Exhibit 10.7
LOAN AGREEMENT
This Loan Agreement ("Agreement") is entered into by and Between
Faraday Financial, Inc., a Delaware corporation (the "Company") and _______ (
"Lender") to be effective as of the ___ day of February, 2004.
WITNESSETH:
WHEREAS, the Company is in need of immediate capital to fund its
planned operations.
WHEREAS, Lender is willing to make a loan to the Company in the total
aggregate principal amount of ______________ ($ ________ USD) upon the terms and
conditions set forth herein and the Company is willing to borrow the stated
amount upon such terms.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. The Loan.
1.1. Lender hereby agrees to loan the Company (the "Loan") the
aggregate principal amount of ___________ ($______ USD) which funds are being
provided to the Company contemporaneously with the execution of this Agreement
by the parties hereto. The amounts lent hereunder shall be evidenced by a
convertible promissory note in substantially the same form as attached hereto as
Exhibit "A" (the "Note"). Borrower shall deliver to Lender a Note in the
principal amount of funds lent at the same time that the Company receives the
Loan proceeds.
1.2. The Company shall use the net proceeds of the Note for working
capital and other purposes.
Section 2. Finance Charges. All outstanding principal shall bear interest at the
rate of Twelve percent (12%) per annum. Principal and interest not paid when due
shall bear interest at the rate of eighteen percent (18%) per annum. Interest
will be computed on the basis on a 360-day year for actual days elapsed. Lender
shall receive common stock purchase warrants to acquire 100 shares of common
stock at an exercise price of One Dollar Fifty Cents ($1.50) per share (the
"Warrant") for every ONE THOUSDAND DOLLARS in principal lent by Lender to the
Company hereunder. The Warrant shall be in substantially the same form as
attached hereto as Exhibit "B."
Section 3. Payments. Principal and interest shall be due and payable in a single
balloon payment on the six month anniversary of the Note. The Company may, from
time to time, in the Company's discretion, make one or more periodic payments to
Lender. Such payments shall be credited to the Company's account on the date
that such payment is received by Lender. Such payments shall be applied first to
late charges and collection costs, if any, then to accrued interest to the date
of payment, and then to the principal outstanding.
Section 4. Deliveries. Contemporaneously with the execution of this Agreement,
the parties shall deliver to each other properly executed copies of the
following agreements:
(a) The Note of even date herewith by and between Lender and
the Company.
(b) The Warrant of even date herewith by and between Lender
and the Company.
(c) The Loan proceeds.
Section 5. Representations of Lender.
5.1 Lender's representations in this Agreement are complete and
accurate to the best of Lender's knowledge, and the Company may rely upon them.
5.2 Lender is able to bear the economic risk of an investment in the
Note, Warrant and the underlying securities (individually and collectively, the
"Securities") can afford the loss of the entire investment in the Securities,
and will, after making an investment in the Securities, have sufficient means of
providing for Lender's current needs and possible future contingencies.
5.3 The Securities will not be sold by Lender without registration under
applicable securities acts or a proper exemption from such registration.
5.4 The Securities subscribed for herein is being acquired for Lender's
own account and risk, for investment purposes, and not on behalf of any other
person or with a view to, or for resale in connection with, any distribution
thereof within the meaning of the Securities Act of 1933. Lender is aware that
there are substantial restrictions on the transferability of the Securities.
5.5 Lender has had access to any and all information concerning the
Company that Lender and its financial, tax and legal advisors required or
considered necessary to make a proper evaluation of this investment.
Specifically, Lender has had the opportunity to review Company's annual report
on Form 10-KSB for the fiscal year ended March 31, 1996. The Company has been
delinquent on filing subsequent required filings with the Securities and
Exchange Commission, does not have sufficient assets to repay the Loan and has
had minimal operations over the past two years. The Company has advised Lender
that (i) there have been material developments that are not described in such
filings, (ii) the Company's financial statements and other information contained
in such filings do not reflect material changes that have occurred since the
date of the financial statements in said filing and (iii) the Company believes
that updated financial and business information would be material to Lender's
investment decision. Notwithstanding the foregoing, Lender has declined to
review, accept or consider additional information in making an investment
decision. In making the decision to acquire the Securities, the Company and its
advisers have relied solely upon their own independent investigations, and fully
understand that there are no guarantees, assurances or promises in connection
with any investment hereunder and understand that the particular tax
consequences arising from this investment in the Company will depend upon its
individual circumstances. Lender further understands that no opinion is being
given as to any securities or tax matters involving the offering.
5.6 Lender also understands and agrees that stop transfer instructions
relating to the Securities will be placed in the Company's transfer ledger, and
that the Securities will bear a legend in substantially the following form:
THIS SECURITIES REPREENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THESE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF
SUCH ACT.
5.7 Lender knows that the Securities are offered and sold pursuant to
exemptions from registration under the Securities Act of 1933, and state
securities law based, in part, on these warranties and representations, which
are the very essence of this Agreement, and constitute a material part of the
bargained-for consideration without which this Agreement would not have been
executed.
5.8 Lender has the capacity to protect Lender's own interest in
connection with this transaction or has a pre-existing personal or business
relationship with the Company or one or more of its officers, directors or
controlling persons consisting of personal or business contacts of a nature and
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duration such as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
such person with whom such relationship exists.
5.9 This Agreement when fully executed and delivered by the Company
will constitute a valid and legally binding obligation of Lender, enforceable in
accordance with its terms. Lender was not formed or organized for the specific
purpose of acquiring the Securities. In the event Lender is an entity, the
purchase of the Securities by Lender is a permissible investment in accordance
with Lender's Articles of Incorporation or other similar charter document, and
has been duly approved by all requisite action by the entity's owners,
directors, officers or other authorized managers. The person signing this
document and all documents necessary to consummate the purchase of the
Securities has all requisite authority to sign such documents on behalf of
Lender.
5.10 Lender represents that Lender is a sophisticated and an
"accredited investor" as defined under Rule 501 of Regulation D.
Section 6. Representations of the Company.
6.1 The Company is a duly organized and validly existing corporation in
good standing under the laws of Delaware.
6.2 The Company has all necessary corporate power and authority to
enter into and perform this Agreement. The Company has taken all corporate
action necessary to authorize this Agreement.
6.3 The execution and delivery of this Agreement, the performance by
the Company of its obligations under this Agreement, and the consummation of the
transactions provided for in this Agreement have been duly and validly
authorized by all necessary corporate action on the part of the Company. This
Agreement will, as of the effective date, be duly executed and delivered by the
Company and will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its respective terms, subject
to applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
6.4 The execution and delivery by the Company of this Agreement, the
performance by the Company of its obligations hereunder, and the consummation of
the transactions contemplated hereby, do not and will not (a) violate or
conflict with or result in a breach of any provision of the Certificate of
Incorporation or Bylaws of the Company; (b) require any consent, approval or
notice under, or registration under or payment on account of, or conflict with,
or result in a violation or breach of, or constitute (with or without the giving
of notice or the lapse of time or both) a default (or give rise to any right of
termination, modification (including, in the case of leases, any change in the
amount or nature of the rent), cancellation or acceleration or result in the
creation or imposition of any lien upon the property of the Company) under, any
of the terms, conditions or provisions of any (i) note, bond, mortgage,
indenture, license, lease, agreement or other instrument or obligation to which
the Company is a party or by which any portion of its properties or assets may
be bound, or (ii) permit, license, approval, franchise or other governmental or
regulatory authorization held or used by or binding on the Company; (c) violate
or contravene any law, statute, rule or regulation, or any order, writ,
judgment, injunction, decree or award of any governmental authority binding on
the Company; or (d) require any action, consent, approval or authorization of,
or review by, or declaration, registration or filing with, or notice to, any
governmental authority, except such filings as may be required in connection
with applicable securities laws.
6.5 The Company is not obligated to pay any broker's fee, finder's fee,
investment banker's fee or other similar transaction fee in connection with the
transactions contemplated hereby.
Section 7. Covenants.
7.1 The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory) and franchises of the Company.
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7.2 The Company will comply with all applicable statutes, regulations,
orders and restrictions of the United States, any state, municipality or other
governmental division thereof, and agencies and instrumentalities of the
foregoing, in respect of the conduct of its business and the ownership of its
property, except where such non-compliance will not have a material adverse
effect on the Company or its business.
7.3 The Company will file, when due, all federal, state and local tax
and information returns that it is required to file. The Company will pay when
due all taxes, interest and penalties, if any, reflected in such tax returns or
otherwise due and payable by it.
7.4 The Company shall not declare any distribution payable in
securities of other persons, evidences of indebtedness issued by the Company or
other persons, assets (excluding cash dividends) or options or rights prior to
the date the Loan is repaid in full.
Section 8. Miscellaneous.
8.1 This Agreement, including any attached exhibits or schedules,
constitutes the entire agreement between the parties pertaining to the subject
matter contained in this Agreement. All prior and contemporaneous agreements,
representations and understandings of the parties, oral or written, are
superseded by and merged in this Agreement. No supplement, modification or
amendment of this Agreement shall be binding unless in writing and executed by
the Company and Lender.
8.2 The provisions of this Agreement shall be binding upon the Company,
its legal representatives, successors or assigns, and shall be for the benefit
of Lender and its respective successors and assigns.
8.3 The headings of this Agreement are for purposes of reference only
and shall not limit or define the meaning of any provision of this Agreement.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which shall constitute one and the same
instrument.
8.4 If any action is brought by either party in respect to its rights
under this Agreement, or to obtain an interpretation thereof, the prevailing
party shall be entitled to reasonable attorneys' fees and court costs as
determined by the court.
8.5 No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver be a continuing waiver. Except as expressly provided in this
Agreement, no waiver shall be binding unless executed in writing by the party
making the waiver. Either party may waive any provision of this Agreement
intended for its benefit; provided, however, such waiver shall in no way excuse
the other party from the performance of any of its other obligations under this
Agreement.
8.6 The representations, warranties, acknowledgments and agreements
made by Lender shall survive the closing of the transaction described herein and
run in favor of, and for the benefit of, the Company. The representations,
warranties, acknowledgments and agreements made by the Company shall survive the
closing of the transaction described herein and run in favor of, and for the
benefit of, Lender.
8.7 The obligations of the parties hereto shall not be delegated or
assigned to any other party without the prior written consent of the other
party.
8.8 This Agreement shall be governed by the laws of the State of Utah.
8.9 Any notices required or permitted hereunder shall be furnished in
writing to each party at such party's address appearing on the signature page
below or as such party may otherwise direct in writing actually received by the
other party.
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8.10 The Company shall do, execute, acknowledge and deliver all such
further acts, deeds, assignments, transfers and assurances as Lender may
reasonably require to effectuate the purposes of this Agreement.
8.11 This Loan is one of a series of loans that are being made to the
Company by various lenders, which loans shall be in an aggregate principal
amount of not more than ONE MILLION DOLLARS ($1,000,000).
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first written above.
FARADAY FINANCIAL, INC. LENDER
EIN 00-0000000 EIN (if any) __________________
By ____________________________________ By _____________________________
Its: President Its
Address: Address:
Faraday Financial, Inc. ___________________________
Attn: President Attn: ____________________
000 Xxxxx Xxxx Xxxxxx, #0000 ___________________________
Xxxx Xxxx Xxxx, Xxxx 00000 ___________________________
Phone: (000) 000-0000 Phone: ________________________
Fax: (000) 000-0000 Fax: __________________________
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SCHEDULE OF EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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A Form of Convertible Promissory Note
B Form of Series A Common Stock Purchase Warrants
EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE ACT, UNLESS THE COMPANY HAS RECEIVED THE WRITTEN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH SALE, ASSIGNMENT OR TRANSFER
DOES NOT INVOLVE A TRANSACTION REQUIRING REGISTRATION OF THE ACT.
CONVERTIBLE PROMISSORY NOTE
No. ___ [DATE]
$_________ Salt Lake City, Utah
FOR VALUE RECEIVED, Faraday Financial, Inc., a Delaware corporation
(the "Borrower"), hereby promises to pay to the order of _______ (the "Lender")
with a principal business address at ____________, or such other place as the
holder hereof shall designate, the principal amount of ________ Dollars ($
_______ USD)or such lesser amount as may be outstanding from time to time, in
lawful money of the United States in immediately available funds with accrued
interest on the unpaid principal hereof from the date hereof at the rate of
twelve percent (12%) per annum. Principal plus interest accrued thereon shall be
due and payable in a single installment upon the earlier of (i) the six month
anniversary of this Note or (ii) the occurrence of an Event of Default as
defined in Section 3 hereof. In the event that any amount owing hereunder is not
paid when due, then interest shall accrue from and after the date of such demand
at the lower of (i) eighteen percent (18%) per annum or (ii) the highest
interest rate acceptable under applicable usury laws, compounded monthly (the
"Default Rate"). Interest shall be calculated on the basis of actual days
elapsed and a 360-day year.
1. Loan Agreements. This Loan is one of a series of loans that are
being made to the Company by various lenders which loans shall be in an
aggregate principal amount of not more than ________ Dollars ($________ USD).
2. Conversion.
(a) Optional Conversion. At any time while this Note is
outstanding, the Holder shall have the right, at Holder's sole option, from time
to time to convert all or part of the principal and accrued, but unpaid,
interest of this Note into shares of the Company's common stock, par value $.001
per share, (the "Common Stock") at the rate of one share of Common Stock for
every $1.00 in principal and accrued interest that is converted. The Holder
shall notify the Borrower in writing if Holder elects to convert all or part of
this Note. This Note or a portion thereof shall be deemed to have been converted
immediately prior to the close of business on the date written notice of
conversion is sent by Holder to Borrower, even if Borrower's stock transfer
books are on that date closed, and the Holder shall be treated for all purposes
as the record holder of the shares of Common Stock deliverable upon such
conversion as of the close of business on such date. Upon election to convert
all of the principal amount and accrued interest of this Note, the Note will be
cancelled. If all of the principal and accrued interest is converted, then the
Holder must surrender this Note to the Borrower at the Borrower's principal
offices for cancellation. In the event of a partial conversion then the Holder
must surrender the Note to the Company for endorsement to reflect the amount
owing at the time of such conversion. Upon conversion Borrower shall, as
promptly as practicable after the surrender and deliver to the Borrower of the
original signature Note for cancellation or endorsement, deliver to Holder a
certificate or certificates representing the Common Stock into which this Note
may be converted.
(b) Fractional Shares. No fractional shares or scrip shall be
issued upon conversion of this Note. The number of full shares of Common Stock
issuable upon conversion of this Note shall be computed on the basis of the
aggregate value of outstanding principal of and accrued interest on this Note
(or portion thereof) so converted. The value of any fractional shares shall be
paid in cash.
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(c) Reservation of Shares. Borrower shall reserve and shall at
all times keep available, solely for the purpose of issuance upon conversion of
this Note as herein provided, such number of shares of Common Stock as shall
then be issuable upon the conversion of this Note pursuant to the terms hereof.
The Borrower covenants that all Common Stock which shall be so issuable shall,
upon the conversion of this Note as provided herein, be duly and validly issued
and fully paid and nonassessable.
3. Events of Default. The entire outstanding principal amount of, and
all accrued unpaid interest on, this Note shall become forthwith due and
payable, without presentment, demand, protest, or notice of any kind, upon the
happening of any of the following events (each, an "Event of Default"):
(a) The failure by the Borrower to make a payment of any
principal or interest due on this Note within five days after the date such
payment was due and payable.
(b) The entry of any decree or order by a court having
jurisdiction adjudging the Borrower a debtor or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Borrower under the United States Bankruptcy
Code or any other applicable federal or state law, the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Borrower, or of any substantial part of the property of the Borrower, and
the continuance of any such decree or order unstayed, undischarged, or
undismissed and in effect for more than ninety (90) consecutive days.
(c) Institution by the Borrower of proceedings, under the
Bankruptcy Code or any other applicable federal or state law, seeking an order
for relief, or the consent of the Borrower to the institution of bankruptcy or
insolvency proceedings against the Borrower, or the consent by the Borrower to
the filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of or for the Borrower
or any substantial part of the property of the Borrower, or the making by the
Borrower of any assignment for the benefit of creditors, or the admission by the
Borrower of the Borrower's inability to pay its debts generally as they become
due, or the taking of any action by the Borrower in furtherance of any such
action.
Upon the occurrence of any Event of Default, the Lender may take all
actions available to it, at law or in equity, to collect and otherwise enforce
this Note.
4. Costs and Expenses of Enforcement and Collection. Upon receipt of
written evidence reasonably satisfactory to Borrower, the Borrower agrees to pay
on demand all reasonable costs and expenses, including reasonable attorneys'
fees, incurred or paid by the Lender in enforcing or collecting any of the
obligations of the Borrower hereunder.
5. Miscellaneous.
(a) The Borrower (i) waives presentment, demand, notice of
demand, protest, notice of protest, and notice of nonpayment and any other
notice required to be given under the law to the Borrower, in connection with
the delivery, acceptance, performance, default or enforcement of this Note,
except for notice and presentment upon conversion or at maturity of this Note
and notice or proposed transfer of this Note in accordance with the terms
hereof; and (ii) agrees that any failure to act or failure to exercise any right
or remedy on the part of the registered owner shall not in any way affect or
impair the obligations of the Borrower or be construed as a waiver by the owner
of, or otherwise affect, any of its rights under this Note.
(b) No act, omission or delay by the Lender or course of
dealing between the Lender and the Borrower shall constitute a waiver of the
rights and remedies of the Lender hereunder. No single or partial waiver by the
Lender of any default or right or remedy which it may have shall operate as a
waiver of any other default, right or remedy or of the same default, right or
remedy on a future occasion.
(c) No provision hereof shall be modified, altered or limited
except by a written instrument expressly referring to this Note and to such
provision, and executed by the Borrower and the Lender.
(d) This Note shall be governed by and construed in accordance
with the laws of the State of Utah, without giving effect to the choice or
conflict of laws principles of that or any other jurisdiction.
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(e) Any notice or demand which is required or provided to be
given under this Agreement shall be deemed to have been sufficiently given and
received for all purposes when delivered by hand or by telecopy, e-mail or other
method of electronic transmission (provided such transmission generates evidence
of delivery), or five days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, or two days after being
sent by overnight delivery providing receipt of delivery, to the following
addresses:
if to the Borrower:
Faraday Financial, Inc.
Attn: President
000 Xxxxx Xxxx Xxxxxx, #0000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
E-mail: xx@xxxxxxxxx.xxx
if to the Lender:
_______________________
_______________________
_______________________
Fax: _________________
E-mail: _______________
(f) In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Note shall be unreasonable or unenforceable in any respect, then such provision
shall be deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall deem any such provision, or portion thereof, wholly
unenforceable, the remaining provisions of this Note shall nevertheless remain
in full force and effect.
(g) This Note and all obligations evidenced hereby shall be
binding upon the successors and assigns of the Borrower and shall, together with
the rights and remedies of the Lender hereunder, inure to the benefit of the
Lender, its successors, permitted endorsees and assigns.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Borrower as of the date first written above.
BORROWER:
FARADAY FINANCIAL, INC.
By:
-----------------------------
Its:
AGREED AND APPROVED:
______________________
By:
Its:
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EXHIBIT B
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE ACT, UNLESS THE COMPANY HAS RECEIVED THE WRITTEN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH SALE, ASSIGNMENT OR TRANSFER
DOES NOT INVOLVE A TRANSACTION REQUIRING REGISTRATION OF THE ACT.
SERIES A COMMON STOCK PURCHASE WARRANTS
FARADAY FINANICAL, INC.
Incorporated Under the Laws of the State of Delaware
No. A - ___ ____ Series A Common Stock
Purchase Warrants
CERTIFICATE FOR SERIES A COMMON STOCK
PURCHASE WARRANTS
FARADAY FINANCIAL, INC., a Delaware corporation (the "Company"), for
value received, hereby certifies that ________ , or registered assigns (the
"Holder"), is the registered owner of the above indicated number of Warrants.
One (1) Warrant entitles the Holder to purchase one (1) share of the Company's
common stock, $.001 par value (the "Common Stock"). The Common Stock issuable
upon an exercise of this Warrant is sometimes herein referred to as the "Warrant
Stock."
1. Purchase Price. The purchase price (the "Exercise Price") per share
for the Warrant Stock shall be $___ per share tendered to the Company in good
United States funds.
2. Rights to Exercise. The Holder shall have the right (but not the
obligation) to exercise the Warrant to receive the Warrant Stock (subject to
adjustment as hereinafter provided) at any time on or before February 23, 2006.
3. Manner of Exercise. In order to exercise this Warrant, the Holder
shall surrender this Warrant certificate at the office of the Company, as set
forth below, or at such other address within the State of Utah as the Company
shall designate in writing, together with a duly executed exercise form in the
form attached hereto and simultaneous payment in full (in cash or by certified
or official bank or bank cashier's check payable to the order of the Company or
by offset of obligations then owed by the Company to the Holder) of the purchase
price for the Warrant Stock.
Upon surrender of this Warrant certificate in conformity with the
foregoing provisions, the Company shall promptly deliver to or upon the written
order of the Holder a stock certificate or certificates representing the Warrant
Stock.
4. Adjustments upon Certain Events.
4.1 Stock Splits, Stock Combinations and Certain Stock
Dividends. If the Company shall at any time subdivide or combine its outstanding
Common Stock, or declare a dividend in Common Stock or other securities of the
Company convertible into or exchangeable for Common Stock, a Warrant shall,
after such subdivision or combination or after the record date for such
dividend, be exercisable for that number of shares of Common Stock and other
securities of the Company that the Holder would have owned immediately after
such event with respect to the Common Stock and other securities for which a
Warrant may have been exercised immediately before such event had the Warrant
been exercised immediately before such event. Any adjustment under this Section
4.1 shall become effective at the close of business on the date the subdivision,
combination or dividend becomes effective.
4.2 Adjustment for Reorganization, Consolidation, Merger. In
case of any reorganization of the Company (or any other corporation the stock or
other securities of which are at the time receivable upon exercise of a Warrant)
or in case the Company (or any such other corporation) shall merge into or with
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or consolidate with another corporation or convey all or substantially all of
its assets to another corporation or enter into a business combination of any
form as a result of which the Common Stock or other securities receivable upon
exercise of a Warrant are converted into other stock or securities of the same
or another corporation, then and in each such case, the Holder of a Warrant,
upon exercise of the purchase right at any time after the consummation of such
reorganization, consolidation, merger, conveyance or combination, shall be
entitled to receive, in lieu of the shares of Common Stock or other securities
to which such Holder would have been entitled had he exercised the purchase
right immediately prior thereto, such stock and securities which such Holder
would have owned immediately after such event with respect to the shares Common
Stock and other securities for which a Warrant may have been exercised
immediately before such event had the Warrant been exercised immediately prior
to such event.
4.3 Notice. In each case of an adjustment in the Common Stock
or other securities receivable upon the exercise of a Warrant, the Company shall
promptly notify the Holder of such adjustment. Such notice shall set forth the
facts upon which such adjustment is based.
5. Loss, Theft, Destruction, or Mutilation. Upon receipt by the Company
of evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of this Warrant and (in the case of loss,
theft, or destruction) of indemnity satisfactory to it (in the exercise of its
reasonable discretion), and (in the case of mutilation) upon surrender and
cancellation thereof, the Company will execute and deliver, in lieu thereof, a
new Warrant in the same form and tenor.
6. Reservation of Shares Issuable on Exercise of Warrant. The Company
will at all times reserve and keep available out of its authorized shares,
solely for issuance upon the exercise of the Warrant, such shares of its Common
Stock and other securities as from time to time shall be issuable upon the
exercise of the Warrant.
7. Miscellaneous.
7.1 Governing Law. This Warrant shall be construed in
accordance with, and governed by the substantive laws of, the State of Utah.
7.2 Assignment. The benefit of this Warrant and of the Warrant
Stock represented hereby may be assigned and transferred by the Holder and its
assigns in accordance with any applicable securities laws and regulations;
however, the obligations of the Company and its successors may not be delegated
without the prior written consent of the Holder hereof. Subject to the
foregoing, this Warrant shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors, agents, heirs
and assigns.
7.3 Enforcement. In the event of a dispute between the parties
arising under this Warrant, the party prevailing in such dispute shall be
entitled to collect such party's costs and expenses from the other party,
including without limitation court costs and reasonable attorneys' fees.
7.4 Notices. Any notice or demand which is required or
provided to be given under this Agreement shall be deemed to have been
sufficiently given and received for all purposes when delivered by hand or by
telecopy, e-mail or other method of electronic transmission (provided such
transmission generates evidence of delivery), or five days after being sent by
certified or registered mail, postage and charges prepaid, return receipt
requested, or two days after being sent by overnight delivery providing receipt
of delivery, to the following addresses:
if to the Borrower:
Faraday Financial, Inc.
Attn: President
000 Xxxxx Xxxx, #0000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
E-mail: xx@xxxxxxxxx.xxx
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if to the Lender:
_______________________
_______________________
_______________________
Fax: _________________
E-mail: _______________
7.5 Restrictive Legend. Each Warrant Certificate and each
certificate representing Common Stock issued upon exercise of a Warrant, unless
such Common Stock is then registered under the Securities Act of 1933, as
amended (the "Act"), shall bear a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR
THE SECURITIES OR BLUE SKY LAWS OF ANY STATE AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES OR BLUE
SKY LAWS OR IF AN EXEMPTION FROM SUCH REGISTRATION OR
QUALIFICATION IS APPLICABLE.
7.6 Payment of Taxes. The Holder shall pay all documentary,
stamp or similar taxes and other government charges that may be imposed with
respect to the issuance, transfer or delivery of any Warrant Stock on exercise
of the Warrants. In the event the Warrant Stock are to be delivered in a name
other than the name of the Holder of the Warrant Certificate, no such delivery
shall be made unless the person requesting the same has paid the amount of any
such taxes or charges incident thereto.
7.7 Reduction in Exercise Price at Company's Option. The
Company's Board of Directors may, at its sole discretion, reduce the Exercise
Price of the Warrants in effect at any time either for the life of the Warrants
or any shorter period of time determined by the Company's Board of Directors.
The Company shall promptly notify the Registered Holders of any such reduction
in the Exercise Price.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed as of the ____ day of ________________, 2004.
FARADAY FINANCIAL, INC.,
a Delaware corporation
By: __________________________________
Its: President
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FARADAY FINANCIAL, INC.
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JR TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF TRANS MIN ACT - ____________ (Custodian for Minor) as custodian
for __________ (name of minor) under the Uniform Transfers to Minors
Act
Additional abbreviations may also be used though not in the above list.
FORM OF ASSIGNMENT
(To be Executed by the Registered Holder if He or She
Desires to Assign Warrants Evidenced by the
Within Warrant Certificate)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns
and transfers unto _____________________________ _________________________
(_______) Warrants, evidenced by the within Warrant Certificate, and does hereby
irrevocably constitute and appoint _______________________________________
Attorney to transfer the said Warrants evidenced by the within Warrant
Certificates on the books of the Company, with full power of substitution.
Dated:____________________ _____________________________
Signature
Notice: The above signature must correspond with the name as
written upon the face of the Warrant Certificate in every
particular, without alteration or enlargement or any
change whatsoever.
Signature Guaranteed: __________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
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FORM OF ELECTION TO PURCHASE
(To be Executed by the Holder if Holder Desires to Exercise
Warrants Evidenced by the Warrant Certificate)
To FARADAY FINANCIAL, INC.
The undersigned hereby irrevocably elects to exercise
___________________________ (______) Warrants, evidenced by the within Warrant
Certificate for, and to purchase thereunder, ____________________________
(______) full shares of Common Stock issuable upon exercise of said Warrants and
delivery of $_________ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER
_____________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If said number of Warrants shall not be all the Warrants evidenced by
the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
and delivered to:
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: _____________________ Signature:__________________________
NOTICE: The above signature must correspond with the name as written
upon the face of the within Warrant Certificate in every
particular, without alteration or enlargement or any change
whatsoever, or if signed by any other person the Form of
Assignment hereon must be duly executed and if the certificate
representing the shares or any Warrant Certificate
representing Warrants not exercised is to be registered in a
name other than that in which the within Warrant Certificate
is registered, the signature of the holder hereof must be
guaranteed.
Signature Guaranteed: ___________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
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