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EXHIBIT 4.4
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WARRANT TO PURCHASE COMMON STOCK
OF
UPGRADE INTERNATIONAL CORPORATION
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THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS REGISTERED UNDER THE ACT OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
FOR VALUE RECEIVED
Upgrade International Corporation, a Florida corporation (the "Company"), grants
the following rights to the ▇▇▇▇▇ Family Trust, having an address at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Holder").
ARTICLE 1. DEFINITIONS
As used herein, the following terms shall have the following meanings, unless
the context shall otherwise require:
(a) "Common Stock" shall mean the common stock, par value $0.001 per
share, of the Company.
(b) "Corporate Office" shall mean the office of the Company (or its
successor) at which at any particular time its principal
business shall be administered, which office is located at the
date hereof at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
c) "Exercise Date" shall mean any date upon which the Holder shall
give the Company a Notice of Exercise, which shall be deemed the
date the Notice of Exercise was first deposited in the U.S.
Mails, if mailed, or the date received by the courier company if
delivered by recognized courier company, or the date received by
the Company if otherwise given or delivered.
(d) "Exercise Price" shall mean the price to be paid to the Company
for each share of Common Stock to be purchased upon exercise of
this Warrant in accordance with the terms hereof, which shall be
$0.25 per share.
(e) "Expiration Date" shall mean 5:00 PM (Pacific Standard time) on
January 20, 2001.
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(f) "SEC" shall mean the United States Securities and Exchange
Commission.
ARTICLE 2. EXERCISE
2.1 EXERCISE OF WARRANT
This Warrant shall entitle Holder to purchase up to 1,000,000 shares of
Common Stock (the "Shares") at the Exercise Price. This Warrant shall be
exercisable at any time and from time to time prior to the Expiration
Date (the "Exercise Period") upon execution. This Warrant and the right
to purchase Shares hereunder shall expire and become void at the
Expiration Date.
2.2 MANNER OF EXERCISE
(a) Holder may exercise this Warrant at any time and from time to
time during the Exercise Period, in whole or in part (but not in
denominations of fewer than 5,000 Shares, except upon an
exercise of this Warrant with respect to the remaining balance
of Shares purchasable hereunder at the time of exercise), by
delivering to the Company at its Corporate Office (i) a duly
executed Notice of Exercise in substantially the form attached
as Appendix I hereto and (ii) a bank cashier's or certified
check for the aggregate Exercise Price of the Shares being
purchased.
(b) From time to time upon exercise of this Warrant, in whole or
part, in accordance with its terms, the Company will cause its
transfer agent to countersign and deliver stock certificates to
the Holder representing the number of Shares being purchased
pursuant to such exercise, subject to adjustment as described
herein.
(c) Promptly following any exercise of this Warrant, if the Warrant
has not been fully exercised and has not expired, the Company
will deliver to the Holder a new Warrant for the balance of the
Shares covered hereby.
2.3 TERMINATION
All rights of the Holder in this Warrant, to the extent they have not
been exercised, shall terminate on the Expiration Date.
2.4 NO RIGHT PRIOR TO EXERCISE
Prior to its exercise pursuant to Section 2.3 above, this Warrant shall
not entitle the Holder to any voting or other rights as holder of
Shares.
2.5 ADJUSTMENTS
In case of any reclassification, capital reorganization, stock dividend,
or other change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any
reclassification, capital reorganization, stock dividend, or other
change of outstanding shares of Common Stock), or in case of any sale or
conveyance to another corporation of the property of the Company as, or
substantially as, an entirety (other than a
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sale/leaseback, mortgage or other financing transaction), the Company
shall cause effective provision to be made so that the Holder shall have
the right thereafter, by exercising this Warrant, to purchase the kind
and number of shares of stock or other securities or property (including
cash) receivable upon such reclassification, capital reorganization,
stock dividend, or other change, consolidation, merger, sale or
conveyance as the Holder would have been entitled to receive had the
Holder exercised this Warrant in full immediately before such
reclassification, capital reorganization, stock dividend, or other
change, consolidation, merger, sale or conveyance. Any such provision
shall include provision for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 2.6. The foregoing provisions shall similarly apply to
successive reclassifications, capital reorganizations, stock dividends,
and other changes of outstanding shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
2.6 FRACTIONAL SHARES
No fractional Shares shall be issuable upon exercise or conversion of
this Warrant and the number of Shares to be issued shall be rounded down
to the nearest whole Share. If a fractional Share interest arises upon
any exercise or conversion of the Warrant, the Company shall eliminate
such fractional Share interest by paying Holder the amount computed by
multiplying the fractional interest by the closing bid price of a full
Share on the date of the Notice of Exercise.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY
3.1 REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Holder as follows:
(a) All Shares which may be issued upon the exercise of the purchase
right represented by this Warrant shall, upon issuance, by duly
authorized, validly issued, fully-paid and nonassessable, and
free of any liens and encumbrances except for restrictions on
transfer provided for herein or under applicable federal and
state securities laws, and not subject to any pre-emptive
rights.
(b) The Company is a corporation duly organized and validly existing
under the laws of the State of Florida, and has the full power
and authority to issue this Warrant and to comply with the terms
hereof. The execution, delivery and performance by the Company
of its obligations under this Warrant, including, without
limitation, the issuance of the Shares upon any exercise of the
Warrant, have been duly authorized by all necessary corporate
action. This Warrant has been duly executed and delivered by the
Company and is a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as enforcement
may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting enforceability of
creditors' rights generally and except as the availability of
the remedy of specific enforcement, injunctive relief or other
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equitable relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
(c) The Company is not subject to or bound by any provision of any
certificate or articles of incorporation or by-laws, mortgage,
deed of trust, lease, note, bond, indenture, other instrument or
agreement, license, permit, trust, custodianship, other
restriction or any applicable provision of any law, statute, any
court, governmental body, administrative agency or arbitrator
which could prevent or be violated by or under which there would
be a default (or right of termination) as a result of the
execution, delivery and performance by the Company of this
Warrant.
ARTICLE 4. MISCELLANEOUS
4.1 TRANSFER
This Warrant may not be transferred or assigned, in whole or in
part, at any time without the consent of the Company.
4.2 LOSS, THEFT, DESTRUCTION OR MUTILATION
If this Warrant shall become mutilated or defaced or be
destroyed, lost or stolen, the Company shall execute and deliver
a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or, in lieu of
and in substitution for such Warrants so destroyed, lost or
stolen, upon the Holder filing with the Company evidence
satisfactory to it that such Warrant has been so mutilated,
defaced, destroyed, lost or stolen. However, the Company shall
be entitled, as a condition to the execution and delivery of
such new Warrant, to demand indemnity satisfactory to it and
payment of the expenses and charges incurred in connection with
the delivery of such new Warrant. Any Warrant so surrendered to
the Company shall be canceled.
4.3 NOTICES
All notices and other communications from the Company to the
Holder or vice versa shall be deemed delivered and effective
when given personally, by facsimile transmission and confirmed
in writing, or mailed by first-class registered or certified
mail, postage prepaid, at such address and/or facsimile number
as may have been furnished to the Company or the Holder, as the
case may be, in writing by the Company or the Holder from time
to time; provided, however, that the Notice of Exercise may not
be delivered by facsimile transmission.
4.4 WAIVER
This Warrant and any term hereof may be changed, waived, or
terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or
termination is sought.
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4.5 GOVERNING LAW
This Warrant shall be governed by and construed in accordance
with the laws of the State of Washington, without giving effect
to its principles regarding conflicts of law.
Dated: , 1999 UPGRADE INTERNATIONAL CORP.
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By: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
Attest:
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APPENDIX I
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ____________ shares of the
Common Stock of Upgrade International Corporation pursuant to the terms
of the attached Warrant, and tenders herewith payment of the purchase
price of such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as specified below.
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(Name)
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(Address)
3. The undersigned represents it is acquiring the shares solely for its own
account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with
applicable securities laws.
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(Signature) (Date)