THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN AND WILL NOT BE, AS OF THE TIME OF ISSUANCE, REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW,
AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY
EXEMPTION THEREFROM UNDER SUCH ACT. THIS WARRANT AND SUCH SHARES MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS
WARRANT.
JUNGLE STREET, INC.
COMMON STOCK PURCHASE WARRANT
Expiring September 25, 2001
September 25, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Utah corporation (the "Company"), for value
received, hereby certifies that UTCO Associates, Ltd. ("Holder"), is
entitled to purchase sixty-five thousand (65,000) shares of the Company's
voting common stock, par value $.001 per share (the "Warrant Stock"), at
the times and according to the terms set forth in this Warrant.
1. Terms of Warrant. This Warrant is being issued by the Company as a
fee in connection with and pursuant to that certain Promissory Note of even
date herewith made by the Company and payable to Holder. This Warrant shall
be exercisable at any time after the date hereof. The exercise price (the
"Exercise Price") of this Warrant shall be $1.81 per share of the Warrant
Stock acquired upon any such exercise.
2. Exercise of Warrant. The holder of this Warrant may exercise it
during normal business hours on any business day after the date hereof and
before 5:00 p.m., P.S.T., on September 25, 2001, or if such date is a day
on which federal or state chartered banking institutions are authorized by
law to close, then on the next succeeding day which shall not be such a
day, by surrendering this Warrant to the Company at the Company's principal
office, accompanied by an executed subscription agreement in substantially
the form annexed hereto as Exhibit "A" and by payment, in cash or by
certified or official bank check payable to the order of the Company, or by
any combination of such methods, in the amount obtained by multiplying
(a) the number of Warrant Stock designated in such subscription by (b) the
Exercise Price, whereupon such holder shall be entitled to receive the
number of duly authorized, validly issued, fully paid and nonassessable
shares of Warrant Stock as is indicated on the subscription.
3. Partial Exercise Allowed; Issuance of Substitute Warrant. This
Warrant is exercisable in whole or in part by Holder. In the event Holder
exercises this Warrant with respect to only a portion of the Warrant Stock
that could be acquired upon exercise, a
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replacement Warrant ("Replacement Warrant") with identical terms except for
a corresponding reduction of the number of shares of Warrant Stock
receivable upon exercise of the Replacement Warrant shall be issued by the
Company within three (3) business days after any such partial exercise.
4. When Exercise Effective. The 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 2, and at such time the person or persons in
whose name or names any certificate or certificates for shares of Warrant
Stock shall be issued upon such exercise shall be deemed for all corporate
purposes to have become the holder of record thereof.
5. Delivery of Stock Certificates. 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 taxes) will cause to be issued in the name of and
delivered to Holder or to the person or entity such holder may direct (and
upon payment by such holder of any applicable transfer taxes), a
certificate or certificates for the number of duly authorized, validly
issued, fully paid and nonassessable shares of Warrant Stock to which the
holder or its designee shall be entitled upon such exercise.
6. Adjustment of Warrant Stock Issuable Upon Exercise. If the Company
at any time or from time to time after the date of this Warrant but before
expiration effects a split or subdivision of the outstanding shares of its
then outstanding common stock into a greater number of shares of common
stock, or if the Company effects a reverse split of the outstanding shares
of its common stock into a lesser number of shares of common stock, (by
reclassification or otherwise than by payment of a dividend in common
stock), then, and in each such case, the number of shares called for on the
face of this Warrant (or the face of any replacement Warrant issued upon
partial exercise) shall be adjusted proportionally, and the exercise price
with respect to such adjusted number of shares also shall be adjusted
proportionally.
7. Reservation of Shares. 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 that would be issuable upon
the exercise, in whole, of this Warrant or any replacement Warrant. All
such shares shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and nonassessable with no liability on
the part of the holders thereof.
8. Ownership, Transfer and Substitution of Warrant. The Company will
treat Holder as the owner and holder of this Warrant for all purposes,
until the Company receives notice to the contrary. This Warrant shall be
transferable by Holder only in accordance with State and Federal Securities
laws, and the Company shall recognize on its books and records any lawful
transfer of this Warrant upon receipt of notice of such transfer by Holder.
Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or
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mutilation of this Warrant and, in the case of any such loss, theft of
destruction of this Warrant, upon delivery of indemnity reasonably
satisfactory to the Company in form and amount or, in the case of any such
mutilation, upon surrender of such the Company at its expense will execute
and deliver, in lieu thereof, a new Warrant of like tenor.
9. No Rights or Liabilities as Stockholder. Nothing herein shall give
or shall be construed to give Holder any of the rights of a shareholder of
the Company including, without limitation, the right to vote on matters
requiring the vote of shareholders, the right to receive any dividend
declared and payable to the holders of common stock, and the right to a
pro-rata distribution upon the Company's dissolution.
10. Authorization; No Breach. The Company represents and warrants that
(i) the Company is duly organized, validly existing, and in good standing
under the laws of the State of Utah, and has the requisite power and
authority to issue this Warrant and the Warrant Stock issuable upon the
exercise of this Warrant; (ii) the number of shares of Warrant Stock
issuable upon the entire exercise of this Warrant are presently authorized
but unissued; (iii) the issuance of this Warrant and the issuance of the
Warrant Stock issuable upon exercise of this Warrant have been authorized
and approved by all necessary corporate action; (iv) the execution,
delivery and issuance of this Warrant and the issuance of the Warrant Stock
underlying this Warrant will not violate any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Company or the
provision or provisions of any agreement to which the Company is a party or
is subject, or by which any of the Company's property is bound, or conflict
with or constitute a material default thereunder, or result in the creation
or imposition of any lien pursuant to the terms of any such agreement, or
constitute a breach of any fiduciary duty owed by the Company to any third
party, or require the approval of any third-party pursuant to any contract,
agreement, instrument, relationship or legal obligation to which the
Company is subject or to which any of its properties may be subject; and
(v) when issued, both this Warrant and the shares of common stock issuable
upon exercise of this Warrant shall be duly and validly issued, fully paid
and nonassessable.
11. Registration Right. If the Company shall determine to register any
of its common stock either for its own account or the account of a security
holder or holders, other than a registration relating solely to (i)
employee benefit plans, or (ii) registration on any registration form that
does not permit secondary sales, the Company will: (a) promptly give
written notice of the proposed registration to the holders of any Warrant
Stock issued or issuable upon the exercise of this Warrant (which shall
include a list of the jurisdictions in which the Company intends to attempt
to qualify such securities under applicable blue sky laws); and (b) include
in such registration (and any related qualification or other compliance
filing under applicable blue sky laws), and in any underwriting involved
therein, all or any portion of the Warrant Stock then issued or issuable
upon exercise of this Warrant as specified in a written request made by
such holders within thirty (30) days after receipt of the written notice
from the Company described in clause (a) above, provided, however, that if
the registration of which the Company gives notice is for a registered
public offering
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involving an underwriting, the Company shall so advise such holders as part
of the written notice described in clause (a) above. In such event, such
holders' rights to registration pursuant to this Section 11 shall be
conditioned upon participation in such underwriting and the inclusion of
stock in the underwriting to the extent provided herein. Such holders and
the Company (and any other security holders proposing to distribute their
securities through such underwriting) shall enter into an underwriting
agreement in customary form with the representatives of the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding
any other provisions of this Section 11, if the representatives of the
underwriter or underwriters determine in good faith that marketing factors
make it advisable to impose a limitation on the number of secondary shares
to be underwritten, the number of such secondary shares, if any, that may
be included in the registration and underwriting on behalf of such holders,
and any other security holders proposing to distribute their securities of
the Company through such underwriting shall be allocated in proportion, as
nearly as practicable, to the respective amounts of securities that they
had requested to be included in such registration at the time of filing the
registration statement. If such Holders disapprove of the terms of any such
underwriting, they may elect to withdraw therefrom by written notice to the
Company and the representatives of the underwriter or underwriters.
12. Notices. All notices and other communications provided for herein
shall be delivered or mailed by first class mail, postage prepaid,
addressed (a) if to Holder, at the registered address of such holder as set
forth in the register kept at the principal office of the Company, or (b)
if to the Company, at its principal office, or to such other location as
the Company shall have furnished to each holder of any Warrants in writing,
provided that the exercise of any Warrants shall be effective only in the
manner provided in section 2.
13. Miscellaneous. This Warrant embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to
the subject matter hereof. There are no unwritten oral agreements between
the parties with respect to the subject matter hereof. 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
governed by the laws of the State of Utah. The headings of this Warrant are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
JUNGLE STREET, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO
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Exhibit A
SUBSCRIPTION
(To be executed by the holder of the Warrant to exercise the right to
purchase common stock evidenced by the Warrant.)
To: Jungle Street, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably subscribes for _________ shares of
Common Stock, par value $.001 per share, of Jungle Street, Inc., a Utah
corporation, pursuant to and in accordance with the terms and conditions of
a Warrant dated September 25, 1996 (the "Warrant"), and tenders with the
Warrant and this Subscription Agreement payment of $_______ as payment for
the shares, and requests that a certificate for such shares be issued in
the name of the undersigned and be delivered to the undersigned at the
address stated below.
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The undersigned agrees that, upon issuance of the shares, the
undersigned will execute an investment letter in the form attached hereto
as Exhibit 1, to reflect that the shares are being acquired for investment
purposes and not with a view toward their resale or distribution to the
public.
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Signed
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Dated
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