EXHIBIT 4.2
WARRANT TO PURCHASE COMMON STOCK
Date of Issuance: February 25, 2005, Warrant to Purchase an aggregate of
150,000 (One Hundred and Fifty
thousand) shares of Common Stock
FOR VALUE RECEIVED, XSTREAM BEVERAGE NETWORK, INC., a Nevada
corporation (the "Corporation"), pursuant to the terms and conditions of that
certain Consulting Agreement of even date herewith by and between the
Corporation and _________________. (the "Holder") promises to issue in the name
of, and sell and deliver to the Holder on a cashless basis a certificate or
certificates for an aggregate of 150,000 shares of the Corporation's common
stock, par value $0.001 per share (the "Common Stock")
Section 1.
Exercise of Warrant
-------------------
1.1 Exercise Period. The Holder may exercise this Warrant, in whole or in part
(but not as to fractional shares), at any time and time to time commencing on
the date set forth above and ending at 5:00 p.m., Eastern Time, on February 28,
2010 (the "Exercise Period").
1.2 Exercise Procedure.
a. This Warrant may be exercised in whole or in part at any time during the
Exercise Period, provided however, if the last day of the Exercise Period is a
day on which federal or state chartered banking institutions located in the
State of Florida are authorized by law to close, then the last day of the
Exercise Period shall be deemed to be the next succeeding day which shall not be
such a day, by presentation and surrender to the Corporation at its principal
office of this Warrant accompanied by the form of Exercise Agreement attached
hereto as Exhibit 1 signed by the Holder
b. Certificates for the shares of Common Stock purchased upon exercise of
this Warrant will be delivered by the Corporation to the Holder within five (5)
business days after the Exercise Date. Unless this Warrant has expired or all of
the purchase rights represented hereby have been exercised, the Corporation will
prepare a new Warrant representing the rights formerly represented by this
Warrant that have not expired or been exercised. The Corporation will, within
such five (5) day period, deliver such new Warrant to the Holder at the address
set forth in this Warrant.
c. The shares of Common Stock issuable upon the exercise of this Warrant
will be deemed to have been transferred to the Holder on the Exercise Date, and
the Holder will be deemed for all purposes to have become the record holder of
such Common Stock on the Exercise Date.
d. The issuance of certificates for shares of Common Stock upon the
exercise of this Warrant will be made without charge to the Holder of any
issuance tax in respect thereof or any other cost incurred by the Corporation in
connection with such exercise and related transfer of the shares; provided,
however, that the Corporation shall not be required to pay any tax that may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate or instrument in a name other than that of the Holder of this
Warrant, and that the Corporation shall not be required to issue or deliver any
such certificate or instrument unless and until the person or persons requiring
the issue thereof shall have paid to the Corporation the amount of such tax or
shall have established to the satisfaction of the Corporation that such tax has
been paid.
e. The shares of Common Stock issuable upon the exercise of this
Warrant have not been registered under the Securities Act of 1933, as amended
(the "Act") and, accordingly, will be "restricted securities" as that term is
defined in the Act. The Corporation may insert the following or similar legend
on the face of the certificates evidencing shares of Common Stock if required in
compliance with state securities laws:
"These securities have not been registered under any state
securities laws and may not be sold or otherwise transferred
or disposed of except pursuant to an effective registration
statement under any applicable state securities laws, or an
opinion of counsel satisfactory to counsel to the
Corporation that an exemption from registration under any
applicable state securities laws is available." The Holder
shall have piggyback registration rights for any Common
Shares in connection with any registration statement filed
by the Company to register securities of the Company for
sale to the public (except a registration statement filed in
connection with an acquisition or exchange offering). The
shares would be included in the next registration statement
at the option of the Holder" The Company shall give prompt
written notice to the Holder of any such proposed
registration, and the Holder shall inform the Company,
within 20 days after receipt of such notice, if it wishes to
register any of its Common Shares in the Company's
registration Statement. If the Holder does not so
information the Company, the Company shall have the right to
assume that ▇▇▇▇▇▇ does not wish to register any of its
Common Shares in the Company's registration statement. The
Company shall pay all costs and expenses of such
registration, excluding fees and expense of counsel for
Holder and underwriting discounts, commissions, or expenses
of Holder with respect to the sale of its Common Shares.
2
1.3 Fractional Shares. If a fractional share of Common Stock would, but for the
provisions of Subsection 1.1, be issuable upon exercise of the rights
represented by this Warrant, the Corporation will, within 30 days after the
Exercise Date, deliver to the Holder a check payable to the Holder, in lieu of
such fractional share, in an amount equal to the market price of such fractional
share as determined by the last sale price of the Corporation's Common Stock as
reported on the OTC Bulletin Board or the principal exchange on which the
Corporation's Common Stock is then traded, as of the close of business on the
Exercise Date.
Section 2.
Effect of Stock Dividends, Reorganization, Reclassification,
------------------------------------------------------------
Consolidation, Merger or Sale
-----------------------------
2.1 Stock Dividends, Recapitalization or Reclassification of Common Stock. In
case the Corporation shall at any time prior to the exercise or termination of
this Warrant (i) pay a dividend or make a distribution of its capital stock in
shares of Common Stock to all holders of shares of Common Stock, or (ii) effect
a recapitalization or reclassification of such character that its Common Stock
shall be changed into or become exchangeable for a larger or smaller number of
shares, then, upon the effective date thereof, the number of shares of Common
Stock that the Holder of this Warrant shall be entitled to purchase upon
exercise hereof shall be increased or decreased, as the case may be, in direct
proportion to the increase or decrease in such number of shares of Common Stock
by reason of such stock dividend, recapitalization or reclassification, and the
Exercise Price of such dividend, recapitalized or reclassified Common Stock
shall, in the case of an increase in the number of shares, be proportionately
decreased and, in the case of a decrease in the number of shares, be
proportionately increased.
2.2 Consolidation, Merger or Sale. In case the Corporation shall at any time
prior to the exercise of this Warrant, or the expiration of the Exercise Period,
whichever first occurs, consolidate or merge with any other corporation (unless
the Corporation shall be the surviving entity) or transfer all or substantially
all of its assets to any other corporation preparatory to a dissolution, then
the Corporation shall, as a condition precedent to such transaction, cause
effective provision to be made so that the Holder of this Warrant, upon the
exercise thereof after the effective date of such transaction, shall be entitled
to receive the kind and amount of shares, evidences of indebtedness, and/or
other property receivable on such transaction by a holder of the number of
shares of Common Stock as to which the Warrant was exercisable immediately prior
to such transaction (without giving effect to any restriction upon such
exercise); and, in any such case, appropriate provision shall be made with
respect to the rights and interests of the Holder hereof to the effect that the
provisions of this Warrant shall thereafter be applicable (as nearly as may be
practicable) with respect to any shares, evidences of indebtedness, or other
securities or assets thereafter deliverable upon exercise of this Warrant.
3
2.3 Notice of Adjustment. Whenever the number of shares of Common Stock
purchasable upon exercise of this Warrant shall be adjusted as provided herein,
the Corporation shall file with its corporate records a certificate of its Chief
Financial Officer setting forth the computation and the adjusted number of
shares of Common Stock purchasable hereunder resulting from such adjustments,
and a copy of such certificate shall be mailed to the Holder. Any such
certificate or letter shall be conclusive evidence as to the correctness of the
adjustment or adjustments referred to therein and shall be available for
inspection by the holders of the Warrants on any day during normal business
hours.
Section 3.
Reservation of Common Stock
---------------------------
The Corporation will at all time reserve and keep available such number of
shares of Common Stock as will be sufficient to permit the exercise in full of
this Warrant. Upon exercise of this Warrant pursuant to its terms, the Holder
will acquire fully paid and non-assessable ownership rights of the Common Stock,
free and clear of any liens, claims or encumbrances.
Section 4.
No Shareholder Rights or Obligations
------------------------------------
This Warrant will not entitle the Holder hereof to any voting rights or other
rights as a shareholder of the Corporation. Until the shares of Common Stock
issuable upon the exercise of this Warrant are recorded as issued on the books
and records of the Corporation's transfer agent, the Holder shall not be
entitled to any voting rights or other rights as a shareholder; provided,
however, that the Corporation shall use its bests efforts to ensure that, upon
receipt of the Exercise Agreement and payment of the Exercise Price, the
appropriate documentation necessary to effectuate the exercise of the Warrant
and the issuance of the Common Stock is accomplished as expeditiously as
possible. No provision of this Warrant, in the absence of affirmative action by
the Holder to purchase Common Stock, and no enumeration in this Warrant of the
rights or privileges of the Holder, will give rise to any obligation of such
Holder for the Exercise Price or as a stockholder of the Corporation.
Section 5.
Transferability
---------------
Neither this Warrant nor any rights hereunder are transferable, in whole or in
part, without the prior written consent of the Corporation, which such consent
may not be forthcoming. In the event the Corporation should consent to such
transfer, this Warrant and the rights under shall be transferable upon surrender
of this Warrant with a properly executed Assignment in the form of Exhibit 2
4
hereto at the principal offices of the Corporation. The Corporation has no
obligation to recognize any purported transfer of this Warrant, and the
transferee is not entitled to any rights under this Warrant, until such
acknowledgment has been received by the Corporation. This Warrant and the
underlying shares of Common Stock may not be offered, sold or transferred except
in compliance with the Act, and any applicable state securities laws, and then
only against receipt of an agreement of the person to whom such offer or sale or
transfer is made to comply with the provisions of this Warrant with respect to
any resale or other disposition of such securities; provided that no such
agreement shall be required from any person purchasing this Warrant or the
underlying shares of Common Stock pursuant to a registration statement effective
under the Act. The Holder of this Warrant agrees that, prior to the disposition
of any security purchased on the exercise hereof other than pursuant to an
registration statement then effective under the Act, or any similar statute then
in effect, the Holder shall give written notice to the Corporation, expressing
his intention as to such disposition. Upon receiving such notice, the
Corporation shall present a copy thereof to its securities counsel. If, in the
sole opinion of such counsel, which such opinion shall not be unreasonably
withheld, the proposed disposition does not require registration of such
security under the Act, or any similar statute then in effect, the Corporation
shall, as promptly as practicable, notify the Holder of such opinion, whereupon
the Holder shall be entitled to dispose of such security in accordance with the
terms of the notice delivered by the Holder to the Corporation.
Section 6.
Miscellaneous
-------------
6.1 Notices. Any notices, requests or consents hereunder shall be deemed given,
and any instruments delivered, two days after they have been mailed by first
class mail, postage prepaid, or upon receipt if delivered personally or by
facsimile transmission, as follows:
If to the Corporation: ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Beilly, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
Suite ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
5
If to the Holder:
except that any of the foregoing may from time to time by written notice to the
other designate another address which shall thereupon become its effective
address for the purposes of this paragraph.
6.2 Entire Agreement. This Warrant, including the exhibits and documents
referred to herein which are a part hereof, contain the entire understanding of
the parties hereto with respect to the subject matter and may be amended only by
a written instrument executed by the parties hereto or their successors or
assigns. Any paragraph headings contained in this Warrant are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Warrant.
6.3 Construction and Enforcement. This Warrant shall be governed by and
construed under the laws of the State of Florida, without regard to principles
of conflicts of laws and rules of such state. If it becomes necessary for any
party to institute legal action to enforce the terms and conditions of this
Warrant, and such legal action results in a final judgment in favor of such
party ("Prevailing Party"), then the party or parties against whom said final
judgment is obtained shall reimburse the Prevailing Party for all direct,
indirect or incidental expenses incurred, including, but not limited to, all
attorneys' fees, court costs and other expenses incurred throughout all
negotiations, trials or appeals undertaken in order to enforce the Prevailing
Party's rights hereunder. Any suit, action or proceeding with respect to this
Warrant shall be brought in the state or Federal courts located in Broward
County in the State of Florida. The parties hereto hereby accept the exclusive
jurisdiction and venue of those courts for the purpose of any such suit, action
or proceeding. The parties hereto hereby irrevocably waive, to the fullest
extent permitted by law, any objection that any of them may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Warrant or any judgment entered by any court in respect thereof
brought in Broward County, Florida, and hereby further irrevocably waive any
claim that any suit, action or proceeding brought in Broward County, Florida,
has been brought in an inconvenient forum.
IN WITNESS WHEREOF, this Warrant has been duly executed and the corporate seal
affixed hereto, all as of the day and year first above written.
XSTREAM BEVERAGE NETWORK, INC.
By: /s/
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
ATTEST:
------------------------
6
EXHIBIT 1
----------
EXERCISE AGREEMENT
------------------
To: Dated:
The undersigned record Holder, pursuant to the provisions set forth in the
within Warrant, hereby subscribed for and purchases shares of Common Stock
covered by such Warrant and hereby makes full cash payment of $ for such shares
at the Exercise Price provided by such Warrant.
----------------------------
(Signature)
----------------------------
(Print or type name)
----------------------------
(Address)
NOTICE: The signature of this Exercise Agreement must correspond with the name
as written upon the face of the within Warrant, or upon the Assignment thereof,
if applicable, in every particular, without alteration, enlargement or any
change whatsoever.
7
EXHIBIT 2
---------
ASSIGNMENT
----------
FOR VALUE RECEIVED, , the undersigned Holder hereby sell, assigns, and transfer
all of the rights of the undersigned under the within Warrant with respect to
the number of shares of Common Stock issuable upon the exercise of such Warrant
set forth below, unto the Assignee identified below, and does hereby irrevocable
constituted and appoint to effect such transfer of rights on the books of the
Corporation, with full power of substitution:
Number of Shares
Name of Assignee Address of Assignee of Common Stock
---------------- ------------------- ----------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
---------------------- ----------------------------------
(Signature of Holder)
----------------------------------
(Print or type name)
NOTICE: The signature of this Exercise Agreement must correspond with the name
as written upon the face of the within Warrant, or upon the Assignment thereof,
if applicable, in every particular, without alteration, enlargement or any
change whatsoever.
CONSENT OF ASSIGNEE
I HEREBY CONSENT to abide by the terms and conditions of the within Warrant.
Dated:
----------------------
(Signature of Assignee)
(Print or type name)
8