A. (“Purchaser”) and
Anasazi Capital Corp. (“the Company”).
RECITALS
A. Concurrently
with the execution of this Anti-Dilution Agreement, the Purchaser is purchasing
from the Company a Warrant to Purchase Stock (the “Warrant”) pursuant to which
Purchaser has the right to acquire from the Company the Shares (as defined
in
the Warrant).
B. By
this Anti-Dilution Agreement, the Purchaser and the Company desire to set forth
the adjustment in the number of Shares issuable upon exercise of the Warrant
as
a result of a Diluting Issuance (as defined below).
C. Capitalized
terms used herein shall have the same meaning as set forth in the
Warrant.
NOW,
THEREFORE, in consideration of the
mutual promises, covenants and conditions hereinafter set forth, the parties
hereto mutually agree as follows:
1. Definitions.
As used in this Anti-Dilution Agreement, the following terms have the following
respective meanings:
(a) “Option”
means any right, option or warrant to subscribe for, purchase or otherwise
acquire common stock or Convertible Securities.
(b) “Convertible
Securities” means any evidences of indebtedness, shares of stock or other
securities directly or indirectly convertible into or exchangeable for common
stock.
(c) “Issue”
means to grant, issue, sell, assume or fix a record date for determining persons
entitled to receive any security (including Options), whichever of the foregoing
is the first to occur.
(d) “Additional
Common Shares” means all common stock (including reissued shares) Issued (or
deemed to be issued pursuant to Section 2) after the date of the
Warrant.
2. Deemed
Issuance of Additional Common Shares. The shares of common stock
of the Company ultimately Issuable upon exercise of an Option (including the
shares of common stock ultimately Issuable upon conversion or exercise of a
Convertible Security Issuable pursuant to an Option) are deemed to be Issued
when the Option is Issued. The shares of common stock of the Company ultimately
Issuable upon conversion or exercise of a Convertible Security (other than
a
Convertible Security Issued pursuant to an Option) shall be deemed Issued upon
Issuance of the Convertible Security. The maximum amount of common stock of
the
Company Issuable is determined without regard to any future adjustments
permitted under the instrument creating the Options or Convertible
Securities.
3. Anti-Dilution
of Warrants and Warrant Shares for Diluting Issuances.
-10-
3.1 Full
Ratchet Adjustment. If the Company issues Additional Common
Shares after the date of the warrant (a “Diluting Issuance”), then the number of
shares of common stock purchasable under this warrant shall be increased to
that
number of shares of Common Stock equal the relative percentage of the Company’s
Shares issued and outstanding in effect immediately before such
Issue. (For example, the percentage of shares of common stock
purchasable under this warrant on the Issue Date is equal to 4.9935%
(262,800/5,262,800 = 4.9935%). In the event that the Company issues
1,000,000 Additional Common Shares, the number of shares of common stock
purchasable under this warrant shall be increased to 312,733 (4.9935% x
6,262,800 = 312,733).) These full ratchet adjustment rights will
continue in effect until two years from the date that all shares of the
Company’s common stock purchasable under this warrant are registered under the
Securities Act of 1933, as amended. These full ratchet adjustment
rights will not attach to any shares sold in open market transactions on a
recognized national securities exchange, the Nasdaq National Market (or a
similar national quotation system), the over-the-counter electronic bulletin
board or the Pink Sheets.
3.2 Securities
Deemed Outstanding. For the purpose of this Section 3, all securities
Issuable upon exercise of any outstanding Convertible Securities, Options or
other rights to acquire securities of the Company shall be deemed to be
outstanding.
4. General.
4.1 Governing
Law. This Anti-Dilution Agreement shall be governed in all respects by the
laws of the State of Florida as such laws are applied to agreements between
Florida residents entered into and to be performed entirely within the State
of
Florida.
4.2 Successors
and Assigns. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.
4.3 Entire
Agreement. Except as set forth below, this Anti-dilution Agreement and the
other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
4.4 Notices,
etc. All notices and other communications required or permitted hereunder
shall be in writing and shall be mailed by first class mail, postage prepaid,
certified or registered mail, return receipt requested, addressed (a) if to
Purchaser at Purchaser’s address as set forth below, or at such other address as
Purchaser shall have furnished to the Company in writing, or (b) if to the
Company, at the Company's address set forth below, or at such other address
as
the Company shall have furnished to the Purchaser in writing.
4.5 Severability.
In case any provision of this Anti-Dilution Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions of this Anti-dilution Agreement shall not in any way be affected
or
impaired thereby.
4.6 Titles
and Subtitles. The titles of the sections and subsections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Anti-Dilution Agreement.
4.7 Counterparts.
This Anti-Dilution Agreement may be executed in any number of counterparts,
each
of which shall be an original, but all of which together shall constitute one
instrument.
-11-
PURCHASER: ISSUER:
LAW
OFFICES OF XXXXXXX X. XXXXXXX,
P.A. ANASAZI
CAPITAL CORP.
By: /s/
Xxxxxxx X.
Xxxxxxx By: /s/
Xxxxxx Xxxx
Xxxxxxx
X. Xxxxxxx,
President
Xxxxxx Xxxx, President
Address: 000
Xxxxxxxx Xxxxxx, Xxxx
0 Address: 000
Xxxxx Xxxxxx
Xxxxx
Xxxxx,
Xxxxxxx 00000 Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
-12-
