Exhibit 4.25
THIS WARRANT, AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS
WARRANT, HAVE BEEN ISSUED IN RELIANCE ON REGULATION S OF THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE ACT OR ANY STATE SECURITIES LAW, AND THEY MAY NOT BE
SOLD OR TRANSFERRED EXCEPT PURSUANT TO REGULATION S, REGISTRATION UNDER THE ACT
OR AN EXEMPTION THEREFROM UNDER SAID ACT AND UNDER ALL APPLICABLE STATE
SECURITIES LAWS. FURTHERMORE, ALL HEDGING TRANSACTIONS INVOLVING THESE
SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT.
TO SUBSCRIBE FOR AND PURCHASE COMMON STOCK OF
XXXXX.XXX, INC.
VOID AFTER , 2005
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Warrant No.___ ____________, 2000
THIS CERTIFIES that, for value received, ___________________________,
or its registered assigns, is entitled, subject to the terms of Section 1
hereof, to subscribe for and purchase from xXxxx.xxx, Inc., a Delaware
corporation (hereinafter called the "Company"), at the price of $.01 per share
(such price, as from time to time to be adjusted as hereinafter provided, being
hereinafter called the "Warrant Price"), at any time on or prior to
______________, 2005 up to _____________________ (______) fully paid,
nonassessable shares of Common Stock, par value $.01 per share, of the Company
("Common Stock"), subject, however, to the provisions and upon the terms and
conditions hereinafter set forth.
Section 1. EXERCISE OF WARRANT. This Warrant may be exercised by the
holder hereof, in whole or in part (but not as to a fractional share of Common
Stock), by the completion of the subscription form attached hereto and by the
surrender of this Warrant (properly endorsed) at the office of the Company in
Williston, Vermont (or at such other agency or office of the Company in the
United States as it may designate by notice in writing to the holder hereof at
the address of the holder hereof appearing on the books of the Company), and by
payment to the Company of the Warrant Price, in cash or by certified or official
bank check, for each share being purchased. In the event of any exercise of the
rights represented by this Warrant, a certificate or certificates for the shares
of Common Stock so purchased, registered in the name of the holder hereof, shall
be delivered to the holder hereof within a reasonable time, not exceeding
fifteen (15) business days, after the rights represented by this Warrant shall
have been so exercised; and, unless this Warrant has expired or been exercised
in full, a new Warrant representing the number of shares (except a remaining
fractional share), if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the holder hereof within such time.
With respect to any such exercise, the holder hereof shall for all purposes be
deemed to have become the holder of record of the number of shares of Common
Stock evidenced by such certificate or certificates from the date on which this
Warrant was surrendered and payment of the Warrant Price was made irrespective
of the
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date of delivery of such certificate, except that, if the date of such surrender
and payment is a date on which the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of such shares at
the close of business on the next succeeding date on which the stock transfer
books are open. No fractional shares shall be issued upon exercise of this
Warrant. If any fractional interest in a share of Common Stock would, except for
the provisions of this Section 1, be delivered upon any such exercise, the
Company, in lieu of delivering the fractional share thereof, shall pay to the
holder hereof an amount in cash equal to the current market price of such
fractional interest as determined in good faith by the Board of Directors of the
Company.
Section 2. ADJUSTMENT OF NUMBER OF SHARES.
(a) RECLASSIFICATION, CONSOLIDATION OR MERGER. In the event of any
reclassification or change of outstanding securities of the Common Stock, or in
the event of any consolidation or merger of the Company with or into another
corporation or entity, other than a consolidation or merger with another
corporation or entity in which the Company is the continuing corporation and
which does not result in any reclassification, conversion or change of
outstanding Common Stock, or in the event of any sale of all or substantially
all of the assets of the Company, the Company, or such successor or purchasing
corporation or entity, as the case may be, shall execute a new warrant
certificate (the "New Warrant Certificate"), providing that the Holder of this
Warrant shall have the right to exercise such new warrants and procure upon such
exercise, in lieu of each share of Common Stock issuable upon exercise of the
Warrants, the kind and amount of shares of stock, other securities, money and
property receivable upon such reclassification, conversion, change,
consolidation or merger by a holder of one share of Common Stock.
(b) SUBDIVISIONS, COMBINATIONS AND STOCK DIVIDENDS. If at any time
while this Warrant is outstanding and unexpired the Company shall subdivide or
combine its Common Stock, or shall pay a dividend with respect to Common Stock
payable in, or make any other distribution with respect to its Common Stock
consisting of, shares of Common Stock, then the number of Warrant Shares for
which this Warrant is exercisable shall be adjusted, from and after the date of
determination of stockholders entitled to receive such dividend or distribution,
to that number determined by multiplying the number of Warrant Shares for which
this Warrant is exercisable immediately prior to such date of determination by a
fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately after such dividend or distribution and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately prior to such dividend or distribution.
(c) NOTICE OF ADJUSTMENT. Upon any adjustment of the Warrant Price,
then and in each such case the Company shall give written notice thereof, by
first class mail, postage prepaid, addressed to the Warrant holder at the
address of such holder as shown on the books of the Company, which notice shall
state the Warrant Price resulting from such adjustment, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
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(d) STOCK TO BE RESERVED. The Company will at all times reserve and
keep available out of its authorized Common Stock or its treasury shares, solely
for the purpose of issuance upon the exercise of this Warrant as herein
provided, such number of shares of Common Stock as shall then be issuable upon
the exercise of this Warrant.
(e) DEFINITION OF COMMON STOCK. As used herein the term "Common Stock"
shall mean and include the 25,000,000 shares of Common Stock, par value $.01 per
share, as authorized on the date of this and any additional Common Stock, par
value $.01 hereinafter authorized.
Section 3. NOTICES OF RECORD DATES. In the event of:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution (other than cash
dividends out of earned surplus), or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any right to sell shares of stock of any class or any
other right; or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all the assets of the Company to or consolidation or merger of the
Company with or into any other corporation or entity; or
(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
then and in each such event the Company will give notice to the holder of this
Warrant specifying: (i) the date on which any such record is to be taken for the
purpose of such dividend, distribution or right and stating the amount and
character of such dividend, distribution or right; and (ii) the date on which
any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock will be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up. Such notice shall be given at least 10 days and not more than 90
days prior to the date therein specified, and such notice shall state that the
action in question or the record date is subject to (x) the effectiveness of a
registration statement under the Securities Act of 1933 and applicable state
securities laws, or (y) a favorable vote of stockholders, if either is required.
Section 4. NO STOCKHOLDER RIGHTS OR LIABILITIES.
(a) Except as set forth in paragraph 5(b), this Warrant shall not
entitle the holder hereof to any voting rights or other rights as a stockholder
of the Company. No provision hereof, in the absence of affirmative action by the
holder hereof to purchase shares of Common Stock, and no mere
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enumeration herein of the rights or privileges of the holder hereof shall give
rise to any liability of such holder for the Warrant Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
(b) At any time while this Warrant is outstanding, the Company shall,
prior to making any distribution of its property or assets to the holders of its
Common Stock as a dividend in liquidation or partial liquidation or by way of
return of capital or any dividend payable out of funds legally available for
dividends under the laws of the State of Delaware, give to the holder of this
Warrant, not less than 20 days prior written notice of any such distribution. If
such holder shall exercise this Warrant on or prior to the date of such
distribution set forth in such notice, such holder shall be entitled to receive,
upon such exercise: (i) the number of shares of Common Stock receivable pursuant
to such exercise; and (ii) without payment of any additional consideration, a
sum equal to the amount of such property or assets as would have been payable to
the holder hereof as an owner of the shares described in clause (i) of this
paragraph 5(b) had the holder hereof been the holder of record of such shares on
the record date for such distribution; and an appropriate provision with respect
to such payment to such holder as described in this paragraph 5(b) shall be made
a part of any such distribution.
Section 6. COMPLIANCE WITH SECURITIES ACT.
The Holder of this Warrant Certificate, by acceptance hereof, agrees
that the Warrant and the shares of Common Stock to be issued upon exercise
hereof are being acquired for investment and that it will not offer, sell or
otherwise dispose of the Warrants or any shares of Common Stock to be issued
upon exercise hereof except: (a) in accordance with the provisions of Regulation
S, promulgated under the Securities Act of 1933, as amended (the "Act"); (b)
upon Registration under the Act; or (c) pursuant to an exemption to registration
under said Act and all applicable state securities laws. Upon the exercise of
the Warrant, the Holder hereof shall (i) confirm in writing that the shares of
Common Stock so purchased are being acquired by an entity or individual who is
not a "U.S. Person" as defined in Rule 902(k) of Regulation S under the Act or
(ii) deliver a written opinion of counsel to the effect that the Warrant and the
shares of Common Stock to be issued upon exercise thereof have been registered
under the Act or are exempt from registration thereunder. This Warrant
Certificate and all shares of Common Stock issued upon the exercise of the
Warrant (unless registered under the Act) shall be stamped or imprinted with a
legend substantially in the following form:
THIS WARRANT, AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS
WARRANT, HAVE BEEN ISSUED IN RELIANCE ON REGULATION S OF THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE ACT OR ANY STATE SECURITIES LAW, AND THEY MAY NOT BE
SOLD OR TRANSFERRED EXCEPT PURSUANT TO REGULATION S, REGISTRATION UNDER THE ACT
OR AN EXEMPTION THEREFROM UNDER SAID ACT AND UNDER ALL APPLICABLE STATE
SECURITIES LAWS. FURTHERMORE, ALL HEDGING TRANSACTIONS INVOLVING THESE
SECURITIES MAY NOT BE
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CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT.
Section 7. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this
Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion reasonably impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 8. NOTICES. Any notice to be given to either party under this
Warrant Certificate shall be in writing and shall be deemed to have been given
to the Company or the Holder hereof, as the case may be, when delivered in hand
or when sent by first class mail, postage prepaid, addressed, if to the Company,
at its principal office and, if to the Holder hereof, at its address as set
forth in the Company's books and records or at such other address as the Holder
hereof may have provided to the Company in writing.
Section 9. GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of Vermont, without giving
effect to such jurisdiction's principles of conflict of laws.
Section 10 EXCLUSIVE JURISDICTION. With respect to actions and
proceedings to enforce the provisions of, arising from, or relating to this
Warrant or the Warrant, the holder, by acceptance of this Warrant, consents to
personal jurisdiction in the state or federal courts of the State of Vermont and
irrevocably agrees that all such actions and proceedings shall be litigated
exclusively in such courts. Further, each of the parties hereto waives any
objection that it may have to the conduct of any action or proceeding in any
such court based on improper venue or FORUM NON CONVENIENS. Each of the parties
hereto waives personal service of any and all process upon it and agrees that
valid service of process may be made by mail or courier service directed to it
at the address set forth herein and that service so made shall be deemed to be
completed upon the earlier of actual receipt or ten (10) days after the same
shall have been posted.
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IN WITNESS WHEREOF, the duly authorized agent of xXxxx.xxx, Inc. has
executed this Warrant as of the ___th day of ________, 2000.
XXXXX.XXX, INC.
By:_____________________________
Xxxx X. Xxxxxxxx, President & CEO
[Corporate Seal]
Attest:
________________________________
Secretary
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SUBSCRIPTION FORM TO BE EXECUTED
UPON EXERCISE OF THE WARRANT
Date:
To: xXxxx.xxx, Inc.
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to subscribe for and purchase [__________] shares of
Common Stock covered by such Warrant, and herewith tenders $[____________] in
full payment of the purchase price for such shares as provided in the within
Warrant.
The undersigned either (i) hereby certifies that it is not a U.S.
Person as that term is defined in Rule 902(k) of the Securities Act of 1933, as
amended (the "Act") or (ii) is delivering herewith an opinion of counsel, which
is attached hereto, to the effect that the Warrant and the Common Stock issuable
upon exercise of the Warrant have been registered under the Act or are exempt
from registration thereunder.
Name of Holder:
By: _____________________________
Address_____________________________
_____________________________
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