EXHBIT 10.32
Warrant
THIS WARRANT AND THE SHARES DELIVERABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (i) TO THE COMPANY, (ii) OUTSIDE THE
UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, IF
AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, (iii) IN
COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY
RULE 144 THEREUNDER, IF APPLICABLE, OR (iv) IN COMPLIANCE WITH ANOTHER EXEMPTION
FROM REGISTRATION AND ANY APPLICABLE STATE SECURITIES LAWS, IN EACH CASE AFTER
PROVIDING EVIDENCE SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER MAY BE MADE
WITHOUT REGISTRATION UNDER THE 1933 ACT.
WARRANT TO PURCHASE 30,000 SHARES OF COMMON STOCK
THE NEPTUNE SOCIETY, INC.
(a Florida corporation)
Not Transferable or Exercisable Except
Upon Conditions Herein Specified
Void after 5:00 O'Clock P.M., Pacific
Standard Time, on the Expiry Date (as herein defined)
THE NEPTUNE SOCIETY INC., a Florida corporation (the "Company"), hereby
certifies that Green Leaf Investors I, LLC, a California limited liability
company, its registered successors and permitted assigns registered on the books
of the Company maintained for such purposes as registered holder hereof (the
"Holder"), for value received, is entitled to purchase from the Company the
number of fully paid and non-assessable shares of $.002 par value common stock
of the Company ("Shares") stated above at a purchase price of Six Dollars
($6.00) per Share (the "Exercise Price") (the number of Shares and the Exercise
Price being subject to adjustment as hereinafter provided) upon the terms and
conditions herein provided.
1. Exercise of Warrants.
(a) Subject to Section 1(b), upon presentation and surrender of this
Warrant, with the attached Exercise Form duly executed, at the principal office
of the Company at 0000 X. Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, 00000, or at
such other place as the Company may designate by notice to the Holder hereof,
with and upon payment (which may be in the form of a certified or bank cashier's
check payable to the order of the Company or in the form of electronic funds
transfer to the Company's account, the wiring instructions for which shall be
provided upon request by the Holder) in the amount of the aggregate Exercise
Price for the Shares being
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purchased, the Company shall deliver to the Holder hereof as promptly as
practicable, certificates representing the Shares being purchased. This Warrant
way be exercised in whole or in part; and, in case of exercise hereof in part
only, the Company, upon surrender hereof, will deliver to the Holder a new
Warrant Certificate or Warrant Certificates of like tenor entitling the Holder
to purchase the number of Shares as to which this Warrant has not been
exercised.
(b) This Warrant may be exercised in whole or in part at any time prior to
5:00 o'clock P.M., Pacific Standard Time, on August ___, 2002 (the "Expiry
Date"); provided, however, that in the event of (i) the closing of the Company's
sale or transfer of all or substantially all of its assets, or (ii) the closing
of the acquisition of the Company by another entity by means of a merger,
consolidation or other transaction or series of related transactions resulting
in the exchange of the outstanding shares of the Company's capital stock such
that the stockholders of the Company prior to such transaction own, directly or
indirectly, less than 50% of the voting power of the surviving entity, this
Warrant shall automatically be deemed to be exercised in full in the manner set
forth in Section 2 below, without any further action on behalf of the Holder,
immediately prior to the closing of such transaction. In the event of a proposed
transaction of the kind described in this Section 1(b), the Company shall notify
the Holder at least fifteen (15) days prior to the closing of such transaction.
2. Net or Cashless Exercise.
In lieu of exercising this Warrant in the manner provided in Section 1
above, the Holder may elect to receive Shares equal to the value of this Warrant
(or the portion thereof being canceled) by surrender of this Warrant at the
address set forth above, together with notice of such election, in which event
the Company shall issue to the Holder that number of Shares computed using the
following formula:
X = Y(A-B)
A
Where: X = The number of shares of Common Stock to be issued to the
Holder pursuant to this net issue exercise;
Y = The number of Shares purchasable under this Warrant
(at the date of such calculation) with respect to
which the net issue exercise is made;
A = The Fair Market Value (as herein defined) of one
share of Common Stock (at the time the net issue
exercise is made)
B = The Exercise Price (as adjusted to the date of such
calculation)
For purposes of this Section 2, "Fair Market Value" means as of a particular
date: (i) if traded on a securities exchange or through the Nasdaq National
Market, the average of the closing prices of the securities on such exchange or
on the Nasdaq National Market over the thirty (30) day period ending three (3)
days prior to the net issue exercise election; (ii) if traded over-the-counter,
the
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average of the closing bid or sale prices (whichever is applicable) over the
thirty (30) day period ending three (3) days prior to the net issue exercise
election; and (iii) if there is no active public market, the fair market value
as mutually determined in good faith by the board of the directors of the
Company and the Holder.
3. Exchange of Warrant. This Warrant, at any time prior to the exercise
hereof, upon presentation and surrender to the Company, may be exchanged alone
or with other Warrants of like tenor registered in the name of the Holder, for
another Warrant or other Warrants of like tenor in the name of such Holder
exercisable for the same aggregate number of Shares as the Warrant or Warrants
surrendered.
4. Rights and Obligations of Warrant Holder.
(a) The Holder of this Warrant Certificate shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or in
equity; provided, however, in the event that any certificate representing the
Shares is issued to the Holder hereof upon exercise of this Warrant, such Holder
shall, for all purposes, be deemed to have become the holder of record of such
Shares on the date on which this Warrant Certificate, together with a duly
executed Exercise Form, was surrendered and payment of the Exercise Price was
made, irrespective of the date of delivery of such Share certificate. The rights
of the Holder of this Warrant are limited to those expressed herein and the
Holder of this Warrant, by its acceptance hereof, consents to and agrees to be
bound by and to comply with all the provisions of this Warrant Certificate,
including, without limitation, all the obligations imposed upon the Holder
hereof by Section 6 hereof. In addition, the Holder of this Warrant Certificate,
by accepting the same, agrees that the Company may deem and treat the person in
whose name this Warrant Certificate is registered on the books of the Company
maintained for such purpose as the absolute, true and lawful owner for all
purposes whatsoever, notwithstanding any notation of ownership or other writing
hereon.
(b) No Holder of this Warrant Certificate, as such, shall be entitled to
vote or receive distributions or to be deemed the holder of Shares for any
purpose, nor shall anything contained in this Warrant Certificate be construed
to confer upon any Holder of this Warrant Certificate, as such, any of the
rights of a stockholder of the Company or any right to vote, give or withhold
consent to any action by the Company, whether upon any recapitalization, issue
of stock, reclassification of stock, merger, conveyance or otherwise, receive
notice of meetings or other action affecting stockholders (except for notices
provided for herein), receive distributions, subscription rights, or otherwise,
until this Warrant shall have been exercised and the Shares purchasable upon the
exercise hereof shall have become deliverable as provided herein; provided,
however, that any such exercise on any date when the stock transfer books of the
Company shall be closed shall constitute the person or persons in whose name or
names the certificate or certificates for those Shares are to be issued as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open, and the
Warrant surrendered shall not be deemed to have been exercised, in whole or in
part as the case may be, until the next succeeding day on which stock transfer
books are open for the purpose of determining entitlement to distributions on
the Company's common stock.
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5. Shares Underlying Warrants. The Company covenants and agrees that all
Shares delivered upon exercise of this Warrant shall, upon delivery and payment
therefor, be duly and validly authorized and issued, fully-paid and
non-assessable, and free from all stamp taxes, liens, and charges with respect
to the issuance thereof. In addition, the Company agrees at all times to reserve
and keep available an authorized number of Shares sufficient to permit the
exercise in full of this Warrant.
6. Disposition of Warrants or Shares.
(a) The holder of this Warrant Certificate and any transferee hereof or of
the Shares issuable upon the exercise of the Warrant Certificate, by their
acceptance hereof, hereby understand and agree that this Warrant, and the Shares
issuable upon the exercise hereof have not been registered under either the 1933
Act or applicable state securities laws (the "State Acts") and shall not be
sold, pledged, hypothecated, donated, or otherwise transferred (whether or not
for consideration) except upon the issuance to the Company of a favorable
opinion of counsel or submission to the Company of such evidence as may be
satisfactory to counsel or submission to the Company of such evidence as may be
satisfactory to counsel to the Company, in each such case, to the effect that
any such transfer not be in violation of the 1933 Act and the State Acts. It
shall be a condition to the transfer of this Warrant that any transferee thereof
deliver to the Company its written Agreement to accept and be bound by all of
the terms and conditions of this Warrant.
(b) The stock certificates of the Company that will evidence the Shares
with respect to which this Warrant may be exercisable will be imprinted with
conspicuous legend in substantially the following form:
"The securities represented by this certificate have not been registered
under either the Securities Act of 1933, as amended (the "Act"), or
applicable state securities laws (the "State Acts") and shall not be sold,
pledged, hypothecated, donated or otherwise transferred (whether or not for
consideration) by the holder except upon the issuance to the Company of a
favorable opinion of its counsel or submission to Company of such other
evidence as may be satisfactory to counsel of the Company, in each such
case, to the effect that any such transfer shall not be in violation of the
Act and the State Acts."
Except as provided in Piggyback Registration Agreement of even date herewith
between the Holder and the Company (the "Registration Agreement"), the Company
has not agreed to register any of the Holder's Shares with respect to which this
Warrant may be exercisable for distribution in accordance with the provisions of
the 1933 Act or the State Acts and the Company has not agreed to comply with any
exemption from registration under the 1933 Act or the State Acts for the resale
of the Holder's Shares with respect to which this Warrant may be exercised.
Hence, it is the understanding of the Holder of this Warrant that by virtue of
the provisions of certain rules respecting "restricted securities" promulgated
by the Securities and Exchange Commission the Shares with respect to which this
Warrant may be exercisable may be required to he held indefinitely, unless and
until registered under the 1933 Act and the State Acts, unless
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an exemption from such registration is available in which case the Holder may
still be limited as to the number of Shares with respect to which this Warrant
may be exercised that may be sold.
7. Adjustments. The number of Shares purchasable upon the exercise of each
Warrant is subject to adjustment from time to time upon the occurrence of any of
the events enumerated below.
(a) In case the Company shall, (i) pay a dividend in Shares; (ii)
subdivide its outstanding Shares into a greater number of Shares (iii) combine
its outstanding Shares into a smaller number of Shares; the number of Shares
purchasable upon the exercise of the Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled to receive upon exercise of the
Warrant that number of Shares which such Holder would have owned or would have
been entitled to receive after the happening of such event had such Holder
exercised the Warrant immediately prior to the record date, in the case of such
dividend, or the effective date, in the case of any such subdivision or
combination. Appropriate adjustments shall also be made to the Exercise Price,
but the aggregate Exercise Price for the total number of Shares purchasable
under this Warrant (as adjusted) shall remain the same. An adjustment made
pursuant to this Section 7(a) shall be made whenever any of such events shall
occur, but shall become effective retroactively after such record date or such
effective date, as the case may be, as to Warrants exercised between such record
date or effective date and the date of happening of any such event.
(b) In case of any capital reorganization, any reclassification of the
capital stock of the Company (other than as a result of a stock dividend or
subdivision, split up or combination of shares) or any merger, sale or exchange,
lease, transfer or other disposition or share exchange (except as otherwise
provided in Section 1(b)), the number of Shares purchasable upon the exercise of
the Warrant immediately prior thereto shall be adjusted (effective on the
opening of business on the date after the effective date of such reorganization,
reclassification, merger, sale or exchange, lease, transfer or other disposition
or share exchange) so that the Holder shall be entitled to receive upon exercise
of the Warrant the kind and number of shares of stock or other securities or
property of the Company or of the corporation resulting from surviving such
merger or to which such properties, and assets shall have been sold, exchanged,
leased, transferred or otherwise disposed or which was the corporation whose
securities were exchanged for those of the Company to which the holder of the
number of Shares deliverable (at the close of business, on the date immediately
preceding the effective date of such reorganization, reclassification, merger,
sale, exchange, lease, transfer or other disposition or share exchange) would
have been entitled upon such reorganization, reclassification, merger, sale,
exchange, lease, transfer or other disposition or share exchange. Appropriate
adjustments shall also be made to the Exercise Price, but the aggregate Exercise
Price for the total number of Shares purchasable under this Warrant (as
adjusted) shall remain the same. The provisions of this Section 7(b) shall
similarly apply to successive reorganizations, reclassifications, mergers,
leases, exchanges, leases, transfers or other dispositions or other share
exchanges.
(c) If and whenever any Additional Shares (as hereinafter defined) shall
be issued by the Company (i) for a cash consideration less than the amount per
share determined by dividing (1) $6.00 by (2) the ratio (the "Initial Exchange
Ratio") of (A) the number of Shares with respect
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to which this Warrant was exercisable into (taking into account at adjustments
thereto required to be made hereunder) at the close of business on the business
day immediately preceding the day of such issue (the "Initial Number of
Shares"), to (B) 30,000, or (ii) without consideration, then in each such case,
the number of Shares purchasable upon the exercise of this Warrant Certificate
shad be increased effective as of the opening of business on the date of such
issue (the "Issue Date") by multiplying the Initial Number of Shares by that
ratio obtained: (1) by multiplying (A) $6.00 times (B) the aggregate number of
Shares issued and outstanding at the close of business on the Issue Date (the
"Issue Date Shares") and (2) by dividing the product thus determined by the sum
of the following clauses (3) and (4): (3) $6.00 divided by (x) the Initial
Exchange Ratio and the quotient thus determined multiplied by (y) the number of
Shares issued and outstanding at the close of business on the business day
immediately preceding the Issue Date; plus (4) the amount of the consideration
(if any) received by the Company for the Additional Shares issued on the Issue
Date.
(d) In case of the issuance of any Additional Shares for a consideration
part or all of which shall be cash, the amount of the cash consideration
therefor shall be deemed to be the amount of the cash received by the Company
for such shares, or, if such Additional Shares are offered by the Company for
subscription, the subscription price, or, if such Additional Shares shall be
sold to underwriters or dealers pursuant to a public offering other than by
subscription, the initial public offering price, less any compensation or
discount in the sale, underwriting or purchase thereof by underwriters or
dealers or others performing similar services or for any expenses incurred in
connection therewith.
(e) In case of the issuance of any Additional Shares for a consideration
part or all of which shall be other than cash, the amount of the consideration
therefor other than cash shall be deemed to be the Fair Market Value for such
consideration as determined in accordance with Section 7(j) hereof. In case of
the reclassification of securities into Shares, the Shares issued in such
reclassification shall be deemed to have been issued for a consideration other
than cash immediately prior to the close of business on the date fixed for the
determination of the stockholders entitled to receive such Shares.
(f) Additional Shares issued by way of dividend or other distribution on
any class of capital stock of the Company shall be deemed to have been issued
without consideration and shall be deemed to have been issued as of the opening
of business on the business day immediately following the date fixed for the
determination of the stockholders entitled to receive such dividend or other
distribution.
(g) The term "Additional Shares" as used herein shall mean all Shares (or
shares of any other class of securities of the Company entitling the holder
thereof to participate in any distribution of the Company's remaining assets
after payment to the holders of securities entitled to a preferential
distribution upon any dissolution, liquidation or winding-up of the Company)
issued by the Company after the date hereof, whether or not subsequently
reacquired or retired by the Company other than:
(i) Shares issued upon the exercise of this Warrant;
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(ii) shares issued by way of dividend or other distribution on Shares
or any subdivision or combination of Shares referred to in
Section 7(a) or on Shares resulting from any capital
reorganization, reclassification, merger, sale or exchange,
lease, transfer or other disposition or share exchange referred
to in Section 7(b); or
(iii) shares ("Acquisition Shares") issued by the Company in
connection with and as consideration for the acquisition by the
Company or any Subsidiary of the assets or stock of another
corporation pursuant to a bona fide purchase and sale transaction
with one or more persons acting at arm's length from the Company,
the Subsidiaries; and their respective directors, officers and
significant shareholders, provided such transaction is in good
faith approved by the Board of Directors of the Company.
(h) In case of the issuance of
(i) options to purchase or rights to subscribe for Shares,
(ii) securities by their terms convertible into, or exchangeable for,
Shares, or
(iii)options to purchase or rights to subscribe for such convertible
or exchangeable securities;
then, in each such case, for all purposes of this Section 7 (including without
limitation for the purpose of determining the Issue Date Shares referred to in
Section 7(c)(ii)(1)(B) and the number of Shares issued and outstanding
immediately prior to the Issue Date referred to in Section 7(c)(ii)(3)(y)):
(iv) The aggregate maximum number of Shares deliverable upon exercise
of such options to purchase or rights to subscribe for Shares
shall be deemed to be Additional Shares at the time such options
or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in Sections 7(c)
and (d)) if any, received by the Company upon the issuance of
such options or rights plus the minimum purchase price provided
in such options or rights for the Shares covered thereby.
(v) The aggregate number of Shares deliverable upon conversion of, or
in exchange for, any such convertible or exchangeable securities
or upon the exercise of options to purchase or rights to
subscribe for such convertible or exchangeable securities and
subsequent conversion or exchange thereof shall be deemed to be
Additional Shares at the time such securities were issued or such
options or rights were issued and for a consideration equal to
the consideration received by the Company for any such securities
or related options or rights (excluding any cash received on
account of accrued interest or accrued distributions), plus the
additional consideration, if any, to be received by the Company
upon the
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conversion or exchange of such securities or the exercise of any
related options or rights (the consideration in each case to be
determined in the manner provided in Sections 7(c) and 7(d)).
(vi) In the event of any change in the number of Shares deliverable
upon exercise of any such options or rights or securities other
than a change resulting from the antidilution provisions thereof,
the number of Shares purchasable upon the exercise of this
Warrant shall be readjusted effective as of the date of such
change to the number which would have been obtained had the
adjustment made upon the issuance of such options or rights or
securities not converted prior to such change or options or
rights or securities related to such securities not converted
prior to such change been made on the basis of such change.
(vii)On the expiration of any such options or rights, the termination
of any such rights to convert or exchange or the expiration of
any options or rights related to such convertible or exchangeable
securities, the number of Shares purchasable upon the exercise of
this Warrant shall forthwith be readjusted to such number as
would have obtained had the adjustment made upon the issuance of
such options, rights, securities or options or rights related to
such securities been made upon the basis of the issuance of only
the number of Shares actually issued upon the exercise of such
options or rights, upon the conversion or exchange of such
securities, or upon the exercise of the options or rights related
to such securities and subsequent conversion or exchange thereof
(i) No adjustment shall be required pursuant to this Section 7 unless such
adjustment would require an increase or decrease of at least 1% in the number of
Shares purchasable hereunder; provided, however, that any adjustments which by
reason of this Section 7(i) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under this
Section 7 shall be made to the nearest one-hundredth of a Share.
(j) The term Fair Market Value as used in this Section 7 with respect to
assets or property received by the Company or any other person shall be the fair
market value, regardless of my prior accounting treatment of such assets or
property, determined in good faith by agreement of the Holder and the Board of
Directors of the Company. If the Holder and the Board of Directors shall be
unable to agree as to such fair market value, the fair market value shall be
determined by the independent certified public accountant at that time retained
by the Company to audit its books and records, and a determination by such
independent certified public accountant shall be final, conclusive and binding
or, if there be none, or if such accountant shall refuse or be unable to make
such a determination then the sole issue of fair market value shall be submitted
to and settled by biding arbitration under and pursuant to the Oregon Uniform
Arbitration Act and the rules and regulations of the American Arbitration
Association, and the decision or award of the arbitrator or arbitrators in such
arbitration shall be final, conclusive and binding and a final judgment may be
entered thereon by any court of competent jurisdiction.
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(k) The Company will not, by any voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 7 and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the Holder of this Warrant against impairment.
8. Notice.
(a) Whenever the number of Shares purchasable hereunder is adjusted as
herein provided, the Company shall cause to be mailed to the Holder in
accordance with the provisions of this Section 8 a notice (i) stating that the
number of Shares purchasable upon exercise of this Warrant have been adjusted,
(ii) setting forth the adjusted number of Shares purchasable upon the exercise
of a Warrant, and (iii) showing in reasonable detail the computations and the
facts, including the amount of consideration received or deemed to have been
received by the Company, upon which such adjustments are based.
(b) In case: (i) the Company shall take a record of the holders of its
common stock (or other stock or securities at the time receivable upon the
exercise of this Warrant) for the purpose of entitling them to receive any
dividend or other distributions, or any rights to subscribe for or purchase any
shares of stock of any class or any securities, or to receive any other rights,
or (ii) of any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the Company
with or into another entity, or any conveyance of all or substantially all of
the assets of the Company to another entity, or (iii) any voluntary dissolution,
liquidation or winding-up of the Company, then, and in each such case, the
Company will mail or cause to be mailed to the Holder a notice specifying, as
the case may be (A) the date on which a 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, or (b) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
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 (or such stock or
securities at the time receivable upon the exercise of this Warrant) shall be
entitled to exchange their shares of common stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least
fifteen (15) days prior to the date specified therein.
9. Fractional Shares. The Company shall not be required to issue any fraction
of a Share upon the exercise of Warrants. If more than one Warrant shall be
surrendered for exercise at one time by the same Holder, the number of full
Shares which shall be issuable upon exercise thereof shall be computed on the
basis of the aggregate number of Shares with respect to which this Warrant is
exercised. If any fractional interest in a Share shall be deliverable upon the
exercise of this Warrant, the Company shall make an adjustment therefor in cash
equal to such fraction multiplied by the current market price of the Shares on
the business day next preceding the day of exercise.
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10. Loss or Destruction. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction, or mutilation of This Warrant Certificate and,
in the case of any such loss, theft or destruction, upon delivery of an
indemnity agreement or bond satisfactory in form, substance and amount to the
Company or, in the case any such mutilation, upon surrender and cancellation of
this Warrant Certificate, the Company at its expense will, execute and deliver,
in lieu thereof, a new Warrant Certificate of like tenor.
11. Survival. The various rights and obligations of the Holder hereof as set
forth herein shall survive the exercise of the Warrants represented hereby and
the surrender of this Warrant Certificate.
12. Notices. Whenever any notice, payment of any purchase price, or other
communication is required to be given or delivered under the terms of this
Warrant, it shall be in writing and and will be deemed to have been given or
delivered on the date such notice, purchase price or other communication is sent
by facsimile, provided that a copy of the notice is sent by Federal Express
within twenty-four hours thereafter, directed to the other parties (or to the
party required to be provided with such notice) at the following facsimile
numbers and addresses::
If to the Company:
The Neptune Society
0000 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone:
Facsimile: (000) 000-0000
If to Holder:
Green Leaf Investors I, LLC
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxx X. Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy of any notice to Investor to:
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Xxxxxxx X. Xxxxxxxxx
Xxxx Xxxxxx Xxxxxx Lubersky LLP
000 XX Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may, from time to time advise the others, by notice in writing, of any
change of address of the party. From and after the giving of that notice, the
address therein specified shall be deemed to be the address of the party giving
that notice.
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THE NEPTUNE SOCIETY, INC.
By: [Illegible]
Title: -----------------------------------
Date: August 8, 2001
WITNESS:
[Illegible]
Witness Signature
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EXERCISE FORM
TO: THE NEPTUNE SOCIETY, INC.
The undersigned hereby exercises the right to acquire shares of Common Stock in
the capital stock of THE NEPTUNE SOCIETY, INC. (the "Company") according to the
terms of the Warrant Certificate to which this Exercise Form is attached.
The undersigned hereby represents and warrants to the Company as follows (circle
one):
(a) the undersigned has executed and delivered to the Company Schedule A
attached hereto; or
(b) the undersigned has delivered to the Company a written opinion of counsel to
the effect that the exercise of the Warrant by the undersigned is not subject to
registration under the United States Securities Act of 1933, as amended (the
"1933 Act"), or the securities laws of any state of the United States.
"United States" and "U.S. person" are as defined by Regulation S under the 1933
Act.
Number of Common Stock:
DATED at ------------ this --- day of --------------, ---------.
------------------------------ ---------------------------------------
Witness Signature Signature of Holder
---------------------------------------
Print Name of Holder
---------------------------------------
Address
---------------------------------------
City, State and Zip Code
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SCHEDULE A
In connection with the exercise of the Warrant to which this Schedule A is
attached, the undersigned (the "Subscriber") covenants, represents and warrants
to The Neptune Society, Inc. (the "Company") that:
(a) the Subscriber has such knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of an investment
in the Shares and it is able to bear the economic risk of loss of its
entire investment;
(b) the Company has provided to it the opportunity to ask questions and receive
answers concerning the terms and conditions of the offering and it has had
access to such information concerning the Company as it has considered
necessary or appropriate in connection with its investment decision to
acquire the Shares;
(c) the Subscriber is acquiring the Shares for its own account, for investment
purposes only and not with a view to any resale, distribution or other
disposition of the Shares in violation of the United States securities
laws;
(d) the Subscriber understands that the Shares have not been and will not be
registered under the United States Securities Act of 1933, as amended (the
"1933 Act"), or the securities laws of any state of the United States and
that the sale contemplated hereby is being made in reliance on an exemption
from such registration requirements;
(e) the Subscriber has not purchased the Shares as a result of any form of
general solicitation or general advertising, including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio, or television, or any
seminar or meeting whose attendees have been invited by general
solicitation or general advertising.
(f) if the Subscriber decides to offer, sell or otherwise transfer any of the
Shares, it will not offer, sell or otherwise transfer any of such Shares
directly or indirectly, unless:
(i) the sale is to the Company,
(ii) the sale is made outside the United States in a transaction meeting
the requirements of Rule 904 of Regulation S under the 1933 Act and in
compliance with applicable local laws and regulations;
(iii) the Shares have been registered under the 1933 Act;
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(iv) the sale is made pursuant to the exemption from the registration
requirements under the 1933 Act provided by Rule 144 thereunder and in
accordance with any applicable state securities or "Blue Sky" laws; or
(v) the Shares are sold in a transaction that does not require
registration under the 1933 Act or any applicable state laws and
regulations governing the offer and sale of securities, and it has
prior to such sale furnished to the Company an opinion of counsel
reasonably satisfactory to the Company;
(g) the certificates representing the Shares will bear a legend stating that
such shares have not been registered under the 1933 Act or the securities
laws of any state of the United States and may not be offered for sale or
sold unless registered under the 1933 Act and the securities laws of all
applicable states of the United States or an exemption from such
registration requirements is available, and
(h) the Subscriber consents to the Company making a notation on its records or
giving instructions to any transfer agent of the Company in order to
implement the restrictions on transfer set forth and described herein.
Dated this ___ day of _______________________.
---------------------------------------
(Name of Subscriber - please print)
By: -----------------------------------
(Authorized Signature)
---------------------------------------
(Official Capacity or Title)
---------------------------------------
(Please print name of individual
whose signature appears above if
different than the name of the
Subscriber printed above)
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