▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INCORPORATED
Common Stock Warrant
Expiring _________, 2000
, 2000
No.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INCORPORATED, a Nevada corporation (herein,
together with its successors and assigns, the "Company"), for value received,
hereby certifies that , or registered assigns, is entitled to purchase from the
Company, at any time or from time to time prior to 5:00 p.m., Eastern time, on ,
duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock, par value $.001 per share, as constituted on , 2000 (the "Common Stock"),
of the Company at a purchase price of $ per share (the "Warrant Price"), all
subject to the terms, conditions and adjustments set forth below in this
Warrant.
1 Exercise of Warrant.
1.1 Manner of Exercise. This Warrant may be exercised by the
holder hereof, in whole or in part, during normal business hours on any Business
Day by surrender of this Warrant to the Company at the office of the Company
maintained pursuant to Section 7.2(a), accompanied by a subscription in
substantially the form annexed hereto duly executed by such holder and (i) by
payment in cash or by certified or official bank check payable to the order of
the Company or by wire transfer in the amount obtained by multiplying (a) the
number of shares of Common Stock (without giving effect to any adjustment
therein) designated in such subscription by (b) the then applicable Warrant
Price (as defined in Section 2.1(e)), (ii) by instructing the Company to
withhold and cancel a number of shares of Common Stock then issuable upon
exercise of this Warrant with respect to which the excess of the fair market
value of the shares of Common Stock (as determined by the Board of Directors of
the Company) over the Warrant Price for such canceled shares is at least equal
to the Warrant Price for the shares being purchased, or (iii) by any combination
of the foregoing, whereupon such holder shall be entitled to receive the number
of duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock (or Other Securities) determined as provided in Section 2.
1.2 When Exercise Effective. Each exercise of this Warrant
shall be deemed to have been effected immediately prior to the close of business
on the Business Day on which this Warrant shall have been surrendered to the
Company as provided in Section 1.1, and at such time the Person or Persons in
whose name or names any certificate or certificates for shares of Common Stock
(or Other Securities) shall be issuable upon such exercise as provided in
Section 1.3 shall be deemed to have become the holder or holders of record
thereof.
1.3 Delivery of Stock Certificates, etc. As soon as
practicable after the exercise of this Warrant, in whole or in part, and in any
event within five Business Days thereafter, the Company at its expense
(including the payment by it of any applicable issuance taxes) will cause to be
issued in the name of and delivered to the holder hereof or, subject to Section
6, as such holder (upon payment by such holder of any applicable transfer taxes)
may direct,
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock (or Other Securities) to which such holder shall be
entitled upon such exercise plus, in lieu of any fractional share to
which such holder would otherwise be entitled, cash in an amount equal
to the same fraction of the Market Price per share on the Business Day
next preceding the date of such exercise, and
(b) in case such exercise is in part only, a new Warrant or
Warrants of like tenor, calling in the aggregate on the face or faces
thereof for issuance of the number of shares of Common Stock equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of this Warrant minus the number of such
shares so designated by such holder upon such exercise as provided in
Section 1.1.
2 Certain Adjustments to Warrant.
2.1 Adjustment for Dividends, Distributions, Subdivisions,
Combinations or Consolidation of Common Stock.
2.1.1. Stock Dividends, Distributions or Subdivisions. In the
event the Company shall issue additional shares of Common Stock in a stock
dividend, stock distribution or subdivision, the Warrant Price in effect
immediately prior to such stock dividend, stock distribution or subdivision
shall, concurrently with the effectiveness of such stock dividend, stock
distribution or subdivision, be proportionately decreased.
2.1.2. Combinations or Consolidations. In the event the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Warrant Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately increased.
2.2 Adjustment for Merger or Reorganization, etc. Subject to
the provisions of Section 13, in case of any consolidation or merger of the
Company with or into another Company or the conveyance of all, or substantially
all, of the assets of the Company to another corporation, this Warrant shall
thereafter be exercisable to purchase the number of shares of stock or other
securities or property to which a holder of the number of shares of Common Stock
of the Company deliverable upon exercise of this Warrant would have been
entitled upon such consolidation, merger or conveyance; and, in any such case,
appropriate adjustment (as determined by the Board of Directors) shall be made
in the application of the provisions herein set forth with respect to the rights
and interest thereafter of the holder of this Warrant to the end that the
provisions set forth in Section 2.1 and this Section 2.2 (including provisions
with respect to changes in and other adjustments of the Warrant Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the exercise of
this Warrant.
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3 No Dilution or Impairment. The Company (a) will not permit
the par value of any shares of stock receivable upon the exercise of any Warrant
to exceed the amount payable therefor upon 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 nonassessable shares of stock on the exercise
of the Warrants from time to time outstanding, and (c) will not take any action
that results in any adjustment of the Warrant Price if the total number of
shares of Common Stock (or Other Securities) issuable after such action, upon
the exercise of all of the Warrants, would exceed the total number of shares of
Common Stock (or Other Securities) then authorized by the Company's certificate
of incorporation and available for the purpose of issuance upon such exercise.
4 Report as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable upon
the exercise or conversion of any Warrant, the Company at its expense will
promptly compute such adjustment or readjustment in accordance with the terms of
this Warrant and prepare a report setting forth such adjustment or readjustment
and showing in detail the method of calculation thereof and the facts upon which
such adjustment or readjustment is based, including a statement of the Warrant
Price in effect immediately prior to such issuance or sale and as adjusted and
readjusted (if required by Section 2) on account thereof. The Company will
forthwith (and in any event not later than 20 days following the occurrence of
the event requiring such adjustment) furnish a copy of each such report to each
holder of a Warrant, and will, upon the written request at any time of any
holder of a Warrant, furnish to such holder a like report setting forth the
Warrant Price at the time in effect and showing how it was calculated. The
Company also will keep copies of all such reports at its principal office and at
the office or agency required to be maintained by it pursuant to Section 7.2(a),
and will cause the same to be available for inspection at each such office
during normal business hours by any holder of a Warrant or any prospective
purchaser of a Warrant designated by the holder thereof.
5 Restrictions on Transfer.
5.1 Notice of Proposed Transfer; Opinions of Counsel. Prior to
any transfer of any Restricted Securities that are not registered under an
effective registration statement under the Securities Act (other than a transfer
pursuant to Rule 144, Rule 144A or any comparable rule under such Act), the
holder thereof will give written notice to the Company of such holder's
intention to effect such transfer and to comply in all other respects with this
Section 5.1. Each such notice shall (a) describe the manner and circumstances of
the proposed transfer in sufficient detail to enable counsel to render the
opinion referred to below, and (b) designate counsel for the holder giving such
notice, which counsel shall be reasonably satisfactory to the Company. The
holder giving such notice will submit a copy thereof to the counsel designated
in such notice. The following provisions shall then apply:
(1) if in the written opinion of such counsel for the
holder, obtained at the holder's sole cost and expense and a copy of
which shall be delivered to the Company and shall be reasonably
satisfactory in form, scope and substance to the Company, the proposed
transfer may be effected without registration of such Restricted
Securities under the Securities Act or applicable state securities
laws, such holder shall thereupon be entitled to transfer such
Restricted Securities in accordance with the terms of the notice
delivered by such holder to the Company. Each Restricted Security or
certificate, if any, issued upon or in connection with such transfer
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shall bear an appropriate restrictive legend unless, in the opinion of
such counsel, such legend is no longer required to insure compliance
with the Securities Act and applicable state securities laws; and
(2) if the opinion of such counsel rendered pursuant
to the foregoing subdivision (1) is not to the effect that the proposed
transfer may legally be effected without registration of such
Restricted Securities under the Securities Act or applicable state
securities laws (such opinion to state the basis of the legal
conclusions reached therein), such holder shall not be entitled to
transfer such Restricted Securities (other than a transfer pursuant to
Rule 144, Rule 144A or any comparable rule under the Securities Act)
until receipt by the Company of a further notice and a further opinion
of counsel for such holder to the effect stated in subdivision (1)
above or until registration of such Restricted Securities under the
Securities Act and applicable state securities laws has become
effective.
5.2 Termination of Restrictions. The restrictions imposed by
this Section 5 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities when, in the opinion of
counsel for the Company, such restrictions are no longer required in order to
ensure compliance with the Securities Act. Whenever such restrictions shall
terminate as to any Restricted Securities, the holder thereof shall be entitled
to receive from the Company, without expense (other than transfer taxes, if
any), new securities of like tenor not bearing an applicable restrictive legend.
6 Reservation of Stock, etc. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the exercise
of this Warrant, the number of shares of Common Stock (or Other Securities) from
time to time issuable upon the exercise of all Warrants at the time outstanding.
All such securities shall be duly authorized and, when issued upon such
exercise, shall be validly issued and, in the case of shares, fully paid and
nonassessable with no liability on the part of the holders thereof.
7 Ownership Transfer and Substitution of Warrants.
7.1 Ownership of Warrants. The Company may treat the Person in
whose name any Warrant is registered on the register kept at the principal
office of the Company as the owner and holder thereof for all purposes,
notwithstanding any notice to the contrary, except that, if and when any Warrant
is properly assigned in blank, the Company may (but shall not be obligated to)
treat the bearer thereof as the owner of such Warrant for all purposes,
notwithstanding any notice to the contrary. A Warrant, if properly assigned, may
be exercised by a new holder without first having a new Warrant issued.
7.2 Office; Transfer and Exchange of Warrants. (a) The Company
will maintain its principal office in Reno, Nevada or at such other location as
it designates in a written notice delivered to each registered holder of a
Warrant prior to any change of such location, and all notices, presentations and
demands in respect of this Warrant may be made upon it at such location. The
Company may designate from time to time by notice to the registered holder of
this Warrant an office or agency of the Company where such notices,
presentations and demands in respect of this Warrant may be made in lieu of the
Company's principal office.
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(b) Upon the surrender of any Warrant, properly endorsed, for
registration of transfer or for exchange at the principal office of the Company
or the office of the Company maintained pursuant to Section 7.2(a), the Company
at its expense will (subject to compliance with Section 5, if applicable)
execute and deliver to or upon the order of the holder thereof a new Warrant or
Warrants of like tenor, in the name of such holder or as such holder (upon
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 or faces of the Warrant or Warrants so surrendered.
7.3 Replacement of Warrants. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Warrant (which may be a written statement as to such loss,
theft, destruction or mutilation) and (a) in the case of such loss, theft or
destruction of any Warrant, upon delivery of indemnity reasonably satisfactory
to the Company in form and amount, or (b) in the case of any such mutilation,
upon surrender of such Warrant for cancellation at the office of the Company
maintained pursuant to Section 7.2(a) or the principal office of the Company,
the Company at its expense will execute and deliver, in lieu thereof, a new
Warrant of like tenor.
8 Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Business Day" shall mean any day other than a Saturday,
Sunday or any other day on which U.S. Federal Reserve member banks are not open
for business in New York, New York.
"Commission" shall mean the Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
"Company" shall have the meaning specified in the opening
paragraphs of this Warrant, including any corporation that shall succeed to or
assume the obligations of the Company hereunder in compliance with Section 2.2.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Market Price" shall mean, per share of Common Stock that the
holders of this Warrant shall be entitled to receive upon exercise thereof, on
any date specified herein, (a) the last sale price on such date of such Common
Stock or, if no such sale takes place on such date, the average of the closing
bid and asked prices thereof on such date, in each case as officially reported
on the principal national securities exchange on which such Common Stock is then
listed or admitted to trading, or (b) if such Common Stock is not then listed or
admitted to trading on any national securities exchange but is designated as a
national market system security by the National Association of Securities
Dealers, Inc., the last trading price of such Common Stock on such date, or (c)
if there shall have been no trading on such date or if such Common Stock is not
so designated, the average of the reported closing bid and asked prices of such
Common Stock on such date as shown by The Nasdaq Stock Market, Inc. and reported
by any member firm of the New York Stock Exchange selected by the Company, or
(d) if none of (a), (b) or (c) is applicable, a price per share thereof equal to
the fair value thereof determined in good faith by a resolution of the Board of
Directors of the Company as of a date that is within 15 days of the date as of
which the determination is to be made.
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"Other Securities" shall mean 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, upon 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 2 or otherwise.
"Person" shall mean a corporation, an association, a
partnership, an organization or business, an individual, a government or
political subdivision thereof or a governmental agency.
"Restricted Securities" shall mean any Other Securities issued
subsequent to any exercise of this Warrant as a dividend or other distribution
with respect to, or resulting from a subdivision of the outstanding Other
Securities into a greater number of shares by reclassification, stock splits or
otherwise, or in exchange for or in replacement of Other Securities issued upon
such exercise, which are evidenced by a certificate or certificates bearing an
applicable restrictive legend.
"Securities Act" shall mean the Securities Act of 1933, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Warrant" shall have the meaning specified in the opening
paragraphs of this Warrant.
"Warrant Price" shall have the meaning specified in the
opening paragraphs of this Warrant.
9 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, to the extent permitted by applicable law,
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.
10 No Rights or Liabilities as Stockholder. Nothing contained
in this Warrant shall be construed as conferring upon any holder hereof any
rights as a stockholder of the Company or as imposing any obligation on such
holder to purchase any securities or as imposing any liabilities on such holder
as a stockholder of the Company, whether such obligation or liabilities are
asserted by the Company or by creditors of the Company.
11 Notices. All notices and other communications provided for
herein shall be delivered or mailed by first class mail, postage prepaid,
addressed (a) if to any holder of this Warrant, at the registered address of
such holder as set forth in the register kept by the Company, or (b) if to the
Company, at its principal office, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇,
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Nevada 89509, or at the address of such other principal office of the Company as
the Company shall have furnished to each holder of this Warrant in writing, with
a copy to ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; provided, however, that the exercise of any
Warrant shall be effective in the manner provided in Section 1.
12 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. Any provision of this Warrant that shall be prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the Company
waives any provision of law that shall render any provision hereof prohibited or
unenforceable in any respect. This Warrant shall be governed by the substantive
laws of the State of Nevada without reference to the choice of law rules
thereof. The headings of this Warrant are inserted for convenience only and
shall not be deemed to constitute a part hereof.
[The remainder of this page is intentionally left blank.]
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Expiration. Subject to the provisions in Section 1.1 hereof,
the right to exercise this Warrant shall expire at 5:00 p.m., Eastern time, on
the date set forth on the first page hereof.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By:________________________________
Name:______________________________
Title:_____________________________
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FORM OF SUBSCRIPTION
--------------------
THE EXERCISE OF THIS WARRANT IS SUBJECT TO, AND SHALL ONLY BE EFFECTIVE UPON,
SATISFACTION OF ANY APPLICABLE REGULATORY FILING REQUIREMENTS SUCH AS THE
PREMERGER NOTIFICATION AND REPORT FORM FILING REQUIREMENTS OF THE
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ANTITRUST IMPROVEMENTS ACT OF 1976 AND REGULATIONS
PROMULGATED PURSUANT THERETO.
[To be executed only upon exercise of Warrant]
To ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
The undersigned registered holder of the attached Warrant
hereby irrevocably exercises such Warrant for, and purchases thereunder, 1
shares of Common Stock of ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED, and herewith makes
payment as follows (check as applicable): |_| certified or official bank check
in the amount of $_________; |_| wire transfer in the amount of $_________;
and/or |_| cancellation of _______ shares of Common Stock otherwise issuable
under the Warrant. The undersigned requests that the certificates for such
shares be issued in the name of, and delivered to ____________________________,
whose address is ____________________________________________________________.
Dated:____________
__________________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of Warrant)
__________________________________________________
(Street Address)
__________________________________________________
(City) (State) (Zip Code)
_________________
1 Insert here the number of shares called for on the face of this Warrant
(or in the case of a partial exercise, the portion thereof as to which
this Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash that, pursuant to the adjustment
provisions of this Warrant, may be delivered upon exercise. In the case
of a partial exercise, a new Warrant or Warrants will be issued and
delivered, representing the unexercised portion of the Warrant, to the
holder surrendering the Warrant.
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