NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE
SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SHARES ISSUABLE
UPON EXERCISE HEREOF MAY BE SOLD, PLEDGED, TRANSFERRED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN
A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
PROVISIONS OF THE SECURITIES ACT.
STOCK PURCHASE WARRANT
To Purchase ____,000 Shares of Common Stock of
SKINVISIBLE, INC.
THIS CERTIFIES that, for value received,_______________ (the
"Holder"), is entitled, upon the terms and subject to the
conditions hereinafter set forth, at any time on or after
October 15, 1999 (the "Initial Exercise Date") and on or prior
to the close of business on October 15, 2001 (the "Termination
Date") but not thereafter, to subscribe for and purchase from
Skinvisible, Inc., a corporation incorporated in Nevada (the
"Company"), up to _____________Thousand (___,000) shares (the
"Warrant Shares") of Common Stock, $.001 par value, of the
Company (the "Common Stock"). The purchase price of one share
of Common Stock (the "Exercise Price") under this Warrant shall
be $2.25 if this warrant is exercised on or before October 15,
2000 and $3.00 if exercised on or after October 16, 2000 but
before close of business on October 15, 2001.
1
1. Title to Warrant. Prior to the Termination Date
and subject to compliance with applicable laws, this Warrant and
all rights hereunder are transferable, in whole or in part, at
the office or agency of the Company by the holder hereof in
person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto
properly endorsed.
2. Authorization of Shares. The Company covenants
that all shares of Common Stock which may be issued upon the
exercise of rights represented by this Warrant will, upon
exercise of the rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
3. Exercise of Warrant. Except as provided in
Section 4 herein, exercise of the purchase rights represented by
this Warrant may be made at any time or times on or after the
Initial Exercise Date, and before the close of business on the
Termination Date by the surrender of this Warrant and the Notice
of Exercise Form annexed hereto duly executed, at the office of
the Company (or such other office or agency of the Company as it
may designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of
the Company) and upon payment of the Exercise Price of the
shares thereby purchased by wire transfer or cashier's check
drawn on a United States bank, the holder of this Warrant shall
be entitled to receive a certificate for the number of shares of
Common Stock so purchased. Certificates for shares purchased
hereunder shall be delivered to the holder hereof within twenty
(20) Trading Days after the date on which this Warrant shall
have been exercised as aforesaid. This Warrant shall be deemed
to have been exercised and such certificate or certificates
shall be deemed to have been issued, and Holder or any other
person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of
the date the Warrant has been exercised by payment to the
Company of the Exercise Price and all taxes required to be paid
by Holder, if any, pursuant to Section 5 prior to the issuance
of such shares, have been paid. If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of
the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder
to purchase the unpurchased shares of Common Stock called for by
this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
4. No Fractional Shares or Scrip. No fractional
shares or scrip representing fractional shares shall be issued
upon the exercise of this Warrant. As to any fraction of a
share which Holder would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to the
Exercise Price.
5. Charges, Taxes and Expenses. Issuance of
certificates for shares of Common Stock upon the exercise of
this Warrant shall be made without charge to the holder hereof
for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes
and expenses shall be paid by the Company, and such certificates
2
shall be issued in the name of the holder of this Warrant or in
such name or names as may be directed by the holder of this
Warrant; provided, however, that in the event certificates for
shares of Common Stock are to be issued in a name other than the
name of the holder of this Warrant, this Warrant when
surrendered for exercise shall be accompanied by the Assignment
Form attached hereto duly executed by the holder hereof; and the
Company may require, as a condition thereto, the payment of a
sum sufficient to reimburse it for any transfer tax incidental
thereto.
6. Closing of Books. The Company will not close its
shareholder books or records in any manner which prevents the
timely exercise of this Warrant.
7. Transfer, Division and Combination. (a) Subject
to compliance with any applicable securities laws, transfer of
this Warrant and all rights hereunder, in whole or in part,
shall be registered on the books of the Company to be maintained
for such purpose, upon surrender of this Warrant at the
principal office of the Company, together with a written
assignment of this Warrant substantially in the form attached
hereto duly executed by Holder or its agent or attorney and
funds sufficient to pay any transfer taxes payable upon the
making of such transfer. Upon such surrender and, if required,
such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and
in the denomination or denominations specified in such
instrument of assignment, and shall issue to the assignor a new
Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new holder for the
purchase of shares of Common Stock without having a new Warrant
issued.
(b) This Warrant may be divided or combined with
other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the
names and denominations in which new Warrants are to be issued,
signed by Holder or its agent or attorney. Subject to
compliance with Section 7(a), as to any transfer which may be
involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for
the Warrant or Warrants to be divided or combined in accordance
with such notice.
(c) The Company shall prepare, issue and deliver
at its own expense (other than transfer taxes) the new Warrant
or Warrants under this Section 7.
(d) The Company agrees to maintain, at its
aforesaid office, books for the registration and the
registration of transfer of the Warrants.
8. No Rights as Shareholder until Exercise. This
Warrant does not entitle the holder hereof to any voting rights
or other rights as a shareholder of the Company prior to the
exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price, the Warrant Shares so
purchased shall be and be deemed to be issued to such holder as
the record owner of such shares as of the close of business on
the later of the date of such surrender or payment.
9. Loss, Theft, Destruction or Mutilation of
Warrant. The Company covenants that upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant certificate or any
stock certificate relating to the
3
Warrant Shares, and in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it (which shall
not include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate
of like tenor and dated as of such cancellation, in lieu of such
Warrant or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last
or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday,
Sunday or a legal holiday, then such action may be taken or such
right may be exercised on the next succeeding day not a
Saturday, Sunday or legal holiday.
11. Adjustments of Exercise Price and Number of
Warrant Shares. (a) Stock Splits, etc. The number and kind of
securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time
upon the happening of any of the following. In case the Company
shall: (i) pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares of Common Stock,
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or (iv) issue any
shares of its capital stock in a reclassification of the Common
Stock, then the number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior thereto shall be
adjusted so that the holder of this Warrant shall be entitled to
receive the kind and number of Warrant Shares or other
securities of the Company which he would have owned or have been
entitled to receive had such Warrant been exercised in advance
thereof. Upon each such adjustment of the kind and number of
Warrant Shares or other securities of the Company which are
purchasable hereunder, the holder of this Warrant shall
thereafter be entitled to purchase the number of Warrant Shares
or other securities resulting from such adjustment at an Exercise
Price per Warrant Share or other security obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment
by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number
of Warrant Shares or other securities of the Company resulting
from such adjustment. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective
date of such event retroactive to the record date, if any, for
such event.
(b) Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets. In case the Company
shall reorganize its capital, reclassify its capital stock,
consolidate or merge with or into another corporation (where the
Company is not the surviving corporation or where there is a
change in or distribution with respect to the Common Stock of
the Company), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another
corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or
property of any nature whatsoever (including warrants or other
subscription or purchase rights) in addition to or in lieu of
common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders
of Common Stock of the Company, then Holder shall have the right
thereafter to receive, upon exercise of this Warrant, the number
of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving
corporation, and Other Property receivable upon or as a result
of such reorganization,
4
reclassification, merger, consolidation or disposition of assets
by a holder of the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such event. In case
of any such reorganization, reclassification, merger, consolidation or
disposition of assets, the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and
punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder,
subject to such modifications as may be deemed appropriate (as
determined in good faith by resolution of the Board of Directors
of the Company) in order to provide for adjustments of shares of
Common Stock for which this Warrant is exercisable which shall
be as nearly equivalent as practicable to the adjustments
provided for in this Section 11. For purposes of this Section
11, "common stock of the successor or acquiring corporation"
shall include stock of such corporation of any class which is
not preferred as to dividends or assets over any other class of
stock of such corporation and which is not subject to redemption
and shall also include any evidences of indebtedness, shares of
stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the
arrival of a specified date or the happening of a specified
event and any warrants or other rights to subscribe for or
purchase any such stock. The foregoing provisions of this
Section 11 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of
assets.
12. Voluntary Adjustment by the Company. The Company
may at any time during the term of this Warrant, reduce the then
current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company.
13. Notice of Adjustment. Whenever the number of
Warrant Shares or number or kind of securities or other property
purchasable upon the exercise of this Warrant or the Exercise
Price is adjusted, as herein provided, the Company shall
promptly mail by registered or certified mail, return receipt
requested, to the holder of this Warrant notice of such
adjustment or adjustments setting forth the number of Warrant
Shares (and other securities or property) purchasable upon the
exercise of this Warrant and the Exercise Price of such Warrant
Shares (and other securities or property) after such adjustment,
setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such
adjustment was made. Such notice, in the absence of manifest
error, shall be conclusive evidence of the correctness of such
adjustment.
14. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to
receive a dividend or other distribution, or any right to
subscribe for or purchase any evidences of its indebtedness, any
shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) there shall be any capital reorganization of
the Company, any reclassification or recapitalization of the
capital stock of the Company or any consolidation or merger of
the Company with, or any sale, transfer or other disposition of
all or substantially all the property, assets or business of the
Company to, another corporation or,
5
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give
to Holder (i) at least 3 days' prior written notice of the date
on which a record date shall be selected for such dividend,
distribution or right or for determining rights to vote in
respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or
winding up, and (ii) in the case of any such reorganization,
reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 3
days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause also
shall specify (i) the date on which any such record is to be
taken for the purpose of such dividend, distribution or right,
the date on which the holders of Common Stock shall be entitled
to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is
to take place and the time, if any such time is to be fixed, as
of which the holders of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other
property deliverable upon such disposition, dissolution,
liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of
Holder appearing on the books of the Company and delivered in
accordance with Section 16(d).
15. Authorized Shares. The Company covenants that
during the period the Warrant is outstanding, it will reserve
from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who
are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this
Warrant. The Company will take all such reasonable action as
may be necessary to assure that such Warrant Shares may be
issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the Principal
Market upon which the Common Stock may be listed.
The Company shall not by any action, including,
without limitation, amending its certificate of incorporation or
through any 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 of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, the Company
will (a) not increase the par value of any shares of Common
Stock receivable upon the exercise of this Warrant above the
amount payable therefor upon such exercise immediately prior to
such increase in par value, (b) take all such action as may be
necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant, and (c) use its best
efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.
6
Upon the request of Holder, the Company will at
any time during the period this Warrant is outstanding
acknowledge in writing, in form reasonably satisfactory to
Holder, the continuing validity of this Warrant and the
obligations of the Company hereunder.
Before taking any action which would cause an
adjustment reducing the current Exercise Price below the then
par value, if any, of the shares of Common Stock issuable upon
exercise of the Warrants, the Company shall take any corporate
action which may be necessary in order that the Company may
validly and legally issue fully paid and non-assessable shares
of such Common Stock at such adjusted Exercise Price.
Before taking any action which would result in an
adjustment in the number of shares of Common Stock for which
this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any
public regulatory body or bodies having jurisdiction thereof.
16. Miscellaneous.
(a) Jurisdiction. This Warrant shall be binding
upon any successors or assigns of the Company. This Warrant
shall constitute a contract under the laws of Nevada without
regard to its conflict of law, principles or rules, and be
subject to arbitration pursuant to the terms set forth in the
Purchase Agreement.
(b) Restrictions. The holder hereof
acknowledges that the Warrant Shares acquired upon the exercise
of this Warrant, if not registered, will have restrictions upon
resale imposed by state and federal securities laws.
(c) Non-waiver and Expenses. No course of
dealing or any delay or failure to exercise any right hereunder
on the part of Holder shall operate as a waiver of such right or
otherwise prejudice Holder's rights, powers or remedies,
notwithstanding all rights hereunder terminate on the
Termination Date. If the Company fails to comply with any
provision of this Warrant, the Company shall pay to Holder such
amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other
document required or permitted to be given or delivered to the
holder hereof by the Company shall be delivered in accordance
with the notice provisions of the Purchase Agreement.
(e) Limitation of Liability. No provision
hereof, in the absence of affirmative action by Holder to
purchase shares of Common Stock, and no enumeration herein of
the rights or privileges of Holder hereof, shall give rise to
any liability of Holder for the purchase price of any Common
Stock or as a stockholder of the Company, whether such liability
is asserted by the Company or by creditors of the Company.
7
(f) Remedies. Holder, in addition to being
entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of
its rights under this Warrant. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Warrant
and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(g) Successors and Assigns. Subject to
applicable securities laws, this Warrant and the rights and
obligations evidenced hereby shall inure to the benefit of and
be binding upon the successors of the Company and the successors
and permitted assigns of Holder. The provisions of this Warrant
are intended to be for the benefit of all Holders from time to
time of this Warrant and shall be enforceable by any such Holder
or holder of Warrant Shares.
(h) Indemnification. The Company agrees to
indemnify and hold harmless Holder from and against any
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, attorneys' fees, expenses and
disbursements of any kind which may be imposed upon, incurred by
or asserted against Holder in any manner relating to or arising
out of any failure by the Company to perform or observe in any
material respect any of its covenants, agreements, undertakings
or obligations set forth in this Warrant; provided, however,
that the Company will not be liable hereunder to the extent that
any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, attorneys' fees,
expenses or disbursements are found in a final non-appealable
judgment by a court to have resulted from Holder's negligence,
bad faith or willful misconduct in its capacity as a stockholder
or warrant holder of the Company.
(i) Amendment. This Warrant may be modified or
amended or the provisions hereof waived with the written consent
of the Company and the Holder.
(j) Severability. Wherever possible, each
provision of this Warrant shall be interpreted in such manner as
to be effective and valid under applicable law, but if any
provision of this Warrant shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating
the remainder of such provisions or the remaining provisions of
this Warrant.
(k) Headings. The headings used in this Warrant
are for the convenience of reference only and shall not, for any
purpose, be deemed a part of this Warrant.
IN WITNESS WHEREOF, the Company has caused this
Warrant to be executed by its officer thereunto duly authorized.
Dated: _______________, 1999
Skinvisible, Inc.
By:
--------------------------
Xxxxx Xxxxxxx, President
8
NOTICE OF EXERCISE
To: Skinvisible, Inc.
(1) The undersigned hereby elects to purchase
________ shares of Common Stock (the "Common Stock"), of
Skinvisible, Inc. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates
representing said shares of Common Stock in the name of the
undersigned or in such other name as is specified below:
_______________________________
(Name)
_______________________________
(Address)
_______________________________
Dated:
______________________________
Signature
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights
evidenced thereby are hereby assigned to
_______________________________________________ whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the
name as it appears on the face of the Warrant, without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank
or trust company. Officers of corporations and those acting in an
fiduciary or other representative capacity should file proper evidence
of authority to assign the foregoing Warrant.
