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EXHIBIT 2.3
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT
SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, OR (C) IF REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE
AGREEMENT"), DATED DECEMBER 7, 1998, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL
AGREEMENTS AMONG THE PARTIES, INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH
LIMIT THE EXERCISE RIGHTS OF THE HOLDER AND SPECIFY MANDATORY REDEMPTION
OBLIGATIONS OF THE COMPANY. THE PURCHASE AGREEMENT APPLIES TO THIS WARRANT ONLY
TO THE EXTENT EXPRESSLY REFERENCED IN THE TEXT OF THIS WARRANT.
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COMMON STOCK PURCHASE WARRANT
No. 2
Number of shares: 100,000 Holder: GCA Strategic Investment
Fund Limited
Strike Price: $2.60 Mechanics Building
Expiration Date: January 19, 2004 00 Xxxxxx Xxxxxx
Xxxxxxxx XX XX, Xxxxxxx
For identification only. The governing terms of this Warrant are set
forth below.
Lahaina Acquisitions, Inc., a Colorado corporation (the "Company"), hereby
certifies that, for value received, GCA Strategic Investment Fund Limited or
assigns, is entitled, subject to the terms set forth below, to purchase from the
Company at any time or from time to time after the date hereof and prior to the
fifth anniversary hereof (the "Exercise Period"), at the Purchase Price
hereinafter set forth, One Hundred Thousand (100,000) shares of fully paid and
nonassessable shares of Common Stock of the Company. The number and character of
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such shares of Common Stock and the Purchase Price are subject to adjustment as
provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall be Two Dollars and Sixty Cents
($2.60); provided, however, that the Purchase Price shall be adjusted from time
to time as provided herein.
Capitalized terms used herein not otherwise defined shall have the
meanings ascribed thereto in the Purchase Agreement. As used herein the
following terms, unless the context otherwise requires, have the following
respective meanings:
(a) The term "Company" shall include Lahaina Acquisitions, Inc., and
any corporation that shall succeed or assume the obligations of such corporation
hereunder.
(b) The term "Common Stock" includes (a) the Company's common stock, no
par value per share, (b) any other capital stock of any class or classes
(however designated) of the Company, authorized on or after such date, the
Holders of which shall have the right, without limitation as to amount, either
to all or to a share of the balance of current dividends and liquidating
dividends after the payment of dividends and distributions on any shares
entitled to preference, and the Holders of which shall ordinarily, in the
absence of contingencies, be entitled to vote for the election of a majority of
directors of the Company (even though the right so to vote has been suspended by
the happening of such a contingency) and (c) any other securities into which or
for which any of the securities described in (a) or (b) may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person (corporate or
otherwise) that the Holder of this warrant at any time shall be entitled to
receive, or shall have received, on the exercise of this Warrant, in lieu of or
in addition to Common Stock, or that at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 or otherwise.
1. Exercise of Warrant
1.1 Method of Exercise.
a. This warrant may be exercised in whole or in part (but not as to a
fractional share of Common Stock), at any time and from time to time during the
Exercise Period by the Holder hereof by delivery of a notice of exercise (a
"Notice of Exercise") substantially
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in the form attached hereto as Exhibit A via facsimile to the Company. Promptly
thereafter the Holder shall surrender this Warrant to the Company at its
principal office, accompanied by payment of the Purchase Price multiplied by the
number of shares of Common Stock for which this Warranty is being exercised (the
"Exercise Price"). Payment of the Exercise Price shall be made, at the option of
the Holder, (i) by check or bank draft payable to the order of the Company, (ii)
by wire transfer to the account of the Company, (iii) in shares of Common Stock
having a Market Value on the Exercise Date (as hereinafter defined) equal to the
aggregate Exercise Price or (iv) by presentation and surrender of this Warrant
to be Company for cashless exercise (a "Cashless Exercise"), which such
surrender being deemed a waiver of the Holder's obligations to pay all or any
portion of the Exercise Price. In the event the Holder elects a Cashless
Exercise (which such election shall be irrevocable) the Holder shall exchange
this Warrant for that number of shares of Common Stock determined by multiplying
the number of shares of Common Stock being exercised by a fraction, the
numerator of which shall be the difference between the then current Market Value
of the Common Stock and the Purchase Price, and the denominator of which shall
be the then current Market Value of the Common Stock. If the amount of the
payment received by the Company is less than the Exercise Price, the Holder will
be notified of the deficiency and shall make payment in that amount within five
(5) business days. In the event the payment exceeds the Exercise Price, the
Company will promptly refund the excess to the Holder. Upon exercise, the Holder
shall be entitled to receive, promptly after payment in full, one or more
certificates, issued in the Holder's name or in such name or names as the Holder
may direct, subject to the limitations on transfer contained herein, for the
number of shares of Common Stock so purchased. The shares of Common Stock so
purchased shall be deemed to be issued as of the close of business on the date
on which the Company shall have received from the Holder payment in full of the
Exercise Price (the "Exercise Date").
b. Notwithstanding anything to the contrary set forth herein, upon
exercise of all or a portion of this Warrant in accordance with the terms
hereof, the Holder shall not be required to physically surrender this Warrant to
the Company. Rather, records showing the amount so exercised and the date of
exercise shall be maintained on a ledger substantially in the form of Annex B
attached hereto (a copy of which shall be delivered to the Company or transfer
agent with each Notice of Exercise). It is specifically contemplated that the
Holder hereof shall act as the calculation agent for all exercises of this
Warrant. In the event of any dispute or discrepancies, such records maintained
by the Holders shall be controlling and determinative in the absence of manifest
error. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following an
exercise of a portion of this Warrant, the number of shares of Common Stock
represented by this Warranty will be the amount indicated on Annex B attached
hereto (which may be less than the amount stated on the fact hereof).
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1.2 Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to or for
resale of such securities unless such resale has been registered with the
Commission or an applicable exemption is available therefor. At the time this
Warrant is exercised, the Company may require the Holder to state in the Notice
of Exercise such representations concerning the Holder as are necessary or
appropriate to assure compliance by the Holder with the Securities Act.
1.3 Limitation on Exercise. Notwithstanding the rights of the Holder to
exercise all or a portion of this Warrant as described herein, such exercise
rights shall be limited, solely to the extent set forth in the Purchase
Agreement as if such provisions were specifically set forth herein. In addition,
the number of shares of Common Stock issuable upon exercise of this Warrant is
subject to reduction as specified in Section 10.3 of the Purchase Agreement.
2. Delivery of Stock Certificates, etc. on Exercise. As soon as practicable
after the exercise of this Warrant, and in any event within five (5) business
days thereafter, the Company at its expense (including the payment by it of any
applicable issue, stamp or transfer taxes) will cause to be issued in the name
of and delivered to the Holder thereof, or, to the extent permissible hereunder,
to such other person as such Holder may direct, a certificate or certificates
for the number of fully paid and nonassessable shares of Common Stock (or Other
Securities) to which such Holder shall be entitled on such exercise, plus, in
lieu of any fractional share to which such Holder would otherwise be entitled,
cash equal to such fraction multiplied by the then applicable Purchase Price,
together with any other stock or other securities and property (including cash,
where applicable) to which such Holder is entitled upon such exercise pursuant
to Section 1 or otherwise.
3. Adjustment for Extraordinary Events. The Purchase Price to be paid by the
Holder upon exercise of this Warrant, and the consideration to be received upon
exercise of this Warrant, shall be adjusted in case at any time or from time to
time pursuant to Article XI of the Purchase Agreement as if such provisions were
specifically set forth herein.
4. No Impairment. The Company will not, by amendment of 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 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.
Without limiting the generality of the foregoing, the Company (a) will not
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increase the par value of any shares of stock receivable on the exercise of this
Warrant above the amount payable therefor on such exercise, (b) will take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and unassessable shares of stock on the
exercise of this Warrant, and (c) will not transfer all or substantially all of
its properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of this Warrant.
5. Accountant's Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable on the
exercise of this Warrant, the Company at its expense will promptly cause
independent certified public accountants of national standing selected by the
Company to compute such adjustment or readjustment in accordance with the terms
of this Warrant and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment and
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock (or Other
Securities) issued or sold or deemed to have been issued or sold, (b) the number
of shares of Common Stock (or Other Securities) outstanding or deemed to be
outstanding, and (c) the Purchase Price and the number of shares of Common Stock
to be received upon exercise of this Warrant, in effect immediately prior to
such issue or sale and as adjusted and readjusted as provided in this Warrant.
The Company will forthwith mail a copy of each such certificate to the Holder of
this Warrant, and will, on the written request at any time of the Holder of this
Warrant, furnish to such Holder a like certificate setting forth the Purchase
Price at the time in effect and showing how it was calculated.
6. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the Holders of any class
or securities for the purpose of determining the Holders thereof who are
entitled to receive any dividends or other distribution, 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 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 person, or
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(c) any voluntary or involuntary dissolution, liquidation or winding up
of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder of this Warrant a notice 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, as of which the Holders of
record of Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for then and in each such event the
Company will mail or cause to be mailed to the Holder of this Warrant a notice
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 of 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, as of which the Holders of record of Common Stock (or Other Securities)
shall be entitled to exchange their shares of Common Stock (or Other Securities)
for securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 20
days prior to the date specified in such notice on which any action is to be
taken.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The Company
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Exchange of Warrant.
(a) On surrender for exchange of this Warrant, properly endorsed and in
compliance with the restrictions on transfer set forth in the legend on the face
of this Warrant, to the Company, the Company at its expense will issue and
deliver to or on the order of the Holder thereof a new Warrant of like tenor, in
the name of such Holder or as such Holder (on payment by such Holder of any
applicable transfer taxes) may direct, calling in the aggregate on the face or
faces thereof for the number of shares of Common Stock called for on the face of
the Warrant so surrendered.
(b) Upon written notice from the Purchasers that the Purchasers have
elected to transfer amongst each other a portion of this Warrant, and issue and
deliver to or on the order of the Holder thereof a new Warrant of like tenor, in
the name of such Holder as the
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Purchasers (on payment by such Holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock as set forth in such notice reflecting such transfer.
9. Replacement of Warrant. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of any such loss, theft or destruction of this Warrant, on delivery of
an indemnity agreement or security reasonably satisfactory in form and amount to
the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Remedies. The Company stipulates that the remedies at law of the Holder of
this Warrant in the event of any default or threatened default by the Company in
the performance of or compliance with any of the terms of this Warrant are not
and will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
11. Negotiability, etc. This Warrant is issued upon the following terms, to all
of which each Holder or owner hereof by the taking hereof consents and agrees.
(a) title to this Warrant may be transferred by endorsement and
delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery.
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a bona fide
purchaser hereof for value; each prior taker or owner waives and renounces all
of his equities or rights in this Warrant in favor of such bona fide purchaser,
and each such bona fide purchaser shall acquire absolute title hereto and to all
rights represented hereby;
(c) until this Warrant is transferred on the books of the Company, the
Company may treat the registered Holder as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary; and
(d) notwithstanding the foregoing, this Warrant may be sold,
transferred or assigned except pursuant to an effective registration statement
under the Securities Act or pursuant to an applicable exemption therefrom.
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12. Notices, etc. All notices and other communications from the Company to the
Holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at such address as may have been furnished to the Company
in writing by such Holder or, until any such Holder furnishes to the Company any
address, then to, and at the address of, the last Holder of this Warrant who has
so furnished an address to the Company.
13. Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Georgia. The headings in this
Warrant are for the purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
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DATED as of March 1999.
--,
Lahaina Acquisitions, Inc.
By:
-----------------------------------
Xxxxxxx X. Xxxxx
Chairman
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EXHIBIT A
FORM OF NOTICE EXERCISE - WARRANT
(To be executed only upon exercise
of the Warrant in whole or in part)
To: Lahaina Acquisitions, Inc.
The undersigned registered Holder of the accompanying Warranty, hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
_______________1/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor in the amount and manner set forth below, as of
the date written below. The undersigned requests that the certificates for such
shares of Common Stock be issued in the name of, and delivered to,
___________________________ whose address is __________________________________.
The Exercise Price is paid as follows:
[X] Bank draft payable to the Company in the amount of $__________.
[X] Wire transfer to the account of the Company in the amount
of $________.
[X] Delivery of ______________ previously held shares of Common Stock
having an aggregate Market Price of $___________.
[X] Cashless exercise. Surrender of _________ shares purchasable
under this Warrant for such shares of Common Stock issuable in
exchange therefor pursuant to the Cashless Exercise provisions
of the Warrant, as provided in Section 1.1(iv) thereto.
Upon exercise pursuant to this Notice of Exercise, the Holder will be
in compliance with the Limitation on Exercise (as defined in the Securities
Purchase Agreement pursuant to which this Warrant was issued).
Date: ----------------------------------
------------------- (Name must conform to name of
Holder as specified on the face of
the Warrant)
By:
------------------------
Name:
-------------------
Title:
-------------------
Address of Holder:
--------------------------
--------------------------
--------------------------
Date of exercise:
-------------------
---------------------------
1/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the Holder surrendering the same.
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ANNEX B
WARRANT EXERCISE LEDGER
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ORIGINAL NUMBER OF WARRANTS EXERCISE PRICE PAID NEW BALANCE OF ISSUER INITIALS HOLDER INITIALS
DATE WARRANTS EXERCISED WARRANTS
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