XTREME GREEN PRODUCTS INC. FORM OF COMMON STOCK WARRANT
Exhibit
A
NEITHER
THIS SECURITY NOR ANY SECURITIES WHICH MAY BE ISSUED UPON EXERCISE OF THIS
SECURITY HAVE BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY U.S. STATE OR OTHER JURISDICTION
OR ANY EXCHANGE OR SELF-REGULATORY ORGANIZATION, IN RELIANCE UPON EXEMPTIONS
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
AND SUCH OTHER LAWS AND REQUIREMENTS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR LISTING OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
SUCH REGISTRATION AND/OR LISTING REQUIREMENTS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH WILL BE
REASONABLY ACCEPTABLE TO THE COMPANY.
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FORM
OF COMMON STOCK WARRANT
No_________
_______________,
2010
Xtreme
Green Products Inc., a Nevada corporation (the “Company”), hereby certifies
that ______________________________, its permissible transferees, designees,
successors and assigns (collectively, the “Holder”), for value received,
is entitled to purchase from the Company at any time and from time to time
commencing on the date first appearing above (the “Issuance Date”), up to and
through 12:01a.m. (EST) on the date [three (3)/four (4)/five (5)]*
years from the Issuance Date (the “Termination Date”) up to
1,250,000 shares (each, a “Share” and collectively the
“Shares”) of the
Company’s common stock, at an exercise price per Share equal to [$0.40/$0.65/$0.75]* (the
“Exercise
Price”). The number of Shares purchasable hereunder and the
Exercise Price are subject to adjustment as provided in Section 4
hereof.
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1.
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Method of Exercise;
Payment.
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(a) Exercise. The
purchase rights represented by this Warrant may be exercised, for cash only, by
the Holder, in whole or in part, at any time, or from time to time, by the
surrender of this Warrant (with the notice of exercise form (the "Notice of Exercise") attached
hereto as Exhibit A duly executed) at the principal office of the Company, and
by payment to the Company of an amount equal to the Exercise Price multiplied by
the number of the Shares being
____________
· There are three series of warrants
being issued, each with its own exercise term and price.
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purchased,
which amount may be paid, at the election of the Holder, by wire transfer or
certified check payable to the order of the Company. The person or persons in
whose name(s) any certificate(s) representing Shares shall be issuable upon
exercise of this Warrant shall be deemed to have become the holder(s) of record
of, and shall be treated for all purposes as the record holder(s) of, the Shares
represented thereby (and such Shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which this
Warrant is exercised.
(b) Stock
Certificates. In the event of any exercise of the rights
represented by this Warrant, as promptly as practicable after this Warrant is
surrendered and delivered to the Company along with all other appropriate
documentation on or after the date of exercise and in any event within ten (10)
days thereafter, the Company at its expense shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates for
the number of Shares issuable upon such exercise. In the event this
Warrant is exercised in part, the Company at its expense will execute and
deliver a new Warrant of like tenor exercisable for the number of Shares for
which this Warrant may then be exercised.
(c) Taxes. The
issuance of the Shares upon the exercise of this Warrant, and the delivery of
certificates or other instruments representing such Shares, shall be made
without charge to the Holder for any tax or other charge in respect of such
issuance.
2. Warrant.
(a) Transfer and
Replacement. At any time prior to the exercise hereof, this
Warrant may be exchanged upon presentation and surrender to the Company, alone
or with other warrants of like tenor of different denominations registered in
the name of the same Holder, for another warrant or warrants of like tenor in
the name of such Holder exercisable for the aggregate number of Shares as the
warrant or warrants surrendered.
(b) Replacement of
Warrant. Upon 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, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company,
or, in the case of any such mutilation, upon surrender and cancellation of this
Warrant, the Company, at its expense, will execute and deliver in lieu thereof,
a new Warrant of like tenor.
(c) Cancellation. Payment of
Expenses. Upon the surrender of this Warrant in connection with any
transfer, exchange or replacement as provided in this Section 2, this Warrant
shall be promptly canceled by the Company. The Holder shall pay all
taxes and all other expenses (including legal expenses, if any, incurred by the
Holder or transferees) and charges payable in connection with the preparation,
execution and delivery of Warrants pursuant to this Section 2.
(d) Warrant
Register. The Company shall maintain, at its principal
executive offices (or at the offices of the transfer agent for the Warrant or
such other office or agency of the Company as it may designate by notice to the
holder hereof), a register for this Warrant (the “Warrant Register”), in which
the Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
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3. Rights and Obligations of
Holders of this Warrant.
The
Holder of this Warrant shall not, by virtue hereof, be entitled to any rights of
a shareholder in the Company, either at law or in
equity; provided, however, that in the event any
certificate representing shares of Common Stock or other securities 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 Common Stock on
the date on which this Warrant, together with a duly executed Notice of
Exercise, was surrendered and payment of the aggregate Exercise Price was made,
irrespective of the date of delivery of such Common Stock
certificate.
4. Adjustments.
During
the Exercise Period, the Exercise Price and the number of Warrant Shares shall
be subject to adjustment from time to time as provided in this Paragraph
4.
(a) Subdivision or Combination of Common
Stock. If the Company at any time subdivides (by any stock split,
stock dividend, recapitalization, reorganization, reclassification or
otherwise) the shares of Common Stock acquirable hereunder into a greater
number of shares, then, after the date of record for effecting such
subdivision, the Exercise Price in effect immediately prior to such
subdivision will be proportionately reduced. If the Company at any time
combines (by reverse stock split, recapitalization,
reorganization, reclassification or otherwise) the shares of Common Stock
acquirable hereunder into a smaller number of shares, then, after the date
of record for effecting such combination, the Exercise Price in
effect immediately prior to such combination will be proportionately
increased.
(b) Adjustment in Number of
Shares. Upon each adjustment of the Exercise Price pursuant to the
provisions of this Paragraph 4, the number of shares of Common Stock
issuable upon exercise of this Warrant shall be adjusted by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise
of this Warrant immediately prior to such adjustment and dividing
the product so obtained by the adjusted Exercise Price.
(c) Consolidation, Merger or
Sale. In case of any
consolidation of the Company with, or merger of the Company into any other
corporation, or in case of any sale or conveyance of all or substantially
all of the assets of the Company other than in connection with a plan of
complete liquidation of the Company, then as a condition of such
consolidation, merger or sale or conveyance, adequate provision will be
made whereby the holder of this Warrant will have the right to acquire and
receive upon exercise of this Warrant in lieu of the shares of Common Stock
immediately theretofore acquirable upon the exercise of this Warrant, such
shares of stock, securities or assets as may be issued or payable with
respect to or in exchange for the number of shares of Common Stock
immediately theretofore acquirable and receivable upon exercise of this
Warrant had such consolidation, merger or sale or conveyance not
taken place. In any such case, the Company will make appropriate provision
to insure that the provisions of this Paragraph 4 hereof will thereafter be
applicable as nearly as may be in relation to any shares of stock or
securities thereafter deliverable upon the exercise of this Warrant. The
Company will not effect any consolidation, merger or sale or conveyance
unless prior to the consummation thereof, the successor corporation (if
other than the Company) assumes by written instrument the obligations under
this Paragraph 4 and the obligations to deliver to the holder of this
Warrant such shares of stock, securities or assets as, in accordance with
the foregoing provisions, the holder may be entitled
to acquire.
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(d) Distribution of Assets. In
case the Company shall declare or make any distribution of its assets
(including cash) to holders of Common Stock as a partial liquidating
dividend, by way of return of capital or otherwise, then, after the date of
record for determining shareholders entitled to such distribution, but
prior to the date of distribution, the holder of this Warrant shall be
entitled upon exercise of this Warrant for the purchase of any or all of
the shares of Common Stock subject hereto, to receive the amount of
such assets which would have been payable to the holder had such holder
been the holder of such shares of Common Stock on the record date for the
determination of shareholders entitled to such distribution.
(e) Notice of Adjustment. Upon
the occurrence of any event which requires any adjustment of the Exercise
Price, then, and in each such case, the Company shall give notice thereof
to the holder of this Warrant, which notice shall state the Exercise Price
resulting from such adjustment and the increase or decrease in the number
of Warrant Shares purchasable at such price upon exercise, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Such calculation shall be certified by the Chief
Financial Officer of the Company.
(f) Minimum Adjustment of Exercise
Price. No adjustment of the Exercise Price shall be made in an
amount of less than 1% of the Exercise Price in effect at the time such
adjustment is otherwise required to be made, but any such lesser adjustment
shall be carried forward and shall be made at the time and together with
the next subsequent adjustment which, together with any adjustments so
carried forward, shall amount to not less than 1% of such Exercise
Price.
(i) Other
Notices. In case at any time:
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(i)
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the
Company shall declare any dividend upon the Common Stock payable in shares
of stock of any class or make any other distribution (including dividends
or distributions payable in cash out of retained earnings) to the holders
of the Common Stock;
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(ii)
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the
Company shall offer for subscription pro rata to the holders of the Common
Stock any additional shares of stock of any class or other
rights;
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(iii)
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there
shall be any capital reorganization of the Company, or reclassification of
the Common Stock, or consolidation or merger of the Company with or into,
or sale of all or substantially all its assets to, another corporation or
entity; or
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(iv)
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there
shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Company;
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then, in
each such case, the Company shall give to the holder of this Warrant (a)
notice of the date on which the books of the Company shall close or a
record shall be taken for determining the holders of Common Stock entitled
to receive any such dividend, distribution, or subscription rights or for
determining the holders of Common Stock entitled to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, notice of the date (or, if not then known, a reasonable
approximation thereof by the Company) when the same shall take place. Such
notice shall also specify the date on which the holders of Common Stock
shall be entitled to receive such dividend, distribution, or subscription
rights or to exchange their Common Stock for stock or other securities or
property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or winding-up, as
the case may be. Such notice shall be given at least 30 days prior to the
record date or the date on which the Company's books are closed in respect
thereto. Failure to give any such notice or any defect therein shall
not affect the validity of the proceedings referred to in clauses (i),
(ii), (iii) and (iv) above.
(k) Certain Events. If any event
occurs of the type contemplated by the adjustment provisions of this
Paragraph 4 but not expressly provided for by such provisions, the Company
will give notice of such event as provided in Paragraph 4(e) hereof, and
the Company's Board of Directors will make an appropriate adjustment in the
Exercise Price and the number of shares of Common Stock acquirable upon
exercise of this Warrant so that the rights of the holder shall be neither
enhanced nor diminished by such event.
5. Fractional
Shares.
In lieu
of issuance of a fractional share upon any exercise hereunder, the Company will
issue an additional whole share in lieu of that fractional share, calculated on
the basis of the Exercise Price.
6. Legends.
Prior to
issuance of the shares of Common Stock underlying this Warrant, all such
certificates representing such shares shall bear a restrictive legend to the
effect that the Shares represented by such certificate have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), and that the
Shares may not be sold or transferred in the absence of such registration or an
exemption therefrom, such legend to be substantially in the form of the
bold-face language appearing at the top of Page 1 of this Warrant.
7. Disposition of Warrants or
Shares.
The
Holder of this Warrant, each transferee hereof and any holder and transferee of
any Shares, by his or its acceptance thereof, agrees that no public distribution
of Warrants or Shares will be made in violation of the provisions of the
Securities Act. Furthermore, it shall be a condition to the transfer
of this Warrant that any transferee thereof deliver to the Company his or its
written agreement to accept and be bound by all of the terms and conditions
contained in this Warrant.
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8. Merger or
Consolidation.
The
Company will not merge or consolidate with or into any other corporation, or
sell or otherwise transfer its property, assets and business substantially as an
entirety to another corporation, unless the corporation resulting from such
merger or consolidation (if not the Company), or such transferee corporation, as
the case may be, shall expressly assume, by supplemental agreement reasonably
satisfactory in form and substance to the Holder, the due and punctual
performance and observance of each and every covenant and condition of this
Warrant to be performed and observed by the Company.
9. Notices.
Except as
otherwise specified herein to the contrary, all notices, requests, demands and
other communications required or desired to be given hereunder shall only be
effective if given in writing by certified or registered U.S. mail with return
receipt requested and postage prepaid; by private overnight delivery service
(e.g. Federal Express); by facsimile transmission (if no original documents or
instruments must accompany the notice); or by personal delivery. Any
such notice shall be deemed to have been given (a) on the business day
immediately following the mailing thereof, if mailed by certified or registered
U.S. mail as specified above; (b) on the business day immediately following
deposit with a private overnight delivery service if sent by said service; (c)
upon receipt of confirmation of transmission if sent by facsimile transmission;
or (d) upon personal delivery of the notice. All such notices shall
be sent to the following addresses (or to such other address or addresses as a
party may have advised the other in the manner provided in this
Section 9):
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If
to the Company:
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▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Las
Vegas, Nevada 89118
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Attn: ▇▇▇▇
▇▇▇▇
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Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
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Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
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with
a copy to:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
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▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
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New
York, NY 10005
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Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
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Notwithstanding
the time of effectiveness of notices set forth in this Section 10, a Notice of
Exercise shall not be deemed effectively given until it has been duly completed
and submitted to the Company together with this original Warrant and payment of
the Exercise Price in a manner set forth in this Section 10.
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11. Governing
Law.
This
Agreement shall be governed by and construed solely and exclusively in
accordance with and pursuant to the internal laws of the State of
Nevada without regard to the conflicts of laws principles thereof. The
parties hereto hereby expressly and irrevocably agree that any suit or
proceeding arising directly and/or indirectly pursuant to or under this
Agreement shall be brought solely in a federal or state court located in the
City of Las Vegas. By its execution hereof, the parties hereby covenant and
irrevocably submit to the in personam jurisdiction of the federal and state
courts located in the City of Las Vegas, Nevada and agree that any process in
any such action may be served upon any of them personally, or by certified mail
or registered mail upon them or their agent, return receipt requested, with the
same full force and effect as if personally served upon them in Las Vegas. The
parties hereto expressly and irrevocably waive any claim that any such
jurisdiction is not a convenient forum for any such suit or proceeding and any
defense or lack of in personam jurisdiction with respect thereto. In the event
of any such action or proceeding, the party prevailing therein shall be entitled
to payment from the other party hereto of all of its reasonable counsel fees and
disbursements.
12. Successors and
Assigns.
This
Warrant shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
13. Headings.
The
headings of various sections of this Warrant have been inserted for reference
only and shall not affect the meaning or construction of any of the provisions
hereof.
14. Severability.
If any
provision of this Warrant is held to be unenforceable under applicable law, such
provision shall be excluded from this Warrant, and the balance hereof shall be
interpreted as if such provision were so excluded.
15. Modification and
Waiver.
This
Warrant and any provision hereof may be amended, waived, discharged or
terminated only by an instrument in writing signed by the Company and the
Holder.
16. Specific
Enforcement.
The
Company and the Holder acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Warrant were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Warrant and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which either of them may be entitled by law or
equity.
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17. Assignment.
This
Warrant may be transferred or assigned, in whole or in part, at any time and
from time to time by the then Holder by submitting this Warrant to the Company
together with a duly executed Assignment in substantially the form and substance
of the Form of Assignment which accompanies this Warrant
as Exhibit B hereto, and, upon the Company’s receipt
thereof, and in any event, within five (5) business days thereafter, the Company
shall issue a Warrant to the Holder to evidence that portion of this Warrant, if
any as shall not have been so transferred or assigned.
(Signature
Page Immediately Follows)
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IN WITNESS WHEREOF, the
Company has caused this Warrant to be duly executed, manually or by facsimile,
by one of its officers thereunto duly authorized.
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Date:
__________________, 2010
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XTREME
GREEN PRODUCTS
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By:
______________________
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9
EXHIBIT A
NOTICE OF
EXERCISE
To Be
Executed by the Holder
in Order
to Exercise the Warrant
The
undersigned Holder hereby elects to purchase _______ Shares pursuant to the
attached Warrant, and requests that certificates for securities be issued in the
name of:
__________________________________________________________
(Please
type or print name and address)
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Social
Security or Tax Identification Number)
and
delivered
to:______________________________________________________________
___________________________________________________________________.
(Please
type or print name and address if different from above)
If such
number of Shares being purchased hereby shall not be all the Shares that may be
purchased pursuant to the attached Warrant, a new Warrant for the balance of
such Shares shall be registered in the name of, and delivered to, the Holder at
the address set forth below.
In full
payment of the purchase price with respect to the Shares purchased and transfer
taxes, if any, the undersigned hereby tenders payment of $__________ by check,
money order or wire transfer payable in United States currency to the order of
[________________].
HOLDER:
By:_____________________________________
Name:
Title:
Address:
Dated:
_________________
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EXHIBIT
B
FORM OF
ASSIGNMENT
(To be
signed only on transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto
_____________ the right represented by the within Warrant to purchase ______
shares of Common Stock of Xtreme Green Products Inc., a Nevada corporation, to
which the within Warrant relates, and appoints ____________________ Attorney to
transfer such right on the books of Xtreme Green Products Inc., a Nevada
corporation, with full power of substitution of premises.
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Dated:
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By:______________________________
Name:
Title:
(signature
must conform to name
of
holder as specified on the fact of the Warrant)
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Address:
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Signed in
the presence of:
Dated:
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